HomeMy WebLinkAboutMINUTES - 11011994 - H.2 A,
H. 2 & H. 3
THE BOARD OF SUPERVISORS OF CONTRA COSTA COUNTY, CALIFORNIA
Adopted this Order on November 1, 1994 by the following vote:
AYES: See below for motions and votes (Supervisors Present: Smith, Bishop,
DeSaulnier, Torlakson and Powers
NOES:
ABSENT:
ABSTAIN:
i
SUBJECT: Franchise Agreements and Other Landfill Related Actions
Including the County' s Relationship with the Central
County Joint Powers Authority; Report from the Director
of Community Development on Options for Waste
Collection Franchise Policies; and Continued Hearing on
Amendment 1 for the Keller Canyon Landfill .
On October 31, 1994, the Board of Supervisors determined
appropriate language for amendment of the Acme Permanent Transfer
Station Franchise Agreement and requested County Counsel to place
this language in writing for Board consideration.
Tom Bruen, Bruen and Gordon, representing Browning Ferris
Industries, expressed agreement with the form of the amendment to
the permanent transfer station franchise agreement as prepared by
County Counsel .
Victor Westman, County Counsel, suggested that the Board
indicate that the changes are consistent with the Board' s desires
and that the franchise is approved and the Chairperson is
authorized to sign it .
Supervisor Smith so moved.
The vote on the motion was unanimous .
The Board discussed the Keller Canyon, Landfill Franchise
Agreement .
Supervisor Smith moved that consistent with the transfer
station agreement on page 21 the Board should change the term
during which theme Board will not change the surcharge to eighteen
months and change at the bottom of the page funding of programs
from the surcharge again insert the word current before county
programs except for LEA and 939 programs so that it is clear
those will come out of the surcharge and Mr. Westman' s language
in his memo on page 2, Section 2 which is the same as the
language that was in the transfer station agreement, and then in
Section 6 . 5 insert the word percentage after the word surcharge .
Supervisor Powers seconded the motion.
The Board discussed the motion.
The vote on the motion was as follows :
AYES : Supervisors Smith, DeSaulnier, Torlakson and Powers
NOES : Supervisor Bishop
ABSENT: None
ABSTAIN: None
The Board discussed the issue of other waste and the Chart
of Possible Surcharge Structures Related to Disposal In Keller
Canyon Landfill date October 31, 1994 .
Supervisor Smith moved that Section 6 .4a would state the
surcharge on solid waste received at the landfill via a transfer
station shall be set forth in Section 6 .4 initial surcharge of
the franchise agreement between the County and the operators as
follows and then the rest would be as the Board said and back at
the bottom, b, where it says other waste, it should be the way it
currently is the special waste which is the surcharge but the
Board should clarify other waste shall be defined as special
waste and the surcharge received will be 10 percent plus County
mandated fees .
Lillian Fujii, Deputy County Counsel, requested
clarification on the waste going through another transfer station
besides Acme is 25 percent of the Keller.
Supervisor Smith concurred with that change.
The Board discussed the motion.
The vote on the motion was unanimous .
Mr. Westman suggested that staff. would place the changes in
the mode of amendments to the franchise, reduce them to writing
and bring them back for Board ratification on November 8 , 1994 .
The Board then considered the report from Val Alexeeff,
Director, Growth Management and Economic Development Agency, to
consider options for waste collection franchise policies .
Louise Aiello, Community .Development Department, presented
the staff report . The Board then determined to address the
issues one at a time beginning with the Length of Term for
Franchise Agreements .
The Board discussed the issue .
Supervisor Torlakson moved approval of Option 2 .
The vote on the motion was unanimous .
The Board discussed Methods for Direction of Wastestream,
including recyclables and compost .
Supervisor Torlakson moved approval of Option 2 .
Supervisor Bishop seconded the motion.
Supervisor Powers suggested modifying the language to add
the words in County between the word for and proposal in the
third line of Option 2 .
Supervisor Torlakson concurred.
The vote on the motion was unanimous .
The Board discussed the Methods for Administering Mandatory
Subscription.
Supervisor Torlakson moved approval of Option 2 .
The vote on the motion was unanimous .
The Board considered making any further changes to the
Keller Canyon Landfill Land Use Permit Amendment 1 .
Supervisor DeSaulnier moved including those items that the
Board had previously indicated our desire to change as in the
October 17, 1994 memo from County counsel, adopting 2 as
indicated on page two, 35 . 8 and adding to it the material on page
3 except for the phrase at the end except that the Board at its
sold discretion which would be deleted.
Supervisor Torlakson seconded the motion.
The vote on the motion was as follows :
AYES : Supervisors Smith, DeSaulnier, Torlakson and Powers
NOES : Supervisor Bishop
ABSENT: None
ABSTAIN: None
IT IS BY THE BOARD ORDERED that the amended language for the
Acme transfer Station Franchise Agreement amendment is DETERMINED
consistent with the Board of Supervisors' intent and APPROVED;
and the Chair of the Board is AUTHORIZED to sign the agreement;
the First Amended Keller Canyon Landfill Franchise agreement with
amended language is APPROVED, and County Counsel is requested to
return with the written form on November 8, 1994 for ratification
by the Board of Supervisors; Various options for waste collection
franchise policies are APPROVED; and Amendment 1 to the Land Use
Permit for the Keller Canyon Landfill as amended is APPROVED.
1 hereby certify that this is a true and correct copy of
an action taken and entered on the minutes of the
Board of Supe sora on t date shown.
ATTESTED: 1
PHIL BA HELOR,Clerk of the Board
of upervis and Cou �dminlstrator
cc : GMEDA
Community Development By JA Deouhr
County Counsel
Browning Ferris Industries
` t
TO: BOARD OF SUPERVISORS :• � Contra
FROM: VAL ALEXEEFF, GMEDA DIRECTOR Costa
County
DATE: NOVEMBER 1, 1994
SUBJECT: CONSIDER OPTIONS FOR WASTE COLLECTION FRANCHISE POLICIES
SPECIFIC REQUEST(S) OR RECOMMENDATION(S) & BACKGROUND AND JUSTIFICATION
RECOMMENDATIONS
Consider policy options, as outlined below, regarding (1) length of term for waste
collection franchises, methods for directing the wastestream under County collection
franchises, and methods for administering mandatory waste collection subscription:
Length of Term for Franchise Agreements
Option 1--Continue term of franchise agreements for 10 years with 5 year options for
extension for Bay Point and Discovery Bay with any new areas included under the
existing franchises.
Use 10 years, with a 5 year option to extend, for any new franchises.
Option 2--Establish-a longer term of 20 years or more for any new franchises or any
franchises which expand areas covered by the franchise.
Option 3--Seek to reduce term of existing franchises to 7 years or less and set terms
.of 7 years or less for any new franchises.
Methods for Direction of Wastestream, Including Recyclables and Compost
Option 1--Utilize wastestream direction and control language in existing franchise
agreements for Bay Point and Discovery Bay.
Option 2--Modify wastestream direction and control language from franchise for
unincorporated areas so that the County retains direction and control of the
wastestream but allows for proposals for consideration by the Board of Supervisors
for alternative transfer and disposal which provide the lowest cost considering all
relevant factors such as transportation, closure and post closure requirements,
liabilities, fees, and control of future costs.
Option 3 --Utilize other options for wastestream direction and control.
CONTINUED ON ATTACHMENT: xx YES SIGNATURE d�
ACTION OF BOARD ON APPROVED ASR OTHER
VOTE OF SUPERVISORS
1 HEREBY CERTIFY THAT THIS IS A
_ 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: Val Alexeeff (510/646-1620) ATTESTED
cc: Community Development Department (CDD) PHIL BATCHELOR, CLERK OF
Dan Guerra, HSD-Environmental Health THE BOARD OF SUPERVISORS
Browning-Ferris Industries (via CDD) AND COUNTY ADMINISTRATOR
Garaventa Enterprises (via CDD)
Waste Management, Inc. (via CDD)
BY , DEPUTY
939t\bo\Franchis.po1
Consider Options for Waste Collection Franchise Policies
Continued - Page Two
,
Meth ds for Administering Mandatory Subscription
Option 1--Continue existing Mandatory Subscription Ordinance under administration
of County Health Department.
Option 2--Modify existing Mandatory Subscription Ordinance to reflect procedures
used under waste collection franchise with Richmond Sanitary Services and transfer
administration to the Community Development Department.
Option 3--Eliminate Mandatory Subscription.
Option 4--Modify existing Mandatory Subscription Ordinance to allow no exemptions.
FISCAL IMPACT
No impact on County General Fund.
BACKGROUND/REASONS FOR RECOMMENDATIONS
Presently, the County has four (4) waste collection franchises. One franchise is with
BFI/Pleasant Hill Bayshore Disposal for portions of Bay Point. Two franchises are with
Garaventa Enterprises for Discovery Bay and for portions of Bay Point. These
franchises were established with 10 year terms, with an option to extend for 5
additional years. All of these franchises provide that the County maintains direction
and control of the wastestream. None of these franchises address the issue of
mandatory subscription to waste collection service.
The fourth waste collection franchise was entered into by the County with Richmond
Sanitary Services (RSS) in October, 1993. The term of the franchise with RSS is for
25 years with a five year extension option; this longer term resulted from the length
of the original franchise between RSS and the West Contra Costa Sanitary District and
was aimed at consistency with the financing for the West County Integrated Resource
Recovery Facility and the agreement between the County and the West Contra Costa
Integrated Waste Management Authority(WCCIWMA). Underthe franchise with RSS,
the County maintains direction and control of the wastestream except as modified by
the contract between the County and the WCCIWMA; the contract between the
County and the WCCIWMA provides that the Authority shall direct the wastestream
for all member agencies as well as for the County.
In negotiations with haulers regarding waste collection franchising for unincorporated
areas of Central and East County, some haulers have requested language be included
in the franchises which allows the haulers to make alternative proposals to the County
for transfer and disposal.
Attachment #1 is the language presented to haulers by County staff in response to
their request to present alternative transfer and disposal options. In particular, Section
22, Paragraph 2 of the attached responds to the haulers proposals on this matter.
As a part of the original franchise between RSS and the West County Sanitary
District, a mandatory waste collection subscription ordinance similar to the County's
Mandatory Subscription Ordinance existed. However, the procedures used by RSS
and the Sanitary District provide that RSS performs all noticing to customers and
County staff involvement for only issuing an exemption, conducting very brief appeal
hearings on a quarterly basis, and processing property liens to cover the costs of
collection service. To maintain the existing procedures, under the franchise with RSS,
the Community Development Department serves as the administrator for mandatory
subscription proceedings. If the Community Development Department were to be
designated to handle this function for all waste collection franchises, all haulers would
have to be responsible for noticing and for implementing the same procedures used
by RSS.
Attachment A
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 Franchise Area waste stream. . County may, at its .
sole discretion upon providing 60 days' notice to contractor,
direct the Solid Waste 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 Solid Waste to be
delivered to any County designated transfer station, disposal
site, transformation facility and/or resource recovery facility.
It is understood that County may contract with any party, public
or private, to commit the waste stream from the Franchise area,
and that Contractor's contracts entered after the effective date
of this Agreement may not d County, nor need County consider
such other contracts for any purpose. However, as of the date of
this Agreement, Contractor declares that it has previously
entered the following contracts, copies of which have been
provided to County, which County acknowledges t agrees that
Contractor is required to honor.
:.;:.;:.;:.;:.;:.;:.;::::.;::::::.;:;::::::<:::<::::::::::::::::::::::.:::::::::::::::::::.:::::::::.:::::::.::::.......:..
tts andxnr , h abnve� + ontraetar may propse and
. 0ae......... .:: a::.: n
:..:. htt
::: n :: m ::: � :::::::::: I>t::
:rr ,:::::::::::::.:.::.:
s .cst: Qn::>::a: ::<ernat: res::::» rh: ch::::>:arm::::>: rrst�<:::>:ef>fe:ct ve>t::>:::<:
d :: .:::::::::::::::.......... :::.:::::::::::: :::::.::::::::.:::::.::::::::::::::::::::::::::::::.:::::::::::::::::.:::::::::::.
..........er:�n. .;>;: �zsts::< >: cun: ..::.::.;shal: <»:con
a
.:.:: . . .....................:.......:::.::.
xrn
::::::.::€:::::::a evantin : �mteans ott
:». ::t: t
:: ..... . .......: ::::::. ::: ..... ::
bmbt
au
.............
::::::::.R:..:::::::::::::::::..:..:.::::::::::x .::::::: .:.:::::t:::: .:::::::::::::: ;:.;:.r' .: .:::1 ' m8n :sr s l:i;ilnd
::.:... :. .. :: :.: .. .: : .:::::: : : .:.:. . .:...:.:....::
:ab.:.1:> t s<;;><::d> e:>osa:3;>;:. e:es<::<:::>f es<:::>lev ed:<:b:..>::: overnJuenta
... :.::. :;::::i::::....:...:...:.:::i::i::..;:..:...... �;:..:....:...;:..: ..:...:::.
sstsrE » cats i anwCh:;<: rd nanees. : n :;other lccal...r cements
:::::.::::.:.... :.:...........:.::.:::::::::::.::::::::::::::::::::::::..:::::::::::::::::::::::::::::::::::: r0me ............. .
aria: 3ori '- er '< o s` rl � '<'<<a >'.> ':, >,><>: <;°.:<::;:;:,.;_;:<:;,.:: „>:;.>:'': »>> :>;< »:;:. >"
e.:::out .r...
......::.:::::::::::::::::::. .::::::::::. ............:::::.:::::::::::::::::::::::::.:::::::::::::::::::::::.::::::::::::.:::::::.::
.......................
posts::
...................... r
Attachment A
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 Franchise Area waste stream. County may, at its
sole discretion upon providing 60 days' notice to contractor,
direct the Solid Waste 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 Solid Waste to be
delivered to any County designated transfer station, disposal
site, transformation facility and/or resource recovery facility.
It is understood that County may contract with any party, public
or private, to commit the waste stream from the Franchise area,
and that Contractor's contracts entered after the effective date
of this Agreement may not 3a;ird County, nor need County consider
such other contracts for any purpose. However, as of the date of
this Agreement, Contractor declares that it has previously
entered the following contracts, copies of which have been
provided to County, which County acknowledges agrees that
Contractor is required to honor.
tw hst e':: above :» o
.
o:....... ' :... .....an ' . ;;;;;:. ..;,:. r� ract .... Y...;Pro s :f ri
t::: :;:..: ..
su�n'k datau .: r :.> ot oonside ;tse: ia ement axdf'o `
t m A ><cpm a i n
nb : .o. :::<:> mtec :<::: Q::.<:::< as rtatr
s :s > rsur ::':> d etc Dearsemens >< osts aid
'i3srvs�rnaer�t: :al<< t�tis
...:::::::..:.::::::.:..::.:::..:::...
.:...: ,:::.. ....... ::...:... .,:<::.. ... ..:..:.. :.; ... :.....,. .,
ssf oopiacerth crd3aes and other nts,
d longterm posts, xtclsq degreeontoscer future
.......................
t
COUNTY OF CONTRA COSTA, STATE OF CALIFORNIA
AMENDMENT NO. 1 TO
FIRST AMENDED FRANCHISE AGREEMENT
FOR THE
KELLER CANYON LANDFILL
THIS AMENDMENT NO. 1 to the FIRST AMENDED FRANCHISE
AGREEMENT FOR THE KELLER CANYON LANDFILL is made and entered into
this November 1, 1994, by and between the COUNTY OF CONTRA COSTA
(hereinafter "County" ) and KELLER CANYON LANDFILL COMPANY, a
California Corporation, (hereinafter referred to as "Operator" ) .
RECITALS
WHEREAS, on September 13, 1994, the Board of Supervisors of.
County took action concerning a first amended franchise agreement
with Operator, and
WHEREAS, the parties have reached agreement on substantive
issues concerning the September 13, 1994 action and are prepared
to compromise their differences by agreeing that, without either
parties waiving any rights. as to said September 13, 1994 first
amended franchise agreement, that said First Amended Franchise
Agreement may be amended as set forth herein,
NOW THEREFORE, the County and Operator, for and in
consideration of the covenants and agreements as hereinafter set
forth and for other good and valuable consideration, the receipt
and sufficiency of which is hereby acknowledged, do mutually
agree as follows:
SECTION I. AMENDMENTS. The following sections of
Amend. No. 1 to First Amended Landfill Franchise, Nov. 1, 1994 1
the First Amended Franchise Agreement are hereby amended as shown
in this section (by adding Si.had i.j. lanquage and deleting the
Wien- language) :
Amendment to section 6 .2, Surcharge:
"Section 6 . 2 SURCHARGE. The County may determine and
establish at least once every two years, effective on the date
determined by the Board of Supervisors (but initially no sooner
........................................................
than Y1 from the effective date of this
Agreement except for the purpose of decreasing the Surcharge in
accordance with Section 6 . 4 .d ) , the Surcharge, which
...........................
..........................
..........................
shall be added to the then applicable Base Rate, and collected as
part of the Gate Rate. Operator., will be provided at least ninety
(90 ) days ' written notice of any newly established Surcharge. In
the absence of the County establishing a .particular. Surcharge
amount, the Surcharge to be collected by the Operator_ for the
County shall be thirty percent ( 30% ) of the then applicable Base
Rate. "
Amendment to section 6 .4, Initial Surcharge:
"Section 6 . 4 INITIAL SURCHARGE. Effective on the effective
date of this Agreement, the iGI Surcharge shall be as set
..........................
forth in this section.
Amend. No. 1 to First Amended Landfill Franchise, Nov. 1; 1994 2
a
df11.....:::::::::::E ... ::::a. :::.::.< c cc .;:.;: :<.;; a € f .;;; ::�.;:.;; .;:.;:.;:: .:::.
cher' Surcharge on Solid Waste received at the
Landfill vie the Aeme Fi11-.:erste Waste and- E-Pran-sfer- Statlen
(emmenly referred teas—th "A--Pe —Rent—T-r-ansf eE Statlen, "
and her-ei a€ter ref erred as the Trio€er Statlen" shall be
as set forth in l ; 's er > Sc ie 6 . 4 , I^; t; a, of
---the Franchise Agreement between the County and the operators of
..............................
the '�reesfer Statim Z r` < as follows :
Amount. Twenty-five percent of the ermined Transfer-
...
rete€er
x ... ....x::.::.:
Statlen Preprletar-y Rate��t-he Landfill Base Rate �t��C' ` :
........
» ` >
itnt .............:......:.::::::: 1e $ rz ::::.. ..................:.....::.:....:..:::::::::::::::.
Funding of Programs from Surcharge. During the period
covered by the above initial Surcharge, costs ofA.
>' ............
E`County programs : .
ired or(re
...:..
authorized by the Use Permit or this Agreement) shall be funded
from said eembined 25% Transfer Station and Landfill SurchargeO.,
In addition, any household hazardous waste fee imposed by the
Board pursuant to Public Resources Code . section 43213 shall be
collected (deducted) from said e9 tea 25% Surcharge amount#:.
. ':`'
> ::::;.:: :::»:a: >:C:h..:....... :u :::. M
:::: .:::.X:7t .::..:::::::::::::::::: .:::::: .::::::::::.:::::::::::::::::::::.
.................: :.:::::::::::::.::::.::::.L..::::::..
{»»r.;::.>;:.: ;:.;::. ;:;;:;. . :.: :ted>< 1
: ::..... .: . :: <> :: :r:;.:: :::.c� :....:. « ..::: .�:. . ; c. <:.:::.:. ere ::.. n .rt .............:. . ........
l:: ..r.:.::: .::::..:::: 3:::c' ::::::: .....*�....... ......................:....................:::::.:::::::::::::::::::::::::::::::::::.::::::.:::::::::::::::::::::.:::..
::::::::.:::::.::::::.::.::.:.::.:::: :::::::::.:::::::::::::. ........:.::::::::::::::: .....:::::.::::::::::.::::::::.::::::...........................................:..::::::::::::::::::::::::::: ::
Amend. No. 1 to First Amended Landfill Franchise, Nov. 1, 1994 3
::::>:::::r
:�..I�.....�.........�,..........�'�I..::Tf....:::`lei
;» :: ':'::;�:;::;n:;�: :.:::;::;::;:.:::%:::'<::>i::s':<:;>:;;:�:y;:�:;:::.::.:•:i::i:;:y:;ir::::�2::::2:':.:i::�::ii:;:i'':':+:;i;:;;i..;;::;:�;y«:;;:.:,�>::::r>:::;:;;:;:.;:�?;�::.;.:::::i:%::`:::.:.:."'::i::i:i...:;;;;.,;:;::::i::i::
"
:
::+:i::: >: :
v:.i:•i:Lti:M.J`i::":::i.?:.}::.i??i".i'iiii?i:.iii:i.i::�i:.:':.:i�iiiiiii;;':::::iiti^i:Ji:�::::!:'•::"!.J:<.::.::.i'.`:.ii:!.i:'::.ii:.:'::.iiiiii:::.:::^::'.iiiiiiiiii'::.iiiiii:�:.iii'.iiiiiii:3i:'i::^:�:!n:!::;:`::i"ice^i'.i:y:;i:is i:iiiii:":ii'::::i:::ii:::i :i :
..:
:J!!:::..yy'11:��[.'Y{:: :: ':::::.j}{::�::::.' .:.::�:.Yx:�i'.':":::i::i,((' ?::i('.�.�'/.'�'.:::i:%::: .:'�{'.::i:<::7j!': :::y.�::::i:.:: ''.y'f�'':i::i.♦/,•i�:,y'.l:y":':y'.� '::ii::.}j(::.'},��:::i:: }':/��y'�"r..y�:.' fy.,:.)::/✓.}.j�:iii: :'j!.:ii? :.{.
Y::Si:�i::::.�!1��:���:�41h��:v::!!w:M!�::i::ivy✓:�:�����.Y�:::i:::T.ti:�:f�+::::i��G:i:i::#!.til��j:��i.i::i:::it4:4:4:::��!'�:�Y:ful�:;lii?R:�`f!!44::i::: :^!!.::i�:T:�:�ryTi
.:^;�Y:i�:<:ji:•:�i:::�::':'ii::::��:�:�_:�::i:i::::?.�:'�:i:.i':i:::.�::i'::::�:ii:::::i:i?;:�:�
4' Closure, Litigation. Operator agrees and acknowledges
that an appropriate amount (five percent) of the Surcharge as
determined by the County' s Board of Supervisors may and shall be
utilized pursuant to Board Order(s ) and a trust account
arrangement for any landfill closure or post-closure or related
litigation expenses . Any amount not so expended may be otherwise
utilized for other Surcharge purposes .
JJR Reconsideration. Within or approximately six months
from the date of this Agreement, the County's Board of
Supervisors intends to reconsider and re-evaluate the household
waste � :;:;; :.;' :::::< :>><;':''` '` ;`: '_; :>: ::.:: ::;:,> :;.i> '� � '"<r� .
a
hazardous �c� ��� � ��� ��.� p,��....::::z� �::
programs, their levels off fundings, whether one or more
programs should be modified, reduced, or eliminated, and a
Surcharge adjustment.
Collection. For Solid Waste received at the Landfill
via the ` ` ti ; P r t c Transfer Station the eembN
Surcharge' and any other Keller Mandated Fees may be collected at
the Transfer Station.
Amend. No. 1 to First Amended Landfill Franchise, Nov, 1, 1994 4
...............................................................................
b. a: > ::d1'> ' Wastes . The Surcharge on
.,, :><: t .::::>: d: t3 ;::d; ::> waste received at the
......................................:.........................................................................
Landfill other than viaransferstation shall be ten
Base Rate <:: .::;:.::, s ...... ........>
"' d
percent of the a ; : :<.;> ;;:.: i..;> .::: n :.;: ;;::::::.>;:;:;;:
.......................
......................
.......................
......................
.......................
Amendment to Section 6 .5, Contracts:
"Section 6 . 5 CONTRACTS . For all contracts entered for the
disposal of Solid Waste at the Transfer Station, the Surcharge
......................................
Vie .9P
applicable at the time of the disposal contract shall
apply for the term of said contract. The parties agree that any
later established surcharge amounts shall not apply to waste
received pursuant to such Solid Waste contract for the term of
said contract.
Operator shall advise County of any disposal contract
subject to the privileges of this section immediately upon
execution. Operator shall provide County with any and all
information requested by County concerning any such Contract,
including providing County with copies of such contracts upon
request. "
SECTION II. EFFECT. Neither party, by- its agreement and
execution of this Amendment No. 1 to the First Amended Franchise
Agreement, waives any of its rights existing prior to the
Amend. No. 1 to First Amended Landfill Franchise, Nov. 1, 1994 5
execution hereof, and nothing herein shall be construed as a
waiver by either party of its rights or assertions, including,
but not limited to, those set forth in the above recitals .
Should any subsequent dispute arise between the County and the
Operator concerning the action of September 13, 1994 on the
franchise agreement, both parties agree that this Amendment, any
................
action taken by the Board of Supervisors on November 1 ;8,
1994 , and any related action by Operator shall not be admissible
in any administrative, equitable or legal proceeding to determine
intent or effect of the action of September 13, 1994 .
IN WITNESS WHEREOF, this Agreement is effective on the date
first provided on page one hereof .
OPERATOR
KELLER CANYON LANDFILL COMPANY, a
California corporation
By:
Pres dent
By:
ice-President
COUNT OF RA COST
By:
Chair, Board of Supervisors
Amend. No. 1 to First Amended Landfill Franchise, Nov. 1, 1994 6
ATTESn By:
Clerk of the Board
APPROVED AS TO FORM: By: 4j&Y co NT Y COU EL
CONTRA COSTA COMITY, CALIF.
County Counsel
vjw-mem-1: kelcan.aml
Amend. No. 1 to First Amended Landfill Franchise, Nov. 1, 1994 7
t '
t
COUNTY COUNSEL'S OFFICE
CONTRA COSTA COUNTY
MARTINEZ, CALIFORNIA
MEMORANDUM
Date: November 1, 1994
To: Board of Supervisors
rxoe: Victor J. Westman, County Counsel
Re: First Amended Keller Canyon Landfill Franchise
The Board of Supervisors on October 25, 1994 designated an
ad hoc committee (Supervisors Bishop and Smith) to meet at 2 :30
p.m. on October 27, 1994 to consider the first amended franchise
agreement for the above-noted matter and the revisions made to
the earlier September 13 1994 considered draft agreement as
reflected in the version of that agreement presented to the Board
of Supervisors on October 10, 1994 . In attendance at this public
meeting (in addition to the two Supervisors) were two represent-
atives from the Community Development Department (Louise -Aiello
and Charles Zahn) , the County Counsel, two representatives of BFI
(Tom Bruen and Dennis Fenton) , an interested private attorney
(Rick Norris) and a Contra Costa Times reporter (Ariel
Arbruster) . On October 27, the September 13, 1994 first amended
franchise agreement for the Keller Landfill site and the
revisions to it (as presented to the Board of Supervisors on
October 10, 1994) were reviewed by utilizing a September 20, 1994
draft showing strikeout and overlay for insertions which draft
this office provided to facilitate that consideration. All
references hereinafter made are to the pages of that September
20, 1994 draft of the subject franchise agreement. In the course
of the review of the franchise document, the following revisions
to the September 13, 1994 draft were focused upon for further
particular consideration:
1 . Peres 20 and 21, S 6 .2 "Surcharge" . As similarly
discussed yesterday for the Acme Transfer Station franchise
indicated on ,page 21 of the accompanying Keller Canyon Landfill
site September 20, 1994 draft, the overlayed language contained
in the parenthesis (top of page 21) was added to this section and
would establish an initial one-time - period in which the
County could not increase the 25 percent surcharge, but retained
discretion to reduce it during that period. Without this initial
Board of Supervisors -2- November 1, 1994
two-year provision, the County under the September 13 draft,
could (after providing 90 days advanced written notice) every two
years increase the surcharge percentage. During the course of
the Board's September 13, 1994 meeting, no specific period was
discussed but staff assumed that since under the first sentence
of the September 13 draft (pages 20 and 21 of the September 20
draft) of S 6 .2, the surcharge percentage could only be changed
once every two years that the Board did not intend to change it
within the first two years of first establishing it. For that
reason, the provision within the parenthesis was inserted.
Assuming the staff incorrectly interpreted the Board's intent on
this point, the language within the parenthesis can be directed
to be deleted or modified. BFI-Acme's representatives on October
27 indicated that they object to a deletion of a two-year
language contained within the parenthesis. At your October 31th
meeting concerning the similar provision in the Acme Fill
permanent Transfer Station franchise, it was determined to change
two years to eighteen months. You should consider whether a
similar eighteen month revision will be made for the Keller
Canyon Landfill site franchise.
2 . Pages 21 and 22, S 6.4 "Initial Surcharge" . In our
memorandum before you on Monday, October 31, 1994 concerning the
Acme transfer station franchise, we commented on S 6 .4b. of that
agreement. That similar revised provision is, for the most part,
set forth in S 6 .4a of the September 20, 1994 Keller Landfill
site document before you. S 6 .4a. "Funding of Programs from
Surcharge" has been interpreted by staff and by BFI-Acme's legal
representative that any agreement defined mandated program fees
could be established and levied at the Board's direction in
excess of the 25% surcharge. In the Acme Transfer Station
franchise agreement since the term "mandated fees" does not
expressly appear within subsection b of section 6 .4, it was
proposed and ordered by the Board that in the Acme Transfer
Station franchise the following addition (and several other word
insertions) be made:
"Notwithstanding any other provision of this
subsection or agreement, any board of
supervisors ' directed mandated fees
(including among others, any state fixed and
required fee, local enforcement agency
establishment fee and AB 939 fee) may at the
Board's direction, be collected for the
County in addition to any established
surcharge percentage" .
The Board should consider whether it wishes S 6 .4a of the
Keller Landfill Site franchise agreement amended in the same
manner as the amendment of S 6 .4b. of the Acme Transfer Station
franchise agreement.
it Y
Board of Supervisors -3- November 1, 1994
3. Page 22, 5 6 .4b. "Other Wastes" . The 10 percent of the
base rate provision contained here on page 22 (the September 20,
1994 overlayed draft) was not contained in the September 13, 1994
draft before the Board. The inserted language would impose a 10
percent surcharge on the base (proprietary) rate for waste being
deposited at the Keller Landfill site but not coming through the
Acme Transfer Station. In addition to the 10 % surcharge, such
waste would be subject to paying all resource recovery, local
enforcement agency, mitigation, Easton AB 939 and household
hazardous waste fees otherwise applicable to the site.
It was noted at the October 27 meeting that assuming .other
waste received at Keller from the Acme Transfer Station was
paying a 25 percent of proprietary rate (but significantly
reduced other fees) that the non-transfer station waste could, in
some instances, be subject to a total payment per ton to the
County in excess of the waste subject to the 25 percent fee.
BFI-Acme representatives at the October 27 meeting appeared to
indicate that they would have no problem making all waste
received at the site subject to the 25 percent surcharge
provision. The Community Development Department staff has
prepared a chart to explain these fee differences for your
consideration.
Concerning § 6 .4b. , a proposal was presented at the October
27 meeting to reduce .its scope so that it would only be
applicable as' to "special handling waste" (see § 2 .23 on pages 10
and 11 of the 9-20-94 draft for that definition) . While
proposed, this point was not considered or discussed at the
October 27 "ad hoc" committee meeting.
4 . Other revisions . It appeared to staff on Thursday that
as to the other revisions made to the September 13 Keller Canyon
Landfill draft and before the Board on October 10, they reflected
the Board's September 13 directions. Accompanying this
memorandum are copies of the September 20 overlay and strikeout '
draft and of the earlier September 13 draft concerning .the Keller
Landfill's site franchise agreement.
VJW/jh
J-100:a:\ke11er.vjw
TABLE OF CONTENTS _ FIRST AMENDED LANDFILL FRANCHISE AGREEMENT
RECITALS 1
ARTICLE 1. INTRODUCTORY PROVISIONS 3
Section 1. 1 RECITALS INCORPORATION. . . . . . . . . . 3
Section 1.2 EFFECTIVE DATE, EFFECT. . . . . . . . 3
Section 1.3 CONDITIONS OF APPROVAL. . . . . . . . . . 3
Section 1.4 OPERATOR ACKNOWLEDGMENT. . . . . . . . . . 4
Section 1.5 COUNTY DISCRETION AND INTEREST. . . . . . 4
Section 1.6 USE PERMIT OPERATIVE. . . . . . . . . . . . 5
Section 1.7 NO PREFERENTIAL TREATMENT. . . . . . . . . 5
ARTICLE . 2. DEFINITIONS 5
Section 2. 1 AGREEMENT. . . . . . . . . . . . . . . . 5
Section 2.2 ACTIVITIES REPORT. . . . . . . . . . . . . 5
Section 2. 3 ANALYSIS PERIOD. . . . . . . . . . . . . . 6
Section 2 .4 BASE RATE. . . . . . . . . . . . . . . 6
Section 2.5 COMMENCEMENT DATE. . . . . 6
Section 2 . 6 COUNTY. . . . . . . . . . . . . . 6
Section 2.7 DIRECTOR. . . . . . . . . . . . . . . . 6
Section 2 .8 EMERGENCY. . . . . . . . 6
Section 2.9 GATE FEE COLLECTION SYSTEM. 7
Section 2. 10 GATE RATE. . . . . . . . . . . . 7
Section 2. 11 HOURS OF OPERATION. . . . . . . . . . . . 7
Section 2. 12 HOURS OF ACCESS. . . . . . . 7
Section 2. 13 LANDFILL. . . . . . . . 7
Section 2. 14 MANDATED FEES. . . . . . . . . . . . . . . 8
Section 2 . 15 OPERATOR. . . . . . . . . . . . . . . . . 8
Section 2 . 16 PERMITS. . . . . . . . . . . . . . 8
Section 2 . 17 POST-CLOSURE MAINTENANCE. . . . . . . . . 8
Section 2 . 18 REGULATORY AGENCIES. . . . . . . . . . . . 8
Section 2 . 19 SCHEDULE OF DISPOSAL CHARGES. . . . . . . 9
Section 2 .20 SITE CLOSURE. . . . . . . . . . . . . . . 9
Section 2 .21 SOLID WASTE. . . . . . . . . . . . . . . . 9•
Section 2 .22 SOLID WASTE PROGRAMS. . . . . . . . . . . 10
Section 2.23 SPECIAL HANDLING WASTE'. . . . . . 10
Section 2.24 SURCHARGE. . . . . . . . . . . . . . . . . 11
Section 2.25 SURCHARGE PAYMENTS. . . . . . . . . . . . . 11
Section 2.26 USE PERMIT. . . . . . . . . . . . . . . . 11
ARTICLE 3. TERM OF AGREEMENT 11
ARTICLE 4 . PERFORMANCE OF OPERATOR 12
Section 4 . 1. OPERATION OF LANDFILL. . . . . . . . . . . 12
Section 4 .2 WASTE STREAM. . . . . . . . . . . . . . . . 12
Section 4 . 3 WASTE TYPES. . . . . . . . . . . . . . 12
Section 4 .4 UNACCEPTABLE WASTE. . . . . . . . . . . . 12
Section 4 .5 INSPECTION, INVESTIGATION, AND EVALUATION
OF SITE. . . . . . . . . . . . . . . . . . . . . . 13
September 20, 1994 -i- DRAFT
Section 4 .6 PERMITS. . . . . . . . . . . . . . 14
Section 4 .7 STATUS OF TITLE. . . . . . . 14
Section 4.8 GATE FACILITIES. . . . . . . . . . . . . . 14
Section 4.9 OPERATION OF GATE FEE COLLECTION SYSTEM. 15
Section 4. 10 FEE COLLECTION. 15
Section 4. 11 PAYMENT TO COUNTY. . . . . . . . 16
Section 4. 12 . HOURS OF ACCESS. . . . . . . . . . . . . . 16 .
Section 4. 13 NONDISCRIMINATORY SERVICE. . . . . . 17
Section 4 . 14 ACCESS ROADS, HAUL ROADS AND SERVICE
ROADS. . . . .
Section 4. 15 LITTER MANAGEMENT. . . . . . . . . . . . . 17
Section 4. 16 ENVIRONMENTAL MITIGATION. . . . . . . . . 17
Section 4. 17 RECYCLING/RESOURCE RECOVERY PROGRAMS. 18
Section 4 . 18 ACTIVITIES REPORT. . . . . . . . . . . . . 18
Section 4. 19 PENALTY SCHEDULE FOR NONCOMPLIANCE. . . . 18
Section 4 .20 RECORDS. . . . . . . . . . . . . . 19
.:.::.::.:::.:::.::.:: :: : :.....:..:.......::::......:.............. ....:.
St o > 3T1 '44; 19
ARTICLE 5. PERFORMANCE OF COUNTY 20
Section 5. 1 GATE FEE COLLECTION SYSTEM. . . . . . . . . 20
Section 5.2 INSPECTION OF SCALES. . . . . . . . . 20
ARTICLE 6 . RATES 20
Section 6 . 1 BASE RATE. . . . . . . . 20
Section 6 .2 SURCHARGE. . . . . . 20
Section 6 .3 GATE RATE. . . . . . . . . . . . . . . . . 21
Section 6.4 INITIAL SURCHARGE. . . . . . . . . . . . . 21
Section 6 .5 DISPOSAL CONTRACTS. . . . . . . . . . . . 22
Section 6 .6 SCHEDULE OF RATES. . . . . . . . . . . . . 23
ARTICLE 7 . PERSONNEL 24
ARTICLE 8. LANDFILL GAS 25
ARTICLE 9. CLOSURE AND POST CLOSURE 25
Section 9 . 1 CLOSURE RESPONSIBILITIES. . . . . . . . . . 25
Section 9 .2 FINANCIAL ASSURANCES. . . . . . . . . . 26
Section 9 .3 PERFORMANCE. . . . . . . . . . . . . . . . 26
Section 9 .4 SIGNING OF INSTRUMENTS AND DOCUMENTS. . . . 27
Section 9 .5 FAILURE TO MEET CLOSURE AND POST-CLOSURE
OBL I GAT I ONS. . . . . . . . . . . . . . . . . . 27
ARTICLE 10. UNINTERRUPTED OPERATION 27
Section 10. 1 ASSURANCE OF UNINTERRUPTED OPERATION. 27
Section 10.2 LABOR DISPUTES. . . . . . . . . . . . . . 28
ARTICLE 11. DEFAULT, REMEDIES 28
Section 11. 1 FAILURE TO PROSECUTE WORK. . . . . . . . 28
Section 11.2 CONVICTION OF CERTAIN CRIMES. . . . . . . 30
Section 11.3 CONDEMNATION. . . . . . . . . . . . . . . 30
Section 11.4 RIGHT TO TAKE/RIGHT TO POSSESSION. . . 30
Section 11.5 FORCE MAJEURE. . . . . . . . . . . . . . 31
September 20, 1994 -ii- DRAFT
'c t
Section 11.6 SPECIFIC PERFORMANCE. . . . . . . . . - 31
Section 11. 7 NONEXCLUSIVE REMEDIES. . . . . . . . . . . 31
ARTICLE 12 . INSURANCE AND BONDS 32
Section 12. 1 WORKERS' COMPENSATION. . . . . . . . . . . 32
Section 12.2 PUBLIC LIABILITY. . . . . . . . . . . . . 32
Section 12.3 . OTHER INSURANCE PROVISIONS. . . . . . . . 33
Section 12 .4 FAITHFUL PERFORMANCE SURETY. . . . . . 33
ARTICLE 13. GENERAL PROVISIONS 34
Section 13. 1 GUARANTY BY PARENT OR AFFILIATE. . 34
Section 13.2 ATTORNEY'S FEES. . . . . . . . . . . 34
Section 13.3 INDEMNITY AND HOLD HARMLESS AGREEMENT. . . 35
Section 13.4 ASSIGNMENT. . . . . . . . . . . . . . . 36
Section 13.5 COMPLETE AGREEMENT. . . . . . . . . . . . 37
Section 13.6 NO THIRD PARTY BENEFICIARY ENFORCEMENT. 38
Section 13.7 SURVIVAL OF OBLIGATIONS. . . . . . . . . . 38
Section 13.8 ARBITRATION. . . . . 38
Section 13.9 CONFLICT. 39
Section 13. 10 CAPTIONS. o 39
Section 13. 11 DELEGATION BY BOARD. . . . . . 40
Section 13. 12 SEVERABILITY. . . . . . . . . . . . . . . 40
Section 13. 13 MASCULINE GENDER USED. . . . . . . . . 40
Section 13. 14 GOVERNING LAW. . . . . . . 40
Section 13. 15 NOTICES. . . . . . . . . . . . . 41
September 20, 1994 -iii- DRAFT
,y z
COUNTY OF CONTRA COSTA
STATE OF CALIFORNIA
FIRST AMENDED
LANDFILL FRANCHISE AGREEMENT
THIS FIRST AMENDED LANDFILL FRANCHISE AGREEMENT (the
"Agreement" ) is made and entered into this , by and
between the COUNTY OF CONTRA COSTA (hereinafter "County" ) and
KELLER CANYON LANDFILL COMPANY (hereinafter "Operator" ) .
