HomeMy WebLinkAboutMINUTES - 05091995 - 2.3 TO: BOARD OF SUPERVISORS
FROM: VAL ALEXEEFF, DIRECTOR
GROWTH MANAGEMENT& ECONOMIC DEVELOPMENT AGENCY
DATE: MAY 9, 1995
SUBJECT: COMPLETION OF BFI AND GARAVENTA FRANCHISE AGREEMENTS
SPECIFIC REQUEST(S)OR RECOMMENDATION(S)&BACKGROUND AND JUSTIFICATION
RECOMMENDATIONS:.
I. ADOPT final franchise,agreement language for master franchise agreements with BFI and
Garaventa companies.
2. ADOPT final boundaries for BFI franchise area and Garaventa franchise area.
A: Unincorporated North Antioch area. Oral presentation of maps.
B. Unincorporated Southeast Concord area. Oral presentation of maps.
C. Unpermitted, unfranchised portions of East County.
FISCAL IMPACT:
Staff time for administration to be compensated by franchise administration fees.
BACKGROUND/REASONS FOR RECOMMENDATIONS:-
(See page 2)
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CONTINUED ON ATTACHMENT: X YES SIGNATURE: V C/
RECOMMENDATION OF COUNTY ADMINISTRATOR _RECOMMENDATION OF BOARD COMMITTEE
APPROVE OTHER
SIGNATURE(S):
ACTION OF BOARD ON May 9 , 1995 APPROVED AS RECOMMENDED_J� OTHER X
IT IS BY THE BOARD ORDERED that recommendation #1 is APPROVED: and
see Addendum relative to recommendation#2 approval .
VOTE OF SUPERVISORS I HEREBY CERTIFY THAT THIS IS A TRUE AND CORRECT
COPY OF AN ACTION TAKEN AND ENTERED ON THE
UNANIMOUS(ABSENT ) MINUTES OF THE BOARD OF SUPERVISORS ON THE
DATE SHOWN.
AYES: NOES: •
ATTESTED May 9 , 1995
ABSENT:_ ABSTAIN:
PHIL BATCHELOR,CLERK OF THE BOARD OF
SUPE SORS D COU ADMINISTRATOR
VA:dg BY v ,DEPUTY
sw5-9-95.bo
Contact, Val Alexeeff(646-1620)
CC: County Administrator
County Counsel
Community Development
BFI
Garaventa
BFI/Garaventa Franchises
May 9, 1995
Page 2
BACKGROUND/REASONS FOR RECOMMENDATIONS: (continued)
The Board requested these items to return for final disposition. The franchise agreements are
attached and incorporate the following provisions of concern to the Board:
I. Flexibility for the County to implement proposals necessary to meet'AB 939 requirements
recognizing that State'requirements will continue to be a moving target.
a
2. Indemnification from future lawsuits involving waste disposal.
3. Implementation date of August 5, 1996 unless agreementssuggest a different timeframe.
Maps have been prepared indicating customers for BFI and Garaventa to be presented at the meeting.
In addition, Garaventa has prepared maps for franchise of currently unassigned area.
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ADDENDUM
Val Alexeeff, Growth Management and Economic Development
Department, presented the staff report on the completion of the
BFI and Garaventa Franchise Agreements . Mr. Alexeeff commented
on previous charges from the Board of Supervisors relative to the
calculation of the Northeast Antioch and the Concord Clayton
service area, and he commented on the maps that had been
presented by BFI and Garaventa Enterprises delineating the
various service areas in the County.
Ken Etherington, 441 N. Buchanan Circle, Pacheco,
representing BFI, proposed that Garaventa Enterprises would take
over the unincorporated Concord area and BFI would take over the
unincorporated Antioch area and he presented a letter from the
city of Antioch expressing their intent of incorporating the
unincorporated parts of Antioch. Mr. Etherington expressed
agreement with the proposed final wording on the franchise
agreements .
Supervisor Rogers inquired as to whether Garaventa
Enterprises concurred with Mr. Etherington' s proposal .
Mr. Etherington responded that Garaventa Enterprises did not
agree with his proposal .
Mark Armstrong, Gagen, McCoy, McMahon and Armstrong, 279
Front Street, Danville, representing Garaventa Enterprises,
requested that the Board approve the Garaventa Franchise
Agreement and Exhibit A to that agreement, the blue and pink map,
and Exhibit B to the franchise agreement which established the
maximum rates to be charged for commercial and residential
accounts . He expressed that Garaventa Enterprises is in
agreement with all the language in the franchise agreement, and
Mr. Armstrong commented on the display map that had been provided
and the disputed areas of Antioch/Ironhouse area, South Concord,
and the Redevelopment area. Mr. Armstrong expressed frustration
with the last minute provision of the orange colored map by BFI
and the dispute over the Nicols area.
Supervisor Rogers inquired whether Mr. Alexeeff was clear as
to the Board' s division of the service areas .
Mr. Alexeeff responded that it was his understanding that
the Redevelopment area and Bay Point was to go to BFI, that the
Board had asked him to come back with the Antioch and the Concord
area and that the Board' s methodology in the past was to
determine who had a majority of clients in the area. Mr.
Alexeeff commented that after the Board made the decision on the
service areas, he would probably have to do an overlay between
the two maps and see which areas remain in dispute.
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Supervisor Torlakson moved approval of the staff report and
language recommendation on the franchise agreement, using Exhibit
A as a guide for the map, but to reflect on the final map the
area that the Board had previously given to BFI in Bella Vista/
Bay Point per the Board' s previous decision, the Redevelopment
area would go to BFI as previously decided.
Supervisor Bishop requested clarification on the issue of
the CPI on the rate.
Lillian Fujii, Deputy County Counsel, responded to
Supervisor Bishop' s request .
Supervisor Smith clarified his understanding of the motion
to be to adopt the franchise language for both franchise
agreements and adopt North Antioch as part of Garaventa, South
Concord as part of Garaventa, and the unpermitted or unfranchised
areas of East County as part of Garaventa.
Mr. Armstrong clarified that essentially that is Exhibit A
with the exception of the Redevelopment area which would be
whited with typewriter white out to reflect the same color as the
Bay Point area.
Syl Garaventa, Vice-President of Garaventa Enterprises,
commented on the dispute in the Nicols area, and he expressed
that there was no objection to giving BFI the Redevelopment area.
The Board discussed the Nicols area dispute with Mr.
Alexeeff .
Mr. Etherington advised that he would give up the twelve
customers in the Nicols area to Garaventa Enterprises .
Supervisor Rogers inquired whether all the disputes had been
resolved.
Mr. Alexeeff responded that there was an area at the tip of
the Clayton area that appeared to be the Regency Mobile Home
Park. Mr. Alexeeff also advised that he presumed that what the
Board might be' inclined to do is to adopt Exhibit A and to adopt
BFI map where it did not conflict with Exhibit A, and if the
Board were to adopt both maps, he presumed that the map that has
the boundary of Pacheco and Pleasant Hill are the accurate
boundaries but he would have to check his maps .
Mr. Etherington proposed approval of the BFI map after the
Clyde North Concord area was cleaned up.
Supervisor Rogers proposed that Mr. Alexeeff return later in
the day after checking his maps to advise on any disputed areas
and wrap the matter up later today.
Supervisor Torlakson advised that he felt it was done with
the adoption of both maps with the understanding that Exhibit A
is the main display and that the other areas will be adjusted in
B.
Mr. Garaventa and Mr. Etherington expressed concurrence on
the area off of Marsh Creek, that Garaventa serves the trailer
park and BFI would service up to the trailer park.
Mr. Armstrong advised that could be whited out .
Mr. Etherington expressed agreement that BFI was serving
everything that goes up to the trailer park and Garaventa serves
the trailer park.
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. . ORIGINAL
FRANCHISE AGREEMENT WITH
GARAVENTA ENTERPRISES
CONTRA COSTA COUNTY
TABLE OF CONTENTS
1_. EFFECTIVE DATE, PARTIES. . . . . . . 1
2 . DEFINITIONS. . . . . . . . . . . . . . . . . . . . . 1
a. Agreement. . . . . . . . . . . . . . . . . . 1
b. Act. 1
c. Board. *
d. Commercial Solid Waste. . . . . . . . . . . . . . 1
e. Contractor: . . . . . . . . . . . . . . . . . . 1
f. County. . . . . . . . . . . . . . . . . . 1
g. Customers . . . . . . . . . . . . . . . . .. . . 1
h. Designated Waste. . . . . . . . . . . . . . 1
i . Franchise Area. . . . . . . . . . . . . . . . . 2
j . Hazardous Waste. ' . . . . . . . . . . . . .. 2
k. Industrial Waste. . . . . . . . . . . . . . . . . . . 2
1 . Infectious Waste. . . . . . . . . . . . . . . 2
M. Recycle or Recycling. . . . . . . . . . . . . . . 3
n. Residential Solid Waste. . . . . . . . . . . . 3
0. Septage. . . . . . . . . . . . . . . . . . . . 3
P. Solid Waste. . . . . . . . . . . . . . . . . 3
q. Waste Stream. . . . . . . . . . . . . . . . . . 3
3 . TERM. . . . . . . . . . . . . . . . . . 3
4 . INTENT TO REGULATE ALL RECYCLING AND RESIDENTIAL AND
SOLID WASTE COLLECTION, REMOVAL AND/OR DISPOSAL. 3
5 . EXCLUSIVE PRIVILEGE AND DUTY. . . . . . . . . . 3
6 . EXCEPTIONS TO EXCLUSIVE PRIVILEGE. . . . . . . . . 4
7 . CONTRACTOR' S DUTY TO MAINTAIN RECORDS; COUNTY'S
RIGHT TO EXAMINE RECORDS. . . . . . . . . 4
8 . RATES. . . . . . . . . . . . . . . . . . . . . 5
9 . RATE APPLICATIONS . . . . . . . . . . . . . 6
10 . OPERATION BY CONTRACTOR. . . . . . . . . . . . . . . . 7
11 . LIMITATION ON TIME AND MANNER OF COLLECTION. . . . 7
12 . .. CUSTOMER SATISFACTION, AB 939 AND EFFICIENCIES IN
OPERATION. . . . . . . . . . . . . . . . . . . 8
13 . CUSTOMER SERVICE STANDARDS. ' . . . . . . . . . . . . . . 9
May 2, 1995 i
14 . LOCAL ADVISORY BOARD . .. . . . . . . . . . . . . . . . . 10
15. CUSTOMER COMPLAINTS. . . . . . . . . . . . . . . 10
16 . BILLING. . . . . . . . . . . . . . . . . . . . . . . . 10
17 . RECYCLING. . . . . . . . . . . . . 10
18 . ' FREE SERVICE FOR COUNTY. . . . . . . . . .. . . . . . 11
19 . FRANCHISE AREA-WIDE COLLECTION. . . . . . . . . . . . 11
20 . PARTICIPATION. IN COMMUNITY CLEAN-UP PROJECTS. . . . . . 11
21. DISPOSAL AND WASTE STREAM CONTROL.. . . . . . . 12
22. MISCELLANEOUS OBLIGATIONS OF CONTRACTOR. . . . . . . . 12
23 . ADMINISTRATIVE SERVICES AND FRANCHISE FEES. : 12
24 . HAZARDOUS WASTE. . . . . . . . . . . . . . . . .. . 12
25. PRELIMINARY DISPUTE RESOLUTION. . . . . . . . . . 13
26 . FAITHFUL PERFORMANCE BOND. . . . . . . . . . ` . . . 13
27 . INSURANCE. . . . . . . . . . . . . . . . . . . . . . 13
28 . INDEMNIFICATION. . . . . . . . . . . . . . . . . . . 14
29 . ATTORNEY' S FEES. . . . . . . . . . . . . . . . . . 15
30 . ASSIGNABILITY. . . . . . . . . . . . . . . . . . . . 15
31 . INVOLUNTARY ASSIGNMENT. . . . . . . . . . . 16
32 . NOTICE PROVISIONS. . . . . . . . . . . . . . 17
33 . ANNEXATION AND CHANGE OF FRANCHISE AREA BOUNDARIES . 17
34 . AFFILIATED ENTITIES. . . . . . . . . . . . . . . . . . . 18
35 . BREACH AND TERMINATION. . . . . . . . . . . . . 18
36 . EMERGENCY: . . . . . . . . . . . . . . 20
37 . COMPLIANCE WITH FEDERAL, STATE AND LOCAL LAWS. . . . . . .20
38 . ,.AMENDMENT OR MODIFICATION. . . . . . . . . . 20 -
39 . POLICE POWERS . . . . . . . . . . . . . . . . 20
May 2, 1995 ii
40. CONTEST OF AGREEMENT'S TERMS. . . . . . . . . . . . 20
41 . SEVERABILITY. . . . . . . . . . . . . . . . . . . . . 20
42 . WAIVER.. . . . . . . . . . . . . . . . . . . . . . . 21
43 . SURVIVAL OF OBLIGATIONS. . . . . . . . . . . . . . 21
44 . NEW AGREEMENT. . . . . . . . . . . . . . . . . . . . 21
45 . ENTIRE AGREEMENT. .- . . . . . . . . . . . . 21
46 . OPERATIVE DATE. . . . . . . . . . . . . . . . 21
May 2, 1995 iii
FRANCHISE AGREEMENT
WITH GARAVENTA ENTERPRISES
1 . EFFECTIVE DATE, PARTIES. This Agreement is binding
between the, County and the below named Contractor and is
effective, on the date last signed by the parties hereto.
- 2 . DEFINITIONS. As used herein, the following terms shall
have the meanings set forth below:
a. Agreement. Agreement means this Agreement by and
between the County and Contractor for the collection, removal,
and disposal of solid waste and the recycling of material .
b. Act. Act means the California Integrated Waste
Management Act of 1989 (Public Res . Code, S 40000 et seq. ) and
all rules and regulations adopted under any of those sections, as
such sections, rules and regulations may be amended from time to
time in the future.
C. Board. Board means the Board of Supervisors for
the County of Contra Costa.
d. 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. ] ) .
e. Contractor. Contractor means Garaventa
Enterprises, a California Corporation, and is the entity which
has been granted an exclusive franchise pursuant to theterms and
conditions set forth herein. Silvio Garaventa, Sr. and Mary C.
Garaventa own 100% of the stock in Garaventa Enterprises .
f. County. County means the County of Contra Costa.
g. Customers . Customers means those who have
contracted with the Contractor for the collection of materials
for recycling and/or for the collection, removal, or disposal of
Solid Waste, pursuant to this Agreement and applicable ordinances
of County, including mandatory subscription ordinances .
h. 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.
May 2, 1995 1
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i . Franchise Area. Franchise Area means the
geographic area generally described in Exhibit A to this
Agreement with Garaventa Enterprises, which Exhibit, dated March,
1995 and prepared by McGill-Martin-Self, is attached hereto and
incorporated herein .by reference and" illustrated in the six
hundred ( 600)- scale maps to be maintained and available for
inspection at the Community Development Department. Exhibit A
and said six hundred (600) - scale maps shall be amended from time
to time to reflect changes of boundaries of the Franchise Area in
such a manner as to identify each alteration to the Franchise
Area "and the effective date thereof.
j . - Hazardous Waste. ' Hazardous Wastes include any
waste material or mixture of wastes which is toxic, corrosive,
flammable, an irritant, 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 an approximate 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) . ( 14 Cal .Code Regs . , § 17225 . 32 . )
k. Industrial Waste. Industrial Waste includes all
types of Solid Waste which result from industrial processes and
manufacturing operations and/or which originates from such
facilities .
1 . Infectious Waste. Infectious Wastes include:
( 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, as is also defined in
Section 314-(d) of the California •Administrative Code, Title 17 .
( 14 Cal .Code Regs . , § 17225 . 36 . )
May 2, 1995 2
M. Recycle or Recycling. Recycle or Recycling means
the process of collecting, sorting, cleaning, treating and
reconstituting materials and recovering them so that they may be
used in the form of raw material for new, reused, or
reconstituted products .
n. 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.
o. 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.
p. - Solid Waste. Solid Waste has the meaning set
forth in Section 40191 of the California Public Resources Code as
of the date of execution of this Agreement. Solid Waste
includes, but is not limited to, all putrescible and
nonputrescible solid, semisolid, and liquid wastes, including
garbage, trash, refuse, paper, rubbish, ashes, demolition and
construction wastes , abandoned vehicles and parts thereof,
discarded home and industrial appliances, dewatered, treated, or
chemically fixed sewage sludge which is not hazardous waste,
manure, vegetable or animal solid and semisolid wastes and other
discarded solid and semisolid wastes . "Solid Waste" does not .
include infectious, designated, and hazardous waste, except
household hazardous waste.
q. 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, at
County's discretion, 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 35 (Breach and
Termination) , the term of this Agreement and the exclusive
franchise granted hereunder shall be 20 years, commencing on the
effective date first mentioned in section 1 of this Agreement.
4 . INTENT TO REGULATE ALL RECYCLING AND RESIDENTIAL AND
SOLID WASTE COLLECTION, REMOVAL AND/OR DISPOSAL. The parties
hereto agree that County currently has jurisdiction to regulate
the . collection, removal and disposal of all Solid Waste, . and the
recycling of all material, in the Franchise Area. The intent of
this Agreement is to regulate Solid Waste handling service and
recycling of material ' in the Franchise Area.
5 . EXCLUSIVE PRIVILEGE AND DUTY. To the extent allowed by
May 2, 1995 3
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law, County hereby grants to Contractortheexclusive privilege
and duty to collect and remove for disposal and recycling, all
residential and commercial Solid Waste, including recyclable
materials, within the Franchise Area 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. ,
The Franchise Area may be expanded or reduced in size by
mutual agreement of the parties, or as provided in Section 33
(Annexation and Change of Franchise Area Boundaries) of this
Agreement.
6 . EXCEPTIONS TO EXCLUSIVE PRIVILEGE. The exclusive
privilege granted by this Agreement shall not apply if:
(a) A person or entity generates Solid Waste,
including recyclable materials, and personally collects, removes,
and disposes or recycles such in a clean and sanitary manner in
conformance with all applicable laws and regulations, including
mandatory subscription ordinances. This exception shall not
apply to a person who incurs a net cost of collection to a third
person in the above described activities; or
(b) A person or entity contracts with a third person
for the removal and disposal or recycling of inorganic refuse or
garden waste (a "Non-Franchised Contractor" ) and such removal and
disposal or recycling is solely incidental to work such as
remodeling or gardening occasionally performed by or for the
customer. This exception shall not apply if the Non-Franchised
Contractor incurs a net cost of collection to any third person in
connection with its collection and/or disposal of said Solid
Waste.
7 . CONTRACTOR'S DUTY TO MAINTAIN RECORDS; COUNTY'S
RIGHT TO EXAMINE RECORDS. Contractor shall maintain a proper set
of books and records in accordance with generally accepted
accounting principles, accurately reflecting the business done by
it under this Agreement.
Contractor shall further maintain and make available to
County, upon its request, records as to number of Customers,
total and by type,- route maps, service records and other
materials and operating statistics in such manner and with such
detail as County may require. County shall treat the information
required by this paragraph that affects the competitive position
of the company as confidential information to the extent
permitted by law.
County may at any time, during the term of this Agreement,
have the books and records of the Contractor examined by -a County
Agent or Agents appointed for that purpose by the County. County
May 2, 1995 4
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shall give thirty (30) days ' written notice to the Contractor of
such examination date. . County expenses incurred under this
section shall be. paid by Contractor subject to their recovery
through the rates allowed by the , County hereunder.
The information required by this section shall pertain to
Contractor's operations covered and regulated by this Agreement,
and nothing contained herein shall require the Contractor to
provide the County with information pertaining to the
Contractor's operations which are not regulated by the County,
except 'in conformance with this section.
County' s Agents may examine Contractor' s books, records and
financial statements pertaining to operations not regulated by
the County as may be reasonably required for the sole purpose of
gathering information necessary to allow the Agents to ascertain
whether income, expenses, assets and liabilities are reasonably
and consistently allocated among -operations regulated by County
and those not regulated by the County. Contractor shall obtain
County' s written approval of its method of segregating its
financial records between County-regulated and non-County
regulated operations. County shall not unreasonably withhold
such approval .
To the extent allowed by law, information gained from
examination of records pertaining to operations. not regulated by
the County shall be treated by County and its agents as
confidential information.
For the review of books and other financial records
necessary to verify the Contractor' s income, expenses, assets and .
liabilities, "County Agent" shall mean County employees or an
independent Certified Public Accountant or public accountancy
firm. For all other information or records, including the
results of financial verification, "County Agent" shall mean any
consultant designated by the County or County employees .
