HomeMy WebLinkAboutMINUTES - 12151987 - IO.3 TO BOARD OF SUPERVISORS
FROM: INTERNAL OPERATIONS COMMITTEE r
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December 14, 1987 CWta
DATE'. CN 11"1IF�/
Franchising Solid Waste Collection in �/l�l !l�
SUBJECT: Unfranchised, Unincorporated Areas of the County
SPECIFIC REQUEST(S) OR RECOMMENDATION(S) & BACKGROUND AND JUSTIFICATION
RECOMMENDATIONS:
1 . Agree to franchise only the West Pittsburg, Discovery Bay
and Bethel Island areas for solid waste collection.
2 . Approve the general content of .the franchise agreement as
contained in the attached document prepared by staff in the
Community Development Department, with the following
clarifications or changes:
Item 6 should apply only to the collection of garbage in
residential areas.
Number 10 should be amended to require a contractor to
develop and implement a recycling program.
Item 14 should be amended to include an option to . be
renegotiated at the end of ,the initial. 10-year period.
A new item 15 should be added to require a ' contractor to
make free pick up available for community clean-up -projects.
A new item 16 which would require a contractor to cooperate
fully with the County in enforcing the existing provisions
of County Ordinance requiring mandatory garbage pick up
subscription by residents of the areas being franchised.
3 . Authorize staff to complete the franchise agreement,
including legal review by County Counsel.
4 . Authorize staff to work with the advisory committees for
Sanitation Districts 15 and 19 as well as the West Pittsburg
Alliance to schedule public meetings to obtain input on the
types of services that are desired in terms of pricing
structure, garden debris service, backyard or curbside
service, and similar services which will affect the price
paid by the public, and to incorporate the consensus of the
public. meetings into the bid documents.
CONTINUED ON ATTACHMENT-. YES /SIGNATURE:
_ RECOMMENDATION OF COUNTY ADMINISTRATOR X RECOMMENDATION OF BOARD COMMITTEE
X APPROVE
SIGNATUREIst: Nancy C. Fanden TTom ,T,lo/rlakson -
ACTION OF BOARD ON December 15, 1987 APPROVED AS RECOrAMENDED x OTHER
Supervisor Schroder ABSTAINED from voting because- of possible conflict
of interest.
VOTE OF SUPERVISORS
1 HEREBY CERTIFY THAT THIS IS A TRUE
_ UNANIMOUS (ABSENT AND CORRECT COPY OF AN ACTION TAKEN
AYES: I II IV. V NOES: AND ENTERED ON THE MINUTES OF THE BOARD
ABSENT: _. ABSTAIN: III OF SUPERVISORS ON THE DATE SHOWN.
cc: County Administrator ATTESTED
Community Development Director _ PHIL BATCHELOR, CLERK OF THE BOARD OF
David Okita, CDD SUPERVISORS AND COUNTY ADMINISTRATOR
County Counsel
BY
M382/7-83 DEPUTY
—
C1.
Page 2
5 . Authorize the Community Development Department to solicit
bids for the three specified franchise areas and report back
to the Board of Supervisors with a recommendation for
acceptance of bids.
6 . Remove this item as a referral to our Committee.
BACKGROUND-
The Board of Supervisors has agreed to explore franchising for
solid waste collection in the currently unfranchised,
unincorporated areas of the County. Our Committee was asked to
review this matter in more detail and make recommendations to the
full Board on the areas which might be franchised
We have met with staff from the Community Development Department
and have carefully reviewed the attached report. Based on our
review, we have made the above recommendations.
In addition to the specific recommendations made above, our
Committee wants to emphasize the importance of having all
residents of the areas being franchised subscribe to garbage
collection services in order to eliminate some of the problems
which have occurred in the past with accumulations of trash and
illegal disposal of such trash.
We also want to strongly emphasize recycling in any franchise
agreements. We would like staff to look at the possibility of a
substantially increased collection charge for a third or
subsequent can in an effort to encourage recycling.
CONTRA COSTA COUNTY
COMMUNITY DEVELOPMENT DEPARTMENT
TO: Internal Operations Committee DATE: December 9, 1987
Supervisor Nancy C. Fanden FILE: R-29
Supervisor Tom Torlakson
FROM: Harvey E. Bragdon, \ ,
Director of Community Development
By: David B. Okita, Senior Civil Engine \ O
1
SUBJECT: Franchising of Unfranchised Areas for Solid Waste Collection
On September 22, 1987, the Board determined to franchise collection and regulate
solid waste collection in unfranchised, unincorporated areas. The Community
Development Department was directed to prepare maps, and draft franchise agree-
ments and procedures for implementation of franchising. Subsequently, the Board
referred to the Internal Operations Committee additional review of the details
of franchising. This report is to provide the Internal Operations Committee
with information necessary to report back to the Board to start the franchising
process.
There are three issues that need to be addressed. The first- issue is selection
of the unfranchised, unincorporated areas to be franchised. The second issue is
to review the draft franchise agreement. The third issue is to develop a pro-
cess for public input into franchising to ensure that the level of service meets
the needs of the residents to be served.
l
Determination of Areas to be Franchised
Attached are maps of proposed possible service areas based on those areas iden-
tified by the Board as potential areas to be franchised. Also attached are
rough estimates of the counts of residences and businesses that would be fran-
chised. These are rough estimates for the purposes of giving those bidding on
the franchise a general idea of the number of potential clients. It would be
the responsibility of the bidders to verify the counts. We will update the maps
once further direction is given from the Board as to the specific communities to
be franchised.
