HomeMy WebLinkAboutMINUTES - 10121993 - 2.2 TO: BOARD OF SUPERVISORS - Contra
FROM: HARVEY E. BRAGDON _: •� Costa
DIRECTOR OF COMMUNITY DEVELOPMENT County
DATE: OCTOBER 12 , 1993 /
SUBJECT: AUTHORIZE CHAIR TO EXECUTE WASTE COLLECTION FRANCHISE AGREEMENT BETWEEN
THE COUNTY AND RICHMOND SANITARY SERVICES, INC. (RSS)
SPECIFIC REQUEST(S) OR RECOMMENDATION(S). & BACKGROUND AND JUSTIFICATION
RECOMMENDATIONS
Authorize the Chair of the Board of Supervisors to execute a Waste
Collection Franchise Agreement between the County and Richmond
Sanitary Services, Inc. (RSS) .
FISCAL IMPACT
No costs will be incurred against the County General Fund. Cost
savings to either the General Fund or individual departments may
result from provision in the Franchise Agreement regarding waste
collection services at specified County facilities. Additionally,
off-setting revenues are provided for in the Agreement to cover
county staff costs related to the franchise agreement
administration and rate setting activities.
BACKGROUND/REASONS FOR RECOMMENDATIONS
The proposed Waste Collection Franchise Agreement with RSS results
from two key policy matters:
(1) the contract entered into by the County with the West
Contra Costa Integrated Waste Management Authority (WCCIWMA)
requires commitment of the County's wastestream to the West
County IRRF, funding support for the WCCIWMA and the IRRF, and
commitment of waste for disposal in the landfill designated by
the WCCIWMA; and
(2) the need to carry out and maintain County solid waste
management plans, policies, and programs independent of the
WCCIWMA, if necessary.
County staff and representatives for RSS have worked for the past
year on finalizing the attached Waste Collection Franchise
Agreement. The major provisions of the Agreement are outlined
below.
CONTINUED ON ATTACHMENT: xx YES SIGNATURE (�
ACTION OF BOARD ON octob _r 12 , 1993 APPROVED AS RECOMMENDED x OTHE
VOTE OF SUPERVISORS
I HEREBY CERTIFY THAT THIS IS A
x UNANIMOUS (ABSENT TRUE AND CORRECT COPY OF AN
AYES: NOES: ACTION TAKEN AND ENTERED ON THE
ABSENT: ABSTAIN: MINUTES OF THE BOARD OF
SUPERVISORS ON THE DATE SHOWN.
Contact: Louise Aiello (510/646-1550) ATTESTED October 12 , 1993
cc: Community Development Department (CDD) PHIL BATCHELOR, CLERK OF
Val Alexeeff, GMEDA THE BOARD OF SUPERVISORS
Lillian Fujii, Deputy County Counsel AND COUNTY ADMINISTRATOR
RSS, Inc. (via CDD)
WCCIWMA (via CDD)
LA:gms BY 0NO , DEPUTY
939u\no\Fran-Agr.RSS
A
Authorize Chair to Execute Waste Collection
Franchise Agreement Between County and RSS
Continued - Page Two
1. The agreement provides exclusive privilege in the collection
of all solid waste, and for rate regulation, of only
residential waste collection. This remains as provided for in
the previous franchise agreement under the WCCSD.
2. The term of the agreement is for 20 years with 10-year option
to renew provided the Board is satisfied with the Contractor's
performance. The agreement between RSS and WCCSD was for 25
years. Additionally, based upon our experience in the
Recycling Market Development Zone, financial institutions are
looking for financing guarantees which cover the period of the
loan. The loan period for the IRRF project is expected to be
30 or more years. While public agencies simply cannot
guarantee rates for that period, we can demonstrate a
commitment to the IRRF project. Lastly, once financing is
set, the contract between the County and the WCCIWMA ties the
County in for the terms of the financing--probably the 30
years.
3 . The agreement provides for compliance with the County's
Materials Diversion Ordinance.
4 . The agreement provides for free waste collection at designated
County facilities (which are to be determined) .
5. The County maintains control and direction of the wastestream,
including control as necessary to comply with the contract
with the WCCIWMA. Under the franchise agreement the County
commits recyclables and waste to the IRRF whether this is
under the WCCIWMA or not, provided the recyclables and wastes
are processed in compliance with all laws including the
Materials Diversion Ordinance at a rate that is reasonable to
ratepayers. The 1989 CoSWMP and the 1993 CoIWMP provide for
the West County IRRF as county policy, therefore, this
commitment carries out long standing County policy. Further,
the agreement does require RSS to indemnify the County against
AB 939 penalties if, through RSS' fault, the reduction in
disposal goals are not met.
6. The closure surcharge will continue to be passed through as
part of the collection rates as provided for under the
agreement with the WCCSD. Additional language has been added
which assures that any future closure costs which are the
appropriate responsibility of the unincorporated area and
identified by the WCCIWMA will be included in rates by the
County so long as the WCCIWMA members agencies do the same.
7. The agreement contains no requirement on the part of RSS to
wait 30 days until a customer is in arrears prior to
discontinuing service. This is consistent with the agreement
with WCCSD and is based upon proper enforcement of the
mandatory subscription requirements. As part of the
agreement, the County is committing to seek amendments to the
County's Mandatory Subscription Ordinance which will allow for
Community Development Department to handle this matter for
only this franchise area.
8. The agreement provides that if, within 90 days of execution of
the franchise, the County has not determined a rate setting
methodology, the Barakat & Chamberlain Rate Methodology as
used by Richmond and San Pablo will be used by the County "as
reasonably modified by the County for the purposes of" the
agreement. This will allow setting of final rates in a timely
fashion.
9. The agreement provides for an operating ratio between 86% and
90% as part of the rate setting. This operating ratio is
consistent with that used for Keller.
Authorize Chair to Execute Waste Collection
Franchise Agreement Between County and RSS
Continued - Page Three
10. The agreement requires the use of a CPA or accountancy firm
for review of financial records. County staff will not be
allowed to review records directly. Once we have a rate
setting methodology, the necessary information will more
appropriately be reviewed by consultants rather than staff.
The WCCIWMA will also be reviewing the records and the results
of those reviews will be available.
11. The agreement requires RSS to provide information necessary to
satisfy the County that charges made by affiliated entities
are reasonable. The County by virtue of the contract with the
WCCIWMA has committed wastestream and recyclables to the IRRF
and the landfill determined by the WCCIWMA. The IRRF's books
will be under the scrutiny of the WCCIWMA as will any landfill
costs.
12 . The agreement provides for the recoupment of costs for
implementation of new programs, pilot programs, or other
activities requested or directed by the County. This simply
confirms practice.
13 . The agreement includes a Force Majeure clause which is in
consideration of the tensions in the area surrounding the IRRF
site and experienced, generally, throughout West County.
14. The agreement includes language covering our commitments under
the County/WCCIWMA and incorporating Attachment A of that
contract into the Franchise Agreement.
15. The agreement provides for payment to the County for
regulatory services related to the franchise.
16. The agreement provides for 30 days' Notice to ratepayers for
any rate increase.
17. The agreement provides for two (2) annual franchise area-wide
collections; support of community collection events; and
provision of ten 20 cubic yards or larger drop boxes for such
collections.
18. The agreement provides for customer satisfaction surveys and
reviews by RSS and by the County.
19. The agreement provides for mini can service and mini can
rates.
LA:gms
939u\bo\Fran-Ag r.RSS
FRANCHISE AGREEMENT
Between
CONTRA COSTA COUNTY
and
RICHMOND SANITARY SERVICE, INC.
