HomeMy WebLinkAboutMINUTES - 10211997 - C62 TO: BOARD OF SUPERVISORS
�= �4L_.°� Contra
Costa
FROM: DENNIS M. BARRY, AICP 's
DIRECTOR OF COMMUNITY DEVELOPMENT County
,_ -
STa couK'r'{
DATE: OCTOBER 21, 1997
SUBJECT: CONSIDER APPROVAL OF A MEMORANDUM OF UNDERSTANDING WITH THE
KENSINGTON POLICE PROTECTION AND COMMUNITY SERVICES DISTRICT TO
PROVIDE SOLID WASTE AND RECYCLING SERVICES TO THE KENSINGTON AREA
AND AUTHORIZE THE CHAIR OF THE BOARD OF SUPERVISORS TO SIGN THE
DOCUMENT; AND RESCIND THE FRANCHISE AGREEMENT BETWEEN THE COUNTY
AND BAY VIEW REFUSE AND RECYCLING SERVICES, INC., WHICH WAS APPROVED
FOR SIGNATURE ON OCTOBER 22, 1996.
SPECIFIC REQUEST(S) OR RECOMMENDATION(S) & BACKGROUND & JUSTIFICATION
RECOMMENDATIONS:
1. Approve the Memorandum of Understanding with the Kensington Police Protection
and Community Services District to provide for solid waste and recycling services
to the Kensington area; and
2. Authorize the Chair of the Board of Supervisors to sign the Memorandum of
Understanding; and
3. Rescind the Franchise Agreement between the County and Bay View Refuse and
Recycling Services, Inc., approved for signature on October 22, 1996.
4. Direct that the County's share of the franchise fee be used to implement AB 939
Source Reduction and Recycling Programs.
FISCAL IMPACT:
The County has been collecting a 5% Franchise Fee in the Kensington area. The
proposed Memorandum of Understanding will only allow for a 3% Franchise Fee to the
County. The Kensington Police Protection and Community Services District will collect a
2% Franchise Fee for administering the Franchise Agreement and participating in AB 939
program development and operation.
CONTINUED ON ATTACHMENT: ✓ YES SIGNATURE Idl t��O�P
ACTION OF BOARD ON IP, APPROVED AS RECOMMENDED V OTHER
i
VOTE OF SUPERVISORS I HEREBY CERTIFY THAT THIS IS A TRUE
AND CORRECT COPY OF AN ACTION TAKEN
UNANIMOUS(ABSENT ) AND ENTERED ON THE MINUTES OF THE
AYES: NOES: BOARD OF SUPERVISORS ON THE DATE SHOWN.
ABSENT: ABSTAIN:
ATTESTED ;?-/F� 1179 Z
_
Contact:Mary Fleming (335-1230) PHIL BATCHELOR,CLEKK OFT E
Orig: Community Development Department BOARD OF SUPERVISORS AND
Silvano Marchesi, County Counsel COUNTY ADMINISTRATOR
BY: , DEPUTY
J:groups...ken10-21.bod
Board Order
MOU with the Kensington Police Protection
and Community Services District
October 21, 1997
-Page 2-
BACKGROUND/REASONS FOR RECOMMENDATIONS
The Kensington Community Services District (KCSD) has had a Franchise Agreement with
Bay View Refuse Inc. (Bay View) for the collection and disposal of solid waste since July
of 1981.
In 1991, the Board of Supervisors approved Ordinance 91-31, "Solid Waste Collection,
Disposal and Recycling Agreements". The Ordinance requires solid waste haulers in the
unincorporated area to obtain a Franchise Agreement from the Board of Supervisors, or
for the franchising agency to enter into a Memorandum of Understanding (MOU) with the
County.
On August 6, 1991 the Board stated their intent to provide for solid waste services in
several unincorporated areas, including Kensington, through either a direct Franchise
Agreement with the solid waste contractors or an MOU with the local agency. A five
year notice was provided to all existing solid waste contractors and local agencies
regarding the county intent. No agreement was reached with Kensington on development
of a MOU. A proposal was submitted that did not meet Ordinance requirements and was
apparently never pursued by either the County or the District.
In April 1996, when Bay View was unable to come to an agreement with KCSD on new
rates, Bay View requested that the County grant it a Franchise Agreement for the
unincorporated Kensington area. The County then worked with KCSD and Bay View for
several months attempting to reach an agreement on the preferred method of providing for
solid waste service in the Kensington area. The Board at that time stated its preference
to allow Bay View and KCSD to work out their differences and come to an agreement, but
directed staff to develop a Franchise Agreement between Bay View and the County in case
an agreement was not reached between Bay View and the KCSD. They also directed staff
to develop an MOU which could be used between the County and KCSD if the District was
able to come to an agreement with Bay View.
County Ordinance requires that an MOU include provisions which assure that the County
maintains control of the wastestream and disposition of recyclables; provides for
mechanisms for implementing the county's Source Reduction and Recycling Element;
provides agreement to design and modify programs and/or rate structures as necessary
to meet overall goals, etc.
When the County was unable to successfully facilitate the process of negotiation between
KCSD and Bay View in coming to any agreement on their rate structure the Board of
Supervisors was asked to consider the adoption of a county Franchise Agreement with Bay
View.
In September, 1996 the Board of Supervisors approved a Franchise Agreement with Bay
View Refuse and Recycling Inc., to allow for the provision of solid waste and recycling
services in the Kensington area. The effective date of the Agreement was set for 30 days
later to allow additional time for the Kensington Community Services District and Bay View
to reach an agreement on collection rates and on the content of a revised franchise
agreement between them. When there was no further progress during the 30 day period
the Chair of the Board was authorized to sign the Franchise Agreement.
The Kensington Community Services District subsequently challenged the County's legal
right to enter into a Franchise Agreement with Bay View. The court directed the KCSD and
Bay View to re-enter negotiations. The County assisted in the negotiations by hiring an
auditor(at Bay Views cost) to review the Bay View financial statements. Upon completion
of that review KCSD and Bay View were able to agree on a new rate and a methodology
for determining future rates.
Board Order
MOU with the Kensington Police Protection
and Community Services District
October 21, 1997
-Page 3-
The Kensington Police Protection and Community Services District has now reached
agreement with Bay View Refuse and Recycling Services, Inc. and entered into a
Franchise Agreement dated September 11, 1997 (attached as Exhibit A) which is to be
effective September 1, 1997 if the County approves the Memorandum of Understanding
(attached as Exhibit B) between the County and the Kensington Police Protection and
Community Services District.
Staff has reviewed the Franchise Agreement and is satisfied that the combination of the
Franchise Agreement and the Memorandum of Understanding provide the County with the
ability to assure that Source Reduction and Recycling programs as required by the State
can be implemented within the Kensington area. The MOU provides for a coordinating
committee that will facilitate communications between the County, the District and Bay
View and will assist in developing source reduction and recycling programs in a cost
effective manner.
With the proposed agreements, Bay View will be providing expanded recycling and
greenwaste services beginning in January 1998. This will include monthly pickup of
greenwaste for composting and the addition of all materials required by county ordinance.
Due to a lack of understanding on the part of the KCSD of the variable can/mini-can rate
program implications they anticipate that it will take them until July of 1999 to implement
this required program. It is anticipated that all other source reduction and recycling
programs will be initiated within Kensington at a time similar to the rest of the
unincorporated areas.
A Settlement Agreement has been negotiated and submitted to you separately.
Subsequent to approval of the Settlement Agreement staff recommends that the Board
approve the Memorandum of Understanding and rescind the existing Franchise Agreement
between the County and Bay View.
J:groups...ken 10-21.bod
f
MEMORANDUM OF UNDERSTANDING WITH
KENSINGTON POLICE PROTECTION AND
COMMUNITY SERVICES DISTRICT
CONTRA COSTA COUNTY
MEMORANDUM OF UNDERSTANDING BETWEEN
THE KENSINGTON POLICE PROTECTION AND
COMMUNITY SERVICES DISTRICT
AND THE COUNTY OF CONTRA COSTA
FOR MEETING THE REQUIREMENTS OF THE
CALIFORNIA INTEGRATED WASTE MANAGEMENT ACT OF 1989
This Memorandum of Understanding ("MOU") is made and entered into between the
Kensington Police Protection and Community Services District, a public agency formed
pursuant to California Government Code Sections 61000, et sed. (hereinafter "District")
and the County of Contra Costa, a political subdivision of the State of California,
(hereinafter"County") and shall be effective on September 1, 1997 provided it is
executed by both parties on or before November 1, 1997.
RECITALS
This MOU is entered into in consideration of the following matters:
A. The County Board of Supervisors and the District Board of Directors
represent, within their respective boundaries, the residents in the unincorporated area of
the County.
B. District is a community services district providing solid waste
management, resource recovery and disposal services to the public, as well as
businesses, within the unincorporated area of Contra Costa County known as
Kensington.
C. The California Legislature has enacted the California Integrated Solid
Waste Management Act of 1989, Chapter 1095, Statutes of 1989 (hereinafter "the
ACT"). Amendments to the ACT have been adopted and others may be adopted in the
future. The ACT is codified in the California Public Resources Code, Sections 40000, et
sem•
D. The ACT requires that the County prepare and adopt a Source Reduction
and Recycling Element (hereinafter"SRRE") and a Household Hazardous Waste
Element (hereinafter "HHWE") for the unincorporated areas of the County. The ACT
further mandates the diversion of twenty-five percent (25%) of identified solid waste
from land disposal by January 1, 1995 and the diversion of fifty percent (50%) of said
solid waste by January 1, 2000. The County is also designated within the ACT as the
responsible agency for meeting these waste reduction goals for the unincorporated
areas of the County.
-1 -
E. The County and the District have statutory powers to contract and enter
into agreements.
F. The County has adopted Ordinance 91-31 (Solid Waste Collection,
Disposal and Recycling Agreements) providing for the franchising of solid waste
activities within the unincorporated areas of Contra Costa County unless memoranda of
understanding (MOUs) are entered into by the current franchisors and the County.
Further, the County has prepared the SRRE and HHWE for the unincorporated areas of
the County.
G. The District is authorized and empowered by State of California
Community Services District Law, Sections 61000, et se=. of the California Government
Code, to collect and dispose of waste and garbage. The District currently is a party to a
franchise agreement pursuant to which solid waste collection and disposal has been
provided since 1981 by Bay View Refuse Service, Inc.
H. The District and County wish to enter into a MOU for the purpose of
meeting the mandates of the ACT with regard to the unincorporated territory of the
County within the jurisdictional boundaries of the District, and further coordinate with
each other to facilitate the County's achievement of the countywide goals pursuant to
the ACT.
NOW, THEREFORE, the County and the District enter into this MOU to define
their respective roles and responsibilities regarding the provision of solid waste
collection service within the boundaries of the District.
ARTICLE 1: PURPOSE OF THE MOU
1.1 General. The purpose and intent of this MOU is to provide a
representative, economical and effective means by which the unincorporated areas of
the County may achieve the waste reduction goals set forth in the ACT and to meet the
requirements of County Ordinance Code Chapter 418-7.
ARTICLE 2: FRANCHISE, ACT AND OTHER SOLID WASTE REQUIREMENTS
2.1 SRRE and HHWE The ACT mandates that the County prepare and adopt
a SRRE and a HHWE for the unincorporated portion of the County, which elements are
included as parts of the Countywide Integrated Waste Management Plan for Contra
Costa County. The County, prior to the effective date of this MOU, has prepared the
SRRE and HHWE for the unincorporated areas of the County, which have been
approved by the California Integrated Waste Management Board. The County intends
to continue to implement the programs in the HHWE and SRRE, as amended from time
-2-
to time, as required by State law in the unincorporated area of the County, including the
Kensington area.
2.2 FRANCHISE. The District will concurrently enter into a franchise
agreement with Bay View Refuse and Recycling Services Inc. ("Bay View") for the
provision of solid waste services in Kensington. Attached as Exhibit A to this MOU is
the franchise agreement executed by the District and Bay View Refuse and Recycling
Services, Inc. ("Bay View"), dated as of September 1, 1997. County acknowledges that
the attached franchise agreement adequately provides for County's ability to implement
programs as required by the Act, and to meet the goals and other mandates of the Act
and/or any other law regarding solid waste management and/or recycling as may be
adopted from time to time.
2.3 COUNTY PROGRAMS.
2.3.1 Pursuant to the SRRE, the County is responsible for setting up
programs in all parts of the County. Initially, as part of that responsibility the County will
provide Source Reduction and Recycling programs to individual communities, ( such as
compost workshops) as well as the coordination for countywide programs (such as
variable can rates, mini-can rates, source reduction programs [i.e.: Shop Smart],
commercial recycling programs, collection programs for reusable items, develop full
scale recycling programs for both single family and multifamily residential and
commercial developments). The County shall work with the District in establishing
such programs in the Kensington area. The District and County shall cooperate in the
implementation of such programs, as appropriate.
2.3.2 Prior to making any changes to these programs which the County is
aware may significantly affect the District's jurisdictional area, the County shall notify
the District of the proposed change and provide an opportunity to comment on said
proposal. To the extent practically possible, the County shall integrate the District's
comments into any significant program change prior to its implementation.
. 2.4 COORDINATING COMMITTEE. The District shall form a coordinating
committee which consists of five members: one member of the District Board of
Directors or the member's alternate, one District staff person, one representative of Bay
View, one member of the County Board of Supervisors or the member's alternate, and
one County staff person. The purposes of the coordinating committee are to facilitate
communications between the County, the District and Bay View and to assist in
developing source reduction and recycling programs in a cost effective manner.
-3-
2.5 DATA COLLECTION.
2.5.1 Pursuant to the Act, the County is responsible for: reporting
disposal, recycling and program information to the State on a regular basis; tracking all
waste originating within the County and waste deposited in County landfills; reporting
the amounts to all Cities and Counties and to the State for purpose of determining
overall compliance with the waste diversion goal of 50% by 2000; and for reporting to
the state the amounts of various materials recycled and waste reduction programs
instituted in the unincorporated County. The District agrees to implement such uniform
monitoring, reporting and data collection methodologies as established by the County
from time to time in response to State requirements. The District shall provide
information to the County in the computerized or noncomputerized form (including
format) as requested by County, in a timely manner.
2.5.2 Initially, the District General Manager shall provide complete
recycling reports on at least a quarterly basis. The first quarterly report shall be
submitted by November 15, 1997, for the prior July/August/ September quarter, followed
by quarterly reports on the following schedule: February 15 for
October/November/December; May 15 for January/February/March; and August 15 for
April/May/June. The first Annual Report is due February 15,1998 for 1997 and then
each year thereafter on the same schedule. The District shall be responsible for
obtaining reports from Bay View that provide a breakdown by material/tonnage, and
sales price and buyer of all materials recycled, and of the amount of solid waste and
green waste disposed and at what location for the Kensington community. The
scheduling of reports may be modified by the County. The reports shall initially be
provided in the format shown in Exhibit B.
2.5.3 The District shall provide to the County the following information in a
timely manner:
a) copy of rate application from contractor;
b) copy of District's notification to contractor of rate decrease;
c) copy of contractor's written notice of CPI rate change;
d) notification of any rate change approved by the District, including CPI
change or rate reduction;
e) draft customer satisfaction survey, for review and approval;
f) copy of survey results;
-4-
g) copy of draft annual customer information, for review and approval;
h) final copy of annual customer information;
i) draft recycling promotional information, for review and approval;
j) final copy of recycling promotional information;
k) copy of Bay View records regarding number of customers and type of
service;
1) copy of notice from contractor of intent to change disposal site for solid
waste and/or intent to change delivery site for recyclables (including green
waste) or reusables;
m) copy of request by contractor for authority not to collect materials for
which there is no adequate market for review and approval;
n) copy of any written notice of breach sent by the District to the
contractor; and
o) copy of any proposed or approved amendment or modification of the
Franchise Agreement.
The County shall have thirty days to review e), g), and i), and require reasonable
modifications to the drafts. The County shall have thirty (30) days to respond to
requests submitted under subparagraph 1). If the District does not receive a response
within thirty (30) days, it may assume that drafts are approved as submitted and that a
request submitted under subparagraph 1) is approved.
2.6 PUBLIC INFORMATION. The District shall provide a means for the
County to disseminate information to individual customers relating to the SRRE and/or
HHWE. If dissemination of information will be through customer billings, the District
shall inform the County of applicable deadlines for including information with customer
billings. Customers shall be kept informed regarding program implementation and goals,
and their progress toward meeting those goals. In addition, the District will arrange for
distribution to individual customers of other materials provided by the County related to
environmental programs at no cost to the County other than direct costs such as
incremental postage. Promotional material generated by the District or Bay View
relating to recycling, reuse etc. shall be submitted to County for review and approval
prior to distribution to assure compatibility with County source reduction and recycling
efforts which review shall be completed in 30 days. District shall provide County with
copies of all solid waste or recycling surveys and public information provided to
Kensington residents by Bay View or by the District.
-5-
2.7 DISTRICT PROGRAMS.
2.7.1 The District will implement "reduce, reuse and recycle" programs
described in the County SRRE, as amended from time to time, in a manner sufficient to
achieve a reduction in the amount of solid waste originating in the District area, which is
landfilled, comparable to the amount of reduction that is required in similar residential
areas in the unincorporated area of the County, to meet the requirements of the Act.
2.7.2 The District shall design and modify programs and/or rate structures
as needed to meet the overall SRRE goals. Specifically, the District will implement each
of the selected programs contained in the source reduction component, the recycling
component, and the composting component of the SRRE, as amended from time to
time, which are identified as programs to be implemented by franchisor agencies and/or
haulers. The District will provide local publicity and generate local interest in solid waste
and recycling programs, provide locations for activities such as compost workshops,
determine any special needs that the community may have in regards to solid waste
pickup services, including recycling and green waste and work with County staff to
develop "reduce, reuse and recycle" programs that will be effective in the Kensington
community. The District shall notify the County of the implementation or reduction or
elimination of any "reduce, reuse, recycle" programs required for the implementation of
the SRRE.
2.7.3 If the County considers the District's implementation of one or more
such programs to be inadequate (as measured against the description of the program
and its anticipated impact on waste diversion in the SRRE) it may bring the matter to the
attention of the Coordinating Committee. If, thereafter, the County continues to
consider the District's implementation to be inadequate it may notify the District in
writing, specifying the deficiency and proposing specific changes. If the District does
not implement the changes in a reasonable time, the County may independently
arrange for the implementation of such program changes and may require the District to
pay the costs thereof.
2.8 HOUSEHOLD HAZARDOUS WASTE PROGRAM. District shall be
responsible for its pro rata share of costs incurred by the County in implementing the
HHWE. In order to accomplish this, District will include in Bay View's rates, as a pass-
through expense, the amount of District's share of HHWE costs for each year, based on
estimates from County. The amount of District's share for FY1996-97 was
approximately $4,000, which has been paid. County will bill Bay View directly, and Bay
View will pay County directly. County will provide District the amount of its share for FY
1997-98, together with a statement of how that share was calculated, no later than April
15, 1998, and will continue to do so by April 15 of succeeding years.
-6-
2.9 FRANCHISE FEES. The District shall include in the rates charged by Bay
View, a Franchise Fee in an amount determined by the County, to pay for County
expenses and costs incurred in implementing the SRRE, as amended from time to time,
and other solid waste management costs incurred in connection with solid waste
management, including, but not limited to, costs associated with this MOU. Unless
otherwise directed by County, the Franchise Fee to be paid to County shall be 3% of
Bay View's gross receipts. County shall not increase the Franchise Fee above 3%
unless the County's costs of administering solid waste programs, including costs of
implementing the SRRE, exceed the then applicable franchise fee. Any increase shall
be proportional to District's share of the costs. If County's costs of administering solid
waste programs, including costs of implementing the SRRE decreases, the District may
request a decrease in the franchise fee. The District shall have no duty to defend the
County in any suit challenging the County's franchise fee.
2.10 INITIAL PROGRAM IMPLEMENTATION
2.10.1 REUSE PROGRAM: The District and County shall work together
with Bay View to design a pilot reusables pick-up program. The program may include
pickup of reusables by either a non-profit or a for-profit organization. (e.g. Goodwill or
Urban Ore).
2.10.2 METHOD OF RECYCLING: The District shall consult with Bay
View and the County to determine the most cost effective method of accomplishing the
required recycling. Possible methods include:
a) picking up at curbside, different materials on different days,
b) allow for mixed curbside pickup to be sorted at a transfer station or
central sorting area,
c) designated containers for each material to be picked up at curbside,
d) local neighborhood drop off sites for some materials.
2.10.3 SOURCE REDUCTION AND RECYCLING ELEMENT (SRRE
The District shall work with Bay View to provide for the following SRRE requirements:
a) After a survey to determine the level of interest, set mini-can and
variable can rates, and establish a variable can rate structure and provide
for mini-can service by July 1, 1999.
b) Collection of cardboard, mixed paper and other items required by
Chapter 418-10 shall begin in January 1998.
-7-
c) Monthly collection of green waste beginning in January 1998.
2.11 FREE SERVICE FOR COUNTY. District shall provide Solid Waste
collection and disposal services at those County buildings within the Franchise Area
(currently, the Library) designated by the Director of Community Development from time
to time, at no charge to the County.
2.12 COUNTY AUTHORITY, DISCRETION.
2.12.1 The ACT, other California statutes, and the California Constitution,
authorize and/or require the County to undertake a number of activities involving solid
waste handling and disposal. The ACT specifically empowers the County to undertake
certain planning functions including the development of SRRE's, HHWE's and the
Countywide Integrated Waste Management Plan.
2.12.2 The District franchise with Bay View provides for District/County
control over the location at which solid waste is disposed. The District agrees to direct
Bay View to transport (or not transport) solid waste to specified landfills or solid waste
handling facilities as directed by County in the following circumstances.
a) The County determines that the landfill currently being used is
unpermitted, is in violation of its permits, or is otherwise out of compliance
with federal or state environmental laws, regulations or standards such
that the disposal of solid waste from Kensington creates a potential liability
for the County, and so advises the District, and other agencies in the
County using such landfill, in writing;
b) The County requires the ability to commit the solid waste from several
jurisdictions, including Kensington, to a particular landfill in order to secure
volume reductions on tipping fees charged at such landfill, and the tipping
fees for the aggregated wastestream are lower than those then paid by
the District at the landfill it is using;
c) The County determines that the solid waste diversion goal required by
the Act will not be met in the unincorporated area of the County, has
made a diligent effort to implement the SRRE programs which are the
responsibility of the County, and has determined that it is necessary for an
overall Countywide effort which includes the use by its franchisees and
franchisor agencies in the unincorporated areas, of materials recovery
facilities to secure the additional recycling needed to comply with the Act.