Staff recommends that only the larger unincorporated, unfranchised areas be
franchised. This would only include West Pittsburg, Discovery Bay and Bethel
Island. We do not feel that the smaller areas will benefit from franchising.
Franchising these areas could result in increased costs without a commensurate
increase in service.
2.
Draft Franchise Agreements
Attached is a draft franchise agreement based upon the recently updated Central
Contra Costa Sanitary District franchise agreement. Central San's franchise
agreement is very comprehensive and is the most recent negotiated by a franchis-
ing agency. After Board review, County Counsel will be requested to perform a
legal review on the agreement.
The highlights of the agreement are as follows:
1. The franchise intends to regulate all residential and commercial waste
within the area.
2. Exclusive collection rights are granted to the contractor.
3. The County controls the rates for residential and commercial collec-
tion.
4. The contractor is required to give the County full access to the
financial records of the company.
5. Allows for annual rate increases subject to rate regulation.
6. Prohibits solid waste collection from 7:00 p.m. to 4:00 a.m.
7. Requires notification of the public once a. year about rates and
services.
8. Requires two annual "cleanup days."
9. County receives 5 percent of gross receipts as a franchise fee.
10. County can request contractor to develop and implement a recycling
program.
11. County has full control of wastestream for directing wastes to trans-
fer stations, waste-to-energy projects, large-scale resource recovery
projects, and sanitary landfills. The County may enter into contracts
committing this wastestream to these types of facilities or to the
collector.
12. If an area is annexed into a city or sanitary district, there is a
procedure for removing that area from the County franchised area.
13. County can take over the contractor's equipment if the franchise
agreement is breached or there is a labor dispute stopping service.
14. The term of the contract is to be 10 years with no provisions for
extension.
3.
Public Input
The franchise agreement does not cover specifics such as the pricing structure
for various amounts of cans, garden debris service, backyard or curbside
service, etc. Staff recommends that public meetings be held within the proposed
franchised areas to get input from the public on the type of service they
desire. This information can then be put into bid documents along with the
franchise agreement. Staff recommends that the advisory committees for Sanita-
tion Districts 15 and 19 be used for Bethel Island and Discovery Bay respective-
ly. The West Pittsburg Alliance could be used to sponsor a meeting in West
Pittsburg.
Recommendation
Staff recommends that the Internal Operations Committee report to the Board
franchising the above mentioned areas, approving the proposed concepts to be
included in the .franchise agreements, and approving the process for public
input. Staff further recommends that the Community Development Department be
directed to finalize the draft franchise agreement with review by County Coun-
sel, prepare the bid documents and proceed with the solicitation of bids for the
specified franchised areas. The Community Development Department would report
back to the Board on the results of the bids with a recommendation for accep-
tance of bids.
If you have any questions, please contact David Okita at 646-2071.
DBO:jn
128:internal.mem
attachments
R�29A
AREA NO. 1
WEST PITTSBURG
Break Down Count
- Residences 4579
- commercial/Industrial 145
- schools/churches 27
Total: 4751+
Notes: o Counts obtained from Delta Diablo sanitation District.
o Residence count includes all apartment complexes ( sizes
unknown) within the franchise area.
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R-29A
AREA NO. 2
BETHEL ISLAND
Break Down Count
- Residences 836
- Businesses 40
- Mobile Homes Parks 11
- Apartment Complexes 3
- Condominiums 102
- Marinas 23
- Golf Courses 1
- Motels 1
Total: 1017
Notes: o Counts taken from Contra Costa County Sanitation
District No. 15 records.
o Apartment complexes contain less than 10 units.
o Number of units within mobile home parks are unknown.
o All condominiums are located at. Willow Park Marina.
o A restaurant is located at 'the Golf Course.
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R -29A
AREA NO. 3
DISCOVERY BAY
Break Down Count
- Residences 2003
- commercial/Industrial 6
Total: 2009+
Notes: o Counts obtained from Delta Diablo sanitation District.
o Residence count includes all apartment complexes
( sizes unknown) within the franchised area.
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AREA NO. 4
PORT COSTA
Break Down Count
- Residences 81
- Businesses 5
- Schools 1
- Churches 1
Total: 88
Notes: o counts were taken from Contra Costa County Sanitation
District No. 5 records.
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AREA NO. 5
ALHAMBRA VALLEY \v1.3q'vauq-y•
Break Down Count
Residences 266
-"'�•._IIA �:�t
Total: 266
'otes: o Counts made by visual observation.
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R�29A
AREA NO. 6
KNIGHTSEN
Break Down Count
Residences 127
Businesses 5
- Schools 1
Total: 133
Notes: o Counts made by visual observation.
o Residential count includes 50 homes along Sellers Ave.
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DRAFT AGREEMENT FOR COLLECTION,
REMOVAL AND DISPOSAL OF GARBAGE
This Agreement is effective on
This Agreement made and entered into by
and between the County and the Contractor,
1. DEFINITIONS:
As used herein, the following terms shall have the meanings set forth
below:
(a) "Agreement": This Agreement for the collection, removal, recy-
cling and disposal of garbage by and between the County and the Contractor
entered into as of the date first written above.