Nothing in this section will prevent County from allowing
public access to County records as provided for under the
California Government Code, and in the event any dispute arises
as to the public access to information provided by Contractor
under the terms of this Agreement, the County shall in its
discretion provide public access to said information according to
law or tender the defense of any claims made against the County
concerning said information to Contractor. Prior to releasing
any information pursuant to this paragraph, County shall make a
good faith effort to notify Contractor of the intended release.
8. RATES . Rates shall be fixed by the County from time
to time. In determining the rates, the County shall consider
fairness to both Contractor and the Customers . Reasonable costs
incurred by Contractor pursuant to this Agreement shall be
May 2, 1995 5
designated as "pass-through" or "subject to reasonable profit" as
determined by the County during the rate review process . Rates
fixed by County shall be maximum rates which Contractor may
charge the Customers . The maximum rates fixed by the County at
this time shall be the highest commercial rates and the highest
residential rates being charged by Garaventa Enterprises within
the Franchise Area immediately before the effective date of this
Agreement, as set forth in the letter and enclosures from
Garaventa Enterprises to Val Alexeeff dated April 14, 1995,
attached hereto as Exhibit B and -incorporated herein by this
reference. Nothing in this Agreement precludes Contractor from
charging rates less than° the maximum rates fixed by the County.
Pending a rate review by the County, the maximum rates chargeable
shall be those rates charged on the effective date of this
Agreement.
Following consultation with the Contractor and examination
of industry norms and trends, the County, in its sole discretion,
shall determine the method of determining Contractor
profitability.
All costs associated with County review and processing of
rate applications shall be paid by Contractor and shall be
allowed as a pass-through cost in the rate application process .
Contractor will offer a mini-can program at reduced rates as
directed by the County following consultation with Contractor.
9 . RATE APPLICATIONS. Rate applications shall be prepared
in accordance with such forms and in. such detail as required by
the County. The application shall include one reproducible hard
copy, 15 hard copies bound in an appropriate manner and one copy
on disk formatted pursuant to County specifications .
Contractor shall submit its first rate application as
.directed by the County. A11 rate applications shall include
information "from the previous rate change to the present, or such
other period of time. as is selected by the County. Every three
years, a rate application shall be accompanied by an audited
financial statement covering the entire period since the last
audited rate application together with supporting documentation
as required to segregate its County regulated activities from
other business activities .
The County Administrator may, in writing, allow the rate
application to be submitted without an audited financial
statement provided the County Administrator is satisfied that the
level of verifiable detail allows for adequate assessment of the
Contractor' s income, expenses, assets and liabilities .
Rate changes may be initiated by County at any time or by
Contractor under the conditions allowed in this section. In
May 2, 1995 6
either case, Contractor shall prepare a rate application in
accordance with the requirements of this section.
If the rate change is initiated by County, the Contractor
shall submit its rate application to County within 60 days of
County's notice to Contractor.
If the rate change is initiated by Contractor, it shall be
submitted no more than once a year under normal operating
conditions . The date of Contractor initiated applications shall
be standard, year by year; such date to be determined upon mutual
agreement of the. parties and reasonably -related to the fiscal
year of Contractor.
In the event that- the rate change that would be requested by
Contractor is no more than the change in the Consumer Price Index
for All Urban Consumers for the San Francisco Bay Area for that _
fiscal year of Contractor, , Contractor may increase its rate up to
such amount and not request a rate change from the County.
Contractor may defer a rate application pursuant to this
paragraph for a maximum of two consecutive years .
In the event that Contractor must make significant changes
in its operations or experiences significant changes in costs or
revenue not under its control, Contractor may submit a rate
application. Contractor shall provide documentation for the need
for such rate application relative to those changes . The
application will thereafter be considered by the Board.
10. OPERATION BY CONTRACTOR. Contractor shall furnish all
necessary equipment (excluding containers for single-family
residential wastes) for services provided pursuant to this
Agreement in the Franchise Area and shall maintain such equipment
in a sanitary condition at all times . Contractor shall furnish
all necessary labor in connection with -the operation of a Solid
Waste collection system in the Franchise Area.
The Contractor, in performance hereof, shall use trucks with
covered, water-tight truck bodies constructed of sufficient
strength to withstand a fire within, without endangering adjacent
property. Trucks, drop boxes, bins, or similar types of
equipment shall be kept clean and in good repair. Contractor- ,
shall have its name. and telephone number on the side of each
truck and on each drop box, bin or similar type equipment
provided by Contractor.
11. LIMITATION ON TIME AND MANNER OF COLLECTION.
Contractor shall systematically collect Solid Waste, .and to the
extent . permitted by this Agreement, materials for recycling from
its Customers . Frequency, place of pickup (e.g. , curbside,
backyard,. etc . ) or any other manner of collection shall be
subject to the review and approval ' of the Director of Community
May 2, 1995 7 '
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Development. Upon commencement of service .and upon changes in
collection day schedules, Contractor shall provide each customer
with notice of the scheduled collection day. Contractor shall
not collect Solid Waste from an inhabited dwelling or dwelling
unit between the hours of 7 : 00 p.m. and 4 : 00 a.m. , except that if
a dwelling unit is part of a collection route that predominately
serves commercial accounts, collection may begin as, early as
3 : 00 a.m.
12 . CUSTOMER SATISFACTION, AB 939 AND EFFICIENCIES IN
OPERATION. (a) From time to time, at its discretion, County may
examine Contractor' s operation in order to evaluate whether the
Contractor is operating 'at a satisfactory level of efficiency and
customer satisfaction. Contractor agrees to cooperate in any
such examination and shall permit County representatives to
inspect, at Contractor' s principal place of business, such
information pertaining to Contractor's obligations hereunder as
County may require, including, but not limited to, such things as
customer inquiry records, collection routes and equipment
records . Access to Contractor' s records shall be subject to
Paragraph 8 (Contractor's Duty to Maintain Records; County' s
Right to Examine Records) .
(b) Notwithstanding any contrary provision in this
Agreement; the County shall have the right to direct Contractor
to 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 requested
by the County 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 County harmless
from and against any and all liability to the State of California
for the County' s noncompliance with the requirements of the
California Integrated Waste Management Act due in whole or
material part to the material failure of Contractor to properly
carry out the reasonable directives of the County to Contractor
regarding collection and disposition of Solid Waste and
recyclable material; provided, however, that Contractor shall not
be obligated to carry out any such directive (and shail not
indemnify nor hold the County harmless from any resulting
liability) if the County fails to agree to allow Contractor its
reasonable costs (including a reasonable profit) associated with
carrying out such directives .
(c) .County may require Contractor to develop plans for and
conduct programs on alternative methods of Solid Waste
collection, including pilot programs of limited scope, or may
require additional programs, for the purpose. of improving
May 2. 1995 8
service, increasing customer satisfaction,- and meeting diversion
requirements . County may also require Contractor to implement "
efficiencies in its operation upon written notice from County.
The notice shall allow Contractor a reasonable period of time to
implement the specified service (efficiency) . Should County
require commencement of such a program as outlined in this
paragraph, Contractor agrees not only to do those things
specified herein, but also to act at the direction of the County
on other matters that may be necessary for the success and
efficiency of the project, such as public information and
notification. In the event that County elects to direct
Contractor to discontinue any service theretofore performed by
Contractor at the direction of County hereunder, County shall
allow Contractor to recover its reasonable capital equipment
costs and other reasonable" costs arising upon termination of the
service. Rate adjustments applicable solely to programs
instituted pursuant to this subsection (c) initially shall be
established. at the time the County authorizes implementation of
the program or efficiency.
13 . CUSTOMER SERVICE STANDARDS. Contractor shall provide
prompt, efficient, continuous and professional service to its
Customers . Contractor shall have a phone system with sufficient
capacity to promptly respond to telephone calls for at least 8
hours a day during weekdays, excluding those holidays "observed by
Contractor. Telephone numbers for customer service shall be
located in the local telephone directory. All telephone lines
for customer service shall be toll free to Customers .
Not less than once every three years 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 Director of Community Development. A
copy of the survey results shall be sent to the County within
sixty "(60). days of completion of the survey. Nothing in this
paragraph shall limit the right of the County to conduct
additional surveys . The' Contractor shall cooperate with the
County in such cases .
Upon initiation of service, and at least once a year,
Contractor shall send or deliver to Customers information
concerning the conditions of service, including, but not limited
to, rates, fees, charges, service options, payment options,
discounts ( if any) , days 'of collections, the amount and manner of
refuse to be collected, service level and inquiry/complaint
procedures, including the name, address and local telephone
number of Contractor and the name, address and _telephone number
of the County Community Development Department. The form and
' May 2, 1995 9
y
content shall be subject to the review and approval of the
Director of Community Development:"
14. LOCAL ADVISORY BOARD. The Board of Supervisors may
designate an existing committee to represent the Franchise Area,
or form an advisory body to advise the Board on the performance
of the Contractor in the community, local service interests and
needs, and rate applications. In all cases, the Committee shall
hold its meetings at a time and place convenient to the public.
The Committee shall keep a record of all public comments and
submit such comments when reporting to the Board.
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 Director of
Community Development.
16 . BILLING. The form and content of customer bills shall
be subject to the review and approval of the Director of
Community Development.
Bills for services may be monthly, bimonthly or quarterly as
determined by County. Contractor may bill its customer in
advance or in arrears . The County may establish billing period
options for Customers upon a finding that such options are cost-
effective and meet a community need.
Full payment for drop boxes may be required by Contractor
prior to delivery of the drop box to the customer.
The County shall have the right to direct the Contractor to
change or alter its billing system in which event the marginal
additional expenses incurred by the Contractor in the
implementation of the change, with regard to the accounting, ,
printing, mailing, loss of use of funds, or otherwise, shall be
recoverable by the Contractor through the rates allowed by the
County provided such expenses are reasonable. Contractor shall
inform customers of all rate changes at least 30 days prior to
their effective date. A copy or facsimile of such notice shall
be provided to County at the time of customer notification.
17 . RECYCLING. County grants to Contractor the right and
obligation to operate recycling programs, including curbside
pickup of recyclable materials, as determined and designated by
County, subject to .County' s right to terminate this grant to
Contractor pursuant to the provisions of this section.
Contractor has instituted and is implementing a recycling
program including regular curbside pickup at all single family
residences of at least aluminum, tin, newsprint., glass bottles,
non-colored HDPE and PET. This program is currently operating to
May 2, 1995 10
the satisfaction of County; however, .County has the right at
anytime to modify said program or require new programs as
provided at Section 12 (b) hereof.
Contractor shall maintain and provide to the County records-
relating to its recycling programs as directed by 'the Director of
Community Development.
Contractor's provision of recycling service shall be
reviewed within three ( 3) years of the effective date of this
Agreement and, at County's discretion, every five years
thereafter. If County determines that continuation of such
service by Contractor is not consistent with the County' s
:ratepayers best interest, but not as a result of Contractor's
failure to satisfactorily provide recycling services, Contractor
shall be allowed to recoup its unamortized capital expenditures
as follows . Contractor shall make a good faith effort to sell
all disposable assets acquired in furtherance of the, program for
their fair market value. If income derived from the sale is
insufficient to cover the unamortized costs of such assets,
Contractor may transfer those losses together with net operations
profits or losses to its general account and submit a rate
application to cover such losses .
If County determines that Contractor has failed to
satisfactorily provide and perform recycling services, County 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 County or County' s ratepayers .
18. FREE SERVICE FOR COUNTY. Contractor shall provide
Solid Waste collection and disposal services at those County
buildings designated by the Director of Community Development
from time to time, at no charge to the County.
'19 . FRANCHISE AREA-WIDE 'COLLECTION. In addition to its
. regular collections, . Contractor shall -provide two annual
collections for each region in the Franchise Area as determined
by the Community Development Director. Said collections shall be
made each year throughout the term of, this Agreement in
accordance with practices and procedures established by
Contractor and subject to the approval of the Community
Development Director.
20. PARTICIPATION IN COMMUNITY CLEAN-UP PROJECTS.
Contractor shall provide, upon direction of the Community
Development Director, . Solid Waste drop boxes or equivalent
containers for community or other clean-up projects within the
Franchise Area. The .Contractor' s obligation shall be limited to
the equivalent of ten ( 10) 20-cubic yard drop boxes per year,, per
region in the Franchise Area.
May 2, 1995 11
' r
21. DISPOSAL AND WASTE STREAM CONTROL. Contractor shall be
solely responsible for the disposal of the Solid Waste collected
pursuant to this Agreement. County has complete authority and
control over the Franchise Area waste stream. County may, at its
sole discretion upon providing 60 days ' notice to Contractor,
direct the Solid Waste collected under this Agreement to be
delivered to any site or facility of its choosing. This shall
include the right of the County to direct the Solid Waste to be
delivered to any County designated transfer station, disposal
site, transformation facility and/or resource recovery facility.
It is understood that County -may contract with any party, public
or private, to commit the waste stream from the Franchise area,
and that Contractor's contracts may not bind County, nor need
County consider such other contracts for any purpose.
Notwithstanding the above, Contractor may propose, and
County may but need not consider, waste management and/or
disposition alternatives which are cost effective. In
determining or comparing costs, County shall consider all
relevant factors, including but not limited to, transportation
costs, closure and postclosure requirements, costs and
liabilities, disposal fees, fees levied by governmental entities,
including benefits to Contractor's customers from paying such
fees, costs of compliance with ordinances and other local
.requirements, and long-term costs, including degree of control
over future costs .
22 . - MISCELLANEOUS OBLIGATIONS OF CONTRACTOR. Contractor
shall assist County in its enforcement of its mandatory
subscription ordinance by providing County with the addresses of
properties not subscribing to collection service within -the
Franchise Area and by providing collection service to such
properties upon written request by the County.-
23 .
ounty.23 . ADMINISTRATIVE SERVICES AND FRANCHISE FEES. Contractor
shall pay to the County for (a) the services provided by the
County in administering this Agreement, (b) for services and
programs pertaining to Solid Waste. provided by the County, and
(c) additionally as directed by the County, a percentage of its
gross annual revenues generated from the performance of such
waste collection services under this Agreement. Such percentage,
time and frequency of payment shall be established by County
from time to time. Said sums shall be payable from the
Contractor to the County upon. the inclusion of the administrative
service charge in the allowed rate and upon the collection of
said rate by the Contractor. Such administrative and program
services and any franchise fees shall be considered a reasonable
cost and subject to "pass-through" as .described in Section 8 on
Rates .
24 . HAZARDOUS WASTE. The parties hereto recognize that
federal, state and local agencies with responsibility for
May 2, 1995 12
defining hazardous waste and for regulating the collection,
handling or disposing of such substances are continually
providing new definitions, tests and regulations . concerning these
substances . Under this Agreement, it is Contractor' s
responsibility to keep current with the regulations and "tests on
such substances and to identify such substances and to comply
with all federal, state and local regulations concerning such
substances .
Contractor agrees to provide to County upon its request,
Contractor's program for identifying hazardous waste and
complying with all federal, state and .local statutes and
regulations dealing with hazardous waste.
Contractor shall make every reasonable effort to prohibit
the collection and the disposal of hazardous waste in any manner
inconsistent with applicable law.
25 - PRELIMINARY DISPUTE RESOLUTION. If Contractor has a
question as to the interpretation of this Agreement, it shall
submit a written request to the Director of Community Development
for a determination of the issue. The Contractor shall provide
and submit such information" as the Director of Community
Development may request or require to make the requested
determination." The written determination of the Director of
Community Development may be appealed to 'the Board of Supervisors
pursuant to Ordinance Code Chapter 14-4 .
26 . FAITHFUL PERFORMANCE BOND. Contractor shall submit to
County simultaneously with the execution of this "Agreement a
corporate surety bond in the amount of $10,000. 00, provided
however, that the Board may increase this .amount not more often
than every three years to reflect changes in the Consumer Price
Index for All Urban Consumers for the San Francisco Bay Area.
The bond shall be executed by a ' surety company licensed to do
business in the State of California and acceptable to County.
The bond shall be approved by County and shall be payable to
County. The condition of the bond shall be that Contractor will
faithfully perform the duties imposed by ordinance, this
Agreement and the rules and regulations of County. Any action by
County to proceed against the Bond shall not limit or affect the
right of County to use other remedies available . to County under
the Agreement, or in courts of law or equity. Notwithstanding
the foregoing, in lieu of the corporate surety bond, Contractor
may provide to' County a letter of credit, cash bond or other
security acceptable to the County Administrator' s Office in a
form satisfactory to the County.
27 . INSURANCE. Contractor shall procure and maintain in
full force and effect at all times during the entire term of this
Agreement the following insurance coverage:
May. 2, 1995 13..
(a) Public liability and property damage insurance
including completed operations, products, contractual, broad form
property damage, personal injury and owned and non-owned
automobile liability with such coverages and limits as may be
reasonably requested by County from time to time, but in no event
with limits not less than the sum of $1 million combined single
limit for each occurrence arising from the services as stated in
the Agreement herein. County shall be named as an additional
insured under such liability insurance policy or policies, if
commercially available.
(b) Contractor shall carry workers ' compensation
insurance for all its employees.
Evidence of liability and workers ' compensation insurance
shall be provided by Contractor by filing with County a
certificate of insurance indicating that County is 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 County thirty (30), days in advance of the effective
date thereof. No cancellation, alteration or change of
beneficiary shall be made without written notice to County.
County reserves the right to examine_ all policies 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 County. Failure of Contractor ' to maintain insurance .in the
manner and amount stated herein and as directed by County
Administrator, subject to the approval of the Board, will
constitute a material breach of this Agreement.
28. INDEMNIFICATION. a. , Complete Indemnification of
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
County, its officers, employees, agents and assigns against any
and all" liability, claims, judgments, or demands, including
demands arising from injuries or deaths of persons and damage to '.
property, 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 .County, and will make good to and reimburse County
for any expenditures, ' including reasonable attorney' s fees, that
County may make by reason of such matters and, if requested by
County shall defend any such suit at the sole cost and .expense of
Contractor.
May 2, 1995 14
The above -promise by Contractor to indemnify, hold harmless
and defend the County expressly- includes, but is not limited to,
all claims, damages (including by 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
attorneys 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, County, its officers,
employees or agents arising from or attributable to any repair,
cleanup or detoxification, or preparation and implementation of
any removal, remedial, response, closure or other plan
(regardless or- 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 County.
The intent of the section is to provide County with the highest
level of protection possible under existing and future laws .
b. Defense of Agreement.. Should any party successfully
challenge the validity of this Agreement, the procedure by which
this Agreement was entered into or the validity of any County
ordinance which authorizes the County to enter into this
Agreement, then in such case the Contractor shall have no cause
of action for damages or any other relief against County as a
result of such successful challenge.
Contractor has the right to defend this Agreement and
County. County has no duty to Contractor to defend .the validity
of this Agreement , or any provision hereof .
29 . ATTORNEY'S FEES. In the event of litigation between
the parties arising hereunder, each- party shall be responsible
for and pay its own litigation expenses, including attorney' s
fees .
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 County.
The term assignment shall include any dissolution; merger,
May 2, 1995 15
consolidation or other reorganization of Contractor, which
results in change of control of Contractor, or the sale or other
transfer by probate proceeding or otherwise of a, controlling
percentage of Contractor' s capital stock to a person not a
shareholder on the date of the execution of this Agreement. The
term "assignment" does not include internal business
reorganizations or formations of new companies by 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 Silvio Garaventa, Sr. , his
spouse, his children, and/or their spouses .
It is understood and agreed by the parties that corporations
(e.g. , Pittsburg Disposal Company) , sole proprietorships (e.g'. ,
Oakley Disposal Company) , and partnerships that are 100% owned by
the shareholders of Garaventa Enterprises may presently and in
the future perform the obligations and responsibilities of the
Contractor in the regions of the Franchise Area. Performance of
the obligations and responsibilities of the Contractor by such
companies shall not be deemed an assignment under this section.
In the event Contractor herein attempts to assign or
subcontract this Agreement or any part hereof or any obligation
hereunder, County shall have the right to elect to terminate this
Agreement forthwith, without suit or other proceeding.
Consent to assignment may not be unreasonably withheld.
However, it is understood that County' s grant of this franchise
to Contractor is partly persuaded by the Contractor' s financial
strength and background in the field of waste management;
therefore, assuming Contractor maintains it ability to. faithfully
carry out its duties hereunder, it is in the County' s ratepayers '
best interest for Contractor to continue under this Agreement.
Following a public hearing, County may assign or transfer
any or all of its rights under this Agreement without the consent
of Contractor to any legally authorized public entity.
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 County with the right to elect to terminate
the Agreement forthwith, without suit or other proceeding:
( 1) If Contractor is or becomes insolvent, or makes 'an
assignment for the benefit of creditors;
(2 ) If Writ of Attachment or Execution is levied on
this Agreement or other property of Contractor such that would
affect Contractor' s ability to perform its duties and obligations
under this Agreement.