Dated: October 12, 1993
1 . EFFECTIVE DATE, PARTIES . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
2. DEFINITIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
a. Agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
b. Board . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
C. California Integrated Waste Management Act . . . . . . . . . . . 1
d. Class I Site. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
e. Class II/III Site . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
f. Closure Surcharge . : . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
g. Commercial Solid Waste . . . . . . . . . . . . . . . . . . . . . . . . . . 2
h. Contractor . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
i. County . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
j. Customers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
1. Director of Community Development . . . . . . . . . . . . . . . . . 2
M. District . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
n. Franchise Area . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
o. Hazardous Waste . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
p. Industrial Waste . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
q. Infectious Waste . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
r. IRRF . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
S. Landfill . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
t. RSS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
u. RSS, Inc . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
V. Recycle or Recycling . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
W. Residential Solid Waste . . . . . . . . . . . . . . . . . . . . . . . . . . 4
X. Septage . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
y. Solid Waste . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Z. Waste Stream . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
aa. WCCIWMA . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
bb. WCCIWMA Contract . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
cc. WCCSL . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
3. TERM . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
4. INTENT TO REGULATE ALL RECYCLING AND RESIDENTIAL AND
SOLID WASTE COLLECTION, REMOVAL AND/OR DISPOSAL . . . . 5
5. EXCLUSIVE PRIVILEGE AND DUTY . . . . . . . . . . . . . . . . . . . . . . 5
6. EXCEPTIONS TO EXCLUSIVE PRIVILEGE . . . . . . . . . . . . . . . . . .
rsa\Fran-Agr.RSS Franchise Agreement
9/30/93 RSS, Inc. & Contra Costa County
I October 12, 1993
` 7. CONTRACTOR'S DUTY TO MAINTAIN RECORDS; COUNTY'S
RIGHT TO EXAMINE RECORDS . . . . . . . . . . . . . . . . . . . . . . . . . 6
8. RATE REGULATION IN GENERAL . . . . . . . . . . . . . . . . . . . . . . . . 7
9. RATES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
10. INCLUSION OF CLOSURE SURCHARGE IN RATES . . . . . . . . . . . . 8
11 . OPERATION Bl' CONTRACTOR . . . . . . . . . . . . . . . . . . . . . . . . . 8
12. LIMITATION ON TIME AND MANNER OF COLLECTION . . . . . . . . 8
13. CUSTOMER SATISFACTION, AB 939 AND EFFICIENCIES IN
OPERATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
14. CUSTOMER SERVICE STANDARDS . . . . . . . . . . . . . . . . . . . . . 10
15. LOCAL ADVISORY BOARD . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
16. CUSTOMER COMPLAINTS . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
17. BILLING . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
18. RECYCLING . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
19. FREE SERVICE FOR COUNTY . . . . . . . . . . . . . . . . . . . . . . . . . 12
20. FRANCHISE AREA-WIDE COLLECTION . . . . . . . . . . . . . . . . . . . 12
21 . PARTICIPATION IN COMMUNITY CLEAN-UP PROJECTS . . . . . . 13
22. DISPOSAL AND WASTE STREAM CONTROL . . . . . . . . . . . . . . 13
24. MISCELLANEOUS OBLIGATIONS OF CONTRACTOR . . . . . . . . . 14
25. REGULATORY SERVICES BY COUNTY . . . . . . . . . . . . . . . . . . . 14
26. HAZARDOUS WASTE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
27. PRELIMINARY DISPUTE RESOLUTION . . . . . . . . . . . . . . . . . . . 15
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28. FAITHFUL PERFORMANCE BOND . . . . . . . . . . . . . . . . . . . . . . 15
29. INSURANCE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
30. INDEMNIFICATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
31 . ATTORNEY'S FEES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
32. ASSIGNABILITY . . . . . .... . .. . . . . . . . . . . . . . . . . . . . . . . . . . . 17
33. INVOLUNTARY ASSIGNMENT . . . . . . . . . . . . . . . . . . . . . . . . . 17
34. NOTICE PROVISIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
35. ANNEXATION AND CHANGE OF FRANCHISE AREA
BOUNDARIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
36. AFFILIATED ENTITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
37. BREACH AND TERMINATION . . . . . . . . . . . . . . . . . . . . . . . . . 19
38. EMERGENCY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
39. COMPLIANCE WITH FEDERAL, STATE AND LOCAL LAWS . . . . . 21
40. AMENDMENT OR MODIFICATION . . . . . . . . . . . . . . . . . . . . . . 22
41 . POLICE POWERS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
42. CONTEST OF AGREEMENT'S TERMS . . . . . . . . . . . . . . . . . . . . 22
43. SEVERABILITY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
res\Fran-Agr.RSS Franchise Agreement
9/30/93 RSS, Inc. & Contra Costa County
iii October 12, 1993
FRANCHISE AGREEMENT
1. EFFECTIVE DATE, PARTIES. This Agreement, effective on October
12, 1993 is by and between the County and the below named Contractor.
2. DEFINITIONS. As used herein, the following terms shall have the
meanings set forth below:
a. Agreement. Agreement means this Agreement by and
between the County and Contractor for the collection, removal, and disposal of
Solid Waste and the recycling of material. The County has undertaken to be
the Franchisor for this Franchise Agreement in the place and stead of the
DISTRICT. This Agreement supersedes the previously executed Franchise
Agreement between DISTRICT and Richmond Sanitary Service, a General
Partnership, dated July 1 , 1986 (the "July 1 , 1986 Franchise Agreement").
b. Board. Board means the Board of Supervisors for the County
of Contra Costa.
C. California Integrated Waste Management Act. California
Integrated Waste Management Act means the California Integrated Waste
Management Act of 1989 (Public Res. Code, § 40000 et seq.) and all rules and
regulations adopted under any of those sections, as such sections, rules and
regulations may be amended from time to time in the future.
d. Class I Site. Class I site means that portion of the West
Contra Costa Sanitary Landfill which is subject to any requirements of a
closure/post closure permit under Chapter 6.5 of Division 20 of the California
Health and Safety Code and/or the Resource Conservation and Recovery Act,
42 U.S.C. Sec. 6921 et seq., and for the purpose of this Agreement, "the
Plume." "The Plume" means the plume of allegedly hazardous contaminated
leachate emanating in whole or in part from the Class I Site, as it may extend
under the Class II/III Site or elsewhere and as it may migrate, expand or
otherwise change from time to time in the future.
e. Class 11/111 Site. "Class II/III site" means that portion of the
West Contra Costa Sanitary Landfill that is the subject to a solid waste facility
permit pursuant to the California Integrated Waste Management Act. A
description of the Class II/III site is attached to this Agreement as Exhibit A.
res\Fran-Agr.RSS Franchise Agreement
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1 October 12, 1993
•
f. Closure Surcharge. Closure Surcharge means that surcharge
established for closure, post-closure and additional regulatory costs for the
Class II/III Site, as approved and as may be amended from time to time, by the
West Contra Costa Integrated Waste Management Authority and any
successor, and subsequently adopted by the County.
g. Commercial Solid Waste. Commercial Solid Waste means
Solid Waste routinely originating from stores, business offices, commercial
warehouses, hospitals, educational, health care, military and correctional
institutions, non-profit research organizations, multi-unit housing not utilizing
"single can per unit" service, and non-exempt government offices. Commercial
Solid Waste refers to SIC Codes 401 through 4939, 4961 , and 4971
(transportation, communications and utilities), 501 through 5999 (wholesale
and retail trade), 601 through 679 (finance, insurance and real estate), 701
through 8748 (public and private service industries such as hospitals and
hotels), and 911 through 9721 (public administration). Commercial Solid Waste
does not include construction or demolition waste, industrial waste or septage.
h. Contractor. Contractor means Richmond Sanitary Service,
Inc. (RSS. Inc.), and is the entity which has been granted an exclusive franchise
pursuant to the terms and conditions set forth herein.