RECITALS
WHEREAS, the legislature of the State of California has
adopted the Nejedly-Z 'berg-Dills Solid Waste Management and
Resource Recovery Act of 1972 and now has adopted the California
Integrated Waste Management Act of 1989, both of which assign
certain responsibilities for the County's solid waste planning,
management, implementation, and regulation to the Contra Costa
County Board of Supervisors; and
WHEREAS, on July 24, 1990, the Board of Supervisors of
Contra Costa County approved the Keller Canyon Sanitary Landfill .
Use Permit No. 2020-89 subject to the Conditions of Approval, the
Special Land Use Conditions of Approval and the Findings Relative
to the Landfill Site Land Use Permit pursuant to the California
Environmental Quality Act ( "CEQA" ) and 'Adoption of a Mitigation
Monitoring Program, each of the same date; and
WHEREAS, the County adopted Ordinance No. 88-81, which
provides that a solid waste disposal facility may be operated
within the County only upon the approval of a franchise agreement
September 20, 1994 -1- DRAFT
by the County or upon the operator of a landfill entering into a
contract with the Contra Costa County Board of Supervisors to
prepare the site and operate such facility; and
WHEREAS, on 4 December 1990 County and Operator entered a
LANDFILL FRANCHISE AGREEMENT ("Landfill Franchise Agreement") in
accordance with the requirements of County Ordinance No. 88-81,
and to implement the requirements of Land Use Permit No. 2020-89,
which Landfill Franchise Agreement has been amended by Amendments
Nos. 1 through 10, inclusive, thereto; and
WHEREAS, recent United States Supreme Court cases decided
under the Commerce Clause of the United States 'Constitution
generally prohibiting states and their political subdivisions
from erecting barriers to the free flow of solid waste (and
thereby discriminating against interstate commerce) significantly
affects the solid waste industry, and affects the parties hereto
in that some of the provisions of the Landfill Franchisee
Agreement, particularly the provisions regarding the County's
regulation of rates, may no longer be appropriate or necessary
given the current competitive nature of the solid waste industry •
as a result of said recent Supreme Court decisions; and
WHEREAS, the parties now desire to amend certain provisions
of the Landfill Franchise Agreement;
NOW, THEREFORE, the County and Operator, for and in
consideration of the covenants and agreements as hereinafter set
forth and for other good and valuable consideration, the receipt
and sufficiency of which is hereby acknowledged, do mutually
September 20, 1994 -2- D F2AFT
. . f
agree as follows:
ARTICLE 1. INTRODUCTORY PROVISIONS
Section 1. 1 RECITALS INCORPORATION. The Recitals set forth
above, and all defined terms set forth in such Recitals and in
the introductory paragraph preceding the Recitals, are hereby
incorporated into this Agreement as if set forth herein in full.
Section 1.2 EFFECTIVE DATE, EFFECT. This Agreement is
effective on the date mentioned in the first paragraph of page
one hereof, and as of the effective date, t3
M.4- <:>€:> ox :€<: ><: <:: 1 .:::::_? +d ''::::xe laces and
_..............:.._............... ..__................................................_....:....................._.........
supersedes the Landfill Franchise Agreement. -X. y
.........................................................
riidoes not nullify the Landfill Franchise Agreement
for the period preceding the effective date of this Agreement.
Section 1.3 CONDITIONS OF APPROVAL. Operator acknowledges
and agrees that all of the terms and conditions of the Use
Permit's Conditions of Approval and any amendments thereto, are
reasonable, legal and valid and that Operator is barred from any
action or proceeding or any defense of invalidity or
unreasonableness of said Conditions of Approval and any
amendments thereto, and related County decisions. Further,
Opera and
agrees that the Use PeEmit (and its
y.
Genditlens—ef AppEeTal ad a amendments theEe.CB 9E this
perator will not attack or otherwise
assail the reasonableness, legality or validity of any terms and
...................
conditions of h - sal d9euments, or of any provisions
required to be included in this Agreement by the said Conditions
September 20, 1994 -3- DRAFT
of Approval and any amendments thereto. The parties acknowledge
that the agreement by Operator in this section is a material
consideration for County's approval of this Agreement.
Section 1.4 OPERATOR ACKNOWLEDGMENT. Operator acknowledges
and agrees that this Agreement and the Use Permit (by the
incorporation herein of the Use Permit) provide for and allow
(among other things) funding for mitigation, provision of closure
and post-closure costs, payment to County of annual franchise
revenue fees, and otherwise payment to County and reimbursement
of County costs for its governmental administration of the
project entitlements.
It is understood that, among other things, this Agreement
provides for Operator's establishment of its proprietary rates to
enable Operator to compete in a solid waste disposal market that
has become highly competitive as a result of recent United States
Supreme Court decisions. This Agreement also acknowledges that
sub-county service areas have not been established.
Section 1.5 COUNTY DISCRETION AND INTEREST.
Notwithstanding any other provision of this Agreement, Operator
acknowledges that County's discretion to grant, approve or deny
one or more nonexclusive or other franchises or similar
agreements for others is not limited or abridged in any manner by
this Agreement; and that this Agreement does not require the
approval of any such other franchises or agreements by Operator.
County reserves the rights as part of the negotiation and entry
of any such other franchise or agreement to enter a public-
September 20, 1994 -4- DRAFT
private or public-public partnership with other landfill owners
and/or to pursue any rights of the County to require ownership of
those landfills or this Landfill.
Section 1.6 USE PERMIT OPERATIVE. Upon the effective Date
of the Landfill Franchise Agreement, the Use Permit became
operative pursuant to the conditions of the Use Permit, entitling
Operator to all rights and privilege thereunder.
Section 1.7 NO PREFERENTIAL TREATMENT. With respect to
material terms of the relationship between the County and
Operator, the County shall offer to Operator terms at least as
favorable as those agreed upon by the County with the operator of
any other landfill within the County with whom the County is
currently negotiating or may negotiate within the Term of this
Agreement. ff any such material terms are determined for such
other operator subsequent to their determination with respect to
Operator, the County shall offer to amend such terms with respect
to operator.
ARTICLE 2. DEFINITIONS
Section 2. 1 AGREEMENT. "Agreement" shall refer to this
Agreement and is synonymous for purposes of this Agreement with
the word "Contract" .
Section 2.2 ACTIVITIES REPORT.. The "Activities Report" is
a summary document reporting Operator's activities and overall
performance during the preceding Analysis Period or over such
period of time as set by the County. The Activities Report shall
summarize landfill related activities, including, but not limited.
September 20, 1994 -5- DRAFT
to: compliance with the provisions of this * f•�'^�
and all applicable Permits and Regulatory Agency Requirements,
complaints and corrective actions taken, litter management,
landfill gas project update, wastestream volumes and analysis,
operations and safety training, recycling/resource recovery
efforts, Closure Trust Fund status and balance.
Section 2.3 ANALYSIS PERIOD. "Analysis Period" refers to
the twelve ( 12) consecutive calendar months beginning the first
day of January of each year throughout the term of this
Agreement. The first Analysis Period, for the purposes of this
Agreement shall begin on January 1, 1994.
Section 2 .4 BASE RATE. "Base Rate" shall mean the
proprietary fees charged by Operator to dispose of Solid Waste or
any other waste at the Landfill.
Section 2.5 COMMENCEMENT DATE. "Commencement Date" shall
mean the date upon which the Landfill first accepted Solid Waste
for disposal under the terms of the Landfill Franchise Agreement
and the Use Permit.
Section 2.6 COUNTY. "County" shall mean the County of
Contra Costa, a political subdivision of the State Of California.
Section 2 .7 DIRECTOR. "Director" shall mean the County
Administrator or his designated deputy, other County officer or
employee.
Section 2 .8 EMERGENCY. "Emergency" shall mean a sudden,
unexpected occurrence involving a clear and imminent danger,
demanding immediate action to prevent or mitigate loss of, or
September 20, 1994 -6- DRAFT
damage to, life, health, property, or essential public services.
Emergency includes such occurrences as fire, flood, earthquake,
or other soil or geologic movements, as well as such occurrences
as riots, accident and sabotage.
Section 2.9 GATE FEE COLLECTION SYSTEM. "The Gate Fee
Collection System" shall consist of all equipment, hardware, and
software utilized for purposes of assessing, collecting, and
accounting for Tipping Fees for the disposal of Solid Waste at
the Landfill.
Section 2. 10 GATE RATE. "Gate Rate" shall mean the fee
charged per ton to dispose of Solid. Waste, or other waste at the
Landfill. The Gate Rate shall be the Base Rate plus Surcharge
and Mandated Fees, if any. "Gate Rate" shall be synonymous with
"Landfill Tipping Fee" and "Tipping Fee. "
Section 2. 11 HOURS OF OPERATION. "Hours of Operation"
shall be those times during which the use of heavy equipment and
other machinery necessary for operation of the Site in compliance
with the Use Permit, the Solid Waste Facilities Permit and this
Agreement will be allowed.
Section 2. 12 HOURS OF ACCESS. "Hours of Access" shall be
those times during which Solid Waste may be delivered to the
Landfill for disposal.
Section 2 . 13 LANDFILL. "Landfill" shall mean the Landfill
described in Exhibit A where the disposal of Solid Waste will
occur. For purposes of this Agreement, "Landfill" shall be
synonymous with "Site. "
September 20, 1994 -7- DRAFT
Section 2. 14 MANDATED FEES. "Mandated Fees" shall be those
monies required from Operator from time to time by any Regulatory
Agency for the purpose of funding (a) Federal, State or regional
programs, (b) programs required by the Land Use Permit, or (c)
other County established fees.
Section 2. 15 OPERATOR. "Operator" shall mean the holder of
the Use Permit or its assignee.
Section 2. 16 PERMITS. "Permits" shall mean any and all
governmental approvals, entitlements, clearances or
a io
cl ssificat ns
including but not limited to, the Use Permit, general plan
amendments, environmental impact reports, zoning approvals,
conditional use permits, waste discharge permits and
requirements; facilities permits, permits to operate, permits to
construct, closure plans, building permits, encroachment permits,
grading permits, tree removal permits, tract/parcel maps and all
other governmental permits, consents or approvals as may be
necessary to allow Operator to construct and operate the
Landfill.
Section 2. 17 POST-CLOSURE MAINTENANCE. "Post-Closure
Maintenance" shall mean those activities as required by law to be
undertaken at the Landfill, following Site Closure to maintain
the integrity of containment features and/or to monitor
compliance with applicable performance standards as specified by
law.
Section 2 . 18 REGULATORY AGENCIES. "Regulatory Agencies"
September 20, 1994 -8- DRAFT
shall mean Federal, State and local agencies responsible for - --- --
regulating the operation and maintenance of sanitary landfills, .
such as, but not limited to, California Integrated Waste
Management Board, California Regional Water Quality Control
Board, California Department of Health Services, the Contra Costa
County Department of Health Services as Local Enforcement Agency
for handling and disposal of Solid Waste, the Bay Area Air
Quality Management District and the County.
Section 2 . 19 SCHEDULE OF DISPOSAL CHARGES. The "Schedule
of Disposal Charges" shall mean a list of waste types and
corresponding fee amounts to be charged at the Landfill for
disposal of waste types.
Section 2 .20 SITE CLOSURE. "Site Closure" shall be the
cessation of 'Solid Waste disposal at all or portions of the
Landfill and subsequent operations necessary to prepare the Site
for Post-Closure Maintenance in accordance with law, Regulatory
Agency requirements and Permits.
Section 2.21 SOLID WASTE. "Solid Waste" shall have the
meaning set forth in Section 40191 of the California Public
Resources Code as it may be amended from time to time, as
follows:
"40191(a) Except as provided in subdivision (b) , '
'solid waste' means all putrescible and nonputrescible
solid, semisolid, and liquid wastes, including garbage,
trash, refuse, paper, rubbish, ashes, industrial
wastes, demolition and construction wastes, abandoned
September 20, 1994 -9- DRAFT
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.
"(b) 'Solid wastes" does not include hazardous waste
or low-level radioactive waste regulated under Chapter
7.6 (commencing with Section 25800) of Division 20 of
the Health and Safety Code.
"(c) 'Solid Waste' does not include medical waste
which is regulated pursuant to the Medical Waste
. Management Act (Chapter) 6 . 1 (commencing with Section
25015) df Division 20 of the Health and Safety Code) .
Untreated medical waste shall. not be disposed of in a
solid waste landfill, as defined in Section 46027 . . -
Medical waste which has been treated and which is
deemed to be solid waste shall be regulated pursuant to
this division. "
Section 2.22 SOLID WASTE PROGRAMS. "Solid Waste Programs"
shall mean those programs directly related to solid waste .which
may include: transfer stations, household hazardous waste
programs, recycling and resource recovery programs, Agreement and . -
Use Permit administration costs (including legal, engineering,
and accounting and other costs of the County) .
Section 2 .23 SPECIAL HANDLING WASTE. "Special Handling
September 20, 1994 -10- DRAFT
Waste" shall mean certain Solid Waste materials permitted for
disposal at the Landfill which, because of their volume or type,
will require special handling by Operator such as, by example
only, sewage sludge, tires, fencing, large appliances, . large dead
animals, concrete and asphalt. All Special Handling Wastes
accepted at the Landfill shall be specifically identified in the
Schedule of Disposal Charges.
Section 2.24 SURCHARGE. "Surcharge" shall mean a special
charge as required by the County and this Agreement, for funding
of Solid Waste Programs, closure of landfills in operation prior
to 1990 and for franchise fees and other costs as deemed
appropriate by the County.
Section 2.25 SURCHARGE PAYMENTS. "Surcharge Payments"
shall mean those monies received by Operator as a Surcharge and
remitted to the County in accordance with the terms of this
Agreement and of the Permits.
Section 2.26 USE PERMIT. "Use Permit" shall mean Contra
Costa County Land Use Permit No. 2020-89, together with all
Conditions of Approval applicable thereto, including any
amendments thereof.
ARTICLE 3. TERM OF AGREEMENT
This Agreement shall remain in effect until 38.4 millions
tons of waste have been disposed of in the Landfill, or such
lesser time as may be prescribed by law: It is the parties
intent that the term of this Agreement shall be the estimated
life of the landfill expressed in terms of capacity as of this
September 20, 1994 -11- DRAFT
date: 38.4 million tons less the tonnage of waste disposed of
prior to the effective date of this Agreement.
ARTICLE 4. PERFORMANCE OF OPERATOR
Section 4. 1 OPERATION OF LANDFILL. Operator shall operate .
the Landfill, in strict compliance with, and subject to, the
terms and conditions of this Agreement, the Permits and other
applicable requirements of Regulatory Agencies.
Section 4.2 WASTE STREAM. Nothing in the terms and
provisions of this Agreement shall be construed to grant rights
of exclusivity with respect to Solid Waste generated in any
geographical portion of the County; nor shall this Agreement
preclude or in any way restrict the County from entering into
substantially similar agreements with other parties for Solid
Waste disposal operations at other locations; provided that the
terms and conditions of such other agreements shall not be
substantially more favorable to the other operators than the
provisions of this Agreement.
Section 4.3 WASTE TYPES. Operator shall operate the Site
. in strict compliance with the Permits and laws; provided,
however, Operator may refuse to allow the disposal of certain
categories of Solid Waste after obtaining approval by the County,
which approval shall not be unreasonably withheld. Operator
shall provide sixty (60) days ' notice to all affected parties
prior. to proposing County approval of Operator's tentative
decision to disallow disposal of the affected Solid Waste.
Section 4 .4 UNACCEPTABLE WASTE. Operator shall not allow
September 20, 1994 -12- DRAFT
disposal at the Site of material other than waste allowed by and
subject to the terms of all Permits and laws. It is recognized
that some non-approved materials, including certain hazardous
wastes, may occasionally be unloaded at the Site by users
thereof. Operator shall train its on-site employees to recognize
such unacceptable wastes and materials. In the event that
unacceptable waste is deposited at the Site, it shall be handled
and removed by Operator in accordance with procedures which shall
be developed by Operator and submitted to the County for approval
prior to the Commencement Date. Nothing herein is intended to
relieve the person or persons depositing or causing to be
deposited such unacceptable waste from any liability. Operator
retains the right to use all legal means to recover costs of
removal and alternate disposal or treatment from such. person or
persons.
Section 4.5 INSPECTION, INVESTIGATION, AND EVALUATION OF
SITE. Operator acknowledges that it has and shall continue to
inspect, investigate, and evaluate the Site regarding its
suitability as a Solid Waste disposal site.
The Site shall be immediately accessible at all reasonable
times to Regulatory Agency officials for any reasonable, lawful
and proper purpose. County officials shall usually give
reasonable notice to Operator of their intention to visit the
Site -or if .such notice is not given, shall notify Operator's on-
site personnel of their presence on the Site.
County shall not incur liability arising from the discharge
September 20, 1994 -13- DRAFT
of its inspection responsibilities, either by commission or by
omission, except for its tortious conduct or breach of duty
resulting in death, injury or property damage while engaged in
its inspection responsibilities. The inspection of the work
shall not relieve Operator of any obligation to perform under
this Agreement. Operator shall remove and replace or repair any
work not in compliance with those Permits, laws, ordinances or
regulations applicable to the Site.
Section 4.6 PERMITS. Operator shall obtain and maintain in
force all necessary Permits and/or other approvals from the
Regulatory Agencies for the Landfill.
Upon receipt of each such Permit or approval, a copy
thereof, together with all conditions or requirements attached
thereto, shall be delivered by Operator to the Director.
Section 4 .7 STATUS OF TITLE. Prior to the Commencement
Date, Operator shall provide to the County reasonable evidence
sufficient to establish that Operator is in possession of and/or
has the right to use the Site for the purpose contemplated.
Section 4.8 GATE FACILITIES. Operator shall supply,
construct and thereafter maintain gate fee collection facilities.
The facilities shall be designed and located as necessary so as
to expedite the fee transactions and shall be attractively
finished and landscaped. The facilities. shall be consistent with
the Use Permit for the Site.
Operator shall supply, construct, and maintain truck scales
as necessary to expedite the fee transactions, prevent traffic
September 20, 1994 -14- DRAFT
back-up, and allow for occasional maintenance and repair. The
scales shall be compatible with the Gate Fee Collection System
approved by the County, in accordance with Section 5. 1 of this
Agreement.
The scales shall be open and in working order during all
Hours of Access at the Landfill. The sole access to the Site for
vehicles carrying solid waste shall be the Landfill entrance, and
all waste disposal vehicles shall be recorded by the Gate Fee
Collection System.
Operator shall make provisions for quick repairs of the
scales by competent technicians to minimize downtime. The scales
shall meet all State requirements for design approval and
accuracy for State certified scales. Only those scales
functioning in accordance with all applicable regulations shall
be used. Operator shall obtain the State of California
certification for scale accuracy.
Operator shall supply, deliver and maintain utilities to the
Site and shall be responsible for all on-site and off-site costs
and service charges in connection therewith.
Section 4.9 OPERATION OF GATE FEE COLLECTION SYSTEM.
Operator shall operate the Gate Fee Collection System, including
the providing of all labor and materials necessary with respect
thereto. Such operation shall be for all Hours of Access.
Section 4. 10 FEE. COLLECTION. Operator shall collect, count
and account for all Landfill Tipping Fees and waste quantities
from each user at the Site. Said fees shall be collected in
September 20, 1994 -15- DRAFT
accordance with the rates applicable pursuant to Article 6 of
this Agreement. In the event that no scale is operable at any
given time, vehicles will be charged based upon the weight
certified by the originating transfer station or based upon a
flat fee or volume fee schedule established by the parties in
advance.
Operator shall furnish the County with monthly reports on
the number and, types' of vehicles and waste tonnages and/or
volumes, as appropriate, of the various types and Gate revenue.
Section 4. 11 PAYMENT TO COUNTY. Operator shall pay the
Surcharge Payments required by Article 6 to the County monthly in
arrears. Operator shall pay the Surcharge Payments to County
within thirty (30) calendar days after the close of the prior
month in which they are collected. .
Section 4.12 HOURS OF ACCESS. For purposes of this
Agreement, unless otherwise required by the terms of the. Permits,
Hours of Access shall be those specified in the Solid Waste
Facilities Permit. Should the Director declare that an emergency
exists, Operator shall keep the Landfill open as instructed to
allow for the orderly disposal of Solid Waste generated or
created by such emergency conditions at no additional charge or
increase in the .Gate Rate. The scheduled Hours of Access may be
changed in a manner consistent with permit requirements.
Operator may, in its sole discretion, observe the following
holidays and close the Landfill: New Year' s Day, Easter Sunday,
Memorial Day, Independence Day, Labor Day, Thanksgiving Day .and
September 20,1994 -16- DRAFT
Christmas Day, or other major holiday as approved by the
Director.
Section 4. 13 NONDISCRIMINATORY SERVICE. Operator shall
provide nondiscriminatory service for Solid Waste disposal 'to all
users, and shall abide by all Federal, State and local laws and
the Land Use Permit.
Section 4. 14 ACCESS ROADS, HAUL ROADS AND SERVICE ROADS.
It shall be Operator's responsibility to provide and maintain all
roads required on the property for purposes of transporting
refuse to the actual point of disposal, or transporting earth
materials for fill within the Site, and such other roads as may
be constructed for its convenience. Haul roads shall be well
maintained. The surface shall be reasonably free from potholes
and depressions. A safe, all weather access to a disposal area
shall be provided at all times.
Section 4. 15 LITTER MANAGEMENT. Operator shall maintain
and keep the Site and its access road reasonably free of litter
and other refuse. Operator shall be solely responsible for
maintaining the Site in a clean and sanitary condition, and shall
be responsible for any public nuisance created as a result of its
operations.
Operator shall control on-site and off-site litter or debris
in accordance with the Use Permit and the Solid Waste Facilities
Permit.
Section 4 . 16 ENVIRONMENTAL MITIGATION. Operator shall
comply with all environmental mitigation measures reasonably and
September 20, 1994 -17- DRAFT
lawfully imposed by Regulatory Agencies including those imposed
. by the Use Permit.
Section 4. 17 RECYCLING/RESOURCE RECOVERY PROGRAMS.
Operator shall cooperate with- the County and reasonably
participate in satisfying the ancillary waste needs of the
County, including participation in a County sponsored
recycling/resource recovery plan and litter program, and/or any
other activity which the County deems is appropriate for
inclusion in the County Solid Waste Programs.
Section 4. 18 ACTIVITIES REPORT. Operator shall, by the
first day of January of each year, assemble and provide to the
County the Activities Report for the most recent Analysis Period.
The Board may direct, upon ninety (90) days written notice to
Operator, that the report provided in the Activities Report be
made semi-annually.
Section 4 . 19 PENALTY SCHEDULE FOR NONCOMPLIANCE. In the
event that noncompliance by Operator with any condition or
provision of this Agreement, or any applicable Permits or
Regulatory Agency requirements is determined by the County,
County shall notify Operator of the identified noncompliance.
Following notification of noncompliance, the Director may
impose penalties per noncompliance upon three (3) days notice to
Operator in accordance with the following penalty schedule until
such time as compliance is achieved:
$ 500.00 per day during the first week of noncompliance
September 20, 1994 -18- DRAFT
$ 750.00 per day during the second week of noncompliance
$1,000.00 per day during the third week of noncompliance
$1,250.00 per day for each day thereafter.
At the time the Director imposes any penalties, the amounts
due for each day of noncompliance shall be the above amounts
subject to annual CPI adjustments, the applicable index to be
reasonably selected by the Director.
Notwithstanding the above three paragraphs, no monetary
penalties will beimposed by the County in the event that
Operator and/or said Regulatory Agency are diligently pursuing
the process of correction or mitigation of the event(s) causing
noncompliance.
Operator shall have the right to arbitrate any action taken
by the County under this provision in accordance with Section
13.7 of this Agreement.
Section 4.20 RECORDS. Operator shall keep separate and
accurate records for the Landfill as provided in the Use Permit.
The County may, at its own expense (which may be recovered
as a Solid Waste program cost) , at any time during the term of
this Agreement, have the books and records .of the Operator
examined for the sole purpose of verifying Operator's compliance
with the requirements of this Agreement. County shall give
thirty (30) days written notice to the Operator in advance of
such examination date.
:.:..
S ?ct.
iri1 HCS CONIi�ItTNI ' . C� # 3 ::: ge that tri
September 20, 1994 -19- DRAFT
ARTICLE 5. PERFORMANCE OF COUNTY
Section 5. 1 GATE FEE COLLECTION SYSTEM. .The computerized
Gate Fee Collection System, which shall be provided by Operator
in accordance with Section 4.9 of this Agreement, shall be
approved by the County, which approval shall not be unreasonably
withheld.
Section 5.2 INSPECTION OF SCALES. The County may, from
time to time during regular business hours, inspect the scales
and test the accuracy of same.
ARTICLE 6. RATES
Section '6. 1 BASE RATE. The Base Rate shall be determined
and established by Operator at its sole discretion.
Notwithstanding section 4. 13, it is understood that the Operator
need not charge a uniform Base Rate to all customers, but may
vary the Base Rate as between different customers based on
various factors determined by .Operator, including, but not
limited to, the quantity and type of waste delivered by each
customer to the facility and whether each customer has entered
into a disposal agreement with the .Operator in which the customer
agrees to dispose of some or all of the customer's future waste
stream at the Landfill.
Section 6.2 SURCHARGE. The County may determine and
establish at least once every two years, effective on the date
September 20, 1994 -20- DRAFT
determined by the Board of Supervisors
.:....................................... ....
...:::................
::::.::::... :::: :::::.: : ::::::::.::.::.::::.:::::::::::.::..::::...::
:.:::::...::::::::.:..:...:::....:.:::.:.:::..........:.....:::::::::::::::::::::::::.::::::::::::.::::::::...:.:::::::::::::::.:::.::.:::::::::..:::::.::: .....................................................................
the Surcharge, which shall be added to the then
applicable Base Rate, and collected as part of the Gate Rate.
Operator will be provided at least ninety (90) days ' written
notice of any newly established Surcharge. In the absence of the
County establishing a particular Surcharge amount, .the Surcharge
to be collected by the Operator for the County shall be thirty
percent (30%) of the then applicable Base Rate.
Section 6.3 GATE RATE. The Gate Rate shall consist of the
Base Rate, Mandated Fees, and Surcharge.
Section 6 .4 INITIAL SURCHARGE. Effective on the effective
date of this Agreement, the Surcharge shall be
g . 9 ............
.................................................
0.
.................................................
.................................................
.................................................
.................................................
+ �eztu �?r.�x�s.�e ;,
.................................................................:...........................................................:.................................................................
e: ..
>E'� ?::>:5: t #::::::>;.:: q#gl lQ ;:;;;>: ' t..:...t 5::>:<;. # ':>:>:;::i� 1%1+'::>:< i t lt' 1
.....:`:;:.::::;.::'<:.c; i::ii'.t,:::;:;:,;.;y::;y;;y;�;�;r.::;♦::;+;�;w::
to y�: ♦ y:..::� t1 < ::,. E Fl ?: Sr'ii?E:i4FA Orr► EY�M
:.:.; ..#•. �L .... .I::.:::::!.,'�.,: .::: .r�'...'«.....��..Jif :!4,r,,. ..+"
.:.::::::......;::::::::::::::::::::::...:.:::.::..::..::::::.;:.:.:
::t
y
.....:::::t'7:
Ei:•''`
:y,�' '<: :y.:: y: :..S.::�i` ;>;::i'x:.' '�y....::EEi'y'�. }•.. i::? ::i.`ir'..� ! ?•�':':' 4 i:f.
: ...... ...:.r.�i.. :i.i..,.. .h?.i.`.;•:.ak7�: ;.r:..r..:.....k�,l�.,i.,r..,<..::::{1+.�..:.ii.�: '.G`,.f.. :::.::: ..:::.....:................ .... .:�:::::::
.::
.�r.:4P�.i::::a,7;V:S'4i :i.:'i r'�i:+':i:' ? :17.'::::::::: ...:.... '%•'�i�'.,�,tt. '•.....
,. /�y :. �i :iyy'...� �"��ii,,:�:j{��♦♦,:♦♦::;:::is iiEi'>::..c;�.>y::y;:>v:�.>y:^r;::;y>�._.:.::ili i,:;ry:;"';:i;"aZy`,:�tr'>:,:::�.;yrs.;: ....:...:.:,;:..:...,,....r,.:•:..i r;.::,or.:,.;
Q. • .: �i. ';V' ;%''.:`:;iki:ili.Y;�:::. !it:t.�. W...... :..:.::.:::: .�M.'.ik.
% :::: X.� :::....i+M4�Fr ..: ...'4i+#! .::5:'< hF' .14: :::1�7�f �i
..... ........
....... :.".:... ....................... ......................::.......... .................. ......... ....
'undin ofz > uai »:::: < q:. pa,c�d
... .. .. .... .......
.::. .. .....
.. .
ed by the �tbcrn :>:S.uk�a . ;;> s r� Cant :pga
........:::.. ..:.:: . .. ...... .............. ....... ..
September 20, 1994 -21- DRAFT
: fid:::>:: :<:>: :>::><
.:: ::: :.::::::::.....,::::.....:::::::::::::::::::::::::::.:::::::..:::::::: ::.:.::::::::.::::::::::::::::::::::.::::::::::::::::.:::::::::::::::::::.:::::::. .::::.::::::::::::::::..:.3.:
::. ..........h ..:: .:.«.:::::::: ....::.: d �c �:.::< ..:: c[ i1...... ..............................::::::................
4-10
>< r
A.
sa ac.... . ::>::
::::::..:. ::::.:...:.:::::::....:..::::.::::..:.....:::..:.......::.::::::.........<...:::
...........................................
.....:. :::.:::: :: .... :.;.::.::.:....:. .:.
: . :.::::.: ! 1 .:::................................... .:......:.:::::.:........
:. Y.::: :.
Z.
OW
t . ...__... t.... 3S.rii 3G:.;: , 4.#1#00. ;: �'t 5;:.-.%—"i,;:.:
�'r: d# ..p: ''.'::i•..: . : :::' `. ...:•., `fE: rr:3\iiJ:i: i art. r �,.►�7i` :
ai[af�:�Tar'i
.... f� 4i: Y ... .:u....t.7..:
p
.,.,•.4��yF «.. P. ...... .....�:. . ......`.�:
.;..... y::::::: : ::;. .. :..::::::..: . . ...............�s
.0 ...........:...'
i•
::•:::::::::::::::::::::.::.:::.::.q::::::::..::::
y.:�:.;:.;:..........:..... : .::.:;.;:.;:.::;.;:.::.;;:.:;.::;.;- .,,�,,�q:;.:;.:;.;;.y.>:>:;•;:.;:.;:.r::.:..;.:;.;:: ;;;.;:.;:.;:::;;;.fit:::::::.
.............. ...................................._.._......._.........
d Ulu
...............................................................................
...............................................................................
.04
..............
AA
VI
4 ...:...:...�'��.:.:....... ..:...:.......:...:..................:::.:::::.:::::::::::::::::::::::::::::::::::::.::.::.:::::::::.::.::.::::.::::.:::.::::::..�.::::::::::::::::::::::
.................b
Section 6 .5 DISPOSAL CONTRACTS. For all contracts for the
September 20, 1994 -22- DRAFT
disposal of Solid Waste entered by Operator, the Surcharge
applicable at the time of the disposal contract shall apply for
the life of said disposal contract. The parties agree that any
later established surcharge amounts shall not apply to waste
received pursuant to such Solid Waste disposal contract for the
life of said disposal contract.
Operator shall advise County of any disposal contract
subject to the privileges of this section immediately upon
execution. Operator shall provide County with any and all
information requested by County concerning any such Contract,
including providing County with copies of such contracts upon
request.
Section 6.6 SCHEDULE OF RATES. Operator shall at all times
maintain on file with the County, a schedule of Base Rates and
..........................................
Gate Rates charged to each customer, includingCI +1
u. »ar: :
::G:::. :>>:< : >. ;`» .t ' chedule shall specify
y�t >
whether each customer delivers waste directly to the Landfill or
whether it is delivered by Y wa of the..".*..--"..*.---,---.-.............*..'. + e
.......................
FaGilit
T or other transfer or processing facility. schedule .
shall identify the components of the rates charged at the
Facility, .
The schedule may include a standard Base and Gate Rate which
Operator charges unless a disposal agreement is entered, or other .
arrangements made. Said schedule of Base and Gate Rates shall be
updated within ten days of material modification thereof.
Material modifications include, but are not limited to, changes
September 20, 1994 -23- DRAFT
to any customer's Base and Gate Rate, and entering of a disposal
agreement or other agreement with new customer.
The purpose of this section is to ensure that the rates
charged by Operator as well as fees .and surcharges imposed by
County as well as other governmental agencies .are a matter of
Public Record, so as to promote cooperation and trust between the
Operator, the County, and the public. Towards this end, County
may request, and Operator shall provide to County, all
information reasonably necessary to effectuate the purpose of
this section.
ARTICLE 7. PERSONNEL
Operator shall assign qualified personnel to operate the
site as may be required to assure a smooth and efficient
operation in with all applicable Permits.
The County has the right to request, in writing,
administrative action, including the removal of any employee of
Operator who violates any provision of this Agreement, or who in
the opinion of such requesting party is unsafe, negligent, or
discourteous to the public or others in the performance of
his/her duties. .Upon receipt of such a request, Operator shall
immediately take whatever administrative action, which, in its
judgment, is necessary to resolve the situation. Such action may
include removal of that employee from the Site.
A Site Supervisor employed by Operator shall be present at
the Site at all times that any operations are being conducted
thereon.
September 20, 1994 -24- DRAFT
Operator shall file with the Director the names, addresses,
and telephone numbers of the Operator representatives who can be
contacted at any time in case of emergency. These
representatives shall be fully authorized to respond so as to
resolve the emergency.
ARTICLE 8. LANDFILL GAS
If at any time Operator voluntarily pursues the sale of gas
produced from the Landfill or the sale of electricity produced by
burning said gas, County may require the payment of a Surcharge
thereon.
ARTICLE 9. CLOSURE AND POST CLOSURE
Section 9. 1 CLOSURE RESPONSIBILITIES. Operator shall be
responsible for Site Closure and Post Closure Maintenance of the
Landfill according to all Permits and requirements of the
Regulatory Agencies. Operator will hold the County harmless for
the performance of its duties under this Article.
The County and Operator recognize the inevitability of Site
Closure. Both parties also recognize the existing uncertainties
yet to be resolved which may impact the date and total cost of
Site Closure and the need to commence closure activities promptly
upon cessation of disposal activities in a discrete portion or
phase of the Landfill.
The parties intend to provide for the public interest by
assuring that the appropriate financial mechanisms are put in
place by Operator to provide funds to pay the costs incurred for
Site Closure and Post-Closure maintenance as required by law.
September 20, -1994 -25- DRAFT
Section 9.2 FINANCIAL ASSURANCES. Operator shall provide
all financial assurances necessary to satisfy the provisions of
Public Resources Code Section (formerly Section 66796.22 of the
California Government Code) , -Title 14, California Code of
Regulations, Division 7, Chapter 5, Article 3.5 and all other
applicable provisions of California and Federal law. The
financial assurances shall include the establishment of a trust
fund or equivalent financial arrangement as evidence of financial
ability to provide for the cost of closure and post-closure
maintenance as required by law. Operator shall consult with the
County with respect to proposals to be made to the State
regarding .the financial assurance to be provided. Operator shall
provide the County with adequate notice of any filings with the
State or hearings with respect to such proposals sufficient to
allow the County to participate in and provide input to the State
on the State's determinations on closure and post closure
requirements, including financial assurances to be imposed on the
Site.
Section 9.3 PERFORMANCE. Operator acknowledges that under •
State and Federal law, Operator shall have the responsibility to
perform both closure and post closure activities in a timely,
cost-effective manner. Performance by Operator shall be
determined in accordance with State and Federal statutes.
The County and Operator agree that, to the extent site
closure and postclosure activities are funded from the Landfill
rates, it is in the local public interest to assure timely, cost-
September 20,1994 -26- DRAFT
effective closure and postclosure �activities The County shall
have the right to conduct such technical and financial review as
it deems necessary to protect the local public interest.
Section 9.4 SIGNING OF .INSTRUMENTS AND DOCUMENTS. From
time to time, either party shall at the request of the other
party and without further consideration, execute and deliver such
instruments and documents as may be reasonably necessary in order
to effectuate the purposes of this Article 9.
Section 9.5 FAILURE TO MEET CLOSURE AND POST-CLOSURE
OBLIGATIONS. In the event that Operator fails to perform its
obligations as set forth in this Article 9, or to enter upon
performance of same with due diligence after the determination of
an event of default in a manner described below in Article 11,
the County may enter the Landfill and perform the Site Closure
and Post-Closure activities required to remedy the default and
expend Site Closure funds for the costs involved.
ARTICLE 10. UNINTERRUPTED OPERATION
Section 10. 1 ASSURANCE OF UNINTERRUPTED OPERATION.
Operator, in entering into this Agreement, assures that it will
provide from the Commencement Date for the operation of a Solid
Waste disposal facility at the Landfill in an uninterrupted
manner for as long as the Site is useful and usable, except as
provided in Section 11.4 below. Operator acknowledges the
hardship that would occur if the Landfill is not operated
properly or is prematurely closed. The County and Operator
recognize that in the ordinary course of events, certain
September 20, 1994 -27- DRAFT
unexpected events may result that may place` a burden on the
requirement of uninterrupted operation. However, it is the
purpose of this Article 10 to establish that it is Operator's
obligation to avoid any interruption .of operations except for
those that are outside of Operator's control, as provided by
Section 11.5 of this Agreement.
Section 10.2 LABOR DISPUTES. In the event of a labor
dispute, Operator shall use its best efforts to keep the Landfill
open and to operate it in accordance with this Agreement unless a
mutually acceptable disposal ,alternative is agreed upon by
Operator and the County.
ARTICLE 11. DEFAULT, REMEDIES
Because of the complex nature of this Agreement and the work
to be performed hereunder, together with the need for close
cooperation and coordination between the parties, it is not
anticipated that either party will declare the other in default
under the terms and conditions of this Agreement except as a last
resort. However, in the event of any such necessity, the
following provisions are made a part hereof.
Section 11. 1 . FAILURE TO PROSECUTE WORK. Should Operator
fail to prosecute the work or any severable part thereof in
conformity with the requirements of this Agreement, the Director
shall provide written notice to Operator specifying in detail the
defect or default in performance (the -"First Notice") and
Operator shall have the right to cure same within a reasonable
period of time.