May 2, 1995 16
(3) If in any proceeding to which Contractor is a
party, a Receiver is appointed with authority to take possession
of Contractor' s property such that would affect Contractor' s
ability to perform its duties and obligations under this
Agreement.
(4) Except as otherwise provided in Section 31
- (Assignability) , in the event of a probate proceeding where- the
rights of Contractor under the Agreement would pass to another
individual or other -individuals.
32 . - NOTICE PROVISIONS. Any notice required or permitted
under this Agreement shall be in. writing and shall be deemed- to
have been given if delivered personally or ten ( 10) days after
posted by certified mail,. return receipt requested, addressed as
appropriate either to Contractor:
Garaventa Enterprises
Attn: Silvio Garaventa, Sr.
4080 Mallard Drive
Concord, CA 94520
Or to County:
Attention: Director of Community Development
65.1 Pine Street, 4th Floor North Wing
Martinez, California 94553
33 . ANNEXATION AND CHANGE OF FRANCHISE AREA BOUNDARIES.
Contractor shall give notice to County by January 30 of the next
, calendar year of any geographic area in the Franchise Area or
immediately contiguous to the Franchise Area, in which Contractor
has commenced service within the preceding year, notwithstanding
whether Contractor deems that area to be regulated or
unregulated.
Contractor- realizes, that the public agency boundaries may be
altered by virtue of actions taken by the Contra Costa County
Local Agency Formation Commission (LAFCO) . Contractor agrees
that should a municipal corporation lawfully annex territory
which is within the Franchise Area, County may make such
alterations to the Franchise Area as the annexation necessitates .
Should the Franchise Area boundaries be amended, Contractor
agrees that it will abide by any change resulting from the
Franchise Area change. Contractor agrees that the Board of
Supervisors may make such alterations to the Franchise Area as
are necessitated by such Local Agency Formation Commission
actions and shall have no right or claim to damages or other
relief against the County for such alterations to the Franchise
Area. However, nothing herein is intended to abrogate
Contractor' s rights under Public Resources Code Section 49520 or
any successor or similar statute.
May 2, 1995 17
34 . AFFILIATED ENTITIES. Contractor shall provide
information necessary to reasonably satisfy County that the
charges made by any Affiliated Entity are reasonable in
accordance with the provisions of Section 8 (Contractor's Duty to
Maintain Records; County's Right to Examine Records) .
Information gained from examination of books and records
pertaining to operations not regulated by the County shall be
treated by the County and its agents as confidential information.
"Affiliated Entity" shall be defined, for purposes of this
section, as any entity which provides products or services to
Contractor and in which either Contractor or the affiliated
entity owns a ten percent ( 10%) or greater interest in the other,
or where one person or entity owns ten percent- ( 10%) or greater
interest in both. For purposes of this section, the term
"Contractor" shall include Contractor, and if Contractor is an
individual or a group of individuals (partnership) , all immediate
family members, or if a corporation, major shareholders, and if
any major shareholder is an individual, said individuals '
immediate family members. For the purpose of this paragraph,
"immediate family" includes spouses and relatives of the first
degree of sanguinity, and their spouses .
35 . BREACH AND TERMINATION. The Director of Community
Development shall have authority, subject to review by the Board
of -Supervisors upon appeal, to determine -whether a breach of any
provision of this Agreement by Contractor has occurred. Any
waiver of a breach shall not be deemed to be a waiver of any
subsequent breach or to be construed as approval of a course- of
conduct. In the event that the Director determines that a breach
has occurred, County shall give Contractor written notice of the
breach setting forth the breach or default. Contractor shall
have a reasonable period to cure the noticed breach, said breach
not to exceed 60 days . In the event the breach or default is
cured to the satisfaction of the Director of Community
Development within the period of time allotted, the breach shall
not be deemed a material breach. In the event that the Director
of Community Development determines that Contractor has failed to
satisfactorily cure the breach or default within the period of
time allotted, the Director of Community Development may
determine such breach or default to be material .
Multiple or repeated breaches, or a pattern of breaches and
subsequent attempts to cure said breaches by Contractor shall
provide an adequate basis for the Director of Community
Development, in his discretion, to declare any subsequent breach
to be material, notwithstanding whether that breach is ultimately
cured by Contractor.
If such a determination of material breach is made, the
Director of Community Development ' s determination shall be
automatically appealed to the Board of Supervisors for final
May 2, 1995 18
action.'
A material breach shall be cause for termination of this
Agreement by ,the Board of Supervisors.
In .the event 'of a termination pursuant to this section,
County shall have the right to temporarily assume the obligations
of Contractor and shall have -the right to forthwith take
possession of all trucks and other equipment of Contractor and
exercise 'Contractor's right to enter and use any disposal
facilities -for the purpose-of'- performing the services agreed to
be performed by Contractor herein until such time as County can
make other arrangements for the performance of - said services .
However; such temporary assumption' of Contractor's obligations
under the ,Agreerimentishall not be continued by County for a period
exceeding` twelve ` ( 12) " months from the date such operations are
undertaken by County.
During any period in which County has temporarily assumed
the obligations of Contractor under this Agreement, County shall"
be entitled to the gross" revenue attributable to operations
during such period and. shall pay therefrom only those costs and
expenses applicable or allocable to said period, including the
reasonable rental value of the trucks - and equipment to be, paid to
Contractor. County shall be entitled to the excess, _ if any, of
revenue over applicable or allocable costs and expenses during
such period. The loss, if any, during such period shall be a
charge against Contractor, and shall be paid to County by
Contractor on demand. Final adjustment and allocation of gross
revenue, costs, and expenses to the period during which County
temporarily assumed the obligations of Contractor shall be
determined by an audit by a Certified Public Accountant and
prepared in report form with his unqualified opinion annexed
thereto.
Nothing in this Agreement shall prevent County during any
period in which County temporarily assumes the obligations of
Contractor under this Agreement, from employing persons who were.
employed by the Contractor for the collection of Solid Waste
under this Agreement.
Upon the occurrence of a material breach and the declaration
of such and termination of. this Agreement by the Board of
Supervisors, this Agreement and ,the franchise granted thereunder
shall be of no further force and effect, expecting these
provisions concerning County' s right to temporarily assume
Contractor' s obligations and to use Contractor' s facilities, and
Section ,28 ( Indemnification) . County then shall be free to enter
into whatever other arrangements are deemed justified and
necessary for the collection, removal and disposal of Solid Waste
within the Franchise Area.
May 2, 1995 19
36 . EMERGENCY, Notwithstanding Contractor's exclusive
franchise rights set forth in Paragraph -5 (Exclusive Privilege
and Duty) , in the event of an emergency due to natural disaster
or labor strike which . interrupts the collection -of Solid Waste by
' Contractor, the Board of Supervisors shall have the right to
declare a temporary suspension of this Agreement for the
reasonable duration of the emergency and until such time as
County determines that Contractor is able to reassume all
obligations under this' Agreement. Should Contractor fail to
demonstrate to the satisfaction of the Board of Supervisors that.
required services can be resumed .by Contractor prior to the
expiration of a six (6) month period, this Agreement may be
, terminated at the direction of the Board.
37. 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 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
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.
38. AMENDMENT OR MODIFICATION. This Agreement may be
amended or modified upon written agreement of the parties hereto.
The parties agree to meet and confer in good faith if amendments
or modifications are proposed.
39 . POLICE- POWERS. Nothing in this Agreement is intended
to or may. limit County authority pursuant to its police power.
40. CONTEST. OF AGREEMENT'S TERMS. In the event either
party to this Agreement attempts to challenge the validity of any
port-ion 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.
This section shall not be construed to prevent either party
from seeking redress from the courts for the purpose of legal
review of administrative proceedings regarding rate setting or
County actions taken pursuant to this Agreement, or for the
purpose of interpreting or enforcing the provisions contained in
this Agreement.
41 . SEVERABILITY. In the event legal action is brought by
a person or entity, other than the parties to this Agreement, to
challenge, invalidate, contest or set aside any of the provisions
May 2, 1995 20
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 nota 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.
42 . WAIVER. The waiver by either party of any breach or
violation of any provisions of this Agreement shall not be deemed
to be 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.
43. 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.
44 . NEW AGREEMENT. Upon the effective date of this
Agreement, all other Agreements between the parties for the
provision of solid waste and/or recycling services within the
Franchise Area are superseded except that all continuing
obligations under said superseded agreements .shall continue in
full force and effect for the periods covered by said superseded
agreements .
45 . ENTIRE AGREEMENT. This Agreement represents the full
and entire agreement .between the parties hereto with respect to
the matters covered herein.
46 . OPERATIVE DATE. a. This Agreement becomes operative
on the effective date in Section 1, except as follows .
. b. For the' North Concord region depicted in the inset on
Exhibit A, the operative date shall be March 31, 1996 .
c. • For the' portions' o-f the Franchise Area that are located
within the Ironhouse Sanitary District and the Byron .Sanitary
District, as depicted on Exhibit A, the provisions of this
section become operative on the effective date in Section 1 and
'the remainder of this Agreement becomes operative as set forth
herein. The County may, at any time, elect to have the remaining
provisions of this Agreement become operative in said
territories, and may contract with the appropriate District
Board, . with the District Board' s concurrence, for the
May 2, 1995 21
administration of this Agreement and the provision of policy
recommendations to the Board .of .Supervisors . The County may at
any time cause the remaining provisions of this Agreement to
become operative within the Ironhouse Sanitary District and/or
the Byron Sanitary District by providing sixty ,(60) days ' written
notice to Contractor of County's -decision to .doso. Contractor
shall notify the Ironhouse Sanitary District and the Byron
Sanitary District of the requirements of this section and; in the
event' 60 days ' written notice is given Ito Contractor by County as
provided in this section, Contractor shall immediately notify the
District that such notice has been received. Until such notice
is given, County hereby directs Contractor to continue its
operations consistent with its franchise agreement within the
Sanitary Districts. Upon County's request, Contractor shall
provide -County with a .status report of said operations within the
District- territories . Except for the requirements of this
section, until this Agreement is made operative as to the
territories within the Ironhouse and Byron Sanitary Districts as
.set forth herein, neither 'County nor Contractor shall be- required
to fulfill any of their obligations to each other under this
Agreement for said territories .
COUNTY OF CONTRA COSTA-
Ot ^ _ tAAS
CHA R, B ARD OF SUPERVISORS D to
ATTEST, Phil Batchelor, ,,
Clerk of the Board '�
_ R
and ,County A ministratorCL
COY QPauh
By:
DE TY
CONTRACTOR
GARAVENTA ENTERPRISES,
a California Corporation
y: Silvio � aventa,
President -
Taxpayer I .D. No.
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May 2, 1995 22
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Garaventa Enterprises
4080 MALLARD DRIVE • P.O.BOX 5397
CONCORD, CALIFORNIA 94520
(415) 689-8390
April 14, 1995
Valentin Alexeeff, Director
Growth Management and Economic Development Agency
651 Pine Street, 2nd Floor, N. Wing
Martinez, CA 94553
Re: Maximum Rates in Garaventa Franchise Area
Dear Mr, Alexeeff:
This letter confirms that the highest monthly rates for the
handling of Commercial Solid Waste (defined i,n section 2.d. of the
Franchise Agreement with Garaventa Enterprises) currently charged
by Garaventa Enterprises and related companies within the Garaventa
Franchise Area described in Exhibit A to the Agreement are the
rates as described in Attachments A-1 and A-2 to this letter. We
understand those rates will be the maximum monthly•rates, as
described in the Franchise Agreement at section 8 , for the handling
of Commercial Solid Waste. We understand that this letter will be
included as Exhibit B to- the Franchise Agreement With Garaventa
Enterprises to confirm 'that mutual understanding.
This letter also confirms that the highest monthly rates for
handling Residential Solid Waste (defined in section 2 .n. of the
Agreement) currently being charged by. Garaventa Enterprises and
related companies within the Garaventa Franchise Area described in
Exhibit A to the Agreement are the rates described in Attachment
A-3 to this letter. With the approval of the Franchise Agreement
with Garaventa Enterprises, the Board will establish those rates
as the maximum monthly rates, as defined in the Franchise Agreement
at section 8, for the handling of Residential Solid Waste in the
Garaventa Franchise Area.
The maximum residential rates in Attachment A-3 reflect the fact
that based on the last Board of Supervisors' action on this
Franchise Agreement, residential rates have now been reduced by two
dollars per month. Furthermore, existing Garaventa residential
customers are being credited on their latest bill with a
retroactive reduction equivalent to two dollars per month for
EXHIBIT B
Valentin Alexeeff, Director
April 14, 1.995
Page 2
provided service dating back to January 1, 1995, consistent with
our voluntary commitment to the, Board of Supervisors.
The Franchise Agreement only sets the maximum rates to be charged.
There are no minimum rates. It is acknowledged by Garaventa
Enterprises that the County is free to initiate a review and
potential reduction of those maximum rates with 60 days notice to
the Contractor, consistent with section . 9of the Franchise
Agreement. Notwithstanding the established maximum rates, please
be advised that for any residential customers presently receiving
service from Pleasant Hill Bayshore Disposal Company in the
unincorporated areas near Antioch, Bay Pointe and Concord and which
will now receive waste collection service from Garaventa
Enterprises or related companies under this Franchise Agreement,
their rates will be the current rates being charged , by Pleasant
Hill Bayshore or an amount equal to the rate charged to adjoining
Garaventa residential customers after the Franchise Agreement with
Garaventa Enterprises goes into effect, whichever is less. When
the adjoining Garaventa residential rate is less than the present
Pleasant Hill Bayshore rate, then any rate changes shall equally
apply to both sets of residential ' customers.
Please also be advised that if Garaventa Enterprises and related
companies intend to, further - decrease the rates they charge to
residential customers with the Franchise Area, the County will be
notified in advance. Our desire is to reduce the rates by two
dollars more per month when- The Recycling Center and Transfer
Station is opened.
Very truly .yours,
GARAVENTA ENTERPRISES, INC.
Silvio Garavent�J,� Jr.
Vice President
SGJ:kh'
Attachments (A-1, A-2 and .A-3)
E X I'i R3,
i • f y
V
-MONTHLY MAXIMUM COMMERCIAL CAN RATES
of pickups 1 x wk 2 x wk 3 x wk 4 x wk 5 x wk
1 Can $23. 00 $46.00. $69.00- $92. 00 $115.00
2 Cans $46.00 $92. 00 $138 .00 $184 .00 $230.00
3 Cans $69. 00 $138. 00. $207. 00. $276. 00 $345. 00
4 Cans $92.00 $184. 00 $276. 00 $368.00 $460.00
5 Cans $115. 00 $230. 00 $345. 00 $460.00 $575. 00
MONTHLY MAXIMUM COMMERCIAL TOTER RATES
# of pickups 1 x wk '2 x wk 3 x wk 4 x wk 5 x wk
1 Toter $36. 10 $72 . 20 $108. 30 $144 .40 $180. 50
2 Toters $72 . 20 $144 .40 $216. 60 $288. 80 $361. 00
3 Toters $108 . 30 $216. 60 $324 .90 $433 .20 $541. 50
4 Toters $144 . 40 $288 .80 - $433 . 20 $577 . 60 $722 . 00
5 Toters $180. 50 $361. 00 $541. 50 $722 . 00 $902 . 50
Attachment A-1 to Exhibit. B to
Garaventa Franchise Agreement
IBI
MONTHLY MAXIMUM 2 YARD BIN RATES
# of pickups 1 x wk 2 x wk 3 x wk 4 x wk , 5 x wk
1 Bin $169. 60 $285. 35 $401. 00 $516. 70 $632 .45
2 Bins $339.20 $570.70 $802.00 $1,033 .40 $1,264 .90
3 Bins $508.80 $856. 05 $1,203.00 $1,.550. 10 $1,897.35
4 Bins' $678.40 $1, 141.40 $1, 604. 00 $2 , 066.80 $2 ,529 .80
5 Bins $848. 00 $1,426.75 $2, 005. 00' $2, 583 .50 $3 , 162.25
Extras Dimensions
Extra Bin Pickup $83 . 00 72" Length
.One Time Lock Charge $75. 00 35" Width
Lock Replacement $20. 00 41" Height
Charge to Steam Clean $75. 00
Replace Bin for UPB $75. 00
}
J
Attachment A-2, to Exhibit B to
Garaventa Franchise Agreement
MONTHLY MAXIMUM RESIDENTIAL RATES
Monthly Fee Quarterly Fee
Mini-Can ,Service RM1-1 $14 . 60 $43 .80
1 Can Service Rll-1 $18. 75 $56. 25
.2 Can Service R11-2 $24.25 $72.75
3 Can Service R21-3 $29.75 $89.25
Toter Service RT1-1 $21.75 $65. 25
BASIC SERVICE:
Mini-Can Service = l. can 20 gal. maximum, w/2 bags yard waste.
One Can Service = l, can 32 gal. maximum, w/2 bags yard waste.
Toter Service = 1 toter, 90 gal. ,capacity, (no additional yard waste) .
Recycling included in all residential service.
Yard waste not separately picked up.
Attachment A-3 to Exhibit B to
Garaventa Franchise Agreement
EDay :
J
3h
7 _ r
FRANCHISE AGREEMENT WITH
,,-,-.GA-.RAVENTA ENTERPRISES
CONTRA COSTA COUNTY
�' ct
TABLE OF CONTENTS
1. EFFECTIVE DATE, PARTIES. . . . . . . . . . . . . . . . . 1
2 . DEFINITIONS. . . . . . . . . . . . . . . . . . . . . . . 1
a. Agreement. . . . . . . . . . . . . . . . . . . . . 1
b. Act. . . . . . . . . . . . . . . . . . . 1
C. Board. . . . . . . . . . . . . . . 1
d. Commercial Solid Waste. . . . . . . . 1
e. Contractor. . . . . . . . . . . . . . . . . . . . . 1
f. County. . . . . . . . . . . . . . . . . . . . . . . 1
g. Customers . . . . . . . . . . . . . . . . . . . . . 1
h. Designated Waste. . . . . . . . . . . . . . . . . . 1
i . Franchise Area. . . . . . . . . . . . . . . . . . . 2
j . Hazardous Waste. . . . . . . . . . . . . . . . . . 2
k. Industrial Waste. . . . . . . . . . . . . . . . . . 2
1 . Infectious Waste. . . . . . . . . . . . . . . . . . 2
M. Recycle or Recycling. . . . . . . . . . . . . . . 3
n. Residential Solid Waste. . . . . . . . . . . . . . 3
0. Septage. . . . . . . . . . . . . . . . . . . . . 3
P. Solid Waste. . . . . . . . . . . . . . . . . . . . 3
q. Waste Stream. . . . . . . . . . . . . . . . . . . . 3
3. TERM. . . . . . . . . . . . . . . . . . . . . . . . . . 3
4 . INTENT TO REGULATE ALL RECYCLING AND RESIDENTIAL AND
SOLID WASTE COLLECTION, REMOVAL AND/OR DISPOSAL. . . . . 3
5 . EXCLUSIVE PRIVILEGE AND DUTY. . . . . . . . . . . . . . 3
6 . EXCEPTIONS TO EXCLUSIVE PRIVILEGE. . . . . . . . . . . . 4
7 . CONTRACTOR' S DUTY TO MAINTAIN RECORDS; COUNTY'S
RIGHT TO EXAMINE RECORDS. . . . . . . . . . . . . . . . 4
8 . RATES. . . . . . . . . . . . . . . . . . . . . . . . . . 5
9 . RATE APPLICATIONS. . . . . . . . . . . . . . . . . . . . 6
10. OPERATION BY CONTRACTOR. . . . . . . . . . . . . . . . 7
11 . LIMITATION ON TIME AND MANNER OF COLLECTION. . . . . . . 7
12 . CUSTOMER SATISFACTION, AB 939 AND EFFICIENCIES IN
OPERATION. . . . . . . . . . . . . . . . . . . . . . . . 8
13. CUSTOMER SERVICE STANDARDS. . . . . . . . . . . . . . . 9
May 2, 1995 i
l r
1 T
14 . LOCAL ADVISORY BOARD. . . . . . . . . . . . . . . . . . 10
15. CUSTOMER COMPLAINTS. . . . . . . . . . . . . . . . . . . 10
16 . BILLING. . . . . . . . . . . . . . . . . . . . . . . 10
17 . RECYCLING. . . . . . . . . . . . . . . . . . . . . . 10
18. FREE SERVICE FOR COUNTY. . . . . . . . . . . . . . . 11
19 . FRANCHISE AREA-WIDE COLLECTION. . . . . . . . . . . . . 11
20. PARTICIPATION IN COMMUNITY CLEAN-UP PROJECTS. . . . . . 11
21 . DISPOSAL AND WASTE STREAM CONTROL. . . . . . . . . . . . 12
22 . MISCELLANEOUS OBLIGATIONS OF CONTRACTOR. . . . . . . . . 12
23 . ADMINISTRATIVE SERVICES AND FRANCHISE FEES. . . . . . . 12
24 . HAZARDOUS WASTE. . . . . . . . . . . . . . . . . . . . . . 12
25 . PRELIMINARY DISPUTE RESOLUTION. . . . . . . . . . . . . 13
26 . FAITHFUL PERFORMANCE BOND. . . . . . . . . . . . . . . . 13
27 . INSURANCE. . . . . . . . . . . . . . . . . . . . . . . 13
28. INDEMNIFICATION. . . . . . . . . . . . . . . . . . . . . 14
29 . ATTORNEY' S FEES. . . . . . . . . . . . . . . . . . . . 15
30. ASSIGNABILITY. . . . . . . . . . . . . . . . . . . . . 15
31 . INVOLUNTARY ASSIGNMENT. . . . . . . . . . . . . . . . . 16
. 32 . NOTICE PROVISIONS. . . . . . . . . . . . . . . . . . . . 17
33 . ANNEXATION AND CHANGE OF FRANCHISE AREA BOUNDARIES. 17
34 . AFFILIATED ENTITIES. . . . . . . . . . . . . . . . . . . 18
35. BREACH AND TERMINATION. . . . . . . . . . . . . . . . . 18
36 . EMERGENCY. . . . . . . . . . . . . . . . . . . . . . . . 20
37 . COMPLIANCE WITH FEDERAL, STATE AND LOCAL LAWS. . . . . . 20
38. AMENDMENT OR MODIFICATION. . . . . . . . . . . . . . 20
39 . POLICE POWERS. . . . . . . . . . . . . . . . . . . . . . 20
May 2, 1995 ii
' r
40 . CONTEST OF AGREEMENT'S TERMS. . . . . . . . . . . . . . 20
41 . SEVERABILITY. . . . . . . . . . . . . . . . . . . . . . 20
42 . WAIVER. . . . . . . . . . . . . . . . . . . . . . . . . 21
43 . SURVIVAL OF OBLIGATIONS. . . . . . . . . . . . . . . . . 21
44 . NEW AGREEMENT. . . . . . . . . . . . . . . . . . . . . 21
45. ENTIRE AGREEMENT. . . . . . . . . . . . . . . . . . . . 21
46 . OPERATIVE DATE. . . . . . . . . . . . . . . . . . . . 21
May 2, 1995 iii
f
FRANCHISE AGREEMENT
WITH GARAVENTA ENTERPRISES
1 . EFFECTIVE DATE, PARTIES. This Agreement is binding
between the County and the below named Contractor and is
effective on the date last signed by the parties hereto.