I. County. County means the County of Contra Costa.
j. Customers. Customers means those who have contracted
with the Contractor for the collection of materials for recycling and/or for the
collection, removal, or disposal of Solid Waste, pursuant to this Agreement and
applicable ordinances of County, including mandatory subscription ordinances.
k. Designated Waste. Designated Waste as used herein has the
meaning set forth in section 2522 of Title 23 of the California Code of
Regulations, as amended from time to time.
I. Director of Community Development. Director of Community
Development means the director of the County's Community Development
Department.
M. District. District means the West Contra Costa Wastewater
Management Authority, formerly the West Contra Costa Sanitary District.
n. Franchise Area. Franchise Area means the geographic area
generally described in Exhibit C to this Agreement, which Exhibit is attached
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2 October 12, 1993
• •
hereto and incorporated herein by reference, and illustrated in the six hundred
scale (600 scale) maps to be maintained and available for inspection at the
Community Development Department. Exhibit C and said maps shall be
amended from time to time to reflect changes of boundaries of the Franchise
Area in such a manner as to identify each alteration to the Franchise Area and
the effective date thereof. Effective the date of this Agreement, the Franchise
Area includes the unincorporated territory within the District and the
unincorporated area of North Richmond.
o. Hazardous Waste. Hazardous Waste means 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
mortality or an increase in serious irreversible, or incapacitating reversible,
illness; or
(2) pose a substantial present or potential hazard to human
health or the environment when improperly treated, stored, transported, or
disposed of, or otherwise managed.
The term "hazardous waste" is intended to include all waste which
are defined as being a hazardous waste pursuant to any federal, state or county
laws, statutes, ordinances or other regulation concurrently in effect or as may
be enacted or amended in the future.
p. Industrial Waste. Industrial Waste means Solid Waste
originating from mechanized manufacturing facilities, factories, refineries, and
publicly operated treatment works, and waste which is collected in debris boxes
greater than 10 cubic yards in size.
q. Infectious Waste. Infectious Waste as used herein has the
meaning set forth in Health and Safety Code section 25117.5, as amended
from time to time.
r. IRRF means the integrated resource recovery facility
consisting of a Central Processing Facility (County Land Use Permit No. 2053-
92), WCCSL Landfill/Processing Facility (County Land Use Permit No. 2054-92
and Proposed City of Richmond Conditional Permit No. 92-53) and the existing
Recycling Center and the lands and the appurtenances associated with these
facilities.
rsa\Fran-Agr.RSS Franchise Agreement
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3 October 12, 1993
• •
S. Landfill. Landfill means the WCCSL and encompasses the
Class I and Class II/III sites collectively.
It. RSS. RSS means Richmond Sanitary Service, a general
partnership.
U. RSS, Inc. RSS, Inc. means Richmond Sanitary Service,
Incorporated, a California corporation. RSS, Inc. is the successor to Richmond
Sanitary Service, a general partnership.
V. Recycle or Recycling. Recycle or Recycling means the
process of collecting, sorting, cleaning,treating and reconstituting materials and
recovering them so that they may be used in the form of raw material for new,
reused, or reconstituted products.
W. Residential Solid Waste. Residential Solid Waste means Solid
Waste routinely originating from single-family or multiple family dwellings.
Residential Solid Waste includes household hazardous waste, but does not
include septage.
X. Septage. Septage means non-sewered liquid or semi-liquid
waste which may be trucked to treatment facilities for disposal, to include, but
not be limited to, waste from residential septic tanks, commercial grease
cleanouts, and industrial waste holding facilities.
y. Solid Waste. Solid Waste has the meaning set forth in
Section 40191 of the California Public Resources Code as of the date of
execution of this Agreement. Solid Waste includes, but is not limited to, all
putrescible and nonputrescible solid, semisolid, and liquid wastes, including
garbage, trash, refuse, paper, rubbish, ashes, demolition and construction
wastes, abandoned vehicles and parts thereof, discarded home and industrial
appliances, dewatered, treated, or chemically fixed sewage sludge which is not
hazardous waste, manure, vegetable or animal solid and semisolid wastes and
other discarded solid and semisolid wastes. "Solid waste" does not include
infectious, designated, and hazardous waste, except household hazardous
waste.
Z. Waste Stream. Waste Stream means the Solid Waste to be
collected under this Agreement from the time of its collection by the Contractor
to its disposal at a landfill or delivery to a transfer facility or other facility by
Contractor.
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4 October 12, 1993
• •
aa. WCCIWMA. WCCIWMA means the West Contra Costa
Integrated Waste Management Authority, a joint exercise of powers authority
established and existing pursuant to Chapter 5 of Division 7 of Title 1 of the
Government Code of the State of California and the joint exercise of powers
agreement entered into by and between its members.
bb. WCCIWMA Contract. WCCIWMA Contract means that
certain contract between the West Contra Costa Integrated Waste Management
Authority and the County dated May 25, 1993, as amended from time to time.
cc. WCCSL. WCCSL means the West Contra Costa Sanitary
Landfill.
3. TERM. Subject to Section 35 (Annexation and Change of Franchise
Area Boundaries) and Section 37 (Breach and Termination), the term of this
Agreement and the exclusive franchise granted hereunder shall be through
October 11 , 2013. Contractor shall have the option to extend this Agreement
for an additional and further ten-year period through October 11 , 2023,
provided that the Board does not find that the Contractor's performance
hereunder has been unsatisfactory.
4. INTENT TO REGULATE ALL RECYCLING AND RESIDENTIAL AND
SOLID WASTE COLLECTION, REMOVAL AND/OR DISPOSAL.
The parties hereto agree that County currently has jurisdiction to regulate
the collection, removal and disposal of all Solid Waste, and the recycling of all
material, in the Franchise Area. The intent of this Agreement is to regulate
Solid Waste handling service and recycling of material in the Franchise Area.
5. EXCLUSIVE PRIVILEGE AND DUTY. County hereby grants to
Contractor the exclusive privilege and duty to collect and remove for disposal
and recycling, all Solid Waste within the Franchise Area and to charge and
receive charges therefor, pursuant to and subject to the terms of this
Agreement.
The Franchise Area may be expanded or reduced in size by mutual
agreement of the parties, or as provided in Section 35 (Annexation and Change
of Franchise Area Boundaries) of this Agreement.
6. EXCEPTIONS TO EXCLUSIVE PRIVILEGE. The exclusive privilege
granted by this Agreement shall not apply if:
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5 October 12, 1993
• •
(a) A person or entity generates Solid Waste, including recyclable
materials, and personally collects, removes and disposes or recycles such in a
clean and sanitary manner in conformance with all applicable laws and
regulations, including mandatory subscription ordinances. This exception shall
not apply to a person who incurs a net cost of collection to a third person in the
above described activities; or
(b) A person or entity contracts with a third person for the removal
and disposal or recycling of inorganic refuse or garden waste (a "Non-
Franchised Contractor") and such removal and disposal or recycling is solely
incidental to work such as remodeling or gardening occasionally performed by
or for the customer. This exception shall not apply if the Non-Franchised
Contractor incurs a net cost of collection to any third person in connection with
its collection and/or disposal of said Solid Waste.
7. CONTRACTOR'S DUTY TO MAINTAIN RECORDS; COUNTY'S
RIGHT TO EXAMINE RECORDS.
Contractor shall maintain a proper set of books and records in accordance
with generally accepted accounting principles, accurately reflecting the business
done by it under this Agreement.
Contractor shall further maintain and make available to County, upon its
request, records as to number of Customers, total and by type, route maps,
service records and other materials and operating statistics in such manner and
with such detail as County may require. County shall treat the information
required by this paragraph that affects the competitive position of the company
as confidential information to the extent permitted by law.