2.12.3 If the County determines that it is necessary for proper
implementation of SRRE programs, the County may direct the District to direct specified
_g.
recyclable materials, including green waste, collected within the District's boundaries to
be delivered to a particular purchaser of such material. The County will not exercise its
discretion, as described in this paragraph, unless it has or will also direct all similarly
situated recyclable materials collected in other County franchised areas.
ARTICLE 3: TERM AND TERMINATION
3.1 TERM. The term of this MOU is for 19 years, subject to termination as
provided herein.
3.2 INCORPORATION, ANNEXATION. Upon the annexation to a municipal
corporation or the incorporation of any of the territory covered by this MOU, as to said
territory, this MOU shall be terminated as provided by law, upon the effective date of the
municipal corporation's determination to franchise or otherwise regulate solid waste and
recycling in said territory.
3.3 TERMINATION OF FRANCHISE AGREEMENT. This MOU shall
automatically terminate one year after the termination of the Franchise Agreement
unless the District enters a new Franchise Agreement that provides for the effective
implementation of the SRRE and HHWE and complies with Ordinance Code Chapter
418-7, as amended from time to time, no less effectively than as provided in Exhibit A.
ARTICLE 4: INSURANCE INDEMNITY, FINES AND ALLOCATION OF LIABILITY
4.1 INSURANCE AND INDEMNITY. Neither the County nor the District, as a
condition of the execution of this MOU, shall be required to provide direct insurance
coverage or protection to the other. Except as provided in section 4.2 (Act
Requirements), neither County nor District is required to contractually indemnify the
other against damages to any person or property not a party to this MOU.
4.2 ACT REQUIREMENTS. District shall indemnify the County for any fines
imposed on the County by the state for failure to properly implement the County's
SRRE, where the failure is partly or wholly attributable to action or inaction by the
District. The District's share of any fines shall be proportionate to the District's share of
responsibility for the failure. The District's share will be calculated as the ratio which the
number of tons of solid waste disposed of on land that originate in the District in excess
of the number of tons which could be so disposed without violating the Act bears to the
number of tons of solid waste disposed of on land which originate in the unincorporated
area of the County in excess of the number of tons which could be so disposed without
violating the Act.
-9-
ARTICLE 5: GENERAL PROVISIONS
5.1 SEVERABILITY. The invalidation of any term, condition, or provision of
this MOU as a result of a legal action brought by a person or entity not a party to this
MOU shall not affect the validity or enforceability of the remaining provisions. However,
if one or more material provisions is affected, the parties agree to negotiate in good faith
to reach agreement on revisions which preserve the substance hereof.
5.2 MODIFICATION. This MOU constitutes the entire agreement between the
parties with regard to the items discussed herein. A party may modify this MOU only
by subsequent mutual written agreement executed by both the County and the District.
5.3 ASSIGNMENT AND DELEGATION. Except as provided herein, neither
County nor District shall assign any rights nor delegate any obligations as provided
under this MOU without written notice to and consent of the other party to this MOU.
5.4 CALIFORNIA LAW. This MOU, its interpretation and all work performed
thereunder, shall be governed by the laws of the State of California.
5.5 NOTICES.
5.5.1 All notices and communications deemed by either party to be
necessary or desirable to be given to the other party shall be in writing and may be
given by personal delivery to a representative of the parties or by mailing the same
postage prepaid, addressed as follows:
If to the District: Kensington Community Services District
217 Arlington Avenue
Kensington, California 94707-1401
Attention: General Manager
If to the County: Contra Costa County
Community Development Department
County Administrative Building
651 Pine Street
4th Floor, North Wing
Martinez, California 94553-0095
Attention: Solid Waste Program Manager
If to Bay View: Bay View Refuse and Recycling Inc.
Attn: Lewis Figone, President
P.O. Box 277
EI Cerrito, CA 94530
-10-
5.5.2 The address to which mailings may be made may be changed from
time to time by notice mailed as described above. Any notice given by mail shall be
deemed given on the day after that on which it is deposited in the United States Mail as
provided above.
5.6 WAIVER. The waiver by either party of any breach or violation of any of
the provisions of this Agreement shall not be deemed to be a waiver of any breach or
violation of any other provision nor of any subsequent breach or violation of the same or
any other provision.
5.7 ATTORNEY'S FEES. In the event of litigation between the parties arising
hereunder, each party shall be responsible for and shall pay its own litigation expenses,
including attorney's fees.
5.8 BAY VIEW REFUSE. This MOU grants rights to and imposes obligations
upon Bay View. By its execution of this MOU, Bay View acknowledges and agrees to
comply with and be bound by each and every term, condition or provision of this MOU
applicable to Bay View.
5.9 NO THIRD PARTY RIGHTS. Except asset forth in section 5.8, this MOU
is not intended to and does not benefit any third party. No third party shall have the
right to bring suit to enforce any of the provisions hereof.
5.10 PRESERVATION OF POSITIONS. This MOU is not an admission,
acceptance or ratification by the District of the legality of the portions of Ordinance No.
91-31, which purport to give the County authority to take control over existing solid
waste franchises without the consent of the district and its franchisee, nor is this MOU a
concession by the County that Ordinance No. 91-31 is not valid, effective and
enforceable in all its particulars.
Kensington Police Protection and County of Contra Costa
Community Services District
By: -- By: �1o�4 -
President, Board of Directors Chair, Board of Supervisors
Date: October 16, 1997 Date: ie -
-11 -
Attest: Secretary Attest: Phil Batchelor, Clerk of the
Board of Supervisors and County
Administrator
By: �_
Date: October 16, 1997 Date: AD -t-1 -/99 7
The following signature(s) attest to Bay View's agreement to the terms,
conditions and provisions of this MOU.
BAY VIEW REFUSE AND RECYCLING
SERVICES, INC.
By:
Lewis Figo e, President
A:MOU.WPD
-12-
I
C
September 11, 1997
FRANCHISE AGREEMENT WITH
BAY VIEW REFUSE AND RECYCLING SERVICES, INC.
KENSINGTON POLICE PROTECTION
AND COMMUNITY SERVICES DISTRICT
e
TABLE OF CONTENTS
Page
1 . EFFECTIVE DATE, PARTIES . . . . . . . . . . . . . . . 1
2 . DEFINITIONS . . . . . . . . . . . . . . . . . . . . . . 1
3 . TERM . . . . . . . . . . . . . . . . . . . . . . . . . . 4
4 . INTENT TO REGULATE ALL RECYCLING AND RESIDENTIAL AND
SOLID WASTE COLLECTION, REMOVAL AND/OR DISPOSAL . . . . 4
5 . EXCLUSIVE PRIVILEGE AND DUTY . . . . . . . . . . . . 4
6 . EXCEPTIONS TO EXCLUSIVE PRIVILEGE . . . . . . . . . . . 4
7 . LIMITATION ON CONTRACTOR' S OPERATIONS . . . . . . . . . 5
8 . CONTRACTOR' S DUTY TO MAINTAIN RECORDS; DISTRICT' S RIGHT
TO EXAMINE RECORDS . . . . . . . . . . . . . . . . . . . 5
9 . CONTRACTOR' S COMPENSATION . . . . . . . . . . . . . . . 6
10 . AFFILIATED COMPANY TRANSACTIONS . . . . . . . . . . . . . 12
11 . OPERATION BY CONTRACTOR . . . . . . . . . . . . 12
12 . TIME AND MANNER OF COLLECTION . . . . . . . . . . . . . 12
13 . CUSTOMER SATISFACTION, AB 939 AND EFFICIENCIES IN
OPERATION . . . . . . . . . . . . . . . . . . . . . . . 13
14 . CUSTOMER SERVICE STANDARDS . . . . . . . . . .. . . . . . 14
15 . CUSTOMER COMPLAINTS . . . . . . . . . . . . . . . . . . 15
16 . BILLING . . . . . . . . . . . . . . . . . . . . . . 15
17 . RECYCLING . . . . . . . . . . . . . . . . . . . . . . . . 15
18 . FREE SERVICE FOR COUNTY LIBRARY AND DISTRICT . . . . . . 17
19 . FRANCHISE AREA-WIDE COLLECTION . . . . . . . . . . . . . 17
20 . PARTICIPATION IN COMMUNITY CLEAN-UP PROJECTS . . . . . 18
21 . DISPOSAL AND WASTE STREAM CONTROL . . . . . . . . . . . 18
22 . MISCELLANEOUS OBLIGATIONS OF CONTRACTOR . . . . . . . 18
382732.6 1 September 11, 1997
23 . ADMINISTRATIVE SERVICES AND FRANCHISE FEES . . . . . . . 19
24 . HAZARDOUS WASTE . . . . . . . . . . . . . . . . . . . . 19
25 . PRELIMINARY DISPUTE RESOLUTION . . . . . . . . . . . . . 19
26 . FAITHFUL PERFORMANCE BOND . . . . . . . . . . . . . . . 20
27 . INSURANCE . .. . . . . . . . . . . . . . . . . . . . . . 20
28 . INDEMNIFICATION . . . . . . . . . . . . . . . . . . . 21
29 . ATTORNEY' S FEES . . . . . . . . . . . . . . . . . . . . 22
30 . ASSIGNABILITY . . . . . . . . . . . . . . . . . . . . . 22
31 . INVOLUNTARY ASSIGNMENT . . . . . . . . . . . . . . . . . 23
32 . NOTICE . . . . . . . . . . . . . . . . . . . . . . . . . 24
33 . ANNEXATION AND CHANGE OF FRANCHISE AREA BOUNDARIES . . . 24
34 . BREACH AND TERMINATION . . . . . . . . . . . . . . . . . 24
35 . EMERGENCY . . . . . . . . . . . . . . . . . . . . . . . 26
36 . COMPLIANCE WITH FEDERAL, STATE AND LOCAL LAWS . . . . . 26
37 . AMENDMENT OR MODIFICATION . . . . . . . . . . . . . . . 27
38 . STATUTORY POWERS . . . . . . . . . . . . . . . . . . . 27
39 . CONTEST OF AGREEMENT' S TERMS . . . . . . . . . . . . . . 27
40 . SEVERABILITY . . . . . . . . . . . . . . . . . . . . . 27
41 . WAIVER . . . . . . . . . . . . . . . . . . . . . . . . . 27
42 . SURVIVAL OF OBLIGATIONS . . . . . . . . . . . . . . . . 28
43 . THIRD PARTY BENEFICIARY 28
44 . ENTIRE AGREEMENT; SUPERSESSION OF PRIOR AGREEMENT 28
45 . EFFECTIVE DATE; CONDITIONS TO EFFECTIVENESS . . . . . . 28
382732.6 1 1 September 11, 1997
FRANCHISE AGREEMENT
WITH BAY VIEW REFUSE AND RECYCLING SERVICES, INC.
THIS FRANCHISE AGREEMENT is made as of September 1, 1997, by
and between the KENSINGTON POLICE PROTECTION AND COMMUNITY
SERVICES DISTRICT, a political subdivision of the State of
California ( "District" ) , and BAY VIEW REFUSE AND RECYCLING
SERVICES, INC. , a California corporation ( "Contractor" ) .
THE PARTIES AGREE AS FOLLOWS :
-1. EFFECTIVE DATE, PARTIES. This Agreement is binding
between the District and the Contractor and is effective on
September 1, 1997 .
2 . DEFINITIONS. As used herein, the following terms shall
have the meanings set forth below:
2 .1 Agreement. Agreement means this Agreement by and
between the District and Contractor for the collection, removal
and disposal of solid waste and the recycling of material .
2 .2 Act. Act means the California Integrated Waste
Management Act of 1989 (Public Res . Code, §40000 et seq. ) and all
rules, regulations and definitions adopted under any of those
sections, as such sections, rules, regulations and definitions
may be amended from time to time in the future .
2 .3 Commercial Solid Waste. Commercial Solid Waste
means Solid Waste routinely originating from stores, business
offices and other commercial and light industrial sources
excluding residences and any wastes from heavy industry (i .e. ,
industry that manufactures or processes petroleum, lumber, steel,
chemicals, explosives, fertilizers, gas, rubber, cement, sugar
and other such products [see section 84-60 . 402 of the Contra
Costa.. County Ordinance Code . ] ) .
2 .4 Contractor. Contractor means Bay View Refuse and
Recycling Services, Inc . , a California corporation. It is the
entity which has been granted an exclusive franchise pursuant to
the terms and conditions set forth herein. Lewis Figone is
president of, and owns 1000 of the stock in, Bay View Refuse and
Recycling Services, Inc .
2 . 5 Consumer Price Index or Index. Consumer Price
Index and Index each means the Consumer Price Index for All Urban
Consumers for the San Francisco-Oakland--San Jose Area as
published by the United States Department of Commerce, Bureau of
382732.6 September 11, 1997
Labor Statistics, 1982-84=100 . The Consumer Price Index for June
1997 was 160 . 0 .
2 . 6 County. County means the County of Contra Costa
which includes its Board of Supervisors, Community Development
Department and/or the Community Development Director .
2 .7 Customers. Customers means those who receive
service from the Contractor for the collection of materials for
recycling and/or for the collection, removal, or disposal of
Solid Waste, pursuant to this Agreement and applicable ordinances
of County, including mandatory subscription ordinances .
2 .8 Designated Waste. Designated Waste as used herein
has the meaning set forth in section 2522 of Title 23 of the
California Code of Regulations, as amended from time to time .
2 . 9 District. District means the Kensington Police
Protection and Community Services District .
2 .10 District Board. District Board means the Board of
Directors the Kensington Police Protection and Community Services
District.
2 .11 Franchise Area. Franchise Area means the
geographic .area generally known as the unincorporated community
of Kensington in West Contra Costa County described in Exhibit A
to this Agreement . Exhibit A may be amended from time to time to
reflect changes of boundaries of the Franchise Area in such a
manner as to identify each alteration to the Franchise Area and
the effective date thereof .
2 .12 Hazardous Waste. Hazardous Wastes include any
waste material or mixture of wastes which is toxic, corrosive,
flammable, an irritant, or a strong sensitizer, which generates
pressure through decomposition, heat or other means, if such a
waste or mixture of wastes may cause substantial personal injury,
serious illness or harm to humans, domestic animals, or wildlife,
during or as a proximate result of any disposal of such wastes as
defined in Article 2 , Chapter 6 .5, Section 26117 of the Health
and Safety Code. The terms "toxic, " "corrosive, " "flammable, "
"irritant, " and "strong sensitizer" shall be given the same
meaning as in the California Hazardous Substances Act (Chapter 13
commencing with Section 28740 of Division 21 of the Health and
Safety Code) and 14 Cal. Code Regs . , §17225 . 32 .
2 .13 Industrial Waste. Industrial Waste includes all
types of Solid Waste which result from industrial processes and
manufacturing operations and/or which originate from such
facilities .
2 .14 Infectious Waste. Infectious Wastes include :
382732.6 2 September 11, 1997
(1) Equipment, instruments, utensils and other fomites
of a disposable nature from the rooms of patients who are
suspected to have or have been diagnosed as having a communicable
disease and must, therefore, be isolated as required by public
health agencies;
(2) laboratory wastes, including pathological
specimens (i .e . , all tissues, specimens of blood elements,
excreta and secretions obtained from patients or laboratory
animals) and disposable fomites (any substances that may harbor
or transmit pathogenic organisms) attendant thereto;
(3) surgical operating room pathologic specimens
including recognizable anatomical parts, human tissue, anatomical
human remains and disposable materials from hospital, clinics,
outpatient areas and emergency rooms (14 Cal .Code Regs . ,
§17225 .36) .
2 .15 Memorandum of Understanding. Memorandum of
Understanding means the agreement dated as of September 1, 1997
between District and County concerning solid waste collection and
recycling services within the Franchise Area executed by the
District Board and the County Board of Supervisors .
2 . 16 Recycle or Recycling. Recycle or Recycling means
the process of collecting, sorting and recovering materials so
that they may be reconstituted for new, reused, or reconstituted
products .
2 .17 Residential Solid Waste. Residential Solid Waste
means Solid Waste routinely originating from single family or
multiple family dwellings . Residential Solid Waste includes
household hazardous waste, but does not include septage .
2 .18 Septage. Septage means non-sewered liquid or
semi-liquid waste which may be trucked to treatment facilities
for disposal, to include, but not be limited to, waste from
residential septic tanks, commercial grease clean-outs, and
industrial waste holding facilities .
2 .19 Solid Waste. Solid Waste has the meaning set
forth in Section 40191 of the California Public Resources Code as
of the date of execution of this Agreement . Solid Waste
includes, but is not limited to, all putrescible and
nonputrescible solid, semisolid, and liquid wastes, including
garbage, trash, refuse, paper, rubbish, ashes, demolition and
construction wastes, abandoned vehicles and parts thereof,
discarded home and industrial appliances, dewatered, treated, or
chemically fixed sewage sludge which is not hazardous waste,
manure, vegetable or animal solid and semisolid wastes and other
discarded solid and semisolid wastes . "Solid Waste" does not
382732.6 3 September 11, 1997
include infectious, designated, and hazardous waste, except
household hazardous waste .
2 .20 Waste Stream. Waste Stream means the Solid Waste
to be collected under this Agreement from the time of its
collection by the Contractor to its disposal at a landfill or
delivery to a transfer facility or other facility by Contractor.
3 . TERM. Subject to section 33 (Annexation and Change of
Franchise Area Boundaries) and section 34 (Breach and'
Termination) , the Term of this Agreement and the exclusive
franchise granted hereunder shall be 18 years, commencing on the
Effective Date set forth in Section 1 and expiring on August 30,
2015 .
4 . INTENT' TO REGULATE ALL RECYCLING AND RESIDENTIAL AND
SOLID WASTE COLLECTION, REMOVAL AND/OR DISPOSAL. The District
has jurisdiction to regulate the collection, removal and disposal
of all Solid Waste, and the recycling of all material in the
Franchise Area. The intent of this Agreement is to .regulate
Solid Waste handling services and recycling of material in the
Franchise Area.
5. EXCLUSIVE PRIVILEGE AND DUTY. To the extent allowed by
law, District hereby grants to Contractor the exclusive privilege
and duty within the Franchise Area to collect, and remove for
disposal and recycling, all residential and commercial Solid
Waste, including recyclable materials, . and to charge and receive
charges therefor, pursuant to and subject to the terms of this
Agreement . Contractor promises and agrees to perform the
responsibilities and duties set forth herein.
6 . EXCEPTIONS TO EXCLUSIVE PRIVILEGE. The exclusive
privilege granted by this Agreement shall not apply to:
6 .1 Solid Waste, including recycling materials, which
are collected, removed and disposed or recycled personally by the
same person or entity which generated them, or by the owner of
the property on which they were generated, in a clean and
sanitary manner and in conformance with all applicable laws and
regulations, including mandatory subscription ordinances .
6 .2 Construction/demolition debris .which is collected,
removed and disposed or recycled by a construction contractor
incidental to construction, remodeling or demolition work
performed for a customer.
6 . 3 Greenwaste (lawn and garden trimmings, branches
and other organic materials from landscaped areas) which is
collected, removed and disposed or recycled by a gardener or
landscape contractor as an incidental part of gardening or
landscaping work performed for a customer.
382732.6 4 September 11, 1997
6 .4 Recyclable or reusable materials donated to a
charity or other nonprofit organization qualified under Section
501 (c) (3) of the Internal Revenue Code .
6 . 5 Solid Waste and recyclable material generated by
Sunset Cemetery or Kensington Elementary School .
Contractor shall be responsible for enforcing the. exclusive
nature of the franchise. District shall cooperate with
Contractor in such efforts but shall not be required to, initiate
or participate in litigation at its expense to do so. ` Contractor
shall reimburse District for litigation expenses incurred by
District in defending the exclusive nature of the franchise
granted by this Agreement .
7 . LIMITATION ON CONTRACTOR' S OPERATIONS. Contractor' s
operations and business activities shall solely consist of
providing solid waste collection and recycling services to the
Kensington Franchise Area, unless otherwise agreed by the parties
through an amendment to this Agreement . Contractor shall not use
its equipment or, employees to collect Solid Waste from, or
perform other services for, either Sunset Cemetery or Kensington
Elementary School or from locations outside Kensington. As long
as Contractor' s corporate operations and business activities are
so limited to Kensington, the District' s right to examine
records, as provided in section 8 below, shall be limited to the
corporate books and records of Contractor.
8. CONTRACTOR'S DUTY TO MAINTAIN RECORDS; DISTRICT'S RIGHT
TO EXAMINE RECORDS. Contractor shall maintain and make available
to District, upon its request, records as to number of Customers
(total and by type) , route maps, service records and other
materials and operating statistics in such manner and with such
detail as District may require .
Contractor shall maintain a proper set of books and records
in accordance with generally accepted accounting principles
("GAAP" ) , accurately reflecting the operations performed and
business done by it under this Agreement . Accounts shall be
maintained on the accrual basis . The Contractor' s fiscal year
shall be the calendar year.
A financial statement verified by Contractor' s president
shall be provided by Contractor to the District on May 15th
(covering the period January 1 through May 1) , September 15th
(covering the period January 1 through September 1) and January
15 (covering the period January 1 through December 31 of the
previous year) of each year commencing with May 1, 1998 . By
March 30, Contractor shall provide a financial statement for the
previous calendar year compiled by an independent certified
public accountant in accordance with GAAP.
382732,6 5 September 11, 1997
District may examine the books and records of the
Contractor. District shall give thirty (30) days written notice
to the Contractor of such examination date.
In addition, District may review or audit any annual
financial statement compiled by or for Contractor. Thirty (30)
days written notice shall be provided to Contractor. The audit
review notice must be sent within one year from the date the
annual financial statement was submitted to the District . Any
such review or audit shall be performed by an independent
certified public accountant appointed by District . If requested
by District, Contractor shall pay the auditor and shall be
entitled to recover the full cost thereof through rates as a pass
through expense .