- 2 . DEFINITIONS. As used herein, the following terms shall
have the meanings set forth below:
a. Agreement. Agreement means this Agreement by and
between the County and Contractor for the collection, removal,
and disposal of solid waste and the recycling of material .
b. Act. Act means the California Integrated Waste
Management Act of 1989 (Public Res . Code, S 40000 et seq. ) and
all rules and regulations adopted under any of those sections, as
such sections, rules and regulations may be amended from time to
time in the future.
C. Board. Board means the Board of Supervisors for
the County of Contra Costa.
d. 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. ] ) .
e. Contractor. Contractor means Garaventa
Enterprises, a California Corporation, and is the entity which
has been granted an exclusive franchise pursuant to the terms and
conditions set forth herein. Silvio Garaventa, Sr. and Mary C.
Garaventa own 100% of the stock in Garaventa Enterprises .
f. County. County means the County of Contra Costa.
g. Customers. Customers means those who have
contracted with the Contractor for the collection of materials
for recycling and/or for the collection, removal, or disposal of
Solid Waste, pursuant to this Agreement and applicable ordinances
of County, including mandatory subscription ordinances .
h. 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.
May 2, 1995 1
r
i . Franchise Area. Franchise Area means the
geographic area generally described in Exhibit A to this
Agreement with Garaventa Enterprises, which Exhibit, dated March,
1995 and prepared by McGill-Martin-Self, is attached hereto and
incorporated herein by reference and illustrated in the six
hundred (600) - scale maps to be maintained and available for
inspection at the Community Development Department. Exhibit A
and said six hundred (600) - scale maps shall be amended from time
to time to reflect changes of boundaries of the Franchise Area in
such a manner as to identify each alteration to the Franchise
Area and the effective date thereof.
J . Hazardous Waste. Hazardous Wastes include any
waste material or mixture of wastes which is toxic, corrosive,
flammable, an irritant, 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 an approximate 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) . ( 14 Cal .Code Regs. , S 17225 . 32 . )
k. Industrial Waste. Industrial Waste includes all
types of Solid Waste which result from industrial processes and
manufacturing operations and/or which originates from such
facilities .
1. Infectious Waste. Infectious Wastes include:
( 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, as is also defined in
Section 314 (4) of the California Administrative Code, Title 17 .
( 14 Cal.Code Regs . , § 17225 . 36 . )
May 2, 1995 2
M. Recycle or Recycling. Recycle or Recycling means
the process of collecting, sorting, cleaning, treating and
reconstituting materials and recovering them so that they may be
used in the form of raw material for new, reused, or
reconstituted products .
n. 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.
o. 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 .
P. 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
nonputrescib.le solid, semisolid, and liquid wastes, including
garbage, trash, refuse, paper, rubbish, ashes, demolition and
construction wastes, abandoned vehicles and parts thereof,
discarded home and industrial appliances, dewatered, treated, or
chemically fixed sewage sludge which is not hazardous waste,
manure, vegetable or animal solid and semisolid wastes and other
discarded solid and semisolid wastes . "Solid Waste" does not
include infectious, designated, and hazardous waste, except
household hazardous waste.
q. 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, at
County' s discretion, 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 35 (Breach and
Termination) , the term of this Agreement and the exclusive
franchise granted hereunder shall be 20 years, commencing on the
effective date first mentioned in section 1 of this Agreement.
4 . INTENT TO REGULATE ALL RECYCLING AND RESIDENTIAL AND
SOLID WASTE COLLECTION, REMOVAL AND/OR DISPOSAL. The parties
hereto agree that County currently has jurisdiction to regulate
the collection, removal and disposal of all Solid Waste, and the
recycling of all material, in the Franchise Area. The intent of
this Agreement is to regulate Solid Waste handling service and
recycling of material in the Franchise Area. .
5 . EXCLUSIVE PRIVILEGE AND DUTY. To the extent allowed by
May 2, 1995 3
S �
law, County hereby grants to Contractor the exclusive privilege
and duty to collect and remove for disposal and recycling, all
residential and commercial Solid Waste, including recyclable
materials, within the Franchise Area 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.
The Franchise Area may be expanded or reduced in size by
mutual agreement of the parties, or as provided in Section 33
(Annexation and Change of Franchise Area Boundaries) of this
Agreement.
6 . EXCEPTIONS TO EXCLUSIVE PRIVILEGE. The exclusive
privilege granted by this Agreement shall not apply if:
(a) A person or entity generates Solid Waste,
including recyclable materials, and personally collects, removes
and disposes or recycles such in a clean and sanitary manner in
conformance with all applicable laws and regulations, including
mandatory subscription ordinances . This exception shall not
apply to a person who incurs a net cost of collection to a third
person in the above described activities; or
(b) A person or entity contracts with a third person
for the removal and disposal or recycling of inorganic refuse or
garden waste (a "Non-Franchised Contractor") and such removal and
disposal or recycling is solely incidental to work such as
remodeling or gardening occasionally performed by or for the
customer. This exception shall not apply if the Non-Franchised
Contractor incurs a net cost of collection to any third person in
connection with its collection and/or disposal of said Solid
Waste.
7 . CONTRACTOR'S DUTY TO MAINTAIN RECORDS; COUNTY'S
RIGHT TO EXAMINE RECORDS. Contractor shall maintain a proper set
of books and records in accordance with generally accepted
accounting principles, accurately reflecting the business done by
it under this Agreement.
Contractor shall further maintain and make available to
County, upon its request, records as to number of Customers,
total and by type, route maps, service records and other
materials and operating statistics in such manner and with such
detail as County may require. County shall treat the information
required by this paragraph that affects the competitive position
of the company as confidential information to the extent
permitted by law.
County may at any time during the term of this Agreement,
have the books and records of the Contractor examined by a County
Agent or Agents appointed for that purpose by the County. County
May 2, 1995 4
shall give thirty (30) days ' written notice to the Contractor of
such examination date. County expenses incurred under this
section shall be paid by Contractor subject to their recovery
through the rates allowed by the County hereunder.
The information required by this section shall pertain to
Contractor's operations covered and regulated by this Agreement,
and nothing contained herein shall require the Contractor to
Provide the County with information pertaining to the
Contractor's operations which are not regulated by the County,
except in conformance with this section.
County' s Agents may examine Contractor' s books, records and
financial statements pertaining to operations not regulated by
the County as may be reasonably required for the sole purpose of
gathering information necessary to allow the Agents to ascertain
whether income, expenses, assets and liabilities are reasonably
and consistently allocated among operations regulated by County
and those not regulated by the County. Contractor shall obtain
County's written approval of its method of segregating its
financial records between County-regulated and non-County
regulated operations . County shall not unreasonably withhold
such approval .
To the extent allowed by law, information gained from
examination of records pertaining to operations not regulated by
the County shall be treated by County and its agents as
confidential information.
For the review of books and other financial records
necessary to verify the Contractor's income, expenses, assets and
liabilities, "County Agent" shall mean County employees or an
independent Certified Public Accountant or public accountancy
firm. For all other information or records, including the
results of financial verification, "County Agent" shall mean any
consultant designated by the County or County employees .
Nothing in this section will prevent County from allowing
public access to County records as provided for under the
California Government Code, and in the event any dispute arises
as to the public access to information provided by Contractor
under the terms of this Agreement, the County shall in its
discretion provide public access to said information according to
law or tender the defense of any claims made against the County
concerning said information to Contractor. Prior to releasing
any information pursuant to this paragraph, County shall make a
good faith effort to notify Contractor of the intended release.
8. RATES. Rates shall be fixed by the County from time
to time. In determining the rates, the County shall consider
fairness to both Contractor and the Customers . Reasonable costs
incurred by Contractor pursuant to this Agreement shall be
May 2, 1995 5
5 t
designated as "pass-through" or "subject to reasonable profit" as
determined by the County during the rate review process . Rates
fixed by County shall be maximum rates which Contractor may
charge the Customers . The maximum rates fixed by the County at
this time shall be the highest commercial rates and the highest
residential rates being charged by Garaventa Enterprises within
the Franchise Area immediately before the effective date of this
Agreement, as set forth in the letter and enclosures from
Garaventa Enterprises to Val Alexeeff dated April 14 , 1995,
attached hereto as Exhibit B and incorporated herein by this
reference. Nothing in this Agreement precludes Contractor from
charging rates less than the maximum rates fixed by the County.
Pending a rate review by the County, the maximum rates chargeable
shall be those rates charged on the effective date of this
Agreement.
Following consultation with the Contractor and examination
of industry norms and trends, the County, in its sole discretion,
shall determine the method of determining Contractor
profitability.
All costs associated with County review and processing of
rate applications shall be paid by Contractor and shall be
allowed as a pass-through cost in the rate application process .
Contractor will offer a mini-can program at reduced rates as
directed by the County following consultation with Contractor.
9 . RATE APPLICATIONS. Rate applications shall be prepared
in accordance with such forms and in such detail as required by
the County. The application shall include one reproducible hard
copy, 15 hard copies bound in an appropriate manner and one copy
on disk formatted pursuant to County specifications.
Contractor shall submit its first rate application as
directed by the County. All rate applications shall include
information from the previous rate change to the present, or such
other period of time as is selected by the County. Every three
years, a rate application shall be accompanied by an audited
financial statement covering the entire period since the last
audited rate application together with supporting documentation
as required to segregate its County regulated activities from
other business activities .
The County Administrator may, in writing, allow the rate
application to be submitted without an audited financial
statement provided the County Administrator is satisfied that the
level of verifiable detail allows for adequate assessment of the
Contractor' s income, expenses, assets and liabilities .
Rate changes may be initiated by County at any time or by
Contractor under the conditions allowed in this section. In
May 2, 1995 6
5 " f
either case, Contractor shall prepare a rate application in
accordance with the requirements of this section.
If the rate change is initiated by County, the Contractor
shall submit its rate application to County within 60 days of
County' s notice to Contractor.
If the rate change is initiated by Contractor, it shall be
submitted no more than once a year under normal operating
conditions . The date of Contractor initiated applications shall
be standard, year by year; such date to be determined upon mutual
agreement of the parties and reasonably related to the fiscal
year of Contractor.
In the event that the rate change that would be requested by
Contractor is no more than the change in the Consumer Price Index
for All Urban Consumers for the San Francisco Bay Area for that
fiscal year of Contractor, Contractor may increase its rate up to
such amount and not request a rate change from the County.
Contractor may defer a rate application pursuant to this
paragraph for a maximum of two consecutive years .
In the event that Contractor must make significant changes
in its operations or experiences significant changes in costs or
revenue not under its control, Contractor may submit a rate
application. Contractor shall provide documentation for the need
for such rate application relative to those changes . The
application will thereafter be considered by the Board.
10. OPERATION BY CONTRACTOR. Contractor shall furnish all
necessary equipment (excluding containers for single-family
residential wastes) for services provided pursuant to this
Agreement in the Franchise Area and shall maintain such equipment
in a sanitary condition at all times. Contractor shall furnish
all necessary labor in connection with the operation of a Solid
Waste collection system in the Franchise Area.
The Contractor, in performance hereof, shall use trucks with
covered, water-tight truck bodies constructed of sufficient
strength to withstand a fire within, without endangering adjacent
property. Trucks, drop boxes, bins, or similar types of
equipment shall be kept clean and in good repair. Contractor
shall have its name and telephone number on the side of each
truck and on each drop box, bin or similar type equipment
provided by Contractor.
11 . LIMITATION ON TIME AND MANNER OF COLLECTION.
Contractor shall systematically collect Solid Waste, and to the
extent permitted by this Agreement, materials for recycling from
its Customers . Frequency, place of pickup (e.g. , curbside,
backyard, etc. ) or any other manner of collection shall be
subject to the review and approval of the Director of Community
May 2, 1995 7
Development. Upon commencement of service and upon changes in
collection day schedules, Contractor shall provide each customer
with notice of the scheduled collection day. Contractor shall
not collect Solid Waste from an inhabited dwelling or dwelling
unit between the hours of 7 :00 p.m. and 4 : 00 a.m. , except that if
a dwelling unit is part of a collection route that predominately
serves commercial accounts, collection may begin as early as
3 : 00 a.m.
12 . CUSTOMER SATISFACTION, AB 939 AND EFFICIENCIES IN
OPERATION. (a) From time to time, at its discretion, County may
examine Contractor's operation in order to evaluate whether the
Contractor is operating at a satisfactory level of efficiency and
customer satisfaction. Contractor agrees to cooperate in any
such examination and shall permit County representatives to
inspect, at Contractor's principal place of business, such
information pertaining to Contractor's obligations hereunder as
County may require, including, but not limited to, such things as
customer inquiry records, collection routes and equipment
records . Access to Contractor's records shall be subject to
Paragraph 8 (Contractor's Duty to .Maintain Records; County' s
Right to Examine Records) .
(b) Notwithstanding any contrary provision in this
Agreement, the County shall have the right to direct Contractor
to 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 requested
by the County 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 County harmless
from and against any and all liability to the State of California
for the County's noncompliance with the requirements of the
California Integrated Waste Management Act due in whole or
material part to the material failure of Contractor to properly
carry out the reasonable directives of the County to Contractor
regarding collection and disposition of Solid Waste and
recyclable material; provided, however, that Contractor shall not
be obligated to carry out any such directive (and shall not
indemnify nor hold the County harmless from any resulting
liability) if the County fails to agree to allow Contractor its
reasonable costs ( including a reasonable profit) associated with
carrying out such directives.
(c) County may require Contractor to develop plans for and
conduct programs on alternative methods of Solid Waste
collection, including pilot programs of limited scope, or may
require additional programs, for the purpose of improving
May 2, 1995 8
service, increasing customer satisfaction, and meeting diversion
requirements . County may also require Contractor to implement
efficiencies in its operation upon written notice from County.
The notice shall allow Contractor a reasonable period of time to
implement the specified service (efficiency) . Should County
require commencement of such a program as outlined in this
paragraph, Contractor agrees not only to do those things
specified herein, but also to act at the direction of the County
on other matters that may be necessary for the success and
efficiency of the project, such as public information and
notification. In the event that County elects to direct
Contractor to discontinue any service theretofore performed by
Contractor at the direction of County hereunder, County shall
allow Contractor to recover its reasonable capital equipment
costs and other reasonable costs arising upon termination of the
service. Rate adjustments applicable solely to programs
instituted pursuant to this subsection (c) initially shall be
established at the time the County authorizes implementation of
the program or efficiency.
13 . CUSTOMER SERVICE STANDARDS. Contractor shall provide
prompt, efficient, continuous and professional service to its
Customers . Contractor shall have a phone system with sufficient
capacity to promptly respond to telephone calls for at least 8
hours a day during weekdays, excluding those holidays observed by
Contractor. Telephone numbers for customer service shall be
located in the local telephone directory. All telephone lines
for customer service shall be toll free to Customers .
Not less than once every three years 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 Director of Community Development. A
copy of the survey results shall be sent to the County within
sixty (60) days of completion of the survey. Nothing in this
paragraph shall limit the right of the County to conduct
additional surveys . The Contractor shall cooperate with the
County in such cases .
Upon initiation of service, and at least once a year,
Contractor shall send or deliver to Customers information
concerning the conditions of service, including, but not limited
to, rates, fees, charges, service options, payment options,
discounts (if any) , days of collections, the amount and manner of
refuse to be collected, service level and inquiry/complaint
procedures, including the name, address and local telephone
number of Contractor and the name, address and telephone number
of the County Community Development Department. The form and
May 2, 1995 9
content shall be subject to the review and approval of the
Director of Community Development.
14 . LOCAL ADVISORY BOARD. The Board of Supervisors may
designate an existing committee to represent the Franchise Area,
or form an advisory body to advise the Board on the performance
of the Contractor in the community, local service interests and
needs, and rate applications . In all cases, the Committee shall
hold its meetings at a time and place convenient to the public.
The Committee shall keep a record of all public comments and
submit such comments when reporting to the Board.
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 Director of
Community Development.
16 . BILLING. The form and content of customer bills shall
be subject to the review and approval of the Director of
Community Development.
Bills for services may be monthly, bimonthly or quarterly as
determined by County. Contractor may bill its customer in
advance or in arrears . The County may establish billing period
options for Customers upon a finding that such options are cost-
effective and meet a community need.
Full payment for drop boxes may be required by Contractor
prior to delivery of the drop box to the customer.
The County shall have the right to direct the Contractor to
change or alter its billing system in which event the marginal
additional expenses incurred by the Contractor in the
implementation of the change, with regard to the accounting,
printing, mailing, loss of use of funds, or otherwise, shall be
recoverable by the Contractor through the rates allowed by the
County provided such expenses are reasonable. Contractor shall
inform customers of all rate changes at least 30 days prior to
their effective date. A copy or facsimile of such notice shall
be provided to County at the time of customer notification.
17 . RECYCLING. County grants to Contractor the right and
obligation to operate recycling programs, including curbside
pickup of recyclable materials, as determined and designated by
County, subject to County's right to terminate this grant to
Contractor pursuant to the provisions of this section.
Contractor has instituted and is implementing a recycling
program including regular curbside pickup at all single family
residences of at least aluminum, tin, newsprint, glass bottles,
non-colored HDPE and PET. This program is currently operating to
May 2, 1995 10
the satisfaction of County; however, County has the right at
anytime to modify said program or require new programs as
provided at Section 12 (b) hereof.
Contractor shall maintain and provide to the County records
relating to its recycling programs as directed by the Director of
Community Development.
Contractor' s provision of recycling service shall be
reviewed within three (3) years of the effective date of this
Agreement and, at County's discretion, every five years
thereafter. If County determines that continuation of such
service by Contractor is not consistent with the County's
ratepayers best interest, but not as a result of Contractor' s
failure to satisfactorily provide recycling services, Contractor
shall be allowed to recoup its unamortized capital expenditures
as follows . Contractor shall make a good faith effort to sell
all disposable assets acquired in furtherance of the program for
their fair market value. If income derived from the sale is
insufficient to cover the unamortized costs of such assets,
Contractor may transfer those losses together with net operations
profits or losses to its general account and submit a rate
application to cover such losses .