County may at any time during the term of this Agreement, have the
books and records of the Contractor examined by a County Agent or Agents
appointed for that purpose by the County. County shall give thirty (30) days'
written notice to the Contractor of such examination date. County expenses
incurred under this section shall be paid by Contractor subject to their recovery
through the rates allowed by the County hereunder.
The information required by this section shall pertain to Contractor's
operations covered and regulated by this Agreement, and 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, except in conformance with this section.
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County's Agents may examine Contractor's books, records and financial
statements pertaining to operations not regulated by the County as may be
reasonably required for the sole purpose of gathering information necessary to
allow the Agents to ascertain whether income, expenses, assets and liabilities
are reasonably and consistently allocated among operations regulated by
County and those not regulated by the County. Contractor shall obtain
County's written approval of its method of segregating its financial records
between County-regulated and non-County regulated operations. County shall
not unreasonably withhold such approval.
Information gained from examination of records pertaining to operations
not regulated by the County shall be treated by County and its agents as
confidential information.
For the review of books and other financial records necessary to verify
the Contractor's income, expenses, assets and liabilities, "County Agent" shall
mean an independent Certified Public Accountant or public accountancy firm.
For all other information or records, including the results of financial verification,
"County Agent" shall mean any consultant designated by the County or County
employees.
Nothing in this section will prevent County from allowing public access
to County records as provided for under the California Government Code, and
in the event any dispute arises as to public access to information provided by
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
Contractor. Prior to releasing any information pursuant to this paragraph,
County shall make a good faith effort to notify Contractor of the intended
release.
8. RATE REGULATION IN GENERAL. The County shall regulate rates
for residential Solid Waste collection. Rate regulation includes three steps:
financial disclosure, a rate regulation methodology and the setting of rates. The
County shall establish a rate setting Methodology within ninety days of the
execution hereof. If the County does not establish a rate setting methodology
within 90 days, the County shall utilize the Barakat and Chamberlin Rate
Setting Methodology used by the Cities of Richmond and San Pablo Franchise
Agreements, as reasonably adapted to this Agreement by County. The rate
setting methodology utilized shall: (a) provide for rate reviews accompanied by
annual audited financial statements covering the entire period since the last
audited rate application; (b) annual CPI adjustments between audited rate
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applications; (c) specopwhat costs are to be pass-throw (without profit) and
what costs are to be subject to reasonable profit; and (d) provide for the
recovery of Contractor's reasonable costs incurred in providing services under
this Agreement. The operating ratio allowed the Contractor shall be between
eighty-six percent (86 %) and ninety percent (90%), inclusive.
9. RATES. Contractor shall perform the responsibilities and duties
herein agreed in accordance with and in consideration of the reasonable rates
which shall be fixed by the County in accordance with the Rate Regulation
Methodology. Contractor will offer a mini-can program at reduced rates as
directed by the County following consultation with Contractor.
10. INCLUSION OF CLOSURE SURCHARGE IN RATES. The DISTRICT
has heretofore authorized and allowed the assessment and collection of the
Closure Surcharge, as developed by the WCCIWMA and adopted by District
resolution, to pay a portion of costs for the closure and post-closure of the
Class II/III Site. The County shall continue to authorize assessment and
collection of this Closure Surcharge for so long as and to the extent that the
WCCIWMA continues to assess and collect this Closure Surcharge from all of
its members' ratepayers. In the event that the WCCIWMA ceases to regulate
the Closure Surcharge, the County and Contractor shall enter good faith
negotiations for the establishment and collection of a closure surcharge from
ratepayers within the Franchise Area.
11. OPERATION BY CONTRACTOR. Contractor shall furnish all
necessary equipment (excluding containers for single-family residential wastes)
for services provided pursuant to this Agreement in the Franchise Area 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 Solid Waste
collection system in the Franchise Area.
The Contractor, in performance hereof, shall use trucks with covered,
water-tight truck bodies constructed of sufficient strength to withstand a fire
within, without endangering adjacent property. Trucks, drop boxes, bins, or
similar types of equipment shall be kept clean and in good repair. Contractor
shall have its name and telephone number on the side of each truck and on
each drop box, bin or similar type equipment provided by Contractor.
12. LIMITATION ON TIME AND MANNER OF COLLECTION. Contractor
shall systematically collect Solid Waste, and to the extent permitted by this
Agreement, materials for recycling from its Customers. Frequency, place of
pickup (e.g., curbside, backyard, etc.) or any other manner of collection shall
be subject to the review and approval of the Director of Community
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Development. Upon commencement of service and upon changes in collection
day schedules, Contractor shall provide each customer with notice of the
scheduled collection day. Contractor shall not collect Solid Waste from an
inhabited dwelling or dwelling unit between the hours of 7:00 p.m. and 4:00
a.m., except that if a dwelling unit is part of a collection route that
predominately serves commercial accounts, collection may begin as early as
3:00 a.m.
13. CUSTOMER SATISFACTION, AB 939 AND EFFICIENCIES IN
OPERATION.
(a) From time to time, at its discretion, County may examine Contractor's
operation in order to evaluate whether or not the Contractor is operating at a
satisfactory level of efficiency and customer satisfaction. Contractor agrees to
cooperate in any such examination and shall permit County representatives to
inspect, at Contractor's principal place of business, such information pertaining
to Contractor's obligations hereunder as County may require, including, but not
limited to, such things as customer inquiry records, collection routes and
equipment records. Access to Contractor's records shall be subject to Section
8 (Contractor's Duty to Maintain Records; County's Right to Examine Records).
(b) Notwithstanding any contrary provision in this Agreement, the County
shall have the right to direct Contractor to manage collected Solid Waste and
recyclable material, for the purposes of meeting the source reduction, recycling
and composting requirements of the California Integrated Waste Management
Act, and any other applicable federal, state or local laws regarding Solid Waste
collection, recycling and disposal, including, without limitation, the County's
Materials Diversion Ordinance. If Contractor fails or refuses to manage the
collected Solid Waste and recyclable material as directed at a reasonable price,
based on prevailing prices for similar services as reasonably determined by the
County, the County. shall have the right to direct Contractor to deliver the
collected Solid Wastes to another Solid Waste facility of the County's choice.
Contractor agrees to indemnify and hold the County harmless from and
against any and all liability to the State of California for the County's
noncompliance with the requirements of the California Integrated Waste
Management Act due in whole or part to the material failure of Contractor to
properly carry out the reasonable directives of the County to Contractor
regarding collection and disposition of Solid Waste and recyclable material;
provided, however, that Contractor shall not be obligated to carry out any such
directive (and shall not indemnify nor hold the County harmless from any
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9 October 12, 1993
• •
resulting liability) if the County fails to agree to allow Contractor its reasonable
costs (including a reasonable profit) associated with carrying out such directive.
(c) County may require Contractor to develop plans for and conduct
programs on alternative methods of Solid Waste collection, including pilot
programs of limited scope, or may require additional programs for the purpose
of improving service, increasing customer satisfaction, and meeting diversion
requirements. County may also require Contractor to implement efficiencies in
its operation upon written notice from County. The notice shall allow
Contractor a reasonable period of time to implement the specified service
(efficiency). Should County require commencement of such a program as
outlined in this paragraph, Contractor agrees not only to 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 the project, such as
public information and notification. In the event that County elects to direct
Contractor to discontinue any service theretofor performed by Contractor
hereunder, County shall allow Contractor to recover its reasonable capital
equipment costs and other reasonablA costs arising upon termination of the
service. Rate adjustments applicable solely to programs instituted pursuant to
this subsection (c) initially shall be established at the time the County
authorizes implementation of the program or efficiency.