The information .required by this section shall pertain to
Contractor' s operations, all of which are covered and regulated
by this Agreement as set forth in section 7 above, and nothing
contained herein shall require the Contractor or its
shareholder (s) to provide the District with information
concerning the business and financial activities of any of its
shareholder (s) or of other corporations in which any of the
Contractor' s shareholder (s) have an interest .
Contractor may consider some operating information submitted
to District under the first paragraph of this section as
confidential . If District receives a request under the
California Public Records Act, prior to releasing any information
pursuant to this paragraph, District shall make a good faith
effort to notify Contractor of the intended release . Nothing in
this section will prevent District from allowing public access to
District records as provided for under the California Government
Code, and in the event any dispute arises as to the public access
to information provided by Contractor under the terms of this
Agreement, the District shall in its discretion provide public
access to said information according to law or tender the defense
of any claims made against the District concerning said
information to Contractor.
9 . CONTRACTOR'S COMPENSATION
9 . 1 General . Contractor',s compensation for the
services required by this Agreement shall consist of (1) the
right to charge and collect from Customers in the Franchise Area
the rates provided for in this Agreement, and (2) the right to
retain all revenues received by Contractor from the sale of
materials which are Recycled.
9 .2 Initial Rates . Rates which Contractor may charge
as of the Effective Date, i .e . , September 1, 1997, are those set
forth on the Schedule attached as Exhibit B. Until the rates are
adjusted as provided in this Agreement, Contractor shall provide
382732.6 6 September 11, 1997
the services required by this Agreement, charging no more than
the rates set forth on Exhibit B for the services it provides .
Future modifications in rates pursuant to Sections 9 . 3 , 9 . 4 . 9 . 5,
9 . 6, 9 . 7 and 9 . 8 do not require an amendment to this agreement .
9 .3 Annual Rate Adjustments . The rates set forth on
Exhibit B shall be adjusted annually as set forth below,
commencing January 1999 . The changes shall become effective
January 1 of 1999 and on January 1 of each year thereafter.
Year Two through Year Four: The rates in effect as of
January 1, 1999 and as of January 1 of each succeeding year .
through January 1, 2001 shall be adjusted effective as of January
1 of each immediately following year by multiplying each such
rate by a fraction, the numerator of which is the Consumer Price
Index (All Urban Consumers, San Francisco-Oakland-San Jose)
published by the U. S . Department of Commerce, Bureau of Labor
Statistics ( "Index" ) for September in the year immediately
preceding the year for which the increase is to be effective and
the denominator of which is the Index for the September twelve
(12) months earlier. In the case of Year Two (calendar year
1999) , for example, the rates in effect on January 1, 1998 will
be changed as of January 1, 1999 to reflect the percentage change
in the Index between September 1997 and September 1998 .
Contractor need not submit an application to increase
rates pursuant to this Section 9 . 3 , but shall submit a proposed
new rate schedule by November 1 of each year showing the Index as
of the relevant dates and its calculation of the new rates . The
new rate schedule . shall go into effect automatically unless
District notifies Contractor within ten (10) days of receiving
the proposed new schedule of any error. in Contractor' s
calculations .
Years Six through Nine, Eleven through Thirteen and
Fifteen through Eighteen: As provided in Section 9 . 4 below, the
rates- will be comprehensively reviewed at four (4) year intervals
so that Cont'ractor' s compensation is periodically adjusted,
independently of, changes in the Index, to cover all Contractor' s
reasonable reimbursable costs and provide a pre-tax profit of
twelve percent (120-. ) on those costs which are subject to a profit
allowance (hereafter the "benchmark level" ) . In the intervening
years following such comprehensive reviews, the resulting rates
shall be adjusted to reflect changes in the Index as provided in
this Section 9 . 3 .
9 .4 Four Year Rate Revisions . The rates set forth in
Exhibit B are intended to generate sufficient revenues so that,
in combination with estimated revenues from recycling and other
operations in Kensington, Contractor will recover its reasonable
costs for furnishing all labor, materials, equipment , supplies
and other things necessary to perform all the services required
382732.6 7 September 11, 1997
by this Agreement .and, in' addition, earn a pre-tax profit of
twelve percent (120) on certain of those costs . The initial
rates set forth on Exhibit B are intended to cover all costs for
the items mentioned in the preceding sentence, including overhead
(insurance, bonds, county fees, and franchise fees) , taxes and
profit, as shown on Exhibit C. The parties agree that the costs
shown on Exhibit C are both complete and reasonable for the scope
of services to be provided.
The parties recognize that recycling and other
revenues, rate revenues and costs of operation may change over
time at rates different than the rate of change in the Index,
such that the rates shown on Exhibit B, adjusted as provided in
Section 9 . 3 , may not continually produce compensation to the
Contractor consistent with the benchmark used to establish the
initial rates . In order to ensure that rates are periodically
readjusted to the benchmark, the parties agree that there should
be a comprehensive review of Contractor' s revenues and expenses
at four-year intervals .
To implement these comprehensive reviews, Contractor
shall submit a report on or before April 30, 2001 which shall'
include (a) Contractor' s financial statements for calendar
year 2000 , together ,with an opinion of an independent certified
public accountant based on an audit of Contractor' s financial
operations, (b) Contractor' s projections of rate revenue and
recycling/other revenue for the calendar year 2002, (c)
Contractor' s projections of expenses for calendar year 2002, and
(d) Contractor' s proposed rate increase/decrease, as needed to
achieve benchmark level compensation (i .e. recovery of costs plus
12% profit on those costs subject to a profit allowance) in
calendar year 2002 . In projecting recycling/other revenues for
the ensuing year, the average of the preceding three years shall
be used. Reports shall be prepared in accordance with the format
and level of detail reasonably required by the District and
submitted in the number of copies (up to a maximum of 10)
required by the District . Contractor shall also furnish any
other relevant information requested by District to evaluate the
Contractor' s rate proposal .
District Board shall consider the Contractor' s report
at a noticed public meeting at which Contractor and any member of
the public may submit written or oral comments. Thereafter, and
no later than- September 30, 2001, District shall establish, by
ordinance or resolution, the maximum rates which Contractor may
charge for service commencing January 1, 2002 .
Comprehensive reviews shall also be conducted in
calendar year 2005, to establish rates applicable as of January
1, 2006 and calendar year 2009, to establish rates applicable as
of January 1, 2010 .
382732.6 8 September 11, 1997
9 .5 Adjustments in Rates for Extraordinary Changes in
Disposal Costs . The rates set forth on Exhibit B include all
costs of disposal of solid waste including transportation to the
Disposal Site and "Gate Fees" charged at the Disposal Site . The
adjustments in the rates provided in Sections 9 .3 and 9 .4 are
intended, and expected, to cover all increases in both components
of disposal costs, as well as the costs of collection and
recycling. The purpose of this Section 9 . 5 is to set forth the
conditions under which the rates may be adjusted at times and/or
in amounts different from those provided in Sections 9 . 3 and 9 .4
as a result of extraordinary increases or decreases in disposal
costs due either to a change in the Gate Fees or to a change in
the Disposal Site .
If the Gate Fees at the Disposal Site are increased or
decreased at any time by more than fifteen percent (15%) or if
there is a change in the Disposal Site which will increase or
decrease total disposal costs by more than fifteen percent (15%) ,
Contractor shall notify District . Either party may then request
an adjustment in rates for the remainder of the current calendar
year. The District shall adjust the rates so that Contractor' s
revenues for the calendar year remain, to the extent achievable,
at the benchmark level . In addition, at the annual rate
adjustment immediately following an adjustment pursuant to this
Section 9 . 5, the parties shall take the effect of the partial
year adjustment in rates into account in applying the Index-based
adjustment to rates for the ensuing full year, again with the
goal of Contractor' s receiving compensation at the benchmark
level for the ensuing full year.
9 .6 Adjustments in Rates for Extraordinary Events .
The parties acknowledge that there may be infrequent
extraordinary events which, although they do not prevent either
party from performing, and thus do not implicate the Force
Majeure provisions, nevertheless radically increase or decrease
the cost of providing service such that the rates and the rate
adjustment mechanism provided in this Agreement result in
Contractor suffering losses, or enjoying profits, which are
substantially outside the commercially reasonable expectations of
the parties. An example of such an event is a war or embargo
which increases the cost of fuel by a factor of five (5) , or
economic events which reduce the cost of fuel by fifty percent
(50%) . The obligation of the parties in such event is to act
reasonably toward each other and modify rates as necessary to
maintain Contractor' s compensation at the benchmark level .
If one party believes such an event has occurred and
warrants an increase or decrease in the rates different from that
provided for in Section 9 . 3 , it shall notify the other, providing
a full explanation and a proposed change in rates .
382732.6 9 September 11, 1997
9 .7 Adiustment in Rates for Changes in Contractor' s
Scope of Work and/or in Level of "Pass-Through" Costs . If the
District, pursuant to Section 13 , directs Contractor to initiate
new services or expand the level of existing services, the
reasonable cost of the additional services, plus 12% profit,
shall be incorporated into the rates . Similarly, if the District
directs Contractor to eliminate or reduce the level of existing
services, the reasonable cost savings, plus 12% thereof, shall be
incorporated into the rates .
If the amount of any of the "pass-through" costs on
Exhibit C is increased or decreased from their then-current
level, if new fees are imposed which are to be paid for initially
by Contractor, or if existing fees are terminated, these changes
shall be taken into account in rates .
If one party believes such an event has occurred and
warrants an increase or decrease in the rates different from that
provided for in Section 9 . 3 , it shall notify the other, providing
a full explanation and a proposed change in rates .
9 . 8 Adjustment in Rates for New Capital Equipment
Purchases . Contractor shall be entitled to an increase in rates
to reflect depreciation on new capital equipment (e .g. , vehicles)
purchased with District approval . Depreciation shall be
incorporated into rates as of January 1 next following the year
in which the capital asset is placed into service .
9 . 9 Information in Support of Rate Requests. If a
change in rates is requested as a result of a change in the scope
of work directed by District (Section 9 . 7) , an extraordinary
change in disposal costs (Section 9 . 5) , or an extraordinary event
(Section 9 . 6) , Contractor shall promptly furnish to District all
relevant operational and financial information and records
necessary to evaluate it .
9 .10 No Retroactive Adjustment in Rates . Whether or
not the rates are adjusted by an amount larger or smaller than
the change in the Index, pursuant to Section 9 .4 , no
consideration shall be given to Contractor' s having previously
earned compensation resulting in a profit greater or less than
twelve percent (120-.) . In other words, future rates shall not be
increased to make up for profits below 12% in previous years nor
reduced to offset profits of greater than 12% in previous years.
9 .11 Design of Rate Schedule. The parties acknowledge
that the District Board retains legislative discretion to add new
rate categories to Exhibit B, delete rate categories from Exhibit
B, or adjust particular components of the rate schedule by
amounts greater or less than the applicable percentage adjustment
required by Section 9 . 3 , in order to accomplish social, economic,
382732.6 10 September 11, 1997
and/or environmental goals, so long as the aggregate adjustment
is substantially equivalent to the amount of revenue generated by
the single percentage required by Section 9 . 3 . A rate schedule
which will generate revenues within $5, 000 of the revenue which
would be generated during that year with a uniform percentage
adjustment in rates shall be considered substantially equivalent .
For the purpose of projecting revenues and costs, the Tons of
Solid Waste collected in the previous year shall be used, unless
the change in rate structure itself is expected to reduce the
amount of Solid Waste generated, such as the introduction of a
mini-can rate .
Contractor may submit comments on proposed differential
rates and District' s economic analysis. Such comments may
address both the revenue projections and any impacts which
revised rates might have on Contractor' s costs of performance .
District will consider such comments and will, if requested, meet
with--.'Contractor to discuss the revenue, cost and operational
impacts of the proposed rates .
The District will not introduce a mini-can rate prior
to January 1999 . The parties will discuss the impact of such a
rate during 1998 .
9 .12 No District Guarantee of Collection. District
does not guarantee collectibility of rates authorized under this
Agreement . Contractor does not look to District for payment of
any sums under this Agreement and District has no obligation to
pay Contractor any public funds under this Agreement .
9 .13 Challenges to Rates . If Contractor believes the
rates have not been increased in accordance with this Agreement,
it may not terminate this Agreement or refuse to continue to
provide service . However, it shall have the right to challenge
the- adequacy of the rates as provided in this section. All
disputes as to the adequacy of rates shall be resolved through
mandatory binding arbitration conducted in accordance with the
California Arbitration Act, California Code of Civil Procedure
Sections 1280-1288 . 8, including the provisions of Section
1283 ..05 . In such arbitration, Contractor shall neither seek, nor
be entitled to recover, damages from the District on any theory,
including tort, breach of contract, or other.
10 . AFFILIATED COMPANY TRANSACTIONS. When equipment or .
facilities owned by another company in which any of Contractor' s
shareholder (s) have an interest are used by Contractor, the costs
paid by Contractor shall not exceed the fair market value of such
equipment and facilities . If personnel provide services to both
Contractor and any other company in which any of Contractor' s
shareholder (s) have an interest, the allocation of salary and
benefits shall reflect the proportional use of such employee by
382732.6 1 1 September 11, 1997
Contractor and the other company or companies . Rent paid by
Contractor for offices, storage and garage facilities shared with
another company in which any of Contractor' s shareholder (s) have
any interest shall not exceed fair market value of the portion of
such facilities used by Contractor. The allocations and costs
shown on Exhibit D are agreed to be reasonable .
11. OPERATION BY CONTRACTOR. Contractor shall furnish all
necessary labor and equipment (excluding containers for weekly
Solid Waste service but including three recycling buckets
provided for each residential unit) for services provided
pursuant to this Agreement in the Franchise Area and shall
maintain such equipment in a sanitary condition at all times .
The Contractor shall use trucks with covered, water-tight
truck bodies constructed of sufficient strength to withstand a
fire within the truck body and not endanger adjacent property.
Trucks, drop boxes, bins, or similar types of equipment owned and
operated by the Contractor shall be kept clean and in good
repair. Contractor shall have its name and telephone number on
the side of each truck and on each drop box, bin or similar type
equipment provided by Contractor, other than previously
distributed recycling buckets .
12 . TIME AND MANNER OF COLLECTION. Contractor shall
systematically collect Solid Waste and, to the extent required by
this Agreement, materials for diversion and recycling from its
.Customers . Place of pickup shall be backyard service for Solid
Waste and curbside service for recycling, green waste and
periodic clean-ups . Solid waste collection shall be weekly unless
otherwise directed by the District Board. Frequency of
recycling, green waste and general pick up service shall be as
set forth in Exhibit E . Upon commencement of service and upon
changes in collection day schedules, Contractor shall provide
each customer with notice of the scheduled collection day.
Contractor shall not collect Solid Waste from an inhabited
dwelling or dwelling unit between the hours of 6 : 00 p .m. and
6 : 00 a.m.
13 . CUSTOMER SATISFACTION, AB 939 AND EFFICIENCIES IN
OPERATION.
13 .1 From time to time, at its discretion, District may
examine Contractor' s operation in order to evaluate whether the
Contractor is operating in a satisfactory manner. Contractor
agrees to cooperate in any such examination and shall permit
District representatives to inspect, at Contractor' s principal
place of business, such information pertaining to Contractor' s
obligations hereunder as District may require, including, but not
limited to, such things as customer inquiry records, collection
routes and equipment records . Access to Contractor' s records
382732.6 12 September 11, 1997
shall be subject to Section 8 (Contractor' s Duty to Maintain
Records; District' s Right to Examine Records) .
13 .2 Notwithstanding any contrary provision in this
Agreement, the District shall have the right to direct Contractor
to compile information, develop plans for and/or conduct programs
on alternative methods of Solid Waste and recyclable material
collection and management, or to take any other action for the
purpose of meeting the source reduction, recycling and composting
requirements of the Act, and any other applicable federal, state
or local laws regarding Solid Waste collection, recycling and
disposal, including, without limitation, the County' s Materials
Diversion Ordinance .
Contractor agrees to indemnify and hold the District
and County harmless from and against any and all liability to the
State of California for the District' s or County' s noncompliance
with -'the requirements of the Act due in whole or material part to
the material failure of Contractor to properly carry out the
reasonable directives of the District to Contractor regarding
collection and disposition of Solid Waste and recyclable material
and as required by the Act and directed by District; provided,
however, that Contractor shall not be obligated to carry out any
such directive (and shall not indemnify nor hold the District or
the County harmless from any resulting liability) if such
directives expand the scope of services required of Contractor
and the District fails to allow Contractor its reasonable costs
associated with carrying out such directives, plus 120 of those
costs .
13 .3 District may require Contractor to develop plans
for and conduct programs on alternative methods of Solid Waste
collection, including pilot programs of limited scope, or may
require additional programs , for the purpose of improving
service, increasing customer satisfaction, and/or meeting
diversion requirements . The notice shall allow Contractor a
reasonable period of time to implement the specified service .
Should District require commencement of such a program as
outlined in this paragraph, Contractor agrees not only to do
those things specified herein, but also to act at the direction
of the District on other matters that may be necessary for the
success and efficiency of the project, such as public information
and notification. In the event that District elects to direct
Contractor to discontinue any service theretofore performed by
Contractor at the direction of District hereunder, District shall
allow Contractor to recover its reasonable capital equipment
costs and other reasonable costs arising upon termination of the
service. Contractor shall take all reasonable steps to minimize
such costs, such as, for example, selling surplus equipment .
382732.6 13 September 11, 1997
14 . CUSTOMER SERVICE STANDARDS. Contractor shall provide
prompt, efficient, continuous and professional service to its
Customers . Contractor shall have a phone system with sufficient
capacity to promptly respond to telephone calls for at least 8
hours a day during weekdays, excluding those holidays observed by
Contractor, plus a 24-hour answering service . All vehicles shall
be radio equipped. Telephone numbers for customer service shall
be located in the local telephone directory. All telephone lines
for customer service shall be toll free to Customers .
Not less than once every three years and not less than six
months prior to an application for contract renewal, assignment
or extension of term, Contractor shall conduct a representative
survey or surveys of Customers within the Franchise Area to
determine satisfaction with service, including, without
limitation, response to customer complaints . The survey
methodology, format and content shall be subject to the prior
review and approval of the District General Manager. A copy of
the survey results shall be sent to the District within sixty
(60) days of completion of the survey. The first such survey
shall be conducted during calendar year 1998 . If the District
requires Contractor to do more surveys than set forth above,
Contractor' s survey costs shall be a pass-through in the next
year' s rates . Nothing in this paragraph shall limit the right of
the District to conduct and mail its own surveys on its own and
at its cost . The Contractor shall cooperate with the District in
preparing such District surveys .
Upon initiation of service, and at least once a year,
Contractor shall send or deliver to Customers information
concerning the conditions of service, including, but not limited
to, rates, fees, charges, service options, payment options,
discounts (if any) , days of collections, the amount and manner of
refuse to be collected, service level and inquiry/complaint
procedures, including the name, address and local telephone
number of Contractor and the name, address and telephone number
of the District General Manager. The form and content shall be
subject to the review and approval of the District General
Manager.
15. CUSTOMER COMPLAINTS. Contractor shall develop and
implement policy and procedure for responding to and recording
Customer complaints, including dispute resolution. The policy
and procedure shall be subject to the approval of the District
General Manager.
16. BILLING. The form and content of customer bills shall
be subject to the review and approval of the District General
Manager.
382732.6 14 September 11, 1997
Bills for services will be sent three times per .year
(September, January, May) for every four months thereafter,
unless otherwise determined by the District . Bills shall become
due and payable three and one-half (3-1/2) months after mailing
(e .g. , bills mailed in September will be due and payable on
December 15) . The District may establish billing period options
for Customers upon a finding that such options are cost-effective
and meet a community need.
Full payment for drop boxes may be required by Contractor
prior to delivery of the drop box to the Customer.
The District shall have the right to direct the Contractor
to change or alter its billing system in which event the marginal
additional expenses incurred by the Contractor in the
implementation of the change, with regard to the accounting,
printing, mailing, loss of use of funds, or otherwise, shall be
recoverable as a pass-through by the Contractor through the rates
allowed by the District provided such expenses are reasonable .
Contractor shall inform Customers of all rate changes at least 30
days prior to their effective date . A copy or facsimile of such
notice shall be provided to District at the time of Customer
notification.
17 . RECYCLING. District grants to Contractor the right and
obligation to operate recycling programs, including curbside pick
up of recyclable materials, as determined and designated by
District, subject to District' s right to terminate this grant to
Contractor but only pursuant to the provisions of this section.
Contractor shall request that recyclable materials be placed at
the curb by 5 : 00 a.m. of the day for which service has been
designated for that particular dwelling. Contractor is not
responsible to pick up recyclables not placed on the curb in a
timely manner.
Contractor has already instituted and implemented a
recycling program including regular curbside pickup in
five-gallon buckets at all single family residences of at least
aluminum, tin, newsprint, glass bottles, non-colored HDPE and
PET.- As more fully set forth in Exhibit E, the current program
will be supplemented commencing January 1, 1998, so that all
items listed in County Ordinance Section 418-10 . 604, as it may be
amended from time to time, are collected. The District has the
right at any time to modify said program or require new programs
as provided at section 13 hereinabove .
Contractor shall not dispose of recyclable materials,
collected through the curbside program, in a landfill . However,
if market conditions are such that there are no purchasers and no
users willing to accept such materials for reuse without payment
by Contractor, Contractor may submit a written request to the
382732.6 15 September 11, 1997
District General Manager for authority not to collect such
materials while such market conditions persist . If the District
General Manager can make the findings specified in Article 418-
10 . 8 in the County Ordinance Code, and unless County otherwise
directs, the General Manager shall exempt such material (s) from
recycling on conditions he/she specifies . Contractor shall
maintain and provide to the District records relating to its
recycling programs as directed by the District General Manager.
Contractor shall provide to each household promotional
information pertaining to the curbside recycling program.
Contractor shall allow the District General Manager to review
such material prior to delivery and shall make any changes he or
she reasonably requests . Contractor shall distribute written
promotional material two times per year as necessary to maintain
participation in the program and more frequently, if required by
the District General Manager.