If County determines that Contractor has failed to
satisfactorily provide and perform recycling services, County 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 County or County' s ratepayers .
18. FREE SERVICE FOR COUNTY. Contractor shall provide
Solid Waste collection and disposal services at those County
buildings designated by the Director of Community Development
from time to time, at no charge to the County.
19 . FRANCHISE AREA-WIDE COLLECTION. In addition to its
regular collections, Contractor shall provide two annual
collections for each region in the Franchise Area as determined
by the Community Development Director. Said collections shall be
made each year throughout the term of this Agreement in
accordance with practices and procedures established by
Contractor and subject to the approval of the Community
Development Director.
20. PARTICIPATION IN COMMUNITY CLEAN-UP PROJECTS.
Contractor shall provide, upon direction of the Community
Development Director, Solid Waste drop boxes or equivalent
containers for community or other clean-up projects within the
Franchise Area. The Contractor's obligation shall be limited to
the equivalent of ten ( 10) 20-cubic yard drop boxes per year, per
region in the Franchise Area.
May 2, 1995 11
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21 . DISPOSAL AND WASTE STREAM CONTROL. Contractor shall be
solely responsible for the disposal of the Solid Waste collected f
pursuant to this Agreement. County has complete authority and
control over the Franchise Area waste stream. County may, at its
sole discretion upon providing 60 days ' notice to Contractor,
direct the Solid Waste collected under this Agreement to be
delivered to any site or facility of its choosing. This shall
include the right of the County to direct the Solid Waste to be
delivered to any County designated transfer station, disposal
site, transformation facility and/or resource recovery facility.
It is understood that County may contract with any party, public
or private, to commit the waste stream from the Franchise area,
and that Contractor's contracts may not bind County, nor need
County consider such other contracts for any purpose.
Notwithstanding the above, Contractor may propose, and
County may but need not consider, waste management and/or
disposition alternatives which are cost effective. In
determining or comparing costs, County shall consider all
relevant factors, including but not limited to, transportation
costs, closure and postclosure requirements, costs and j
liabilities, disposal fees, fees levied by governmental entities,
including benefits to Contractor's customers from paying such
fees, costs of compliance with ordinances and other local
requirements, and long-term costs, including degree of control i
over future costs.
22 . MISCELLANEOUS OBLIGATIONS OF CONTRACTOR. Contractor i
shall assist County in its enforcement of its mandatory
subscription ordinance by providing County with the addresses of
properties not subscribing to collection service within the
Franchise Area and by providing collection service to such
properties upon written request by the County.
23 . ADMINISTRATIVE SERVICES AND FRANCHISE FEES. Contractor
shall pay to the County for (a) the services provided by the
County in administering this Agreement, (b) for services and
programs pertaining to Solid Waste provided by the County, and
(c) additionally as directed by the County, a percentage of its
gross annual revenues generated from the performance of such
waste collection services under this Agreement. Such percentage,
time and frequency of payment shall be established by County
from time to time. Said sums shall be payable from the
Contractor to the County upon the inclusion of the administrative
service charge in the allowed rate and upon the collection of
said rate by the Contractor. Such administrative and program
services and any franchise fees shall be considered a reasonable
cost and subject to "pass-through" as described in Section 8 on
Rates .
24 . HAZARDOUS WASTE. The parties hereto recognize that
federal, state and local agencies with responsibility for
May 2, 1995 12
defining hazardous waste and for regulating the collection,
handling or disposing of such substances are continually
providing new definitions, tests and regulations concerning these
substances . Under this Agreement, it is Contractor' s
responsibility to keep current with the regulations and tests on
such substances and to identify such substances and to comply
with all federal, state and local regulations concerning such
substances
Contractor agrees to provide to County upon its request,
Contractor's program for identifying hazardous waste and
complying with all federal, state and local statutes and
regulations dealing with hazardous waste.
Contractor shall make every reasonable effort to prohibit,
the collection and the disposal of hazardous waste in any manner
inconsistent with applicable law.
25 . PRELIMINARY DISPUTE RESOLUTION. If Contractor has a
question as to the interpretation of this Agreement, it shall
submit a written request to the Director of Community Development
for a determination of the issue. The Contractor shall provide
and submit such information as the Director of Community
Development may request or require to make the requested
determination. The written determination of the Director of
Community Development may be appealed to the Board of Supervisors
pursuant to Ordinance Code Chapter 14-4 .
26 . FAITHFUL PERFORMANCE BOND. Contractor shall submit to
County simultaneously with the execution of this Agreement a
corporate surety bond in the amount of $10,000 . 00, provided
however, that the Board may increase this amount not more often
than every three years to reflect changes in the Consumer Price
Index for All Urban Consumers for the San Francisco Bay Area.
The bond shall be executed by a surety company licensed to do
business in the State of California and acceptable to County.
The bond shall be approved by County and shall be payable to
County. The condition of the bond shall be that Contractor will
faithfully perform the duties imposed by ordinance, this
Agreement and the rules and regulations of County. Any action by
County to proceed against the Bond shall not limit or affect the
right of County to use other remedies available to County under
the Agreement, or in courts of law or equity. Notwithstanding
the foregoing, in lieu of the corporate surety bond, Contractor
may provide to County a letter of credit, cash bond or other
security acceptable to the County Administrator's Office in a
form satisfactory to the County.
27 . INSURANCE. Contractor shall procure and maintain in
full force and effect at all times during the entire term of this
Agreement the following insurance coverage:
May 2, 1995 13
(a) Public liability and property damage insurance
including completed operations, products, contractual, broad form
property damage, personal injury and owned and non-owned
automobile liability with such coverages and limits as may be
reasonably requested by County from time to time, but in no event
with limits not less than the sum of $1 million combined single
limit for each occurrence arising from the services as stated in
the Agreement herein. County shall be named as an additional
insured under such liability insurance policy or policies, if
commercially available.
(b) Contractor shall carry workers ' compensation
insurance for all its employees .
Evidence of liability and workers ' compensation insurance
shall be provided by Contractor by filing with County a
certificate of insurance indicating that County is 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 County thirty (30) days in advance of the effective
date thereof . No cancellation, alteration or change of
beneficiary shall be made without written notice to County.
County reserves the right to examine all policies 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 County. Failure of Contractor to maintain insurance in the
manner and amount stated herein and as directed by County
Administrator, subject to the approval of the Board, will
constitute a material breach of this Agreement.
28. INDEMNIFICATION. a. Complete Indemnification of
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
County, its officers, employees, agents and assigns against any
and all liability, claims, judgments, or demands, including
demands arising from injuries or deaths of persons and damage to
property, 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 County, and will make good to and reimburse County
for any expenditures, including reasonable attorney's fees, that
County may make by reason of such matters and, if requested by
County shall defend any such suit at the sole cost and expense. of
Contractor.
May 2, 1995 14
y
The above promise by Contractor to indemnify, hold harmless
and defend the County expressly includes, but is not limited to,
all claims, damages (including by 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
attorneys 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, County, its officers,
employees or agents arising from or attributable to any repair,
cleanup or detoxification, or preparation and implementation of
any removal, remedial, response, closure or other plan
(regardless or 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 County.
The intent of the section is to provide County with the highest
level of protection possible under existing and future laws .
b. Defense of Agreement. Should any party successfully
challenge the validity of this Agreement, the procedure by which
this Agreement was entered into or the validity .of any County
ordinance which authorizes the County to enter into this
Agreement, then in such case the Contractor shall have no cause
of action for damages or any other relief against County as a
result of such successful challenge.
Contractor has the right to defend this Agreement and
County. County has no duty to Contractor to defend the validity
of this Agreement or any provision hereof.
29 . ATTORNEY'S FEES. In the event of litigation between
the parties arising hereunder, each party shall be responsible
for and pay its own litigation expenses, including attorney's
fees .
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 County.
The term assignment shall include any dissolution, merger,
May 2, 1995 15
Y a
consolidation or other reorganization of Contractor, which
results in change of control of Contractor, or the sale or other
transfer by probate proceeding or otherwise of a controlling
percentage of Contractor' s capital stock to a person not a
. shareholder on the date of the execution of this Agreement. The
term "assignment" does not include internal business
reorganizations or formations of new companies by 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 Silvio Garaventa, Sr.., his
spouse, his children, and/or their spouses .
It is understood and agreed by the parties that corporations
(e.g. , Pittsburg Disposal Company) , sole proprietorships (e.g. ,
Oakley Disposal Company) , and partnerships that are 100% owned by
the shareholders of Garaventa Enterprises may presently and in
the future perform the obligations and responsibilities of the
Contractor in the regions of the Franchise Area. Performance of
the obligations and responsibilities of the Contractor by such
companies shall not be deemed an assignment under this section.
In the event Contractor herein attempts to assign or
subcontract this Agreement or any part hereof or any obligation
hereunder, County shall have the right to elect to terminate this
Agreement forthwith, without suit or other proceeding.
Consent to assignment may not be unreasonably withheld.
However, it is understood that County' s grant of this franchise
to Contractor is partly persuaded by the Contractor's financial
strength and background in the field of waste management;
therefore, assuming Contractor maintains it ability to faithfully
carry out its duties hereunder, it is in the County's ratepayers '
best interest for Contractor to continue under this Agreement.
Following a public hearing, County may assign or transfer
any or all of its rights under this Agreement without the consent
of Contractor to any legally authorized public entity.
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 County with the right to elect to terminate
the Agreement forthwith, without suit or other proceeding:
( 1) If Contractor is or becomes insolvent, or makes an
assignment for the benefit of creditors;
.(2) If Writ of Attachment or Execution is levied on
this Agreement or other property of Contractor such that would
affect Contractor's ability to perform its duties and obligations
under this Agreement.
May 2, 1995 16
1 ,
(3) If in any proceeding to which Contractor is a
party, a Receiver is appointed with authority to take possession
of Contractor' s property such that would affect Contractor' s
ability to perform its duties and obligations under this
Agreement.
(4) Except as otherwise provided in Section 31
(Assignability) , in the event of a probate proceeding where the
rights of Contractor under the Agreement would pass to another
individual or other individuals.
32 . NOTICE PROVISIONS. Any notice required or permitted
under this Agreement shall be in writing and shall be deemed to
have been given if delivered personally or ten ( 10) days after
posted by certified mail, return receipt requested, addressed as
appropriate either to Contractor:
Garaventa Enterprises
Attn: Silvio Garaventa, Sr.
4080 Mallard Drive
Concord, CA 94520
Or to County:
Attention: Director of Community Development
651 Pine Street, 4th Floor North Wing
Martinez, California 94553
33 . ANNEXATION AND CHANGE OF FRANCHISE AREA BOUNDARIES.
Contractor shall give notice to County by January 30 of the next
calendar year of any geographic area in the Franchise Area or
immediately contiguous to the Franchise Area, in which Contractor
has commenced service within the preceding year, notwithstanding
whether Contractor deems that area to be regulated or
unregulated.
Contractor realizes that the public agency boundaries may be
altered by virtue of actions taken by the Contra Costa County
Local Agency Formation Commission (LAFCO) . Contractor agrees
that should a municipal corporation lawfully annex territory
which is within the Franchise Area, County may make such
alterations to the Franchise Area as the annexation necessitates .
Should the Franchise Area boundaries be amended, Contractor
agrees that it will abide by any change resulting from the
Franchise Area change. Contractor agrees that the Board of
Supervisors may make such alterations to the Franchise Area as
are necessitated by such Local Agency Formation Commission
actions and shall have no right or claim to damages or other
relief against the County for such alterations to the Franchise
Area. However, nothing herein is intended to abrogate
Contractor' s rights under Public Resources Code Section 49520 or
any successor or similar statute.
May 2, 1995 17
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34 . AFFILIATED ENTITIES. Contractor shall provide
information necessary to reasonably satisfy County that the
charges made by any Affiliated Entity are reasonable in
accordance with the provisions of Section 8 (Contractor' s Duty to
Maintain Records; County's Right to Examine Records) .
Information gained from examination of books and records
pertaining to operations not regulated by the County shall be
treated by the County and its agents as confidential information.
"Affiliated Entity" shall be defined, for purposes of this
section, as any entity which provides products or services to
Contractor and in which either Contractor or the affiliated
entity owns a ten percent ( 10%) or greater interest in the other,
or where one person or entity owns ten percent ( 10%) or greater
interest in both. For purposes of this section, the term
"Contractor" shall include Contractor, and if Contractor is an
individual or a group of individuals (partnership) , all immediate
family members, or if a corporation, major shareholders, and if
any major shareholder is an individual, said individuals '
immediate family members . For the purpose of this paragraph,
"immediate family" includes spouses and relatives of the first
degree of sanguinity, and their spouses .
35 . BREACH AND TERMINATION. The Director of Community
Development shall have authority, subject to review by the Board
of Supervisors upon appeal, to determine whether a breach of any
provision of this Agreement by Contractor has occurred. Any
waiver of a breach shall not be deemed to be a waiver of any
subsequent breach or to be construed as approval of a course of
conduct. In the event that the Director determines that a breach
has occurred, County shall give Contractor written notice of the
breach setting forth the breach or default. Contractor shall
have a reasonable period to cure the noticed breach, said breach
not to exceed 60 days. In the event the breach or default is
cured to the satisfaction of the Director of Community
Development within the period of time allotted, the breach shall
not be deemed a material breach. In the event that the Director
of Community Development determines that Contractor has failed to
satisfactorily cure the breach or default within the period of
time allotted, the Director of Community Development may
determine such breach or default to be material.
Multiple or repeated breaches, or a pattern of breaches and
subsequent attempts to cure said breaches by Contractor shall
provide an adequate basis for the Director of Community
Development, in his discretion, to declare any subsequent breach
to be material, notwithstanding whether that breach is ultimately
cured by Contractor.
If such a determination of material breach is made, the
Director of Community Development's determination shall be
automatically appealed to the Board of Supervisors for final
May 2, 1995 18
I
action.
A material breach shall be cause for termination of this
Agreement by the Board of Supervisors .
In the event of a termination pursuant to this section,
County shall have the right to temporarily assume the obligations
of Contractor and shall have the right to forthwith take
possession of all trucks and other equipment of Contractor and
exercise Contractor's right to enter and use any disposal
facilities for the purpose of performing the services agreed to
be performed by Contractor herein until such time as County can
make other arrangements for the performance of said services .
However, such temporary assumption of Contractor' s obligations
under the Agreement shall not be continued by County for a period
exceeding twelve ( 12 ) months from the date such operations are
undertaken by County.
During any period in which County has temporarily assumed
the obligations of Contractor under this Agreement, County shall
be entitled to the gross revenue attributable to operations
during such period and shall pay therefrom only those costs and
expenses applicable or allocable to said period, including the
reasonable rental value of the trucks and equipment to be paid to
Contractor. County shall be entitled to the excess, if any, of
revenue over applicable or allocable costs and expenses during
such period. The loss, if any, during such period shall be a
charge against Contractor, and shall be paid to County by
Contractor on demand. Final adjustment and allocation of gross
revenue, costs, and expenses to the period during which County
temporarily assumed the obligations of Contractor shall be
determined by an audit by a Certified Public Accountant and
prepared in report form with his unqualified opinion annexed
thereto.
Nothing in this Agreement shall prevent County during any
period in which County temporarily assumes the obligations of
Contractor under this Agreement, from employing persons who were
employed by the Contractor for the collection of Solid Waste
under this Agreement.
Upon the occurrence of a material breach and the declaration
of such and termination of this Agreement by the Board of
Supervisors, this Agreement and the franchise granted thereunder
shall be of no further force and effect, expecting these
provisions concerning County' s right to temporarily assume
Contractor's obligations and to use Contractor's facilities, and
Section 28 ( Indemnification) . County then shall be free to enter
into whatever other arrangements are deemed justified and
necessary for the collection, removal and disposal of Solid Waste
within the Franchise Area.
May 2, 1995 19
36 . EMERGENCY. Notwithstanding Contractor's exclusive
franchise rights set forth in Paragraph 5 (Exclusive Privilege
and Duty) , in the event of an emergency due to natural disaster
or labor strike which interrupts the collection of Solid Waste by
Contractor, the Board of Supervisors shall have the right to
declare a temporary suspension of this Agreement for the
reasonable duration of the emergency and until such time as
County determines that Contractor is able to reassume all
obligations under this Agreement. Should Contractor fail to
demonstrate to the satisfaction of the Board of Supervisors that
required services can be resumed by Contractor prior to the
expiration of a six (6 ) month period, this -Agreement may be
terminated at the direction of the Board.
37. 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 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
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.
38 . AMENDMENT OR MODIFICATION. This Agreement may be
amended or modified upon written agreement of the parties hereto.
The parties agree to meet and confer in good faith if amendments
or modifications are proposed.
39 . POLICE POWERS. Nothing in this Agreement is intended
to or may limit County authority pursuant to its police power.
40. 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.
This section shall not be construed to prevent either party
from seeking redress from the courts for the purpose of legal
review of administrative proceedings regarding rate setting or
County actions taken pursuant to this Agreement, or for the
purpose of interpreting or enforcing the provisions contained in
this Agreement.
41 . SEVERABILITY. In the event legal action is brought by
a person or entity, other than the parties to this Agreement, to
challenge, invalidate, contest or set aside any of the provisions
May 2, 1995 20
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.
42 . WAIVER. The waiver by either party of any breach or
violation of any provisions of this Agreement shall not be deemed
to be 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.
43 . 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.
44 . NEW AGREEMENT. Upon the effective date of this
Agreement, all other Agreements between the parties for the
provision of solid waste and/or recycling services within the
Franchise Area are superseded except that all continuing
obligations under said superseded agreements shall continue in
full force and effect for the periods covered by said superseded
agreements .
45. ENTIRE AGREEMENT. This Agreement represents the full
and entire agreement between the parties hereto with respect to
the matters covered herein.
46 . OPERATIVE DATE. a. This Agreement becomes operative
on the effective date in Section 1, except as follows .
b. For the North Concord region depicted in the inset on
Exhibit A, the operative date shall be March 31, 1996 .
c. For the portions of the Franchise Area that are located
within the Ironhouse Sanitary District and the Byron Sanitary
District, as depicted on Exhibit A, the provisions of this
section become operative on the effective date in Section 1 and
the remainder of this Agreement becomes operative as set forth
herein. The County may, at any time, elect to have the remaining
provisions of this Agreement become operative in said
territories, and may contract with the appropriate District
Board, with the District Board's concurrence, for the
May 2, 1995 21
administration of this Agreement and the provision of policy
recommendations to the Board of Supervisors. The County may at
any time cause the remaining provisions of this Agreement to
become operative within the Ironhouse Sanitary District and/or
the Byron Sanitary District by providing sixty (60) days' written
notice to Contractor of County's decision to do so. Contractor
shall notify the Ironhouse Sanitary District and the Byron
Sanitary District of the requirements of this section and, in the
event 60 days ' written notice is given to Contractor by County as
provided in this section, Contractor shall immediately notify the
District that such notice has been received. Until such notice
is given, County hereby directs Contractor' to continue its
operations consistent with its franchise agreement within the
Sanitary Districts . Upon County's request, Contractor shall
provide County with a status report of said operations within the
District territories. Except for the requirements of this
section, until this Agreement is made operative as to the
territories within the Ironhouse and Byron Sanitary Districts as
set forth herein, neither County nor Contractor shall be required
to fulfill any of their obligations to each other under this
Agreement for said territories.
COUNTY OF CONTRA COSTA
CHAIR, BOARD OF SUPERVISORS Date
ATTEST, Phil Batchelor,
Clerk of the Board
and County Administrator
By:
DEPUTY
CONTRACTOR
GARAVENTA ENTERPRISES,
a California Corporation
By: Silvio Garaventa, Sr. Date
President
Taxpayer I .D. No.
LTF
17a: \grv5295 . fin
May 2, 1995 22
>10 "r
Garaventa Enterprises
4080 MALLARD DRIVE • P.O.BOX 5397
CONCORD, CALIFORNIA 94520
(415) 689-8390
April 14, 1995
Valentin Alexeeff, Director
Growth Management and Economic Development Agency
651 Pine Street, 2nd Floor, N. Wing
Martinez, CA 94553
Re: Maximum Rates in Garaventa Franchise Area
Dear Mr. Alexeeff:
This letter confirms that the highest monthly rates for the
handling of Commercial Solid Waste (defined in section 2.d. of the
Franchise Agreement with Garaventa Enterprises) currently charged
by Garaventa Enterprises and related companies within the Garaventa
Franchise Area described in Exhibit A to the Agreement are the
rates as described in Attachments A-1 and A-2 to this letter. We
understand those rates will be the maximum monthly rates, as
described in the Franchise Agreement at section 8, for the handling
of Commercial Solid Waste. We understand that this letter will be
included as Exhibit B to the Franchise Agreement With Garaventa
Enterprises to confirm that mutual understanding.