(b) "Contractor":
(c) "County": Contra Costa County
(d) "Customers": Those who have contracted with the Contractor for
the collection, removal, recycling or disposal of garbage as provided herein, or
who may be required to accept and pay for said service by local ordinance.
(e) "Garbage":
(1) animal, fruit and vegetable refuse;
(2) offal;
(3) leaves and cuttings, trimmings from trees, shrubs and grass;
(4) inorganic refuse and rubbish;
(5) anything thrown away as worthless; provided, however, that
garbage shall not be defined as or include Hazardous Waste, Septage or Industri-
al Waste.
(f) "Hazardous Waste": A waste, or combination of wastes, which
because of its quantity, concentration, or physical, chemical, or infectious
characteristics may either:
(1) cause, or significantly contribute to an increase in mortal-
ity or an increase in serious irreversible, or incapacitating reversible, ill-
ness; or
(2) pose a substantial present or potential hazard to human
health or environmental when improperly treated, stored, transported, or dis-
posed of, or otherwise managed.
-1-
This definition will include, but not be limited to, hazardous waste
as defined by the State of California and its agencies, or the United States or
its agencies.
(g) "Industrial Waste": Non-sewered liquid waste and solid waste
produced as by-products of industrial processes, or other refuse produced or
accumulated as a result of industrial processes, including waste produced by
public entities as a result of treatment or other processes undertaken in pro-
viding public utility services.
(h) "Septage": Non-sewered liquid or semi-liquid waste which may be
trucked to treatment facilities for disposal, to include, but not limited to,
waste from residential septic tanks, commercial grease cleanouts, and industrial
waste holding facilities.
(i) "Waste Stream The garbage to be collected under this Agreement
from the time of the collection by the Contractor to the disposal of same by the
Contractor.
(j) "Zone": The geographic area generally described in Exhibit A to
this Agreement, which exhibit is attached hereto and incorporated herein by
reference, and more particularly as set forth in the six hundred (600) scale
maps maintained and available for inspection at the Community Development
Department. Said six hundred (600) scale maps shall reflect changes of bounda-
ries of the Zone in such a manner as to identify each alteration to the zone and
the effective date thereof.
2. EXCLUSIVE PRIVILEGE
The County, by this Agreement, grants to the Contractor for the term as set
forth in paragraph 30 of this Agreement, unless terminated in accordance with
this Agreement, the exclusive privilege and duty to collect, remove and dispose
of all garbage as said term is defined in this Agreement within the Zone. This
exclusive privilege to collect, remove, and dispose of garbage is only qualified
as set forth in this Agreement.
The Zone may be expanded or reduced in size (a) by mutual agreement of the
parties; or (b) as provided in paragraph 27 of this Agreement.
3. INTENT TO REGULATE ALL GARBAGE COLLECTION, REMOVAL OR DISPOSAL:
The parties hereto agree that the County currently has jurisdiction to reg-
ulate the collection, removal and disposal 'of all garbage in the Zone. The
parties further agree that by the terms of this Agreement the County has exer-
cised its jurisdiction and is regulating the collection, removal and disposal of
all garbage in the Zone. This Agreement does .not regulate the collection,
removal and disposal of industrial waste, hazardous waste or septage.
Whether a particular garbage collection activity is regulated by this
Agreement or not, is within the sole determination of the County. If there is
any question as to whether the garbage collection activity is regulated or un-
regulated, it shall be the responsibility of the Contractor to inquire of the
County and thereafter provide such information as the County may require to
-2-
enable the County to provide Contractor with a formal written opinion as to
whether the garbage collection activity is regulated or unregulated.
4. EXCEPTIONS TO EXCLUSIVE PRIVILEGE:
The exclusive privilege granted by this Agreement shall not apply if:
(a) The person or entity generating garbage personally collects,
removes and disposes of such in a clean and sanitary manner in conformance with
all applicable laws and regulations, or
(b) The person or entity generating inorganic refuse or rubbish con-
tacts the Contractor to arrange for the collection, removal and disposal of such
and the Contractor declines to do so or is unable to do so in a timely manner,
or
(c) The person generating the garbage contracts with another to
remove and dispose of (i) inorganic refuse or rubbish, or (ii) leaves, cuttings,
trimmings from trees, shrubs or grass by truck or other vehicular means, when
such removal is incidental to other contract work being performed.
Nothing in this paragraph shall be construed to eliminate or qualify the
exclusive privilege of the Contractor to provide drop boxes and/or bulk collec-
tion containers for collection of garbage within the Zone.
5. RIGHT TO SELL VALUABLE COMMODITY:
This Agreement is not intended to and does not affect or limit the right of
any person to sell any valuable commodity to the Contractor or to any other
person lawfully doing business within the Zone at prices agreed upon by the
parties to such transaction, provided that the valuable commodity is separated
at the source by the generator and that the person purchasing the valuable com-
modity does not collect and dispose of other garbage.
6. RATES:
Contractor shall perform the responsibilities and duties herein agreed in
the Zone in accordance with an in consideration of the reasonable rates fixed by
the County from time to time. The statement that the actions in paragraphs 12,
24, and 26 may be directed "at no cost to the County" shall not be construed to
mean that the Contractor is prohibited, subject to the County's approval, from
passing on its costs of taking those actions to the Customers. It is the intent
of the parties that the rates fixed shall be in conformity with applicable law.