September 20, 1994 -28- DRAFT
If after the First Notice is provided to Operator, the work
is not performed in accordance with the Director's specified time
frame and a reasonable time to cure so as to ensure its
completion in accordance with this Agreement, the Director shall
serve further notice (the "Second Notice") upon Operator of the
County's intention to take further action as provided by law.
The Director shall make appropriate and detailed written findings
of fact which specify the event of default.
No earlier than thirty (30) days after the Second Notice,
County shall have the power and ability, if Operator is still in
default, to take such actions as provided in law for remedying
the same, including the termination of this Agreement.
Should the County fail to perform any of its obligations
under this Agreement, Operator may declare the County in default
after following the same two notice and findings provisions
required of the County above. Thereafter, Operator shall have
the power and ability, if the County is still in default, to take
such actions as provided in law for remedying the same, including
bringing suit in a court of appropriate jurisdiction for
equitable or legal relief or both.
The foregoing notwithstanding, neither party may bring an
action seeking money damages unless it has first provided the
other party with 30 days notice of its intention to do so
together with written notification of the specific actions which
the other party may take to remedy the default which will form
the basis for the claim for monetary damages. If the other party
September 20, 1994 -29- DRAFT
in good faith commences the actions specified within the thirty
(30) day period, the first party shall not bring the action for
damages.
Section 11.2 CONVICTION OF CERTAIN CRIMES. Operator agrees
that a single conviction of Operator, its parent, subsidiaries or
operators, or their officers or employees at the level of Site
operations manager or above, acting within the scope of their
employment, of bribery, antitrust, corruption or theft relating
to or involving directly the Landfill Site shall constitute an
event of a breach of this Agreement subject thereupon to the
provisions of this Article. unless Operator, promptly initiates
and follows through with appropriate disciplinary procedures and
action considering the nature of the offense and resolution by
the courts.
Section 11.3 CONDEMNATION. In addition to any other remedy
available to the County, it has the right and authority under law
to condemn the Site.
Section 11.4 RIGHT TO TAKE/RIGHT TO POSSESSION. In the
event that Operator chooses to no longer operate the Site,
Operator agrees that it will give County notice of its intention
to cease operation ninety (90) days prior to the cessation. If,
after receiving such notice, County initiates eminent domain
proceedings to acquire the Site, Operator agrees that it will not
object to or contest County's right to take, or right of
possession of, the Site. Nothing contained herein shall
constitute a waiver of the right to contest valuation at any
September 20, 1994 -30- DIZZAFT
stage of the proceedings. County and Operator agree that the-.: =
provisions of this paragraph may be enforced by means of the
remedy of specific performance.
Section 11.5 FORCE MAJEURE. Operator shall not be liable
for a default if the failure to perform under the terms and
conditions of the Agreement arise out of causes beyond the
control or without the fault or negligence of Operator. Such
causes may include, but are not limited to, acts of God, or the
public enemy, acts of the County in either its sovereign or
contractual capacity, fires, floods, earthquakes, epidemics,
quarantine restrictions, suppliers ' and vendors' strikes and all
other labor disputes, freight embargoes, and unusually severe
weather; but in every case the failure to perform must be beyond
the control and without substantial default or negligence of
Operator. Operator shall make every reasonable effort to
mitigate the effects of said causes.
Section 11.6. SPECIFIC PERFORMANCE. Notwithstanding any
other available remedies, the obligations duties and rights of
each party under. this Agreement shall be specifically enforceable
by the other party.
Section 11.7 NONEXCLUSIVE REMEDIES. The rights and
remedies of either party to this Agreement as provided for in
this Article 11 shall not be exclusive, and are in addition to
any other rights and remedies provided by law or under this
Agreement; except that the right of either party to seek monetary
damages is limited as provided in Section 11 . 1 above.
September 20, 1994 -31- DRAFT
ARTICLE 12. INSURANCE AND BONDS
Section 12. 1 WORKERS' COMPENSATION. Operator hereby
acknowledges that it is aware of the provisions regarding
Workers' Compensation, Section 3700 of the Labor Code. Operator
shall comply with the provisions. of such Section as amended from
time to time with regard to its employees and shall supply to the
County forthwith upon execution of this Agreement, and annually
thereafter, evidence of such compliance.
Section 12.2 PUBLIC LIABILITY.
leeated by either party heFet-e and the premium ter the pelf a --
pelleles Eequlred- hereuadeE Is reasonable In
Gounty, Operator shall obtain from a good and responsible company
or companies doing insurance business in the State of California,
and pay for, maintain in full force and effect for the duration
of this Agreement and any extension, a policy or replacement
policy of comprehensive liability insurance for the Landfill, in
which the County is named as an additional insured with Operator.
Operator shall furnish a Certificate of Liability Insurance to
the Director before execution of this Agreement by the County.
Notwithstanding any inconsistent statement in the policy
described by the Certificate of Liability Insurance or any
subsequent endorsement attached thereto, the protection offered
by the policy shall:
(a) Include the County, its officers, employees and
agents while acting within the scope of their duties under this
Agreement, the Use Permit, or any other County ordinance,
September 20, 1994 -32- DRAFT
resolution or other rule relating to the operation, maintenance
or closure of the Landfill, as an additional insured covering
said duties against all third party claims for negligence; and
for indemnification of the County as provided by this Agreement.
(b) Provide for a combined single limit policy not
less than $10,000,000 per occurrence, combined bodily injury and
property damag
At every
fifth year of this Agreement, this $10,000,000 minimum limit
shall be increased as directed by the County but not more than
30% for each such five year period.
Section 12.3 OTHER INSURANCE PROVISIONS. All insurance
policies required by this Agreement shall bear an endorsement,
whereby it is provided that, in the event of expiration, or
proposed cancellation of such policy for any reason whatsoever,
the Director shall be notified in writing not less than thirty
(30) days before expiration or cancellation is effective.
Expiration, reduction or cancellation of any insurance
policy required by this Agreement without obtaining a replacement
policy pursuant to Section 12.2 to meet the requirements herein
shall be considered a breach of this Agreement by Operator.
Operator shall also carry such other insurance as may be
required by law. Operator shall be solely liable for any .claims
or liabilities caused by its failure to maintain insurance
required by law.
Section 12 . 4 FAITHFUL PERFORMANCE SURETY. Operator shall,
September 20, 1994 -33- D RAFT
prior to acceptance of waste at the Site under this Agreement,
provide to the County an irrevocable Performance Surety Letter of
Credit in the form set forth in Exhibit B hereto guaranteeing
Operator's performance of all_ provisions of this Agreement
(except Article 9, relating to Site Closure, for which separate
financial assurances are required by applicable law) in an amount
of not less than $1,000,000.00. This Letter of Credit may also
be utilized to meet the security and performance requirement of
the Use Permit, except as to the closure requirements which will
be separately secured. If Operator or an affiliate acceptable to
the Director operates a transfer or processing station in the
County, from which transfer or processing station solid waste is
delivered to the Landfill, the Director. may allow the Performance
Surety Letter of Credit required by this section to additionally
guarantee Operator's performance of all provisions of said
transfer station agreement or franchise.
ARTICLE 13. GENERAL PROVISIONS
Section 13. 1 GUARANTY BY PARENT OR AFFILIATE. Prior to the
Commencement Date, and for all conditions and obligations of this.
Agreement, Operator shall provide to the Director, proof of
guaranty by the parent or an affiliate of Operator acceptable to
the County, of the performance by Operator of each provision of
this Agreement to be performed by Operator. Proof of guaranty
shall be in the form set forth in Exhibit C.
Section 13 .2 ATTORNEY'S FEES. In the event of litigation
between the parties arising hereunder, each party shall pay and
September 20, 1994 -34- DRAFT
bear its own litigation expenses, including attorney's fees.
Section 13.3 INDEMNITY AND HOLD HARMLESS AGREEMENT.
(a) All work and performances by Operator covered by
this Agreement shall be at the risk of Operator
(b) With respect to third-party claims, Operator
agrees to save, indemnify and keep harmless the County, its
officers, employees, agents and assign 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 by Operator, save and except claims or
litigation arising through the sole negligence or willful
misconduct of the County, and will make good to and reimburse the
County for any expenditures, including reasonable attorney's
fees, that the County may make by reason of such matters and, if
requested by the County, shall defend any such suit at the sole
cost and expense of Operator.
(c) With respect to third-party claims, the County
agrees to save, indemnify and keep harmless Operator, 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 sole
negligence or willful misconduct of the County, and will make
good to and reimburse Operator for any expenditures, including
reasonable attorney's fees, that Operator may make by reason of
September 20, 1994 -35- DRAFT
}
such matters and, if requested by Operator, shall defend any such
suit at the sole cost and expense of the County.
(d) Should any party successfully challenge the
validity of this Agreement or the procedure by which this
Agreement was entered into or the validity of any County action
which authorizes the County to enter into this Agreement, then in
such case the Operator shall have no cause of action for damages
or any other relief against County as a result of such successful
challenge. In the event of any such legal challenge, Operator
shall defend such action or proceeding at its sole expense and
Operator shall save and hold County harmless from any claims or
awards for third party attorneys ' fees and costs.
Section 13.4 ASSIGNMENT.
(a) voluntary. Operator shall not sell, assign,
subcontract or transfer this Agreement or any part hereof, or any
obligation hereunder, without the written consent of County;
provided, however, that Operator may assign this Agreement
without the County's consent to any company which it controls, is
controlled by, or which is under common control with Operator.
As used in this Section, the term "control" with respect to a
company, means the beneficial ownership of more than 50% of the
voting stock of the company.
The term assignment shall include any dissolution, merger,
consolidation -or other reorganization of Operator, which results
in change of control of Operator, or any sale or other transfer
of a controlling percentage of Operator's capital stock. Any
September 20,1994 -36- DRAFT
attempted assignment not provided for above without such consent
shall be void ab initio.
(b) Involuntary. Except as may be permitted by paragraph
(a) above, no interest of Operator in this Agreement shall be
assignable by operation of law. Any such nonpermitted assignment
and any of the following acts, each of which are deemed an
involuntary assignment, shall provide County with the right to
elect to terminate the Agreement forthwith, without suit or other
proceeding:
( 1) If Operator 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 Operator such that would have
a materially adverse effect on Operator's ability to perform its
duties and obligations under this Agreement;
0
(3) If in any proceeding to which Operator is a party,
a Receiver is appointed with authority to take possession of
Operator's property such that would have a materially adverse
effect on Operator's ability to perform its duties and
obligations under this Agreement.
Section 13.5 COMPLETE AGREEMENT. No verbal agreement with
any officer, agency, or employee of the County or of Operator nor
any contract either before, during, or after the execution of
this agreement shall affect or modify any of the terms or
obligations herein contained unless a written agreement, signed
by both parties, specifically provides that same is an amendment
September 20, 1994 -37- DRAFT
to this Agreement.
Section 13.6 NO THIRD PARTY BENEFICIARY ENFORCEMENT. While
this contract benefits the public interest throughout Contra
Costa County, it is an Agreement between only Operator and the
County and, accordingly, only Operator and the County may enforce
same. No claims, demands, or causes of action by any entity,
party, or person claiming to be a third party beneficiary
hereunder shall be enforceable.
:::.:'. :::.
.�::;:::;;;:�:::;":::; ::;>i;::::. ::::4::gi . :::::::::::::.>�:::::_:.:::::;�:�:::..::> <:, ;"`;`::
: ,1: .............i i2i iEi:_:::n:.`: ::i:V:'.<::. :;:::::;;;j.1.!�l�.�/..,�•�:,�a .i:E;FI::::iJii i .''. ...
M�.,�i...!A ah,�14......!.�.....�........� 1.;��... i:::;::::;?lw:::4iel .,::;<:o->:.:::;>:;;>;:. »:.::.>:;o- >;::;.>o-:;
fAAfF �il !':::::::'aii: +{i�v..KiF+7:'<''' t:::� iF.`#MF:Ir.:.fe4 �'!:"i..:<:r::tiltif:::X::.•ri..�i: .ry'�.�i...:`•:i:: :7i ?i4Ri..:
X....::............::::1.::.::::::.:::.:. :: ::::::::r::.:.::::::::.::::::::.:::::::::.:::.:::.::::::::::::::::::.. .:::::;:;:.:.::.::.::::::::::.:.;::.:.::::.::::::::::::::.: .:
. :
.:�:.:y;>�►:::>q';;':�;y::�.:;;';:>: ?:;:;i;i^:: .;z::<.;.:x:`:.... o:;'o:::>:::i':::i'::::::::;:x;;:i;;>::;;:;;':>:..;<;a?;:::'>+<<::: 2:;G;;^:i;:r;::::.;;;.
•yy ::4k.S—i1i:[c:2: .:.a::i�}`#;5. i'' y:-�y :3:i 'y�:.'.:q::: i2iS ''::.:: .�i..?iE 'li•�r.Eir' .r..In!:4F..�,..' ....4�: .....i. .......
t l@ .........
Section 13.8 ARBITRATION. Any controversy or claim
submitted to arbitration pursuant to the express provisions of
this Agreement, or by mutual subsequent agreement, and arising
out of or relating to this Agreement, or the breach thereof,
shall be governed by the provisions of Part III . , Title 9 of the
Code of Civil Procedure, sections 1280 et seq. as amended from
time to time. The arbitration shall be de novo and subject to a •
de novo appeal or challenge brought in the Contra Costa County
Superior Court as to any alleged error of law or as to the
admissibility of evidence. California judicial rules of evidence
shall apply to the arbitration proceedings. The arbitration
decision shall be decided under and in accordance with California
law, supported by a preponderance of evidence and in writing in
the form of a Statement of Decision pursuant to Code of Civil
September 20, 1994 -38- DRAFT
Procedure Section 632.
Section 13.9 CONFLICT.
(a) This Agreement is intended to implement prior
Landfill approvals, including the Use Permit (and Ordinance No.
88-81 if applicable to the Landfill) . In the case of any
apparent or potential conflict between the provisions of this
Agreement and the provisions of the Use Permit or any involved
development agreement, the provisions of this Agreement, the Use
Permit and/or development agreement shall be read together and
harmonized to the maximum extent possible to effectuate the
intentions of the parties. In the case of any unresolved
conflict between the provisions of this Agreement and the
provisions of the Use Permit or any involved development
agreement, the provisions of the Use Permit and/or development
agreement shall control. Notwithstanding any other provision in
this Agreement or in the Use Permit, importation of waste not
originating in Contra Costa County shall be allowed as required
by recent U.S. Supreme Court cases.
(b) Operator has entered into an agreement with Contra
Costa Water District ( "CCWD" ) the relevant portions of which are
attached hereto as Exhibit D, which Exhibit is incorporated
herein by this reference. If there is any conflict between this
Agreement and Exhibit D, this Agreement shall prevail with
respect to the relationship between Operator and the County.
Section 13 . 10 CAPTIONS. The captions and headings used in
this Agreement are for convenience and reference only and are not
September 20, 1994 -39- DRAFT
to be construed as controlling over the text of this Agreement.
Section 13. 11 DELEGATION BY BOARD. The Board may, in its
discretion, delegate to a County employee or hearing officer any
of its functions expressly or impliedly arising from this
Agreement provided that in such case any decision made by such
Board, County employee or officer may be appealed de novo to the
Board.
Section 13. 12 SEVERABILITY. If any term, provision,
covenant or condition ( "provision") of the Agreement or the
application of any provision of this Agreement to a particular
situation is held by a court of competent jurisdiction to be
invalid, void or unenforceable, the remaining provisions of this
Agreement, or the application of this Agreement to other
situations, shall continue in full force and effect. .
Notwithstanding any other provision of this Agreement, if any
provision of this Agreement in itself or as applied in any
particular situation is held to be invalid, void or
unenforceable, it is the intention of the parties that the
remaining portions of this Agreement shall be continued in full
force and effect and that the invalid, void or unenforceable
provision be severed therefrom.
Section 13. 13 MASCULINE GENDER USED. The masculine gender
is sometimes used in this Agreement and is so used for
convenience only and is not otherwise intended.
Section 13 . 14 GOVERNING LAW. This Agreement shall be
governed by and construed in accordance with the laws of the
September 20, 1994 -40- DRAFT
e
State of California.
Section 13. 15 NOTICES. All notices or other communications
("Notice") to be given pursuant to this Agreement, including the
notices required in Articles 6 and 10 hereof, shall be in writing
and shall be deemed given when mailed by registered or certified
United States mail, addressed to the parties as follows:
To County: County of Contra Costa
Attn: County Administrator
To Operator: Keller Canyon Landfill Company
Attn: Boyd M. Olney, Jr.
441 North Buchanan Circle
Pacheco, California 94553
With Courtesy as designated by Browning-Ferris Industries of
California.
A change in address or a change in the person or title to
which Notice is to be given shall be effectuated by Notice to the
other party.
IN WITNESS WHEREOF, this Agreement is effective on the date
first provided on page one hereof.
OPERATOR
Keller Canyon Landfill Company
a California corporation
By:
Boyd M. Olney, Jr.
President
By:
Vice-President
COUNTY OF CONTRA COSTA
By:
Chair, Board of Supervisors
ATTEST: By:
September 20, 1994 -41- DRAFT
Clerk of the Board
APPROVED AS TO FORM: By:
1tr: 12.kcrd920.94 County Counsel
September 20, 1994 -42- DRAFT
FIRST AMENDED LANDFILL FRANCHISE AGREEMENT
BETWEEN THE COUNTY OF CONTRA COSTA AND
KELLER CANYON LANDFILL CORPORATION
FOR THE
KELLER CANYON SANITARY LANDFILL
Dated: September f3, 1994
TABLE OF CONTENTS - FIRST AMENDED LANDFILL FRANCHISE AGREEMENT
RECITALS 1
ARTICLE 1. INTRODUCTORY PROVISIONS 3
Section 1.1 RECITALS INCORPORATION. . . . . . . . . . . . . . . . . . . . . . . 3
Section 1.2 EFFECTIVE DATE. EFFECT. . . . . . . . . . . . . . . . . . . . . . . . 3
Section 1.3 CONDITIONS OF APPROVAL. . . . . . . . . . . . . . . . . . . . . . . 3
Section 1.4 OPERATOR ACKNOWLEDGMENT. . . . . . . . . . . . . . . . . . . . 4
Section 1.5 COUNTY DISCRETION AND INTEREST. . . . . . . . . . . . . . . 4
Section 1.6 USE PERMIT OPERATIVE. . . . . . . . . . . . . . . . . . . . . . . . . 5
Section 1.7 NO PREFERENTIAL TREATMENT. . . . . . . . . . . . . . . . . . . . 5
ARTICLE 2. DEFINITIONS 5
Section 2.1 AGREEMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Section 2.2 ACTIVITIES REPORT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Section 2.3 ANALYSIS PERIOD. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Section 2.4 BASE RATE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Section 2.5 COMMENCEMENT DATE. . . . . . . . . . . . . . . . . . . . . . . . . 6
Section 2.6 COUNTY. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Section 2.7 DIRECTOR. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Section 2.8 EMERGENCY. .'. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Section 2.9 GATE FEE COLLECTION SYSTEM. . . . . . . . . . . . . . . . . . . 7
Section 2.10 GATE RATE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Section 2.11 HOURS OF OPERATION. . . . . . . . . . . . . . . . . . . . . . . . . . 7
Section 2.12 HOURS OF ACCESS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Section 2.13 LANDFILL. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Section 2.14 MANDATED FEES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Section 2.15 OPERATOR. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Section 2.16 PERMITS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Section 2.17 POST-CLOSURE MAINTENANCE. . . . . . . . . . . . . .
Section 2.18 REGULATORY AGENCIES. . . . . . . . . . . . . . . . . . . . . . . . 8
Section 2.19 SCHEDULE OF DISPOSAL CHARGES. . . . . . . . . . . . . . . . . 9
Section 2.20 SITE CLOSURE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Section 2.21 SOLID WASTE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Section 2.22 SOLID WASTE PROGRAMS. . . . . . . . . . . . . . . . . . . . . . . . 10
Section 2.23 SPECIAL HANDLING WASTE. . . . . . . . . . . . . . . . . . . . . . 10
Section 2.24 SURCHARGE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Section 2.25 SURCHARGE PAYMENTS. . . . . . . . . . . . . . . . . . . . . . . . . 11
Section 2.26 USE PERMIT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
ARTICLE 3. TERM OF AGREEMENT 11
August 30, 1994 -i- DRAFT
c
f
ARTICLE 4. PERFORMANCE OF OPERATOR 12
Section 4.1 OPERATION OF LANDFILL. . . . . . . . . . . . . . . . . . . . . . . . 12
Section 4.2 WASTE STREAM. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Section 4.3 WASTE TYPES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Section 4.4 UNACCEPTABLE WASTE. . . . . . . . . . . . . . . . . . . . . . . . . . 12
Section 4.5 INSPECTION, INVESTIGATION, AND EVALUATION OF
SITE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Section 4.6 PERMITS. . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Section 4.7 STATUS OF TITLE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Section 4.8 GATE FACILITIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Section 4.9 OPERATION OF GATE FEE COLLECTION SYSTEM. . . . . . . . 15
Section 4.10 FEE COLLECTION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Section 4.11 PAYMENT TO COUNTY. . . . . . . . . . . . . . . . . . . . . . . . . . 16
Section 4.12 HOURS OF ACCESS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
Section 4.13 NONDISCRIMINATORY SERVICE. . . . . . . . . . . . . . . . . . . 17
Section 4.14 ACCESS ROADS, HAUL ROADS AND SERVICE ROADS. . . . 17
Section 4.15 LITTER MANAGEMENT. . . . . . . . . . . . . . . . . . . . . . . . . . 17
Section 4.16 ENVIRONMENTAL MITIGATION. . . . . . . . .. . . . . . . . . . . . 17
Section 4.17 RECYCLING/RESOURCE RECOVERY PROGRAMS. . . . . . . . 18
Section 4.18 ACTIVITIES REPORT. . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
Section 4.19 PENALTY SCHEDULE FOR NONCOMPLIANCE. . . . . . . . . . 18
Section 4.20 RECORDS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
ARTICLE 5. PERFORMANCE OF COUNTY 19
Section 5.1 GATE FEE COLLECTION SYSTEM. . . . . . . . . . . . . . . . . . . 19
Section 5.2 INSPECTION OF SCALES. . . . . . . . . . . . . . . . . . . . . . . . . . 20
ARTICLE 6. RATES 20
Section 6.1 BASE RATE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
Section 6.2 SURCHARGE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
Section 6.3 GATE RATE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
Section 6.4 INITIAL SURCHARGE. . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
Section 6.5 DISPOSAL CONTRACTS. . . . . . . . . . . . . . . . . . . . . . . . . 23
. . . . . . . . . . . . . . . . . . . . . . . . . . . 24
ARTICLE 7. PERSONNEL 25
ARTICLE 8. LANDFILL GAS 26
ARTICLE 9. CLOSURE AND POST CLOSURE 26
Section 9.1 CLOSURE RESPONSIBILITIES. . . . . . . . . . . . . . . . . . . . . . . 26
Section 9.2 FINANCIAL ASSURANCES. . . . . . . . . . . .. . . . . . . . . . . . . . 26
Section 9.3 PERFORMANCE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
Section 9.4 SIGNING OF INSTRUMENTS AND DOCUMENTS. . . . . . . . . . 27
August 30, 1994 -ii- DRAFT
i
y
1
Section 9.5, FAILURE TO MEET CLOSURE AND POST-CLOSURE
OBLIGATIONS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
ARTICLE 10. UNINTERRUPTED OPERATION 28
Section 10.1 ASSURANCE OF UNINTERRUPTED OPERATION. . . . . . . . . 28
Section 10.2 LABOR DISPUTES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
ARTICLE 11. DEFAULT, REMEDIES 29
Section 11.1 FAILURE TO PROSECUTE WORK. . . . . . . . . . . . . . . . . . . 29
Section 11.2 CONVICTION OF CERTAIN CRIMES. . . . . . . . . . . . . . . . . 30
Section 11.3 CONDEMNATION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
Section 11.4 RIGHT TO TAKE/RIGHT TO POSSESSION. . . . . . . . . . . . . . 31
Section 11.5 FORCE MAJEURE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
Section 11.6 SPECIFIC PERFORMANCE. . . . . . . . . . . . . . . . . . . . . . . . 32
Section 11.7 NONEXCLUSIVE REMEDIES. . . . . . . . . . . . . . . . . . . . . . . 32
ARTICLE 12. INSURANCE AND BONDS 32
Section 12.1 WORKERS' COMPENSATION. . . . . . . . . . . . . . . . . . . . . . 32
Section 12.2 PUBLIC LIABILITY. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
Section 12.3 OTHER INSURANCE PROVISIONS. . . . . . . . . . . . . . . . . . . 34
Section 12.4 FAITHFUL PERFORMANCE SURETY. . . . . . . . . . . . . . . . . 34
ARTICLE 13. GENERAL PROVISIONS 35
Section 13.1 GUARANTY BY PARENT OR AFFILIATE. . . . . . . . . . . . . . 35
Section 13.2 ATTORNEY'S FEES. . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
Section 13.3 INDEMNITY AND HOLD HARMLESS AGREEMENT. . . . . . . 35
Section 13.4 ASSIGNMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
Section 13.5 COMPLETE AGREEMENT. . . . . . . . . . . . . . . . . . . . . . . . . 38
Section 13.6 NO THIRD PARTY BENEFICIARY ENFORCEMENT. . . . . . . 38
Section 13.7 ARBITRATION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
Section 13.8 CONFLICT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
Section 13.9 CAPTIONS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
Section 13.10 DELEGATION BY BOARD. . . . . . . . . . . . . . . . . . . . . . . . 40
Section 13.11 SEVERABILITY. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
Section 13.12 MASCULINE GENDER USED. . . . . . . . . . . . . . . . . . . . .. . 41
Section 13.13 GOVERNING LAW. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
Section 13.14 NOTICES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
August 30, 1994 -iii- DRAFT
ti
t• ,
COUNTY OF CONTRA COSTA
STATE OF CALIFORNIA
FIRST AMENDED
LANDFILL FRANCHISE AGREEMENT
THIS FIRST AMENDED LANDFILL FRANCHISE AGREEMENT (the
"Agreement") is made and entered into this , by and between the COUNTY
OF CONTRA COSTA (hereinafter "County") and KELLER CANYON LANDFILL
COMPANY (hereinafter "Operator").
RECITALS
WHEREAS, the legislature of the State of California has adopted the Nejedly-Z'berg-
Dills Solid Waste Management and Recovery Act of 1972 and now has adopted the
California Integrated Waste Management Act of 1989, both of which assign certain
responsibilities for the County's solid waste planning, management, implementation, and
regulation to the Contra Costa County Board of Supervisors; and
WHEREAS, on July 24, 1990, the Board of Supervisors of Contra Costa County
approved the Keller Canyon Sanitary Landfill Use Permit No. 2020-89 subject to the
Conditions of Approval, the Special Land Use Conditions of Approval and the Findings
Relative to the Landfill Site Land Use Permit pursuant to the California Environmental
Quality Act ("CEQA") and Adoption of a Mitigation Monitoring Program, each of the same
date; and -
WHEREAS, the County adopted Ordinance No. 88-81, which provides that a solid
waste disposal facility may be operated within the County only upon the approval of a
August 30, 1994 -1- DRAFT
franchise agreement by the County or upon the operator of a landfill entering into a contract
with the Contra Costa County Board of Supervisors to prepare the site and operate such
facility; and
WHEREAS, on 4 December 1990 County and Operator entered a LANDFELL
FRANCHISE AGREEMENT ("Landfill Franchise Agreement") in accordance with the
requirements of County Ordinance No. 88-81, and to implement the requirements of Land
Use Permit No. 2020-89, which Landfill Franchise Agreement has been amended by
Amendments Nos. 1 through 10, inclusive, thereto; and
WHEREAS, recent United States Supreme Court cases decided under the Commerce
Clause of the United States Constitution generally prohibiting states and their political
subdivisions from erecting barriers to the free flow of solid waste (and thereby discriminating
against interstate commerce) significantly affects the solid waste industry, and affects the
parties hereto in that some of the provisions of the Landfill Franchise Agreement,
particularly the provisions regarding the County's regulation of rates, may no longer be
appropriate or necessary given the current competitive nature of the solid waste industry as a
result of said recent Supreme Court decisions; and
WHEREAS, the parties now desire to amend certain provisions of the Landfill
Franchise Agreement;
NOW, THEREFORE, the County and Operator, for and in consideration of the
covenants and agreements as hereinafter set forth and for other good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged, do mutually
agree as follows:
August 30, 1994 -2- DRAFT
ARTICLE 1. INTRODUCTORY PROVISIONS
Section 1.1 RECITALS INCORPORATION. The Recitals set forth above, and all
defined terms set forth in such Recitals and in the introductory paragraph preceding the
Recitals, are hereby incorporated into this Agreement as if set forth herein in full.
Section 1.2 EFFECTIVE DATE. EFFECT. This Agreement is effective on.the date
mentioned in the first paragraph of page one hereof, and as of the effective date, replaces
and supersedes the Landfill Franchise Agreement, but does not nullify the Landfill Franchise
Agreement for the period preceding the effective date of this Agreement.
Section 1.3 CONDITIONS OF APPROVAL. Operator acknowledges and agrees
that all of the terms and conditions of the Use.Permit's Conditions of Approval and any
amendments thereto, are reasonable, legal and valid and that Operator is barred from any
action or proceeding or any defense of invalidity or unreasonableness of said Conditions of
Approval and any amendments thereto, and related County decisions. Further, Operator
agrees during the period(s) that the Use Permit (and its Conditions of Approval and any
amendments thereto) or this Agreement are in effect, Operator will not attack or otherwise
assail the reasonableness, legality or validity of any terms and conditions of said documents,
or of any provisions required to be included in this Agreement by the said Conditions of
Approval and any amendments thereto. The parties acknowledge that the agreement by
Operator in this section is a material consideration for County's approval of this Agreement.
Section 1.4 OPERATOR ACKNOWLEDGMENT. Operator acknowledges and
agrees that this Agreement and the Use Permit (by the incorporation herein of the Use
Permit) provide for and allow (among other things) funding for mitigation, provision of
August 30, 1994 -3- DRAFT
closure and post-closure costs, payment to County of annual franchise revenue fees, and
otherwise payment to County and reimbursement of County costs for its governmental
administration of the project entitlements.
It is understood that, among other things, this Agreement provides for Operator's
establishment of its proprietary rates to enable Operator to compete in a solid waste disposal
market that has become highly competitive as a result of recent United States Supreme Court
decisions. This Agreement also acknowledges that sub-county service areas have not been
established.
Section 1.5 COUNTY DISCRETION AND INTEREST. Notwithstanding any other
provision of this Agreement, Operator acknowledges that County's discretion to grant,
approve or deny one or more nonexclusive or other franchises or similar agreements for
others is not limited or abridged in any manner by this Agreement; and that this Agreement
does not require the approval of any such other franchises or agreements by Operator.
County reserves the rights as part of the negotiation and.entry of any such other franchise or
agreement to enter a public-private or public-public partnership with other landfill owners
and/or to pursue any rights of the County to require ownership of those landfills or this
Landfill. _
Section 1.6 USE PERMIT OPERATIVE. Upon the effective Date of the Landfill
Franchise Agreement, the Use Permit became operative pursuant to the conditions of the Use
Permit, entitling Operator to all rights and privilege thereunder.
Section 1.7 NO PREFERENTIAL TREATMENT. With respect to material terms of
the relationship between the County and Operator, the County shall offer to Operator terms
August 30, 1994 -4- DRAFT
at least as favorable as those agreed upon by the County with the operator of any other
landfill within the County with whom the County is currently negotiating or may negotiate
within the Term of this Agreement. If any such material terms are determined for such other
operator subsequent to their determination with respect to Operator, the County shall offer to
amend such terms with respect to operator.
ARTICLE 2. DEFINITIONS
Section 2.1 AGREEMENT. "Agreement" shall refer to this Agreement and is
synonymous for purposes of this Agreement with the word "Contract".
Section 2.2 ACTIVITIES REPORT. The "Activities Report" is a summary
document reporting Operator's activities and overall performance during the preceding
Analysis Period or over such period of time as set by the County. The Activities Report
shall summarize landfill related activities, including, but not limited to: compliance with the
provisions of this Contract and all applicable Permits and Regulatory Agency Requirements,
complaints and corrective actions taken, litter management, landfill gas project update,
wastestream volumes and analysis, operations and safety training, recycling/resource
recovery efforts, Closure Trust Fund status and balance.
Section 2.3 ANALYSIS PERIOD. "Analysis Period" refers to the twelve (12)
consecutive calendar months beginning the first day of January of each year throughout the
term of this Agreement. The first Analysis Period, for the purposes of this Agreement
shall begin on January 1, 1994.
Section 2.4 BASE RATE. "Base Rate" shall mean the proprietary fees charged by
Operator to dispose of Solid Waste or any other waste at the Landfill.
August 30, 1994 -5- DRAFT
Section 2.5 COMMENCEMENT DATE. "Commencement Date" shall mean the
date upon which the Landfill first accepted Solid Waste for disposal under the terms of the
Landfill Franchise Agreement and the Use Permit.
Section 2.6 COUNTY. "County" shall mean the County of Contra Costa, a political
subdivision of the State of California.
Section 2.7 DIRECTOR. "Director" shall mean the County Administrator or his
designated deputy, other County officer or employee.
Section 2.8 EMERGENCY. "Emergency" shall mean a sudden, unexpected
occurrence involving a clear and imminent danger, demanding immediate action to prevent or
mitigate loss of, or damage to, life, health, property, or essential public services.
Emergency includes such occurrences as fire, flood, earthquake, or other soil or geologic
movements, as well as such occurrences as riots, accident and sabotage.
Section 2.9 GATE FEE COLLECTION SYSTEM. "The Gate Fee Collection
System" shall consist of all equipment, hardware, and software utilized for purposes of
assessing, collecting, and accounting for Tipping Fees for the disposal of Solid Waste at the
Landfill.
Section 2.10 GATE RATE. "Gate Rate" shall mean the fee charged per ton to
dispose of Solid Waste, or other waste at the Landfill. The Gate Rate shall be the Base Rate
plus Surcharge and Mandated Fees, if any. "Gate Rate" shall be synonymous with "Landfill
Tipping Fee" and "Tipping Fee."
Section 2.11 HOURS OF OPERATION. "Hours of Operation" shall be those times
during which the use of heavy equipment and other machinery necessary for operation of the
August 30, 1994 -6- DRAFT
Site in compliance with the Use Permit, the Solid Waste Facilities Permit and this Agreement
will be allowed.
Section 2.12 HOURS OF ACCESS. "Hours of Access" shall be those times during
which Solid Waste may be delivered to the Landfill for disposal.
Section 2.13 LANDFILL. "Landfill" shall mean the Landfill described in Exhibit A
where the disposal of Solid Waste will occur. For purposes of this Agreement, "Landfill"
shall be synonymous with "Site."
Section 2.14 MANDATED FEES. "Mandated Fees" shall be those monies required
from Operator from time to time by any Regulatory Agency for the purpose of funding (a)
Federal, State or regional programs, (b) programs required by the Land Use Permit, or (c)
other County established fees.
Section 2.15 OPERATOR. "Operator" shall mean the holder of the Use Permit or
its assignee.
Section 2.16 PERMITS. "Permits" shall mean any and all governmental approvals,
entitlements, clearances or classifications, including but not limited to, the Use Permit,
general plan amendments, environmental impact reports, zoning approvals, conditional use
permits, waste discharge permits and requirements, facilities permits, permits to operate,
permits to construct, closure plans, building permits, encroachment permits, grading permits,
tree removal permits, tract/parcel maps and all other governmental permits, consents or
approvals as may be necessary to allow Operator to construct and operate the Landfill.
Section 2.17 POST-CLOSURE MAINTENANCE. "Post-Closure Maintenance" shall
mean those activities as required by law to be undertaken at the Landfill, following Site
August 30, 1994 -7- DRAFT
Closure to maintain the integrity of containment features and/or to monitor compliance with
applicable performance standards as specified by law.
Section 2.18 REGULATORY AGENCIES. "Regulatory Agencies" shall mean
Federal, State and local agencies responsible for regulating the operation and maintenance of
sanitary landfills, such as, but not limited to, California Integrated Waste Management
Board, California Regional Water Quality Control Board, California Department of Health
Services, the Contra Costa County Department of Health Services as Local Enforcement
Agency for handling and disposal of Solid Waste, the Bay Area Air Quality Management
District and the County.
Section 2.19 SCHEDULE OF DISPOSAL CHARGES. The "Schedule of Disposal
Charges" shall mean a list of waste types and corresponding fee amounts to be charged at the
Landfill for disposal of waste types.
Section 2.20 SITE CLOSURE. "Site Closure" shall be the cessation of Solid Waste
disposal at all or portions of the Landfill and subsequent operations necessary to prepare the
Site for Post-Closure Maintenance in accordance with law, Regulatory Agency requirements
and Permits.
Section 2.21 SOLID WASTE. "Solid Waste" shall have the meaning set forth in
Section 40191 of the California Public Resources Code as it may be amended from time to
time, as follows:
"40191(a) Except as provided in subdivision (b), 'solid waste' means all
putrescible and nonputrescible solid, semisolid, and liquid wastes, including
garbage, trash, refuse, paper, rubbish, ashes, industrial wastes, demolition and
August 30, 1994 -8- DRAFT
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.
"(b) 'Solid wastes" does not include hazardous waste or low-level radioactive
waste regulated under Chapter 7.6 (commencing with Section 25800) of
Division 20 of the Health and Safety Code.
"(c) 'Solid Waste' does not include medical waste which is regulated pursuant
to the Medical Waste Management Act (Chapter) 6.1 (commencing with
Section 25015) of Division 20 of the Health and Safety Code). Untreated
medical waste shall not be disposed of in a solid waste landfill, as defined in
Section 46027. Medical waste which has been treated and which is deemed to
be solid waste shall be regulated pursuant to this division."
Section 2.22 SOLID WASTE PROGRAMS. "Solid Waste Programs" shall mean
those programs directly related to solid waste which may include: transfer stations, household
hazardous waste programs, recycling and resource recovery programs, Agreement and Use
Permit administration costs (including legal, engineering, and accounting and other costs of
the County).
Section 2.23 SPECIAL HANDLING WASTE. "Special Handling Waste" shall mean
certain Solid Waste materials permitted for disposal at the Landfill which, because of their
volume or type, will require special handling by Operator such as, by example only, sewage
sludge, tires, fencing, large appliances, large dead animals, concrete and asphalt. All Special
August 30, 1994 -9- DRAFT
Handling Wastes accepted at the Landfill shall be specifically identified in the Schedule of
Disposal Charges.
Section 2.24 SURCHARGE. "Surcharge" shall mean a special charge as required
by the County and this Agreement, for funding of Solid Waste Programs, closure of.landfills
in operation prior to 1990 and for franchise fees and other costs as deemed appropriate by
the County.
Section 2.25 SURCHARGE PAYMENTS. "Surcharge Payments" shall mean those
monies received by Operator as a Surcharge and remitted to the County in accordance with
the terms of this Agreement and of the Permits.
Section 2.26 USE PERMIT. "Use Permit" shall mean Contra Costa County Land
Use Permit No. 2020-89, together with all Conditions of Approval applicable thereto,
including any amendments thereof.
ARTICLE 3. TERM OF AGREEMENT
This Agreement shall remain in effect until 38.4 millions tons of waste have been
disposed of in the Landfill, or such lesser time as may be prescribed by law. It is the parties
intent that the term of this Agreement shall be the estimated life of the landfill expressed in
terms of capacity as of this date: 38.4 million tons less the tonnage of waste disposed of
prior to the effective date of this Agreement.