14. CUSTOMER SERVICE STANDARDS. Contractor shall provide
prompt, efficient, continuous and professional service to its Customers.
Contractor shall have a phone system with sufficient capacity to promptly
respond to telephone calls for at least 8 hours a day during weekdays,
excluding those holidays observed by Contractor. Telephone numbers for
customer service shall be located in the local telephone directory. All telephone
lines for customer service shall be toll free to Customers.
Not less than once every three years, Contractor shall conduct a
representative survey or surveys of Customers within the Franchise Area to
determine satisfaction with service, including, without limitation, response to
customer complaints. The survey methodology, format and content shall be
subject to the prior review and approval of the Director of Community
Development. A copy of the survey results shall be sent to the County within
sixty (60) days of completion of the survey. Nothing in this paragraph shall
limit the right of the County to conduct additional surveys. The Contractor shall
cooperate with the County in such cases.
Upon initiation of service, and at least once a year, Contractor shall send
or deliver to Customers information concerning the conditions of service,
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including, but not limited to, rates, fees, charges, service options, payment
options, discounts (if any), days of collections, the amount and manner of
refuse to be collected, service level and inquiry/complaint procedures, including
the name, address and local telephone number of Contractor and the name,
address and telephone number of the County Community Development
Department. The form and content shall be subject to the review and approval
of the Director of Community Development.
15. LOCAL ADVISORY. BOARD. The Board of Supervisors may
designate an existing committee to represent the Franchise Area, or form an
advisory body to advise the Board on the performance of the Contractor in the
community, local service interests and needs, and rate applications. In all
cases, the Committee shall hold its meetings at a time and place convenient to
the public. The Committee shall keep a record of all public comments and
submit such comments when reporting to the Board.
16. CUSTOMER COMPLAINTS. Contractor shall develop and implement
policy and procedure for responding to and recording customer complaints,
including dispute resolution. The policy and procedure shall be subject to the
approval of the Director of Community Development.
17. BILLING. The form and content of customer bills shall be subject
to the review and approval of the Director of Community Development.
Bills for services shall at a minimum conform to the standards and
practices of billings for Solid Waste collection, disposal and recycling services
applicable in West Contra Costa County and may be monthly, bimonthly or
quarterly. Contractor may bill its customer in advance or in arrears. The
County may establish billing period options for Customers upon a finding that
such options are cost-effective and meet a community need.
Full payment for drop boxes may be required by Contractor prior to
delivery of the drop box to the customer.
The County shall have the right to direct the Contractor to change or alter
its billing system in which event the marginal additional expenses incurred by
the Contractor in the implementation of the change, with regard to the
accounting, printing, mailing, loss of use of funds, or otherwise, shall be
recoverable by the Contractor through the rates allowed by the County provided
such expenses are reasonable. Contractor shall inform customers of all rate
changes at least 30 days prior to their effective date. A copy or facsimile -of
such notice shall be provided to County at the time of customer notification.
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18. RECYCLING. County grants to Contractor the right and obligation
to operate recycling programs, including curbside pickup of recyclable materials,
as determined and designated by County.
Contractor has instituted and is implementing a recycling program
including regular curbside pickup at all single family residences of at least
aluminum, tin, newsprint, glass bottles, cardboard (currently under study), non-
colored HDPE and PET. This program is currently operating to the satisfaction
of County; however, County has the right at anytime to modify said program
or require new programs, as provided in Section 13(b) of this Agreement.
Contractor shall maintain and provide to the County records relating to its
recycling programs as directed by the Director of Community Development.
Contractor's provision of recycling service shall be reviewed within three
(3) years of the effective date of this Agreement.
If County determines that continuation of such servi-le by Contractor is
not consistent with the County's ratepayers best interest, but not as a result
of Contractor's failure to satisfactorily provide recycling services, Contractor
shall be allowed to recoup its unamortized capital expenditures as follows.
Contractor shall make a good faith effort to sell all disposable assets acquired
in furtherance of the program for their fair market value. If income derived from
the sale is insufficient to cover the unamortized costs of such assets,
Contractor may transfer those losses together with net operations profits or
losses to its general account and submit a rate application to cover such losses.
19. FREE SERVICE FOR COUNTY. Contractor shall, without charge
therefor, perform the Solid Waste collection and disposal services, set forth on
Exhibit B, hereto at no charge to the County. Contractor's expenses in
performing services for the County described in this Section shall be
recoverable through the rates allowed by the County hereunder.
20. FRANCHISE AREA-WIDE COLLECTION. In addition to its regular
collections, Contractor shall provide two annual Franchise Area-wide
collections. Said collections shall be made each year throughout the term of
this Agreement in accordance with practices and procedures established by
Contractor and subject to the approval of the Community Development
Director. Contractor's expenses in performing the Franchise Area-wide
collections described in this Section shall be recoverable through the rate
allowed by the County hereunder.
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21. PARTICI&ION IN COMMUNITY CLEAN-AROJECTS. Contractor
shall provide, upon direction of the Community Development Director, Solid
Waste drop boxes or equivalent containers for community or other clean-up
projects within the Franchise Area. The Contractor's obligation shall be limited
to the equivalent of ten (10) 20 cubic yard drop boxes per year, as long as the
Franchise Area is not expanded. The costs incurred by Contractor in its
participation in community clean-up projects shall be recoverable through the
rates allowed by the County hereunder.
22. DISPOSAL AND WASTE STREAM CONTROL. Contractor shall be
solely responsible for the disposal of the Solid Waste collected pursuant to this
Agreement. County has complete authority and control over the waste stream
subject to this Agreement.
23. IRRF REQUIREMENTS. Contractor acknowledges that the
WCCIWMA Contract (defined in Section 2.bb. of this Agreement as the May
25, 1993 contract between the West Contra Costa Integrated Waste
Management Authority and Contra Costa County) entered into in part to provide
for the continued timely development, financing, construction and operation of
the IRRF by the WCCIWMA, requires that County include certain provisions in
this Agreement.
Contractor acknowledges that County has the authority to include in this
Agreement, all of the provisions agreed to by the County in the WCCIWMA
Contract. Contractor further agrees that this Agreement includes all of those
provisions required by the WCCIWMA Contract to be included to the extent
they are required to be included, and that Contractor is bound by and
contractually obligated to comply with those provisions, for so long as the
WCCIWMA Contract is of force and effect as against the County, and neither
party to the WCCIWMA Contract is in breach thereof. Contractor shall comply
with all directives of County issued by County to comply with the WCCIWMA
Contract.
Without limiting County's ability to direct Contractor's actions for the
purpose of complying with the WCCIWMA Contract, to the extent that each
WCCIWMA member and each WCCIWMA member's collection franchise
agreement provides for the same, the provisions of Exhibit A to the WCCIWMA
Contract are a part of this Agreement. Exhibit A to the WCCIWMA Contract
is attached hereto and by this reference made a part of this Agreement. Any
other provision(s) as may be necessary to the financing of the IRRF are, by this
reference, also a part of this Agreement to the extent that WCCIWMA members
and WCCIWMA members' franchise agreements are required to provide the
same.
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Notwithstanding Section 2 of this Agreement, for the purposes of this
Section 32 (IRRF REQUIREMENTS) only, terms defined in the WCCIWMA
Contract shall have the meanings ascribed to them in said Contract where
indicated by the context.
24. MISCELLANEOUS OBLIGATIONS OF CONTRACTOR. Contractor
shall assist County in its enforcement of its mandatory subscription ordinance
by providing County with the addresses of properties not subscribing to
collection service within the Franchise Area and by providing collection service
to such properties upon written request by the County. Contractor's expenses
in performing services for the County described in this Section 24 shall be
recoverable through the rates established by the County hereunder.