7. DUTY OF CONTRACTOR TO MAINTAIN RECORDS RIGHT OF COUNTY TO EXAMINE
CONTRACTOR'S RECORDS.
Contractor shall maintain a proper set of books and records in accordance
with generally accepted accounting principles, accurately reflecting the busi-
ness done by it under this Agreement.
-3-
Contractor shall further maintain records as to its total number of Custom-
ers, said records to detail the types of Customers and such other operating
statistics in such manner and with such detail as the County may require.
The Contractor shall, by March 31 of each year submit to the County an
audited financial statement for the most recent reporting year and shall further
furnish to the County a report of its total number of customers within the Zone
by types of Customers and such other operating statistics in such manner and
with such detail as the County may request.
The County may, at its own expense, at any time during the term of this
Agreement, examine the books and records of the Contractor, or have the books
and records of the Contractor examined by a person appointed for that purpose by
the County. County shall give thirty (30) days written notice to the Contractor
in advance of such examination date.
The information required by this paragraph shall pertain to the Contrac-
tor's operations in the Zone. Nothing contained herein shall require the
Contractor to provide the County with information pertaining to the Contractor's
operations which are not regulated by the County; provided that the County's
agent may examine the Contractor's books, records and financial statements
pertaining to operations not regulated by the County for the sole purpose of
gathering information necessary to allow the agent to ascertain as to whether
income, expenses, assets and liabilities are reasonably and consistently allo-
cated among operations by the County and not regulated by the County. As used
in this paragraph "County Agent" shall mean an independent Certified Public
Accountant, as agreed upon by the parties, or, failing agreement, appointed by
the Presiding Judge of the Contra Costa County Superior Court. Notwithstanding
this requirement to use an independent Certified Public Accountant as the
"County Agent", the County may use County employees, or any other person desig-
nated by the County, to examine records of the Contractor otherwise available to
other public entities. Information gained from such examination of records
pertaining to operations not regulated by the County shall be treated by the
County and its agents as confidential information. However, nothing in this
paragraph will prevent the County allowing public access to County records as
provided for under the California Government Code, and in the event any dispute
arises as to the public access to information provided by the Contractor under
the terms of this Agreement, the County shall in its discretion provide public
access to said information according to law or tender the defense of any claims
made against the County concerning said information to the Contractor.
8. APPLICATIONS BY CONTRACTOR FOR RATE INCREASE:
Any and all requests for rate increases, excepting those provided for under
paragraphs 12, 24, and 26 of this Agreement, may be made no more frequently .than
on an annual basis. Any such request for rate increase by the Contractor, ex-
cepting those provided for in paragraphs 12, 24, and 26 of this Agreement, shall
be submitted together with the audited financial statement required under para-
graph 7 of this Agreement by March 31 of that year. Approval of the rate
increase, or other action by the Board on the application, shall occur only
after the County has had sufficient time to review the application and financial
statement, and in no event will a rate increase take effect before July 1 of the
year in question.
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Rate increase applications submitted by Contractor will be prepared using
such formats, including .such operating statistics as the County may prescribe
from time to time. Any rate increase application will be accompanied by audited
financial statements for the most recent reporting year preceding the requested
effective date of rate increase.
In the event the Contractor is required to make changes in its operation
pursuant to the conditions set forth in paragraphs 12, 24 and 26 of this Agree-
ment, the Contractor may petition the Board using the format mentioned herein,
at any time during the calendar year. The County staff shall calendar the
petition for rate increase within seventy-five (75) days of receipt of an
extraordinary petition presented pursuant to paragraphs 12, 24 and 26 of this
Agreement.
9. OPERATION BY CONTRACTOR:
Contractor shall furnish all necessary equipment for the operation of
refuse collection service in the Zone and shall maintain such equipment in a
sanitary condition at all times. Contractor shall furnish all necessary labor
in connection with the operation of a refuse collection service in the Zone.
The Contractor, in performance hereof, shall use covered (by tarpaulin or
otherwise) water-tight bodies motor trucks with truck bodies constructed of
sufficient strength to withstand a fire within, without endangering adjacent
property. The trucks, drop boxes, bins, or similar types of equipment shall be
kept neat and clean and in good repair. The Contractor shall paint its name,
permit number, and telephone number on the side of each truck (in letters at
least four (4) inches high) and each drop box, bin or similar type equipment
owned or leased by the Contractor.
10. COMPLIANCE WITH FEDERAL, STATE AND LOCAL ORDINANCES:
The Contractor shall comply with all applicable ordinances and rules and
regulations that are now in effect or may be promulgated or amended from time to
time by the Government of the United States, the State of California, the County
of Contra Costa and any other agency now authorized or which may be authorized
in the future to regulate the services to be performed herein regarding the
collection, removal and disposal of garbage.
11. LIMITATION ON TIME OF COLLECTION:
The Contractor shall make a systematic collection of garbage from each
place where collection is made in a manner that the person receiving the service
can predict the day on which collection will be made_. Contractor shall not
collect garbage from an inhabited dwelling or dwelling unit between the hours of
7:00 p.m. and 4:00 a.m.
12. COUNTY MAY REQUIRE EFFICIENCIES IN OPERATION:
The County may from time to time at its discretion and at its expense,
examine the. Contractor's operation in order to insure that the Contractor is
operating at a satisfactory level of efficiency.