ARTICLE 4. PERFORMANCE OF OPERATOR
Section 4.1 OPERATION OF LANDFILL. Operator shall operate the Landfill, in
strict compliance with, and subject to, the terms and conditions of this Agreement, the
Permits and other applicable requirements of Regulatory Agencies.
August 30, 1994 -10- DRAFT
Section 4.2 WASTE STREAM. Nothing iri the terms and provisions of this
Agreement shall be construed to grant rights of exclusivity with respect to Solid Waste
generated in any geographical portion of the County; nor shall this Agreement preclude or in
any way restrict the County from entering into substantially similar agreements with other
parties for Solid Waste disposal operations at other locations; provided that the terms and
conditions of such other agreements shall not be substantially more favorable to the other
operators than the provisions of this Agreement.
Section 4.3 WASTE TYPES. Operator shall operate the Site in strict compliance
with the Permits and laws; provided, however, Operator may refuse to allow the disposal of
certain categories of Solid Waste after obtaining approval by the County, which approval
shall not be unreasonably withheld. Operator shall provide sixty (60) days' notice to all
affected parties prior to proposing County approval of Operator's tentative decision to
disallow disposal of the affected Solid Waste.
Section 4.4 UNACCEPTABLE WASTE. Operator shall not allow disposal at the
Site of material other than waste allowed by and subject to the terms of all Permits and laws.
It is recognized that some non-approved materials, including certain hazardous wastes, may.
occasionally be unloaded at the Site by users thereof. Operator shall train its on-site
employees to recognize such unacceptable wastes and materials. In the event that
unacceptable waste is deposited at the Site, it shall be handled and removed by Operator in
accordance with procedures which shall be developed by Operator and submitted to the
County for approval prior to the Commencement Date. Nothing herein is intended to relieve
the person or persons depositing or causing to be deposited such unacceptable waste from
August 30, 1994 -11- DRAFT
any liability. Operator retains the right to use all legal means to recover costs of removal
and alternate disposal or treatment from such person or persons.
Section 4.5 INSPECTION, INVESTIGATION. AND EVALUATION OF SITE.
Operator acknowledges that it has and shall continue to inspect, investigate, and evaluate the
Site regarding its suitability as a Solid Waste disposal site.
The Site shall be immediately accessible at all reasonable times to Regulatory Agency
officials for any reasonable, lawful and proper purpose. County officials shall usually give
reasonable notice to Operator of their intention to visit the Site or if such notice is not given,
shall notify Operator's on-site personnel of their presence on the Site.
County shall not incur liability arising from the discharge of its inspection
responsibilities, either by commission or by omission, except for its tortious conduct or
breach of duty resulting in death, injury or property damage while engaged in its inspection
responsibilities. The inspection of the work shall not relieve Operator of any obligation to
perform under this Agreement. Operator shall remove and replace or repair any work not in
compliance with those Permits, laws, ordinances or regulations applicable to the Site.
Section 4.6 PERMITS. Operator shall obtain and maintain in force all necessary
Permits and/or other approvals from the Regulatory Agencies for the Landfill.
Upon receipt of each such Permit or approval, a copy thereof, together with all
conditions or requirements attached thereto, shall be delivered by Operator to the Director.
Section 4.7 STATUS OF TITLE. Prior to the Commencement Date, Operator shall
provide to the County reasonable evidence sufficient to establish that Operator is in
possession of and/or has the right to use the Site for the purpose contemplated.
August 30, 1994 -12- DRAFT
Section 4.8 GATE FACILITIES. Operator shall supply, construct and thereafter
maintain gate fee collection facilities. The facilities shall be designed and located as
necessary so as to expedite the fee transactions and shall be attractively finished and
landscaped. The facilities shall be consistent with the Use Permit for the Site.
Operator shall supply, construct, and maintain truck scales as necessary to expedite
the fee transactions, prevent traffic back-up, and allow for occasional maintenance and
repair. The scales shall be compatible with the Gate Fee Collection System approved by the
County, in accordance with Section 5.1 of this Agreement.
The scales shall be open and in working order during all Hours of Access at the
Landfill. The sole access to the Site for vehicles carrying solid waste shall be the Landfill
entrance, and all waste disposal vehicles shall be recorded by the Gate Fee Collection
System.
Operator shall make provisions for quick repairs of the scales by competent
technicians to minimize downtime. The scales shall meet all State requirements for design
approval and accuracy for State certified scales. Only those scales functioning in accordance
with all applicable regulations shall be used. Operator shall obtain the State of California
certification for scale accuracy.
Operator shall supply, deliver and maintain utilities to the Site and shall be
responsible for all on-site and off-site costs and service charges in connection therewith.
Section 4.9 OPERATION OF GATE FEE COLLECTION SYSTEM. Operator shall
operate the Gate Fee Collection System, including the providing of all labor and materials
necessary with respect thereto. Such operation shall be for all Hours of Access.
August 30, 1994 -13- DRAFT
Section 4.10 FEE COLLECTION. Operator shall collect, count and account for all
Landfill Tipping Fees and waste quantities from each user at the Site. Said fees shall be
collected in accordance with the rates applicable pursuant to Article 6 of this Agreement. In
the event that no scale is operable at any given time, vehicles will be charged based upon the
weight certified by the originating transfer station or based upon a flat fee or volume fee
schedule established by the parties in advance.
Operator shall furnish the County with monthly reports on the number and types of
vehicles and waste tonnages and/or volumes, as appropriate, of the various types and Gate
revenue.
Section 4.11 PAYMENT TO COUNTY. Operator shall pay the Surcharge Payments
required by Article 6 to the County monthly in arrears. Operator shall pay the Surcharge
Payments to County within thirty (30) calendar days after the close of the prior month in
which they are collected.
Section 4.12 HOURS OF ACCESS. For purposes of this Agreement, unless
otherwise required by the terms of the Permits, Hours of Access shall be those specified in
the Solid Waste Facilities Permit. Should the Director declare that an emergency exists,
Operator shall keep the Landfill open as instructed to allow for the orderly disposal of Solid
Waste generated or created by such emergency conditions at no additional charge or increase
in the Gate Rate. The scheduled Hours of Access may be changed in a manner consistent
with permit requirements.
Operator may, in its sole discretion, observe the following holidays and close the
Landfill: New Year's Day, Easter Sunday, Memorial Day, Independence Day, Labor Day,
August 30, 1994 -14- DRAFT
Thanksgiving Day and Christmas Day, or other major holiday as approved by the Director.
Section 4.13 NONDISCRIMINATORY SERVICE. Operator shall provide
nondiscriminatory service for Solid Waste disposal to all users, and shall abide by all
Federal, State and local laws and the Land Use Permit.
Section 4.14 ACCESS ROADS. HAUL ROADS AND SERVICE ROADS. It shall
be Operator's responsibility to provide and maintain all roads required on the property for
purposes of transporting refuse to the actual point of disposal, or transporting earth materials
for fill within the Site, and such other roads as may be constructed for its convenience. Haul
roads shall be well maintained. The surface shall be reasonably free from potholes and
depressions. A safe, all weather access to a disposal area shall be provided at.all times.
Section 4.15 LITTER MANAGEMENT. Operator shall maintain and keep the Site
and its access road reasonably free of litter and other refuse. Operator shall be solely
responsible for maintaining the Site in a clean and sanitary condition, and shall be
responsible for any public nuisance created as a result of its operations.
Operator shall control on-site and off-site litter or debris in accordance with the Use
Permit and the Solid Waste Facilities Permit.
Section 4.16 ENVIRONMENTAL MITIGATION. Operator shall comply with all
environmental mitigation measures reasonably and lawfully imposed by Regulatory Agencies
including those imposed by the Use Permit.
Section 4.17 RECYCLING/RESOURCE RECOVERY PROGRAMS. Operator shall
cooperate with the County and reasonably participate in satisfying the ancillary waste needs
of the County, including participation in a County sponsored recycling/resource recovery
August 30, 1994 -15- DRAFT
plan and litter program, and/or any other activity which the County deems is appropriate for
inclusion in the County Solid Waste Programs.
Section 4.18 ACIEDi FS REPORT. Operator shall, by the first day of January of
each year, assemble and provide to the County the Activities Report for the most recent
Analysis Period. The Board may direct,_upon ninety (90) days written notice to Operator,
that the report provided in the Activities Report be made semi-annually.
Section 4.19 PENALTY SCHEDULE FOR NONCOMPLIANCE. In the event that
noncompliance by Operator with any condition or provision of this Agreement, or any
applicable Permits or Regulatory Agency requirements is determined by the County, County
shall notify Operator of the identified noncompliance.
Following notification of noncompliance, the Director may impose penalties per
noncompliance upon three (3) days notice to Operator in accordance with the following
penalty schedule until such time as compliance is achieved:
$ 500.00 per day during the first week of noncompliance
$ 750.00 per day during the second week of noncompliance
$1,000.00 per day during the third week of noncompliance
$1,250.00 per day for each day thereafter.
At the time the Director imposes any penalties, the amounts due for each day of
noncompliance shall be the above amounts subject to annual CPI adjustments, the applicable
index to be reasonably selected by the Director.
August 30, 1994 -16- DRAFT
Notwithstanding the above three paragraphs, no monetary penalties will be imposed
by the County in the event that Operator and/or said Regulatory Agency are diligently
pursuing the process of correction or mitigation of the event(s) causing noncompliance.
Operator shall have the right to arbitrate any action taken by the County under this
provision in accordance with Section 13.7 of this Agreement.
Section 4.20 RECORDS. Operator shall keep separate and accurate records for the
Landfill as provided in the Use Permit.
The County may, at its own expense (which may be recovered as a Solid Waste
program cost), at any time during the term of this Agreement, have the books and records of
the Operator examined for the sole purpose of verifying Operator's compliance with the
requirements of this Agreement. County shall give thirty (30) days written notice to the
Operator in advance of such examination date.
ARTICLE 5. PERFORMANCE OF COUNTY
Section 5.1 GATE FEE COLLECTION SYSTEM. The computerized Gate Fee
Collection System, which shall be provided by Operator in accordance with Section 4.9 of
this Agreement, shall be approved by the County, which approval shall not be unreasonably .
withheld.
Section 5.2 INSPECTION OF SCALES. The County may, from time to time during
regular business hours, inspect the scales and test the accuracy of same.
ARTICLE 6. RATES
Section 6.1 BASE RATE. The Base Rate shall be determined and established by
Operator at its sole discretion. Notwithstanding section 4.13, it is understood that the
August 30, 1994 -17- DRAFT
Operator need not charge a uniform Base Rate to all customers, but may vary the Base Rate
as between different customers based on various factors determined by Operator, including,
but not limited to, the quantity and type of waste delivered by each customer to the facility
and whether each customer has entered into a disposal agreement with the Operator.in which
the customer agrees to dispose of some or all of the customer's future waste stream at the
Landfill.
Gpemter sheR at all times maintain on fHe %4th the Gounty, et sehedule of Base Rates
Swfien MAeme M
pfeprietuy er Base Rate. The sehedule may iftelude a stawlard Base and Gate Raw wh
whedule ef Base and Gate Reft shall be updated widtift ten days ef material me&fieatien
Base-md-Gate Rate, and entering ef a dispeseA agr-eement er- ethef- agreement with new
eustetHer.
> the Gounty,
August 30, 1994 -18- DRAFT
and the
and Gpemter- shaR provide
• Tewffds this end, Gounty may Fequest,
.
Section 6.2 SURCHARGE. The County may determine and establish at least once
every two years, effective on the date determined by the Board of Supervisors, the
Surcharge, which shall be added to the then applicable Base Rate, and collected as part of the
Gate Rate. Operator will be provided at least ninety (90) days' written notice of any newly
established Surcharge. In the absence of the County establishing a particular Surcharge
amount, the Surcharge to be collected by the Operator for the County shall be thirty percent
(30%) of the then applicable Base Rate.
Section 6.3 GATE RATE. The Gate Rate shall consist of the Base Rate, Mandated
Fees, and Surcharge.
Section 6.4 INITIAL SURCHARGE. Effective on the effective date of this
Agreement, the Surcharge shall be:
a. a% of the Base Rate less the amount of all Mandated Fees imposed and
received for use by the County with the exception of Mandated Fees imposed for 1) any
household hazardous waste program, 2) any fee imposed pursuant to Public Resources Code
section 41901, as said section is amended from time to time, for preparing, adopting and
implementing a countywide integrated waste management plan ("AB 939 Fee"), or any future
similar waste management fee, and 3) fees imposed pursuant to sections 35.1 and 35.2 of the
Use Permit. (It is the parties' intent that the fees described in the preceding sentence shall
August 30, 1994 -19- DRAFT
not be a "credit" towards the % surcharge.)
The parties understand that any fee which may be required in accordance with Section
35.3 of the Land Use Permit (Property Value Compensation Program) are Mandated Fees.
.
r • � ,+mss}.}:,:::;:::�:r{.:: :....,...;.. {s:.: -.«x.:::::::>:<. "�...''
}::::};?:?.,...,,.....•r.,.,v,.,,r:,-v::.......:..:.........::......................:..h..-r...::..-,....-,:..::..•'•.,.:..,:.:},,,,•.'i..:',�.r.r�.t:.t•�:�•.•••,�~:.:.?}�r•;£`::s;::N.;a,,:.:.w.,,:....rw:,..v:.}w}}:::::c:?.w'!4.-A," +„w:}ahh�r,�.r.3•��k27�2•;::
;.rf. .;4:QC .ytt ,.sy.:. �. ..r:i- :-•r•;{.:.k?::::..r4:i: 4w >:..:....:. .t_ ........ r
• %i��rr77��E��4 �'�`�If�C:��rv��..`} INN' "t�'lA:'� �` .���.:.4it�lid. .,:�:'�.
... ,�3:r:::' '.'w•, :k..'•£C`~{'4;c4kkrz?.ffi££+'::k?rti. •..k x.:•>.:s'a:':TA:t.+:k?�o-'.a:2{wt?:£c.:c :•��d�`,��c#§LkS�2Jctxcl':ak"E.
�Q.'f v - :+{-::}i['{ .ti�'J.S:t}••:• {r.}:v.x.}.ut.{.ti:?:p:{4whtr.;Yi... .::Z::`-,`{.:-Y.yv:;::�•';:4:•'fFi:•:{:}:•}.....:.�;.. ,.v..}ii?%+'IV::�:4a.ti4...
":{=.',�,r:�k`idx.�{e3*7.4oJNi�,..`:::::...,.......,...::niti::h:,:vv.:,..�'4:rrwct,.fi{•xt4xh�.a.tart},c�:a:\,ra�eraesa3e"\^-i;�r- '\W'Zw,w.,•:...'t{aEcVaa..rh��c Debrha����� .,ek3o�0d
.. •„:.t:,ter: ,v-.,•,••. -
......�. •, .: ....,.??:;??;??{:4:4:?•i:?4???:???S•:•.:•.,,,?vv:���:•:•.v.:�•.•.•....:............,�:i•'....\\.+.. .. \. ,..... .4�-.:vt?..:i:iv:...::...........r....,........,..v...x?:.M::.Jv"}.{:vi.
,,,,., •:4\ti{iAv:+r.4i'•kisk�:+::vv?:;vvj}i?ii?:i<.i?}::...v:.vv::.v:.;?;4}??i:. ,?£.rti r\}:{•}?i:,v.,
....: ..4.n:t:•:r:{:.w,.•:•r•}•:.}::rr�:rr}-t-Y:•.r• :::.•:::.y::::.:r...::.?}:•::;:?...........:.,�:•r:r:t•}'4???.,.?:....::::::..::::.::::r:r:--:.:;;:r:�.}:.:;-?::;.::...:.:;:;:..;..:r:-r,.
f{{N'•+:ut7••.. .r.::t :.:•::t�:R f:..:..r...:..:. ;:r;r,.,:z't'.:::•} :�..:..;,�. •:.f•::::..r.... ......... : � :.>:{
w .}...w.,.::?:.�.:..,..�::r..h?:\.�e}�{a.4,c4wx{4.,•..srf,4:.{ta:cceca .r w..S.,..,nrr,�,o}}:3}..uu..c;r�:aae-r,vfi,oco-ww SoaaaLxv;.vah..c.,.ZcwSwx,{{cooww����wwbo b
fF. � •.:•.z�yy. r::r:.•. ,,, ... n.,�....:% ,y a� w:::�v:{:. n:r...: ..:r....ti}.,,:., '.:':;.y:
..:..........,.........v..h.-,wa •}w.v}k3'x.Vn.:...............r}y::.
r.:..v vr.. ..v•r:.,..v.:rw:.v:r.:;:nvnv:hw.}':i'-}:t;•}in\: ':h:.}:4...v-..�.:-v:-....;:-:.:. .:}i...,....}?:<:i<i4}.v:}:C<;::::::':
..:. '. � �...:..�:� .-�'.l-•'.•::� :: .e:.:;�p � � .,�. •�da€t:•� r<�3c��' , k.�#I <� .t `� ��: `"tom .
b. For Solid Waste received at the Landfill via the Acme Facility, the Keller
Surcharge and any other Keller Mandated Fees shall be collected at the Acme Facility
together with the Acme Surcharge and any other Acme Mandated Fees.
August 30, 1994 -20- DRAFT
Section 6.5 DISPOSAL CONTRACTS. For all contracts for the disposal of Solid
Waste entered by Operator, the Surcharge applicable at the time of the disposal contract shall
apply for the life of said disposal contract. The parties agree that any later established
surcharge amounts shall not apply to waste received pursuant to such Solid Waste disposal
contract for the life of said disposal contract.
Operator shall advise County of any disposal contract subject to the privileges of this
section immediately upon execution. Operator shall provide County with any and all
information requested by County concerning any such Contract, including providing County
with copies of such contracts upon request.
.. .,,. ,}..�.Y.:y........ _ ...4.. .M1;4?:%4•a:•K;:,Fo:�.;-.,,;,..... , ;._...v$;.�;4•Ys..••:i;.-:4, :•%a;::•rt:r.?:x•,+•,t•4•.<•}r�:'
-:i
• �;:::C4{:•-'�i•- +.a ��'}:%`-::! �:: �';'�J.�:} :��ii:::"',--11i1{.,..`.•'�.U1;k.t...,i:1;; ..?
• �Q •• :.•_ Kfi'f.;K;.xY }K. ; ...yyre,:}�� � +stwrrM:....,.,,yy�3�` 'CaoY•my/•f". f, t:, rrc`-'aal:;,a;"J;.
.+,,.:.sc,.::a.Yii':v 2.-"Adt;,., xV...:,ast::.o-.G,,"}fc,:::•:::•. :.:....: :... : ..:
...+:•••• .w: ;,v.A4.3%4:�:.!,Gx..Wi:"hL.}�:..,•i:.f..ii>:G:-iA.;...:�}}+i}Y:J,+�.?ff>J..S
..`�� `f`?{°o-y��',. • * 'h X^K9�'a` 'Sa?�.,$:n,, r n �1}yY�✓.j�T -1-�+r K�• 9 Y:
,,,- �,�ilir ..•,'��.+:..•,,.L:r�,,a�� t � �I,: k .,.,�,.3,•:••'•'KtVI:L�.�.��.
•,+:•.,A.:;Ccu,•,.u...::,,CCeeaJ:M}:.::..:..,,.. ....::.s�};<;e:r':w}.+s:.F::.,.i;:4:h:r.,r::.,:.•.x:�t.:t c:::•}.c.x�:}:`,:,:wa.a:a.:::::};+C�:12<':�,+;�:�,,w:.:}:::::}:,}3•r.:,:},^.v:..+•%:;:;:.::_::.:....,T.Sr;:.Lf }:v)r.•}f
•�Si-:,.7:::i.:;;:is4+::;::}:L;-is3�:%}.;.;:.}:->5::r:::;;:-:;-::;-;::•w}:•%•:it:t-_rr.........+,..:.::::::.':,:..,::::•:,J,..::....._....,..:.ctti:::�>'•:::!-::4-::-,::>:::::•::::.:::;:4};i::::}:::::}: :<'?........:.............::;:c.:?...:r.,.._......
':#... £:">'::Y1»:Y.r/.{•N�"}r.• ',2j�"' CY"." .'.`Y -',Y.• .,b' rr.^Y. i2J r':a?.Y.
� ..:•- vv:'::• v....;}%.:ivA:n:}:.:vvnv.:v.:: ..............}:iii?:::•}::•}:i}:•%O:iNi}}::.._.._....
:: n.w-%;vh:v-:}i:-.vv}:J::•}:-iiiiii}i......}}}}}};:C:::-•;v}'f.N:}i:::.v\v:}\.x\�....w....n..v!�rr:fi::.v:::::::...... rr:::::::::.vn:::
'M` .v :. "-0w. .: �:...SkK!:1:t:1r-... �' f S:?.q/iY{P}Y. '�Yri'%: ) rr'�.iMvf`l�Jvw c�9f<..i. ' k' :7:.` K+:y"cY.£S ,y""✓:�?f }..-:',:�
t-•:--,.,,,.x,x.v...,�,....,,�-Y.,w::;,:.,.::::.:».:«:.}}i:.............:...:r.,;:%.%S,K;.:!i-<:%i.}%;;:,.:....,,%.:,<:;.�;::,,...,}..,:..,�..,..,.�......... ---�k�.�lti...:}%.}:;:r,:;%.;;;:-:;4::<it:::...:}%u�;,;�;-:!.::!.:,:......
...rr r+r'w wn,.-}, ::..-.;_._.,-.i+,K.<•%".'-::::'ta r::--•-•'aw:'•..,� y:��:•;.!: n-+r,!- OrattIX:,: ::Cf4A�;x'-;...ry.-}_x.hvP:awi�Y,:i K4._.K±sc�x!fixr,<:;c{.;
4:'::-.:?c7.csc- Yto?.' E a'• `2?"--:Y nfa�'.... ... "^•.nc: 'F'... -
�..t�`ci�`.•° �.. ...�'. �th�<` { i��:�-�.'�1�:.. _:. . -::t��•.::c���:� tdc:::.:: �'��Qiti•�:��`•? t �► �`: t
}�t"Vh'ki2;T:" :'.'.7-.`!::"• .S:::i`i}-43}�;ia+.:}kjc."':r}h,:•.i.:::}`Y.•�;o+':a' '.+}:",d7.o�.:.. .,�,�,`:...:,itlSy+.»}.vi:R2?x}'!�R>,">:�F?r.:'. »:;:fi:..;er-:.::i7rr f^c.}•...;4?{iaf R: �... ,:y�2�}3oy .•„r• .
»:•}:yYn::.•r:r.:,•fi;o•%;+%,> ;.Y:.!;:%cr.:.>-^%::.;.....:.,;?:xr"^,ro};r. ..::}r!o}.4....!x�•;%�r:a: :fs. Y •.:•rraY.ecr�::tom}:!;�;a•,- ...»>:^y,:.+Y::;:.:. .. ..!yY.:y7kow::
-::;;m,y�:5::::::ii..v:p:4:�.G•:,i•:.4:,•::•::•:•:!�yi.}{•-:,:/}:�4::•: Sii;:::.:-:n..�:•N•• <, J.„r;. �Y'.St�v,: Sry _ ::1.,:p••r¢.. .. i'Y'.� •}:•Y•F.%.:...�:is4nY}:•
.vLv..-%...xwrC:.y:::v,:w;:::w•y}}}i-•:::-.i--ry}}n;:;4.\,;.:i;.y w::b}:at•44r•.}:xx%h'•}%+:":!:':,S:r.. n}%w.xv%.}?w:-.}Y.-KV?SVyn;•%.w:••.}:'+i%rJ :}::1.{yY..}...+f.}};::�'fi'r{!^r '
�fj�,�:j:.f:.�:.,�%�••Y`•�.::oyt�a.+%a}.•}}�x;•�.}Y::is,Krtc;.%. ;i�.`.[.y:�,•{::�,..xm:•••}#w:�%::+%.::.,»rry+w;.}: •^;w• }%:}}�,�+j%y%��%�4y. r .::fco::":%........;-:x%.:,x..:.,..,.:•.:...::�.,.',.�.iy�r.}.,>�},::�-.}...!.y>r{.:�r,�:-:�::`} r�,:{,.�y.,K
2i3C'%��1.�Nr�+�?��:Q1.�:iF1t ?:iA�lLft -?iV}�ti:��....'fi'�:,'��:i�:.{'�L+ik7��.....��>.:: .�: d:v:�:�R'L�:::;7:#R�l�a�•r:•.�~.' '\�i2S�G �v
August 30, 1994 -21- DRAFT
; • , -
v:::•::::::::::.-v:.:::::•:x:v::};'::::::::::i^}S:L>}:::?i}}i:-'i'is"4:-}Ti}Y..::.:::.:.:........::::::.....::.....:::::::::..:..
v!\'h7id;::`ial%T�I:.C113 � 'V.7::i .'.)CA:t3�i#:�-i':�:V'.-I:CRs.�: :: �':YY:�/AS:i-1R13��i:C. .-'1\M-'117:��3.Vksi- :..�lRi.\fAi✓i7'::R'k•711:::K::' Lli.K.AR:
v:.,v:vv....:•v._n-:::.:�.w::n_:..gin n..v..: .... v:::: K::v::-v::::::v \ 1.........,Y.:...h.....,..:...�' .�.n;n...
.�:..:s.a..w>.J.yw.:oY.::iwk.::.:...:..,.':::;a•:.:i:.i%;::•.=i.3:wY::i. � .-::;:i>:Gi
'�tc�;i.i:`»�i'a.dN>..;s'•S#.Giw:,�„i3t3:..>.ia':;:' vS+::wi;:;;:::,..>.•:3:<::,•::;`:.':•.v., avia.'ah'K:"'-:::Sia;;St` ka'•ca:w-:aiaSuo-i+o�.i.axaxaoo:ai;a.6cSi^S• lt`.SF.S�::; ,SAG�Sa^fdGt{Gt' '>:�::�.•>�'..`i
:.•::--::::.:::.-::::.,,-::.....my ��::::,:::::.::::...,-::::::.-::::::::::.:::::::::..-::::-::::..... -
}>��`. �vvartls:�th��: dig:<•.��•�duA�'..�: ::>� -�� �� ui �� � .
.�i �=:::tib......, .. ...�...........�... ..�.......}.,�,Y.� u ' ori ...�
:: xu.:;.`�s:;-::f..';;:s:;;•:;-:;-:;;;;:;.'._•:::::::..::s::;a;;s:;;::::::::.,:....3 ..;-xss»:::�!:-::<rf••r::=i::: ;y�Y�,::isi�f��''-•. "`�xk;.::'ar�..'R..`tro-Y�.:ati:;;�w:.•u:::>:.�:.ay .;.Sii:'t•'t.:.'a:::swx`,;;;:
• '. ..:,�c3(r .�.�f���li�.�'.'.•awu,!?.`..�'..�..�'...••. �'?1+y�.�..> ... ..:��yJ??.i!.14�;:: �•Y �•���45.'.�..�..':-%:
.........:.�:::..: : +:.:ius:;sx�::•rwa::Ec2fi�..'x�io-r.:,:•'.:5.`•>.f}.'..
:.;;.>:->.,.t:•.'•:i:;�;o-;,.-:.:.:::,�.,.•:.::.:::rte.»»:-:;•:»>.-.o>..r:-::•:,.a.::.,:>>r-an:.:s.: :sr:� .... .. w:
ARTICLE 7. PERSONNEL
Operator shall assign qualified personnel to operate the site as may be required to
assure a smooth and efficient operation in compliance with all applicable Permits.
The County has the right to request, in writing, administrative action, including the
removal of any employee of Operator who violates any provision of this Agreement, or who
in the opinion of such requesting party is unsafe, negligent, or discourteous to the public or
others in the performance of his/her duties. Upon receipt of such a request, Operator shall
immediately take whatever administrative action, which, in its judgment, is necessary to
resolve the situation. Such action may include removal of that employee from the Site.
A Site Supervisor employed by Operator shall be present at the Site at all times that
any operations are being conducted thereon.
Operator shall file with the Director the names, addresses, and telephone numbers of
the Operator representatives who can be contacted at any time in case of emergency. These
representatives shall be fully authorized to respond so as to resolve the emergency.
ARTICLE 8. LANDFILL GAS
If at any time Operator voluntarily pursues the sale of gas produced from the Landfill
or the sale of electricity produced by burning said gas, County may require the payment of a
August 30, 1994 -22- DRAFT
Surcharge thereon.
ARTICLE 9. CLOSURE AND POST CLOSURE
Section 9.1 CLOSURE RFSPONSIBILMES. Operator shall be responsible for Site
Closure and Post Closure Maintenance of the Landfill according to all Permits and
requirements of the Regulatory Agencies. Operator will hold the County harmless for the
performance of its duties under this Article.
The County and Operator recognize the inevitability of Site Closure. Both parties
also recognize the existing uncertainties yet to be resolved which may impact the date and
total cost of Site Closure and the need to commence closure activities promptly upon
cessation of disposal activities in a discrete portion or phase of the Landfill.
The parties intend to provide for the public interest by assuring that the appropriate
financial mechanisms are put in place by Operator to provide funds to pay the costs incurred
for Site Closure and Post-Closure maintenance as required by law.
Section 9.2 FINANCIAL ASSURANCES. Operator shall provide all financial
assurances necessary to satisfy the provisions of Public Resources Code Section (formerly
Section 66796.22 of the California Government Code), Title 14, California Code of
Regulations, Division 7, Chapter 5, Article 3.5 and all other applicable provisions of
California and Federal law. The financial assurances shall include the establishment of a
trust fund or equivalent financial arrangement as evidence of financial ability to provide for
the cost of closure and post-closure maintenance as required by law. Operator shall consult
with the County with respect to proposals to be made to the State regarding the financial
assurance to be provided. Operator shall,provide the County with adequate notice of any
August 30, 1994 -23- DRAFT
J
filings with the State or hearings with respect to such proposals sufficient to allow the
County to participate in and provide input to the State on the State's determinations on
closure and post closure requirements, including financial assurances to be imposed on the
Site.
Section 9.3 PERFORMANCE. Operator acknowledges that under State and Federal
law, Operator shall have the responsibility to perform both closure and post closure activities
in a timely, cost-effective manner. Performance by Operator shall be determined in
accordance with State and Federal statutes.
The County and Operator agree that, to the extent site closure and postclosure
activities are funded from the Landfill rates, it is in the local public interest to assure timely,
cost-effective closure and postclosure activities. The County shall have the right to conduct
such technical and financial review as it deems necessary to protect the local public interest.
Section 9.4 SIGNING OF INSTRUMENTS AND DOCUMENTS. From time to
time, either party shall at the request of the other party and without further consideration,
execute and deliver such instruments and documents as may be reasonably necessary in order
to effectuate the purposes of this Article 9.
Section 9.5 FAILURE TO MEET CLOSURE AND POST-CLOSURE
OBLIGATIONS. In the event that Operator fails to perform its obligations as set forth in
this Article 9, or to enter upon performance of same with due diligence after the
determination of an event of default in a manner described below in Article 11, the County
may enter the Landfill and perform the Site Closure and Post-Closure activities required to
remedy the default and expend Site Closure funds for the costs involved.
August 30, 1994 -24- DRAFT
ARTICLE 10. UNINTERRUPTED OPERATION
Section 10.1 ASSURANCE OF UNINTERRUPTED OPERATION. Operator, in
entering into this Agreement, assures that it will provide from the Commencement Date for
the operation of a Solid Waste disposal facility at the Landfill in an uninterrupted manner for
as long as the Site is useful and usable, except as provided in Section 11.4 below. Operator
acknowledges the hardship that would occur if the Landfill is not operated properly or is
prematurely closed. The County and Operator.recognize that in the ordinary course of
events, certain unexpected events may result that may place a burden on the requirement of
uninterrupted operation. However, it is the purpose of this Article 10 to establish that it is
Operator's obligation to avoid any interruption of operations except for those that are outside
of Operator's control, as provided by Section 11.5 of this Agreement.
Section 10.2 LABOR DISPUTES. In the event of a labor dispute, Operator shall use
its best efforts to keep the Landfill open and to operate it in accordance with this Agreement
unless a mutually acceptable disposal alternative is agreed upon by Operator and the County.
ARTICLE 11. DEFAULT. REMEDIES
Because of the complex nature of this Agreement and the work to be performed
hereunder, together with the need for close cooperation and coordination between the parties,
it is not anticipated that either party will declare the other in default under the terms and
conditions of this Agreement except as a last resort. However, in the event of any such
necessity, the following provisions are made a part hereof.
Section 11.1 FAILURE TO PROSECUTE WORK. Should Operator fail to
prosecute the work or any severable part thereof in conformity with the requirements of this
August 30, 1994 -25- DRAFT
Agreement, the Director shall provide written notice to Operator specifying in detail the
defect or default in performance (the "First Notice") and Operator shall have the right to
cure same within a reasonable period of time.
If after the First Notice is provided to Operator, the work is not performed in
accordance with the Director's specified time frame and a reasonable time to cure so as to
ensure its completion in accordance with this Agreement, the Director shall serve further
notice (the "Second Notice") upon Operator of the County's intention to take further action
as provided by law. The Director shall make appropriate and detailed written findings of
fact which specify the event of default.
No earlier than thirty (30) days after the Second Notice, County shall have the power
and ability, if Operator is still in default, to take such actions as provided in law for
remedying the same, including the termination of this Agreement.
Should the County fail to perform any of its obligations under this Agreement,
Operator may declare the County in default after following the same two notice and findings
provisions required of the County above. Thereafter, Operator shall have the power and
ability, if the County is still in default, to take such actions as provided in law for remedying
the same, including bringing suit in a court of appropriate jurisdiction for equitable or legal
relief or both.
The foregoing notwithstanding, neither party may bring an action seeking money
damages unless it has first provided the other party with 30 days notice of its intention to do
so together with written notification of the specific actions which the other party may take to
remedy the default which will form the basis for the claim for monetary damages. If the
August 30, 1994 -26- DRAFT
other party in good faith commences the actions specified within the thirty (30) day period,
the first party shall not bring the action for damages.
Section 11.2 CONVICTION OF CERTAIN CRIMES. Operator agrees that a single
conviction of Operator, its parent, subsidiaries or operators, or their officers or employees at
the level of Site operations manager or above, acting within the scope of their employment,
of bribery, antitrust, corruption or theft relating to or involving directly the Landfill Site
shall constitute an event of a breach of this Agreement subject thereupon to the provisions of
this Article unless Operator, promptly initiates and follows through with appropriate
disciplinary procedures and action considering the nature of the offense and resolution by the
courts.
Section 11.3 CONDEMNATION. In addition to any other remedy available to the
County, it has the right and authority under law to condemn the Site.
Section 11.4 RIGHT TO TAKE/RIGHT TO POSSESSION. In the event that
Operator chooses to no longer operate the Site, Operator agrees that it will give County
notice of its intention to cease operation ninety (90) days prior to the cessation. If, after
receiving such notice, County initiates eminent domain proceedings to acquire the Site,
Operator agrees that it will not object to or contest County's right to take, or right of
possession of, the Site. Nothing contained herein shall constitute a waiver of the right to
contest valuation at any stage of the proceedings. County and Operator agree that the
provisions of this paragraph may be enforced by means of the remedy of specific
performance.
Section 11.5 FORCE MAJEURE. Operator shall not be liable for a default if the
August 30, 1994 -27- DRAFT
failure to perform under the terms and conditions of the Agreement arise out of causes
beyond the control or without the fault or negligence of Operator. Such causes may include,
but are not limited to, acts of God, or the public enemy, acts of the County in either its
sovereign or contractual capacity, fires, floods, earthquakes, epidemics, quarantine .
restrictions, suppliers' and vendors' strikes and all other labor disputes, freight embargoes,
and unusually severe weather; but in every case the failure to perform must be beyond the
control and without substantial default or negligence of Operator. Operator shall make every
reasonable effort to mitigate the effects of said causes.
Section 11.6 SPECIFIC PERFORMANCE. Notwithstanding any other available
remedies, the obligations duties and rights of each party under this Agreement shall be
specifically enforceable by the other party.
Section 11.7 NONEXCLUSIVE REMEDIES. The rights and remedies of either
party to this Agreement as provided for in this Article 11 shall not be exclusive, and are in
addition to any other rights and remedies provided by law or under this Agreement; except
that the right of either party to seek monetary damages is limited as provided in Section 11.1
above.
ARTICLE 12. INSURANCE AND BONDS
Section 12.1 WORKERS' COMPENSATION. Operator hereby acknowledges that it
is aware of the provisions regarding Workers' Compensation, Section 3700 of the Labor
Code. Operator shall comply with the provisions of such Section as amended from time to
time with regard to its employees and shall supply to the County forthwith upon execution of
this Agreement, and annually thereafter, evidence of such compliance.
August 30, 1994 -28- DRAFT
Section 12.2 PUBLIC LIABILITY. If a willing company can be located by either
party hereto, and the premium for the policy or policies required hereunder is reasonable in
the opinion of County, Operator shall obtain from a good and responsible company or
companies doing insurance business in the State of California, and pay for, maintain in full
force and effect for the duration of this Agreement and any extension, a policy or
replacement policy of comprehensive liability insurance for the Landfill, in which the County
is named as an additional insured with Operator. Operator shall furnish a Certificate of
Liability Insurance to the Director before execution of this Agreement by the County.
Notwithstanding any inconsistent statement in the policy described by the Certificate of
Liability Insurance or any subsequent endorsement attached thereto, the protection offered by
the policy shall:
(a) Include the County, its officers, employees and agents while acting within
the scope of their duties under this Agreement, the Use Permit, or any other County
ordinance, resolution or other rule relating to the operation, maintenance or closure of the
Landfill, as an additional insured covering said duties against all third party claims for
negligence; and for indemnification of the County as provided by this Agreement.
(b) Provide for a combined single limit policy not less than $10,000,000 per
occurrence, combined bodily injury and property damage; such policy may exclude liability
for bodily injury and property damage caused by toxic wastes. At every fifth year of this
Agreement, this $10,000,000 minimum limit shall be increased as directed by the County but
not more than 30% for each such five year period.
Section 12.3 OTHER INSURANCE PROVISIONS. All insurance policies required
August 30, 1994 -29- DRAFT
by this Agreement shall bear an endorsement, whereby it is provided that, in the event of
expiration, or proposed cancellation of such policy for any reason whatsoever, the Director
shall be notified in writing not less than thirty (30) days before expiration or cancellation is
effective.
Expiration, reduction or cancellation of any insurance policy required by this
Agreement without obtaining a replacement policy pursuant to Section 12.2 to meet the
requirements herein shall be considered a breach of.this Agreement by Operator.
Operator shall also carry such other insurance as may be required by law. Operator
shall be solely liable for any claims or liabilities caused by its failure to maintain insurance
required by law.
Section 12.4 FAITHFUL PERFORMANCE SURETY. Operator shall, prior to
acceptance of waste at the Site under this Agreement, provide to the County an irrevocable
Performance Surety Letter of Credit in the form set forth in Exhibit B hereto guaranteeing
Operator's performance of all provisions of this Agreement (except Article 9, relating to Site
Closure, for which separate financial assurances are required by applicable law) in an amount
of not less than $1,000,000.00. This Letter of Credit may also be utilized to meet the
security and performance requirement of the Use Permit, except as to the closure
requirements which will be separately secured. If Operator or an affiliate acceptable to the
Director operates a transfer or processing station in the County, from which transfer or
processing station solid waste is delivered to the Landfill, the Director may allow the
Performance Surety Letter of Credit required by this section to additionally guarantee
Operator's performance of all provisions of said transfer station agreement or franchise.
August 30, 1994 -30- DRAFT
ARTICLE 13, GENERAL PROVISIONS
Section 13.1 GUARANTY BY PARENT OR AFFILIATE. Prior to the
Commencement Date, and for all conditions and obligations of this Agreement, Operator
shall provide to the Director, proof of guaranty by the parent or an affiliate of Operator
acceptable to the County, of the performance by Operator of each provision of this
Agreement to be performed by Operator. Proof of guaranty shall be in the form set forth in
Exhibit C.