Unless otherwise required by the District, Contractor shall
provide the District with periodic reports on the recycling
program which shall include :
a. Participation level (i .e . , the number of
residences participating in the recycling program) based on one
sample week during each calendar quarter.
b. Quantity of materials collected, in tons, by type
of material (e .g. , newspaper, glass, plastic and metal) , by
calendar quarter. The current County form for this data is .
attached as Exhibit F.
C . Total revenues received by Contractor for
materials received, by calendar quarter.
Unless otherwise directed by the District reports shall be,
provided quarterly and annually. The quarterly reports shall be
due by the 15th of the month following the close of the quarter
and shall cover the preceding three months . For example, the
first quarterly report shall be due January 15th of 1998 and
shall cover October, November and December, 1997 . The first
annual report shall be due by March 15th of 1998, and shall cover
the preceding calendar year.
Contractor' s provision of recycling service shall be
reviewed in approximately one year and thereafter within three
(3) years of the effective date of this Agreement and, at
District' s discretion, every five years thereafter. If the
District determines that continuation of such service by
Contractor is not consistent with the ratepayers' best interest,
but not as a result of Contractor' s failure to satisfactorily
provide recycling services, Contractor shall be allowed to recoup
382732.6 16 September 11, 1997
its unamortized capital expenditures as follows . Contractor
shall make a good faith effort to sell all disposable assets
acquired in furtherance of the program for their fair market
value. If income derived from the sale is insufficient to cover
the unamortized costs of such assets, Contractor may transfer
those losses together with net operations profits or losses for
the current fiscal year to its general account and submit a rate
application to cover such losses .
If the District determines that Contractor has failed to
satisfactorily provide and perform recycling services, District
may terminate this grant to Contractor of the right and
obligation to provide and operate recycling programs, at no cost
or further obligation on the part of the District or the
ratepayers .
18. FREE SERVICE FOR COUNTY LIBRARY AND DISTRICT.
Contractor shall provide Solid Waste collection and disposal
services at (1) the Kensington library at no charge to .the County
and (2) the District' s headquarters (two cans per week) and the
community center (one 1-1/2 yard container weekly) at no charge
to the District .
19 . FRANCHISE AREA-WIDE COLLECTION. Unless otherwise
determined by the District Board, in addition to its regular
collections, commencing in January, 1998 , Contractor shall
provide twelve (12) scheduled green waste curbside pick ups and
one annual general pick up (no green waste) . Any such
collections shall be made each year throughout the term of this
Agreement in accordance with practices and procedures already
established by Contractor. Green waste shall be delivered to a
composting or chipping facility by the Contractor, subject to
review and direction by the District General Manager.
Customers shall be timely notified on the dates of the
scheduled green waste pick ups . The recycling and other services
provided by Contractor are set forth in Exhibit E. The scope of
solid waste collection, green waste and recycling services
provided may be changed from Exhibit E at the direction or with
the approval of the District Board and without amending this
Agreement .
20 . PARTICIPATION IN COMMUNITY CLEAN-UP PROJECTS.
Contractor shall provide, upon direction of the District General
Manager, Solid Waste drop boxes or equivalent containers for
community or other clean-up projects within the Franchise Area.
The Contractor' s obligation to provide such boxes without charge
shall be limited to the equivalent of up to three (3) 20-cubic
yards drop boxes per year.
382732.6 17 September 11, 1997
21 . DISPOSAL AND WASTE STREAM CONTROL. Contractor shall be
solely responsible for the disposal of the Solid Waste collected
pursuant to this Agreement . Contractor currently disposes of
Solid Waste collected from within the Franchise Area at the West
Contra Costa Landfill in Richmond. Contractor will not
voluntarily change the disposal site without providing sixty (60)
days advance notice to District , together with an explanation of
the reasons for the change . If the disposal site becomes
unavailable for any other reason, Contractor will give District
notice as soon as possible after learning of its pending
unavailability, together with Contractor' s recommendation for the
best alternate site . If the change will result in an increase in
collection rates, Contractor shall not effect the change without
approval of the District Board. The parties also recognize that
under the MOU, County has reserved authority to direct Solid
Waste to be delivered to specific disposal sites under certain
circumstances . Contractor shall comply with directions from
District implementing such a directive from County. Contractor
shall not enter into contracts for disposal without prior
approval of the District Board. A copy of such contracts shall
be provided to District' s General Manager on request . Such
contracts shall allow for termination by Contractor if directed
by District .
22 . MISCELLANEOUS OBLIGATIONS OF CONTRACTOR. Contractor
shall assist District and County in their enforcement of the
County' s mandatory subscription ordinance by providing District
and County with the addresses of properties not subscribing to
collection service within the Franchise Area and by providing
collection service to such properties upon written direction by
County in conjunction with arrangements satisfactory to
Contractor for County to compensate Contractor for the costs of
such continued service .
23 . ADMINISTRATIVE SERVICES AND FRANCHISE FEES . Contractor
shall pay to the County for the services provided by the County
Community Development Department (administering and performing
its recycling and diversion management, monitoring, review and
reporting obligations under the Countywide Solid Waste Management
Plan and the Act) a percentage of its gross annual revenues
generated from the performance of such waste collection services
under this Agreement . Unless otherwise subsequently determined
by the County, the total amount for such administration services
shall be three percent of the commercial and residential bills
for each calendar year. Said sums shall be payable from the
Contractor to the County three times annually (January, May and
September for three percent of the revenues received in
respective four preceding months from commercial and residential
billings) . For administering this Agreement, the District shall
receive a franchise fee of two percent of the commercial and
382732.6 18 September 11, 1997
residential bills for each calendar year, payable at the same
time as payment is made to County.
For 1997, franchise fees shall be payable in January 1998 on
revenue from the preceding months in which this Agreement was
effective (September through December) . Any increase in the
franchise fees shall also be considered a "pass-through" as
described in Section 9 on Rates . Any decrease in such fees shall
be reflected .in a subsequent rate adjustment .
24 . HAZARDOUS WASTE. The parties hereto recognize that
federal, state and local agencies with responsibility for
defining hazardous waste and for regulating the collection,
handling or disposing of such substances are continually
providing new definitions, tests and regulations concerning these
substances . Under this Agreement, it is Contractor' s
responsibility to keep current with the regulations on such
substances and to identify such substances and to comply with all
fede-ral, state and local regulations concerning such substances .
Contractor agrees to provide to the District General
Manager, upon request, Contractor' s program for identifying
hazardous waste and complying with all federal, state and local
statutes and regulations dealing with hazardous waste .
Contractor shall make every reasonable effort to avoid the
'collection or disposal of hazardous waste in any manner
inconsistent with applicable law.
25. PRELIMINARY DISPUTE RESOLUTION. If Contractor has a
question as to the interpretation of this Agreement, it shall
submit a written request to the District General Manager for a
determination of the issue . The Contractor shall provide and
submit such information as the District General Manager may
reasonably request or require to make the requested
determination. The written determination of the District General
Manager on such interpretation may be appealed to the District
Board by the Contractor.
26. FAITHFUL PERFORMANCE BOND. Contractor shall submit- to
District simultaneously with the execution of this Agreement a
corporate surety bond in the amount of $10, 000 , provided however,
that the Board may increase this amount not more often than every
three years- to reflect changes in the Consumer Price Index. The
bond shall be executed by a surety company licensed to do
business in the State of California and acceptable to District
General Manager. The bond shall be approved by the District and
shall be payable to District or County. The condition of the
bond shall be that Contractor will faithfully perform the duties
imposed by ordinance, this Agreement and the rules and
regulations of District and County. Any action by District or
382732.6 19 September 11, 1997
County to proceed against the Bond shall not limit or affect the
right of District or County to use other remedies available to
District or County under the Agreement or in courts of law or
equity, notwithstanding the foregoing. In lieu of the corporate
surety bond, Contractor may provide to District a letter of
credit, cash bond or other security acceptable and in a form
satisfactory to the District General Manager.
27 . INSURANCE. Contractor shall procure and maintain in
full force and effect at all times during the entire term of this
Agreement the following coverage :
27 .1 Public liability and property damage insurance
including completed operations, products, contractual, broad form
property damage, personal injury and owned and non-owned
automobile liability with such .coverages and limits as may be
reasonably requested by District from time to time, but in no
event with limits less than the sum of $3 million combined single
limit for each occurrence arising from the services as stated in
the Agreement herein. District and County shall be named as an
additional insureds under such liability insurance policy or
policies .
27 .2 Contractor shall carry workers' compensation
insurance for all its employees .
Evidence of liability and workers' compensation insurance
shall be provided by Contractor through filing with District and
County a certificate of insurance indicating that District and
County are endorsed as an additional named insured under the
liability policy. All policies shall include a provision that
written notice of cancellation or any material change in coverage
shall be delivered to District and County thirty (30) days in
advance of the effective date thereof . No cancellation,
alteration or change of beneficiary shall be made without written
notice to District and County.
District reserves the right to examine all policies from
time to time to ensure appropriate conformity to prevailing
practices and standards of the insurance industry.
Such insurance shall be obtained from a company or companies
licensed to do business in the State of California and acceptable
to District . Failure of Contractor to maintain insurance in the
manner and amount stated herein will constitute a material breach
of this Agreement .
382732.6 20 September 11, 1997
28 . INDEMNIFICATION.
28 .1 Complete Indemnification of District and County.
All work and performance covered by this Agreement shall be at
the risk of Contractor.
Contractor agrees to save, indemnify and keep harmless
the District and County, their 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, including environmental damage,
arising directly or indirectly out of the obligations herein
undertaken or out of the operations conducted by Contractor, save
and except claims or litigation arising through the sole
negligence or willful misconduct of District or County, and will
make,'good to and reimburse District and County for any
expenditures, including reasonable attorney' s fees, that District
or County may make by reason of such matters and, if requested by
District or County shall defend any such suit at the sole cost
and expense of Contractor.
The above promise by Contractor to indemnify, hold
harmless and defend the District and County expressly includes,
but is not limited to, all claims, damages (including but not
limited to special and consequential damages) , natural resources
damages, punitive damages, injuries, costs, response, remediation
and removal costs, losses, demands, debts, liens, liabilities,
causes of action, suits, legal administrative proceedings,
interest, fines, charges, penalties and expenses (including but
not limited to attorney' s and expert witness fees and costs
incurred in connection with defending against any of the
foregoing or in enforcing this indemnity) of any kind whatsoever
paid, incurred or suffered by, or asserted against, District or
County, their officers, employees or agents arising from or
attributed to any repair, cleanup or detoxification, or
preparation and implementation of any removal, remedial,
response, closure or other plan (regardless of whether undertaken
due to governmental action) concerning any hazardous substances
or hazardous waste at any place where municipal solid waste is or
has been transported, transferred, processed, stored, disposed of
or otherwise come to be located by Contractor under Agreement, or.
the activities of Contractor pursuant to this Agreement resulting
in a release of hazardous substances or waste into the
environment . The foregoing is intended to operate in part as an
agreement, pursuant to section 107 (e) of the Comprehensive
Environmental Response, Compensation and Liability Act, "CERCLA, "
42 U.S .C. section 9607 (e) , and California Health and Safety Code
section 26364 to defend, protect, hold harmless and indemnify
District and County. The intent of the section is to provide
District with the highest level of protection possible under
existing and future laws .
382732.6 21 September 11, 1997
28 .2 Defense of Agreement. Should any party
successfully challenge the validity of all or any portion of this
Agreement, the procedure by which this Agreement was entered
into, or the validity of any County ordinance or District
enabling petition or statute which authorizes the District to
enter into this Agreement, then in such case the Contractor shall
have no cause of action for damages or any other relief against
District or County as a result of such successful challenge .
Contractor has the right to defend this Agreement and District or
County.
29 . ATTORNEY'S FEES. In the event of litigation between
the District and Contractor arising hereunder, the prevailing
party shall be entitled to litigation expenses, including
reasonable attorney' s fees . If Contractor is required to pay
District' s litigation expenses, neither such payments nor its own
litigation expenses may be passed through to Customers in rates .
30 . ASSIGNABILITY. Contractor shall not sell, assign,
subcontract or transfer this Agreement or any part hereof, or any
obligation hereunder, without the written consent of District
which consent shall not be unreasonably withheld or delayed on or
after September 1, 2000 . Prior to September 1, 2000, District
may refuse consent to any such sale, assignment, subcontract or
transfer in its sole discretion.
If Contractor wishes to assign this Agreement, delegate its
obligations, or if shareholder (s) of Contractor wish to sell a
controlling interest in Contractor or take other action which
constitutes an assignment, as defined below, it, he/she or they
shall give notice to and request approval of District . District
shall be entitled to consider the capability of the proposed
assignee to satisfactorily perform the services required by this
Agreement, including its experience in Solid Waste handling, its
financial condition, evidence of its performance in other
communities, its history of compliance with environmental and
other regulatory laws, and other relevant information.
Contractor shall be responsible for furnishing such information
reasonably requested by District . District shall consider any
proposed assignment promptly, shall diligently investigate the
capabilities of the proposed assignee and shall not unreasonably
withhold or delay its consent .
The term "assignment" shall include any dissolution, merger,
consolidation or other reorganization of Contractor, which
results in change of control of Contractor, or the sale or other
transfer, by probate proceeding or otherwise, of a controlling
percentage of Contractor' s capital stock to a person not a
shareholder on the date of the execution of this Agreement, i .e . ,
Lewis Figone . The term "assignment" does not include internal
business reorganizations or formations of new companies by
382732.6 2 2 September 11, 1997
Contractor, formation of trusts by Contractor or transfers of any
interest of Contractor as a result of death, disability or estate
planning by one or more of the principals of Contractor, so long
as essential management decisions are retained by Lewis Figone,
his spouse, his children, and/or their spouses, or others who
have previously worked for Contractor as employees to provide
services under this Agreement . By his signature below Lewis
Figone agrees to the provisions of this Section 30 for himself as
well as for Contractor.
31. INVOLUNTARY ASSIGNMENT. No interest of Contractor in
this Agreement shall be assignable by operation of law. Each or
any of the following acts shall be considered an involuntary
assignment providing District with the right to elect to
terminate the Agreement forthwith, without suit or other
Proceedings :
(a) If Contractor is or becomes insolvent, or makes an
assignment for the benefit of creditors;
(b) If writ of attachment or execution is levied on
this Agreement or other property of Contractor such that it would
affect Contractor' s ability to perform its duties and obligations
under this Agreement .
(c) If in any proceeding to which Contractor is a
party, a receiver is appointed with authority to take possession
of Contractor' s property such that it would affect Contractor' s
ability to perform its duties and obligations under this
Agreement .
(d) Except as otherwise provided in section 30
(Assignability) , in the event of a probate proceeding where the
rights of Contractor under the Agreement would pass to another
individual or other individuals .
—32 . NOTICE. Any notice required or permitted under this
Agreement shall be in writing and shall be deemed to have been
given if delivered personally or ten (10) days after posted by
certified mail, return receipt requested, addressed as
appropriate either to Contractor:
Bay View Refuse and Recycling Services, Inc .
Attn: Lewis Figone, President
P.O. Box 277
El Cerrito, CA 94530
Or to District :
Attention: General Manager
Kensington Police Protection
382732.6 23 September 11, 1997
and Community Services District
217 Arlington Avenue
Kensington, CA 94707-1401
Or to County:
Attention: Director of Community Development
651 Pine Street , 4th Floor, North Wing
Martinez, . CA 94553
33 . ANNEXATION AND CHANGE OF FRANCHISE AREA BOUNDARIES.
Contractor realizes that the public agency boundaries may be
altered by virtue of actions taken by the Contra Costa County
Local Agency Formation Commission (LAFCO) . Contractor agrees that
should a municipal corporation lawfully annex territory which is
within the Franchise Area, District may make such alterations to
the Franchise Area as the annexation necessitates . Should the
Franchise Area boundaries be amended, Contractor agrees that it
will abide by any change resulting from the Franchise Area
change . Contractor agrees that the District Board may make such
alterations to the Franchise Area as are necessitated by such
Local Agency Formation Commission actions and that it shall have
no right or claim to damages or other relief against the District
or County for such alterations to the Franchise Area. However,
nothing herein is intended to abrogate Contractor' s rights under
Public Resources Code Section 49520 or any successor or similar
statute.
34. BREACH AND TERMINATION. The District General Manager
shall have authority, subject to review by the District Board
upon appeal, to determine whether a breach of any provision of
this Agreement by Contractor has occurred. Any waiver of a
breach shall not be deemed to be a waiver of any subsequent
breach or be construed as approval of a course of conduct . In the
event that the District General Manager determines that a breach
has occurred, District shall give Contractor written notice of
the breach setting forth the breach or default . Contractor shall
have a reasonable period to cure the noticed breach, said period
not to exceed 60 days . In the event the breach or default is
cured to the satisfaction of the District General Manager within
the period of time allotted, the breach shall not be deemed a
material breach. In the event that the District General Manager
determines that Contractor has failed to satisfactorily cure the
breach or default within the period of time allotted, the
District. General Manager may determine such breach or default to
be material .
Multiple or repeated breaches, or a pattern of breaches and
subsequent attempts to cure said breaches by Contractor shall
provide an adequate basis for the District General Manager, in
his discretion, to declare any subsequent breach to be material,
382732.6 2 4 September 11, 1997
notwithstanding whether that breach is ultimately cured by
Contractor.
If such a determination of material breach is made, the
District General Manager' s determination shall be automatically
appealed to the District Board for final action.
A material breach shall be cause for termination of this
Agreement by the District Board.
In the event of a termination pursuant to this section,
District shall have the right to temporarily assume the
obligations of Contractor and shall have the right to forthwith
take possession of all trucks and other equipment of Contractor
and exercise Contractor' s right to enter and use any disposal
facilities for the purpose of performing the services agreed to
be performed by Contractor herein until such time as District or
County can make other arrangements for the performance of said
services . However, such temporary assumption of Contractor' s
obligations under the Agreement shall not be continued by
District for a period exceeding twelve (12) months from the date
such operations are undertaken by District or County.
During any period in which District has temporarily assumed
the obligations of Contractor under this Agreement, District
shall be entitled to the gross revenue attributable to operations
during such period and shall pay therefrom only those costs and
expenses applicable or allocable to said period, including the
reasonable rental value of the trucks and equipment to be paid to
Contractor. District shall be entitled to the excess, if any, of
revenue over applicable or allowable costs and expenses during
such period. The loss, if any, during such period shall be a
charge against Contractor, and shall be paid to District by
Contractor on demand. Final adjustment and allocation of gross
revenue, costs, and expenses to the period during which District
temporarily assumed the obligations of Contractor shall be
determined by an audit by a Certified Public Accountant and
prepared in report form with his unqualified opinion attached
thereto.
Nothing in this Agreement shall prevent District during any
period in which District temporarily assumes the obligations of
Contractor under this Agreement, from employing persons who were
employed by the Contractor for the collection of Solid Waste
under this Agreement .
Upon the occurrence of a material breach and the declaration
of such and termination of this Agreement by the District Board,
this Agreement and the franchise granted thereunder shall be of
no further force and effect, . excepting these provisions
concerning District' s right to temporarily assume Contractor' s
382732.6 25 September 11, 1997
obligations and to use Contractor' s facilities, and section 28
(Indemnification) . District then shall be free to enter into
whatever other arrangements are deemed justified and necessary
for the collection, removal and disposal of Solid Waste within
the Franchise Area.
35 . EMERGENCY. Notwithstanding Contractor' s exclusive
franchise rights set forth in section 5 (Exclusive Privilege and
Duty) , in the event of an emergency due to natural disaster or
labor strike which interrupts the collection of Solid Waste by
Contractor, the District Board shall have the right to declare a
temporary suspension of this Agreement for the reasonable
duration of the emergency and until such time as it determines
that Contractor is able to reassume all obligations under this
Agreement . Should Contractor fail to demonstrate to the
satisfaction of the District Board that required services can be
resumed by Contractor prior to the expiration of a six (6) month
period, this Agreement may be terminated at the direction of the
District Board.
36 . COMPLIANCE WITH FEDERAL, STATE AND LOCAL LAWS.
Contractor shall be responsible for and shall comply with all
applicable laws, rules, and regulations that are now in effect or
may be promulgated or amended from time to time by the Government
of the United States, the State of California, the County and any
other agency, other than the District, now authorized or which
may be authorized in the future to regulate the services to be
performed herein regarding the collection, removal and disposal
of Solid Waste and recycling or diversion of material . This
includes County Ordinance Code Chapter 418-6 (on mandatory
subscription to Solid Waste collection service) , and the County' s
Materials Diversion Ordinance.
37 . AMENDMENT OR MODIFICATION. This Agreement may be
amended or modified upon written agreement of the District and
Contractor. The parties agree to meet and confer in good faith
if amendments or modifications are proposed.
. 38 . STATUTORY POWERS. Nothing in this Agreement is
intended to or may limit District authority pursuant to its
enabling statute .
39 . CONTEST OF AGREEMENT'S TERMS. In the event either
party to this Agreement attempts to challenge the validity of any
portion of this Agreement, such action in attempting to challenge
the Agreement shall constitute a material breach of this
Agreement and the non-breaching party shall have the right to
elect to terminate this Agreement forthwith without suit or other
proceeding. Contractor agrees that it shall not request the
County to assume control of Solid Waste handling in the Franchise
Area, to abrogate this Agreement or to otherwise interfere with
382732.6 2 6 September 11, 1997
District' s authority under this Agreement .and that a breach of
this promise shall constitute a material breach of this
Agreement .
This section shall not be construed to prevent either party
from seeking redress from the courts for the purpose of
interpreting or enforcing the provisions contained in this
Agreement .
40 . SEVERABILITY. In the event legal action is brought by
a person or entity, other than the two parties to this Agreement,
to challenge, invalidate, contest or set aside any of the
provisions of this Agreement, each and every term and condition,
and each and every section and paragraph is severable from the
remaining terms, conditions, sections, and paragraphs . The
invalidation of any term, condition, section or paragraph as a
result of a legal action, brought by a person or entity not a
party to this Agreement shall not affect the validity or
enforceability of the remaining provisions . However, if material
provisions hereof are affected, the parties agree to negotiate in
good faith to reach agreement on revisions which preserve the
substance hereof to the greatest extent allowed by law.