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The Contractor agrees to cooperate in any such examination and shall pro-
vide for inspection to the County or its designated representatives, at the
Contractor's principal place of business, such information as the County may
require, including but not limited to, such things as collection routes and
equipment records.
In addition, the County may require the Contractor to evaluate alternative
methods of garbage collection for the purpose of improved efficiencies and to
develop and submit a plan to implement the efficiencies within one hundred and
eighty (180) days of notice to the Contractor. The County can require the
Contractor to implement the efficiencies within one (1) year of approval of the
Contractor's plan, unless the Contractor can demonstrate that one (1) year is
unreasonable. Should the County commence such a program as outlined in this
paragraph, Contractor agrees to not only do those things specified herein, but
also t act at the direction of the County on other matters that may be necessary
for the success and efficiency of such a project(s) .
13. SALVAGE:
County shall be entitled to the right of salvage at the expense of the
County from the garbage collected pursuant to this Agreement, but at its sole
discretion may delegate this right to, or waive the same in favor of, the Con-
tractor. County has temporarily waived its right of salvage and has delegated
such to Contractor; and such waiver and delegation shall continue until notice
in writing by the County to the contrary is given. In the event the County
independently wishes to exercise its right to salvage, the County shall give in
writing to the Contractor notice of its intent and said right shall commence and
accrue to the County ninety (90) days from the date of said notice. The salvage
rights set forth i this paragraph specifically are intended to refer to salvage
operations once the garbage is in the waste stream. This paragraph should not
be read to be in conflict with the rights to recycle set forth in paragraph 24.
14. FAITHFUL PERFORMANCE BOND:
The Contractor shall submit to the County simultaneously with the execution
of this Agreement a corporate surety bond in the amount of The bond
shall be executed by a surety company licensed to do business in the State of
California and acceptable to the County. The bond shall be approved by the
County and shall be payable to the County. The condition of the bond shall be
that the Contractor will faithfully perform the duties imposed by ordinance,
this Agreement and the rules and regulations of the County. Any action by the.
County to proceed against the Bond shall not limit or affect the right of the
County to use other remedies available to the County under the Agreement, or in
courts of law or equity. Notwithstanding the foregoing, in lieu of the corpo-
rate surety bond, Contractor may provide to County a letter of credit or cash
bond in a form satisfactory to the County.
15. INSURANCE
The Contractor shall maintain and continue in force during the term of this
Agreement, public liability insurance, property damage insurance and workers'
compensation insurance in amounts as shall be annually set by the County Admin-
istrator after discussion with the Contractor. The Contractor has the right
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within ten (10) days' notice of the insurance coverage amounts, to appeal the
decision of the County Administrator to the Board of Supervisors.
Such insurance shall be obtained from a company or companies licensed to do
business in the State of California and acceptable to the County. County shall
be named as an additional insured on the public liability and property damage
policies and each policy, including workers' compensation, shall contain a
clause providing that the insurer will not cancel or decrease the insurance
coverage without first giving thirty (30) days' notice in writing to the County.
A. certificate of insurance shall be provided to the County any time the Contrac-
tor alters a policy or changes carriers. A copy of the certificate for each
policy, or at the County's request, a copy of each policy shall be provided to
the County by March 31 of each year. Failure of the Contractor to maintain
insurance in the manner and amount stated herein and as directed by the County
Administrator, subject to the approval of the Board, will constitute a breach of
this Agreement.
16. LEGAL LIABILITY:
All work and performance covered by this Agreement shall be at the risk of
the Contractor.
Contractor agrees to save, indemnify and keep harmless the County, its
officers, employees, agents and assigns against any and all liability claims,
judgements, or demands, including demands arising from injuries or deaths of
persons and damage to property, arising directly or indirectly out of the obli-
gations here undertaken or out of the operations conducted by the Contractor,
save and except claims or litigation arising through the sole negligence or
willful misconduct of the County, and will make good to and reimburse County for
any expenditures, including reasonable attorney's fees, that the County may make
by reason of such matters and, if requested by County shall defend any suit at
the sole cost and expense of Contractor.
Upon request by the County, the Contractor shall appear for and defend the
County in any action which challenges the validity of this Agreement or the pro-
cedure by which this Agreement was entered into, or the validity of any County
ordinance which authorizes County to enter into this Agreement. Defense of the
County shall be provided by counsel satisfactory to the County. All costs of
litigation including attorney's fees, and, to the extent permitted by law, any
rponey judgement entered against County, its Board members, officers or employees
or agents, shall be borne by the Contractor. In each case the County shall have
the sole and final authority to determine whether such costs and/or judgement be
chargeable as an operating expense or chargeable against Contractor's profits.
Should any party successfully challenge-the -validity of this Agreement or
the procedure by which this Agreement was enter into or the validity of any
County ordinance which authorizes the County to enter into this Agreement, then
in such case the Contractor shall have no cause of action for damages or any
other relief against the County as a result of such successful challenge.
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17. ATTORNEY'S FEES:
In the event of litigation between the parties arising hereunder, the pre-
vailing party shall recover its reasonable costs of litigation, including
attorneys' fees and costs as determined by the Court.
18. MISCELLANEOUS OBLIGATIONS OF CONTRACTOR:
No less than once every twelve (12) months, and each time the Contractor
requests a rate increase, the Contractor shall notify each Customer with printed
information setting forth the rates, days of collections, Contractor's complaint
procedures, and the amount and manner of refuse to be collected. The Contractor
shall consult with the Director of Community Development, or his designee to
determine the appropriate manner of notifying each Customer.