For the purposes of administering this Agreement, it is desirable that the
County Community Development .Department administer and enforce the
requirements of the County's mandatory subscription ordinance. County agrees
that it will consider any action necessary to provide for the Community
Development Department's administration and enforcement of the mandatory
subscription ordinance within the Franchise Area.
25. REGULATORY SERVICES BY COUNTY. Contractor shall pay to the
County for the exclusive privilege of collecting and removing Solid Waste and
recyclable materials within the Franchise Area, for rates established by the
County in accordance herewith and for the services provided by the County
pertaining to Solid Waste, a percentage of its gross annual revenues generated
from the performance of such waste collection services under this Agreement,
such percentage, time and frequency of payment to be established by County.
Said sums shall be payable from the Contractor to the County upon the
inclusion of the Regulatory Service Charge in the allowed rate and upon the
collection of said rate by the Contractor.
26. HAZARDOUS WASTE. The parties hereto recognize that federal,
state and local agencies with responsibility for defining hazardous waste and
for regulating the collection, handling or disposing of such substances are
continually providing new definitions, tests and regulations concerning these
substances. Under this Agreement, it is 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.
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14 October 12, 1993
• Contractor agrees to provide to County upon its request, Contractor's
program for identifying hazardous waste and complying with all federal, state
and local statutes and regulations dealing with hazardous waste.
Contractor shall make every reasonable effort to prohibit the collection
and the disposal of hazardous waste in any manner inconsistent with applicable
law.
27. PRELIMINARY DISPUTE RESOLUTION. If Contractor has a question
as to the interpretation of this Agreement, it shall submit a written request to
the Director of Community Development for a determination of the issue. The
Contractor shall provide and submit such information as the Director of
Community Development may request or require to make the requested
determination. The written determination of the Director of Community
Development may be appealed to the Board of Supervisors pursuant to
Ordinance Code Chapter 14-4.
28. FAITHFUL PERFORMANCE BOND. Contractor shall submit to
County simultaneously with the execution of this Agreement a corporate surety
bond in the amount of $10,000.00, provided however, that the Board may
increase this amount not more often than every three years to reflect changes
in the Consumer Price Index for All Urban Consumers for the San Francisco Bay
Area. The bond shall be executed by a surety company licensed to do business
in the State of California and acceptable to County. The bond shall be
approved by County and shall be payable to County. The condition of the bond
shall be that Contractor will faithfully perform the duties imposed by ordinance,
this Agreement and the rules and regulations of County. Any action by County
to proceed against the Bond shall not limit or affect the right of County to use
other remedies available to County under the Agreement, or in courts of law or
equity. Notwithstanding the foregoing, in lieu of the corporate surety bond,
Contractor may provide to County a letter of credit, cash bond or other security
acceptable to the County Administrator's Office in a form satisfactory to the
County.
29. INSURANCE. Contractor shall procure and maintain in full force and
effect at all times during the entire term of this Agreement the following
insurance coverage:
(a) Public liability and property damage insurance including
completed operations, products, contractual, broad form property damage,
personal injury and owned and non-owned automobile liability with such
coverages and limits as may be reasonably requested by County from time to
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time, but in no event with limits not less than the sum of $1 million combined
single limit for each occurrence arising from the services as stated in the
Agreement herein. County shall be named as an additional insured under such
liability insurance policy or policies, if commercially available.
(b) Contractor shall carry workers' compensation insurance for
all its employees.
Evidence of liability and . workers' compensation insurance shall be
provided by Contractcr by filing with County a certificate of insurance indicating
that County is endorsed as an additional named insured if commercially
available under the liability policy. All policies shall include a provision that
written notice of cancellation or any material change in coverage shall be
delivered to County thirty (30) days in advance of the effective date thereof.
No cancellation, alteration or change of beneficiary shall be made without
written notice to County.
County reserves the right to examine all policies to ensure appropriate
conformity to prevailing practices and standards of the insurance industry.
Such insurance shall be obtained from a company or companies licensed
to do business in the State of California and acceptable to County. Failure of
Contractor to maintain insurance in the manner and amount stated herein and
as directed by County Administrator, subject to the approval of the Board, will
constitute a material breach of this Agreement.
30. INDEMNIFICATION. All work and performance covered by this
Agreement shall be at the risk of Contractor.
Contractor agrees to save, indemnify and keep harmless the County, its
officers, employees, agents and assigns against any and all liability, claims,
judgments, or demands, including demands arising from injuries or deaths of
persons and damage to property, arising directly or indirectly out of the
obligations herein undertaken or out of the operations conducted by Contractor,
save and except claims or litigation arising through the sole negligence or willful
misconduct of County, and will make good to and reimburse County for any
expenditures, including reasonable attorney's fees, that County may make by
reason of such matters and, if requested by County shall defend any such suit
at the sole cost and expense of Contractor.
Should any party successfully challenge the validity of this Agreement,
the procedure by which this Agreement was entered into or the validity of any
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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 County as a result of such successful challenge.
Contractor has the right to defend this Agreement and County. County
has no duty to Contractor to defend the validity of this Agreement or any
provision hereof.
31. ATTORNEY'S FEES. In the event of litigation between the parties
arising hereunder, each party shall pay its own litigation expenses, including
attorney's fees.
32. ASSIGNABILITY. Contractor shall not sell, assign, subcontract or
transfer this Agreement or any part hereof, or any obligation hereunder, without
the written consent of County.
The term assignment shall include any dissolution, merger, consolidation
or other reorganization of Contractor, which results in change of control of
Contractor, or the sale or other transfer by probate proceeding or otherwise of
a controlling percentage of Contractor's capital stock to a person not a
shareholder on the date of the execution of this Agreement. The term
"assignment" does not include internal business reorganizations or formation of
new companies by Contractor, formation of trusts by Contractor or transfer of
any interest of Contractor as a result of death, disability or estate planning by
one or more of the principals of Contractor, so long as essential management
decisions are retained by a majority of the current shareholders of RSS, Inc. or
their children, their spouses and relatives of the first degree of consanguinity.
In the event Contractor herein attempts to assign or subcontract this
Agreement or any part hereof or any obligation hereunder, County shall have
the right to elect to terminate this Agreement forthwith, without suit or other
proceeding.
Consent to assignment may not be unreasonably withheld. Following a
properly noticed public hearing, County may assign or transfer any or all of its
rights under this Agreement without the consent of Contractor to any legally
authorized public entity.
33. INVOLUNTARY ASSIGNMENT. No interest of Contractor in this
Agreement shall be assignable by operation of law. Each or any of the
following acts shall be considered an involuntary assignment providing County
with the right to elect to terminate the Agreement forthwith, without suit -or
other proceeding:
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(1 ) If Contractor is or becomes insolvent, or makes an assignment
for the benefit of creditors;
(2) If Writ of Attachment or Execution is levied on this Agreement
or other property of Contractor such that would affect Contractor's ability to
perform its duties and obligations under this Agreement.
(3) If in any proceeding to which Contractor is a party, a Receiver
is appointed with authority to take possession of Contractor's property such
that would affect Contractor's ability to perform its duties and obligations under
this Agreement;
(4) Except as otherwise provided in Paragraph 31 (Assignability),
in the event of a probate proceeding where the rights of Contractor under the
Agreement would pass to another individual or other individuals.
34. 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 appropriate either to Contractor:
Richmond Sanitary Service
Attention: Dennis Varni, Chief Financial Officer
P.O. Box 94804-0100
3260 Blume Drive, Suite 210
Richmond, California 94806
Or to County:
Attention: Director of Community Development
651 Pine Street, 4th Floor North Wing
Martinez, California 94553
Each party will also endeavor to mail a courtesy copy to counsel for the
other party.