41. WAIVER. The waiver by either party of any breach or
violation of any provisions of this Agreement shall not be deemed
to be a waiver of any breach or violation of any other provision
nor of any subsequent breach or violation of the same or any
other provision. The acceptance of any monies which become due
hereunder shall not be deemed to be a waiver of any pre-existing
or concurrent breach or violation by the other party of any
provision of this Agreement .
42 . SURVIVAL OF OBLIGATIONS. Obligations of this Agreement
which embody continuing obligations, including but not limited to
section 28 (Indemnification) shall survive the termination or
expiration of this Agreement .
43 . THIRD PARTY BENEFICIARY. County shall be considered a
third party beneficiary of this Agreement as it may be amended by
the parties from time to time . The County' s rights are
enforceable only through the Memorandum of Understanding between
County and District .
44 . ENTIRE AGREEMENT; SUPERSESSION OF PRIOR AGREEMENT.
This Agreement, including Exhibits A through F which are attached
hereto and incorporated herein, represents the full and entire
agreement between the parties hereto with respect to the matters
covered herein. This Agreement shall supersede the Contract with
Relation to Collection and Disposal of Garbage between District
and Bay View Refuse Services, Inc . , dated July 7, 1981, as
amended.
382732.6 27 September 11, 1997
45 . EFFECTIVE DATE; CONDITIONS TO EFFECTIVENESS. This
Agreement will become operative on the effective date in Section
1, provided that each of the following has occurred:
(a) County Board has terminated the Franchise
Agreement dated September 11, 1996, with Bay View Refuse and
Recycling Services, Inc .
(b) District and County have executed the Memorandum
of Understanding dated as of September 1, 1997 .
(c) District, County and Bay View Refuse and Recycling
Services, Inc . , have executed and filed a stipulation for
dismissal of the lawsuit initiated by District against County and
Bay View Refuse and Recycling Services, Inc. , now pending in
Contra Costa County Superior Court, Civil Action No. C96-04574 .
KENSINGTON POLICE PROTECTION AND
COMMUNITY SERVICES DISTRICT
By:'--,-' PRESIDENT, BOARD OF DIRECTORS Date
ATTEST, James M. Bray,
Genera nager and Secretary of
he Board
BAY VIEW REFUSE AND RECYCLING
SERVICES, INC. , a California
corporation
Date
By: LEWIS FfSGONE, PRESIDENT
Taxpayer I .D. No.
382732.6 28 September 11, 1997
1
d
.'toad Naps
y
OR
WE sl Dq
�•� -i - -'` o �o `pct f roS
tin z v C� mac. ��• o�
��h. `' •v,�, •t �r"v J�AV pig
91
4p t . / -- VIIS-r, a
r
• 7. .o RSG �SSq R
.► 9 -P t 8 y :10 . p�-
t^ ```•,''_ .` '``1 t
NT,A
�mss"
'SRRAV •�� ��. �' �G
b
Sril
tn
C7 ca z
cn
y
z
Z mac^ NORWO00
PL
GTON CT.
_ AV ,� o
P. m rLLA�(ETTF qV
-- -_- _- Q OR _ m y '' ._ _ AVE S
_ .SUNSET S��y - Ay ---
cl
E LO IT
20
•. — _ 10
�74 Lc°Q ' y0 � - Z .Q
G P�Eol pR0C13 �o �f\ 4
m
LEXINGTON
AND
RD
L
v MARC,. ' _,,r \� ?�j,s.4 \\. \ o
% Highgate Rd.
Highland Blvd.
Jessen Dr.
fly (A L.4 Kenilworth Ct.
L4 W Kenilworth Dr.
t7 G Kensington Rd.
0-3 cn Kenyon Av. P
Kerr Av.
ROAD W ;4 Kingston Rd. :
O :: Lake Dr.
v Lawson Rd.
G J [j1 Ln Los Altos Drr
H
Lenox Rd.
y C 4kD ; Lexington Rd.
bKcn�hgrooti
O 9� G
'COQ`• ... ,S,
10
NORWOOD
ti
GTON
o - Q K 7� G
?5 Q` .�. �FS7 M z
AV a o
WILLAMETTE .
AV r
.SUNSET — E,c, <<, m �o
j CP
10
ct`
j 4p
E X01
3
WE AµE1
15- O ! n
of AY p, � .c v- -.► o JO r-
0
_ ' �..► \,�'� ."'"""'ter` ��► ''� �� '.
va
ip
Jib
�l s 4p
>
wCXyo y,
y� Cq
VR
vSON 'c- �4y �� �f •
a0 �, N
vc �,p`R ��caoV E N j
SEE
\
PL
� , P
NGT y<
. 4
�► �FST� Z
1Q, AVEn
ul m
OR cn
y A
d �� F.� ,
.SUNSET - E,S�-
C) 1 � ' 9
rn 1 L \
0 1111
K�N J51 01K
._
jo
�St. Jcromc'Si/' Q (,Iw o '�t 'Qc 'QF ;-4SCh/�- � p�0 m Q 9�. J- \ �
INC
. o
• J
$ -r�oo'1 0�i m LEXINGTON � 'y
- � m
� R0
V LEY N
r -4 � ARCS
A.
FREE �
N► ED4
• aK E CYAU E `� ,
1
C
Ln
4
Ln
ca
r
O
qr
FiOAD
)HL 41VI)fDR." 0
r Q
p K�ns,�gtops,; KE H/
• "�` SRR t►vE. � �'� O,�ly ��C v�
cc
y
4ORW00D
-;K r ' , a t•���t r ^
,'•nox
L �intton ,
�n �Q 0 KE Ni
bK�ns 9 ��. VD
KERR pV C c ni
t,-4 y
�. 3� O
ti
�J' '0001,
�RP1.. �4yp .off
9
% ar �r
IcDR
A T5
AV 10 IV-
JNSEI
\ 'O
�
99
Q F : b. '�c
mat
.►j,J�tY'Qh!' '1:y t.t•J� �f�fy'Y�. �'.�:.� 1 'i�
"/___ !'t` + .0°h 1. x�, a1.r et" � t l•
*c'trt -f17i'ori `
till
-10
,4�� "at,,,` `C. '�.:� �^�',`MY��!"�,�,♦��l.�aY� R.M�t-4k
�Cliw' •f; ��1.Y��(( �� ..+�'
•11t+t,.t ✓._tq.!ti - i! \\ .\.\.flv.• •` _ Ot� �"177../// �., sv{.N•X l}'i•..�� ♦ µtt �l0
i -,(o•oil .x i.. .s:. C•v"'x• :4.»_ * t �.., Lf+ . Y� ,,(,.f -\.' ��'�,,��• � �StRt
.,u+ a` �r.�b .. �,t.t� It �• ..M Q�dt...y..✓..t ` ��+ t -`
g _. .�..:�""�` ; .' A�.sa- 't'�s�'i7E::�Z�__',,���aa�r•'i,-`Gk'tt�•y��tt,C�S';fiwr t .:i-.: r,.,...'•�', 1
' � ti (F( !e 'i•s,`"ti. �:y'i'C� �yY'I Y r �..�� .= \
' X "�� `"• �;X,r v'.;:.\.;j!S•d .�s♦i': •r7�t'^'r .., 't�'•''f.+4''" � \
�..•;r,
we , , .. t• a.✓t. .. ,.;;a.:p, s, j �., t-'•t(.j. ,.y};,•••;
.r !. 4► �c•'•t .y_y��(j• "'/ V.. �'y+�• .;;::J:`/Y..�:.. 'C .�.. ♦.n:I +.'...�;Y;n,::� �:.�.{` ..� ��'�.+.
hi
1}.•.•.✓'r.••• s^+1 (�' " r Yui:. 4 , ♦ s.. .. � ,� 'r .• ��..r!" (( ,` `
..= wl •s '�+�(rrj�l�f'j S` ♦` + •. }.l '"1ti rS�CS �+t � �_.'^...r".; TIL N ('t,
.t.• •`}` •`.
<.• •' , jV • 4Y O't♦ ♦ ' = Q 1 =l 4r�Ct Yx.: r•.,,.'„ , NATO • �, '1
i, .♦� - 4 ,,.,,
ria. SryA
ME
' , • ♦ vim.�+-' Q ►`3 i o w ••4 uti "� .,.��'••�j;,'t:a`•`.,�'j!" •• yd' ` `t'' .
.- .b. 'x "�• +♦ s �' \!.r tat
e9 ^• � ' "r��d.* s• .f{ ."�<�r' SY .�.5::;.•.1F:f.:.-' . ;•� t.r � Y .
Of
9 �N' .°.�• �� !•.I t t � ..i rr t 7:<. ..J�.a+,:7.7!it�':`: .,� Ok ..
t.,tj, o!)!--" ♦ _ q. Ppt _'.+; �sc s- s �' REGION
- -}: 1� t d '\.-' ♦P x'i a •' {\ ,S c` c : ,-- _ PAR
"w+•Fl•,e•,�;•�.�f.• �r P ! �\-r w•.J t, J "•'..-•o� � Q` �,�'i� y r ///r•••r �, �-'
�yj d ,O • t '� •�•.`(t `l.f�twl .�\ (K _-�,.. ' l' •yam .
•�7., M \ ,4 ,�`�+. � t�vt VS\,;,,,rs'�4 �Y 'yASt• •. � °t-
-a' 7 � '�t•`r •, t�4(' •yT� ♦ \ '�a� W. P Q t�` ac •1 �`;. +••
1p
'1?t7 •r �o '� t ♦S !t � F
,�` . r\r ,' t•\�M rw„ T� ,�� t, f.►, f4Jt t P � f f ` � �r' ~
J t..}y�• '.• O \ � � ,c cJs. • t. ,y ♦C � to 4+l ` t;-.
(wc•t .; o Yt
(C•T,�r we \ ,/• ►PF, —s c G .. a,.ca�4 t ;,�P' d��,fU�, 'F� •✓ y� � r�
-,l\'ol, �' \ is N �' r w•W J' W'.' �r0 f�•i• a
.n t •,c• '
� ', � �✓��.` t- Pt ► ` c c =�? t , _ ,` °1 rt µsl � [. ti {+ � 'txi,• �! . `��
' \; q `� ,. ♦ 1 ► t 1 '/ G, 4Y 4�\ E NM •� g� f M?
Ave
�,. r µl.11,• c . \ � ��w..• � a �• ��pA Z1 r � x
Su
1 �
• yet � r•{w'.sf Z 1
x5 >
++got', � � r\} ►Ptd � � ', r : •r �G
l•ts✓�r t r�,.0
_ t•
� � • H
Exhibit B
MAXIMUM MONTHLY RESIDENTIAL AND COMMERCIAL RATES
• RESIDENTIAL RATES :
32 gallon cans Monthly Fee
1 can once a week $19 . 86
2 cans once a week $35 . 65
3 cans once a week $50 . 00
4 cans once a week $64 . 00
40 gallon cans Monthly Fee
1 can once a week $45 . 20
45 gallon cans Monthly Fee
1 can once a week $49 . 30
2 units/2 cans $40 . 20
• COMMERCIAL RATES :
30 gallon can once a week $21 . 00
Material other than can use :
Dry $21 . 45/cubic yard
Wet $22 . 10/cubic yard
382732.6 September 11, 1997
Kensington - Bay View
New Franchise Agreement
Exhibit C
PROJECTED EXPENSES IN CALENDAR YEAR 1998
ON WHICH INITIAL RATES ARE ESTABLISHED
OPERATING EXPENSES:
Salaries and Benefits $337, 554
Legal Fees 10,000
Dump Expense (Gate Fees) (1) 108,202
Depreciation 22, 204
Insurance 25, 577
Accounting 10, 800
Parts and Tires (+5%) 23,062
Rent 17, 551
Truck Rental 32, 698
Diesel Fuel 14, 000
Debris Box Rental 7840
Postage 4,, 127
Licenses - Trucks 4, 019 '
Office 3,487
Repairs & Maintenance 2, 557
Telephone 1, 578
Other General & Operating (+ gasoline) 6,267
TOTAL OPERATING EXPENSES $631, 523
Allowance for Profit (12%) 75, 783
Pass-through Expenses
- County Fee (3% of Req'd Rev) 20, 899
- District Fee (2% of Req'd Rev) 13, 933
- County Hazardous Waste Fee - current 4, 000
- County Hazardous Waste Fee - reimbursemen 2, 194
of prior charges of $4387 over 24 months
Audit Fees 12 . 300
53,326
Less: Recycling & Other Fees (64, 000) (2)
Benchmark Level Revenues to -be
Raised from Collection Rates $696, 631
(1) $36/ton for refuse, $32/ton for greenwaste.
(2) Recycling and other revenues based on avg. of
three (3) previous years (1994, 1995, 1996) .
exhbtc&d.wk4
08/17/97
Kensington - Bay View
New Franchise Agreement
Exhibit D
ASSUMPTIONS REGARDING AND LIMITATIONS ON COSTS AND EXPENSES
1. SBlax��s_asld_]lenef�ts - Based on five (5) full time employees,
1 garbage route with 2 workers (1 driver and 1 helper)
1 recycling route with driver
1 officer worker, and
1 president ($80,000 salary; no benefits) 3k increase per year
111�located mployees-
I1 mechanic (1 day per week) $314.32
pmt Time As needed helpers and drivers for yardwaste and general pickups.
2 yardwaste drivers and 2 yardwaste helpers
5 days per week, 12 weeks per year (monthly)
Cost:
Drivers- $30.96 per hour
Helpers- $28.91 per hour
2 . D-um"xp=ap— Based on $36 per ton for refuse and $32 per ton for
yardwaste at West Contra Costa County Sanitary Landfill
3 . Depr.e-c. j on Based on the following equipment:
12/31/96 Annual
Net Book Value Depreciation*
Equipment . $ 71,355 $ 22,204
* Straight line, seven (7) years.
Excludes fully depreciated assets purchased before 1991 .
4 . Affiliated Company Transactions
Rent - Office and yard $ 1,462 .55 per month
Truck Rental— $ 36.88 per hour
Debris Box Rental $ 80.00 per load
** Monthly yardwaste service assumes 2 trucks required
60 days per year, or 960 truck/hours per year.
exhbtc&d.wk4
O '
8
S. b
Exhibit E
SCOPE OF COLLECTION/RECYCLING SERVICES
SOLID WASTE COLLECTION
Backyard weekly service .
RECYCLING
_. A. Weekly curbside recycling collection.
Materials collected: aluminum cans; steel and tin
plated cans; glass containers; PET bottles; clear HDPE bottles;
colored HDPE bottles; polystylene; plastic film; cardboard;
newspaper; mixed paper (includes magazines) .
Containers : 3 five-gallon plastic buckets for each
customer; replacements at cost .
B . Monthly curbside greenwaste collection on customer' s
regular garbage day. No yardage limit . Materials must be
bundled, tied or placed in boxes or trash containers . (Boxes and
containers will be emptied and not removed. ) Greenwaste in
plastic bags not accepted.
GENERAL PICK UP
One curbside pick up annually in September. Limit : 1-1/2
cubic yards bundled, tied or bagged. Greenwaste not accepted.
COMMUNITY CLEAN UP
Up to three 20-cubic yard drop boxes annually.
SPECIAL JOB PICK UPS
Customers may schedule special pick ups (e .g. , old
refrigerators) for a separate charge .
REUSABLE MATERIALS PICK UPS
If District directs, Bay View will conduct scheduled pick
ups of reusable materials (e .g. , old clothes, toys) in
coordination with organizations such as Good Will Industries and
Urban Ore . Compensation for such pick ups shall be in addition
to rates shown on Exhibit B.
382732.6 September 11, 1997
UNINCORPORATED CONTRA COSTA COUNTY DIVERSION DATA
Service Provider:
Program Type:
Unipcorporated Service Area:
Is the Data from an annual report (Yes or No)?
If not, which quarter of the year(e.g. 1,2,3 or 4)?
Year:
MATERIAL TYPES
ENTER TONNAGES BY MATERIAL TYPE
Abbreviations are shown in parenthesis
PAPER F PLASTIC
Corrugated Cardboard (OCC): PET (PET):
Newsprint (ONP): HDPE (HDPE):
High grade(HG): Polystyrene(PS):
Mixed Paper(MP): Other (P-X):
Magazines (OMG):
GLASS I F OTHER WASTES
CA Redemption Value Cont. (CRV): Textiles(TX):
Other Glass (GLS): Inerts (INRT):
White Goods (WG):
METAL Reusables(REUSE):
Aluminum Cans (UBC): Other(OTHER):
Tinned cans and ferrous (Fe):
Other non-ferrous (N-Fe): Notes:
ORGANICS
Yard waste(YW):
Food waste(FW):
Wood waste(WW):
Completed by:
Firm or Agency Date: Page of
Phone No.
1
UNINCORPORATED CONTRA COSTA COUNTY DIVERSION DATA
Service Provider:
Program Type:
Unipcorporated Service Area:
Is the Data from an,annual report (Yes or No)?
If not, which quarter of the year (e.g. 1,2,3 or 4)?
Year:
MATERIAL TYPES
ENTER TONNAGES BY MATERIAL TYPE
Abbreviations are shown in parenthesis
PAPER PLASTIC
Corrugated Cardboard(OCC): PET (PET):
Newsprint (ONP): HDPE (HDPE):
High grade (HG): Polystyrene(PS):
Mixed Paper(MP): Other(P-3):
Magazines (OMG):
GLASS OTHER WASTES
CA Redemption Value Cont. (CRV): Textiles(TX): _
Other Glass (GLS): Inerts (INRT):
White Goods (WG):
METAL Reusables(REUSE):
Aluminum Cans (UBC): 1 Other(OTHER):
Tinned cans and ferrous (Fe):
Other non-ferrous (N-Fe): Notes:
ORGANICS
Yard waste(YW):
Food waste(FV):
Wood waste(WW):
Completed by:
Firm or Agency Date: Page of
Phone No.
coply
September 11, 1997
FRANCHISE AGREEMENT WITH
BAY VIEW REFUSE AND RECYCLING SERVICES, INC.
KENSINGTON POLICE PROTECTION
AND COMMUNITY SERVICES DISTRICT
TABLE OF CONTENTS
Pane
1 . EFFECTIVE DATE, PARTIES . . . . . . . . . . . . . . . . 1
2 . DEFINITIONS . . . . . . . . . . . . . . . . . . . . . . 1
3 . TERM . . . . . . . . . . . . . . . . . . . . . . . . 4
4 . INTENT TO REGULATE ALL RECYCLING AND RESIDENTIAL AND
SOLID WASTE COLLECTION, REMOVAL AND/OR DISPOSAL . . . . 4
5 . EXCLUSIVE PRIVILEGE AND DUTY . . . . . . . . . . . . . 4
6 . EXCEPTIONS TO EXCLUSIVE PRIVILEGE . . . . . . . . . . . 4
7 . LIMITATION ON CONTRACTOR' S OPERATIONS . . . . . . . . . 5
8 . CONTRACTOR'S DUTY TO MAINTAIN RECORDS; DISTRICT' S RIGHT
TO EXAMINE RECORDS . . . . . . . . . . . . . . . . . . . 5
9 . CONTRACTOR' S COMPENSATION . . . . . . . . . . . . . . . 6
10 . AFFILIATED COMPANY TRANSACTIONS . . . . . . . . . . . . 12
11 . OPERATION BY CONTRACTOR . . . . . . . . . . . . . . . . 12
12 . TIME AND MANNER OF COLLECTION . . . . . . . . . . . . . 12
13 . CUSTOMER SATISFACTION, AB 939 AND EFFICIENCIES IN
OPERATION . . . . . . . . . . . . . . . . . . . . . . . 13
14 . CUSTOMER SERVICE STANDARDS . . . . . . . . . . . . . . . 14
15 . CUSTOMER COMPLAINTS . . . . . . . . . . . . . . . . . . 15
16 . BILLING . . . . . . . . . . . . . . . . . . . . . . . . 15
17 . RECYCLING . . . . . . . . . . . . . . . . . . . . . . . 15
18 . FREE SERVICE FOR COUNTY LIBRARY AND DISTRICT . . . . . . 17
19 . FRANCHISE AREA-WIDE COLLECTION . . . . . . . . . . . . . 17
20 . PARTICIPATION IN COMMUNITY CLEAN-UP PROJECTS . . . 18
21 . DISPOSAL AND WASTE STREAM CONTROL . . . . . . . . . . . 18
22 . MISCELLANEOUS OBLIGATIONS OF CONTRACTOR . . . . . . . . 18
382732.6 1 September 11, 1997
23 . ADMINISTRATIVE SERVICES AND FRANCHISE FEES . . . . . . . 19
24 . HAZARDOUS WASTE . . . . . . . . . . . . . . . . . . . 19
25 . PRELIMINARY DISPUTE RESOLUTION . . . . . . . . . . . . . 19
26 . FAITHFUL PERFORMANCE BOND . . . . . . . . . . . . . . 20
27 . INSURANCE . . . . . . . . . . . . . . . . . . . . . . . 20
28 . INDEMNIFICATION . . . . . . . . . . . . . . . . . . . . 21
29 . ATTORNEY' S FEES . . . . . . . . . . . . . . . . . . . . 22
30 . ASSIGNABILITY . . . . . . . . . . . . . . . . . . . . . 22
31 . INVOLUNTARY ASSIGNMENT . . . . . . . . . . . . . . . . . .23
32 . NOTICE. . . . . . . . . . . . . . . . . . . . . . . . . 24
33 . ANNEXATION AND CHANGE OF FRANCHISE AREA BOUNDARIES . . . 24
34 . BREACH AND TERMINATION . . . . . . . . . . . . . . 24
35 . EMERGENCY . . . . . . . . . . . . . . . . . . . . . . . 26.