The Contractor shall provide two additional all-purpose pickups per year
not to exceed two cubic yards per residential unit in the residential areas of
the Zone. The dates for said additional pickups may be set by the Contractor,
however, it is the intent of this Agreement that they shall be held once in
spring and once in fall and that the Contractor will provide notice to the
Customers of said pickup dates.
19. FEE FOR EXCLUSIVE PRIVILEGE:
The Contractor shall pay to the County for the privilege granted by this
Agreement an annual fee of 5 percent of gross receipts of garbage collected
under the jurisdiction of this Agreement.
Amounts due each year shall be paid in advance within thirty (30) days
after July 1 of each fiscal year following the effective date of this Agreement
or within thirty (30) days after the County gives notice of the amount of the
annual fee, whichever comes later.
20. BILLING:
The Contractor may bill its Customers in advance or in arrears. Bills in
advance shall be due and payable thirty (30) days after the beginning of the
billing period. The billing periods for advance billing shall be at least
quarterly unless the County approves a less frequent billing. Contractor agrees
not to discontinue service to a Customer until a Customer's account billed in
advance has been delinquent for a period of at least sixty (60) days, and notice
of the termination is provided to the Customer thirty (30) days prior to the
termination.
Where the Contractor bills in arrears, the bill shall be due and payable
upon presentation and the Contractor agrees not to terminate service until the
Customer's account billed in arrears has been delinquent for thirty (30) days.
Full payment for debris boxes may be required by the Contractor prior to
delivery of debris box to Customer.
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21. ASSIGNABILITY:
The Contractor shall not sell, assign, or transfer this Agreement or any
part hereof including probate proceedings, without the written consent of the
County.
Neither this Agreement nor any part hereof, nor any obligation or service
to be performed hereunder shall be assigned or subcontracted without written
consent of County. The term assignment shall include any dissolution, merger,
consolidation or other reorganization of the Contractor, which results in change
of control of the Contractor, or the sale or other transfer by probate proceed-
ing or otherwise of a controlling percentage of the Contractor's capital stock
to a person not a shareholder on the date of the execution of this Agreement.
In the event the Contractor herein attempts to assign or subcontract this Agree-
ment or any part hereof or any obligation hereunder, the County shall have the
right to elect to terminate forthwith, without suit or other proceeding.
The County may, following a properly noticed public hearing, assign or
transfer this Agreement, or any part hereof, without the consent of the Contrac-
tor to any legally authorized public entity, including, but not limited to, any
joint powers authority created pursuant to Chapter 5, Division 7, Title I of the
California Government Code.
22. INVOLUNTARY ASSIGNMENT:
No interest of Contractor in this Agreement shall be assignable by opera-
tion of law. Each or any of the following acts should be considered an involun-
tary assignment providing the County with the right to elect to terminate the
Agreement forthwith, without suit or other proceeding:
(1) If the Contractor is or becomes bankrupt or insolvent, makes an
assignment for the benefit of creditors or institutes a proceeding under the
Bankruptcy Act in which the Contractor is the bankrupt,
(2) If Writ of Attachment or Execution is levied on this Agreement,
(3) If in any proceeding to which the Contractor is a party a Receiver is
appointed with authority to take possession of the Contractor's property,
(4) In the event of a probate proceeding where the rights of the Contrac-
tor under the Agreement would pass to another individual or other individuals.
23. NOTICE PROVISIONS:
Any notice required or permitted under this -Agreement shall be in writing
and shall be deemed to have been given if delivered personally or ten (10) days
after posted by certified mail, return receipt requested, addressed as appropri-
ate either to the Contractor at: or to the County
at 651 Pine Street, 4th Floor North Wing, Martinez, CA 94553, Attention: Direc-
tor of Community Development.
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24. RECYCLING:
County is currently studying refuse recycling as a means to conserve
resources, energy, money and to further enhance the environment. The parties
hereto recognize that refuse recycling, use of waste or garbage products and
improvements in garbage collecting efficiencies are changing and developing
technologies. Notwithstanding anything in this Agreement to the contrary, at
any time during the term of this Agreement the County may require the Contractor
to prepare and submita plan to provide refuse recycling in the Zone. The
Contractor shall provide such a recycling plan within 180 days of receiving the
written notice requiring preparation of a recovery plan. The County shall
review and comment upon the proposed recycling plan within sixty (60) days. The
Contractor shall have thirty (30) days from receipt of County's comments to
modify the Contractor's proposed plan in order to make said proposed plan
acceptable to the County. If the plan is approved by the County Board of Super-
visors, the Contractor shall implement the plan within ninety (90) days unless
that is impracticable under the circumstances. Implementation of a refuse
recycling plan will be at no cost to the County.
The County may require, as an element of a program to recycle refuse among
other things, that the Contractor undertake curbside or home pickup of recycla-
ble material and segregate the garbage into elements suitable for recycling and
elements not so suited. The County may further require that the Contractor
deliver the segregated recyclable refuse to locations or sites selected by the
County.
Contractor agrees to not only do those things specified herein, but also to
act at the direction of the County on other matters that may be necessary for
the success and efficiency of a recycling project. The County shall give rea-
sonable advance notice to Contractor of changes in the Contractor's operations
which may, in the County's discretion, become necessary due to the implementa-
tion of a recycling program.