Section 13.2 ATTORNEY'S FEES. In the event of litigation between the parties
arising hereunder, each party shall pay and bear its own litigation expenses, including
attorney's fees.
Section 13.3 INDEMNITY AND HOLD HARMLESS AGREEMENT.
(a) All work and performances by Operator covered by this Agreement shall
be at the risk of Operator
(b) With respect to third-party claims, Operator agrees to save, indemnify and
keep harmless the County, its officers, employees, agents and assign 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 by Operator, save and except claims or litigation arising through the sole
negligence or willful misconduct of the.County, and will make good to and reimburse the
County for any expenditures, including reasonable attorney's fees, that the County may make
by reason of such matters and, if requested by the County, shall defend any such suit at the
sole cost and expense of Operator.
August 30, 1994 -31- DRAFT
c
(c) With respect to third-party claims, the County agrees to save, indemnify
and keep harmless Operator, 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 sole negligence or
willful misconduct of the County, and will make good to and reimburse Operator for any
expenditures, including reasonable attorney's fees, that Operator may make by reason of such
matters and, if requested by Operator, shall defend any such suit at the sole cost and expense
of the County.
(d) Should any party successfully challenge the validity of this Agreement or
the procedure by which this Agreement was entered into or the validity of any County action
which authorizes the County to enter into this Agreement, then in such case the Operator
shall have no cause of action for damages or any other relief against County as a result of
such successful challenge. In the event of any such legal challenge, Operator shall defend
such action or proceeding at its sole expense and Operator shall save and hold County
harmless from any.claims or awards for third party attorneys' fees and costs.
Section 13.4 ASSIGNMENT.
(a) VolunjaU. Operator shall not sell, assign, subcontract or transfer this Agreement
or any part hereof, or any obligation hereunder, without the written consent of County;
provided, however, that Operator may assign this Agreement without the County's consent to
any company which it controls, is controlled by, or which is under common control with
Operator. As used in this Section, the term "control" with respect to a company, means the
beneficial ownership of more than 50% of the voting stock of the company.
August 30, 1994 -32- DRAFT
;
The term assignment shall include any dissolution, merger, consolidation or other
reorganization of Operator, which results in change of control of Operator, or any sale or
other transfer of a controlling percentage of Operator's capital stock. Any attempted
assignment not provided for above without such consent shall be void ab initio.
(b) Involuntary. Except as may.be permitted by paragraph (a) above, no interest of
Operator in this Agreement shall be assignable by operation of law. Any such nonpermitted
assignment and any of the following acts, each of which are deemed an involuntary
assignment, shall provide County with the right to elect to terminate the Agreement
forthwith, without suit or other proceeding:
(1) If Operator 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 Operator such that would have a materially adverse effect on Operator's ability to
perform its duties and obligations under this Agreement;
(3) If in any proceeding to which Operator is a party, a Receiver is appointed
with authority to take possession of Operator's property such that would have a materially
adverse effect on Operator's ability to perform its duties and obligations under this
Agreement.
Section 13.5 COMPLETE AGREEMENT. No verbal agreement with any officer,
agency, or employee of the County or,of Operator nor any contract either before, during, or
after the execution of this agreement shall affect or modify any of the terms or obligations
herein contained unless a written agreement, signed by both parties, specifically provides that
August 30, 1994 -33- DRAFT
same is an amendment to this Agreement.
Section 13.6 NO THIRD PARTY BENEFICIARY ENFORCEMENT. While this
contract benefits the public interest throughout Contra Costa County, it is an Agreement
between only Operator and the County and, accordingly, only Operator and the County may
enforce same. No claims, demands, or causes of action by any entity, party, or person
claiming to be a third party beneficiary hereunder shall be enforceable..
Section 13.7 ARBITRATION. Any controversy or claim submitted to arbitration
pursuant to the express provisions of this Agreement, or by mutual subsequent agreement,
and arising out of or relating to this Agreement, or the breach thereof, shall be governed by
the provisions of Part III., Title 9 of the Code of Civil Procedure, sections 1280 et seq. as
amended from time to time. The arbitration shall be de novo and subject to a de novo appeal
or challenge brought in the Contra Costa County Superior Court as to any alleged error of
law or as to the admissibility of evidence. California judicial rules of evidence shall apply to
the arbitration proceedings. The arbitration decision shall be decided under and in
accordance with California law, supported by a preponderance of evidence and in writing in
the form of a Statement of Decision pursuant to Code of Civil Procedure Section 632.
Section 13.8 CONFLICT.
(a) This Agreement is intended to implement prior Landfill approvals,
including the Use Permit (and Ordinance No. 88-81 if applicable to the Landfill). In the
case of any apparent or potential conflict between the provisions of this Agreement and the
provisions of the Use Permit or any involved development agreement, the provisions of this
Agreement, the Use Permit and/or development agreement shall be read together and
August 30, 1994 -34- DRAFT
c .
harmonized to the maximum extent possible to effectuate the intentions of the parties. In the
case of any unresolved conflict between the provisions of this Agreement and the provisions
of the Use Permit or any involved development agreement, the provisions of the Use Permit
and/or development agreement shall control. Notwithstanding any other provision in this
Agreement or in the Use Permit, importation of waste not originating in Contra Costa
County shall be allowed as required by recent U.S. Supreme Court cases.
(b) Operator has entered into an agreement with Contra Costa Water District
("CCWD") the relevant portions of which are attached hereto as Exhibit D, which Exhibit is
incorporated herein by this reference. If there is any conflict between this Agreement and
Exhibit D, this Agreement shall prevail with respect to the relationship between Operator and
the County.
Section 13.9 CAPTIONS. The captions and headings used in this Agreement are for
convenience and reference only and are not to be construed as controlling over the text of
this Agreement.
Section 13.10 DELEGATION BY BOARD. The Board may, in its discretion,
delegate to a County employee or hearing officer any of its functions expressly or impliedly.
arising from this Agreement provided that in such case any decision made by such Board,
County employee or officer may be appealed de novo to the Board.
Section 13.11 SEVERABILITY. If any term, provision, covenant or condition
("provision") of the Agreement or the application of any provision of this Agreement to a
particular situation is held by a court of competent jurisdiction to be invalid, void or
unenforceable, the remaining provisions of this Agreement, or the application of this
August 30, 1994 -35- DRAFT
Agreement to other situations, shall continue in full force and effect. Notwithstanding any
other provision of this Agreement, if any provision of this Agreement in itself or as applied
in any particular situation is held to be invalid, void or unenforceable, it is the intention of
the parties that the remaining portions of this Agreement shall be continued in full force and
effect and that the invalid, void or unenforceable provision be severed therefrom.
Section 13.12 MASCULINE GENDER USED. The masculine gender is sometimes
used in this Agreement and is so used for convenience only and is not otherwise intended.
Section 13.13 GOVERNING LAW. This Agreement shall be governed by and
construed in accordance with the laws of the State of California.
Section 13.14 NOTICES. All notices or other communications ("Notice") to be
given pursuant to this Agreement, including the notices required in Articles 6 and 10 hereof,
shall be in writing and shall be deemed given when mailed by registered or certified United
States mail, addressed to the parties as follows:
To County: County of Contra Costa
Attn: County Administrator
To Operator: Keller Canyon Landfill Company
Attn: Boyd M. Olney, Jr.
441 North Buchanan Circle
Pacheco, California 94553
With Courtesy as designated by Browning-Ferns Industries of California.
A change in address or a change in the person or title to which Notice is to be given
shall be effectuated by Notice to the other party.
IN WITNESS WHEREOF, this Agreement is effective on the date first provided on
page one hereof.
August 30, 1994 -36- DRAFT
.c
OPERATOR
Keller Canyon Landfill Company
a California corporation
By:
Boyd M. Olney, Jr.
President
By:
Vice-President
COUNTY OF CONTRA COSTA
By:
Chair, Board of Supervisors
ATTEST: By:
Clerk of the Board
APPROVED AS TO FORM: By:
I:12J= aso.94 County Counsel
August 30, 1994 -37- DRAFT
W
t
COUNTY OF CONTRA COSTA
STATE OF CALIFORNIA
FIRST AMENDED
LANDFILL FRANCHISE AGREEMENT
KELLER CANYON LANDFILL
{
RECEIVE®
OCT 1 0 1994
CLERK BOARD OF SUPERVISORS
CONTRA COSTA CO. a
September, 1994
S t �
TABLE OF CONTENTS - FIRST AMENDED LANDFILL FRANCHISE AGREEMENT
RECITALS 1
ARTICLE 1 . INTRODUCTORY PROVISIONS 3
Section 1. 1 RECITALS INCORPORATION. . . . . . . . . . . 3
Section 1 .2 EFFECTIVE DATE, EFFECT. . . . . . . . . . . 3
Section 1 . 3 CONDITIONS OF APPROVAL. . . . . . . . . . 3
Section 1 .4 OPERATOR ACKNOWLEDGMENT. . . . . . . . . . 4
Section 1 .5 COUNTY DISCRETION AND INTEREST. . . . . . 4
Section 1 .6 USE PERMIT OPERATIVE. . . . . . . . . . . . 5
Section 1 .7 NO PREFERENTIAL TREATMENT. . . . . . . . . 5
ARTICLE 2 . DEFINITIONS 5
Section 2 . 1 AGREEMENT. . . . . . . . . . . . . . . . . 5
Section 2 .2 ACTIVITIES REPORT. . . . . . . . . . . . . 5
Section 2 . 3 ANALYSIS PERIOD. . . . . . . . . . . . . 6
Section 2 .4 BASE RATE. . . . . . . . . . . . . . . 6
Section 2 .5 COMMENCEMENT DATE. . . . . . . . . . . . . 6
Section 2 . 6 COUNTY. . . . . . . . . . . . . . . . . . . 6
Section 2 . 7 DIRECTOR. . . . . . . . . . . . . . . . . . 6
Section 2 . 8 EMERGENCY. . . . . . . . . . . . . . . . . 6
Section 2 . 9 GATE FEE COLLECTION SYSTEM. . . . . . . . . 7
Section 2 . 10 GATE RATE. . . . . . . . . . . . . . . . 7
Section 2 . 11 HOURS OF OPERATION. . . . . . . . . . . . 7
Section 2 . 12 HOURS OF ACCESS. . . . . . . . . . . . . . 7
Section 2 . 13 LANDFILL. . . . . . . . . . . . . . . . . 7
Section 2 . 14 MANDATED FEES. . . . . . . . . . . . . . . 7
Section 2 . 15 OPERATOR. . . . . . . . . . . . . . . . . 8
Section 2 . 16 PERMITS. . . . . . . . . . . . . . . . . . 8
Section 2 . 17 POST-CLOSURE MAINTENANCE. . . . . . . . . 8
Section 2 . 18 REGULATORY AGENCIES. . . . . . . . . . . . 8
Section 2 . 19 SCHEDULE OF DISPOSAL CHARGES. . . . . . . 9
Section 2 . 20 SITE CLOSURE. . . . . . . . . . . . . 9
Section 2 . 21 SOLID WASTE. . . . . . . . . . . . . . . . 9
Section 2 .22 SOLID WASTE PROGRAMS. . . . . . . . . . . 10
Section 2 .23 SPECIAL HANDLING WASTE. . . . . . . . . . 10
Section 2 .24 SURCHARGE. . . . . . . . . . . . . . . . . 11
Section 2 .25 SURCHARGE PAYMENTS. . . . . . . . . . . . 11
Section 2 .26 USE PERMIT. . . . . . . . . . . . . 11
ARTICLE 3. TERM OF AGREEMENT 11
ARTICLE 4 . PERFORMANCE OF OPERATOR 12
Section 4 . 1 OPERATION OF LANDFILL. . . . . . . . . 12
Section 4 .2 WASTE STREAM. . . . . . . . . . . . . . . . 12
Section 4 . 3 WASTE TYPES. . . . . . . . . . . . . . . . 12
Section 4 .4 UNACCEPTABLE WASTE. . . . . . . . . . . . . 12
Section 4 .5 INSPECTION, INVESTIGATION, AND EVALUATION
OF SITE. . . . . . . . . . . . . . . . . . . . . . 13
Amended Landfill Franchise i September, 1994
s
Section 4 . 6 PERMITS. . . . . . . . . . . . . . . . . . 14
Section 4 . 7 STATUS OF TITLE. . . . . . . . . . . . . . 14
Section 4 . 8 GATE FACILITIES. . . . . . . . . . . . . . 14
Section 4 .9 OPERATION OF GATE FEE COLLECTION SYSTEM. 15
Section 4 . 10 FEE COLLECTION. . . . . . . . . . . . . . 15
Section 4 . 11 PAYMENT TO COUNTY. . . . . . . . . . . . . 16
Section 4 . 12 HOURS OF ACCESS. . . . . . . . . . . . . . 16
Section 4 . 13 NONDISCRIMINATORY SERVICE. . . . . . . . . 17
Section 4 . 14 ACCESS ROADS, HAUL ROADS AND SERVICE
ROADS. . . . . . . . . . . . . . . . . . . . . . . 17
i Section 4 . 15 LITTER MANAGEMENT. . . . . . . . . . . . . 17
Section 4 . 16 ENVIRONMENTAL MITIGATION. . . . . . . . . 17
Section 4 . 17 RECYCLING/RESOURCE RECOVERY PROGRAMS. 18
Section 4 . 18 ACTIVITIES REPORT. . . . . . . . . . 18
Section 4 . 19 PENALTY SCHEDULE FOR NONCOMPLIANCE. 18
Section 4 .20 RECORDS. . . . . . . . . . . . . . . . . . 19
Section 4 .21 HOST COMMUNITY. . . . . . . . . . . . . . 19
ARTICLE 5. PERFORMANCE OF COUNTY 20
Section 5 . 1 GATE FEE COLLECTION SYSTEM. . . . . . . . . 20
Section 5 .2 INSPECTION OF SCALES. . . . . . . . . . . . 20
ARTICLE 6 . RATES 20
Section 6 . 1 BASE RATE. . . . . . . . . . . . . . . . . 20
Section 6 .2 SURCHARGE. . . . . . . . . . . . . . . . . 20
Section 6 . 3 GATE RATE. . . . . . . . . . . . . . . . . 21
Section 6 .4 INITIAL SURCHARGE. . . . . . . . . . . . . 21
Section 6 .5 DISPOSAL CONTRACTS. . . . . . . . . . . . . 22
Section 6 . 6 SCHEDULE OF RATES. . . . . . . . . . . . . 23
ARTICLE 7 . PERSONNEL 24
ARTICLE 8 . LANDFILL GAS 25
ARTICLE 9 . CLOSURE AND POST CLOSURE 25
Section 9 . 1 CLOSURE RESPONSIBILITIES. . . . . . . . . . 25
Section 9 .2 FINANCIAL ASSURANCES. . . . . . . . . . . . 25
Section 9 . 3 PERFORMANCE. . . . . . . . . . . . . . . . 26
Section 9 .4 SIGNING OF INSTRUMENTS AND DOCUMENTS. . . . 27
Section 9 .5 FAILURE TO MEET CLOSURE AND POST-CLOSURE
OBLIGATIONS. . . . . . . . . . . . . . . . . . . . 27
ARTICLE 10 . UNINTERRUPTED OPERATION 27
Section 10 . 1 ASSURANCE OF UNINTERRUPTED OPERATION. 27
Section 10 .2 LABOR DISPUTES. . . . . . . . . . . . . . 28
ARTICLE 11 . DEFAULT, REMEDIES 28
Section 11 . 1 FAILURE TO PROSECUTE WORK. . . . . . . . 28
Section 11 .2 CONVICTION OF CERTAIN CRIMES. . . . . 30
Section 11 . 3 CONDEMNATION. . . . . . . . . . . . . . . 30
Section 11 .4 RIGHT TO TAKE/RIGHT TO POSSESSION. . . . . 30
Amended Landfill Franchise ii September, 1994
Section 11 .5 FORCE MAJEURE. . . . . . . . . . . . . . . 31
Section 11 . 6 SPECIFIC PERFORMANCE. . . . . . . . . . . 31
Section 11 .7 NONEXCLUSIVE REMEDIES. . . . . . . . . . . 31
ARTICLE 12 . INSURANCE AND BONDS 31
Section 12 . 1 WORKERS' COMPENSATION. . . . . . . . . . . 31
Section 12 .2 PUBLIC LIABILITY. . . . . . . . . . . . . 32
Section 12 . 3 OTHER INSURANCE PROVISIONS. . . . 33
Section 12 .4 FAITHFUL PERFORMANCE SURETY. . . . . . 33
ARTICLE 13 . GENERAL PROVISIONS 34
Section 13. 1 GUARANTY BY PARENT OR AFFILIATE. . . . . . 34
Section 13.2 ATTORNEY'S FEES. . . . . . . . . . . . . 34
Section 13. 3 INDEMNITY AND HOLD HARMLESS AGREEMENT. . . 34
Section 13 .4 ASSIGNMENT. . . . . . . . . . . . . . . . 36
Section 13 .5 COMPLETE AGREEMENT. . . . . . . . . . . . 37
Section 13 .6 NO THIRD PARTY BENEFICIARY ENFORCEMENT. 37
Section 13 . 7 SURVIVAL OF OBLIGATIONS. . . . . . . . . . 38
Section 13 . 8 ARBITRATION. . . . . . . . . . . . . . . . 38
Section 13 . 9 CONFLICT. . . . . . . . . . . . . . . . . 38
Section 13 . 10 CAPTIONS. . . . . . . . . . . . . . . . . 39
Section 13 . 11 DELEGATION BY BOARD. . . . . . . . . . . 39
Section 13. 12 SEVERABILITY. . . . . . . . . . . . . . . 40
Section 13 . 13 MASCULINE GENDER USED. . . . . . . . . . 40
Section 13 . 14 GOVERNING LAW. . . . . . . . . . . . 40
Section 13. 15 NOTICES. . . . . . . . . . . . . . . . . 40
Amended Landfill Franchise iii September, 1994
COUNTY OF CONTRA COSTA
STATE OF CALIFORNIA
FIRST AMENDED
LANDFILL FRANCHISE AGREEMENT
THIS FIRST AMENDED LANDFILL FRANCHISE AGREEMENT (the
"Agreement" ) is made and entered into this , by and
between the COUNTY OF CONTRA COSTA (hereinafter "County" ) and
KELLER CANYON LANDFILL COMPANY (hereinafter "Operator" ) .
RECITALS
WHEREAS, the legislature of the State of California has
adopted the Nejedly-Z 'berg-Dills Solid Waste Management and
Resource Recovery Act of 1972 and now has adopted the California
Integrated Waste Management Act of 1989, both of which assign
certain responsibilities for the County's solid waste planning,
management, implementation, and regulation to the Contra Costa
County Board of Supervisors; and
WHEREAS, on July 24 , 1990, the Board of Supervisors of
Contra Costa County approved the Keller Canyon Sanitary Landfill
Use Permit No. 2020-89 subject to the Conditions of Approval, the
Special Land Use Conditions of Approval and the Findings Relative
to the Landfill Site Land Use Permit pursuant to the California
Environmental Quality Act ( "CEQA" ) and Adoption of a Mitigation
Monitoring Program, each of the same date; and
WHEREAS, the County adopted Ordinance No. 88-81, which
provides that a solid waste disposal facility may be operated
within the County only upon the approval of a franchise agreement
Amended Landfill Franchise 1 September, 1994
by the County or upon the operator of a landfill entering into a
contract with the Contra Costa County Board of Supervisors to
prepare the site and operate such facility; and
WHEREAS, on 4 December 1990 County and Operator entered a
LANDFILL FRANCHISE AGREEMENT ( "Landfill Franchise Agreement") in
accordance with the requirements of County Ordinance No. 88-81,
and to implement the requirements of Land Use Permit No. 2020-89,
which Landfill Franchise Agreement has been amended by Amendments
Nos. 1 through 10, inclusive, thereto; and
WHEREAS, recent United States Supreme Court cases decided
under the Commerce Clause of the United States Constitution
generally prohibiting states and their political subdivisions
from erecting barriers to the free flow of solid waste (and
thereby discriminating against interstate commerce) significantly
affects the solid waste industry, and affects the parties hereto
in that some of the provisions of the Landfill Franchise
Agreement, particularly the provisions regarding the County's
regulation of rates, may no longer be appropriate or necessary
given the current competitive nature of the solid waste industry .
as a result of said recent Supreme Court decisions; and
WHEREAS, the parties now desire to amend certain provisions
of the Landfill Franchise Agreement;
NOW, THEREFORE, the County and Operator, for and in
consideration of the covenants and agreements as hereinafter set
forth and for other good and valuable consideration, the receipt
and sufficiency of which is hereby acknowledged, do mutually
Amended Landfill Franchise 2 September, 1994
. 1
G
agree as follows:
ARTICLE 1 . INTRODUCTORY PROVISIONS
Section 1 . 1 RECITALS INCORPORATION. The Recitals set forth
above, and all defined terms set forth in such Recitals and in
the introductory paragraph preceding the Recitals, are hereby
incorporated into this Agreement as if set forth herein in full.
Section 1 .2 EFFECTIVE DATE, EFFECT. This Agreement is
effective on the date mentioned in the first paragraph of page
one hereof, and as of the effective date, unless otherwise
prohibited by court or other binding order, replaces and
supersedes the Landfill Franchise Agreement. In any case, this
Agreement does not nullify the Landfill Franchise Agreement for
the period preceding the effective date of this Agreement.
Section 1.3 CONDITIONS OF APPROVAL. Operator acknowledges
and agrees that all of the terms and conditions of the Use
Permit's Conditions of Approval and any amendments thereto, are
reasonable, legal and valid and that Operator is barred from any
action or proceeding or any defense of invalidity or
unreasonableness of said Conditions of Approval and any
amendments thereto, and related County decisions. Further,
Operator agrees that Operator will not attack or otherwise assail
the reasonableness, legality or validity of any terms and
conditions of the Use Permit, or of any provisions required to be
included in this Agreement by the said Conditions of Approval and
any amendments thereto. The parties acknowledge that the
agreement by Operator in this section is a material consideration
Amended Landfill Franchise 3 September, 1994
r
Y
y
for County' s approval of this Agreement.
Section 1 .4 OPERATOR ACKNOWLEDGMENT. Operator. acknowledges
and agrees that this Agreement and the Use Permit (by the
incorporation herein of the Use Permit) provide for and allow
(among other things) funding for mitigation, provision of closure
and post-closure costs, payment to County of annual franchise
revenue fees, and otherwise payment to County and reimbursement
of County costs for its governmental administration of the
project entitlements.
It is understood that, among other things, this Agreement
provides for Operator's establishment of its proprietary rates to
enable Operator to compete in a solid waste disposal market that
has become highly competitive as a result of recent United States
Supreme Court decisions . This Agreement also acknowledges that
sub-county service areas have not been established.
Section 1 .5 COUNTY DISCRETION AND INTEREST.
Notwithstanding any other provision of this Agreement, Operator
acknowledges that County's discretion to grant, approve or deny
one or more nonexclusive or other franchises or similar
agreements for others is not limited or abridged in any manner by
this Agreement; and that this Agreement does not require the
approval of any such other franchises or agreements by Operator.
County reserves the rights as part of the negotiation and entry
of any such other franchise or agreement to enter a public-
private or public-public partnership with other landfill owners
and/or to pursue any rights of the County to require ownership of
Amended Landfill Franchise 4 September, 1994
those landfills or this Landfill.
Section 1.6 USE PERMIT OPERATIVE. Upon the effective Date
of the Landfill Franchise Agreement, the Use Permit became
operative pursuant to the conditions of the Use Permit, entitling
Operator to all rights and privilege thereunder.
Section 1.7 NO PREFERENTIAL TREATMENT. With respect to
material terms of the relationship between the County and
Operator, the County shall offer to Operator terms at least as
favorable as those agreed upon by the County with the operator of
any other landfill within the County with whom the County is
currently negotiating or may negotiate within the Term of this
Agreement. If any such material terms are determined for such
other operator subsequent to their determination with respect to
Operator, the County shall offer to amend such terms with respect
to operator.
ARTICLE 2 . DEFINITIONS
Section 2 . 1 AGREEMENT. "Agreement" shall refer to this
Agreement and is synonymous for purposes of this Agreement with
the word "Contract" .
Section 2 .2 ACTIVITIES REPORT. The "Activities Report" is
a summary document reporting Operator' s activities and overall
performance during the preceding Analysis Period or over such
period of time as set by the County. The Activities Report shall
summarize landfill related activities, including, but not limited
to: compliance with the .provisions of this Agreement and all
applicable Permits and Regulatory Agency Requirements, complaints
Amended Landfill Franchise 5 September, 1994
Y
and corrective actions taken, litter management, landfill gas
project update, wastestream volumes and analysis, operations and
safety training, recycling/resource recovery efforts, Closure
Trust Fund status and balance.
Section 2 .3 ANALYSIS PERIOD. "Analysis Period" refers to
the twelve ( 12) consecutive calendar months beginning the first
day of January of each year throughout the term of this
Agreement. The first Analysis Period, for the purposes of this
Agreement shall begin on January 1, 1994.
Section 2 .4 BASE RATE. "Base Rate" shall mean the
proprietary fees charged by Operator to dispose of Solid Waste or
any other waste at the Landfill.
Section 2 .5 COMMENCEMENT DATE. "Commencement Date" shall
mean the date upon which the Landfill first accepted Solid Waste
for disposal under the terms of the Landfill Franchise Agreement
and the Use Permit.
Section 2 . 6 COUNTY. "County" shall mean the County of
Contra Costa, a political subdivision of the State of California.
Section 2 . 7 DIRECTOR. "Director" shall mean the County
Administrator or his designated deputy, other County officer or
employee.
Section 2 . 8 EMERGENCY. "Emergency" shall mean a sudden,
unexpected occurrence involving a clear and imminent danger,
demanding immediate action to prevent or mitigate loss of, or
damage to, life, health, property, or essential public services.
Emergency includes such occurrences as fire, flood, earthquake,
Amended Landfill Franchise 6 September, 1994
R
or other soil or geologic movements, as well as such occurrences
as riots, accident and sabotage.
Section 2 .9 GATE FEE COLLECTION SYSTEM. "The Gate Fee
Collection System" shall consist of all equipment, hardware, and
software utilized for purposes of assessing, collecting, and
accounting for Tipping Fees for the disposal of Solid Waste at
the Landfill.
Section 2 . 10 GATE RATE. "Gate Rate" shall mean the fee
charged per ton to dispose of Solid Waste, or other waste at the
Landfill. The Gate Rate shall be the Base Rate plus Surcharge
and Mandated Fees, if any. "Gate Rate" shall be synonymous with
"Landfill Tipping Fee" and "Tipping Fee. "
Section 2 . 11 HOURS OF OPERATION. "Hours of Operation"
shall be those times during which the use of heavy equipment and
other machinery necessary for operation of the Site in compliance
with the Use Permit, the Solid Waste Facilities Permit and this
Agreement will be allowed.
Section 2 . 12 HOURS OF ACCESS. "Hours of Access" shall be
those times during which Solid Waste may be delivered to the
Landfill for disposal.
Section 2 . 13 LANDFILL. "Landfill" shall mean the Landfill
described in Exhibit A where the disposal of Solid Waste will
occur. For purposes of this Agreement, "Landfill" shall be
synonymous with "Site. "
Section 2 . 14 MANDATED FEES. "Mandated Fees" shall be those
monies required from Operator from time to time by any Regulatory
Amended Landfill Franchise 7 September, 1994
Agency for the purpose of funding (a.) Federal, State or regional
programs, (b) programs required by the Land Use Permit, or (c)
other County established fees.
Section 2 . 15 OPERATOR. "Operator" shall mean the holder of
the Use Permit or its assignee.
Section 2 . 16 PERMITS. "Permits" shall mean any and all
governmental approvals, entitlements, clearances or
classifications, as they may be amended from time to time,
including but not limited to, the Use Permit, general plan
amendments, environmental impact reports, zoning approvals,
conditional use permits, waste discharge permits and
requirements, facilities permits, permits to operate, permits to
construct, closure plans, building permits, encroachment permits,
grading permits, tree removal permits, tract/parcel maps and all
other governmental permits, consents or approvals as may be
necessary to allow Operator to construct and operate the
Landfill.
Section 2 . 17 POST-CLOSURE MAINTENANCE. "Post-Closure
Maintenance" shall mean those activities as required by law to be
undertaken at the Landfill, following Site Closure to maintain
the integrity of containment features and/or to monitor
compliance with applicable performance standards as specified by
law.
Section 2 . 18 REGULATORY AGENCIES. "Regulatory Agencies"
shall mean Federal, State and local agencies responsible for
regulating the operation and maintenance of sanitary landfills,
Amended Landfill Franchise 8 September, 1994
r •F
t
such as, but not limited to, California Integrated Waste
Management Board, California Regional Water Quality Control
Board, California Department of Health Services, the Contra Costa
County Department of Health Services as Local Enforcement Agency
for handling and disposal of Solid Waste, the Bay Area Air
Quality Management District and the County.
Section 2 . 19 SCHEDULE OF DISPOSAL CHARGES. The "Schedule
of Disposal Charges" shall mean a list of waste types and
corresponding fee amounts to be charged at the Landfill for
disposal of waste types .
Section 2 .20 SITE CLOSURE. "Site Closure" shall be the
cessation of Solid Waste disposal at all or portions of the
Landfill and subsequent operations necessary to prepare the Site
for Post--Closure Maintenance in accordance with law, Regulatory
Agency requirements and Permits.
Section 2 .21 SOLID WASTE. "Solid Waste" shall have the
meaning set forth in Section 40191 of the California Public
Resources Code as it may be amended from time to time, as
follows:
"40191(a) Except as provided in subdivision (b) ,
'solid waste' means all putrescible and nonputrescible
solid, semisolid, and liquid wastes, including garbage,
trash, refuse, paper, rubbish, ashes, industrial
wastes, demolition and construction wastes, abandoned
vehicles and parts thereof, discarded home and
industrial appliances, dewatered, treated, or
Amended Landfill Franchise 9 September, 1994
chemically fixed sewage sludge which is not hazardous
waste, manure, vegetable or animal solid and semisolid
wastes, and other discarded solid and semisolid
wastes.
" (b) 'Solid wastes" does not include hazardous waste
or low-level radioactive waste regulated under Chapter
7 .6 (commencing with Section 25800) of Division 20 of
the Health and Safety Code.
" (c) ' Solid Waste' does not include medical waste
which is regulated pursuant to the Medical Waste
Management Act (Chapter) 6 . 1 (commencing with Section
25015) of Division 20 of the Health and Safety Code) .
Untreated medical waste shall not be disposed of in a
solid waste landfill, as defined in Section 46027 .
Medical waste which has been treated and which is
deemed to be solid waste shall be regulated pursuant to
this division. "
Section 2 .22 SOLID WASTE PROGRAMS. "Solid Waste Programs"
shall mean those programs directly related to solid waste which
may include: transfer stations, household hazardous waste
programs, recycling and resource recovery programs, Agreement and
Use Permit administration costs (including legal, engineering,
and accounting and other costs of the County) .
Section 2 .23 SPECIAL HANDLING WASTE. "Special Handling
Waste" shall mean certain Solid Waste materials permitted for
disposal at the Landfill which, because of their volume or type,
Amended Landfill Franchise 10 September, 1994
♦ r
will require special handling by Operator such as, by example
only, sewage sludge, tires, fencing, large appliances, large dead
animals, concrete and asphalt. All Special Handling Wastes
accepted at the Landfill shall be specifically identified in the
Schedule of Disposal Charges.
Section 2 .24 SURCHARGE. "Surcharge" shall mean a special
charge as required by the County and this Agreement, for funding
of Solid Waste Programs, closure of landfills in operation prior
to 1990 and for franchise fees and other costs as deemed
appropriate by the County.
Section 2 .25 SURCHARGE PAYMENTS. "Surcharge Payments"
shall mean those monies received by Operator as a Surcharge and
remitted to the County in accordance with the terms of this
Agreement and of the Permits.
Section 2 .26 USE PERMIT. "Use Permit" shall mean Contra
Costa County Land Use Permit No. 2020-89, together with all
Conditions of Approval applicable thereto, including any
amendments thereof.
ARTICLE 3. TERM OF AGREEMENT
This Agreement shall remain in effect until 38.4 millions
tons of waste have been disposed of in the Landfill, or such
lesser time as may be prescribed by law. It is the parties
intent that the term of this Agreement shall be the estimated
life of the landfill expressed in terms of capacity as of this
date: 38 .4 million tons less the tonnage of waste disposed of
prior to the effective date of this Agreement.
Amended Landfill Franchise 11 September, 1994
ARTICLE 4 . PERFORMANCE OF OPERATOR
Section 4 . 1 OPERATION OF LANDFILL. Operator shall operate
the Landfill, in strict compliance with, and subject to, the
terms and conditions of this Agreement, the Permits and other
applicable requirements of Regulatory Agencies.
Section 4 .2 WASTE STREAM. Nothing in the terms and
provisions of this Agreement shall be construed to grant rights
of exclusivity with respect to Solid Waste generated in any
geographical portion of the County; nor shall this Agreement
preclude or in any way restrict the County from entering into
substantially similar agreements with other parties for Solid
Waste disposal operations at other locations; provided that the
terms and conditions of such other agreements shall not be
substantially more favorable to the other operators than the
provisions of this Agreement.
Section 4 . 3 WASTE TYPES. Operator shall operate the Site
in strict compliance with the Permits and laws; provided,
however, Operator may refuse to allow the disposal of certain
categories of Solid Waste after obtaining approval by the County,
which approval shall not be unreasonably withheld. Operator
shall provide sixty (60) days ' notice to all affected parties
prior to proposing County approval of Operator's tentative
decision to disallow disposal of the affected Solid Waste.
Section 4 .4 UNACCEPTABLE WASTE. Operator shall not allow
disposal at the Site of material other than waste allowed by and
subject to the terms of all Permits and laws. It is recognized
Amended Landfill Franchise 12 September, 1994
' r
r
that some non-approved materials, including certain hazardous
wastes, may occasionally be unloaded at the Site by users
thereof. Operator shall train its on-site employees to recognize
such unacceptable wastes and materials. In the event that
unacceptable waste is deposited at the Site, it shall be handled
and removed by Operator in accordance with procedures which shall
be developed by Operator and submitted to the County for approval
prior to the Commencement Date. Nothing herein is intended to
relieve the person or persons depositing or causing to be
deposited such unacceptable waste from any liability. Operator
retains the right to use all legal means to recover costs of
removal and alternate disposal or treatment from such person or
persons .
Section 4 .5 INSPECTION, INVESTIGATION, AND EVALUATION OF
SITE. Operator acknowledges that it has and shall continue to
inspect, investigate, and evaluate the Site regarding its
suitability as a Solid Waste disposal site.
The Site shall be immediately accessible at all reasonable
times to Regulatory Agency officials for any reasonable, lawful
and proper purpose. County officials shall usually give
reasonable notice to Operator of their intention to visit the
Site or if such notice is not given, shall notify Operator' s on-
site personnel of their presence on the Site.
County shall not incur liability arising from the discharge
of its inspection responsibilities, either by commission or by
omission, except for its tortious conduct or breach of duty
Amended Landfill Franchise 13 September, 1994
resulting in death, injury or property damage while engaged in
its inspection responsibilities. The inspection of the work
shall not relieve Operator of any obligation to perform under
this Agreement. Operator shall remove and replace or repair any
work not in compliance with those Permits, laws, ordinances or
regulations applicable to the Site.
Section 4 .6 PERMITS. Operator shall obtain and maintain in
force all necessary Permits and/or other approvals from the
Regulatory Agencies for the Landfill.
Upon receipt of each such Permit or approval, a copy
thereof, together with all conditions or requirements attached
thereto, shall be delivered by Operator to the Director.
Section 4 .7 STATUS OF TITLE. Prior to the Commencement
Date, Operator shall provide to the County reasonable evidence
sufficient to establish that Operator is in possession of and/or
has the right to use the Site for the purpose contemplated.
Section 4 .8 GATE FACILITIES. Operator shall supply,
construct and thereafter maintain gate fee collection facilities .
The facilities shall be designed- and located as necessary so as
to expedite the fee transactions and shall be attractively
finished and landscaped. The facilities shall be consistent with
the Use Permit for the Site.
Operator shall supply, construct, and maintain truck scales
as necessary to expedite the fee transactions, prevent traffic
back-up, and allow for occasional maintenance and repair. The
scales shall be compatible with the Gate Fee Collection System
Amended Landfill Franchise 14 September, 1994
approved by the County, in accordance with Section 5. 1 of this
Agreement.
The scales shall be open and in working order during all
Hours of Access at the Landfill. The sole access to the Site for
vehicles carrying solid waste. shall be the Landfill entrance, and
all waste disposal vehicles shall be recorded by the Gate Fee
Collection System.
Operator shall make provisions for quick repairs of the
scales by competent technicians to minimize downtime. The scales
shall meet all State requirements for design approval and
accuracy for State certified scales. Only those scales
functioning in accordance with all applicable regulations shall
be used. Operator shall obtain the State of California
certification for scale accuracy.
Operator shall supply, deliver and maintain utilities to the
Site and shall be responsible for all on-site and off-site costs
and service charges in connection therewith.
Section 4 . 9 OPERATION OF GATE FEE COLLECTION SYSTEM.
Operator shall operate the Gate Fee Collection System, including
the providing of all labor and materials necessary with respect
thereto. Such operation shall be for all Hours of Access.
Section 4 . 10 FEE COLLECTION. Operator shall collect, count
and account for all Landfill Tipping Fees and waste quantities
from each user at the Site. Said fees shall be collected in
accordance with the rates applicable pursuant to Article 6 of
this Agreement. In the event that no scale is operable at any
Amended Landfill Franchise 15 September, 1994
given time, vehicles will be charged based upon the weight
certified by the originating transfer station or based upon a
flat fee or volume fee schedule established by the parties in
advance.
Operator shall furnish the County with monthly reports on
the number and types of vehicles and waste tonnages and/or
volumes, as appropriate, of the various types and Gate revenue.
Section 4 . 11 PAYMENT TO COUNTY. Operator shall pay the
Surcharge Payments required by Article 6 to the County monthly in
arrears . Operator shall pay the Surcharge Payments to County
within thirty (30) calendar days after the close of the prior
month in which they are collected.
Section 4 . 12 HOURS OF ACCESS. For purposes of this
Agreement, unless otherwise required by the terms of the Permits,
Hours of Access shall be those specified in the Solid Waste
Facilities Permit. Should the Director declare that an emergency
exists, Operator shall keep the Landfill open as instructed to
allow for the orderly disposal of Solid Waste generated or
created by such emergency conditions at no additional charge or
increase in the Gate Rate. The scheduled Hours of Access may be
changed in a manner consistent with permit requirements.
Operator may, in its sole discretion, observe the following
holidays and close the Landfill : New Year's Day, Easter Sunday,
Memorial Day, Independence Day, Labor Day, Thanksgiving Day and
Christmas Day, or other major holiday as approved by the
Director.
Amended Landfill Franchise 16 September, 1994
,
Section 4 . 13 NONDISCRIMINATORY SERVICE. Operator shall
provide nondiscriminatory service for Solid Waste disposal to all
users, and shall abide by all Federal, State and local laws and
the Land Use Permit.
Section 4 . 14 ACCESS ROADS, HAUL ROADS AND SERVICE ROADS.
It shall be Operator's responsibility to provide and maintain all
roads required on the property for purposes of transporting
refuse to the actual point of disposal, or transporting earth
materials for fill within the Site, and such other roads as may
be constructed for its convenience. Haul roads shall be well
maintained. The surface shall be reasonably free from potholes
and depressions. A safe, all weather access to a disposal area
shall be provided at all times.