This letter also confirms that the highest monthly rates for
handling Residential Solid Waste (defined in section 2 .n. of the
Agreement) currently being charged by Garaventa Enterprises and
related companies within the Garaventa Franchise Area described in
Exhibit A to the Agreement are the rates described in Attachment
A-3 to this letter. With the approval of the Franchise Agreement
with Garaventa Enterprises, the Board will establish those rates
as the maximum monthly rates, as defined in the Franchise Agreement
at section 8, for the handling of Residential Solid Waste in the
Garaventa Franchise Area.
The maximum residential rates in Attachment A-3 reflect the fact
that based on the last Board of Supervisors' action on this
Franchise Agreement, residential rates have now been reduced by two
dollars per month. Furthermore, existing Garaventa residential
customers are being credited on their latest bill with a
retroactive reduction equivalent to two dollars per month for
EXHIBIT B
Valentin Alexeeff, Director
April 14, 1995
Page 2
provided service dating back to January 1, 1995, consistent with
our voluntary commitment to the Board of Supervisors.
The Franchise Agreement only sets the maximum rates to be charged.
There are no minimum rates. It is acknowledged by Garaventa
Enterprises that the County is free to initiate a review and
potential reduction of those maximum rates with 60 days notice to
the Contractor, consistent with section 9 of the Franchise
Agreement. Notwithstanding the established maximum rates, please
be advised that for any residential customers presently receiving
service from Pleasant Hill Bayshore Disposal Company in the
unincorporated areas near Antioch, Bay Pointe and Concord and which
will now receive waste collection service from Garaventa
Enterprises or related companies under this Franchise Agreement,
their rates will be the current rates being charged by Pleasant
• Hill Bayshore or an amount equal to the rate charged to adjoining
Garaventa residential customers after the Franchise Agreement with
Garaventa Enterprises goes into effect, whichever is less. When
the adjoining Garaventa residential rate is less than the present
Pleasant Hill Bayshore rate, then any rate changes shall equally
apply to both sets of residential customers.
Please also be advised that if Garaventa Enterprises and related
companies intend to further decrease the rates they charge to
residential customers with the Franchise Area, the County will be
notified in advance. Our desire is to reduce the rates by two
dollars more per month when The Recycling Center and Transfer
Station is opened.
Very truly yours,
GARAVENTA ENTERPRISES, INC.
Silvio Garavent Jr.
Vice President
SGJ:kh
Attachments (A-1, A-2 and A-3)
EXHIBIT B
r
MONTHLY MAXIMUM COMMERCIAL CAN RATES
# of pickups 1 x wk 2 x wk 3 x wk 4 x wk 5 x wk
1 Can $23 .00 $46.00 $69 .00 $92.00 $115.00
2 Cans $46. 00 $92. 00 $138. 00 $184. 00 $230. 00
3 Cans $69.00 $138. 00 $207. 00 $276. 00 $345. 00
4 Cans $92. 00 $184 .00 $276.00 $368.00 $460. 00
5 Cans $115. 00 $230. 00 $345. 00 $460. 00 $575. 00
MONTHLY MAXIMUM COMMERCIAL TOTER RATES
# of pickups 1 x wk 2 x wk 3 x wk 4 x wk 5 x wk
1 Toter $36. 10 $72 .20 $108.30 $144. 40 $180.50
2 Toters $72 .20 $144 .40 $216. 60 $288.80 $361. 00
3 Toters $108. 30 $216. 60 $324 .90 $433 . 20 $541. 50
4 Toters $144.40 $288.80 $433 .2.0 $577. 60 $722 . 00
5 Toters $180. 50 $361. 00 $541. 50 $722 . 00 $902 . 50
Attachment A-1 to Exhibit B to
Garaventa Franchise Agreement
EXHIBIT B
MONTHLY MAXIMUM 2 YARD BIN RATES
# of pickups 1 x wk 2 x wk 3 x wk 4 x wk 5 x wk
1 Bin $169 .60 $285.35 $401.00 $516.70 $632 .45
2 Bins $339.20 $570.70 $802.00 $1, 033 .40 $1,264. 90
3 Bins $508.80 $856.05 $1, 203 . 00 $1,550. 10 $1,897.35
4 Bins $678.40 $1, 141.40 $1, 604 . 00 $2 , 066.80 $2, 529.80
5 Bins $848. 00 $1,426.75 $2, 005. 00 $2,583 . 50 $3, 162 .25
Extras Dimensions
Extra Bin Pickup $83 . 00 72" Length
One Time Lock Charge $75.00 35" Width
Lock Replacement $20. 00 41" Height
Charge to Steam Clean $75.00
Replace Bin for UPB $75. 00
Attachment A-2 to Exhibit B to
Garaventa Franchise Agreement
EXHIBIT B
R
Y
MONTHLY MAXIMUM RESIDENTIAL RATES
Monthly Fee Quarterly .Fee
Mini-Can Service RMI-1 $14. 60 $43.80
1 Can Service R11-1 $18 .75 $56.25
2 Can Service R11-2 $24 .25 $72 .75
3 Can Service R21-3 $29.75 $89.25
Toter Service RT1-1 $21.75 $65.25
BASIC SERVICE:
Mini-Can Service = 1 can 20 gal. maximum, w/2 bags yard waste.
One Can Service = 1 can 32 gal. maximum, w/2 bags yard waste.
Toter Service = 1 toter, 90 gal. capacity, (no additional yard waste) .
Recycling .included in all residential service.
Yard waste not separately picked up.
Attachment A-3 to Exhibit B to
Garaventa Franchise Agreement
EXHIBIT B
o
FRANCHISE AGREEMENT WITH
PLEASANT HILL 6AYSHORE DISPOSAL, INC.
4 RECEIVED
2,51995
a
CLERK BOARD OF ERVISORS1.
CONTRA COSTA CO.
CONTRA COSTA COUNTY
- r
TABLE OF CONTENTS
1. EFFECTIVE DATE, PARTIES. . . . . . . . . . . . . . . . . , 1
2. DEFINITIONS. . . . . . . . . . . . . . . . . . . . . . 1
a. Agreement. . . . . . . . . . . . . . . . . . 1
b. Act. . . . . . . . . . . . . . . . . . . . . . . 1
C. Board. . . . . . . . . . . . . . . . . . . . . 1
d. Commercial Solid Waste. . . . . . . . . . . . . 1
e. Contractor. . . . . . . . . . . . . . . .. . . . . 1
f. County. . . . . . . . . . . . . . . . . . . . . 1
g. Customers . . . . . . . . . . . . . . . . . . . . . 1
h. Designated Waste. . . . . . . . . . . . . . . . . . 1
i. Franchise Area. . . . . . . . . . . . . . . . 2
j . Hazardous Waste. . . . . . . . . . . . . . . . . . 2
k. Industrial Waste. . . . . . . . . . . . . . . . . 2
1 . Infectious Waste. . . . . . . . . . . . . . . . . . 2
M. Recycle or Recycling. . . . . . . . . . . . . . . . 2
n. Residential Solid Waste. . . . . . . . . . . . . 3
0. Septage. . , . . . . . . . . . . . . . . . 3
P. Solid Waste. . . . . . . . . . . . . . . . . . . . 3
q. Waste Stream. . . . . . . . . . . . . . . . . . . 3
3 . TERM. . . . . . . . . . . . . . . . . . . . . . . . 3
4 . INTENT TO REGULATE ALL RECYCLING AND RESIDENTIAL AND
SOLID WASTE COLLECTION, REMOVAL AND/OR DISPOSAL. 3
5 . EXCLUSIVE PRIVILEGE AND DUTY. . . . . . . . . . . . . . 3
6 . EXCEPTIONS TO EXCLUSIVE PRIVILEGE. . . . . . . . . . . . 4
7 . CONTRACTOR'S DUTY TO MAINTAIN RECORDS; COUNTY'S
RIGHT TO EXAMINE RECORDS. . . . . . . . . . . . . . 4
8. RATES. . . . . . . . . . . . . . . . . . . . . . . . . . . 5
9 . RATE APPLICATIONS. . . . . . . . . . . . . . . . . . . 6
10. OPERATION BY CONTRACTOR. . . . . . . . . . . . . . 7
11. LIMITATION ON TIME AND MANNER OF COLLECTION. . . . . . . 7
12 . CUSTOMER SATISFACTION, AB 939 AND EFFICIENCIES IN
OPERATION. . . . . . . . . . . . . . . . . . . . . . . . 8
13. CUSTOMER SERVICE STANDARDS. . . . . . . . . . . . . . . 9
May 3, 1995 i
14 . LOCAL ADVISORY BOARD. . . . . . . . . . . . . . . . . . 10 -
15. CUSTOMER COMPLAINTS. . . . . . . . . . . . . . . . . . 10
16 . BILLING. . . . . . . . . . . . . . . . . . . . . . . . . 10
17 . RECYCLING. . .. . . . . . . . . . . . . . . . . . . . . . . 10
18. FREE SERVICE FOR COUNTY. . . . . . . . . . . . . . 11
19 . FRANCHISE AREA-WIDE COLLECTION. . . . . . . . . . . . . 11
20. PARTICIPATION IN COMMUNITY CLEAN-UP PROJECTS. . . . . . 11
21. DISPOSAL AND WASTE STREAM CONTROL. . . . . . . . . . . . 11
22 . MISCELLANEOUS ' OBLIGATIONS OF CONTRACTOR. . . . . . . . . 12
23. ADMINISTRATIVE SERVICES AND FRANCHISE FEES. . . . . . . 12
24 . HAZARDOUS WASTE. . . . . . . . . . . . . . . . . . . . . 12
25. PRELIMINARY DISPUTE RESOLUTION. . . . . . . . . . . 13
26 . FAITHFUL PERFORMANCE BOND. . . . . . . . . . . . . . . . 13
27 . INSURANCE. . . . . . . . . . . . . . . . . . . . . . . . . 13
28. INDEMNIFICATION. . . . . . . . . . . . . . . . . . . . . 14
29 . ATTORNEY'S FEES. . . . . . . . . . . . . . . . . 15
30. ASSIGNABILITY. . . . . . . . . . . . . . . . . . . . . . 15
31. INVOLUNTARY ASSIGNMENT. . . . . . . . . . . . . . . . . 16
32. NOTICE PROVISIONS. . . . . . . . . . . . . . . . . . . . 17
33. ANNEXATION AND CHANGE OF FRANCHISE AREA BOUNDARIES. . . 17
34 . AFFILIATED ENTITIES. . . . . . . . . . . . . . . . . . 17
35. BREACH AND TERMINATION. . . . . . . . . . . . . . . . . 18
36 . EMERGENCY. . . . . . . . . . . . . . . . . . . . . . . . 19
37 . COMPLIANCE WITH FEDERAL, STATE AND LOCAL LAWS. . . . . . 20
38 . AMENDMENT OR MODIFICATION. . . . . . . . . . . . . . 20
39 . POLICE POWERS. . . . . . . . . . . . . . . . . . . . . . 20
May 3, 1995 ii
40. CONTEST OF AGREEMENT'S TERMS. . . . . . . . . . . . . . 20
41. SEVERABILITY. . . . . . . . . . . . . . . . . . . . . . 20
42 . WAIVER. . . . . . . . . . . . . . . . . . . . . . . . 21
43. SURVIVAL OF OBLIGATIONS. . . . . . . . . . . . . . . . . 21
44 . NEW AGREEMENT. . . . . . . . . . . . . . . . . . . . . 21
45. ENTIRE AGREEMENT. . . . . . . . . . . . . . . . . . . . 21
46 . OPERATIVE DATE. . . . . . . . . . . . . . . . . . . . . 21
47. GUARANTY. . . . . . . . . . . . . . . . . . . . . . . . 21
May 3, 1995 iii
FRANCHISE AGREEMENT WITH
PLEASANT HILL BAYSHORE DISPOSAL, INC.
1. EFFECTIVE DATE, PARTIES. This Agreement is binding
between the County and the below named Contractor and is
effective on the date last signed by the parties hereto.
2 . DEFINITIONS. As used herein, the following terms shall
have the meanings set forth below:
a. Agreement. Agreement means this Agreement by and
between the County and Contractor for the collection,- removal,
and disposal of solid waste and the recycling of material.
b. Act. Act means the California Integrated Waste
Management Act of 1989 (Public Res. Code, § 40000 et seq. ) and
all rules and regulations adopted under any of those sections, as
such sections, rules and regulations may be amended from time to
time in the future.
C. Board. Board means the Board of Supervisors for
the County of Contra Costa.
d. 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 wastes from heavy industry (i.e. ,
industry that manufactures or processes petroleum, lumber, steel,
chemicals, explosives, fertilizers, gas, rubber, cement,- -sugar
and other products [see section 84-60.402 of the Contra Costa
County Ordinance Code. ] ) .
e. Contractor. Contractor means Pleasant Hill
Bayshore Disposal, Inc. a wholly owned subsidiary of Browning
Ferris Industries of California, Inc. , a California Corporation,
and is the entity which has been granted an exclusive franchise
pursuant to the terms and conditions set forth herein.
f. County. County means the County of Contra Costa.
g. Customers. Customers means those who have
contracted with the Contractor for the collection of materials
for recycling and/or for the collection, removal, or disposal of
Solid Waste, pursuant to this Agreement and applicable ordinances
of County, including mandatory subscription ordinances .
h. 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.
May 3, 1995 1
i. Franchise Area. Franchise Area means the
geographic area generally described in Exhibit A to this
Agreement, which Exhibit is attached hereto and incorporated
herein by reference, and illustrated in the six hundred (600)-
scale maps to be maintained and available for inspection at the
Community Development Department. Exhibit A and said six hundred
(600)- scale maps shall be amended from time to time to reflect
changes of boundaries of the Franchise Area in such a manner as
to identify each alteration to the Franchise Area and the
effective date thereof.
J . Hazardous Waste. Hazardous Wastes include any
waste material or mixture of wastes which is toxic, corrosive,
flammable, an irritant, 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 an approximate 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) . ( 14 Cal.Code Regs. , S 17225.32 . )
k. Industrial Waste. Industrial Waste includes all
types of Solid Waste which result from industrial processes and
manufacturing operations and/or which originates from such
facilities .
1. Infectious Waste. Infectious Wastes include:
( 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, as is also defined in
Section 314 (d) of the California Administrative Code, Title 17 .
( 14 Cal -Code Regs . , S 17225 . 36 . )
M. Recycle or Recycling. Recycle or Recycling means
May 3, 1.995 2
the process of collecting, sorting, cleaning, treating and
reconstituting materials and recovering them so that they may be
used in the form of raw material for new, reused, or
reconstituted products.
n. 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.
o. 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.
P. Solid Waste. Solid Waste has the meaning set
forth in Section 40191 of the California Public Resources Code as ,
of the date of execution of this Agreement. Solid Waste
includes, but is not limited to, all putrescible and
nonputrescible solid, semisolid, and liquid wastes, including
garbage, trash, refuse, paper, rubbish, ashes, demolition and
construction wastes, abandoned vehicles and parts thereof,
discarded home and industrial appliances, dewatered, treated, or
chemically fixed sewage sludge which is not hazardous waste,
manure, vegetable or animal solid and semisolid wastes and other
discarded solid and semisolid wastes. "Solid Waste" does not
include infectious, , designated, and hazardous waste, except
household hazardous waste.
q. 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, at
County's discretion, 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 35 (Breach and
Termination) , the term of this Agreement and the exclusive
franchise granted hereunder shall be 20 years, commencing on the
effective date first mentioned in section 1 of this Agreement.
4. ' INTENT TO REGULATE ALL RECYCLING AND RESIDENTIAL AND
SOLID WASTE COLLECTION, REMOVAL AND/OR DISPOSAL. The parties
hereto agree -that County currently has jurisdiction to regulate
the collection, removal and disposal of all Solid Waste, and the
recycling of all material, in the Franchise Area. The intent of
this Agreement is to regulate Solid Waste handling service and
recycling of material in the Franchise Area.
5 . EXCLUSIVE PRIVILEGE AND DUTY. To the extent allowed by
law, County hereby grants to Contractor the exclusive privilege
May 3, 1995 3
and duty to collect and remove for disposal and recycling, all
residential and commercial Solid Waste, including recyclable
materials, within the Franchise Area 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.
The Franchise Area may be expanded or reduced in size by
mutual. agreement of the parties, or as provided in Section 33
(Annexation and Change of Franchise Area Boundaries) of this
Agreement.
6 . EXCEPTIONS TO EXCLUSIVE PRIVILEGE. The exclusive
privilege granted by this Agreement shall not apply if:
(a) A person or entity generates Solid Waste,
including recyclable materials, and personally collects, removes
and disposes or recycles such in a clean and sanitary manner in
conformance with all applicable laws and regulations, including
mandatory subscription ordinances. This exception shall not
apply to a person who incurs a net cost of collection to a third
person in the above described activities; or
(b) A person or entity contracts .with a third person
for the removal and disposal or recycling of inorganic refuse or
garden waste (a "Non-Franchised Contractor" ) and such removal and
disposal or recycling is solely incidental to work such as
remodeling or gardening occasionally performed by or for the
customer. This exception shall not apply if the Non-Franchised
Contractor incurs a net cost of collection to any third person in
connection with its collection and/or disposal of said Solid
Waste.
7. CONTRACTOR'S, DUTY TO MAINTAIN RECORDS; COUNTY'S
RIGHT TO EXAMINE RECORDS. Contractor shall maintain a ,proper set
of books and records in accordance with generally accepted
accounting principles, accurately reflecting the business done by
it under this Agreement.
Contractor shall further maintain and make available to
County, upon its request, records as to number of Customers,
total and by type, route maps, service records and other
materials and operating statistics in such manner and with such
detail as County may require. County shall treat the information
required by this paragraph that affects the competitive position
of the company as confidential information to the extent
permitted by law.
County may at any time during the term of this Agreement,
have the books and records of the Contractor examined by a County
Agent or Agents appointed for that purpose by the County. County
shall give thirty ( 30) days ' written notice to the Contractor of
May 3, 1995 4
such examination date. County expenses incurred under this
section shall be paid by Contractor subject to their recovery
through the rates allowed by the County hereunder.
The information required by this section shall pertain to
Contractor' s operations covered and regulated by this Agreement,
and nothing contained herein shall require the Contractor to
provide the County with information pertaining to the
Contractor's operations which are not regulated by the County.,
except in conformance with this section.
County's Agents may examine Contractor's books, records and
financial statements pertaining to operations not regulated by
the County as may be reasonably required for the sole purpose of
gathering information necessary to allow the Agents to ascertain
whether income, expenses, assets and liabilities are reasonably
and consistently allocated among operations regulated by County
and those not regulated by the County. Contractor shall obtain
County's written approval of its method of segregating its
financial records between County-regulated and non-County
regulated operations. County shall not unreasonably withhold
such approval.
To the extent allowed by law, information gained from
examination of records pertaining to operations not regulated by
the County shall be treated by County and its agents as
confidential information.
For the review of books and other financial records
necessary to verify the Contractor's income, expenses, assets and
liabilities, "County Agent" shall mean County employees .or an
independent Certified Public Accountant or public accountancy
firm. For all other information or records, including the
results of financial verification, "County Agent" shall mean any
consultant designated by the County' or County employees .
Nothing in this section will prevent County from allowing
public access to County records as provided for under the
California Government Code, and in the event any dispute arises
as to the public access to information provided by Contractor
under the terms of this Agreement, the County shall in its
discretion provide public access to said information according to
law or tender the defense of any claims made against the County
concerning said information to Contractor. Prior to releasing
any information pursuant to this paragraph, County shall make a
good faith effort to notify Contractor of the intended release.
8. RATES. Rates shall be fixed by the County from time
to time. In determining the rates, the County shall consider
fairness to both Contractor and the Customers. Reasonable costs
incurred by Contractor pursuant to this Agreement shall be
designated as "pass-through" or "subject to reasonable profit" as
May 3, 1995 5
determined by the County during the rate review process. Rates
fixed by County shall be maximum rates which Contractor may
charge the Customers. The maximum rates fixed by the County at
this time shall be the highest commercial rate and the highest
residential rate being charged by Contractor within the Franchise
Area immediately before the effective date of this Agreement as
set forth in Exhibit C • Nothing in this Agreement
precludes Contractor from charging rates less than the maximum
rates fixed by the County. Pending a rate review by the County,
the maximum rates chargeable shall be those rates charged on the
effective date of this Agreement.