36 . COMPLIANCE WITH FEDERAL, STATE AND LOCAL LAWS . . . . . 26
37 . AMENDMENT OR MODIFICATION . . . . . . . . . . . . . . . 27
38 . STATUTORY POWERS . . . . . . . . . . . . . . . . . . . . 27
39 . CONTEST OF AGREEMENT'S TERMS . . . . . . . . . . . . . . 27
40 . SEVERABILITY . . . . . . . . . . . . . . . . . . . . 27
41 . WAIVER . . . . . . . . . . . . . . . . . . . . . . . . . 27
42 . SURVIVAL OF OBLIGATIONS . . . . . . . . . . . . . 28
43 . THIRD PARTY BENEFICIARY . . . . . . . . . . . . . . . . 28
44 . ENTIRE AGREEMENT; SUPERSESSION OF PRIOR AGREEMENT . . . 28
45 . EFFECTIVE DATE; CONDITIONS TO EFFECTIVENESS . . . . . . 28
382732.6 1 1 September 11, 1997
1 �
FRANCHISE AGREEMENT
WITH BAY VIEW REFUSE AND RECYCLING SERVICES, INC.
THIS FRANCHISE AGREEMENT is made as of September 1, 1997, by
and between the KENSINGTON POLICE PROTECTION AND COMMUNITY
SERVICES DISTRICT, a political subdivision of the State of
California ( "District") , and BAY VIEW REFUSE AND RECYCLING
SERVICES, INC. , a California corporation ( "Contractor" ) .
THE PARTIES AGREE AS FOLLOWS:
1 . EFFECTIVE DATE, PARTIES. This Agreement is binding
between the District and the Contractor and is effective on
ySeptember 1, 1997 .
2 . DEFINITIONS. As used herein, the following terms shall
have the meanings set forth below:
2 .1 Agreement. Agreement means this Agreement by and
between the District and Contractor for the collection, removal
and disposal of solid waste and the recycling of material .
2 .2 Act. Act means the California Integrated Waste
Management Act of 1989 (Public Res . Code, §40000 et seq. ) and all
rules, regulations and definitions adopted under any of those
sections, as such sections, rules, regulations and definitions
may be amended from time to time in the future .
2 .3 Commercial Solid Waste. Commercial Solid Waste
means Solid Waste routinely originating from stores, business
offices and other commercial and light industrial sources
excluding residences and any wastes from heavy industry (i .e . ,
industry that manufactures or processes petroleum, lumber, steel,
chemicals, explosives, fertilizers, gas, rubber, cement, sugar
and other such products (see section 84-60 .402 of the Contra
Costa County Ordinance Code. ] ) .
2 .4 Contractor. Contractor means Bay View Refuse and
Recycling Services, Inc . , a California corporation. It is the
entity which has been granted an exclusive franchise pursuant to
the terms- and conditions set forth herein. Lewis Figone is
president of, and owns 1000-. of`the stock in, Bay View Refuse and
Recycling Services, Inc .
2 .5. Consumer Price Index or Index. Consumer Price
Index and Index each means the Consumer Price Index for All Urban
Consumers for the San Francisco-Oakland-San Jose Area as
published by the United States Department of Commerce, Bureau of
382732.6 September 11, 1997
a
Labor Statistics, 1982-84=100 . The Consumer Price Index for June
1997 was 160 . 0 .
2 . 6 County. County means the County of Contra Costa
which includes its Board of Supervisors, Community Development
Department and/or the Community Development Director .
2 .7 Customers. Customers means those who receive
service from the Contractor for the collection of materials for
recycling and/or for the collection, removal, or disposal of
Solid Waste, pursuant to this Agreement and applicable ordinances
of County, including mandatory subscription ordinances .
2 .8 Designated Waste. Designated Waste as used herein
has the meaning set forth in section 2522 of Title 23 of the
California Code of Regulations, as amended from time to time .
2 .9 District. District means the Kensington Police
Protection and Community Services District .
2 .10 District Board. District Board means the Board of
Directors the Kensington Police Protection and Community Services
District .
2 .11 Franchise Area. Franchise Area means the
geographic area generally known as the unincorporated community
of Kensington in West Contra Costa County described in Exhibit A
to this Agreement . Exhibit A may be amended from time to time to
reflect changes of boundaries of the Franchise Area in such a
manner as to identify each alteration to the Franchise Area and
the effective date thereof .
2 .12 Hazardous Waste. Hazardous Wastes include any
waste material or mixture of wastes which is toxic, corrosive,
flammable, an irritant, or a strong sensitizer, which generates
pressure through decomposition, heat or other means , if such a
waste or mixture of wastes may cause substantial personal injury,
serious illness or harm to humans, domestic animals, or wildlife,
during or as a proximate result of any disposal of such wastes as
defined in Article 2 , Chapter 6 .5, Section 26117 of the Health
and Safety Code. The terms "toxic, " "corrosive, " "flammable, "
"irritant, " and "strong sensitizer" shall be given the same
meaning as in the California Hazardous Substances Act (Chapter 13
commencing with Section 28740 of Division 21 of the Health and
Safety Code) and 14 Cal . Code Regs . , §17225 .32 .
2 .13 Industrial Waste. Industrial Waste includes all
types of Solid Waste which result from industrial processes and
manufacturing operations and/or which originate from such
facilities .
2 .14 Infectious Waste. Infectious Wastes include :
382732.6 2 September u, 1997
a
(1) Equipment, instruments, utensils and other fomites
of a disposable nature from the rooms of patients who are
suspected to have or have been diagnosed as having a communicable
disease and must, therefore, be . isolated as required by public
health agencies;
(2) laboratory wastes, including pathological
specimens (i .e . , all tissues, specimens of blood elements,
excreta and secretions obtained from patients or laboratory
animals) and disposable fomites (any substances that may harbor
or transmit pathogenic organisms) attendant thereto;
(3) surgical operating room pathologic specimens
including recognizable anatomical parts, human tissue, anatomical
human remains and disposable materials from hospital, clinics,
outpatient areas and emergency rooms (14 Cal .Code Regs . ,
§17225 . 36) .
2 .15 Memorandum of Understanding. Memorandum of
Understanding means the agreement dated as of September 1, 1997
between District and County concerning solid waste collection and
recycling services within the Franchise Area executed by the
District Board and the County Board of Supervisors .
2 .16 Recycle or Recycling. Recycle or Recycling means
the process of collecting, sorting and recovering materials so
that they may be reconstituted for new, reused, or reconstituted
products .
2 .17 Residential Solid Waste. Residential Solid Waste
means Solid Waste routinely originating from single family or
multiple family dwellings . Residential Solid Waste includes
household hazardous waste, but does not- include septage.
2 .18 Septage. Septage means non-sewered liquid or
semi-liquid waste which may be trucked to treatment facilities
for disposal, to include, but not be limited to, waste from
residential septic tanks, . commercial grease clean-outs, and
industrial waste holding facilities.
2 .19 Solid Waste. Solid Waste has the meaning . set
forth in Section 40191 of the California Public Resources Code as
of the date of execution of this Agreement . Solid Waste
includes, - but is not limited to, all putrescible and
nonputrescible solid, semisolid, and liquid wastes, including
garbage, trash, refuse, paper, rubbish, ashes-; demolition and
construction wastes, abandoned vehicles and parts thereof,
discarded home and industrial appliances, dewatered, treated, or
chemically fixed sewage sludge which is not hazardous waste,
manure, vegetable or animal solid and semisolid wastes and other
discarded solid and semisolid wastes . "Solid Waste" does not
382732.6 3 September 11, 1997
include infectious, designated, and hazardous waste, except
household hazardous waste .
2 .20 Waste Stream. Waste Stream means the Solid Waste
to be collected under this Agreement from the time of its
collection by the Contractor to its disposal at a landfill or
delivery to a transfer facility or other facility by Contractor.
3 . TERM. Subject to section 33 (Annexation and Change of
Franchise Area Boundaries) and section 34 (Breach and
Termination) , the Term of this Agreement and the exclusive
franchise granted hereunder shall be 18 years, commencing on the
Effective Date set forth in Section 1 and expiring on August 30,
2015 .
4. INTENT TO REGULATE ALL RECYCLING AND RESIDENTIAL AND
SOLID WASTE COLLECTION, REMOVAL AND/OR DISPOSAL. The District
has jurisdiction to regulate the collection, removal and disposal
of all Solid Waste, and the recycling of all material in the
Franchise Area. The intent of this Agreement is to regulate
Solid Waste handling services and recycling of material in the
Franchise Area.
5. EXCLUSIVE PRIVILEGE AND DUTY. To the extent allowed by
law, District hereby grants to Contractor the exclusive privilege
and duty within the Franchise Area to collect, and remove for
disposal and recycling, all residential and commercial Solid
Waste, including recyclable materials, and to charge and receive
charges therefor, pursuant to and subject to the terms of this
Agreement . Contractor promises and agrees to perform the
responsibilities and duties set forth herein.
6. EXCEPTIONS TO EXCLUSIVE PRIVILEGE. The exclusive
privilege granted by this Agreement shall not apply to:
6.1 Solid Waste, including recycling materials, which
are collected, removed and disposed or recycled personally by the
same person or entity which generated them, or by the owner of
the property on which they were generated, in a clean and
sanitary manner and in conformance with all applicable laws and
regulations, including mandatory subscription ordinances .
6 . 2 Construction/demolition debris which is collected,
removed and disposed or recycled by a construction contractor
incidental to construction, remodeling or demolition work
performed for a customer.
6 . 3 Greenwaste (lawn and garden trimmings, branches
and other organic materials from landscaped areas) which is
collected, removed and disposed or recycled by a gardener or
landscape contractor as an incidental part of gardening or
landscaping work performed for a customer.
382732.6 4 September 11, 1997
6 . 4 Recyclable or reusable materials donated to a
charity or other nonprofit organization qualified under Section
501 (c) (3) of _the Internal Revenue Code .
6 . 5 Solid Waste and recyclable material generated by
Sunset Cemetery or Kensington Elementary School .
Contractor shall be responsible for enforcing the exclusive
nature of the franchise . District shall cooperate with
Contractor in such efforts but shall not be required to initiate
or participate in litigation at its expense to do so. Contractor
shall reimburse District for litigation expenses incurred by
District in defending the exclusive nature of the franchise
granted by this Agreement .
7 . LIMITATION ON CONTRACTOR' S OPERATIONS. Contractor' s
operations and business activities shall solely consist of
providing solid waste. collection and recycling services to the
Kensington Franchise Area, unless otherwise agreed by the parties
through an amendment to this Agreement . Contractor shall not use
its equipment or employees to collect Solid Waste from, or
perform other services for, either Sunset Cemetery or Kensington
Elementary School or from locations outside Kensington. As long
as Contractor' s corporate operations and business activities are
so limited to Kensington, the District' s right to examine
records, as provided in section 8 below, shall be limited to the
corporate books and records of Contractor.
8 . CONTRACTOR'S DUTY TO MAINTAIN RECORDS; DISTRICT'S RIGHT
TO EXAMINE RECORDS. Contractor shall maintain and make available
to District, upon its request, records as to number of Customers
(total and by type) , route maps, service records and other
materials and operating statistics in such manner and with such
detail as District may require .
Contractor shall maintain a proper set of books and records
in accordance with generally accepted accounting principles
( "GAAP") , accurately reflecting the operations performed and
business done by it under this Agreement . Accounts shall be
maintained on the accrual basis. The Contractor' s fiscal year
shall be the calendar year.
A financial statement verified by Contractor' s president
shall be provided by Contractor to the District on May 15th
(covering the period January 1 through May 1) , September 15th
(covering the period January 1 through September 1) and January
15 (covering the period January 1 through December 31 of the
previous year) of each year commencing with May 1, 1998 . By
March 30, Contractor shall provide a financial statement for the
previous calendar year compiled by an independent certified
public accountant in accordance with GAAP.
382732.6 5 September 11, 1997
District may examine the books and records of the
Contractor. District shall give thirty (30) days written notice
to the Contractor of such examination date.
In addition, District may review or audit any annual
financial statement compiled by or for Contractor. Thirty (30)
days written notice shall be provided to Contractor. The audit
review notice must be sent within one year from the date the
annual financial statement was submitted to the District . Any
such review or audit shall be performed by an independent
certified public accountant appointed by District . If requested
by District, Contractor shall pay the auditor and shall be
entitled to recover the full cost thereof through rates as a pass
through expense .
The information required by this section shall pertain to
Contractor' s operations, all of which are covered and regulated
by this Agreement as .set forth in section 7 above, and nothing
contained herein shall require the Contractor or its
shareholder (s) to provide the District with information
concerning the business and financial activities of any of its
shareholder (s) or of other corporations in which any of the
Contractor' s shareholder(s) have an interest .
Contractor may consider some operating information submitted
to District under the first paragraph of this section as
confidential . If District receives a request under the
California Public Records Act, prior to releasing any information
pursuant to this paragraph, District shall make a good faith
effort to notify Contractor of the intended release. Nothing in
this section will prevent District from allowing public access to
District records as provided for under the California Government
Code, and in- the event any dispute arises as to the public access
to information provided by Contractor under the terms of this
Agreement, the District shall in its discretion provide public
access to said information according to law or tender the defense
of any claims made against the District concerning said
information to Contractor.
9 . CONTRACTOR'S COMPENSATION
9.1 General. Contractor' s compensation for the
services required by this Agreement shall consist of (1) the
right to charge and collect from Customers in the Franchise Area
the rates provided for in this Agreement, and (2) the right to
retain all revenues received by Contractor from the sale of
materials which are Recycled.
9 .2 Initial Rates . Rates which Contractor may charge
as of the Effective Date, i .e . , September 1, 1997 , are those set
forth on the Schedule attached as Exhibit B. Until the rates are
adjusted as provided in this Agreement, Contractor shall provide
382732.6 6 September 11, 1997
t
the services required by this Agreement, charging no more than
the rates set forth on Exhibit B for the services it provides .
Future modifications in rates pursuant to Sections 9 . 3 , 9 .4 . 9 . 5,
9. 6, 9 . 7 and 9 . 8 do not require . an amendment to this agreement .
9 .3 Annual Rate Adjustments . The rates set forth on
Exhibit B shall be adjusted annually as set forth below,
commencing January 1999 . The changes shall become effective
January 1 of 1999 and on January 1 of each year thereafter.
Year Two through Year Four: The rates in effect as of
January 1, 1999 and as of January 1 of each succeeding year
through January 1, 2001 shall be adjusted effective as of January
1 of each immediately following year by multiplying each such
rate by a fraction, the numerator of which is the Consumer Price
- Index (All Urban Consumers, San Francisco-Oakland-San Jose)
published by the U.S . Department of Commerce, Bureau of Labor
Statistics ( "Index" ) for September in the year immediately
preceding the year for which the increase is to be effective and
the denominator of which is the Index for the September twelve
(12) months earlier. In the case of Year Two (calendar year
1999) , for example, the rates in effect on January 1, 1998 will
be changed as of January 1, 1999 to reflect the percentage change
in the Index between September 1997 and September 1998 .
Contractor need not submit an application to increase
rates pursuant to this Section 9 .3 , but shall submit a proposed
new rate schedule by November 1 of each year showing the Index as
of the relevant dates and its calculation of the new rates . The
new rate schedule shall go into effect automatically unless
District notifies Contractor within ten (10) days of receiving
the proposed new schedule of any error in Contractor' s
calculations .
Years Six through Nine, Eleven through Thirteen and
Fifteen through Eighteen: As provided in Section 9 .4 -below, the
rates will be comprehensively reviewed at four (4) year intervals
so that Contractor' s compensation is periodically adjusted,
independently of changes in the Index, to cover all Contractor' s
reasonable reimbursable costs and provide a pre-tax profit of
twelve percent (1211) on those costs which are subject to a profit
allowance (hereafter the "benchmark level") . In the intervening
years following such comprehensive reviews, the resulting rates
shall be adjusted to reflect changes in the Index as provided in
this Section 9 . 3 .
9 .4 Four Year Rate Revisions . The rates set forth in
Exhibit B are intended to generate sufficient revenues so that,
in combination with estimated revenues from recycling and other
operations in Kensington, Contractor will recover its reasonable
costs for furnishing all labor, materials, equipment, supplies
and other things necessary to perform all the services required
382732.6 7 September 11, 1997
� 1
by this Agreement and, in addition, earn a pre-tax profit of
twelve percent (120) on certain of those costs . The initial
rates set forth on Exhibit B are intended to cover all costs for
the items mentioned in the preceding sentence, including overhead
(insurance, bonds, county fees, and franchise fees) , taxes and
profit, as shown on Exhibit C. The parties agree that the costs
shown on Exhibit C are both complete and reasonable for the scope
of services to be provided.
The parties recognize that recycling and other
revenues, rate revenues and costs of operation may change over
time at rates different than the rate of change in the Index,
such that the rates shown on Exhibit B, adjusted as provided in
Section 9 . 3 , may not continually produce compensation to the
Contractor consistent with -the benchmark used to establish the
initial rates . In order to ensure that rates are periodically -
readjusted to the benchmark, the parties agree that there should
be a comprehensive review of Contractor' s revenues and expenses
at four-year intervals .
To implement these comprehensive reviews, Contractor
shall submit a report on or before April 30, 2001 which shall
include (a) Contractor' s financial statements for calendar
year 2000 , together with an opinion of an independent certified
public accountant based on an audit of Contractor' s financial
operations, (b) Contractor' s projections of rate revenue and
recycling/other revenue for the calendar year 2002, (c)
Contractor' s projections of expenses for calendar year 2002, and
(d) Contractor' s proposed rate increase/decrease, as needed to
achieve benchmark level compensation (i .e. recovery of costs plus
12a profit on those costs subject to a profit allowance) in
calendar year 2002 . In projecting recycling/other revenues for
the ensuing year, the average of the preceding three years shall
-be used. Reports shall be prepared in accordance with the format
and level of detail reasonably required by the District and
submitted in the number of copies (up to a maximum of 10)
required by the District . Contractor shall also furnish any
other relevant information requested by District to evaluate the
Contractor' s rate proposal .
District Board shall consider the Contractor' s report
at a noticed public meeting at which Contractor and any member of
the public may submit written or oral comments . Thereafter, and
no later than September 30, 2001, District shall establish, by
ordinance or resolution, the maximum rates which Contractor may
charge for service commencing January 1, 2002.
Comprehensive reviews shall also be conducted in
calendar year 2005, to establish rates applicable as of January
1, 2006 and calendar year 2009, to establish rates applicable as
of January 1, 2010 .
382732.6 8 Sepcember 11, 1997
9 .5 Adiustments in Rates for Extraordinary Changes in
Disposal Costs . The rates set forth on Exhibit B include all
costs of disposal of solid waste including transportation to the
Disposal Site and "Gate Fees" charged at the Disposal Site . The
adjustments in the rates provided in Sections 9 . 3 and 9 . 4 are
intended, and expected, to cover all increases in both components
of disposal costs, as well as the costs of collection and
recycling. The purpose of this Section 9 . 5 is to set forth the
conditions under which the rates may be adjusted at times and/or
in amounts different from those provided in Sections 9 . 3 and 9 .4
as a result of extraordinary increases or decreases in disposal
costs due either to a change in the Gate Fees or to a change in
the Disposal Site .
If the Gate Fees at the Disposal Site are increased or
decreased at any time by more than fifteen percent (150) or if.
there is a change in the Disposal Site which will increase or
decrease total disposal costs by more than fifteen percent (150) ,
Contractor shall notify District . Either party may then request
an adjustment in rates for the remainder of the current calendar
year. The District shall adjust the rates so that Contractor' s
revenues for the calendar year remain, to the extent achievable,
at the benchmark level . In addition, at the annual rate
adjustment immediately following an adjustment pursuant to this
Section 9 . 5, the parties shall take the effect of the partial
year adjustment in rates into account in applying the Index-based
adjustment to rates for the ensuing full year, again with the
goal of Contractor' s receiving compensation at the benchmark
level for the ensuing full year.
9 .6 Adjustments in Rates for Extraordinary Events .
The parties acknowledge that there may be infrequent
extraordinary events which, although they do not prevent either
party from performing, and thus do not implicate the Force -
Majeure provisions, nevertheless radically increase or decrease
the cost of providing service such that the rates and the rate
adjustment mechanism provided in this Agreement result in
Contractor suffering losses, or enjoying profits, which are
substantially outside the commercially reasonable expectations of
the parties. An example of such an event is a war or embargo
which increases the cost of fuel by a factor of five (5) , or
economic events which reduce the cost of fuel by fifty percent
(50%) . The obligation of the parties in such event is to act
reasonably toward each other and modify rates as necessary to
maintain Contractor' s compensation at the benchmark level .
If one party believes such an event has occurred and
warrants an increase or decrease in the rates different from that
provided for in Section 9 . 3 , it shall notify the other, providing
a full explanation and a proposed change in rates .
382732.6 9 September 11, 1997
9.7 Adiustment in Rates for Changes in Contractor' s
Scope of Work and/or in Level of "Pass-Through" Costs. If the
District, pursuant to Section 13, directs Contractor to initiate
new services or expand the level of existing services, the
reasonable cost of the additional services, plus 12% profit,
shall be incorporated into the rates . Similarly, if the District
directs Contractor to eliminate or reduce the level of existing
services, the reasonable cost savings, plus 12% thereof, shall be
incorporated into the rates .
If the amount of any of the "pass-through" costs on
Exhibit C is increased or decreased from their then-current
level, if new fees are imposed which are to be paid for initially
by Contractor, or if existing fees are terminated, these changes
shall be taken into account in rates .
If one party believes such an event has occurred and
warrants an increase or decrease in the rates different from that
provided for in Section 9 . 3 , it shall notify the other, providing
a full explanation and a proposed change in rates .
9 . 8 Adjustment in Rates for New Capital Equipment
Purchases . Contractor shall be entitled to an increase in rates
to reflect depreciation on new capital equipment (e .g. , vehicles)
purchased with District approval . Depreciation shall be
incorporated into rates as of January 1 next following the year
in which the capital asset is placed into service .
9 .9 Information in Support of Rate Requests . If a
change in rates is requested as a result of a change in the scope
of work directed by District (Section 9 . 7) , an extraordinary
change in disposal costs (Section 9 . 5) , or an extraordinary event
(Section 9 . 6) , Contractor shall promptly furnish to District all
relevant operational and financial information and records
necessary to evaluate it .