Section 4 . 15 LITTER MANAGEMENT. Operator shall maintain
and keep the Site and its access road reasonably free of litter
and other refuse. Operator shall be solely responsible for
maintaining the Site in a clean and sanitary condition, and shall
be responsible for any public nuisance created as a result of its
operations .
Operator shall control on-site and off-site litter or debris
in accordance with the Use Permit and the Solid Waste Facilities
Permit.
Section 4 . 16 ENVIRONMENTAL MITIGATION. Operator shall
comply with all environmental mitigation measures reasonably and
lawfully imposed by Regulatory Agencies including those imposed
by the Use Permit.
Amended Landfill Franchise 17 September, 1994
Section 4 . 17 RECYCLING/RESOURCE RECOVERY PROGRAMS.
Operator shall cooperate with the County and reasonably
participate in satisfying the ancillary waste needs of the
County, including participation in a County sponsored
recycling/resource recovery plan and litter program, and/or any
other activity which the County deems is appropriate for
inclusion in the County Solid Waste Programs.
Section 4 . 18 ACTIVITIES REPORT. Operator shall, by the
first day of January of each year, assemble and provide to the
County the Activities Report for the most recent Analysis Period.
The Board may direct, upon ninety (90) days written notice to
Operator, that the report provided in the Activities Report be
made semi-annually.
Section 4 . 19 PENALTY SCHEDULE FOR NONCOMPLIANCE. In the
event that noncompliance by Operator with any condition or
provision of this Agreement, or any applicable Permits or
Regulatory Agency requirements is determined by the County,
County shall notify Operator of the identified noncompliance.
Following notification of noncompliance, the Director may
impose penalties per noncompliance upon three (3) days notice to
Operator in accordance with the following penalty schedule until
such time as compliance is achieved:
$ 500. 00 per day during the first week of. noncompliance
$ 750. 00 per day during the second week of noncompliance
$1,000 .00 per day during the third week of noncompliance
Amended Landfill Franchise 18 September, 1994
$1,250.00 per day for each day thereafter.
At the time the Director imposes any penalties, the amounts
due for each day of noncompliance shall be the above amounts
subject to annual CPI adjustments, the applicable index to be
reasonably selected by the Director.
Notwithstanding the above three paragraphs, no monetary
penalties will be imposed by the County in the event that
Operator and/or said Regulatory Agency are diligently pursuing
the process of correction or mitigation of the event(s) causing
noncompliance.
Operator shall have the right to arbitrate any action taken
by the County under this provision in accordance with Section
13.8 of this Agreement.
Section 4 .20 RECORDS. Operator shall keep separate and
accurate records for the Landfill as provided in the Use Permit.
The County may, at its own expense (which may be recovered
as a Solid Waste program cost) , at any time during the term of
this Agreement, have the books and records of the Operator
examined for the sole purpose of verifying Operator's compliance
with the requirements of this Agreement. County shall give
thirty (30) days written notice to the Operator in advance of
such examination date.
Section 4 .21 HOST COMMUNITY. Operator agrees that an
appropriate amount of the Surcharge as determined by the County' s
Board of Supervisors may and shall be utilized pursuant to Board
Amended Landfill Franchise 19 September, 1994
Orders) for host community mitigation.
ARTICLE 5. PERFORMANCE OF COUNTY
Section 5. 1 GATE FEE COLLECTION SYSTEM. The computerized
Gate Fee Collection System, which shall be provided by Operator
in accordance with Section 4 .9 of this Agreement, shall be
approved by the County, which approval shall not be unreasonably
withheld.
Section 5 .2 INSPECTION OF SCALES. The County may, from
time to time during regular business hours, inspect the scales
and test the accuracy of same.
ARTICLE 6 . RATES
Section 6 . 1 BASE RATE. The Base Rate shall be determined
and established by Operator at its sole discretion.
Notwithstanding section 4 . 13, it is understood that the Operator
need not charge a uniform Base Rate to all customers, but may
vary the Base Rate as between different customers based on
various factors determined by Operator, including, but not
limited to, the quantity and type of waste delivered by each
customer to the facility and whether each customer has entered
into a disposal agreement with the Operator in which the customer
agrees to dispose of some or all of the customer' s future waste
stream at the Landfill.
Section 6 .2 SURCHARGE. The County may determine and
establish at least once every two years, effective on the date
determined by the Board of Supervisors (but initially no sooner
than two years from the effective date of this Agreement except
Amended Landfill Franchise 20 September, 1994
for the purpose of decreasing the Surcharge in accordance with
Section 6 .4 .d) , the Surcharge, which shall be added to the then
applicable Base Rate, and collected as part of the Gate Rate.
Operator will be provided at least ninety (90) days ' written
notice of any newly established Surcharge. In the absence of the
County establishing a particular Surcharge amount, the Surcharge
to be collected by the Operator for the County shall be thirty
percent (30%) of the then applicable Base Rate.
Section 6 .3 GATE RATE. The Gate Rate shall consist of the
Base Rate, Mandated Fees, and Surcharge.
Section 6 .4 INITIAL SURCHARGE. Effective on the effective
date of this Agreement, the Surcharge shall be as set forth in
this section.
a. Permanent Transfer Station. The Surcharge on Solid
Waste received at the Landfill via the Acme Fill Waste Recovery
and Transfer Station (commonly referred to as the "Acme Permanent
Transfer Station, " and hereinafter referred to as the "Transfer
Station" ) shall be as set forth in Section 6 .4 ( Initial
Surcharge) of the Franchise Agreement between the County and the
operators of the Transfer Station, as follows:
Amount. Twenty-five percent of the combined Transfer
Station Proprietary Rate and the Landfill Base Rate.
Funding of Programs from Surcharge. During the period
covered by the above initial Surcharge, costs of County programs
(required or authorized by the Use Permit or this Agreement)
shall be funded from said combined 25% Transfer Station and
Amended Landfill Franchise 21 September, 1994
Landfill Surcharge. In addition, any household hazardous waste
fee imposed by the Board pursuant to Public Resources Code
section 43213 shall be collected (deducted) from said combined
Surcharge amount.
Closure, Litigation. Operator agrees and acknowledges that
an appropriate amount (five percent) of the Surcharge as
determined by the County's Board of Supervisors may and shall be
utilized pursuant to Board Order(s) and a trust account
arrangement for any landfill closure or post-closure or related
litigation expenses. Any amount not so expended may be otherwise
utilized for other Surcharge purposes.
Reconsideration. Within or approximately six months from
the date of this Agreement, the County's Board of Supervisors
intends to reconsider and re-evaluate the household hazardous
waste programs, their levels of funding, whether one or more
programs should be modified, reduced, or eliminated, and a
Surcharge adjustment.
Collection. For Solid Waste received at the Landfill via
the Transfer Station, the combined Surcharge and any other Keller
Mandated Fees may be collected at the Transfer Station.
b. Other Wastes . The Surcharge on waste received at the
Landfill other than via the Transfer Station shall be ten percent
of the Base Rate.
Section 6 .5 DISPOSAL CONTRACTS. For all contracts for the
disposal of Solid Waste entered by Operator, the Surcharge
applicable at the time of the disposal contract shall apply for
Amended Landfill Franchise 22 September, 1994
the life of said disposal contract. The parties agree that any
later established surcharge amounts shall not apply to waste
received pursuant to such Solid Waste disposal contract for the
life of said disposal contract.
Operator shall advise County of any disposal contract
subject to the privileges of this section immediately upon
execution. Operator shall provide County with any and all
information requested by County concerning any such Contract,
including providing County with copies of such contracts upon
request. .
Section 6 . 6 SCHEDULE OF RATES. Operator shall at all times
maintain on file with the County, a schedule of Base Rates and
Gate Rates charged to each customer, including Solid Waste
received via the Transfer Station. The schedule shall specify
whether each customer delivers waste directly to the Landfill or
whether it is delivered by way of the Transfer Station or other
transfer or processing facility. The Schedule shall identify the
components of the rates charged at the Facility. The schedule
may include a standard Base and Gate Rate which Operator charges
unless a disposal agreement is entered, or other arrangements
made. Said schedule of Base and Gate Rates shall be updated
within ten days of material modification thereof. Material
modifications include, but are not limited to, changes to any
customer's Base and Gate Rate, and entering of a disposal
agreement or other agreement with new customer.
The purpose of this section is to ensure that the rates
Amended Landfill Franchise 23 September, 1994
charged by Operator as well as fees and surcharges imposed by
County as well as other governmental agencies are a matter of
Public Record, so as to promote cooperation and trust between the
Operator, the County, and the public. Towards this end, County
may request, and Operator shall provide to County, all
information reasonably necessary to effectuate the purpose of
this section.
ARTICLE 7 . PERSONNEL
Operator shall assign qualified personnel to operate the
site as may be required to assure a smooth and efficient
operation in compliance with all applicable Permits.
The County has the right to request, in writing,
administrative action, including the removal of any employee of
Operator who violates any provision of this Agreement, or who in
the opinion of such requesting party is unsafe, negligent, or
discourteous to the public or others in the performance of
his/her duties . Upon receipt of such a request, Operator shall
immediately take whatever administrative action, which, in its
judgment, is necessary to resolve the situation. Such action may
include removal of that employee from the Site.
A Site Supervisor employed by Operator shall be present at
the Site at all times that any operations are being conducted
thereon.
Operator shall file with the Director the names, addresses,
and telephone numbers of the Operator representatives who can be
contacted at any time in case of emergency. These
Amended Landfill Franchise 24 September, 1994
representatives shall be fully authorized to respond so as to
resolve the emergency.
ARTICLE 8. LANDFILL GAS
If at any time Operator voluntarily pursues the sale of gas
produced from the Landfill or the sale of electricity produced by
burning said gas, County may require the payment of a Surcharge
thereon.
ARTICLE 9 . CLOSURE AND POST CLOSURE
Section 9 . 1 CLOSURE RESPONSIBILITIES. Operator shall be
responsible for Site Closure and Post Closure Maintenance of the
Landfill according to all Permits and requirements of the
Regulatory Agencies. Operator will hold the County harmless for
the performance of its duties under this Article.
The County and Operator recognize the inevitability of Site
Closure. Both parties also recognize the existing uncertainties
yet to be resolved which may impact the date and total cost of
Site Closure and the need to commence closure activities promptly
upon cessation of disposal activities in a discrete portion or
phase of the Landfill .
The parties intend to provide for the public interest by
assuring that the appropriate financial mechanisms are put in
place by Operator to provide funds to pay the costs incurred for
Site Closure and Post-Closure maintenance as required by law.
Section 9 .2 FINANCIAL ASSURANCES. Operator shall provide
all financial assurances necessary to satisfy the provisions of
Public Resources Code Section (formerly Section 66796 .22 of the
Amended Landfill Franchise 25 September, 1994
California Government Code) , Title 14, California Code of
Regulations, Division 7, Chapter 5, Article 3.5 and all other
applicable provisions of California and Federal law. The
financial assurances shall include the establishment of a trust
fund or equivalent financial arrangement as evidence of financial
ability to provide for the cost of closure and post-closure
maintenance as required by law. Operator shall consult with the
County with respect to proposals to be made to the State
regarding the financial assurance to be provided. Operator shall
provide the County with adequate notice of any filings with the
State or hearings with respect to such proposals sufficient to
allow the County to participate in and provide input to the State
on the State's determinations on closure and post closure
requirements, including financial assurances to be imposed on the
Site.
Section 9 . 3 PERFORMANCE. Operator acknowledges that under
State and Federal law, Operator shall have the responsibility to
perform both closure and post closure activities in a timely,
cost-effective manner. Performance by Operator shall be
determined in accordance with State and Federal statutes .
The County and Operator agree that, to the extent site
closure and postclosure activities are funded from the Landfill
rates, it is in the local public interest to assure timely, cost-
effective closure and postclosure activities . The County shall
have the right to conduct such technical and financial review as
it deems necessary to protect the local public interest.
Amended Landfill Franchise 26 September, 1994
Section 9 .4 SIGNING OF INSTRUMENTS AND DOCUMENTS. From
time to time, either party shall at the request of the other
party and without further consideration, execute and deliver such
instruments and documents as may be reasonably necessary in order
to effectuate the purposes of this Article 9 .
Section 9 .5 FAILURE TO MEET CLOSURE AND POST-CLOSURE
OBLIGATIONS. In the event that Operator fails to perform its
obligations as set forth in this Article 9, or to enter upon
performance of same with due diligence after the determination of
an event of default in a manner described below in Article 11,
the County may enter the Landfill and perform the Site Closure
and Post-Closure activities required to remedy the default and
expend Site Closure funds for the costs involved.
ARTICLE 10. UNINTERRUPTED OPERATION
Section 10 . 1 ASSURANCE OF UNINTERRUPTED OPERATION.
Operator, in entering into this Agreement, assures that it will
provide from the Commencement Date for the operation of a Solid
Waste disposal facility at the Landfill in an uninterrupted
manner for as long as the Site is useful and usable, except as
provided in Section 11 .4 below. Operator acknowledges the
hardship that would occur if the Landfill is not operated
properly or is prematurely closed. The County and Operator
recognize that in the ordinary course of events, certain
unexpected events may result that may place a burden on the
requirement of uninterrupted operation. However, it is the
purpose of this Article 10 to establish that it is Operator's
Amended Landfill Franchise 27 September, 1994
obligation to avoid any interruption of operations except for
those that are outside of Operator's control, as provided by
Section 11.5 of this Agreement.
Section 10.2 LABOR DISPUTES. In the event of a labor
dispute, Operator shall use its best efforts to keep the Landfill
open and to operate it in accordance with this Agreement unless a
mutually acceptable disposal alternative is agreed upon by
Operator and the County.
ARTICLE 11. DEFAULT, REMEDIES
Because of the complex nature of this Agreement and the work
to be performed hereunder, together with the need for close
cooperation and coordination between the parties, it is not
anticipated that either party will declare the other in default
under the terms and conditions of this Agreement except as a last
resort. However, in the event of any such necessity, the
following provisions are made a part hereof.
Section 11 . 1 FAILURE TO PROSECUTE WORK. Should Operator
fail to prosecute the work or any severable part thereof in
conformity with the requirements of this Agreement, the Director
shall provide written notice to Operator specifying in detail the
defect or default in performance (the "First Notice" ) and
Operator shall have the right to cure same within a reasonable
period of time.
If after the First Notice is provided to Operator, the work
is not performed in accordance with the Director's specified time
frame and a reasonable time to cure so as to ensure its
Amended Landfill Franchise 28 September, 1994
completion in accordance with this Agreement, the Director shall
serve further notice (the "Second Notice") upon Operator of the
County's intention to take further action as provided by law.
The Director shall make appropriate and detailed written findings
of fact which specify the event of default.
No earlier than thirty (30) days after the Second Notice,
County shall have the power and ability, if Operator is still in
default, to take such actions as provided in law for remedying
the same, including the termination of this Agreement.
Should the County fail to perform any of its obligations
under this Agreement, Operator may declare the County in default
after following the same two notice and findings provisions
required of the County above. Thereafter,. Operator shall have
the power and ability, if the County is still in default, to take
such actions as provided in law for remedying the same, including
bringing suit in a court of appropriate jurisdiction for
equitable or legal relief or both.
The foregoing notwithstanding, neither party may bring an
action seeking money damages unless it has first provided the
other party with 30 days notice of its intention to do so
together with written notification of the specific actions which
the other party may take to remedy the default which will form
the basis for the claim for monetary damages . If the other party
in good faith commences the actions specified within the thirty
(30) day period, the first party shall not bring the action for
damages .
Amended Landfill Franchise 29 September, 1994
Section 11.2 CONVICTION OF CERTAIN CRIMES. Operator agrees
that a single conviction of Operator, its parent, subsidiaries or
operators, or their officers or employees at the level of Site
operations manager or above, acting within the scope of their
employment, of bribery, antitrust, corruption or theft relating
to or involving directly the Landfill Site shall constitute an
event of a breach of this Agreement subject thereupon to the
provisions of this Article unless Operator, promptly initiates
and follows through with appropriate disciplinary procedures and
action considering the nature of the offense and resolution by
the courts .
Section 11 .3 CONDEMNATION. In addition to any other remedy
available to the County, it has the right and authority under law
to condemn the Site.
Section 11 .4 RIGHT TO TAKE/RIGHT TO POSSESSION. In the
event that Operator chooses to no longer operate the Site,
Operator agrees that it will give County notice of its intention
to cease operation ninety (90) days prior to the cessation. If,
after receiving such notice, County initiates eminent domain
proceedings to acquire the Site, Operator agrees that it will not
object to or contest County' s right to take, or right of
possession of, the Site. Nothing contained herein shall
constitute a waiver of the right to contest valuation at any
stage of the proceedings. County and Operator agree that the
provisions of this paragraph may be enforced by means of the
remedy of specific performance.
Amended Landfill Franchise 30 September, 1994
Section 11 .5 FORCE MAJEURE. Operator shall not be liable
for a default if the failure to perform under the terms and
conditions of the Agreement arise out of causes beyond the
control or without the fault or negligence of Operator. Such
causes may include, but are not limited to, acts of God, or the
public enemy, acts of the County in either its sovereign or
contractual capacity, fires, floods, earthquakes, epidemics,
quarantine restrictions, suppliers ' and vendors ' strikes and all
other labor disputes, freight embargoes, and unusually severe
weather; but in every case the failure to perform must be beyond
the control and without .substantial default or negligence of
Operator. Operator shall make every reasonable effort to
mitigate the effects of said causes .
Section 11 . 6 SPECIFIC PERFORMANCE. Notwithstanding any
other available remedies, the obligations duties and rights of
each party under this Agreement shall be specifically enforceable
by the other party.
Section 11 .7 NONEXCLUSIVE REMEDIES. The rights and
remedies of either party to this Agreement as provided for in
this Article 11 shall not be exclusive, and are in addition to
any other rights and remedies provided by law or under this
Agreement; except that the right of either party to seek monetary
damages is limited as provided in Section 11 . 1 above.
ARTICLE 12 . INSURANCE AND BONDS
Section 12 . 1 WORKERS' COMPENSATION. Operator hereby
acknowledges that it is aware of the provisions regarding
Amended Landfill Franchise 31 September, 1994
Workers ' Compensation, Section 3700 of the Labor Code. Operator
shall comply with the provisions of such Section as amended from
time to time with regard to its employees and shall supply to the
County forthwith upon execution of this Agreement, and annually
thereafter, evidence of such compliance.
Section 12 .2 PUBLIC LIABILITY. Operator shall obtain from
a good and responsible company or companies doing insurance
business in the State of California, and pay for, maintain in
full force and effect for the duration of this Agreement and any
extension, a policy or replacement policy of comprehensive
liability insurance for the Landfill, in which the County is
named as an additional insured with Operator. Operator shall
furnish a Certificate of Liability Insurance to the Director
before execution of this Agreement by the County.
Notwithstanding any inconsistent statement in the policy
described by the Certificate of Liability Insurance or any
subsequent endorsement attached thereto, the protection offered
by the policy shall:
(a) Include the County, its officers, employees and
agents while acting within the scope of their duties under this
Agreement, the Use Permit, or any other County ordinance,
resolution or other rule relating to the operation, maintenance
or closure of the Landfill, as an additional insured covering
said duties against all third party claims for negligence; and
for indemnification of the County as provided by this Agreement.
(b) Provide for a combined single limit policy not
Amended Landfill Franchise 32 September, 1994
r
less than $10,000,000 per occurrence, combined bodily injury and
property damage. At every fifth year of this Agreement, this
$10,000,000 minimum limit shall be increased as directed by the
County but not more than 30% for each such five year period.
Section 12 . 3 OTHER INSURANCE PROVISIONS. All insurance
policies required by this Agreement shall bear an endorsement,
whereby it is provided that, in the event of expiration, or
proposed cancellation of such policy for any reason whatsoever,
the Director shall be notified in writing not less than thirty
(30) days before expiration or cancellation is effective.
Expiration, reduction or cancellation of any insurance
policy required by this Agreement without obtaining a replacement
policy pursuant to Section 12 .2 to meet the requirements herein
shall be considered a breach of this Agreement by Operator.
Operator shall also carry such other insurance as may be
required by law. Operator shall be solely liable for any claims
or liabilities caused by its failure to maintain insurance
required by law.
Section 12 .4 FAITHFUL PERFORMANCE SURETY. Operator shall,
prior to acceptance of waste at the Site under this Agreement,
provide to the County an irrevocable Performance Surety Letter of
Credit in the form set forth in Exhibit B hereto guaranteeing
Operator's performance of all provisions of this Agreement
(except Article 9, relating to Site Closure, for which separate
financial assurances are required by applicable law) in an amount
of not less than $1,000,000 .00. This Letter of Credit may also
Amended Landfill Franchise 33 September, 1994
be utilized to meet the security and performance requirement of
the Use Permit, except as to the closure requirements which will
be separately secured. If Operator or an affiliate acceptable to
the Director operates a transfer or processing station in the
County, from which transfer or processing station solid waste is
delivered to the Landfill, the Director may allow the Performance
Surety Letter of Credit required by this section to additionally
guarantee Operator's performance of all provisions of said
transfer station agreement or franchise.
ARTICLE 13. GENERAL PROVISIONS
Section 13 . 1 GUARANTY BY PARENT OR AFFILIATE. Prior to the
Commencement Date, and for all conditions and obligations of this
Agreement, Operator shall provide to the Director, proof of
guaranty by the parent or an affiliate of Operator acceptable to
the County, of the performance by Operator of each provision of
this Agreement to be performed by Operator. Proof of guaranty
shall be in the form set forth in Exhibit C.
Section 13 .2 ATTORNEY'S FEES. In the event of litigation
between the parties arising hereunder, each party shall pay and
bear its own litigation expenses, including attorney's fees.
Section 13.3 INDEMNITY AND HOLD HARMLESS AGREEMENT.
(a) All work and performances by Operator covered by
this Agreement shall be at the risk of Operator
(b) With respect to third-party claims, Operator
agrees to save, indemnify and keep harmless the County, its
officers, employees, agents and assign against any and all
Amended Landfill Franchise 34 September, 1994
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 by Operator, save and except claims or
litigation arising through the sole negligence or willful
misconduct of the County, and will make good to and reimburse the
County for any expenditures, including reasonable attorney's
fees, that the County may make by reason of such matters and, if
requested by the County, shall defend any such suit at the sole
cost and expense of Operator.
(c) With respect to third-party claims, the County
agrees to save, indemnify and keep harmless Operator, 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 sole
negligence or willful misconduct of the County, and will make
good to and reimburse Operator for any expenditures, including
reasonable attorney's fees, that Operator may make by reason of
such matters and, if requested by Operator, shall defend any such
suit at the sole cost and expense of the County.
(d) Should any party successfully challenge the
validity of this Agreement or the procedure by which this
Agreement was entered into or the validity of any County action
which authorizes the County to enter into this Agreement, then in
such case the Operator shall have no cause of action for damages
Amended Landfill Franchise 35 September, 1994
or any other relief against County as a result of such successful
challenge. In the event of any such legal challenge, Operator
shall defend such action or proceeding at its sole expense and
Operator shall save and hold County harmless from any claims or
awards for third party attorneys ' fees and costs.
Section 13 .4 ASSIGNMENT.
(a) Voluntary. Operator shall not sell, assign,
subcontract or transfer this Agreement or any part hereof, or any
obligation hereunder, without the written consent of County;
provided, however, that Operator may assign this Agreement
without the County's consent to any company which it controls, is
controlled by, or which is under common control with Operator.
As used in this Section, the term "control" with respect to a
company, means the beneficial ownership of more than 50% of the
voting stock of the company.
The term assignment shall include any dissolution, merger,
consolidation or other reorganization of Operator, which results
in change of control of Operator, or any sale or other transfer
of a controlling percentage of Operator' s capital stock. Any
attempted assignment not provided for above without such consent
shall be void ab initio.
(b) Involuntary. Except as may be permitted by paragraph
(a) above, no interest of Operator in this Agreement shall be
assignable by operation of law. Any such nonpermitted assignment
and any of the following acts, each of which are deemed an
involuntary assignment, shall provide County with the right to
Amended Landfill Franchise 36 September, 1994
elect to terminate the Agreement forthwith, without suit or other
proceeding:
( 1) If Operator 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 Operator such that would have
a materially adverse effect on Operator's ability to perform its
duties and obligations under this Agreement;
(3) If in any proceeding to which Operator is a party,
a Receiver is appointed with authority to take possession of
Operator's property such that would have a materially adverse
effect on Operator's ability to perform its duties and
obligations under this Agreement.
Section 13.5 COMPLETE AGREEMENT. No verbal agreement with
any officer, agency, or employee of the County or of Operator nor
any contract either before, during, or after the execution of
this agreement shall affect or modify any of the terms or
obligations herein contained unless a written agreement, signed
by both parties, specifically provides that same is an amendment
to this Agreement.
Section 13 .6 NO THIRD PARTY BENEFICIARY ENFORCEMENT. While
this contract benefits the public interest throughout Contra
Costa County, it is an Agreement between only Operator and the
County and, accordingly, only Operator and the County may enforce
same. No claims, demands, or causes of action by any entity,
party, or person claiming to be a third party beneficiary
Amended Landfill Franchise 37 September, 1994
hereunder shall be enforceable.
Section 13.7 SURVIVAL OF OBLIGATIONS. County' s rights to
any damages, remedies, insurance coverage and indemnification
under this Agreement shall survive the termination of this
Agreement.
Section 13.8 ARBITRATION. Any controversy or claim
submitted to arbitration pursuant to the express provisions of
this Agreement, or by mutual subsequent agreement, and arising
out of or relating to this Agreement, or the breach thereof,
shall be governed by the provisions of Part III. , Title 9 of the
Code of Civil Procedure, sections 1280 et seq. as amended from
time to time. The arbitration shall be de novo and subject to a
de novo appeal or challenge brought in the Contra Costa County
Superior Court as to any alleged error of law or as to the
admissibility of evidence. California judicial rules of evidence
shall apply to the arbitration proceedings . The arbitration
decision shall be decided under and in accordance with California
law, supported by a preponderance of evidence and in writing in
the form of a Statement of Decision pursuant to Code of Civil
Procedure Section 632 .
Section 13 .9 CONFLICT.
(a) This Agreement is intended to implement prior
Landfill approvals, including the Use Permit (and Ordinance No.
88-81 if applicable to the Landfill) . In the case of any
apparent or potential conflict between the provisions of this
Agreement and the provisions of the Use Permit or any involved
Amended Landfill Franchise 38 September, 1994
development agreement, the provisions of this Agreement, the Use
Permit and/or development agreement shall be read together and
harmonized to the maximum extent possible to effectuate the
intentions of the parties. In the case of any unresolved
conflict between the provisions of this Agreement and the
provisions of the Use Permit or any involved development
.agreement, the provisions of the Use Permit and/or development
agreement shall control. Notwithstanding any other provision in
this Agreement or in the Use Permit, importation of waste not
originating in Contra Costa County shall be allowed as required
by recent U.S. Supreme Court cases.
(b) Operator has entered into an agreement with Contra
Costa Water District ( "CCWD" ) the relevant portions of which are
attached hereto as Exhibit D, which Exhibit is incorporated
herein by this reference. If there is any conflict between this
Agreement and Exhibit D, this Agreement shall prevail with
respect to the relationship between Operator and the County.
Section 13. 10 CAPTIONS. The captions and headings used in
this Agreement are for convenience and reference only and are not
to be construed as controlling over the text of this Agreement.
Section 13 . 11 DELEGATION BY BOARD. The Board may, in its
discretion, delegate to a County employee or hearing officer any
of its functions expressly or impliedly arising from this
Agreement provided that in such case any decision made by such
Board, County employee or officer may be appealed de novo to the
Board.
Amended Landfill Franchise 39 September, 1994
Y
' Y
Section 13. 12 SEVERABILITY. If any term, provision,
covenant or condition ( "provision" ) of the Agreement or the
application of any provision of this Agreement to a particular
situation is held by a court of competent jurisdiction to be
invalid, void or unenforceable, the remaining provisions of this
Agreement, or the application of this Agreement to other
situations, shall continue in full force and effect.
Notwithstanding any other provision of this Agreement, if any
provision of this Agreement in itself or as applied in any
particular situation is held to be invalid, void or
unenforceable, it is the intention of the parties that the
remaining portions of this Agreement shall be continued in full
force and effect and that the invalid, void or unenforceable
provision be severed therefrom.
Section 13 . 13 MASCULINE GENDER USED. The masculine gender
is sometimes used in this Agreement and is so used for
convenience only and is not otherwise intended.
Section 13. 14 GOVERNING LAW. This Agreement shall be
governed by and construed in accordance with the laws of the
State of California.
Section 13. 15 NOTICES. All notices or other communications
( "Notice") to be given pursuant to this Agreement, including the
notices required in Articles 6 and 10 hereof, shall be in writing
and shall be deemed given when mailed by registered or certified
United States mail, addressed to the parties as follows:
To County: County of Contra Costa
Attn: County Administrator
Amended Landfill Franchise 40 September, 1994
To Operator: Keller Canyon Landfill Company ,
C/O: Browning Ferris Industries of California
Attn: Ron Pfeifer, Regional Vice President
9188 Glen Oaks Blvd. , 3rd Floor
Sun Valley, CA 91352
With Courtesy as designated by Browning-Ferris Industries of
California.
A change in address or a change in the person or title to
which Notice is to be given shall be effectuated by Notice to the
other party.
IN WITNESS WHEREOF, this Agreement is effective on the date
first provided on page one hereof.
OPERATOR
Keller Canyon Landfill Company
a California corporation
By:�
Pres ent
By:
ice-Pre dent
CO NTY OF A
By:
Cha r Board of Supervisors
ATTEST: By: OPJ All 0�.0
C rk o the Soard, Deputy
APPROVED AS TO FORM: By:
ltf: 12.kc994 County Counsel DEP
CONTRA CUSiA COU141Y. CALIF.
Amended Landfill Franchise 41 September, 1994
, s
1
EXHIBIT A
SITE MAP
FIGURE 2.1
PROJECT SOLANO
i 1 i11. i
Tit ~��lo wAir 1 / LOCATION
I1 1t ;j, ,., 5 Jyr MARIN �.
f r f� (i .i .f ,r ,� •
/'' � ,_• r- t!!• t I ��: �' ' } �• CONTRA
EST':ILELANO A0, r I ,'"' t COSTA
Oakland
go—,
`:` ` f .r \P'�,,f;::, ..'' ~, 1`• ; )ft San Francltco ALAMEO
. •�.;� , o wtrrarr,tas,r�,ra rar ra � ..j 4J _..•. .. ,�
r
r' t< , ;f
REGI
,��%•� : LOCATION
`' �f' t..,:tom ,�:`... ; •..��sdr:' : . ..
�' .�r � .� ;�•`' ,, fat.:::;�;:;�.�•;
't •,:� �' ?:;f:t�is} ..$•L•:,y:.'•, '\.a:.^'r...
.t.. , �:i•ti:•: 4-:'i;{:;:S•y1•:v: 'I ��'r� :•, v::�A{•:•4'%:-Y:::1°'':•::•:V'•}'•:•:r ..
• .`�' il,f ��' •2.•• 'r f}1• S::� •1 t t/ •!'t:r::.:.{,.:r.}:ti�S{f:•5:.;..•{:}:;.;.*
:;..-'-`4V � »..,. •:. say.,., a''�;; :•�< ...
.:ta;s:.�,i�<-;�':t•;. � •r � }. ;;:y;.�'if;:;;' •;:;.::.�:>��:�'�=St�c:,y, :::
t
vF `{:h•. �•
LEGEN
► , ' .•• 't's'`f`ii'^';>;,;: MAJOR SITE .ComPONENTS:
.r. +.: Prlrilnr Project Areal•
} ,f c' ,..+ ,. \ lY ::•>::::,< �a,; '•:rwIIIIIwIIII Extent 5) Olattorbandl
;' "'_ kxlent I Wa+itb Placem8n(
OVerllll �'ioject Boundary.'
♦ r t :. 4ii:t `"dbnerit Plan .. f ' l
Special Buffer-:Area
ft
�. ��, .iK�t rs=sty j t /. .r'•.;:•%r•:::::•::•: +. .9f<,::..'•:.f;... •.
. ^�� �+' •.+,�r� ,�•.r, /T !, '(• .�' " ( ,..w trr rr fi`'+i<�+i Ii++� :,vf i:: ��?::;f ;'�r,:
filli
(- �; _ F :';'.#•...:.jYir `':1
.: -^�. ,'•}„ -• ,..::/'� ,rrf' ';, � �; i�> : iia•`•:?:::�:'v�•�:•:i:`�:''•..
.. MMS�M��� t•. �,r0�. Uwt•.�P,+ '.4,. • ,\ '.y::y,v.w•.:. .��•
� tUALAIL
NO� P1#QJE7 (LO 1 ,TIOt J l 1 3
1000 ( 2Vd0..
ef
....
Z;• ; �. ..I'r I�tit. t-.,J -� , &CALE'IN EEt.
C ,
}l
EXHIBIT C
GUARANTY
This Guaranty is made and entered into this _ } day of Okl e r 1994 ,
by and between the County of Contra Costa (hereinafter "County") and
A_� a De.I o wa re--
corporation ("Guarantor") .
RECITALS
WHEREAS, Keller Canyon Landfill Company ("Operator"), an [indirect
wholly owned subsidiary] of Guarantor desires to enter into a certain First
Ameded Landfill Franchise Agreement with the County (the "Agreement") for the
Keller Canyon Landfill;
WHEREAS, pursuant to Section 13.1 of the Agreement, the County has
demanded that Operator obtain certain assurances from Guarantor, as to all
conditions and obligations of the Agreement to be fulfilled by Operator; and
WHEREAS, in order to induce the County to enter into the Agreement with
Operator, Guarantor desires to provide the County with said assurances as to all
conditions and obligations of the Agreement to be fulfilled by Operator,
NOW, THEREFORE, the County and Guarantor hereby agree as follows:
1. Guarantor hereby guarantees to the County the full performance by
Operator of all conditions and obligations in the Agreement which are to be
fulfilled by Operator, provided that the County has fulfilled all of its obligations
under the Agreement, and in particular, without limiting the foregoing, that the
County has provided Operator with the requisite notice(s), opportunities to cure
and any option to arbitrate notice(s), opportunities to cure and any option to
arbitrate as provided for in the Agreement.
' cr
EXHIBIT D
[Relevant portions of Agreement between
Operator and Contra Costa Water District]
AGREEMENT
THIS AGREEMENT ("Agreement") In entered into on June 20,
1990 by and between the Contra Costa Water District, a district
organized under Division 12 of the Water Code ("District") ,
Browning-Ferris Industries, Inc. , a Delaware corporation ("BFI") ,
and Keller Canyon Landfill company, Inc. ("KCLC") , a California
corporation and a wholly owned subsidiary of BFI.
RECITALS
This Agreement is entered into with reference to and reliance
upon the following factual context:
(d) The District provides the drinking water for nearly
400,000 people residing in the District and is the water supplier
' r the major utility and industrial plants along the northern
Contra Costa County shoreline, various municipal and industrial
uses, landscape irrigation and irrigated agriculture. The
District's present source of supply is through the Contra Costa
Canal ("Canal") , which presently carries water diverted from the
Sacramento-San Joaquin Delta at two locations, Rock Slough near
Knightsen, and Mallard Slough near Pittsburg, to the terminus of
the Canal at the Martinez Reservoir and points in between. The
Canal was completed in the 1940's and has been operated by the
District since 1972.
(e) On March 1, 1989, KCLC submitted to the County of Contra
Costa ("the County") a Comprehensive Project Description of the
proposed Keller Canyon Sanitary Landfill ("Keller Canyon Landfill")
tv initiate the process of obtaining from the County the necessary
land use permit and amendments required for the development and
NOW, THEREFORE, the parties hereto agree as follows:
1. Amendment to Conditions of AonrovAli
KCLC shall use its best efforts to implement the Conditions
of Approval of the Keller Canyon Landfill is * manner which
incorporates the following contractual provisions hereby agreed
upon by KCLC, BFI, and the District. KCLC shall also use its best
efforts to incorporate the following contractual provisions into
the Conditions of Approval of the Keller Canyon Landfill or a
binding implementation program for the Conditions of Approval.
BFI shall use its best efforts to implement the Conditions of
Approval of the Vasco Road Landfill to incorporate the following
intractual provisions hereby agreed upon by KCLC, BFI, and the
District. BFI shall also use its best efforts to incorporate the
following contractual provisions into the Conditions of Approval
of the Vasco Road Landfill or a binding implementation program for
the Conditions of Approval.
The parties desire to seek to incorporate in the manner set
forth in this paragraph the following obligations go these
contractual obligations can be enforced by the respective Counties
using all available remedies, in addition to the District's ability
to enforce these provisions pursuant to this Agreement.
• '3
Keller Canyon Landfill
(a) Water Quality. KCLC shall, upon issuance of all
requisite regulatory approvals and permits, promptly pay to
District the amount of $400,000 to be used as District may decide
in its sole discretion to address water quality issues associated
with the Canal or for potential Canal protection measures.
At any time after the Keller Canyon Landfill commences
operation, in the unlikely event that it is demonstrated that
intrusion of water containing leachate-contaminated surface water
or groundwater discharged from the landfill into the Canal is
eminent, then, KCLC at its cost shall immediately take all steps
reasonably necessary to provide protection against such intrusion,
including without limitation the repair, maintenance, replacement
or reconstruction of Canal facilities (e.g. , replacement by
enclosed pipeline, etc. ) in accordance with the Districts
specifications and with District's technical concurrence.
(b) Groundwater Monitoring. KCLC shall install at least
three (3) monitoring stations to ensure detection of movement of
groundwater contaminants from the Keller Canyon Landfill site
toward the Delta, the number, specifications, and locations of, and
the frequency of data collection from, which shall be agreed upon
by the respective staff and consultants of KCLC and District, or
In the alternative, KCLC shall agree to install at least three (3)
monitoring stations to ensure detection of movement of groundwater
from the Keller Canyon Landfill site toward the Delta, the precise
number, specifications, and locations of, and the frequency of data
collection from, which shall be determined by the Regional Water
Quality Control Board, San Francisco Bay Region ("Regional Board") .
(c) Data from Groundwater Monitoring Stations. KCLC shall
provide to the District simultaneously with the submission to the
Regional Board all data collected from the groundwater monitoring
stations described above and shall provide to District staff and
its consultants the right to inspect each groundwater monitoring
station at reasonable times to enable the District to verify the
data collected. /
(d) Regional Board Submittals. KCLC shall forthwith
provide the District with all information and documentation
submitted to date to the Regional Board in connection with its
application for a waste Discharge Permit for the Keller Canyon
Landfill. KCLC shall immediately notify the Regional Board of the
-existence of this agreement and transmit a copy of this agreement
to the Regional Board. With respect to information and
documentation to be submitted in the future to the Regional Board,
KCLC shall use its beat efforts to provide the District with all
such information and documentation to the District at least one (1)
week prior to submittal to the Regional Board, and shall in any
event provide the District with all such information and
documentation no later than simultaneously with its submission to
the Regional Board. The District may generate comments pertaining
to any topics discussed herein or in any modification hereof and
KCLC shall forward such comments to the Regional Board promptly
upon KCLC's receipt of the comments.
(e) iL tter. If District notifies KCLC that litter
generated by the Keller Canyon Landfill is adversely affecting the
Canal or the Canal right-of-way, then KCLC shall immediately
ndertake such action as is reasonably necessary to remedy the
situation, including without limitation litter pickup in the
affected areas, or installation of additional litter control
measures at the landfill. If KCLC fails to take such action
Immediately after receiving notice from the District, and if the
problem arises as the result of the operation or development of the
Keller Canyon Landfill, then (1) the District may provide for
litter pickup or other such measures at the canal or the Canal
right-of-way as the District determines are reasonably necessary
to alleviate the identified problem; and (ii) KCLC shall reimburse
the District for the reasonable cost of such litter pickup or other
such measures.