Following consultation with the Contractor and examination
of industry norms and trends, the County, in its sole discretion,
shall determine the method of determining Contractor
profitability.
All costs associated with County review and processing of
rate applications shall be paid by Contractor and shall be
allowed as a pass-through cost in the rate application process .
Contractor will offer a mini-can program at reduced rates as
directed by the County following consultation with Contractor.
9 . RATE APPLICATIONS. Rate applications shall be prepared
in accordance with such forms and in such detail as required by
the County. The application shall include one reproducible hard
copy, 15 hard copies bound in an appropriate manner and one copy
on disk formatted pursuant to County specifications.
Contractor shall submit its first rate application as
directed by the County. All rate applications shall include
information from the previous rate change to the present, or such
other period of time as is selected by the County. Every three
years, a rate application shall be accompanied by .an audited
financial statement covering the entire period since the last
audited rate application together with supporting documentation
as required to segregate its County regulated activities from
other business activities.
The County Administrator may, in writing, allow the rate
application to be submitted without an audited financial
statement provided the County Administrator is satisfied that the
level of verifiable detail allows for adequate assessment of the
Contractor's income, expenses, assets and liabilities .
Rate changes may be initiated by County at any time or by
Contractor under the conditions allowed in this section. In
either case, Contractor shall prepare a rate application in
accordance with the requirements of this section.
May 3, 1995 6
I
If the rate change is initiated by County, the Contractor
shall submit its rate application to County within 60 days of
County's notice to Contractor.
If the rate change is initiated by Contractor, it shall be
submitted no more than once a year under normal operating
conditions . The date of Contractor initiated applications -shall
be standard, year by year; such date to be determined upon mutual
agreement of the parties and reasonably related to the fiscal
year of Contractor.
In the event that the rate change that would be requested by
Contractor is no more than the change in the Consumer Price Index
for All Urban Consumers for the San Francisco Bay Area for that
fiscal year of Contractor, Contractor may increase its rate up to
such amount and not request a rate change from the County.
Contractor may defer a rate application pursuant to this
paragraph for a maximum of two consecutive years.
In the event that Contractor must make significant changes
in its operations or experiences significant changes in costs of
revenue not under its control, Contractor may submit a rate
application. Contractor shall provide documentation for the need
for such rate application relative to those changes. The
application will thereafter be considered by the Board.
10. OPERATION BY CONTRACTOR. Contractor shall furnish all
necessary equipment (excluding containers for single-family
residential wastes) for services provided pursuant to this
Agreement in the Franchise Area and shall maintain such equipment
in a sanitary condition at all times . Contractor shall furnish
all necessary labor in connection with the operation of a Solid
Waste collection system in the Franchise Area.
The Contractor, in performance hereof, shall use trucks with
covered, water-tight truck bodies constructed of sufficient
strength to withstand a fire within, without endangering adjacent
property. Trucks, drop boxes, bins, or similar types of
equipment shall be kept clean and in good repair. Contractor
shall have its name and telephone number on the side of each
truck and on each drop box, bin or similar type equipment
provided by Contractor.
11. LIMITATION ON TIME AND MANNER OF COLLECTION.
Contractor shall systematically collect Solid Waste, and to the
extent permitted by this Agreement, materials for recycling from
its Customers . Frequency, place of pickup (e.g.., curbside,
backyard, etc. ) or any other manner of collection shall be
subject to the review and approval of the Director of Community
Development. Upon commencement of service and upon changes in
collection day schedules, Contractor shall provide each customer
with notice of the scheduled collection day. Contractor ,shall
May 3, 1995 7
f
not collect Solid Waste from an inhabited dwelling or dwelling
unit between the hours of 7 :00 p.m. and 4:00 a.m. , except that if
a dwelling unit is part of a collection route that predominately
serves commercial accounts, collection may begin as early as
3:00 a.m.
12 . CUSTOMER SATISFACTION, AB 939 AND EFFICIENCIES IN
OPERATION. (a) From time to time, at its discretion, County may
examine Contractor's operation in order to evaluate whether the
Contractor is operating at a satisfactory level of efficiency and
customer satisfaction. Contractor agrees to cooperate in any
such examination and shall permit County representatives to
inspect, at Contractor's principal place of business, such
information pertaining to Contractor's obligations .hereunder as
County may require, including, but not limited to, such things as
customer inquiry records, collection routes and equipment
records. Access to Contractor's records shall be subject to
Paragraph 8 (Contractor' s Duty to Maintain Records; County's
Right to Examine Records) .
(b) Notwithstanding any contrary provision in this
Agreement, the County shall have the right to direct Contractor
to 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 requested
by the County 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 County harmless
from and against any and all liability to the State of California
for the County's noncompliance with the requirements of the
California Integrated Waste Management Act due in whole or
material part to the material failure of Contractor to properly
carry out the reasonable directives of the County to Contractor
regarding collection and disposition of Solid Waste and
recyclable material; provided, however, that Contractor shall not
be obligated to carry out any such directive (and shall not
indemnify nor hold the County harmless from any resulting
liability) if the County fails to agree to allow Contractor its
reasonable costs (including a reasonable profit) associated with
carrying out such directives.
(c) County may require Contractor to develop plans for and
conduct programs on alternative methods of Solid Waste
collection, including pilot programs of limited scope, or may
require additional programs, for the purpose of improving
service, increasing customer satisfaction, and meeting diversion
requirements . County may also require Contractor to implement
efficiencies in its operation upon written notice from County.
May 3, 1995 8
f
The notice shall allow Contractor a reasonable period of time to
implement the specified service (efficiency). Should County
require commencement of such a program as outlined in this
paragraph, Contractor agrees not only to do those things
specified herein, but also to act at the direction of the County
on other matters that may be necessary for the success and
efficiency of the project, such as public information and
notification. In the event that County elects to direct
Contractor to discontinue any service theretofore performed by
Contractor at the direction of County hereunder, County shall
allow Contractor to recover its reasonable capital equipment
costs and other reasonable costs arising upon termination of the
service. Rate adjustments applicable solely to programs
instituted. pursuant to this subsection (c) initially shall be
established at the time the County authorizes implementation of
the program or efficiency.
13. CUSTOMER SERVICE STANDARDS. Contractor shall provide
prompt, efficient, continuous and professional service to its
Customers . Contractor shall have a phone system with sufficient
capacity to promptly respond to telephone calls for at least 8
hours a day during weekdays, excluding those holidays observed by
Contractor. Telephone numbers for customer service shall be
located in the local telephone directory. All telephone lines
for customer service shall be toll free to Customers .
Not less than once every three years 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 Director of Community Development. A
copy of the survey results shall be sent to the County within
sixty (60) days of completion' of the survey. Nothing in this
paragraph shall limit the right of the County to conduct
additional surveys. The Contractor shall cooperate with the
County in such cases .
Upon initiation of service, and at least once a year,
Contractor shall send or deliver to Customers information
concerning the conditions of service, including, but not limited
to, rates, fees, charges, service options, payment options,
discounts (if any) , days of collections, the amount and manner of
refuse to be collected, service level and inquiry/complaint
procedures, including the name, address and local telephone
number of Contractor and the name, address and telephone number
of the County Community Development Department. The form and
content shall be subject to the review and approval of the
Director of Community Development.
May 3, 1995 9
14 . LOCAL ADVISORY BOARD. The Board of Supervisors may
designate an existing committee to represent the Franchise Area,
or form an advisory body to advise the Board on the performance
of the Contractor in the community, local service interests and
needs, and rate applications. In all cases, the Committee shall
hold its meetings at a time and place convenient to the public.
The Committee shall keep a record of all public comments and
submit such comments when reporting to the Board.
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 Director of
Community Development.
16 . BILLING. The form and content of customer bills shall
be subject to the review and approval of the Director of
Community Development.
Bills for services may be monthly, bimonthly or quarterly as
determined by County. Contractor may bill its customer in
advance or in arrears: The County may establish billing period
options for Customers upon a finding that such options are cost-
effective and meet a community need.
Full payment for drop boxes may be required by Contractor
prior to delivery of the drop box to the customer.
The County shall have the right to direct the Contractor to
change or alter its billing system in which event the marginal
additional expenses incurred by the Contractor in the
implementation of the change, with regard to the accounting,
printing, mailing, loss of use of funds, or otherwise, shall be
recoverable by the Contractor through the rates allowed by the
County provided such expenses are reasonable. Contractor shall
inform customers of all rate changes at least 30 days prior to
their effective date. A copy or facsimile of such notice shall
be provided to County at the time of customer notification.
17. RECYCLING. County grants to Contractor the right and
obligation to operate recycling programs, including curbside
pickup of recyclable materials, as determined and designated by
County, subject to County's right to terminate this grant to
Contractor pursuant to the provisions of this section.
Contractor has instituted and is implementing a recycling
program including regular curbside pickup at all single family
residences of at least aluminum, tin, newsprint, glass bottles,
non-colored HDPE and PET. This program is currently operating to
the satisfaction of County; however, County has the right at
anytime to modify said program or require new programs as
May 3, 1995 10
provided at Section 12 (b) hereof.
Contractor shall maintain and provide to the County records
relating to its recycling programs as directed by the Director of
Community Development.
Contractor's provision of recycling service shall be
reviewed within three (3) years of the effective date of this
Agreement and, at County's discretion, every five years
thereafter. If County determines that continuation of such
service by Contractor is not consistent with the County's
ratepayers best interest, but not as a result of Contractor's
failure to satisfactorily provide recycling services, Contractor
shall be allowed to recoup its unamortized capital expenditures
as follows. Contractor shall make a good faith effort to sell
all disposable assets acquired in furtherance of the program for
their fair market value. If income derived from the .sale is
insufficient to cover the unamortized costs of such assets,
Contractor may transfer those losses together with net operations
profits or losses to its general account and submit a rate
application to cover such losses.
If County determines that Contractor has failed to
satisfactorily provide and perform recycling services, County 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 County or County's ratepayers.
18. FREE SERVICE FOR COUNTY. Contractor shall provide
Solid Waste collection and disposal services at those County
buildings designated by the Director of Community Development
from time to time, at no charge to the County.
19 . _FRANCHISE AREA-WIDE COLLECTION. In addition to its
regular collections, Contractor shall provide two annual
collections for each region in the Franchise Area as determined
by the Community Development Director. Said collections shall be
made each year throughout the term of this Agreement in
accordance with practices and procedures established by
Contractor and subject to the approval of the Community
Development Director.
20. PARTICIPATION IN COMMUNITY CLEAN-UP PROJECTS.
Contractor shall provide, upon direction of the Community
Development Director, Solid Waste drop boxes or equivalent
containers for community or other clean-up projects within the
Franchise Area. The Contractor's obligation shall be limited to
the equivalent of ten ( 10) 20-cubic yard drop boxes per year, per
region in the Franchise Area.
21. DISPOSAL AND WASTE STREAM CONTROL. Contractor shall be
solely responsible for the disposal of the Solid Waste collected
May 3, 1995 11
pursuant to this Agreement. County has complete authority and
control over the Franchise Area waste stream. County may, at its
sole discretion upon providing 60 days ', notice to Contractor,
direct the Solid Waste collected under this Agreement to be
delivered to any site or facility of its choosing. This shall
include the right of the County to direct the Solid Waste to be
delivered to any County designated transfer station, disposal
site, transformation facility and/or resource recovery facility.
It is understood that County may contract with any party, public
or private, to commit the waste stream from the Franchise area,
and that Contractor's contracts may not bind County, nor need
County consider such other contracts for any purpose.
Notwithstanding the above, Contractor may propose, and
County may but need not consider, waste management and/or
disposition alternatives which are cost effective. In
determining or comparing costs, County shall consider all
relevant factors, including but not limited to, transportation
costs, closure and postclosure requirements, costs and
liabilities, disposal fees, fees levied by governmental entities,
including benefits to Contractor's customers from paying such
fees, costs of compliance with ordinances and other local
requirements, and long-term costs, including degree of control
over future costs.
22 . MISCELLANEOUS OBLIGATIONS OF CONTRACTOR. Contractor
shall assist County in its enforcement of its mandatory
subscription ordinance by providing County with the addresses of
properties not subscribing to collection service within the
Franchise Area and by providing collection service to such
properties upon written request by the County.
23. ADMINISTRATIVE SERVICES AND FRANCHISE FEES. Contractor
shall pay to the County for (a) the services provided by the
County in administering this Agreement, (b) for services and
programs pertaining to Solid Waste provided by the County, and
(c) additionally as directed by the County, a percentage of its
gross annual revenues generated from the performance of such
waste collection services under this Agreement. Such percentage,
time and frequency of payment shall be established by County
from time to time. Said sums shall be payable from the
Contractor to the County upon the inclusion of the administrative
service charge in the allowed rate and upon the collection of
said rate by the Contractor. Such administrative. and program
services and any franchise fees shall be considered a reasonable
cost and subject to "pass-through" as described in Section 8 on
Rates .
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
May 3. 1995 12
providing new definitions, tests and regulations concerning these
substances . Under this Agreement, it is Contractor's
responsibility to keep current with the regulations and tests on
such substances and to identify such substances and to comply
with all federal, state and local regulations concerning such
substances .
Contractor agrees to provide to County upon its request,
Contractor's program for identifying hazardous waste and
complying with all federal, state and local statutes and
regulations dealing with hazardous waste.
Contractor shall make every reasonable effort to prohibit
the collection and the disposal of hazardous waste in any manner
inconsistent with applicable law.
25. PRELIMINARY DISPUTE RESOLUTION. If Contractor has a
question as to the interpretation of this Agreement, it shall
submit a written request to the Director of Community Development
for a determination of the issue. The Contractor shall provide
and submit such information as the Director of Community
Development may request or require to make the requested
determination. The written determination of the Director of
Community Development may be appealed to the Board of Supervisors
pursuant to Ordinance Code Chapter 14-4 .
26 . FAITHFUL PERFORMANCE BOND. Contractor shall submit to
County simultaneously with the execution of this Agreement a
corporate surety bond in the amount of $10,000.00, provided
however, that the Board may increase this amount not more often
than every three years to reflect changes in the Consumer Price
Index for All. Urban Consumers for the San Francisco Bay Area.
The bond shall be executed by a surety company licensed to do
business in the State of California and acceptable to County.
The bond shall be approved by County and shall be payable to
County. The condition of the bond shall be that Contractor will
faithfully perform the duties imposed by ordinance, this
Agreement and the rules and regulations of County. Any action by
County- to proceed against the Bond shall not limit or affect the
right of County to use other remedies available to County under
the Agreement, or in courts -of law or equity. Notwithstanding
the foregoing, in lieu of the corporate surety bond, Contractor
may provide to County a letter of credit, cash bond or other
security. acceptable to the County Administrator's Office in a
form satisfactory to the County.
27. INSURANCE. Contractor shall procure and maintain in
full force and effect at all times during the entire term of this
Agreement the following insurance coverage:
(a) Public liability and property damage insurance
including completed operations, products, contractual, broad form
May 3, 1995 13
property damage, personal injury and owned and non-owned
automobile liability with such coverages and limits as may be
reasonably requested by County from time to time, but in no event
with limits not less than the sum of $1 million combined single
limit for each occurrence arising from the services as stated in
the Agreement herein. County shall be named as an additional
insured under such liability insurance policy or policies, if
commercially available.
(b) Contractor shall carry workers ' compensation
insurance for all its employees.
Evidence of liability and workers ' compensation insurance
shall be provided by Contractor by filing with County a
certificate of insurance indicating that County is 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 County thirty (30) days in advance of the effective
date thereof. No cancellation, alteration or change of
beneficiary shall be made without written notice to County.
County reserves the right to examine all policies 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 County. Failure of Contractor to maintain insurance in the
manner and amount stated herein and as directed by County
Administrator, subject to the approval of the Board, will
constitute a material breach of this Agreement.
28. INDEMNIFICATION. a. Complete Indemnification of
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
County, its officers, employees, agents and assigns against any
and all liability, claims, judgments, or demands, including
demands arising from injuries or deaths of persons and damage to
property, 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 County, and will make good to and reimburse County
for any expenditures, including reasonable attorney' s fees, that
County may make , by reason of such matters and, if requested by
County shall defend any such suit at the sole cost and expense of
Contractor.
The above promise by Contractor to indemnify, hold harmless
May 3, 1995 14
and defend the County expressly includes, but is not limited to,
all claims, damages (including by 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
attorneys 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, County, its officers,
employees or agents arising from or attributable to any repair,
cleanup or detoxification, or preparation and implementation of
any removal, remedial, response, closure or other plan
(regardless or 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 County.
The intent of the section is to provide County with the highest
level of protection possible under existing and future laws .
b. Defense of Agreement. Should any party successfully
challenge the validity of this Agreement, the procedure .by which
this Agreement was entered into or the validity of any County
ordinance which authorizes the County to enter into this
Agreement, then in such case the Contractor shall have no cause
of action for damages or any other relief against County as. a
result of such successful challenge.
Contractor has the right to defend this Agreement and
County. County has no duty to Contractor to defend the validity
of this Agreement or any provision hereof.
29 . ATTORNEY'S FEES. In the event of litigation between
the parties arising hereunder, each party shall be responsible
for and pay its own litigation expenses, including attorney's
fees.
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 County.
The term assignment shall include any dissolution, merger,
consolidation or other reorganization of Contractor, which
May 3, 1995 15
results - in change of control of Contractor.
It is understood and agreed by the parties that any
corporation wholly owned by Browning Ferris Industries of
California, Inc. may presently and in the future perform the
obligations and responsibilities of the Contractor in the regions
of the Franchise Area. Performance of the obligations and
responsibilities of the Contractor by such companies shall not
require an assignment under this section.
In the event Contractor herein attempts to assign or
subcontract this Agreement or any part hereof or any obligation
hereunder, County shall have the right to elect to terminate this
Agreement forthwith, without suit or other proceeding.
Consent to assignment may not be unreasonably withheld.
However, it is understood that County's grant of this franchise
to Contractor is partly persuaded by .the Contractor's financial
strength and background in the field of waste management;
therefore, assuming Contractor maintains it ability to faithfully
carry out its duties hereunder, it is in the County's ratepayers '
best interest for Contractor to continue under this Agreement.
Following a public hearing, County may assign or transfer
any or all of its rights under this Agreement without the consent
of Contractor to any legally authorized public entity.
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 County with the right to elect to terminate
the Agreement forthwith, without suit or other proceeding:
( 1)` If Contractor is or becomes insolvent, or makes an
assignment for the benefit. of creditors;
(2) If Writ of Attachment or Execution is levied on
this Agreement or other property of Contractor such that would
affect Contractor's ability to perform its duties and obligations
under this Agreement.
(3) If in any proceeding to which Contractor is a
party, a Receiver is appointed with authority to take possession
of Contractor's property such that would affect Contractor's
ability to perform its duties and obligations under this
Agreement.
(4) Except as otherwise provided in Section 31
(Assignability) , in the event of a probate proceeding where the
rights of Contractor under the Agreement would pass to another
individual or other individuals.
May 3, 1995 16
32. NOTICE PROVISIONS. Any notice required or permitted
under this Agreement shall be in writing and shall be deemed to
have been given if delivered personally or ten ( 10) days after
posted by certified mail, return receipt requested, addressed as
appropriate either to Contractor:
Pleasant Hill Bayshore, Inc.
Attn: Ken Etherington
441 North Buchanan Circle
Pacheco, CA 94553
Or to County:
Attention: Director of Community Development
651 Pine Street, 4th Floor North Wing
Martinez, California 94553
33. ANNEXATION AND CHANGE OF FRANCHISE AREA BOUNDARIES.
Contractor shall give notice to County by January 30 of the next
calendar year of any geographic area in the Franchise Area or
immediately contiguous to the Franchise Area, in which Contractor
has commenced service within the preceding year, notwithstanding
whether Contractor deems that area to be regulated or
unregulated.
Contractor realizes that the public agency boundaries may be
altered by virtue of actions taken by the Contra Costa County
Local Agency Formation Commission (LAFCO) . Contractor agrees
that should a municipal corporation lawfully annex territory
which is within the Franchise Area, County may make such
alterations to the Franchise Area as the annexation necessitates.
Should the Franchise Area boundaries be amended, Contractor
agrees that it will abide by any change resulting from the
Franchise Area change. Contractor agrees that the Board of
Supervisors may make such alterations to the Franchise Area as
are necessitated by such Local Agency Formation Commission
actions and shall have no right or claim to damages or other
relief against the County for such alterations to the Franchise
Area. However, nothing herein is intended to abrogate
Contractor's rights under Public Resources Code Section 49520 or
any successor or similar statute.