In the event the Contractor fails to submit or implement a plan in a timely
manner as set forth in this section of the Agreement, or fails to reasonably act
at the direction of County on matters relating to recycling, any and all such
failures will be treated as a breach of this Agreement and the County shall have
the right to elect to terminate forthwith, without suit or other proceeding.
25. HAZARDOUS WASTE:
The parties hereto recognize that federal, state and local agencies with
responsibility for the defining of hazardous waste and for regulating the
collection, hauling or disposing of such -substances, are continually providing
new definitions, test and regulations concerning these substances. Under this
Agreement, it is the Contractor's responsibility to keep current with the
regulations and tests on such substances and to identify such substances and to
comply with all federal, state and local regulations concerning such substances.
Contractor agrees to provide to the County upon its request the Contrac-
tor's program for identifying hazardous waste and complying with all federal,
state and local statutes and regulations dealing with hazardous waste.
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The Contractor shall make every reasonable effort to prohibit the collec-
tion and the disposal of hazardous waste in any manner inconsistent with
applicable law.
26. DISPOSAL, TRANSFER AND RECOVERY OF GARBAGE:
Throughout the term of the Agreement, unless County gives notice as provid-
ed for herein, it shall be the Contractor's sole responsibility and duty to
dispose of the garbage and waste and other material collected by virtue of this
Agreement.
The County, in its sole discretion, may direct the garbage collected under
this Agreement to be delivered to any site or facility of its choosing. This
shall include the right of the County to direct the disposal or recovery, at no
cost to the County, of all garbage collected by virtue of this Agreement, to one
or more transfer stations, disposal sites, waste-to-energy facilities and/or
resource recovery facilities. The County may contract with others, including
the Contractor, to commit the waste stream from the zone to implement a solid
waste project.
27. ANNEXATION AND CHANGE OF ZONE BOUNDARIES;
The County agrees to give notice to the Contractor by April 1 of the next
calendar year of any geographic area which, has been deannexed from the Zone
during the preceding calendar year or which has been included in, or excluded
from, the Zone. Such notice shall specifically describe the changed boundaries
of the Zone. If such notice is given to the Contractor, all of the provisions
of this Agreement shall apply to the collection, removal, and disposal of gar-
bage within such changed boundaries of the Zone beginning on July 1 of the
calendar year following the preceding year during which such deannexation
occurred.
The Contractor shall give notice to the County by April 1 of the next cal-
endar year of any geographic area in the Zone or immediately contiguous to the
Zone, in which the Contractor has commenced service within the preceding year,
notwithstanding whether the Contractor deems that are to be regulated or unregu-
lated.
The Contractor realizes that the public agency boundaries may be altered by
virtue of actions taken by the Contra Costa County Local Agency Formation Com-
mission (LAFCO) . The Contractor agrees that should a municipal corporation or
sanitary district, which at the date of the signing of this Agreement exercises
its lawful authority to franchise garbage collection, lawfully annex territory
which is within the Zone, the County may-make such alterations to the Zone as
the annexation necessitates. Should the Zone= boundaries be amended, the Con-
tractor agrees that it will abide by whatever changes in the Zone which become
necessary due to changes in city or sanitary district boundaries made by the
Local Agency Formation Commission. The Contractor agrees that the Board of
Supervisors may make such alterations to the Zone as are necessitated by such
Local Agency Formation Commission actions and shall have no right or claim to
damages or other relief against the County for such alterations to the Zone.
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28. AFFILIATED ENTITIES:
The Contractor shall provide information necessary to satisfy the County
that the charges made by any affiliated entity are reasonable. "Affiliated
entity" shall be defined, for purposes of this paragraph, as any entity which
provides products or services to the Contractor and in which the Contractor owns
a ten percent (10%) or greater interest. The County shall have the right to
inspect the financial records of any affiliated entity in which the Contractor
owns a majority interest. For purposes of this paragraph, the term "Contrac-
tor" shall include the Contractor, if an individual, and all members of his or
her immediate family; or if a corporation, the controlling shareholder and the
controlling shareholder's immediate family members. For the purpose of this
paragraph, "Immediate Family" includes spouses, children, and relatives of the
first degree of sanguity.
29. BREACH AND TERMINATION:
The Director of Community Development shall have authority, subject to
review by the Board of Supervisors upon appeal, to determine whether a breach of
any provision of this Agreement by the Contractor has occurred. Any waiver or
breach shall not be deemed to be a waiver of any subsequent breach or to be con-
strued as approved of a course of conduct. In the event that a breach occurs,
the County shall give the Contractor notice of the breach, in writing, setting
forth the breach or default. The Contractor shall have a reasonable period to
cure the noticed breach, said period not to exceed sixty (60) days. In the
event the breach or default is cured to the satisfaction of the Director of
Community Development within the period of time allotted, the breach shall not
be deemed a material breach. In the event that the Director of Community Devel-
opment determines that the Contractor has failed to satisfactorily cure the
breach or default within the period of time allotted, the Director of Community
Development may determine such breach or default to be material.
Multiple or repeated breaches, or a pattern of breaches and subsequent
attempts to cure said breaches by the Contractor shall provide an adequate basis
for the Director of Community Development, in his discretion, to declare any
subsequent breach to be material, notwithstanding whether or not that breach is
ultimately cured by the Contractor.