(f) Mitigation of Bird Problems. If birds cause a potential
water quality problem at the Reservoir in the judgment of the
District or any regulatory body concerned with water quality,
District and BFI shall jointly request the County Health Services
Department to immediately investigate the matter and determine what
measures, including without limitation a contingency bird control
program, are reasonably necessary in order to mitigate the adverse
impacts of birds related to the Vasco Road Landfill. These
mitigation measures shall be carried out at the sole expense of
BFI to the extent that the problem is attributed by the County
Health Services Department to the Vasco Road Landfill.
2. Relation to Regulatory Approvals.
(a) This Agreement is not an approval 'of the Keller Canyon
Landfill or the Vasco Road Landfill or any aspect of the
development, operation, or expansion of either landfill. The
District does not have any authority to approve or disapprove
either landfill except with regard to the provision of water
service to, and the annexation into the District and Improvement
District No. 1 of either landfill site. Nothing in this Agreement
shall be construed to in any way affect the District's
discretionary determinations with respect to these matters or to
require the District to petition the respective Local Agency
Formation Commissions for the counties of Alameda or Contra Costa
for such annexation.
(b) The obligations set forth herein are in addition to,
and independent of, KCLC's and BFI 's obligations pursuant to the
Conditions of Approval of the Keller Canyon Landfill and the Vasco
Road Landfill, respectively. Whether or not either County agrees
to amend the respective Conditions of Approval to add the
conditions set forth in paragraph 1, subparagraphs (a) through (e)
for Keller Canyon Landfill and (a) through (f) for Vasco Road
Landfill, or agrees to implement the conditions of Approval in a
manner which would incorporate the provisions of those
subparagraphs, all obligations of KCLC and BFI set forth in those
subparagraphs shall be enforceable obligations of KCLC and BFI by
virtue of this Agreement. The obligations of KCLC under this
Agreement shall be performed before the Keller Canyon Landfill
receives any waste.
(c) Nothing in this Agreement shall be construed to in
L..Ay way limit any remedies which the District may have with regard
to the matters discussed herein or to provide to the District any
enforcement powers which the District does not otherwise possess
with respect to the Conditions of Approval. The parties agree that
the primary authority with responsibility for enforcing the
conditions of Approval is the county within whose jurisdiction the
particular landfill lies.
(d) In their oral and written submittals for other county
approvals and approvals from certain agencies required for the
operation, development or future expansion of the Vasco Road
Landfill, BFI shall at all times refer to the Los Vaqueros Project
as an existing project. Likewise, in its oral and written
'imittals for approvals required for the development and operation
of the Reservoir, the District shall at all times refer to the
Vasco Road Landfill as an existing project.
r
n •
(e) KCLC staff and District staff have conferred regarding
drinking water and groundwater protection issues and available
remedies. Based on all information presently available and the
additional protection not forth in this agreement, District staff
have determined that sufficient measures will be undertaken before
the Keller Canyon Landfill accepts any waste to protect against
contamination of the waters in the Canal.
(f) Nevertheless, to provide further protection against
possible groundwater problems, KCLC and the District agree that,
if the Keller Canyon Landfill would render it impossible or
impractical for the District to obtain or maintain all regulatory
approvals necessary to continue to operate the Canal to provide
drinking water in compliance with all applicable water quality
standards, then the District shall be entitled to pursue any
administrative or judicial remedies that it may have, including
without limitation those set Forth below in this subparagraph.
Similarly, BFI and the District agree that, if the operation or
further development of the Vasco Road Sanitary Landfill, either
independently or cumulatively in conjunction with the operation or
further development of the Altamont Sanitary Landfill and the Marsh
Canyon Landfill, would render 'it impossible or impractical for the
District to obtain all regulatory approvals necessary to construct
and operate the Reservoir to provide high quality drinking water
in compliance with all applicable water quality standards or to so
)perate the Reservoir, then the District shall be entitled to
pursue any administrative or judicial remedies that it may have,
including without limitation those set forth below in this
subparagraph.
n
Specifically, the District shall be entitled to seek any
compliance, cease-and-desist, or other orders which may be imposed
by any agency or court, including without limitation the Regional
Board. Without limiting the foregoing, the District may seek any
available orders from the Regional Board, including without
limitation orders requiring additional detection monitoring,
verification monitoring, corrective action, or closure of the
landfill pursuant to 23 California Code of Regulations sections
2550-2559 and 2593 and other similar and successor regulations.
The District, KCLC, and BFI acknowledge that these regulations
apply to all existing and proposed landfills. The determination
the appropriate order or remedy shall be made by the Regional
Board, as provided by applicable state law and regulations. KcLC
and BFI shall consult promptly with the District regarding any such
proceeding sought by the District, and shall provide the District
with copies of all additional notices and documentation submitted
to or received from the Regional Board in connection with any such
proceeding. Finally the parties shall be entitled to seek any
available judicial remedies at any time. This agreement does not
constitute a waiver of any contentions, defenses, or objections
that any party hereto may have regarding any regulatory or judicial
proceeding commenced by any other party.
3. Emergency Contact: For purposes of facilitating
communication by the District to KCLC or BFI, KCLC and BFI shall
each designate an emergency contact person for the District, and
each shall provide the name and telephone number of such person.
(a) The District shall be entitled to contact tits emergency
contact person designated by KCLC directly if problems arise at or
near the Canal or Mallard Slough relating to groundwater, litter
control, or other matters and such problems are or may be caused
by development or operation of the Keller Canyon Landfill. Until
another emergency contact person may be designated, the emergency
contact person for KCLC shall be Boyd H. Olney, whose telephone
number is, (415) 685-4716.
(b) The District shall be entitled to contact the emergency
contact person designated by BFI directly if problems arise at or
near the Reservoir relating to groundwater, bird control, litter
)ntrol, or other matters and such problems are or may be caused
by development or operation of the Vasco Road Landfill. Until
another emergency contact person may be designated, the emergency
contact person for BFI shall be Tim Cox, whose telephone number is
(415) 447-0491.
Notices and demands made orally shall subsequently be
conf armed in writing in the manner set forth in paragraph 5 herein.
4 . Water Treatment Byproducts. Neither KCLC nor BFI shall
unreasonably refuse to accept for disposal the District's water
treatment byproducts generated by the Bollman Treatment Plant or
any water treatment plant that may commence operation in the
future, assuming the byproducts comply with applicable regulatory
requirements.
5. General Provisions.
(a) poor Agreements. This agreement contains tits sole
and only agreement of the parties hereto relating to the Canal,
M
f`f
successors, assigns, and subsidiaries.
(1) governing Law. This Agreement shall be governed by
and construed according to the laws of the State of California.
(j) Interpretatign. This Agreement has been negotiated,
reviewed, and revised by legal counsel for each of the parties
hereto. This agreement shall not be subject to any rule of
construction or inference that an agreement or any ambiguities in
an agreement shall be construed against the drafting party.
(k) Warranty of Authority. Each party hereto warrants that
the person executing this Agreement on its behalf is in fact duly
authorized to do so.
IN WITNESS HEREOF, the parties hereto have executed this
'-greement on the date first above written.
CONTRA COSTA WATER DISTRICT KELLER CANYON LANDFILL
COMPANY, INC.
By-
By:
Be to Boatmun, Presdent Boyd H. Olney, Pr sident
Board of Directors KELLER CANYON LANDFILL
COMPANY, INC.
Attes •
BROWNING-FERRIS INDUSTRIES,
INC.
S cretary
By:
'Rell D. Wise, ce'-Pres dent
APPROVED AS TO FORM: BROWNING-FERRIS INDUSTRIES, INC.
APPROV D AS TO FORM:
By:
r L AND POLISNER By•
To ruen
For TITCHELL, MALTZMAN,
MARK, BASS, OHLEYER &
MISHEL
1A
5
COUNTY OF CONTRA COSTA
STATE OF CALIFORNIA
PERMANENT TRANSFER STATION
FRANCHISE AGREEMENT
RECVED
OCT 1 01994
FJF CLIEFIK BOARD OF SUPE CONTRA COSTA CO i$ORS
September, 1994
}
T
TABLE OF CONTENTS - ACME WASTE RECOVERY AND TRANSFER STATION
RECITALS 1
ARTICLE 1. INTRODUCTORY PROVISIONS 2
Section 1. 1 RECITALS INCORPORATION. . . . . . . . . 2
Section 1.2 EFFECTIVE DATE, EFFECT. . . . . . . . . . . 2
Section 1.3 CONDITIONS OF APPROVAL. 2
Section 1.4 OPERATOR ACKNOWLEDGMENT. 3
Section 1.5 COUNTY DISCRETION AND INTEREST. . . . . . 3
ARTICLE 2 . DEFINITIONS 4
Section 2 . 1 AGREEMENT. . . . . . . . . . . . . . . . 4
Section 2 .2 ACTIVITIES REPORT. . . . . . . . . . . . . 4
Section 2 .3 ANALYSIS PERIOD. . . . . . . . . . . . . . 5
Section 2 .4 COUNTY. . . . . . . . . . . . . . . . . . . 5
Section 2 .5 DIRECTOR. . . . . . . . . . . . . . . . . . 5
Section 2 . 6 EMERGENCY. . . . . . . . . . . . . . 5_
Section 2 . 7 GATE FEE COLLECTION SYSTEM. . . . . . . . . 5
Section 2 .8 GATE RATE. . . . . . . . . . . . . . . . . 5
Section 2 .9 HOURS OF OPERATION. . . . . . . . . . . . . 6
Section 2 . 10 HOURS OF ACCESS. . . . . . . . . . . . . . 6
Section 2 . 11 KELLER LANDFILL. . . . . . . . . . . . . . 6
Section 2 . 12 MANDATED FEES. . . . . . . . . . . . . . . . 6
Section 2 . 13 OPERATOR. . . . . . . . . . . . . . . . . 6
Section 2 . 14 PERMITS. . . . . . . . . . . . . . . . . . 7
Section 2 . 15 REGULATORY AGENCIES. . . . . . . . . . . . 7
Section 2 . 16 SCHEDULE OF CHARGES. . . . . . . . . . . . 7
Section 2 . 17 SOLID WASTE. . . . . . . . . . . . . . . . 7
Section 2 . 18 SOLID WASTE PROGRAMS. . . . . . . . . . . 9
Section 2 . 19 SURCHARGE. . . . . . . . . . . . . . . . . 9
Section 2 .20 SURCHARGE PAYMENTS. . . . . . . . . . . . 9
Section 2 .21 TRANSFER STATION. . . . . . . . . . . . . 9
Section 2 .22 TRANSFER STATION PROPRIETARY RATE. . . . . 9
Section 2 .23 USE PERMIT. . . . . . . . . . . . . . . . 10
ARTICLE 3 . TERM OF AGREEMENT 10
ARTICLE 4 . PERFORMANCE OF OPERATOR 10
Section 4 . 1 OPERATION OF TRANSFER STATION. . . . . . . 10
Section 4 .2 UNACCEPTABLE WASTE. . . . . . . . . . . . . 10
Section 4 . 3 INSPECTION, INVESTIGATION, AND EVALUATION
OF SITE. . . . . . . . . . . . . . . . . . . . . . 11
Section 4 .4 PERMITS. . . . . . . . . . . . . . . . . . 11
Section 4 .5 STATUS OF TITLE. . . . . . . . . . . . . . 12
Section 4 . 6 GATE FACILITIES. . . . . . . . . . . . . . 12
Section 4 . 7 OPERATION OF GATE FEE COLLECTION SYSTEM. 13
Section 4 . 8 FEE COLLECTION. . . . . . . . . . . . . . . 13
Section 4 .9 . PAYMENT TO COUNTY. . . . . . . . . . . . . 13
Section 4 . 10 HOURS OF ACCESS. . . . . . . . . . . . . . 13
Transfer Station Franchise i September, 1994
t
r
v
Section 4 . 11 NONDISCRIMINATORY SERVICE. . . 14
Section 4 . 12 ACCESS ROADS, HAUL ROADS AND SERVICE
ROADS. . . . . . . . . . . . . . . . . . . . . . . 14
Section 4 . 13 LITTER MANAGEMENT. . . . . . . . . . . . . 14
Section 4 . 14 ENVIRONMENTAL MITIGATION. . . . . . . . . 15
Section 4 . 15 RECYCLING/RESOURCE RECOVERY PROGRAMS. . . 15
Section 4. 16 ACTIVITIES REPORT. . . . . . . . . . . . . 15
Section 4 . 17 PENALTY SCHEDULE FOR NONCOMPLIANCE. . . . 15
Section 4 . 18 RECORDS. . . . . . . . . . . . . . . . 16
Section 4. 19 HOST COMMUNITY. . . . . . . . . . . . . 17
ARTICLE 5. PERFORMANCE OF COUNTY 17
Section 5 . 1 GATE FEE COLLECTION SYSTEM. . . . . . . . . 17
Section 5.2 INSPECTION OF SCALES. . . . . . . . . . . . 17
ARTICLE 6 . RATES 18
Section 6 . 1 PROPRIETARY RATE. . . . 18
Section 6 .2 SURCHARGE. . . . . . . 18
Section 6 .3 GATE RATE. . . . . . . . . . . . . . . 19
Section 6.4 INITIAL SURCHARGE. . . . . . . . . . . . . 19
Section 6 .5 CONTRACTS. . . . . . . . . . . . . . . . . 20
Section 6 . 6 SCHEDULE OF RATES. . . . . . . . . . . . . 20
Section 6 .7 SELF-HAUL RATES. . . . . . . . . . . . . . 21
ARTICLE 7 . PERSONNEL 21
ARTICLE 8. UNINTERRUPTED OPERATION 22
Section 8 . 1 ASSURANCE OF UNINTERRUPTED OPERATION. . . . 22
Section 8.2 LABOR DISPUTES. . . . . . . . . . . . . . . 23
ARTICLE 9 . DEFAULT, REMEDIES 23
Section 9 . 1 FAILURE TO PROSECUTE WORK. . . . . . . . . 23
Section 9 .2 CONVICTION OF CERTAIN CRIMES. . . . . . . . 25
Section 9 .3 CONDEMNATION. . . . . . . . . . . . . . . . 25
Section 9 .4 RIGHT TO TAKE/RIGHT TO POSSESSION. . . . . 25
Section 9 .5 FORCE MAJEURE. . . . . . . . . . . . . . . 26
Section 9 .6 SPECIFIC PERFORMANCE. . . . . . . . . . . 26
Section 9 .7 NONEXCLUSIVE REMEDIES. . . . . . . . . . . 26
ARTICLE 10. INSURANCE AND BONDS 27
Section 10. 1 WORKERS ' COMPENSATION. . . . . . . . . . . 27
Section 10.2 PUBLIC LIABILITY. . . . . . . . . . . . . 27
Section 10 . 3 OTHER INSURANCE PROVISIONS. . . . . . . . 28
Section 10 .4 FAITHFUL PERFORMANCE SURETY. . . . . . . . 28
ARTICLE 11. GENERAL PROVISIONS 29
Section 11 . 1 GUARANTY BY PARENT OR AFFILIATE. . . . . . 29
Section 11 .2 ATTORNEY' S FEES. . . . . . . . . . . . . 29
Section 11 . 3 INDEMNITY AND HOLD HARMLESS AGREEMENT. . . 29
Section 11.4 ASSIGNMENT. . . . . . . . . . . . . . . . 31
Section 11 .5 COMPLETE AGREEMENT. . . . . . . . . . . . 32
Section 11 . 6 NO THIRD PARTY BENEFICIARY ENFORCEMENT. 32
Transfer Station Franchise ii September, 1994
c
i
t-
Section 11.7 SURVIVAL OF OBLIGATIONS. . . . . . . . . . 33
Section 11.8 ARBITRATION. . . . . . . . . . . . . . . . 33
Section 11.9 CONFLICT. . . . . . . . . . . . . . . . . 33
Section 11. 10 CAPTIONS. . . . . . . . . . . . . . . . . 34
Section 11. 11 DELEGATION BY BOARD. . . . . . . . . . . 34
Section 11 . 12 SEVERABILITY. . . . . . . . . . . . . . . 34
Section 11. 13 MASCULINE GENDER USED. . . . . . . . . . 35
Section 11. 14 GOVERNING LAW. . . . . . . . . . . . . . 35
Section 11. 15 NOTICES. . . . . . . . . . . . . . . . . 35
Section 11. 16 JOINT AND SEVERAL RESPONSIBILITY. . . 36
Transfer Station Franchise iii September, 1994
i
1
COUNTY OF CONTRA COSTA
STATE OF CALIFORNIA
FRANCHISE AGREEMENT
FOR THE
ACME FILL WASTE RECOVERY AND TRANSFER STATION
THIS FRANCHISE AGREEMENT FOR THE ACME WASTE RECOVERY AND
TRANSFER STATION (the . "Agreement" ) is made and entered into this
by and between the COUNTY OF CONTRA COSTA
(hereinafter "County" ) and BFIC, Inc. , a California Corporation,
and ACME Fill CORPORATION, a California Corporation (hereinafter
jointly referred to as "Operator") . -
RECITALS
WHEREAS, the legislature of the State of California has
adopted the California Integrated Waste Management Act of 1989,
which assigns certain responsibilities for the County' s solid
waste planning, management, program implementation, and
regulation to the Contra Costa County Board of Supervisors; and
WHEREAS, on 15 December 1987, the Board of Supervisors of
Contra Costa County approved Land Use Permit No. 2122-86 for the
Acme Fill Waste Recovery and Transfer Station ( "Transfer
Station" ) subject to the applicable conditions of approval,
subject to subsequent amendments thereto by the Board of
Supervisors; and
WHEREAS, the County adopted Ordinance No. 88-81, which
provides that a solid waste facility may be operated within the
County only upon the approval of a franchise agreement by the
County or upon the operator of a solid waste facility entering
Transfer Station Franchise 1 September, 1994
into a contract with the Contra Costa County Board of Supervisors
to operate such facility; and
WHEREAS, Operator has requested that the County enter a
franchise Agreement with Operator pursuant to Ordinance No. 88-
81; and
WHEREAS, recent United States Supreme Court cases decided
under the Commerce Clause of the United States Constitution
generally prohibiting states and their political subdivisions
from erecting barriers to the free flow of solid waste (and
thereby discriminating against interstate commerce) significantly
affects the solid waste industry, and affects the parties hereto;
NOW, THEREFORE, the County and Operator, for and in
consideration of the covenants and agreements as hereinafter set
forth and for other good and valuable consideration, the receipt
and sufficiency of which is hereby acknowledged, do mutually
agree as follows:
ARTICLE 1. INTRODUCTORY PROVISIONS
Section 1. 1 RECITALS INCORPORATION. The Recitals set forth
above, and all defined terms set forth in such Recitals and in
the introductory paragraph preceding the Recitals, are hereby
incorporated into this Agreement as if set forth herein in full.
Section 1 .2 EFFECTIVE DATE, EFFECT. This Agreement is
effective on the date mentioned in the first paragraph of page
one hereof.
Section 1.3 CONDITIONS OF APPROVAL. Operator acknowledges
and agrees that all of the terms and conditions of the Use
Transfer Station Franchise 2 September, 1994
Z
Permit's Conditions of Approval and any amendments thereto, are
reasonable, legal and valid and that Operator is barred from any
action or proceeding -or any defense of invalidity or
unreasonableness of said Conditions of Approval and any
amendments thereto, and related County decisions. Further,
Operator agrees that Operator will not attack or otherwise assail
the reasonableness, legality or validity of any terms and
conditions of the Use Permit, or of any provisions included in
this Agreement. The parties acknowledge that the agreement by
Operator in this section is a material consideration for County's
approval of this Agreement.
Section 1 .4 OPERATOR ACKNOWLEDGMENT. Operator acknowledges
and agrees that this Agreement and the Use Permit (by the
incorporation herein of the Use Permit) provide for and allow,
among other things, funding for mitigation, provision of closure
and post-closure costs, payment to County of annual franchise
revenue fees, and otherwise payment to County and reimbursement
of County costs for its governmental administration of the
project entitlements .
It is understood that, among other things, this Agreement
provides for Operator' s establishment of its proprietary rates to
enable Operator to compete in a solid waste disposal market that
has become highly competitive as a result of recent United States
Supreme Court decisions.
Section 1.5 COUNTY DISCRETION AND INTEREST.
Notwithstanding any other provision of this Agreement, Operator
Transfer Station Franchise 3 September, 1994
acknowledges that County's discretion to grant, approve or deny
one or more nonexclusive or other franchises or similar
agreements for others is not limited or abridged in any manner by
this Agreement; and that this Agreement does not require the
approval of any such other franchises or agreements by Operator.
County reserves the rights as part of the negotiation and entry
of any such other franchise or agreement to enter a public-
private or public-public partnership with other owners and/or to
pursue any rights of the County to seek ownership of solid waste
facilities .
ARTICLE 2 . DEFINITIONS
Section 2 . 1 AGREEMENT. "Agreement" shall refer to this
Agreement and is synonymous for purposes of this Agreement with
the word "Contract" .
Section 2 .2 ACTIVITIES REPORT. The "Activities Report" is
a summary document reporting Operator's activities and overall
performance during the preceding Analysis Period or over such
period of time as set by the County. The Activities Report shall
summarize transfer station related activities as directed by
County and may include, but shall not be limited to: compliance
with the provisions of this Agreement and all applicable Permits
and Regulatory Agency Requirements, complaints and corrective
actions taken,and any other matter the Board may reasonably
require for the proper administration of this Agreement,
including, but not limited to, reports relating to resource
recovery goals and requirements in connection with the Integrated
Transfer Station Franchise 4 September, 1994
c
t
Waste Management Act of 1989 or any other law, regulation, plan
or program.
Section 2 .3 ANALYSIS PERIOD. "Analysis Period" refers to
the twelve ( 12) consecutive calendar months beginning the first
day of January of each year throughout the term of this
Agreement. The first Analysis Period, for the purposes of this
Agreement shall begin on the effective date of this Agreement and
shall continue to December 31, 1995.
Section 2 .4 COUNTY. "County" shall mean the County of
Contra Costa, a political subdivision of the State of California.
Section 2 .5 DIRECTOR. "Director" shall mean the County
Administrator or his designated deputy, other County officer or
employee.
Section 2 .6 EMERGENCY. "Emergency" shall mean a sudden,
unexpected occurrence involving a clear and imminent danger,
demanding immediate action to prevent or mitigate loss of, or
damage to, life, health, property, or essential public services.
Emergency includes such occurrences as fire, flood, earthquake,
or other soil or geologic movements, as well as such occurrences
as riots, accident and sabotage.
Section 2 .7 GATE FEE COLLECTION SYSTEM. The "Gate Fee
Collection System" shall consist of all equipment, hardware, and
software utilized for purposes of assessing, collecting, and
accounting for Tipping Fees for the receipt of Solid Waste at the
Transfer Station.
Section 2 . 8 GATE RATE. "Gate Rate" shall mean the per ton
Transfer Station Franchise 5 September, 1994
fee charged by Operator for Operator's receipt of Solid Waste at
the Transfer Station. The Gate Rate shall be the Transfer
Station Proprietary Rate plus Surcharge and Mandated Fees, if
any, and disposal costs. "Gate Rate" shall be synonymous with
"Tipping Fee. "
Section 2 .9 HOURS OF OPERATION. "Hours of Operation" shall
be those times during which the use of heavy equipment and other
machinery necessary for operation of the Site in compliance with
the Use Permit, the Solid Waste Facilities Permit and this
Agreement will be allowed.
Section 2 . 10 HOURS OF ACCESS. "Hours of Access" shall be
those times during which Solid Waste may be delivered to and
received at the Transfer Station.
Section 2. 11 KELLER LANDFILL. "Keller Landfill" or
"Landfill" shall mean the Keller Canyon Landfill, approved and
operating pursuant to County Land Use Permit No. 2020-89, Solid
Waste Facilities Permit No. 07-AA-0032 and other County and other
governmental approvals as of the effective date of this
Agreement.
Section 2 . 12 MANDATED FEES. "Mandated Fees" shall be those
monies required from Operator from time to time by any Regulatory
Agency for the purpose of funding (a) Federal, State or regional
programs, (b) programs required by the Land Use Permit, or (c)
other County established fees .
Section 2 . 13 OPERATOR. "Operator" shall mean the holder of
the Use Permit or its assignee.
Transfer Station Franchise 6 September, 1994
t
i
Section 2. 14 PERMITS. "Permits" shall mean any and all
governmental approvals, entitlements, clearances or
classifications, as they may be amended from time to time,
including but not limited to, the Use Permit, general plan
amendments, environmental impact reports, zoning approvals,
conditional use permits, waste discharge permits and
requirements, facilities permits, permits to operate, permits to
construct, closure plans, building permits, encroachment permits,
grading permits, tree removal permits, tract/parcel maps and all
other governmental permits, consents or approvals as may be
necessary to allow Operator to construct and operate the Transfer
Station.
Section 2 . 15 REGULATORY AGENCIES. "Regulatory Agencies"
shall mean Federal, State and local agencies responsible for
regulating the operation and maintenance of transfer stations or
sanitary landfills, such as, but not limited to, California
Integrated Waste Management Board, California Regional Water
Quality Control Board, California Department of Health Services,
the Contra Costa County Department of Health Services as Local
Enforcement Agency for handling and disposal of Solid Waste, the
Bay Area Air Quality Management District and the County.
Section 2 . 16 SCHEDULE OF CHARGES. The "Schedule of
Charges" shall mean a comprehensive list of Tipping Fees charged
at the Transfer Station.
Section 2 . 17 SOLID WASTE. "Solid Waste, " "solid waste" or
"waste" shall have the meaning set forth in Section 40191 of the
Transfer Station Franchise 7 September, 1994
California Public Resources .Code as it may be amended from time
to time, as follows:
"40191(a) Except as provided in subdivision (b) ,
'solid waste' means all putrescible and nonputrsecible
solid, semisolid, and liquid wastes, including garbage,
trash, refuse, paper, rubbish, ashes, industrial
wastes, 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 .
" (b) 'Solid wastes ' does not include hazardous waste
or low-level radioactive waste regulated under Chapter
7 . 6 (commencing with Section 25800) of Division 20 of
the Health and Safety Code.
" (c) 'Solid Waste' does not include medical waste
which is regulated pursuant to the Medical Waste
Management Act (Chapter) 6 . 1 (commencing with Section
25015) of Division 20 of the Health and Safety Code) .
Untreated medical waste shall not be disposed of in a
solid waste landfill, as defined in Section 46027 .
Medical waste which has been treated and which is
deemed to be solid waste shall be regulated pursuant to
this division. "
Transfer Station Franchise 8 September, 1994
♦5
{
Section 2 . 18 SOLID WASTE PROGRAMS. "Solid Waste Programs"
shall mean those programs directly related to solid waste which
may include: transfer stations, household hazardous waste
programs, recycling and resource recovery programs, Agreement and
Use Permit administration costs (including legal, engineering,
and accounting and other costs of the County) .
Section 2 . 19 SURCHARGE. "Surcharge" shall mean a special
charge as required by the County and this Agreement, for .funding
of Solid Waste Programs, closure of landfills in operation prior
to 1990 and for franchise fees and other costs as deemed
appropriate by the County.
Section 2 .20 SURCHARGE PAYMENTS. "Surcharge Payments"
shall mean those monies received by Operator as a Surcharge and
remitted to the County in accordance with the terms of this
Agreement and of the Permits.
Section 2 .21 TRANSFER STATION. "Transfer Station" or
"Site" shall mean the Acme Fill Waste Recovery and Transfer
Station, commonly referred to as the "Acme Permanent Transfer
Station, " the operation of which is approved and authorized by,
and subject to, County Land Use Permit No. 2122-86, as amended,
this Agreement, Solid Waste Facilities Permit No. 07-AA-0027, and
other County and other regulatory agency requirements as of the
effective date of this Agreement.
Section 2 .22 TRANSFER STATION PROPRIETARY RATE. "Transfer
Station Proprietary Rate" shall mean the proprietary fees charged
by Operator for the receipt and acceptance of Solid Waste at the
Transfer Station Franchise 9 September, 1994
J
Transfer Station.
Section 2 .23 USE PERMIT. "Use Permit" shall mean Contra
Costa County Land Use Permit No. 2122-86, together with all
Conditions of Approval applicable thereto, including any
amendments thereof.
ARTICLE 3. TERM OF AGREEMENT
This Agreement shall be coterminous with the Use Permit, or
any such lesser period as may be prescribed by law.
ARTICLE 4 . PERFORMANCE OF OPERATOR
Section 4 . 1 OPERATION OF TRANSFER STATION. Operator shall
operate the Transfer Station for the receipt, processing and
transfer of Solid Waste in strict compliance with, and subject
to, the terms and conditions of this Agreement, the Permits and
other applicable requirements of Regulatory Agencies.
Section 4 .2 UNACCEPTABLE WASTE. Operator shall not allow
the receipt of material other than Solid Waste at the Transfer
Station unless specially approved in writing by the Director and
otherwise allowed by law. It is recognized that some non-
approved materials, including hazardous wastes, may occasionally
be unloaded at the Transfer Station by users thereof. Operator
shall train its on-site employees to recognize such unacceptable
wastes and materials . In the event that unacceptable waste is
deposited at the Transfer Station, it shall be handled and
removed by Operator in accordance with procedures which shall be
developed by Operator and submitted to the County for approval
prior to any receipt of Solid Waste at the Transfer Station.
Transfer Station Franchise 10 September, 1994
Nothing herein is intended to relieve the person or persons
depositing or causing to be deposited such unacceptable waste
from any liability. Operator retains the right to use all legal
means to recover costs of removal and alternate disposal or
treatment from such person or persons.
Section 4 .3 INSPECTION, INVESTIGATION, AND EVALUATION OF
SITE. The Site shall be immediately accessible at all reasonable
times to Regulatory Agency officials for any reasonable, lawful
and proper purpose. County officials shall usually give
reasonable notice to Operator of their intention to visit the
Site or if such notice is not given, shall notify Operator's on-
site personnel of their presence on the Site.
County shall not incur liability arising from the discharge
of its inspection responsibilities, either by commission or by
omission, except for its tortious conduct or breach of duty
resulting in death, injury or property damage while engaged in
its inspection responsibilities. The inspection of the work
shall not relieve Operator of any obligation to perform under
this Agreement. Operator shall remove and replace or repair any
work not in compliance with those Permits, laws, ordinances or
regulations applicable to the Site.
Section. 4 .4 PERMITS. Operator shall obtain and maintain in
force all necessary Permits and/or other approvals from the
Regulatory Agencies for the Transfer Station.
Upon receipt of each such Permit or approval, a copy
thereof, together with all conditions or requirements attached
Transfer Station Franchise 11 September, 1994
thereto, shall be delivered by Operator to the Director.
Section 4 .5 STATUS OF TITLE. Operator shall provide to the
County reasonable evidence sufficient to establish that Operator
is in possession of and/or has the right to Operate the Transfer
Station.
Section 4 . 6 GATE FACILITIES. Operator shall supply,
construct and thereafter maintain gate fee collection facilities.
The facilities shall be designed and located as necessary so as
to expedite the fee transactions and shall be attractively
finished. The facilities shall be consistent with the Use Permit
for the Site.
Operator shall supply, construct, and maintain truck scales
as necessary to expedite the fee transactions, prevent traffic
back-up, and allow for occasional maintenance and repair. The
scales shall be compatible with the Gate Fee Collection System
approved by the County, in accordance with Section 5. 1 of this
Agreement.
The scales shall be open and in working order during all
Hours of Access . All waste disposal vehicles shall be recorded
by the Gate Fee Collection System.
Operator shall make provisions for quick repairs of the
scales by competent technicians to minimize downtime. The scales j
shall meet all State requirements for design approval and
accuracy for State certified scales . Only those scales
functioning in accordance with all applicable regulations shall
be used. Operator shall obtain the State of California
Transfer Station Franchise 12 September, 1994
certification for scale accuracy.
Operator shall supply, deliver and maintain utilities to the
Transfer Station and shall be responsible for all on-site and
off-site costs and service charges in connection therewith.
Section 4 .7 OPERATION OF GATE FEE COLLECTION SYSTEM.
Operator shall provide and operate the Gate Fee Collection
System, including the providing of all labor and materials
necessary with respect thereto. Such operation shall be for all
Hours of Access.
Section 4 . 8 FEE COLLECTION. Operator shall collect, count
and account for all Tipping Fees and waste quantities from each
customer or user of the Transfer Station. Said fees shall be
collected in accordance with all applicable requirements,
including Article 6 . In the event that no scale is operable at
any given time, vehicles will be charged based upon a flat fee or
volume fee schedule established by the parties or by Operator in
advance.
Operator shall furnish the County with monthly reports on
the number and types of vehicles and waste tonnages and/or
volumes, as appropriate, of the various types and Gate revenue.
Section 4 .9 . PAYMENT TO COUNTY. Operator shall pay the
Surcharge Payments required and received in accordance with
Article 6 to the County monthly in arrears. Operator shall pay
the Surcharge Payments to County within thirty (30) calendar days
after the close of the prior month in which they are collected.
Section 4 . 10 HOURS OF ACCESS. Unless otherwise required by
Transfer Station Franchise 13 September, 1994
the terms of other Permits, Hours of Access shall be those
specified in the Solid Waste Facilities Permit. Should the
Director declare that an Emergency exists, Operator shall keep
the Transfer Station open as instructed to allow for the orderly
receipt, processing and transfer of Solid Waste generated or
created by such emergency conditions at no additional charge or
increase in the Gate Rate. The scheduled Hours of Access may be
changed in a manner consistent with permit requirements.
Operator may, in its sole discretion, observe the following
holidays and close the Transfer Station: New Year' s Day, Easter
Sunday, Memorial Day, Independence Day, Labor Day, Thanksgiving
Day and Christmas Day, or other major holiday as approved by the
Director.
Section 4 . 11 NONDISCRIMINATORY SERVICE. Operator shall
provide nondiscriminatory service for Solid Waste receipt,
processing and transfer to all users, and shall abide by all
Federal, State and local laws and the Land Use Permit.
Section 4 . 12 ACCESS ROADS, HAUL ROADS AND SERVICE ROADS.
It shall be Operator's responsibility to provide and maintain all
roads required in connection with the operation of the Transfer
Station. Haul roads shall be well maintained. The surface
shall be reasonably free from potholes and depressions.
Section 4 . 13 LITTER MANAGEMENT. Operator shall maintain
and keep the Transfer Station and its access road reasonably free
of litter and other refuse. Operator shall be solely responsible
for maintaining the Site in a clean and sanitary condition, and
Transfer Station Franchise 14 September, 1994
shall be responsible for any public nuisance created as a result
of its operations.
Operator shall control on-site and off-site litter or debris
in accordance with the Use Permit and the Solid Waste Facilities
Permit.
Section 4 . 14 ENVIRONMENTAL MITIGATION. Operator shall
comply with all environmental mitigation measures reasonably and
lawfully imposed by Regulatory Agencies including those imposed
by the Use Permit.
Section 4 . 15 RECYCLING/RESOURCE RECOVERY PROGRAMS.
Operator shall cooperate with the County and reasonably
participate in waste reduction programs of the County, including
participation in a County sponsored recycling/resource recovery
plan and litter program, implementation of programs in
conformance with any County recycling or resource recovery
program, plan or element, and/or any other activity which the
County deems is appropriate for inclusion in the County Solid
Waste Programs.
Section 4 . 16 ACTIVITIES REPORT. Operator shall, by the
first day of January of each year, assemble and provide to the
County the Activities Report for the most recent Analysis Period.
The Board may direct, upon ninety (90) days ' written notice to
Operator, that the report provided in the Activities Report be
made semi-annually.
Section 4 . 17 PENALTY SCHEDULE FOR NONCOMPLIANCE. In the
event that noncompliance by Operator with any condition or
Transfer Station Franchise 15 September,. 1994
provision of this Agreement, or any applicable Permits or
Regulatory Agency requirements is determined by the County,
County shall notify Operator of the identified noncompliance.
Following notification of noncompliance, the Director may
impose penalties per noncompliance upon three (3) days notice to
Operator in accordance with the following penalty schedule until
such time as compliance is achieved:
$ 500 . 00 per day during the first week of noncompliance
$ 750.00 per day during the second week of noncompliance
$1,000 .00 per day during the third week of noncompliance
$1,250.00 per day for each day thereafter.
At the time the Director imposes any penalties, the amounts
due for each day of noncompliance shall be the above amounts
subject to annual CPI adjustments, the applicable index to be
reasonably selected by the Director.
Notwithstanding the above three paragraphs, no monetary
penalties will be imposed by the County in the event that
Operator and/or said Regulatory Agency are diligently pursuing
the process of correction or mitigation of the event(s) causing
noncompliance.
Operator shall have the right to arbitrate any action taken
by the County under this provision in accordance with Section
11 .8 of this Agreement.
Section 4 . 18 RECORDS. Operator shall keep separate and
Transfer Station Franchise 16 September, 1994
accurate records for the Transfer Station as reasonably directed
by County for purposes of administering this Agreement.
The County may, at its own expense (which may be recovered
as a Solid Waste program cost) , at any time during the term of
this Agreement, have the books and records, of the Operator
examined for the sole purpose of verifying Operator' s compliance
with the requirements of this Agreement. County shall give
thirty (30) days ' written notice to the Operator in advance of
such examination date.
Section 4 . 19 HOST COMMUNITY. Operator agrees that an
appropriate amount of the Surcharge as determined by the County' s
Board of Supervisors may and shall be utilized pursuant to Board
Order(s) for host community mitigation commensurate with any
other similar provisions .
Section 4 .20 COMMITMENT OF TRANSFER STATION WASTE. To the
extent allowed by law, and so long as the Keller Landfill is
receiving Solid Wastes, Operator agrees to deliver all Solid
Waste received at the Transfer Station to the Keller Landfill for
disposal .
ARTICLE 5. PERFORMANCE OF COUNTY
Section 5. 1 GATE FEE COLLECTION SYSTEM. The computerized
Gate Fee Collection System, which shall be provided by Operator
in accordance with Section 4 .6 of this Agreement, shall be
approved by the County, which approval shall not be unreasonably
withheld.
Section 5 .2 INSPECTION OF SCALES. The County may, from
Transfer Station Franchise 17 September, 1994
time to time during regular business hours; inspect the scales
and test the accuracy of same.
ARTICLE 6 . RATES
Section 6 . 1 PROPRIETARY RATE•. Except as provided in Section
6.7, the Transfer Station Proprietary Rate shall be determined
and established by Operator at its sole discretion.
Notwithstanding section 4. 11, it is understood that the Operator
need not charge a uniform Transfer Station Proprietary Rate to
all customers, but may vary the Transfer Station Proprietary Rate
as between different customers based on various factors
determined by Operator, including, but not limited to, the
quantity and type of waste delivered by each customer to the
facility and whether each customer has entered into an agreement
with the Operator in which the customer agrees to deliver some or
all of the customer' s future waste stream to the Transfer
Station.
Section 6 . 2 SURCHARGE. The County may determine and
establish at least once every two years, effective on the date
determined by the Board of Supervisors, (but initially no sooner
than two years from the effective date of this Agreement except
for the purpose of decreasing the Surcharge in accordance with
Section 6 .4 .d) , the Surcharge, which shall be added to the then
applicable Transfer Station Proprietary Rate, and collected as
part of the Gate Rate. Operator will be provided at least ninety
(90) days written notice of any newly established Surcharge. In
the absence of the County establishing a particular Surcharge
Transfer Station Franchise 18 September, 1994
amount, the Surcharge to be collected by the Operator for the
County shall be thirty percent (30%) of the then applicable
Transfer Station Proprietary Rate.