35. ANNEXATION AND CHANGE OF FRANCHISE AREA BOUNDARIES.
Contractor shall give notice to County by January 30 of the next calendar year
of any geographic area in the Franchise Area or immediately contiguous to the
Franchise Area, in which Contractor has commenced service within the
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18 October 12, 1993
preceding year, notwithstanding whether Contractor deems that area to be
regulated or unregulated.
Contractor realizes that the public agency boundaries may be altered by
virtue of actions taken by the Contra Costa County Local Agency Formation
Commission (LAFCO). Contractor agrees that should a municipal corporation
lawfully annex territory which is within the Franchise Area, County may make
such alterations to the Franchise Area as the annexation necessitates. Should
the Franchise Area boundaries be amended, Contractor agrees that it will abide
by any change resulting from the Franchise Area change. Contractor agrees
that the Board of Supervisors may make such alterations to the Franchise Area
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 Franchise Area. However, nothing herein shall abrogate
Contractor's rights under Public Resources Code Section 49520 or any
successor or similar statute.
36. AFFILIATED ENTITIES. Contractor shall provide information
necessary to reasonably satisfy County that the charges made by any Affiliated
Entity are reasonable. Charges which are equal to or less than the least costly
alternative shall be deemed reasonable hereunder.
"Affiliated Entity" shall be defined, for purposes of this paragraph, as any
entity which provides products or services to Contractor and in which either
Contractor or the affiliated entity owns a thirty percent (30%) or greater
interest in the other, or where one person or entity owns thirty percent (30%)
or greater interest in both. For purposes of this paragraph, the term
"Contractor" shall include Contractor, and if Contractor is an individual, or a
group of individuals (partnership) all immediate family members, or if a
corporation, major shareholders and if any major shareholder is an individual,
said individuals' immediate family members. For the purpose of this paragraph,
"immediate family" includes spouses and relatives of the first degree of
consanguinity, and their spouses.
37. 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 Contractor has occurred. Any waiver of a breach shall not be
deemed to be a waiver of any subsequent breach or to be construed as
approval of a course of conduct. In the event that the Director determines that
a breach has occurred, County shall give Contractor written notice of the
breach setting forth the breach or default. Contractor shall have a reasonable
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19 October 12, 1993
period to cure the noticed breach. 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 Development determines that 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 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 that breach is
ultimately cured by Contractor.
If such a determination of material breach is made, the Director of
Community Development's determination shall be automatically appealed to the
Board of Supervisors for final action.
A material breach shall be cause for termination of this Agreement by the
Board of Supervisors.
In the event of a termination pursuant to this section,
County shall have the right to temporarily assume the obligations of Contractor
and shall have the right to forthwith take possession of all trucks and other
equipment of Contractor and exercise Contractor's right to enter and use any
disposal facilities for the purpose of performing the services agreed to be
performed by Contractor herein until such time as 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 County for a period exceeding twelve (12) months from the date
such operations are undertaken by County.
During any period in which County has temporarily assumed the
obligations of Contractor under this Agreement, County shall be entitled to the
gross revenue attributable to operations during such period and shall pay
therefrom only those costs and expenses applicable or allocable to said period,
including the reasonable rental value of the trucks and equipment to be paid to
Contractor. County shall be entitled to the excess, if any, of revenue over
applicable or allocable costs and expenses during such period. The loss, if any,
during such period shall be a charge against Contractor, and shall be paid to
County by Contractor on demand. Final adjustment and allocation of gross
revenue, costs; and expenses to the period during which County temporarily
rss\Fran-Agr.RSS Franchise Agreement
9/30/93 RSS, Inc. & Contra Costa County
20 October 12, 1993
• •
assumed the obligations of Contractor shall be determined by an audit by a
Certified Public Accountant and prepared in report form with his unqualified
opinion annexed thereto.
Nothing in this Agreement shall prevent County during any period in
which County temporarily assumes the obligations of Contractor under this
Agreement, from employing persons who were employed by the Contractor for
the collection of Solid Waste under this Agreement.
Upon the occurrence of a material breach and the declaration of such and
termination of this Agreement by the Board of Supervisors, this Agreement and
the franchise granted thereunder shall be of no further force and effect,
expecting these provisions concerning County's right to temporarily assume
Contractor's obligations and to use Contractor's facilities upon early termination
as provided herein. County then shall be free to enter into whatever other
arrangements are deemed justified and necessary for the collection, removal
and disposal of Solid Waste within the Franchise Area.
Notwithstanding the above, Contractor shall not be in breach or default
under the terms of this Agreement if such breach or default is due to war,
insurrection, strikes, walkouts, riots, floods, earthquakes, fires, acts of God,
acts of a public enemy, epidemics, quarantine restrictions, or any other causes
beyond the control or not the fault of Contractor, and such breach or default
could not have been prevented by reasonable foresight on the part of
Contractor.
38. EMERGENCY. Notwithstanding Contractor's exclusive franchise
rights set forth in Paragraph 5 (Exclusive Privilege and Duty), in the event of an
emergency due to natural disaster or labor strike which interrupts the collection
of Solid Waste by Contractor, the Board of Supervisors shall have the right to
declare a temporary suspension of this Agreement for the reasonable duration
of the emergency and until such time as County determines that 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 terminated at the direction of the Board.
39. COMPLIANCE WITH FEDERAL, STATE AND LOCAL LAWS.
Contractor shall comply with all applicable laws, 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 and any
other agency now authorized or which may be authorized in the future to
res\Fran-AgrASS Franchise Agreement
9/30/93 RSS, Inc. & Contra Costa County
21 October 12, 1993
regulate the services to be performed herein regarding the collection, removal
and disposal of Solid Waste and recycling of material. This includes County
Ordinance Code Chapter 418-6 (on mandatory subscription to Solid Waste
collection service), and the County's Materials Diversion Ordinance.
Contractor's reasonable costs of compliance shall be included in the rates
allowed by County.
40. AMENDMENT OR MODIFICATION. This Agreement may be
amended or modified upon written agreement of the parties hereto. The parties
agree to meet and confer in good faith if amendments or modifications are
proposed.
41. POLICE POWERS. Nothing in this Agreement is intended to or may
limit County authority pursuant to its police power.
42. CONTEST OF AGREEMENT'S TERMS. In the event either party to
this Agreement attempts to challenge the validity of any portion of this
Agreement, such action in attempting to challenge the Agreement shall
constitute a material breach of this Agreement and the non-breaching party
shall have the right to elect to terminate forthwith without suit or other
proceeding.
This section shall not be construed to prevent either party from seeking
redress from the courts for the purpose of legal review of administrative
proceedings regarding rate setting or County actions taken pursuant to this
Agreement, or for the purpose of interpreting or enforcing the provisions
contained in this Agreement.