9.10 No Retroactive Adjustment in Rates . Whether or
not the rates are adjusted by an amount larger or smaller than
the change in the Index, pursuant to Section 9 .4 , no
consideration shall be given to Contractor' s having previously
earned compensation resulting in a profit greater or less than
twelve percent (12%) . In other words, future rates shall not be
increased to make up for profits below 12% in previous years nor
reduced to offset profits of greater than 1211 in previous years .
9 .11 Design of Rate Schedule. The- parties acknowledge
that the District Board retains legislative discretion to add new
rate categories to Exhibit B, delete rate categories from Exhibit
B, or adjust particular components of the rate schedule by
amounts greater or less than the applicable percentage adjustment
required by Section 9 . 3 , in order to accomplish social, economic,
382732.6 10 September 11, 1997
and/or environmental goals, so long as the aggregate adjustment
is substantially equivalent to the amount of revenue generated by
the single percentage required by Section 9 . 3 . A rate schedule
which will generate revenues within $5, 000 of the revenue which
would be generated during that year with a uniform percentage
adjustment in rates shall be considered substantially equivalent .
For the purpose of projecting revenues and costs, the Tons of
Solid Waste collected in the previous year shall be used, unless
the change in rate structure itself is expected to reduce the
amount of Solid Waste generated, such as the introduction of a
mini-can rate.
Contractor may submit comments on proposed differential
rates and District' s economic analysis. Such comments may
address both the revenue projections and any impacts which
revised rates might have on Contractor' s costs of performance.
District will consider such comments and will, if requested, meet
with Contractor to discuss the revenue, cost and operational
impacts of the proposed rates .
The District will not introduce a mini-can rate prior
to January 1999 . The parties will discuss the impact of such a
rate during 1998 .
9 .12 No District Guarantee of Collection. District
does not guarantee collectibility of rates authorized under this
Agreement . Contractor does not look to District for payment of
any sums under this Agreement and District has no obligation to
pay Contractor any public funds under this Agreement .
9 .13 Challenges to Rates . If Contractor believes the
rates have not been increased in accordance with this Agreement,
it may riot terminate this Agreement or refuse to continue to
provide service. However, it shall have the right to challenge
the adequacy of the rates as provided in this section. All
disputes as to the adequacy of rates shall be resolved through
mandatory binding arbitration conducted in accordance with the
California Arbitration Act, California Code of Civil Procedure
Sections 1280-1288 . 8, including the provisions of Section
1283 . 05 . In such arbitration, Contractor shall neither seek, nor
be entitled to recover, damages from the District on any theory,
including tort, breach of contract, or other.
10 . _ AFFILIATED COMPANY TRANSACTIONS. When equipment or
facilities owned by another company in which any of Contractor' s
shareholder (s) have an interest are used by .Contractor, the costs
paid by Contractor shall not exceed the fair market value of such
equipment and facilities . If personnel provide services to both
Contractor and any other company in which any of Contractor' s
shareholder (s) have an interest, the allocation of salary and
benefits shall reflect the proportional use of such employee by
382732.6 1 1 September 11, 1997
� t
4
Contractor and the other company or companies . Rent paid by
Contractor for offices, storage and garage facilities shared with
another company in which any of Contractor' s shareholder (s) have
any interest shall not exceed fair market value of the portion of
such facilities used by Contractor. The allocations and costs
shown on Exhibit D are agreed to be reasonable .
11. OPERATION BY CONTRACTOR. Contractor shall furnish all
necessary labor and equipment (excluding containers for weekly
Solid Waste service but including three recycling buckets
provided for each residential unit) for services provided
pursuant to this Agreement in the Franchise Area and shall
maintain such equipment in a sanitary condition at all times .
The Contractor shall use trucks with covered, water-tight
truck bodies constructed of sufficient strength to withstand a
fire within the . truck body and not endanger adjacent property.
Trucks, drop boxes, bins, or similar types of equipment owned and
operated by the Contractor shall be kept clean and in good
repair. Contractor shall have its name and telephone number on
the side of each truck and on each drop box, bin or similar type
equipment provided by Contractor, other than previously
distributed recycling buckets .
12 . TIME AND MANNER OF COLLECTION. Contractor shall
systematically collect Solid Waste and, to the extent required by
this Agreement, materials for diversion and recycling from its
Customers . Place of pickup shall be backyard service for Solid
Waste and curbside service for recycling, green waste and
periodic clean-ups . Solid waste collection shall be weekly unless
otherwise directed by the District Board. Frequency of
recycling, green waste and general pick up service shall be as
set forth in Exhibit E. Upon commencement of service and upon
changes in collection day schedules, Contract-or shall provide
each customer with notice of the scheduled collection day.
Contractor shall not collect Solid Waste from an inhabited
dwelling or dwelling unit between the hours of 6 :00 p.m. and
6 :00 a.m.
13 . CUSTOMER SATISFACTION, AB 939 AND EFFICIENCIES IN
OPERATION.
13 .1 From time to time, at its discretion, District may
examine Contractor' s operation in order to evaluate whether the
Contractor is operating in a satisfactory manner. Contractor
agrees to cooperate in. any such examination and shall permit
District representatives to inspect, at Contractor' s principal
place of business, such information pertaining to Contractor' s
obligations hereunder as District may require, including, but not
limited to, such things as customer inquiry records, collection
routes and equipment records. Access to Contractor' s records
382732.6 12 September 11, 1997
shall be subject to Section 8 (Contractor' s Duty to Maintain
Records; District' s Right to Examine Records) .
13 .2 Notwithstanding any contrary provision in this
Agreement, the District shall have the right to direct Contractor
to compile information, develop plans for and/or conduct programs
on alternative methods of Solid Waste and recyclable material
collection and management, or to take any other action for the
purpose of meeting the source reduction, recycling and composting
requirements of the Act, and any other applicable federal, state
or local laws regarding Solid Waste collection, recycling and
disposal, including, without limitation, the County' s Materials
Diversion Ordinance.
Contractor agrees to indemnify and hold the District
and County harmless from and against any and all liability to the
State of California for the District' s or County' s noncompliance
with the requirements_ of the Act due in whole or material part to
the material failure of Contractor to properly carry out the
reasonable directives of the District to Contractor regarding
collection and disposition of Solid Waste and recyclable material
and as required by the Act and directed by District; provided,
however, that Contractor shall not be obl.igated to carry out any
such directive (and shall not indemnify nor hold the District or
the County harmless from any resulting liability) if such
directives expand the scope of services required of Contractor
and the District fails to allow Contractor its reasonable costs
associated with carrying out such directives, plus 1201 of those
costs .
13 .3 District may require Contractor to develop plans
for and conduct programs on alternative methods of Solid Waste
collection, including pilot programs of limited scope, or may
- require additional programs, for the purpose of improving
service, increasing customer satisfaction, and/or meeting
diversion requirements. The notice shall allow Contractor a
reasonable period of time to implement the specified service .
Should District require commencement of such a program as
outlined in this paragraph, Contractor agrees not only to do
those things specified herein, but also to act at the direction
of the District on other matters that may be necessary for the
success and efficiency of the project, such as public information
and notification. In the event that District elects to- direct
Contractor to discontinue any service theretofore performed by
Contractor at the direction of District hereunder, District shall
allow Contractor to recover its reasonable capital equipment
costs and other reasonable costs arising upon termination of the
service. Contractor shall take all reasonable steps to minimize
such costs, such as, for example, selling surplus equipment .
382732.6 13 September 11, 1997
14. CUSTOMER SERVICE STANDARDS . Contractor shall provide
prompt, efficient, continuous and professional service to its
Customers . Contractor shall have a phone system with sufficient
capacity to promptly respond to telephone calls for at least 8
hours a day during weekdays, excluding those holidays observed by
Contractor, plus a 24-hour answering service . All vehicles shall
be radio equipped. Telephone numbers for customer service shall
be located in the local telephone directory. All telephone lines
for customer service shall be toll free to Customers .
Not less than once every three years and not less than six
months prior to an application for contract renewal, assignment
or extension of term, Contractor shall conduct a representative
survey or surveys of Customers within the Franchise Area to
determine satisfaction with service, including, without
limitation, response to customer complaints . The survey
methodology, format and content shall be subject to the prior
review and approval of the District General Manager. A copy of
the survey results shall be sent to the District within sixty
(60) days of completion of the survey. The first such survey
shall be conducted during calendar year 1998 . If the District
requires Contractor to do more surveys than set forth above,
Contractor' s survey costs shall be a pass.-through in the next
year' s rates . Nothing in this paragraph shall limit the right of
the District to conduct and mail its own surveys on its own and
at its cost . The Contractor shall cooperate with the District in
preparing such District surveys .
Upon initiation of service, and at least once a year,
Contractor shall send or deliver to Customers information
concerning the conditions of service, including, but not limited
to, rates, fees, charges, service options, payment options,
discounts (if any) , days of collections, the amount and manner of
refuse to be collected, service level and inquiry/complaint -
procedures, including the name, address and local telephone
number of Contractor and the name, address and telephone number
of the District General Manager. The form and content shall be
subject to the review and approval of the District General
Manager.
15. CUSTOMER COMPLAINTS. Contractor shall develop and
implement policy and procedure for responding to and recording
Customer complaints, including dispute resolution. The policy
and procedure shall be subject to the approval of the District
General Manager.
16. BILLING. The form and content of customer bills shall
be subject to the review and approval of the District General
Manager.
382732.6 14 September 11, 1997
Bills for services will be sent three times per year
(September, January, May) for every four months thereafter,
unless otherwise determined by the District . Bills shall become
due and payable three and one-half (3-1/2) months after mailing
(e .g. , bills mailed in September will be due and payable on
December 15) . The District may establish billing period options
for Customers upon a finding that such options are cost-effective
and meet a community need.
Full payment for drop boxes may be required by Contractor
prior to delivery of the drop box to the Customer.
The District shall have the right to direct the Contractor
to change or alter its billing system in which event the marginal
additional expenses incurred by the Contractor in the
implementation of the change, with regard to the accounting,
printing, mailing, loss of use . of funds, or otherwise, shall be
recoverable as a pass-through by the Contractor through the rates
allowed by the District provided such expenses are reasonable .
Contractor shall inform Customers of all rate changes at least 30
days prior to their effective date . A copy or facsimile of such
notice shall be provided to District at the time of Customer
notification.
17 . RECYCLING. District grants to Contractor the right and
obligation to operate recycling programs, including curbside pick
up of recyclable materials, as determined and designated by
District, subject to District' s right to terminate this grant to
Contractor but only pursuant to the provisions of this section.
Contractor shall request that recyclable materials be placed at
the curb by 5 : 00 a.m. of the day for which service has been
designated for that particular dwelling. Contractor is not
responsible to pick up recyclables not placed on the curb in a
timely manner. -
Contractor has already instituted and implemented a
recycling program including regular curbside pickup in
five-gallon buckets at all single family residences of at least
aluminum, tin, newsprint, glass bottles, non-colored HDPE and
PET. As more fully set forth in Exhibit E, the current program
will be supplemented commencing January 1, 1998, so that all
items listed in County Ordinance Section 418-10 . 604, as it may be
amended from time to time, are collected. The District has the
right at any time to modify said program or require new programs
as provided at section 13 hereinabove.
Contractor shall not dispose of recyclable materials,
collected through the curbside program, in a landfill . However,
if. market conditions are such that there are no purchasers and no
users willing to accept such materials for reuse without payment
by Contractor, Contractor may submit a written request to the
382732.6 15 September 11, 1997
• � 1
District General Manager for authority not to collect such
materials while such market conditions persist . If the District
General Manager can make the findings specified in Article 418-
10 . 8 in the County Ordinance Code, and unless County otherwise
directs, the General Manager shall exempt such material (s) from
recycling on conditions he/she specifies . Contractor shall
maintain and provide to the District records relating to its
recycling programs as directed by the District General Manager.
Contractor shall provide to each household promotional
information pertaining to the curbside recycling program.
Contractor shall allow the District General Manager to review
such material prior to delivery and shall make any changes he or
she reasonably requests. Contractor shall distribute written
promotional material two times per year as necessary to maintain
participation in the program and more frequently, if required by
the District General Manager.
Unless otherwise required by the District, Contractor shall
provide the District with periodic reports on the recycling
program which shall include :
a. Participation level (i .e . , . the number of
residences participating in the recycling program) based on one
sample week during each calendar quarter.
b. Quantity of materials collected, in tons, by type
of material (e .g. , newspaper, glass, plastic and metal) , by
calendar quarter. The current County form for this data is
attached as Exhibit F.
C . Total revenues received by Contractor for
materials received, by calendar quarter.
Unless otherwise directed by the District reports shall be
provided quarterly and annually. The quarterly reports shall be
due by the 15th of the month following the close of the quarter
and shall cover the preceding three months . For example, the
first quarterly report shall be due January 15th of 1998 and
shall cover October, November and December, 1997 . The first
annual report shall be due by March 15th of 1998, and shall cover
the preceding calendar year.
Contractor' s provision of recycling service shall be
reviewed in approximately one year and thereafter within three
(3) years of the effective date of this Agreement and, at
District' s discretion, every five years thereafter. If the
District determines that continuation of such service by
Contractor is not consistent with the ratepayers' best interest,
but not as a result of Contractor' s failure to satisfactorily
provide recycling services, Contractor shall be allowed to recoup
382732.6 16 September 11, 1997
• / F
its unamortized capital expenditures as follows . Contractor
shall make a good faith effort to sell all disposable assets
acquired in furtherance of the program for their fair market
value. If income derived from the sale is insufficient to cover
the unamortized costs of such assets, Contractor may transfer
those losses together with net operations profits or losses for
the current fiscal year to its general account and submit a rate
application to cover such losses .
If the District determines that Contractor has failed to
satisfactorily provide and perform recycling services, District
may terminate this grant to Contractor of the right and
obligation to provide and operate recycling programs, at no cost
or further obligation on the part of the District or the
ratepayers .
18 . FREE SERVICE FOR COUNTY LIBRARY AND DISTRICT.
Contractor shall provide Solid Waste collection and disposal
services at (1) the Kensington library at no charge to the County
and (2) the District' s headquarters (two cans per week) and the
community center (one 1-1/2 yard container weekly) at no charge
to the District .
19 . FRANCHISE AREA-WIDE COLLECTION. Unless otherwise
determined by the District Board, in addition to its regular
collections, commencing in January, 1998, Contractor shall
provide twelve (12) scheduled green waste curbside pick ups and
one annual general pick up (no green waste) . Any such
collections shall be made each year throughout the term of this
Agreement in accordance with practices and procedures already
established by Contractor. Green waste shall be delivered to a
composting or chipping facility by the Contractor, subject to
review and direction by the District General Manager.
Customers shall be timely notified on the dates of the
scheduled green waste pick ups . The recycling and other services
provided by Contractor are set forth in Exhibit E. The scope of
solid waste collection, green waste and recycling services
provided may be changed from Exhibit E at the direction or with
the approval of the District Board and without amending this
Agreement .
20 . PARTICIPATION IN COMMUNITY CLEAN-UP PROJECTS.
Contractor shall provide, upon direction of the District - General
Manager, Solid Waste drop boxes or equivalent containers for
community or other clean-up projects within .the Franchise Area.
The Contractor' s obligation to provide such boxes without charge
shall be limited to the equivalent of up to three (3) 20-cubic
yards drop boxes per year.
382732.6 17 September 11, 1997
21. DISPOSAL AND WASTE STREAM CONTROL. Contractor shall be
solely responsible for the disposal of the Solid Waste collected
pursuant to this Agreement . Contractor currently disposes of
Solid Waste collected from within the Franchise Area at the West
Contra Costa Landfill in Richmond. Contractor will not
voluntarily change the disposal site without providing sixty (60)
days advance notice to District, together with an explanation of
the reasons for the change . If the disposal site becomes
unavailable for any other reason, Contractor will give District
notice as soon as possible after learning of its pending
unavailability, together with Contractor' s recommendation for the
best alternate site . If the change will result in an increase in
collection rates, Contractor shall not effect the change without
approval of the District Board. The parties also recognize that
under the MOU, County has reserved authority to direct Solid
waste to be delivered to specific disposal sites under certain
circumstances . Contractor shall comply with directions from
District implementing such a directive from County. Contractor
shall not enter into contracts for disposal without prior
approval of the District Board. A copy of such contracts shall
be provided to District' s General Manager on request . Such
contracts shall allow for termination by Contractor if directed
by District .
22 . MISCELLANEOUS OBLIGATIONS OF CONTRACTOR. Contractor
shall assist District and County in their enforcement of the
County' s mandatory subscription ordinance by providing District
and County with the addresses of properties not subscribing to
collection service within the Franchise Area and by providing
collection service to such properties upon written direction by
County in conjunction with arrangements satisfactory to
Contractor for County to compensate Contractor for the costs of
such continued service .
23 . ADMINISTRATIVE SERVICES AND FRANCHISE FEES. Contractor
shall pay to the County for the services provided by the County
Community Development Department (administering and performing
its recycling and diversion management, monitoring, review and
reporting obligations under the Countywide Solid Waste Management
Plan and the Act) a percentage of its gross annual revenues
generated from the performance of such waste collection services
under this Agreement . Unless otherwise subsequently determined
by the County, the total amount for such administration services
shall be three percent of the commercial and residential bills
for each calendar year. Said sums shall be payable from the
Contractor to the County three times annually- (January, May and
September for three percent of the revenues .received in
respective four preceding months from commercial and residential
billings) . For administering this Agreement, the District shall
receive a franchise fee of two percent of the commercial and
382732.6 18 September 11, 1997
residential bills for each calendar year, payable at the same
time as payment is made to County.
For 1997, franchise fees shall be payable in January 1998 on
revenue from the preceding months in which this Agreement was
effective (September through December) . Any increase in the
franchise fees shall also be considered a "pass-through" as
described in Section 9 on Rates . Any decrease in such fees shall
be reflected in a subsequent rate adjustment .
24. HAZARDOUS WASTE. The parties hereto recognize that
federal, state and local agencies with responsibility for
defining hazardous waste and for regulating the collection,
handling or disposing of such substances are continually
providing new definitions, tests and regulations concerning these
substances . - Under this Agreement, it is Contractor' s
responsibility to keep current with the regulations on such
substances and to identify such substances and to comply with all
federal, state and local regulations concerning such substances .
Contractor agrees to provide to the District General
Manager, upon request, Contractor' s program for identifying
hazardous waste and complying with all federal, state and local
statutes and regulations dealing with hazardous waste .
Contractor shall make every reasonable effort to avoid the
collection or disposal of hazardous waste in any manner
inconsistent with applicable law.
25. PRELIMINARY DISPUTE RESOLUTION. If Contractor has a
question as to the interpretation of this Agreement, it shall
submit a written request to the District General Manager for a
determination of the issue . The Contractor shall provide and
submit such information as the District General Manager may -
reasonably request or require to make the requested
determination. The written determination of the District General
Manager on such interpretation may be appealed to the District
Board by the Contractor.
26. FAITHFUL PERFORMANCE BOND. Contractor shall submit to
District simultaneously with the execution of this Agreement a
corporate surety bond in the amount of $10, 000 , provided however,
that the Board may increase this amount not more often than every
three years to reflect changes in the Consumer Price Index. The
bond shall be executed by a surety company licensed to do
business in the State of California and acceptable to District
General Manager. The bond shall be approved by the District and
shall be payable to District or County. The condition of the
bond shall be that Contractor will faithfully perform the duties
imposed by ordinance, this .Agreement and the rules and
regulations of District and County. Any action by District or
382732.6 19 September 11, 1997
County to proceed against the Bond shall not limit or affect the
right of District or County to use other remedies available to
District or County under the Agreement or in courts of law or
equity, notwithstanding the foregoing. In lieu of the corporate
surety bond, Contractor may provide to District a letter of
credit, cash bond or other security acceptable and in a form
satisfactory to the District General Manager.
27 . INSURANCE. Contractor shall procure and maintain in
full force and effect at all times during the entire term of this
Agreement the following coverage :
27 .1 Public liability and property damage insurance
including completed operations, products, contractual, broad form
property damage, personal injury and owned and non-owned
automobile liability with such coverages and limits as may be
reasonably requested by District from time to time, but in no
event with limits less than the sum of $3 million combined single
limit for each occurrence arising from the services as stated in
the Agreement herein. District and County shall be named as an
additional insureds under such liability insurance policy or
policies .
27 .2 Contractor shall carry workers' compensation
insurance for all its employees .
Evidence of liability and workers' compensation insurance
shall be provided by Contractor through filing with District and
County a certificate of insurance indicating that District and
County are endorsed as an additional named insured under the
liability policy. All policies shall include a provision that
written notice of cancellation or any material change in coverage
shall be delivered to District and County thirty - (30) days in
advance of the effective date thereof . No cancellation,
alteration or change of beneficiary shall be made without written
notice to District and County.
District reserves the right to examine all policies from
time to time to ensure appropriate conformity to prevailing
practices and standards of the insurance industry.
Such insurance shall be obtained from a company or companies
licensed to do business in the State of California and acceptable
to District . Failure of Contractor to maintain insurance in the
manner and amount stated herein will constitute a material breach
of this Agreement .
362732.6 20 September 11, 1997
28 . INDEMNIFICATION.
28 .1 Complete Indemnification of District and County.
All work and performance covered by this Agreement shall be at
the risk of Contractor.
Contractor agrees to save, indemnify and keep harmless
the District and County, their 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, including environmental damage,
arising directly or indirectly out of the obligations herein
undertaken or out of the operations conducted by Contractor, save
and except claims or litigation arising through the sole
negligence or willful misconduct of District or County, and will
make good to and reimburse District and County for any
expenditures, including reasonable attorney' s fees, that District
or County may make by reason of such matters and, if requested by
District or County shall defend any such suit at the sole cost
and expense of Contractor.