Section 6 . 3 GATE RATE. The Gate Rate shall consist of the
Transfer Station Proprietary Rate, Mandated Fees, Surcharge and
disposal costs .
Section 6 .4 INITIAL SURCHARGE.
a. Amount. Effective on the effective date of this
Agreement, the Surcharge shall be twenty-five percent (25%) of
the combined Transfer Station Proprietary Rate and the Keller
Landfill Base Rate.
b. Funding of Programs from Surcharge. During the period
covered by the above initial Surcharge, costs of all County
programs (required or authorized by the Use Permit or this
Agreement) shall be funded from said combined 25% Transfer
Station and Keller Landfill Surcharge. In addition, any
household hazardous waste fee imposed by the Board pursuant to
Public Resources Code section 43213 shall be collected (deducted)
from said combined Surcharge amount.
c. Closure, Litigation. Operator agrees and acknowledges
that an appropriate amount (five percent) of the Surcharge as
determined by the County's Board of Supervisors may and shall be
utilized pursuant to Board Order(s) and a trust account
arrangement for any landfill closure or post-closure or related
litigation expenses . Any amount not so expended may be otherwise
utilized for other Surcharge purposes .
Transfer Station Franchise 19 September, 1994
d. Reconsideration. Within or approximately six months
from the date of this Agreement, the County's Board of
Supervisors intends to reconsider and re-evaluate the household
hazardous waste and the landfill closure and/or litigation
expense programs, their levels of funding, whether one or more
programs should be modified, reduced, or eliminated, and a
surcharge adjustment.
Section 6 .5 CONTRACTS. For all contracts entered for the
delivery to and receipt of Solid Waste at the Transfer Station,
the Surcharge applicable at the time of the contract shall apply
for the term of said contract. The parties agree that any later
established surcharge amounts shall not apply to waste received
pursuant to such Solid Waste contract for the term of said
contract.
Operator shall advise County of any contract subject to the
privileges of this section immediately upon execution. Operator
shall provide County with any and all information requested by
County concerning any such Contract, including providing County
with copies of such contracts upon request.
Operator shall also provide to County upon request, copies
of all contracts for the transportation (hauling) and/or disposal
of Solid Waste transferred at or processed through the Transfer
Station.
Section 6 .6 SCHEDULE OF RATES. Operator shall at all times
maintain on file with the County, a schedule of Transfer Station
Proprietary Rates and Gate Rates, including disposal rates,
Transfer Station Franchise 20 September, 1994
charged to each customer. The schedule may include a standard
Transfer Station Proprietary Rate and Gate Rate which Operator
charges unless an agreement is entered, or other arrangements
made. Said schedule of Base and Gate Rates shall be updated
within ten days of material modification thereof. Material
modifications include, but are not limited to, changes to any
customer's Transfer Station Proprietary Rate and Gate Rate, and
entering of an agreement with a new customer.
The schedule shall specify and distinguish between the
Transfer Station Proprietary Rate and the Gate Rate, and shall
include all elements of the Gate Rate, including disposal costs.
The purpose of this section is to ensure that the rates
charged by Operator as well as fees and surcharges imposed by
County as well as other governmental agencies are a matter of
Public Record, so as to promote cooperation and trust between the
Operator, the County, and the public. Towards this end, County
may request, and Operator shall provide to County, all
information reasonably necessary to effectuate the purpose of
this section.
Section 6 .7 SELF-HAUL RATES.
Notwithstanding Section 6 . 1, the Gate Rate charged to
customers delivering less than one ton of solid waste per day
shall not exceed the average of the charges of all other transfer
stations and landfills in Contra Costa County.
ARTICLE 7 . PERSONNEL
Operator shall assign qualified personnel to operate the
Transfer Station Franchise 21 September, 1994
site as may be required to assure a smooth and efficient
operation in compliance with all applicable Permits.
The County has the right to request, in writing,
administrative action, including the removal of any employee of
Operator who violates any provision of this Agreement, or who in
the opinion of such requesting party is unsafe, negligent, or
discourteous to the public or others in the performance of
his/her duties. Upon receipt of such a request, Operator shall
immediately take whatever administrative action, which, in its
judgment, is necessary to resolve the situation. Such action may
include removal of that employee from the Site.
A Site Supervisor employed by Operator shall be present at
the Site at all times that any operations are being conducted
thereon.
Operator shall file with the Director the names, addresses,
and telephone numbers of the Operator representatives who can be
contacted at any time in case of emergency. These
representatives shall be fully authorized to respond so as to
resolve the emergency.
ARTICLE 8 . UNINTERRUPTED OPERATION
Section 8 . 1 ASSURANCE OF UNINTERRUPTED OPERATION.
Operator, in entering into this Agreement, assures that it will
provide for the operation of the Transfer Station in an
uninterrupted manner for as long as the is useful and usable,
except as provided in Section 9 .4 below. Operator acknowledges
the hardship that would occur if the Transfer Station is not
Transfer Station Franchise 22 September, 1994
operated properly or is prematurely closed. The County and
Operator recognize that in the ordinary course of events, certain
unexpected events may result that may place a burden on the
requirement of uninterrupted operation. However, it is the
purpose of this Article 8 to establish that it is Operator' s
obligation to avoid any interruption of operations except for
those that are outside of Operator' s control, as provided by
Section 9 .5 of this Agreement.
Section 8.2 LABOR DISPUTES. In the event of a labor
dispute, Operator shall use its best efforts to keep the Transfer
Station open and to operate it in accordance with this Agreement
unless a mutually acceptable alternative is agreed upon by
Operator and the County.
ARTICLE 9 . DEFAULT, REMEDIES
Because of the complex nature of this Agreement and the work
to be performed hereunder, together with the need for close
cooperation and coordination between the parties, it is not
anticipated that either party will declare the other in default
under the terms and conditions of this Agreement except as a last
resort. However, in the event of any such necessity, the
following provisions are made a part hereof.
Section 9 . 1 FAILURE TO PROSECUTE WORK. Should Operator
fail to prosecute the work or any severable part thereof in
conformity with the requirements of this Agreement, the Director
shall provide written notice to Operator specifying in detail the
defect or default in performance (the "First Notice" ) and
Transfer Station Franchise 23 September, 1994
Operator shall have the right to cure same within a reasonable
period of time.
If after the First Notice is provided to Operator, the work
is not performed in accordance with the Director's specified time
frame and a reasonable time to cure so as to ensure its
completion in accordance with this Agreement, the Director shall
serve further notice (the "Second Notice") upon Operator of the
County's intention to take further action as provided by law.
The Director shall make appropriate and detailed written findings
of fact which specify the event of default.
No earlier than thirty (30) days after the Second Notice,
County shall have the power and ability, if Operator is still in
default, to take such actions as provided in law for- remedying
the same, including the termination of this Agreement.
Should the County fail to perform any of its obligations
under this Agreement, Operator may declare the County in default
after following the same two notice and findings provisions
required of the County above. Thereafter, Operator shall have
the power and ability, if the County is still in default, to take
such actions as provided in law for remedying the same, including
bringing suit in a court of appropriate jurisdiction for
equitable or legal relief or both.
The foregoing notwithstanding, neither party may bring an
action seeking money damages unless it has first provided the
other party with 30 days notice of its intention to do so
together with written notification of the specific actions which
Transfer Station Franchise 24 September, 1994
the other party may take to remedy the default which will form
the basis for the claim for monetary damages. If the other party
in good faith commences the actions specified within the thirty
(30) day period, the first party shall not bring the action for
damages .
Section 9 .2 CONVICTION OF CERTAIN CRIMES. Operator agrees
that a single conviction of Operator, its parent, subsidiaries or
operators, or their officers or employees at the level of Site
operations manager or above, acting within the scope of their
employment, of bribery, antitrust, corruption or theft relating
to or involving directly the Transfer Station shall constitute an
event of a breach of this Agreement subject thereupon to the
provisions ,of this Article unless Operator, promptly initiates
and follows through with appropriate disciplinary procedures and
action considering the nature of the offense and resolution by
the courts .
Section 9 .3 CONDEMNATION. In addition to any other remedy
available to the County, it has the right and authority under law
to condemn the Site.
Section 9 .4 RIGHT TO TAKE/RIGHT TO POSSESSION. In the
event that Operator chooses to no longer operate the Site,
Operator agrees that it will give County notice of its intention
to cease operation ninety (90) days prior to the cessation. If,
after receiving such notice, County initiates eminent domain
proceedings to acquire the Site, Operator agrees that it will not
object to or contest County' s right to take, or right of
Transfer Station Franchise 25 September, 1994
- o
possession of, the Site. Nothing contained herein shall
constitute a waiver of the right to contest valuation at any
stage of the proceedings. County and Operator agree that the
provisions of this paragraph may be enforced by means of the
remedy of specific performance.
Section 9 .5 FORCE MAJEURE. Operator shall not be liable
for a default if the failure to perform under the terms and
conditions of the Agreement arise out of causes beyond the
control or without the fault or negligence of Operator. Such
causes may include, but are not limited to, acts of God, or the
public enemy, acts of the County in either its sovereign or
contractual capacity, fires, floods, earthquakes, epidemics, ,
quarantine restrictions, suppliers ' and vendors ' strikes and all
other labor disputes, freight embargoes, and unusually severe
weather; but in every case the failure to perform must be beyond
the control and without substantial default or negligence of
Operator. Operator shall make every reasonable effort to
mitigate the effects of said causes.
Section 9 .6 SPECIFIC PERFORMANCE. Notwithstanding any
other available remedies, the obligations duties and rights of
each party under this Agreement shall be specifically enforceable
by the other party.
Section 9 .7 NONEXCLUSIVE REMEDIES. The rights and remedies
of either party to this Agreement as provided for in this Article
9 shall not be exclusive, and are in addition to any other rights
and remedies provided by law or under this Agreement; except that
Transfer Station Franchise 26 September, 1994
the right of either party to seek monetary damages is limited as
provided in Section 11. 1 above.
ARTICLE 10 . INSURANCE AND BONDS
Section 10. 1 WORKERS' COMPENSATION. Operator hereby
acknowledges that it is aware of the provisions regarding
Workers ' Compensation, Section 3700 of the Labor Code. Operator
shall comply with the provisions of such Section as amended from
time to time with regard to its employees and shall supply to the
County forthwith upon execution of this Agreement, and annually
thereafter, evidence of such compliance.
Section 10.2 PUBLIC LIABILITY. Operator shall obtain from
a good and responsible company or companies doing insurance
business in the State of California, and pay for, maintain in
full force and effect for the duration of this Agreement and any
extension, a policy or replacement policy of comprehensive
liability insurance for the Transfer Station, in which the County
is named as an additional insured with Operator. Operator shall
furnish a Certificate of Liability Insurance to the Director
before execution of this Agreement by the County.
Notwithstanding any inconsistent statement in the policy
described by the Certificate of Liability Insurance or any
subsequent endorsement attached thereto, the protection offered
by the policy shall:
(a) Include the County, its officers, employees and
agents while acting within the scope of their duties under this
Agreement, the Use Permit, or any other County ordinance,
Transfer Station Franchise 27 September, 1994
resolution or other rule relating to the operation of the
Transfer Station, as an additional insured covering said duties
against all third party claims for negligence; and for
indemnification of the County as provided by this Agreement.
(b) Provide for a combined single limit policy not
less than $10,000,000 per occurrence, combined bodily injury and
property damage. At every fifth year of this Agreement, this
$10,000,000 minimum limit shall be increased as directed by the
County but not more than 30% for each such five year period.
Section 10.3 OTHER INSURANCE PROVISIONS. All insurance
policies required by this Agreement shall bear an endorsement,
whereby it is provided that, in the event of expiration, or
proposed cancellation of such policy for any reason whatsoever,
the Director shall be notified in writing not less than thirty
(30) days before expiration or cancellation is effective.
Expiration, reduction or cancellation of any insurance
policy required by this Agreement without obtaining a replacement
policy pursuant to Section 12 .2 to meet the requirements herein
shall be considered a breach of this Agreement by Operator.
Operator shall also carry such other insurance as may be
required by law. Operator shall be solely liable for any claims
or liabilities caused by its failure to maintain insurance
required by law.
Section 10.4 FAITHFUL PERFORMANCE SURETY. Operator shall,
prior to acceptance of waste at the Site under this Agreement,
provide to the County an irrevocable Performance Surety Letter of
Transfer Station Franchise 28 September, 1994
Credit in the form set forth in Exhibit B hereto guaranteeing
Operator's performance of all provisions of this Agreement in an
amount of not less than $1,000,000.00. This Letter of Credit may
also be utilized to meet the security and performance requirement
of the Use Permit.
The Director may allow the Performance Guarantee Letter of
Credit required pursuant to a franchise between the County and
Operator for the operation of the Keller Landfill to additionally
guarantee Operator' s performance of all provisions of this
Agreement.
ARTICLE 11 . GENERAL PROVISIONS
Section 11. 1 GUARANTY BY PARENT OR AFFILIATE. Prior to the
Commencement Date, and for all conditions and obligations of this
Agreement, Operator shall provide to the Director, proof of
guaranty by the parent or an affiliate of Operator acceptable to
the County, of the performance by Operator of each provision of
this Agreement to be performed by Operator. Proof of guaranty
shall be in the form set forth in Exhibit C.
Section 11 .2 ATTORNEY'S FEES. In the event of litigation
between the parties arising hereunder, each party shall pay and
bear its own litigation expenses, including attorney' s fees .
Section 11 . 3 INDEMNITY AND HOLD HARMLESS AGREEMENT.
(a) All work and performances by Operator covered by
this Agreement shall be at the risk of Operator
(b) With respect to third-party claims, Operator
agrees to save, indemnify and keep harmless the County, its
Transfer Station Franchise 29 September, 1994
officers, employees, agents and assign 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 by Operator, save and except claims or
litigation arising through the sole negligence or willful
misconduct of the County, and will make good to and reimburse the
County for any expenditures, including reasonable attorney's
fees, that the County may make by reason of such matters and, if
requested by the County, shall defend any such suit at the sole
cost and expense of Operator.
(c) With respect to third-party claims, the County
agrees to save, indemnify and keep harmless Operator, 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 sole
negligence or willful misconduct of the County, and will make
good to and reimburse Operator for any expenditures, including
reasonable attorney' s fees, that Operator may make by reason of
such matters and, if requested by Operator, shall defend any such
suit at the sole cost and expense of the County.
(d) Should any party successfully challenge the
validity of this Agreement or the procedure by which this
Agreement was entered into or the validity of any County action
which authorizes the County to enter into this Agreement, then in
Transfer Station Franchise 30 September, 1994
such case the Operator shall have no cause of action for damages
or any other relief against County as a result of such successful
challenge. In the event of any such legal challenge, Operator
shall defend such action or proceeding at its sole expense and
Operator shall save and hold County harmless from any claims or
awards for third party attorneys ' fees and costs .
Section 11 .4 ASSIGNMENT.
(a) Voluntary. Operator shall not sell, assign,
subcontract or transfer this Agreement or any part hereof, or any
obligation hereunder, without the written consent of County;
provided, however, that Operator may assign this Agreement
without the County' s consent to any company which it controls, is
controlled by, or which is under common control with Operator.
As used in this Section, the term "control" with respect to a
company, means the beneficial ownership of more than 50% of the
voting stock of the company.
The term assignment shall include any dissolution, merger,
consolidation or other reorganization of Operator, which results
in change of control of Operator, or any sale or other transfer
of a controlling percentage of Operator's capital stock. Any
attempted assignment not provided for above without such consent
shall be void ab initio.
(b) Involuntary. Except as may be permitted by paragraph
(a) above, no interest of Operator in this Agreement shall be
assignable by operation of law. Any such nonpermitted assignment
and any .of the following acts, each of which are deemed an
Transfer Station Franchise 31 September, 1994
4
- I.
.. r
involuntary assignment, shall provide County with the right to
elect to terminate the Agreement forthwith, without suit or other
proceeding:
( 1) If Operator 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 Operator such that would have
a materially adverse effect on Operator's ability to perform its
duties and obligations under this Agreement;
( 3) If in any proceeding to which Operator is a party,
a Receiver is appointed with authority to take possession of
Operator's property such that would have a materially adverse
effect on Operator' s ability to perform its duties and
obligations under this Agreement.
Section 11.5 COMPLETE AGREEMENT. No verbal agreement with
any officer, agency, or employee of the County or of Operator nor
any contract either before, during, or after the execution of
this agreement shall affect or modify any of the terms or
obligations herein contained unless a written agreement, signed
by both parties, specifically provides that same is an amendment
to this Agreement.
Section 11.6 NO THIRD PARTY BENEFICIARY ENFORCEMENT. While
this contract benefits the public interest throughout Contra
Costa County, it is an Agreement between only Operator and the
County and, accordingly, only Operator and the County may enforce
same. No claims, demands, or causes of action by any entity,
Transfer Station Franchise 32 September, 1994
i
party, or person claiming to be a third party beneficiary
hereunder shall be enforceable.
Section 11 .7 SURVIVAL OF OBLIGATIONS. County's rights to
any damages, remedies, insurance coverage and indemnification
under this Agreement shall survive the termination of this
Agreement.
Section 11.8 ARBITRATION. Any controversy or claim
submitted to arbitration pursuant to the express provisions of
this Agreement, or by mutual subsequent agreement, and arising
out of or relating to this Agreement, or the breach thereof,
shall be governed by the provisions of Part III . , Title 9 of the
Code of Civil Procedure, sections 1280 et seq. as amended from
time to time. The arbitration shall be de novo and subject to a
de novo appeal or challenge brought in the Contra Costa County
Superior Court as to any alleged error of law or as to the
admissibility of evidence. California judicial rules of evidence
shall apply to the arbitration proceedings . The arbitration
decision shall be decided under and in accordance with California
law, supported by a preponderance of evidence and in writing in
the form of a Statement of Decision pursuant to Code of Civil
Procedure Section 632 .
Section 11.9 CONFLICT. This Agreement is intended to
comply with Ordinance No. 88-81 . In the case of any apparent or
potential .conflict between the provisions of this Agreement and
the provisions of the Use Permit or any involved development
agreement, the provisions of this Agreement and the Use Permit
Transfer Station Franchise 33 September, 1994
,,
.t ✓
t
shall be read together and harmonized to the maximum extent
possible to effectuate the intentions of the parties. In the
case of any unresolved conflict between the provisions of this
Agreement and the provisions of the Use Permit, the provisions of
the Use Permit shall control. Notwithstanding any other
provision in this Agreement or in the Use Permit, importation of
waste not originating in Contra Costa County shall be allowed as
required by recent U.S. Supreme Court cases.
Section 11. 10 CAPTIONS. The captions and headings used in
this Agreement are for convenience and reference only and are not
to be construed as controlling over the text of this Agreement.
Section 11. 11 DELEGATION BY BOARD. The Board may, in its
discretion, delegate to a County employee or hearing officer any
of its functions expressly or impliedly arising from this
Agreement provided that in such case any decision made by such
Board, County employee or officer may be appealed de novo to the
Board.
Section 11. 12 SEVERABILITY. If any term, provision,
covenant or condition ( "provision" ) of the Agreement or the
application of any provision of this Agreement to a particular
situation is held by a court of competent jurisdiction to be
invalid, void or unenforceable, the remaining provisions of this
Agreement, or the application of this Agreement to other
situations, shall continue in full force and effect.
Notwithstanding any other provision of this Agreement, if any
provision ' of this Agreement in itself or as applied in any
Transfer Station Franchise 34 September, 1994
y
particular situation is held to be invalid, void or
unenforceable, it is the intention of the parties that the
remaining portions of this Agreement shall be continued in full
force and effect and that the invalid, void or unenforceable
provision be severed therefrom.
Section 11. 13 MASCULINE GENDER USED. The masculine gender
is sometimes used in this Agreement and is so used for
convenience only and is not otherwise intended.
Section 11 . 14 GOVERNING LAW. This Agreement shall be
governed by and construed in accordance with the laws of the
State of California.
Section 11 . 15 NOTICES. All notices or other communications
( "Notice") to be given pursuant to this Agreement shall be in
writing and shall be deemed given when mailed by registered or
certified United States mail, addressed to the parties as
follows:
To County: County of Contra Costa
Attn: County Administrator
To Operator: BFIC, Inc.
C/O: Browning Ferris Industries of California
Attn: Ron Pfeifer, Regional Vice President
9188 Glen Oaks Blvd. , 3rd Floor
Sun Valley, CA 91352
With Courtesy as designated by Browning-Ferris Industries of
California.
A change in address or a change in the person or title to
which Notice is to be given shall be effectuated by Notice to the
other party.
Transfer Station Franchise 35 September, 1994
• r
Section 11. 16 JOINT AND SEVERAL RESPONSIBILITY. The
obligations of Operator herein are joint and several. Both BFIC,
Inc. and Acme Fill Corporation are jointly and individually
responsible for fulfilling each and every Operator
responsibility, duty and obligation set forth in this Agreement.
Further, all insurance policies and surety and guaranty
instruments required herein shall cover, secure and guarantee the
performance and obligations of both BFIC, Inc. and Acme Fill
Corporation.
IN WITNESS WHEREOF, this Agreement is effective on the date
first provided on page one hereof.
OPERATOR
BFIC, Inc. , a California
corporation
/r--n
1
By:
resident
By:
ice-President
OPERATOR
ACME FILL CORPORATION, a
California Corporation
By:
Presi nt
By:
_jL�� _f/�7 ���_
Vice-Pr sident
Transfer Station Franchise 36 September, 1994
N..
j •
COUTY OF ONTRA A
By:
r air, Board of Supervisors
ATTEST: By: CL 01AA,, 0L
Cle of the Board , Deputy
APPROVED AS TO FORM: , By:
County Counsel DEPUTY COUNTY COUNSEL.
ltf: 12.pto994 CONTRA COSTA COUNTY, CALIF.
Transfer Station Franchise 37 September, 1994
EXHIBIT C
GUARANTY
This Guaranty is made and entered into this 10 day of aj-abe-F 1994,
by and between the County of Contra Costa (hereinafter "County") and
a corporation ("Guarantor").
RECITALS
WHEREAS, BFIC, Inc. , a California Corporation , ("Operator"), an
[indirect wholly owned subsidiary] of Guarantor desires to enter into a certain
Franchise Agreement with the County (the "Agreement") for the Acme Waste
Recovery and Transfer Station;
WHEREAS, pursuant to Section 11.1 of the Agreement, the County has
demanded that Operator obtain certain assurances from Guarantor, as to all
conditions and obligations of the Agreement to be fulfilled by Operator; and
WHEREAS, in order to induce the County to enter into the Agreement with
Operator, Guarantor desires to provide the County with said assurances as to all
conditions and obligations of the Agreement to be fulfilled by Operator,
NOW, THEREFORE, the County and Guarantor hereby agree as follows:
1. Guarantor hereby guarantees to the County the full performance by
Operator of all conditions and obligations in the Agreement which are to be
fulfilled by Operator, provided that the County has fulfilled all of its obligations
under the Agreement, and in particular, without limiting the foregoing, that the
County has provided Operator with the requisite notice(s), opportunities to cure
and any option to arbitrate notice(s), opportunities to cure and any option to
arbitrate as provided for in the Agreement.
2. The County agrees to give Guarantor notice by certified mail, return
receipt requested, at .�Cl L`'` / Pi d ' y7
(Attention: General Counsel) each time that the County becomes aware of any
fact or circumstance which may give rise to an obligation of Guarantor to perform
pursuant to this Guaranty.
3. The County shall not sell, assign or otherwise transfer this Guaranty,
or its rights or obligations thereunder, without the written consent of Guarantor,
which consent shall not be unreasonably withheld if the assignment is to a
municipal corporation.
IN WITNESS WHEREOF, this Guaranty has been executed on the date first
above written.
OUNT F CO TR STA
By:
GUARANTOR
By:
, \j -4
Its: �� y• ,
By: G.J
Its: SQL V T `f Cil
df(a):1tM.guaranty.ts
I\
i
2t P��
COUNTY COUNSEL'S OFFICE
CONTRA COSTA COUNTY
MARTINEZ,CALIFORNIA
Date: November 1, 1994
To: Board of Supervisors
From: Victor J. Westman, County Counsel
By: Lillian T. Fujii, Deputy County Counsel
Re: "Amendment" No. 1 to Permanent Transfer Station Franchise
Following the October 31, 1994 Board hearing on the Acme Permanent
Transfer Station Franchise, this office prepared the attached "Amendment" No. 1 to the
Transfer Station Franchise.
The attached has been presented to Thomas M. Bruen, attorney for BFI, who
indicated that although he has not completed discussing the agreement with all of his
principals at BFI, the attached will probably be acceptable.
The changes made to the Transfer Station Franchise dated September, 1994
are shown on "Amendment" utilizing ' language for additions and strikeouts for
deletions. Summarizing the changes:
1. Section 4.20 is amended to provide that the Operator agrees not to deliver
solid waste to the Acme Landfill (instead of requiring delivery to the Keller Landfill).
2. Section 6.20 is amended to provide that the Board's may next reconsider
the surcharge in eighteen months (instead of two years).
3. Subsection b of section 6.4 has been amended to clarify that the LEA and
AB 939 fees are not to be paid out of the combined 25% surcharge, and to state that
any Board mandated fee may be collected in addition to the surcharge percentage.
4. Section 6.5 has been amended to clarify that the surcharge percentage
applicable at the time of the entry of a long term contract shall apply for the life of the
contract.
. The attached is presented to the Board for review for conformance with the
Board of Supervisors' intent as expressed on October 31, 1994.
LTF.9a:\pts111.94
t
COUNTY OF CONTRA COSTA, STATE OF CALIFORNIA
AMENDMENT NO. 1 TO FRANCHISE AGREEMENT
FOR THE
ACME FILL WASTE RECOVERY AND TRANSFER STATION
THIS AMENDMENT NO. 1 TO .FRANCHISE AGREEMENT FOR THE ACME
WASTE RECOVERY AND TRANSFER STATION (the "Agreement") is made and
entered into this November 1, 1994, by and between the COUNTY OF
CONTRA COSTA (hereinafter "County" ) and BFIC, Inc. , a California
Corporation, a California Corporation (hereinafter referred to as
"Operator") .
RECITALS
WHEREAS, on September 13, 1994, the Board of Supervisors of
County took action concerning a franchise agreement with
Operator, and
WHEREAS, the parties have reached agreement- on substantive
issues concerning the September 13, 1994 action and are prepared
to compromise their differences by agreeing that, without either
parties waiving any rights as to said September 13, 1994
Franchise Agreement, that said Franchise Agreement may be amended
as set forth herein, -
NOW THEREFORE, the County and Operator, for and in
consideration of the covenants and agreements as hereinafter set
forth and for other good and valuable consideration, the receipt -
and .sufficiency of which is hereby acknowledged, do mutually
agree as follows:
SECTION I . AMENDMENTS. The following sections of the
Franchise Agreement are hereby amended as shown in this section
........ .........
(by adding the s`h*a*j,: d: iG
language and deleting the strkea
...N.d,* .
language) :
Amendment to section 4 .20, Commitment of transfer station
waste:
"Section 4 .20 COMMITMENT OF TRANSFER STATION WASTE. To the
extent allowed by law, and 6e long as the KelleF Landfill is
reGelvin(i Selld Wastes, QpeEateF agrees to dellveE all Se
Waste EeGelved at the TransfeE Statlen te the KelleE Landfill fe-r
.... ............
disposal- 9"r to
-W . .......
........................
. ........ ....W... r d
.....................
r-Ah
. . ....... .
..................
... ........
Amendment to section 6 .2, Surcharge:
"Section 6 .2 SURCHARGE. The County may determine and
establish at least once every two years, effective on the date
determined by the Board of Supervisors, (but initially no sooner
...... ...........I.........
.........
effective date of this
.......................... ...ox...X,
than twe years-
ti.......from the
... ........
............................................................
....................
Agreement except for the purpose of decreasing the Surcharge in
accordance with Section 6 .4 .d) , the Surcharge, which shall be
added to the then applicable Transfer Station Proprietary Rate,
and .collected as part of the Gate Rate. operator will be provided
at least ninety (90) days written notice of any newly established
Surcharge. In the absence of the County establishing a
Amendment No. 1 - Transfer Station Franchise, October 31, 1994 Page 2
particular Surcharge amount, the Surcharge to be collected by the
Operator for the County shall be thirty percent (30%) of the then
applicable Transfer Station Proprietary Rate. "
Amendment to subsection b of section 6 .4, Initial Surcharge:
"b. Funding of Programs from Surcharge. During the period
covered by the above initial Surcharge, costs of all i
County programs ec ......::< ::: #::<� ;::9 ;;:.; .;:.: .::::::.:( 4
uire
d or
authorized by the Use Permit or this Agreement) shall be funded
from said combined 25% Transfer Station and Keller Landfill
Surcharge. In addition, any household hazardous waste fee
imposed by the Board pursuant to Public Resources Code section
43213 shall be collected (deducted) from said combined Surcharge
~`:.
amount.. ;:t ; `»: Jt *. 5 + t:;:::t: .>:: �t:a,: >: tb ::: a.t
m N.v...t :1h-tai ::.>:. t ' :: :::::::::.:::::::::::::.:::::::::::::.:.::::.:.:::::::::::::::::::.::::::::.::.:::::::::::::::.
,:.
..:d + :
at arx:. 4the S:.: �1. <': : 3'.:>; : 1 8n 1: .. u: 3 + K +� : ;:;:::: .c �a;..;
:nd..: n. .... ............ ......:. :::: :.:.:::.::::.:.: :::::::::::::::::::...::.:.:::..:::.:::::::::::::....................: . ::.::::.:::::::.:::::::.:::...::::::..::::........:.
ea .rcGez <:> :.. :..:................ :....:... :::: .. ::
. ............... :
c ; : ;::::
ce :: .;
..........
...t .... ���4d...Su�G�c��t�
Amendment to Section 6 .5, Contracts :
"Section 6 .5 CONTRACTS. For all contracts entered for the
delivery to and receipt of Solid Waste at the Transfer Station,
the Surcharge percentage `applicable at the time of the contract
Amendment No. 1 - Transfer Station Franchise, October 31, 1994 Page 3
shall apply for the term of said contract. The parties agree
that any later established surcharge amounts shall not apply to
waste received pursuant to such Solid Waste contract for the term
of said contract.
Operator shall advise County of any contract subject to the
privileges of this section immediately upon execution. Operator
shall provide County with any and all information requested by
County concerning any such Contract, including providing County
with copies of such contracts upon request.
Operator shall also provide to County upon request, copies
of all contracts for the transportation (hauling) and/or disposal
of Solid Waste transferred at or processed through the Transfer
Station. "
SECTION II. EFFECT. Neither party, by its -agreement and
execution of this Amendment No. 1 to the Franchise Agreement,
waives any of its rights existing prior to the execution hereof,
and nothing herein shall be construed as a waiver by either party
of its rights or assertions, including, but not limited to, those
set forth in the above recitals. Should any subsequent dispute
arise between the County and the Operator concerning the action
of September 13, 1994 on the franchise agreement, both parties
agree that this Amendment, any action taken by the Board of
Supervisors on October 31, 1994 and/or November 1, 1994, and any
related action by Operator shall not be admissible in any
administrative, equitable or legal proceeding to determine intent
Amendment No. 1 - Transfer Station Franchise, October 31, 1994 Page 4
or effect of the action of September 13, 1994 .
IN WITNESS WHEREOF, this Agreement is effective on the date
first provided on page one hereof.
OPERATOR
BFIC, Inc. , a California
corporation
By:
President
By:
Vice-President
COUNTY OF CONTRA COSTA
By:
Chair, Board of Supervisors
ATTEST: By:
Clerk of the Board
APPROVED AS TO FORM: By:
County Counsel
12a:\ptsamd.1
Amendment No. 1 - Transfer Station Franchise, October 31, 1994 Page 5
1
Date:
REQUEST TO SPEAK FOKM
Two [21 Minute Limit
Complete this form and place it in the box near the speakers' rostrum before addressing the Board.
Name: FRaL (" euup Phone: `709`
Address: I- 3Y —WEI C/ ST, City: 'Pl, w(�
I am speaking for: ❑ Myself OR [2( Organization: GTI (AffW
NAME OF ORGANIZATION
CHECK ONE:
El I wish to speak on Agenda Item # �. '� ��.3
My comments will be: 0 General ❑ For ❑ Against
❑ I wish to speak on the subject of:
❑ I do not wish to speak but leave these comments for.the Board to consider:
COUNTY OF CONTRA COSTA, STATE OF CALIFORNIA
. AMENDMENT NO. 1 TO FRANCHISE AGREEMENT
FOR THE
ACME FILL WASTE RECOVERY AND TRANSFER STATION
THIS AMENDMENT NO. 1 TO FRANCHISE AGREEMENT FOR THE ACME
WASTE RECOVERY AND TRANSFER STATION (the "Agreement" ) is made and
entered into this November 1, 1994, by and between the COUNTY OF
CONTRA COSTA (hereinafter "County" ) and BFIC, Inc. , a California
Corporation, a California Corporation (hereinafter referred to as
"Operator" ) .
RECITALS
WHEREAS, on September 13, 1994, the Board of Supervisors of
County took action concerning a franchise agreement with
Operator, and
WHEREAS, the parties have .reached agreement on substantive
issues concerning the September 13, 1994 action and are prepared
to compromise their differences by agreeing that, without either
parties waiving any rights as to said September 13, 1994
Franchise Agreement, that said Franchise Agreement may be amended
f
as set forth herein,
NOW THEREFORE, the County and Operator, for and in
consideration of the covenants and agreements as hereinafter set
forth and for other good and valuable consideration, the receipt
and sufficiency of which is hereby acknowledged, do mutually
agree as follows :
SECTION I . AMENDMENTS. The following sections of the
Franchise Agreement are hereby amended as shown in this section
}
(by adding the shaded language and deleting theme
language) :
Amendment to section 4 .20, Commitment of transfer station
waste:
"Section 4 .20 COMMITMENT OF TRANSFER STATION WASTE. To the
extent allowed by law, and se long as the Keller Landfill is
EeGeivlag Solid Wastes, Operator agrees to deliver all Selid
dispersal . bperato;r agrees that Solid Wasters received at< and
processed through theTrArsfer Stathall: nct be delivered tQ
the Acme; : andff 11 fort disposes] .;
Amendment to section 6.2, Surcharge:
"Section 6 .2 SURCHARGE. The County may determine and
establish at least once every two years, effective on the date
determined by the Board of Supervisors, (but initially no sooner
than eighteen months ' from the effective date of this
Agreement except for the purpose of decreasing the Surcharge in
accordance with Section 6 .4 .d) , the Surcharge, which shall be
added to the then applicable Transfer Station Proprietary Rate,
and collected as part of the Gate Rate. Operator will be provided
at least ninety (90) days written notice of any newly established
Surcharge. In the absence of the County establishing a
Amendment No. 1 - Transfer Station Franchise, October 31, 1994 Page 2
particular Surcharge amount, the Surcharge to be collected by the
Operator for the County shall be thirty percent ( 30%) of the then
applicable Transfer Station Proprietary Rate. "
Amendment to subsection b of section 6 .4, Initial Surcharge:
"b. Funding of Programs from Surcharge. During the period
...........................
covered by the above initial Surcharge, costs of all current
County programs except for LLA and; X18 ;939 fees 1(required or
authorized by the Use Permit or this Agreement) shall be funded
from said combined 25% Transfer Station and Keller Landfill
Surcharge. In addition, any household hazardous waste fee
imposed by the Board pursuant to Public Resources Code section
43213 shall be collected (deducted) from said combined Surcharge
amount. Notw. thstand ng any other' prouisxon of thi< subsection
or agreement,; any; Board Q;f Supervi';s.
ors!" directed mandated fees;
(including among others any state !Fixed and required fee, 16ca]!
:nf6rce6ent agency established fee' and: AS933 fee) Imay at thXXXe
Board's direction be Cd11,ect. for the County n ac ditit�n to any
establishedsurcharge: pereentag� ..
Amendment to Section 6 .5, Contracts :
"Section 6 .5 CONTRACTS. For all contracts entered for the
delivery to and receipt of Solid Waste at the Transfer Station,
.... .... ...... .............. ....... .
the Surcharge perrent:age ;applicable at the time of the contract
Amendment No. 1 - Transfer Station Franchise, October 31, 1994 Page 3
shall apply for the term of said contract. The parties agree
that any later established surcharge amounts shall not apply to
waste received pursuant to such Solid Waste contract for the term
of said contract.
Operator shall advise County of any contract subject to the
privileges of this section immediately upon execution. Operator
shall provide County with any and all information requested by
County concerning any such Contract, including providing County
with copies of such contracts upon request.
Operator shall also provide to County upon request, copies
of all contracts for the transportation (hauling) and/or disposal
of Solid Waste transferred at or processed through the Transfer
Station. "
SECTION II . EFFECT. Neither party, by its agreement and
execution of this Amendment No. 1 to the Franchise Agreement,
waives any of its rights existing prior to the execution hereof,
and nothing herein shall be construed as a waiver by either party
of its rights or assertions, including, but not limited to, those
set forth in the above recitals. Should any subsequent dispute
arise between the County and the Operator concerning the action
of September 13, 1994 on the franchise agreement, both parties
agree that this Amendment, any action taken by the Board of
Supervisors on October 31, 1994 and/or November 1, 1994 , and any
related action by Operator shall not be admissible in any
administrative, equitable or legal proceeding to determine intent
Amendment No. 1 - Transfer Station Franchise, October 31, 1994 Page 4
or effect of the action of September 13, 1994 .
IN WITNESS WHEREOF, this Agreement is effective on the date
first provided on page one hereof.
OPERATOR
BFIC, Inc. , a California
corporation
By
�-Pr sident
By•
ice-President
COU TY OF RA COST
By:
C ir, Board oT Supervisors
ATTEST: By: (I'VVI, P 0.4'tug' ,
Clerk' o the Board
APPROVED AS TO FORM: By:.
County Counsel DE Of C:; vv
CONTRA COST COUNTY, CALIF.
12a:\ptsamd.1
Amendment No. 1 - Transfer Station Franchise, October 31, 1994 Page 5
CONTRA COSTA COUNTY
GROWTH MANAGEMENT & ECONOMIC DEVELOPMENT AGENCY
DATE: October 31, 1994
TO: Members,Board of Supervisors
FROM: Val Alexeeff, GMEDA Director
By: Louise Aiello
SUBJECT: Chart of Possible Surcharge Structures Related to Disposal in Keller Canyon Landfill
Options for Surcharge Rate Structure
Charts assume that the $39.00 Proprietary Rate proposed by BFI is split as $25.00 Proprietary Rate
for Keller Canyon Landfill and $14.00 Proprietary Rate for the Permanent Transfer Station. The options
outlined below reflect discussion of the KCL Franchise Agreement, Section 6.4 (b) Other Wastes.
Option 1 KCL Acme Transfer Stn. Total
Proprietary Rate $25.00 $14.00 $39.00
@25% Surcharge 6.25 3.50 9.75
Mandated Fees:
LEA 1.00
Eastin 1.34
939 .15 I
Totals .t4 .5 i
Resulting funding Option 1
Projection.of Special Waste Tonnage
32,931 x $8.54 (Surcharge + Mandated Fees) _ $281,230.74
Possible East County TSF Station Tonnage
141,487 (Concord/Ironhouse) x $8.54 = $1,208,298.90
N
Following discussion, BFI representatives stated that if the County intended 25% of Prop. rate only
at KCL for other wastes not received via the Acme Transfer Station, BFI would accept this language
change.
It was requested that staff provide a chart illustrating this matter for full Board consideration;
Supervisor Smith also requested that tonnage estimates on other wastes (Special Wastes and Wastes
processed through another transfer station in County) be used to provide the full Board with the
financial implications.
nwi:.ah*c-m.cM
- Page 3 -