43. 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, conditions, sections, and paragraphs. The invalidation of
any term, condition, section or paragraph as a result of a legal action, brought
by a person or entity not a party to this Agreement, shall not affect the validity
or enforceability of the remaining provisions. However, if material provisions
hereof are affected, the parties agree to negotiated in food faith to reach
agreement on revisions which preserve the substance hereof to the greatest
extent allowed by law.
res Fran-AgrASS Franchise Agreement
9/30/93 RSS, Inc. & Contra Costa County
22 October 12, 1993
County CONTRACTOR
4
CHAIR, BOARD OF SUPERVISORS RICHARD GRANZELLA, Pr4sident
ATTEST, Phil Batchelor,
Clerk of the Board PINA BARBI Rl, Secretary
and County Administrator
680002744
By: 4 44-4
a Taxpayer I.D. Number
D E P'dtY
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9/30/93 RSS, Inc. & Contra Costa County
23 October 12, 1993
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Exhibit B
COUNTY BUILDINGS
The following County buildings are designated to receive service from
Contractor pursuant to Section 19:
(a) Probation office at 3043 Research Drive;
(b) Social Service office at 3045 Research Drive;
(c) alternate offices designated by the County if the waste collection
service level at the designated offices decreases or the offices are
closed by the County; and
(d) additional offices designated by the County and included in rate
setting calculations.
rss\exhibit.b Franchise Agreement
9/30/93 FISS, Inc. & Contra Costa County
B - 1 October 12, 1993
rse\exhibit.b Franchise Agreement
9/30/93 RSS, Inc. & Contra Costa County
B - 2 October 12, 1993
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Exhibit D
APPLICABLE PROVISIONS FROM WCCIWMA-COUNTY CONTRACT
1 EXHIBIT 'A'
2 TO CONTRACT BETWEEN
3 WEST CONTRA COSTA INTEGRATED WASTE MANAGEMENT AUTHORITY
4 AND
5 CONTRA COSTA COUNTY
6 COLLECTION FRANCHISE AGREEMENT REQUIREMENTS
7 Section 1. Flow Control
8 (a) County to have comFlete authority to direct delivery of Solid
9 Waste (or specified portions or specified types of such
10 wastes) to the IRRF as required by the Authority pursuant to
11 Section 4 of the Contract.
12 Section 2. Rates
13 (a) The franchised collector to collect the rate (charge) set by
14 the Authority for tra IRRF in addition to all other rates and
15 charges allowable under the collection franchise agreement.
16 (b) All amounts collected pursuant to subdivision (a) of this
17 Section 2 to be held in a separate fund by the franchised
18 collector and any interest earnings thereon to remain in the
19 fund. The franchised collector shall be required to make
20 payments from this fund as part of the tipping fee paid to the
21 IRRF operator or to other such trustee or person as the
22 Authority may designate.
23 (c) The franchised collector to keep adequate books and records of
24 such fund in accordance with Generally Accepted Accounting
25 Practices and allow the County and/or the Authority to inspect
26 such books and records during regular business hours at the
Mcjpak.f 1 May 13, 1993
t
I offices of the franchised collector.
2 (d) The franchised collector to provide regular reports to County
3 and Authority of -the activity in said fund showing itemized
4 collections and disbursements, interest earnings and fund
5 balance.
6 (e) The franchised collector to make disbursements from the fund
7 only as directed by the Authority. In the event that
8 delinquent payments by custvmers of the franchised collector
9 or other factors cause the fund to have insufficient monies
10 to make any required payment, the collector shall advance any
11 shortfall within the fund against future collections from
12 other assets or revenues.
13 (f) ' The franchised collector to take such action as may be
14 required to grant and perfect a security interest in the fund
15 to the Authority, the Authority's assignee or any lender,
16 trustee or credit provider in connection with the financing of
17 the IRRF and to represent and warrant that franchised
18 collector has not granted a security interest in such amounts
.19 and to covenant not to grant any other security interest in
20 such amounts.
21 (g) In furtherance of the representations, warranties and
22 covenants provided by the franchised collector, whenever and
23 so often as requested to do so by the Authority, the
24 Authority's assignee or any lender, trustee or . credit
25 provider, franchised collector to promptly execute and deliver
26 or cause to be delivered all such other and further
wcjpah.f 2 May 13, 1993
Ab
1 assurances, documents or instruments and promptly do or cause
2 to be done all such other and further things as may be
3 necessary or reasonably required in order to further and more
4 fully vest in the Authority, the Authority's assignee or any
5 lender, trustee or credit provider, all advantages, benefits,
6 interests, powers and privileges and rights conferred or
7 intended to be conferred upon them hereby.
8 Section 3. In Lieu Charge
9 (a) The franchised collector to collect, -in addition to all other
10 rates and charges allowable under thF• collection franchise
11 agreement, an in lieu charge as set by the Authority in the
12 event that the IRRF is unable, either wholly or in part, to
13 accept Solid Waste (or specified portions or specified types
14 of such wastes) .
15 (b) All amounts collected pursuant to subdivision (a) of this
16 Section 3 to be held in a separate fund by the franchised
17 collector and any interest earnings thereon to remain in said
18 fund. The franchised collector will make payments from this
19 fund to the IRRF operator or to other such trustee(s) or
20 person(s) as the Authority may designate.
21 (c) The franchised collector to keep adequate books and records of
22 such fund in accordance with Generally Accepted Accounting
23 Practices and shall allow the County and/or Authority to
24 inspect such books and records during regular business hours
25 at the offices of the franchised collector.
26 (d) The franchised collector to provide regular reports to County
wcjpak-f 3 May 13, 1993
I and Authority of the activity in said fund showing itemized
2 collections, disbursements, interest earnings and fund
3 balance.
4 (e) All amounts collected as in lieu charges to be remitted to the
5 Authority or a trustee designated by the Authority as directed
6 by the Authority. In the event that delinquent payments by
7 customers or other factors cause the fund to have insufficient
8 monies to make any required payment, the collector advance any
9 shortfall against future collections from other assets and
30 revenues.
11 (f) The franchised collector to take such action as may be
12 required to grant and perfect a security interest in the fund
13 to the Authority, the Authority's assignee or any lender,
14 trustee or credit provider in connection with V.a financing of
15 the IRRF and to represent and warrant that franchised
16 collector has not granted a security interest in such amounts
17 and to covenant not to grant any other security interest in
18 such amounts.
19 (g) In furtherance of the representations, warranties and
20 covenants provided by the franchised collector, whenever and
21 so often as requested to do so by the Authority, the
22 Authority's assignee or any lender, trustee or credit
23 provider, franchised collector to promptly execute and deliver .
24 or cause to be delivered all such other and further
25 assurances, documents or instruments and promptly do or cause
26 to be done all such other and further things as may be
wL,jpa C.f 4 May 13, 1993
• •
1 necessary or reasonably required in order to further and more
2 fully vest in the Authority, the Authority's assignee or any
3 lender, trustee or credit provider, all advantages, benefits,
4 interests, powers and privileges and rights conferred or
5 intended to be conferred upon them hereby.
6 Section 4 . Non-competition
7 (a) The franchised collector to be prohibited from directly or
8 indirectly purchasing or contracting for the purchase of any
9 Solid Waste (or portions or types of such waste) which would
10 otherwise be collected under the collection franchise
11 agreement and that the franchised collector to be prohibited
12 from diverting in any way materials collected pursuant to the
13 collection franchise agreement to any use or to any alternate
14 facility without the approval of the Authority.
15
16
17
18
19
20
21
22
23
24
25
wc]pak.f 5 May 13, 1993
.......................................................
`BE'''N ERTEt
Exhibit E
RATE SETTING METHODOLOGY
(To be Determined 90 Days from Execution of Contract)
2 . 2 b
THE BOARD OR SUPERVISORS OF
CONTRA COSTA COUNTY, CALIFORNIA
Adopted this Order on _October 12, 1993 by the following vote:
AYES: Supervisors Powers, Smith, Bishop, McPeak, Torlakson
NOES: None
ABSENT: None
ABSTAIN: None
------------------------------------------------------------------------------
SUBJECT: Recycling Programs for East County
As requested by Supervisor Torlakson, IT IS BY THE BOARD
ORDERED that Community Development staff is DIRECTED to develop
procedures to implement recycling programs in East County similar
to those worked out as a part of the franchise agreement with
Richmond Sanitary Services, Inc.
I hereby certify that this is a true and correct copy of
an action taken and entered on the minutes of the
Board of Supe ors o the date shown.
ATTESTED: x4A, I:2; j q e'3
PHIL BATCHELOR,Clerk of the Board
o uperviso nd County d 'nistrator
cc: Community Development Director
County Administrator o
By ,Deputy