If such a determination of material breach is made, the Director of Commu-
nity Development' s determination shall be automatically appealed to the Board
I
or final action.
A material breach shall be cause for termination of this Agreement by the
Board of Supervisors.
In the event of a termination prior to the natural expiration of the term
of this Agreement, the County shall have the right to temporarily assume the
obligations of the Contractor and shall therefor have the right to forthwith
take possession of all trucks and other equipment of the Contractor and exercise
the Contractor's right to enter and use any disposal facilities for the purpose
of performing the services agreed to be performed by the Contractor herein until
such time as the County can make other arrangements for the performance of said
services. However, such temporary assumption of Contractor's obligations under
the Agreement shall not be continued by the County for a period exceeding twelve
(12) months from the date such operations are undertaken by the County.
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During any period in which County has temporarily assumed the obligations
of Contractor under this Agreement, County shall be entitled to the gross reve-
nue attributable to operations during such period and shall pay therefrom only
those costs and expensesapplicable or allocable to said period, including the
reasonable rental value of the trucks and equipment to be paid to the Contrac-
tor. The excess, if any, of revenue over applicable or allocable costs and
expenses during such period shall be deposited with .the County. The loss, if
any, during such period shall be a charge against Contractor, and shall be paid
to the County by the Contractor on demand. Final adjustment and allocation of
gross revenue, costs, and expenses to the period during which the County
temporarily assumed the obligations of Contractor shall be determined by an
audit by a Certified Public Accountant and prepared in report form with his un-
qualified opinion annexed thereto.
County shall indemnify Contractor against and hold it harmless from, any
and all liability claims, judgements or demands, including demands arising from
injuries or deaths of persons and damage to property, arising directly or
indirectly out of the operations and obligations of Contractor which County
assumes pursuant to the provisions of this paragraph 29, save and except claims
or litigation arising through the sole negligence or willful misconduct of
Contractor and will make good to and reimburse Contractor for any expenditures,
including reasonable attorneys' fees, that the Contractor may make by reason of
such matters and, if requested by Contractor, shall defend any suit at the sole
cost and expense of County.
Nothing in this Agreement shall prevent the County during any period in
which County temporarily assumes the obligations of the Contractor under this
Agreement, from employing persons who were employed by the Contractor for the
collection of garbage under this Agreement.
Upon the occurrence of said breach and the declaration of such by the Board
of Supervisors, this Agreement and the franchise granted thereunder shall be of
no further force and effect, excepting these provisions concerning County's
right to temporarily assume the Contractor's obligations and to use Contractor's
facilities upon early termination as provided herein. The County then shall be
free to enter into whatever other arrangements are deemed justified and neces-
sary for the collection, removal and disposal of garbage within the Zone.
Failure by the County to provide the Contractor with the exclusive fran-
chise to collect and dispose of garbage within the Zone, as defined in this
Agreement, and except as set forth in paragraph 29, shall constitute a material
breach of this Agreement which will allow the Contractor, in its discretion, to
terminate the Agreement and be relieved of all obligations and duties hereunder.
Notice of termination by the Contractor must be provided to the County one ( 1)
year prior to cessation of the duties and responsibilities of the Contractor
hereunder.
30. EMERGENCY:
Notwithstanding the Contractor's exclusive franchise rights set forth in
paragraph 28, in the event of an emergency due to natural disaster or labor
strike which interrupts the collection of garbage by the Contractor, the Board
of Supervisors shall have the right to declare a temporary suspension of this
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Agreement for the reasonable duration of the emergency and until such time as
the County determines that the Contractor is able to reassume all obligations
under this Agreement. Should Contractor fail to demonstrate to the satisfaction
of the Board of Supervisors that required services can be resumed by Contractor
prior to the expiration of a six (6) month period, this Agreement may be termi-
nated at the direction of the Board of Supervisors.
An emergency or a declaration terminating the Agreement may be declared by
a resolution adopted by a four-fifths (4%5) vote by the Board of Supervisors.
31. TERM OF THE AGREEMENT:
The term of this Agreement and the exclusive franchise granted hereunder
shall be for a period of ten (10) years from to sub-
ject to the provisions of paragraphs 26 and 29 of this Agreement.
32. CONTEST OF AGREEMENT'S TERMS BY THE PARTIES:
In the event either party to this Agreement attempts to challenge the
validity of any portion of this Agreement, such action in attempting to chal-
lenge the Agreement shall constitute a material breach of this Agreement and the
nonbreaching party shall have the right to elect to terminate forthwith without
suit or other proceeding.
This paragraph 31 shall not be construed to prevent either party from seek-
ing redress to the courts for the purposes of legal review of administrative
procedures in regard to rate setting or County actions taken pursuant to this
Agreement, or for the purpose of enforcing the provisions contained in this
Agreement.
33. SEVERABILITY:
In the event legal action is brought by a person or entity, other than the
parties to this Agreement, to challenge, invalidate, contest or set aside any of
the provisions of this Agreement, each and every term and condition, and each
and every section and paragraph is severable from the remaining terms, condi-
tions, sections, and paragraphs. The invalidation of any term, condition,
section or paragraph as a result of a legal action, brought by a person or enti-
ty not a party to this Agreement, shall not affect the validity or
enforceability of the remaining provisions. Each of said provisions shall re-
main in full force and effect.
DBO:jn
131:agreemt.txt
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