The above promise by Contractor to indemnify, hold
harmless and defend the District and County expressly includes,
but is not limited to, all claims, damages (including but not
limited to special and consequential damages) , natural resources
damages, punitive damages, injuries, costs, response, remediation
and removal costs, losses, demands, debts, liens, liabilities,
causes of action, suits, legal administrative proceedings,
interest, fines, charges, penalties and expenses (including but
not limited to attorney' s and expert witness fees and costs
incurred in connection with defending against any of the
foregoing or in enforcing this indemnity) of any kind whatsoever
paid, incurred or suffered by, or asserted against, District or
County, their officers, employees or agents arising from or
attributed to any repair, cleanup or detoxification, or
preparation and implementation of any removal, remedial,
response, closure or other plan (regardless of whether undertaken
due to governmental action) concerning any hazardous substances
or hazardous waste at any place where municipal solid waste is or
has been transported, transferred, processed, stored, disposed of
or otherwise come to be located by Contractor under Agreement, or
the activities of Contractor pursuant to this Agreement resulting
in a release of hazardous substances or waste into the
environment . The foregoing is intended to operate in part as an
agreement, pursuant to section 107 (e) of the Comprehensive
Environmental Response, Compensation and Liability Act, "CERCLA, "
42 U.S. C. section 9607 (e) , and California Health and Safety Code
section 26364 to defend, protect, hold harmless and indemnify
District and County. The intent of the section is to provide
District with the highest level of protection possible under
existing and future laws .
382732.6 21 September 11, 1997
28 .2 Defense of Agreement. Should any party
successfully challenge the validity of all or any portion of this
Agreement, the procedure by which this Agreement was entered
into, or the validity of any County ordinance or District
enabling petition or statute which authorizes the District to
enter into this Agreement, then in such case the Contractor shall
have. no cause of action for damages or any other relief against
District or County as a result of such successful challenge .
Contractor has the right to defend this Agreement and District or
County.
29. ATTORNEY'S FEES. -In the event of litigation between
the District and Contractor arising hereunder, the prevailing
party shall be entitled to litigation expenses, including
reasonable attorney' s fees . If Contractor is required to pay
District ' s litigation expenses, neither such payments nor its own
litigation expenses may be passed through to Customers in rates .
30 . ASSIGNABILITY. Contractor shall not sell, assign,
subcontract or transfer this Agreement or any part hereof, or any
obligation hereunder, without the written consent of District
which consent shall not be unreasonably withheld or delayed on or
after September 1, 2000 . Prior to September 1, 2000, District
may refuse consent to any such sale, assignment, subcontract or
transfer in its sole discretion.
If Contractor wishes to assign this Agreement, delegate its
obligations, or if shareholder (s) of Contractor wish to sell a
controlling interest in Contractor or take other action which
constitutes an assignment, as defined below, it, he/she or they
shall give notice to and request approval of District . District
shall be entitled to consider the capability of the proposed
assignee to satisfactorily perform the services required by this
Agreement, including its experience -in Solid Waste handling, its
financial condition, evidence of its performance in other
communities, its history of compliance with environmental and
other regulatory laws, and other relevant information.
Contractor shall be responsible for furnishing such information
reasonably requested by District . District shall consider any
proposed assignment promptly, shall diligently investigate the
capabilities of the proposed assignee and shall not unreasonably
withhold or delay its consent .
The term "assignment" shall include any dissolution, merger,
consolidation or other reorganization of Contractor, which
results in change of control of Contractor, .or the sale or other
transfer, by probate proceeding or otherwise, of a controlling
percentage of Contractor' s capital stock to a person not a
shareholder on the date of the execution of this Agreement, i .e . ,
Lewis Figone . The term "assignment" does not include internal
business reorganizations or formations of new companies by
382732.6 22 September 11, 1997
Contractor, formation of trusts by Contractor or transfers of any
interest of Contractor as a result of death, disability or estate
planning by one or more of the principals of Contractor, so long
as essential management decisions are retained by Lewis Figone,
his spouse, his children, and/or their spouses, or others who
have previously worked for Contractor as employees to provide
services under this Agreement . By his signature below Lewis
Figone agrees to the provisions of this Section 30 for himself as
well as for Contractor.
31. INVOLUNTARY ASSIGNMENT. No interest of Contractor in
this Agreement shall be assignable by operation of law. Each or
any of the following acts shall be considered an involuntary
assignment providing District with the right to elect to
terminate the Agreement forthwith, without suit or other
Proceedings :
(a) If Contractor is or becomes insolvent, or makes an
assignment for the benefit of creditors;
ti (b) If writ of attachment or execution is levied on
this Agreement or other property of Contractor such that it would
affect Contractor' s ability to perform its duties and obligations
under this Agreement .
(c) If in any proceeding to which Contractor is a
party, a receiver is appointed with authority to take possession
of Contractor' s property such that it would affect Contractor' s
ability to perform its duties and obligations under this
Agreement .
(d) Except_ as otherwise provided in section 30
(Assignability) , in the event of a probate proceeding where the
rights of Contractor under the Agreement would pass to another
individual or other individuals .
32 . NOTICE. Any notice required or permitted under this
Agreement shall be in writing and shall be deemed to have been
given if delivered personally or ten (10) days after posted by
certified mail, return receipt requested, addressed as
appropriate either to Contractor:
Bay view Refuse and Recycling Services, Inc .
Attn: Lewis Figone, President
P.O. Box 277
El Cerrito, CA 94530
Or to District :
Attention: General Manager
Kensington Police Protection
382732.6 23 September 11, 1997
i
and Community Services District
217 Arlington Avenue
Kensington, CA 94707-1401
Or to County:
Attention: Director of Community Development
651 Pine Street , 4th Floor, North Wing
Martinez, CA 94553
33 . ANNEXATION AND CHANGE OF FRANCHISE AREA BOUNDARIES.
Contractor realizes that the public agency boundaries may be
altered by virtue of actions taken by the Contra Costa County
Local Agency Formation Commission (LAFCO) . Contractor agrees that
should a municipal corporation lawfully annex territory which is
within the Franchise Area, District may make such alterations to
the Franchise Area as the annexation necessitates . Should the
Franchise Area boundaries be amended, Contractor agrees that it
will abide by any change resulting from the Franchise Area
change. Contractor agrees that the. District Board may make such
alterations to the Franchise Area as are necessitated by such
Local Agency Formation Commission actions and that it shall have
no right or claim to damages or other relief against the District
or County for such alterations to the Franchise Area. However,
nothing herein is intended to abrogate Contractor' s rights under
Public Resources Code Section 49520 or any successor or similar
statute.
34. BREACH AND TERMINATION. The District General Manager
shall have authority, subject to review by the District Board
upon appeal, to determine whether a breach of any provision of
this Agreement by Contractor has occurred. Any waiver of a
breach shall not be deemed to be a waiver of any subsequent
breach or be construed as approval of a course of conduct . In the
event that the District General Manager determines that a breach
has occurred, District shall give Contractor written notice of
the breach setting forth the breach or default . Contractor shall
have a reasonable period to cure the noticed breach, said period
not to exceed 60 days . In the event the breach or default is
cured to the satisfaction of the District General Manager within
the period of time allotted, the breach shall not be deemed a
material breach. In the event that the District General Manager
determines that Contractor has failed to satisfactorily cure the
breach or_ default within the period of time allotted, the
District General Manager may determine such breach or default to
be material .
Multiple or repeated breaches, or a pattern of breaches and
subsequent attempts to cure said breaches by Contractor shall
provide an adequate basis for the District General Manager, in
his discretion, to declare any subsequent breach to be material,
382732.6 24 September 11, 1997
notwithstanding whether that breach is ultimately cured by
Contractor.
If such a determination of material breach is made, the
District General Manager' s determination shall be automatically
appealed to the District Board for final action.
A material breach shall be cause for termination of this
Agreement by the District Board.
In the event of a termination pursuant to this section,
District shall have the right to temporarily assume the
obligations of Contractor and shall have the right to forthwith
take possession of all trucks and other equipment of Contractor
and exercise Contractor' s right to enter and use any disposal
facilities for the purpose of performing the services agreed to
be performed by Contractor herein until such time as District or
County can make other arrangements for the performance of said
services . However, such temporary assumption of Contractor' s
obligations under the Agreement shall not be continued by
District for a period exceeding twelve (12) months from the date
such operations are undertaken by District or County.
During any period in which District has temporarily assumed
the obligations of Contractor under this Agreement, District
shall be entitled to the gross revenue attributable to operations
during such period and shall pay therefrom only those costs and
expenses applicable or allocable to said period, including the
reasonable rental value of the trucks and equipment to be paid to
Contractor. District shall be entitled to the excess, if any, of
revenue over applicable or allowable costs and expenses during
such period. The loss, if any, during such period shall be a
charge against Contractor, and shall be paid to District by
Contractor on demand. Final adjustment and allocation of gross
revenue, costs, and expenses to the period during which District
temporarily assumed the obligations of Contractor shall be
determined by an audit by a Certified Public Accountant and
prepared in report form with his unqualified opinion attached
thereto.
Nothing in this Agreement shall prevent District during any
period in which District temporarily assumes the obligations of
Contractor under this Agreement , from employing persons who were
employed by the Contractor for the collection of Solid Waste
under this Agreement .
Upon the occurrence of a material breach and the declaration
of such and termination of this Agreement by the District Board,
this Agreement and the franchise granted thereunder shall be of
no further force and effect, excepting these provisions
concerning District' s right to temporarily assume Contractor' s
382732.6 2 5 September 11, 1997
obligations and to use Contractor' s facilities, and section 28
(Indemnification) . District then shall be free to enter into
whatever other arrangements are deemed justified and necessary
for the collection, removal and. disposal of Solid Waste within
the Franchise Area.
35 . EMERGENCY. Notwithstanding Contractor' s exclusive
franchise rights set forth in section 5 (Exclusive Privilege and
Duty) , in the event of an emergency due to natural disaster or
labor strike which interrupts the collection of Solid Waste by
Contractor, the District Board shall have the right to declare a
temporary suspension of this Agreement for the reasonable
duration of the emergency and until such time . as it determines
that Contractor is able to reassume all obligations under this
Agreement . Should Contractor fail to demonstrate to the
satisfaction of the District Board that required services can be
resumed by Contractor prior to the expiration of a six (6) month
period, this Agreement may be terminated at the direction of the
District Board.
36 . COMPLIANCE WITH FEDERAL, STATE AND LOCAL LAWS .
Contractor shall be responsible for and shall comply with all
applicable laws, rules, and regulations that are now in effect or
may be promulgated or amended from time to time by the Government
of the United States, the State of California, the County and any
other agency, .other than the District, now authorized or which
may be authorized in the future to regulate the services to be
performed herein regarding the collection, removal and disposal
of Solid Waste and recycling or diversion of material . This
includes County Ordinance Code Chapter 418-6 (on mandatory
subscription to Solid Waste collection service) , and the County' s
Materials Diversion Ordinance .
37 . AMENDMENT OR MODIFICATION. This Agreement may be
amended or modified upon written agreement of. the District and
Contractor. The parties agree to meet and confer in good faith
if amendments or modifications are proposed.
38 . STATUTORY POWERS. Nothing in this Agreement is
intended to or may limit District authority pursuant to its
enabling statute.
39 . CONTEST OF AGREEMENT'S TERMS. In the event either
party to -this Agreement attempts to challenge the validity of any
portion of this Agreement, such action in attempting to challenge
the Agreement shall constitute a material breach of this
Agreement and the non-breaching party shall have the right to
elect to terminate this Agreement forthwith without suit or other
proceeding. ' Contractor agrees that it shall not request the
County to assume control of Solid Waste handling in the Franchise
Area, to abrogate this Agreement or to otherwise interfere with
382732.6 26 September 11, 1997
District' s authority under this Agreement and that a breach of
this promise shall constitute a material breach of this
Agreement .
This section shall not be construed to prevent either party
from seeking redress from the courts for the purpose of
interpreting or enforcing the provisions contained in this
Agreement .
40 . SEVERABILITY. In the event legal action is brought by
a person or entity, other than the two parties to this Agreement,
to challenge, invalidate, contest or set aside any of the
provisions of this Agreement, each and every term and condition,
and each and every section and paragraph is severable from the
remaining terms, conditions, sections, and paragraphs. The
invalidation of any term, condition, section or paragraph as a
result of a legal action, brought by a person or entity not a
party to this Agreement shall not affect the validity or
enforceability of the remaining provisions . However, if material
provisions hereof are affected, the parties agree to negotiate in
good faith to reach agreement on revisions which preserve the
substance hereof to the greatest extent allowed by law.
41. WAIVER. The waiver by either party of any breach or
violation of any provisions of this Agreement shall not be deemed,
to be a waiver of any breach or violation of any other provision
nor of any subsequent breach or violation of the same or any
other provision. The acceptance of any monies which become due
hereunder shall not be deemed to be a waiver of any pre-existing
or concurrent breach or violation by the other party of any
provision of this Agreement .
42 . SURVIVAL OF OBLIGATIONS . Obligations of this Agreement
which embody continuing obligations, including but not limited to
section 28 (Indemnification) shall survive the termination or
expiration of this Agreement .
43 . THIRD PARTY BENEFICIARY. County shall be considered a
third party beneficiary of this Agreement as it may be amended by
the parties from time to time.. The County' s rights are
enforceable only through the Memorandum of Understanding between
County and District .
44 . _ ENTIRE AGREEMENT; SUPERSESSION OF PRIOR AGREEMENT.
This Agreement, including Exhibits A through F which are attached
hereto and incorporated herein, represents the full and entire
agreement between the parties hereto with respect to the matters
covered herein. This Agreement shall supersede the Contract with
Relation to Collection and Disposal of Garbage between District
and Bay View Refuse Services, Inc . , dated July 7, 1981, as
amended.
382732.6 2 7 September 11, 1997
45 . EFFECTIVE DATE; CONDITIONS TO EFFECTIVENESS. This
Agreement will become operative on the effective date in Section
1, provided that each of the following has occurred:
(a) County Board .has terminated the Franchise
Agreement dated September 11, 1996, with Bay View Refuse and
Recycling Services, Inc .
(b) District and' County have executed the Memorandum
of Understanding dated as of September 1, 1997 .
(c) District, County and Bay View Refuse and Recycling
Services, Inc. , have executed and filed a stipulation for
dismissal of the lawsuit initiated by District against County and
Bay View Refuse and Recycling Services, Inc. , now pending in
Contra Costa County Superior Court, Civil Action No. C96-04574 .
KENSINGTON POLICE PROTECTION AND
COMMUNITY SERVICES DISTRICT
By: PRESIDENT, BOARD OF DIRECTORS Date
ATTEST, James M. Bray,
General Manager and Secretary of
the Board
BAY VIEW REFUSE AND RECYCLING
SERVICES, INC. , a California
corporation
Date
By: LEWIS KGONE, PRESIDENT
(, >-?- c 3 .5; -Y& 13
Taxpayer I .D. No.
382732.6 2 8 September 11, 1997
d
i
E�'bit
Oa r
� maps '•c -
�<erisl�`gt� R
j
y�LLDR
OR
tt+ �► C
AP
IL i 'C•
e,
s \
4p F / V+S74
R SSq JLtoo
` 1
ILIAD G
ee
'-
Highgate Fid.
Highland Blvd.
F Jessen Dr.
'jf Kenl1worth Ct.
Kenilworth Dr.
Kensington Rd.
✓��. 'Qy a tN Kenyon Av.
F f tU Kerr Av.
6 ROAD „4 1-4 Kingston Rd. #t
cn .: L.a k e D r. :Q
<c. Lawson Rd.
En
Los Altos Dr.
H�C ( 4 �►, Lenox Rd.
kD l ♦ y Lexington Rd.
J
aKcnsingtor�py
Scn. \ KE�Vj
64
Q
10
VIA NORWOOD
E
ti
PL.
Q7
z ri► CA
IVFST
AV -< WILLAMETTE
o� �. r-
AVE
�r , .SUNSETCC', o
C
_. � � '►; �' o ccs
`� -� S c
TQC,
WA Y .a � .q '�' AV
VA
DR
CON
JD lit t9 8�. p19
cit
onit
MG
IAC
io
-C-L RAE
f
ANC
.�raLLE RA
�o�
ca , PC (' y' }
r
L.;°
Lxin�tOn
lb .
P4"a
t 10
—=�►., K�ns,nqKE N14�, \�o
8L
nrul
/► r oT i, N
KER VE,.
AN
y VOR91000A
L. 4y .oG
cc qz
sl V�CJ_
AV 0
io
DR
• '� ''+ \fes \'Q
Z �
/1A
w cc
o��
Exhibit B
MAXIMUM MON'T'HLY RESIDENTIAL AND COMMERCIAL RATES
• RESIDENTIAL RATES :
32 gallon cans Monthly Fee
1 can once a week $19 . 86
2 cans once a week $35 . 65
3 cans once a week $50 . 00
4 cans once a week $64 . 00
40 gallon cans Monthly Fee -
1 can once a week $45 . 20
45 gallon cans Monthly Fee
1 can once a week $49 . 30
2 units/2 cans $40 . 20
• COMMERCIAL RATES :
30 gallon can once a week $21 . 00
Material other than can use :
Dry $21 .45/cubic yard
Wet $22 . 10/cubic yard
382732.6 September 11, 1997
Kensington - Bay View
New Franchise Agreement
Exhibit C
PROJECTED EXPENSES IN CALENDAR YEAR 1998
ON WHICH INITIAL RATES ARE ESTABLISHED
OPERATING EXPENSES:
Salaries and Benefits $337, 554
Legal Fees 10, 000
Dump Expense (Gate Fees) (1) 108,202
Depreciation 22,204
Insurance 25, 577
Accounting 10, 800
Parts and Tires (+5%) 23, 062
Rent 17 , 551
Truck Rental 32,698
Diesel Fuel 14,000
Debris Box Rental 7 ,840
Postage 4,127
Licenses - Trucks 4, 019
Office 3,487
Repairs & Maintenance 2, 557
Telephone 1, 578
Other General & Operating (+ gasoline) 6,267
TOTAL OPERATING EXPENSES $631, 523
Allowance for Profit (12%) 75, 783
Pass-through Expenses
- County Fee (3% of• Req'd Rev) 20, 899
- District Fee (2% of Req'd Rev) 13, 933
- County Hazardous Waste Fee - current 4, 000
- County Hazardous Waste Fee - reimbursemen 2, 194
of prior charges of $4387 over 24 months
Audit Fees 12 , 300
53, 326
Less: Recycling & Other Fees (64, 000) (2)
Benchmark Level Revenues to be
Raised from Collection Rates $696, 631
(1) $36/ton for refuse, $32/ton for greenwaste.
(2) Recycling and other revenues based on avg. of
three (3) previous years (1994, 1995, 1996) .
exhbtc&d.wk4
f 08/17/97
Kensington - Bay View
New Franchise Agreement
Exhibit D_
ASSUMPTIONSREGARDING AND LIMITATIONS ON COSTS AND EXPENSES
i. Salaries and B -n s - Based on five (5) full time employees,
1 garbage route with 2 workers (1 driver and 1 helper)
1 recycling route with driver
1 officer worker, and
1 president ($80,000 salary; no benefits) 3% increase per year
Iillacated employees
1 mechanic (1 day per week) $314.32
Purr Time As needed helpers and drivers for yardwaste and general pickups.
2 yardwaste drivers and 2 yardwaste helpers
5 days per week, 12 weeks per year (monthly)
Cost:
Drivers- $30.96 per hour
Helpers- $28.91 per hour
2 . I2ump._ExpPrLsr_ Based on $36 per ton for refuse and $32 per ton for
yardwaste at West Contra Costa County Sanitary Landfill
3. D_eprsiatian_ Based on the following equipment:
12/31/96 Annual
Net Book Value Depreciation*
Equipment . $ 71,355 $ 22,204
* Straight line, seven (7) years.
Excludes fully depreciated assets purchased before 1991.
4. Affilied Company Transactions -
Rent - Office and yard $ 1,462.55 per month
Truck Rental** $ 36.88 per hour
Debris Box Rental $ 80.00 per load
** Monthly yardwaste service assumes 2 trucks required
60 days per year, or 960 truck/hours per year.
exhbtc&d.wk4
Exhibit E
SCOPE OF COLLECTION/RECYCLING SERVICES
SOLID WASTE COLLECTION
Backyard weekly service .
RECYCLING
A. Weekly curbside recycling collection.
Materials collected: aluminum cans; steel and tin
plated cans; glass containers; PET bottles; clear HDPE bottles;
colored HDPE bottles; polystylene; plastic film; cardboard;
newspaper; mixed paper (includes magazines) .
Containers : 3 five-gallon plastic buckets for each
customer; replacements at cost .
B . Monthly curbside greenwaste collection on customer' s
regular garbage day. No yardage limit . Materials must be
bundled, tied or placed in boxes or trash containers . (Boxes and.
containers will be emptied and not removed. ) Greenwaste in
plastic bags not accepted.
GENERAL PICK UP
One curbside pick up annually in September. Limit : 1-1/2
cubic yards bundled, tied or bagged. Greenwaste not accepted.
COMMUNITY CLEAN UP
Up to three 20-cubic yard drop boxes annually.
SPECIAL JOB PICK UPS
Customers may schedule special pick ups (e.g. , old
refrigerators) for a separate charge .
REUSABLE MATERIALS PICK UPS
If District directs, Bay View will conduct scheduled pick
ups of reusable materials (e .g. , old clothes,-- toys) in
coordination with organizations such as Good Will Industries and
Urban Ore . Compensation for such pick ups shall be in addition
to rates shown on Exhibit B.
382732.6 September 11, 1991
UNINCORPORATED CONTRA COSTA COUNTY DIVERSION DATA
Service Provider:
Program Type:
Unipcorporated Service Area:
Is the Data from an annual report (Yes or No)?
If not, which quarter of the year (e.g. 1,2,3 or 4)?
Year:
MATERIAL TYPES
ENTER TONNAGES BY MATERIAL TYPE
Abbreviations are shown in parenthesis
PAPER PLASTIC
Corrugated Cardboard (OCC): PET (PET):
Newsprint(ONP): HDPE (HDPE):
High grade (HG): Polystyrene(PS):
Mixed Paper(MP): Other(P-3):
Magazines (OMG):
GLASS OTHER WASTES
CA Redemption Value Cont. (CRV): Textiles(TX):
Other Glass (GLS): Inerts (INRT):
White Goods (WG):
METAL Reusables(REUSE):
Aluminum Cans (UBC): Other(OTHER):
Tinned cans and ferrous (Fe):
Other non-ferrous (N-Fe): Notes:
ORGANICS
Yard waste(YW):
Food waste(FW):
Wood waste(WW):
Completed by:
Firm or Agency Date: Page of
Phone No.