34 . AFFILIATED ENTITIES. Contractor shall provide
information necessary to reasonably satisfy County that the
charges made by any Affiliated Entity are reasonable in
accordance with the provisions of Section 8 (Contractor' s Duty to
Maintain Records; County' s Right to Examine Records) .
Information gained from examination of books and records
pertaining to operations not regulated by the County shall be
treated by the County and- its agents as confidential information.
May 3, 1995 17
"Affiliated Entity" shall be defined, for purposes of this
section, as any. entity which provides products or services to
Contractor and in which either Contractor or the affiliated
entity owns a ten percent ( 10%) or greater interest in the other,
or where one person or entity owns ten percent ( 10%) or greater
interest in both. For purposes of this section, the term
"Contractor" shall include Contractor, and if Contractor is an
individual or a group of individuals (partnership) , all immediate
family members, or if a corporation, major shareholders, and if
any major shareholder is an individual, said individuals'
immediate family members. For the purpose of this paragraph,
"immediate family" includes spouses and relatives of the first
degree of sanguinity, and their spouses .
35. BREACH AND TERMINATION. The Director of Community
Development shall have authority, subject to review by the Board
of Supervisors upon appeal, to- determine whether a breach of any
provision of this Agreement by Contractor has occurred. Any
waiver of a breach,shall not be deemed to be a waiver of any
subsequent breach or to be construed as approval of a course of
conduct. In the event that the Director determines that a breach
has occurred, County shall give Contractor written notice of the
breach setting forth the breach or default. Contractor shall
have a reasonable period to cure the noticed breach, said breach
not to exceed 60 days. In the event the breach or default is
cured to the satisfaction of the Director of Community
Development within the period of time allotted, the breach shall
not be deemed a material breach. In the ,event that the Director
of Community Development determines that Contractor has failed to
satisfactorily cure the breach or default within the period of
time allotted, the Director of Community Development may
determine such breach or default to be material.
Multiple or repeated breaches, or a pattern of breaches and
subsequent attempts to cure said breaches by Contractor shall
provide an adequate basis for the Director of Community
Development, in his discretion, to declare any subsequent breach
to be material, notwithstanding whether that breach is ultimately
cured by Contractor.
If such a determination of material breach is made, the
Director of Community Development's determination shall be
automatically appealed to the Board of Supervisors for final
action.
A material breach shall be cause for termination of. this
Agreement by the Board of Supervisors .
In the event of a termination pursuant to this section,
County shall have the right to temporarily assume the obligations
of Contractor and shall have the right to forthwith take
May 3, 1995 18
possession of all trucks and other equipment of Contractor and
exercise Contractor's right to enter and use any disposal
facilities for the purpose of performing the services agreed to
be performed by Contractor herein until such time as County can
make other arrangements for the performance of said services.
However, such temporary assumption of Contractor's obligations
under the Agreement shall not be continued by County for a period
exceeding twelve ( 12) months from the date such operations are
undertaken by County.
During any period in which County has temporarily assumed
the obligations of Contractor under this Agreement, County shall
be entitled to the gross revenue attributable to operations
during such period and shall pay therefrom only those costs and
expenses applicable or allocable to said period, including the
reasonable rental value of the trucks and equipment to be paid to
Contractor. County shall be entitled to the excess, if any, of
revenue over applicable or allocable costs and expenses during
such period. The loss, if any, during such period shall be a
charge against Contractor, and shall be paid to County by
Contractor on demand. Final adjustment and allocation of gross
revenue, costs, and expenses to the period during which County
temporarily assumed the obligations of Contractor shall be
determined by an audit by a Certified Public Accountant and
prepared in report form with his unqualified opinion annexed
thereto.
Nothing :in this Agreement shall prevent County during any
period in which County temporarily assumes the obligations of
Contractor under this Agreement, from employing persons who were
employed by the Contractor for the collection of Solid Waste
under this Agreement.
Upon the occurrence of a material breach and the declaration
of such and termination of this Agreement by the Board of
Supervisors, this Agreement and the franchise granted thereunder
shall be of no further force and effect, expecting these _
provisions concerning County's right to temporarily assume
Contractor's obligations and to use Contractor' s facilities, and
Section 28 ( Indemnification) . County then shall be free to enter
into whatever other arrangements are deemed justified and
necessary for the collection, removal and disposal of Solid Waste
within the Franchise Area.
36 . EMERGENCY. Notwithstanding Contractor' s exclusive
franchise rights set forth in Paragraph 5 (Exclusive Privilege
and Duty) , in the event of an emergency due to natural disaster
or labor strike which interrupts the collection of Solid Waste by
Contractor, the Board of Supervisors shall have the right to
declare a temporary suspension of this Agreement for the
reasonable duration of the emergency and until such time as
County determines that Contractor is able to reassume all
May 3, 1995 19
obligations under this Agreement. Should Contractor fail to
demonstrate to the satisfaction of the Board of Supervisors that
required services can be resumed by Contractor prior to the
expiration of a six (6) month period, this Agreement may be
terminated at the direction of the Board.
37. 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 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
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.
38. AMENDMENT OR MODIFICATION. This Agreement may be
amended or modified upon written agreement of the parties hereto.
The parties agree to meet and confer in good faith if amendments
or modifications are proposed.
39 . POLICE POWERS. Nothing in this Agreement is intended
to or may limit County authority pursuant to its police power.
40. 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.
This section shall not be construed to prevent either party
from seeking redress from the courts for the purpose of legal
review of administrative proceedings regarding rate setting or
County actions taken pursuant to this Agreement, or for the
purpose of interpreting or enforcing the provisions contained in
this Agreement.
41. SEVERABILITY. In the event legal action is brought by
a person or entity, other than the parties to this Agreement, to
challenge, invalidate, contest or set aside any of the provisions
of this Agreement, each and every term and condition, and each
and every section and paragraph is severable from the remaining
terms, conditions, sections, and paragraphs . The invalidation of
May 3, 1995 20
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.
.42 . WAIVER. The waiver by either party of any breach or
violation of any provisions of this Agreement shall not be deemed
to be 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.
43. 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.
44 . NEW AGREEMENT. Upon the effective date of this
Agreement, all other Agreements between the parties for the
provision of solid waste and/or recycling services within the
Franchise Area are superseded except that all continuing
obligations under said superseded agreements shall continue in
full force and effect for the periods covered by said superseded
agreements.
45 . ENTIRE AGREEMENT. This Agreement represents the full
and entire agreement between the parties hereto with respect to
the matters covered herein.
46 . OPERATIVE DATE. This Agreement becomes operative on
the Effective date as to areas within the Franchise Area subject
to other agreements between the parties (e.g. , portions of the
Bay Point area) . As to all other areas within the Franchise
Area, this Agreement becomes operative on August 5, 1996, or on
such earlier date as the parties may agree.
47 . GUARANTY. Prior to the the operative date, Contractor
shall provide to the Director of Community Development, proof of
guaranty by Browning Ferris Industries of California, Inc. , of
the performance by Contrator of each and every provision of this
Agreement to be performed by Contractor. Proof of Guaranty shall
May 9, 1995 21
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.
42 . WAIVER. The waiver by either party of any breach or
violation of any provisions of this Agreement shall not be deemed
to be 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.
43. 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.
44. NEW AGREEMENT. Upon the effective date of this
Agreement, all other Agreements between the parties for the
provision of solid waste and/or recycling services within the
Franchise Area are superseded except that all continuing
obligations under said superseded agreements shall continue in
.full force and effect for the periods covered by said superseded
agreements.
45 . ENTIRE AGREEMENT. This Agreement represents the full
and entire agreement between the parties hereto with respect to
the matters covered herein.
46 . OPERATIVE DATE. This Agreement becomes operative on
the Effective date as to areas within the Franchise Area subject
to other agreements between the parties (e.g. , portions of the
Bay Point area) . As to all other areas within the Franchise
Area, this Agreement becomes operative on August 5, 1996, or on
such earlier date as the parties .
47 . GUARANTY. Prior to the the operative date, Contractor
shall provide to the Director of Community Development, proof of
guaranty by Browning Ferris Industries of California, Inc. , of
the performance by Contrator of each and every provision of this
Agreement to be performed by Contractor. Proof of Guaranty shall
May 3, 1995 21
i
be in the form set forth in Exhibit B.
COUNTY OF CONTRA COSTA
/
CHAIR, OARD OF SU RVISORS ID fe
ATTEST, Phil Batchelor,
Clerk of the Board FO'ii'-M APPROVED
and County Administrator 'ACTOR J.W AV,County Counsei
h ;;eoutY
By: °
QD ,r UY
CONTRACTOR
PLEASANT HILL BAYSHORE
DISPOSAL, INC. , a, alifornia
Corpo ation
J
Title v Date
ece
Taxpayer I .D. No.
LTF 17a:\frnbfi5 . 395
May 3, 1995 22
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EXHIBIT B
GUARANTY
This Guaranty is made and entered into this is day of June 1995 ,
by and between the County of Contra Costa (hereinafter "County") and
Bro ning-ggerri.s Industries
o California, Inc. a California corporation ("Guarantor").
RECITALS
WHEREAS, Pleasant Hill Bayshore Disposal, Inc. ("Contractor"), an
indirect wholly owned subsidiary of Guarantor desires to enter into a certain
Franchise Agreement with the County (the "Agreement") for the provision of
solid waste handling service within specified areas in the unincorporated area of
the County;
WHEREAS, pursuant to Section 47 of the Agreement,-the County has
demanded that Contractor obtain certain assurances from Guarantor, as to all
conditions and obligations of the Agreement to be fulfilled by Contractor; and
WHEREAS, in'order to induce the County to enter into the Agreement with
Contractor, Guarantor desires to provide the County with said assurances as to
all conditions and, obligations of the Agreement to be fulfilled by Contractor;
NOW, THEREFORE, the County and Guarantor hereby agree as follows:
1. Guarantor hereby guarantees to the County the full performance by
Contractor of all conditions and obligations in the Agreement which are to be
fulfilled by Contractor, provided that the County has fulfilled all of its
obligations under the Agreement, and in particular, without limiting the
foregoing, that the County has provided Contractor with the requisite notice(s) ,
and opportunities to cure as provided for in the Agreement.
2. The County agrees to give Guarantor notice by certified mail, return
receipt requested, at P.O. Box 7 3 2 5, Fremont, CA 9 4 5 3 7 (Attention
General Counsel) each time that the County becomes aware of any fact or
circumstance which may give rise to an obligation of Guarantor to perform
pursuant to this Guaranty.
3. The County shall not sell, assign or otherwise transfer this Guaranty,
or its rights or obligations thereunder, without the written consent of Guarantor,
which consent shall not be unreasonably withheld if the assignment is to a
municipal corporation.
IN WITNESS WHEREOF, this Guaranty has been executed on the date first
above written.
COUNTY OF CONTRA COSTA
By: /
GUARANTOR
By:
Its: Oct ���i
By:
Its:. /CF
1tf Mquaranty.phb
- ® Recycled paper g�
Waste
Systems-
BROWNING-FERRIS INDUSTRIES
Contra Costa County
May 2, 1995
Mr. Val Alexeeff, Director
Growth Management and Economic
Development Agency
County of Contra Costa
651 Pine Street
Martinez, CA 94553
Re: Franchise Agreement with Pleasant Hill
Bayshore Disposal/BFI
Dear Val:
This letter confirms that the highest monthly rates for the
handling of Commercial Solid Waste (defined in Section 2 (d) of
the Franchise Agreement with PHBD/BFI) currently charged by
PHBD/BFI within the Franchise Area described in Exhibit A to the
Agreement are the rates as described in Attachment A-1 to this
letter. We understand those rates will be the maximum monthly
rates, as described in the Franchise Agreement at Section 8, for
the handling of Commercial Solid Waste. We understand that this
letter will be included as Exhibit C to the Franchise Agreement
with PHBD/BFI to confirm that mutual understanding.
This letter also confirms that the highest monthly rates for
handling Residential Solid Waste (defined in Section 2 (n) of the
Agreement) currently being charged by PHBD/BFI within the
Franchise Area described in Exhibit A to the Agreement are the
rates described in Attachment A-2 to this letter. With the
approval of the Franchise Agreement, the Board will establish
those rates as a maximum monthly rate, as defined in the
Franchise Agreement at Section 8, for the handling of Residential
Solid Waste in the PHBD/BFI franchise area. The maximum
residential rates in Attachment A-2 reflect reductions in, rates
previously made by PHBD/BFI to reflect reduced gate charges at
the S.T.A.R. transfer station and Keller Canyon Landfill.
The Franchise Agreement only sets the maximum rates to be
charged. There are no minimum rates. It is acknowledged by
PHBD/BFI that the County is free to initiate a review and
potential reduction of those maximum rates with 60-days notice to
the Contractor, consistent with Section 9 of the Franchise
Agreement.
EXH I B IT C.
SOLID WASTE COLLECTION BFI TRANSFER KELLER CANYON
AND RECYCLING DISTRICT • STATION AT MARTINEZ • SANITARY LANDFILL
(510) 685-4716 (510) 313-8900 (510) 458-9800
441 N. BUCHANAN CIRCLE • PACHECO, CA 94553 • P.O. BOX 23164 • PLEASANT HILL, CA 94523
(510) 685-4716 • FAX: (510) 685-4735
Mr. Val Alexeeff, Director
May 2, 1995
Page 2
Please also be advised that if PHBD/BFI intends to further
decrease the rates it charges to residential customers within the
Franchise Area, the County will be notified in advance.
Very truly yours,
PLEASANT HILL BAY HOR DISPOSAL
Ken Etheringt
r t u a
BFI - PLEASANT HILL BAYSHORE DISPOSAL, INC.
MONTHLY MAXIMUM COMMERCIAL RATES
Commercial Can Services:
#of 32 gallon Extra
I r
Cans Serviced 1x 2x 3x 4x 5x Pickups
1 $15.15 $30.30 $45.45 $60.60 $75.75 $10.00
2 $30.30 $60.60 $90.90 $121.20 $151:50 per can
3 $45.45 $90.90 $136.35 $181.80 $227.25
4 $60.60 $121.20 $181.80 $242.40 $303.00
5 $75.75 $151.50 $227.25 $303.00 $378.75
Commercial Cart Seryices:
#of 64 gallon Ron Extra
Carts Serviced 1x 2x 3x 4x 5x Pickup---
1
ickups1 $24.15 $55.65 $87.15 $118.65 $150.20 $15.00
2 $48.30 $111.30 $174.30 $237.30 $300.40 per cart
3 $72.45 $166.95 $261.45 $355.95 $450.60
4 $96.60 $222.60 $348.60 $474.60 $600.80
5 $120.75 $278.25 $435.75 $593.25 $751.00
#of 95 gallon Extra
Carts Serviced 1x 2x 3x 4x 5x Pickups
1 $35.75 $78.20 $120.70 $163.20 $205.70 $20.00
2 $71.50 $156.40 $241.40 $326.40 $411.40 per cart
3 $107.25 $234.60 $362.10 $489.60 $617.10
4 $143.00 $312.80 $482.80 $652.80 $822.80
5 $178.75 $391.00 $603.50 $816.00 $1,028.50
2 Yard fain Services:
#of 2 Yard Extra
Bins Serviced x 2x x 4x 5x Pickups
1 $132.65 $265.30 $397.95 $530.60 $663.25 $40.00
2 $265.30 $530.60 $795.90 $1,061.20 $1,326.50 per bin
3 $397.95 $795.90 $1,193.85 $1,591.80 $1,989.75
4 $530.60 $1,061.20 $1,591.80 $2,122.40 $2,653.00
5. $663.25 $1,326.50 $1,989.75 $2,653.00 $3,316.25
Other Fees
One Time Lock Charge $65.00
Lock Replacement $15.00
Steam Clean Bin $65.00
Attachment A-1 to ExhibitZoof BFI Franchise Agreement
BFI - PLEASANT HILL BAYSHORE DISPOSAL, INC.
MONTHLY MAXIMUM RESIDENTIAL RATES
Monthly Quarterly
Service Description Fee, Fee
20 gallon Mini-Can Service+2 clipping cans at curb $16.00 $48.00
1 -32 gallon Can Service+2 clipping cans at curb $18.00 $54.00
2-32 gallon Can Service+2 clipping cans at curb $31.50 $94.50
3-32 gallon Can Service+2 clipping cans at curb $45.00 $135.00
95 Gallon Cart Service(no additional clipping cans) $21.00 $63.00
Recycling fee included in all residential service rates
Attachment A-2 to Exhibit 4of BFI Franchise Agreement
W
FRANCHISE AGREEMENT WITH
PLEASANT HILL BAYSHORE DISPOSAL, INC.
CONTRA COSTA COUNTY
TABLE OF CONTENTS
1. EFFECTIVE DATE, PARTIES. . . . . . . . . . . . . . . . . 1
2 . DEFINITIONS. . . . . . . . . . . . . . . . . . . . . 1
a. Agreement. . . . . . . . . . . . . . . . . . . . . 1
b. Act. . . . . . . . . . . . . . . . . . . . . . . . 1
C. Board. . . . . . . . . . . . . . . . . . . . . . 1
d. Commercial Solid Waste. . . . . . . . . . . . . . . 1
e. Contractor. . . . . . . . . . . . . . . . . . . . . 1
f . County. . . . . . . . . . . . . . . . . . . . . . . . 1
g. Customers . . . . . . . . . . . . . . . . . . . . . 1
h. Designated Waste. . . . . . . . . . . . . . . . . . 1
i . Franchise Area. . . . . . . . . . . . . . . . . . . 2
j . Hazardous Waste. . . . . . . . . . . . . . . . . . 2
k. Industrial Waste. . . . . . . . . . . . . . . . . . 2
1 . Infectious Waste. . . . . . . . . . . . . . 2
M. Recycle or Recycling. . . . . . . . . . . . 2
n. Residential Solid Waste. . . . . . . . . . . . . . 3
0. Septage. . . . . . . . . . . . . . . . . . . . . . 3
P. Solid Waste. . . . . . . . . . . . . . . . . . . . 3
q. Waste Stream. . . . . . . . . . . . . . . . 3
3 . TERM. . . . . . . . . . . . . . . . . . . . . . . . • . . 3
4 . INTENT TO REGULATE ALL RECYCLING AND RESIDENTIAL AND
SOLID WASTE COLLECTION, REMOVAL AND/OR DISPOSAL. . . . . 3
5. EXCLUSIVE PRIVILEGE AND DUTY. . . . . . . . . . . . . . 3
6 . EXCEPTIONS TO EXCLUSIVE PRIVILEGE. . . . . . . . . . . . 4
7 . CONTRACTOR' S DUTY TO MAINTAIN RECORDS; COUNTY'S
RIGHT TO EXAMINE RECORDS. . . . . . . . . . . . . . . . 4
8o RATES. . . . . . . . . . . . . . . . . . . . . . . . 5
.9 . RATE APPLICATIONS. . . . . . . . . . . . . . . . . . . . 6
10. OPERATION BY CONTRACTOR. . . . . . . . . . . . . . . . 7
11. LIMITATION ON TIME AND MANNER OF COLLECTION. . . . . . . 7
12 . CUSTOMER SATISFACTION, AB 939 AND EFFICIENCIES IN
OPERATION. . . . . . . . . . . . . . . . . . . . . . 8
13 . CUSTOMER SERVICE STANDARDS. . . . . . . . . . . . . . . 9
May 3, 1995 i
14 . LOCAL ADVISORY BOARD. . . . . . . . . . . . . . . . . . 10
15 . CUSTOMER COMPLAINTS. . . . . . . . . . . . . . . . . . . 10
16 . BILLING. . . . . . . . . . . . . . . . . . . . . . . . . 10
17 . RECYCLING. . . . . . . . . . . . . . . . . . . . . . . . 10
18. FREE SERVICE FOR COUNTY. . . . . . . . . . . . . . . . . 11
19 . FRANCHISE AREA-WIDE COLLECTION. . . . . . . . . . . . . 11
20 . PARTICIPATION IN COMMUNITY CLEAN-UP PROJECTS. . . . . . 11
21 . DISPOSAL AND WASTE STREAM CONTROL. . . . . . . . . . . . 11
22 . MISCELLANEOUS OBLIGATIONS OF CONTRACTOR. . . . . . . . . 12
23 . ADMINISTRATIVE SERVICES AND FRANCHISE FEES. . . . . . . 12
24 . HAZARDOUS WASTE. . . . . . . . . . . . . . . . . . . . . 12
25 . PRELIMINARY DISPUTE RESOLUTION. . . . . . . . . . . 13
26 . FAITHFUL PERFORMANCE BOND. . . . . . . . . . . . . . . . 13
27 . INSURANCE. . . . . . . . . . . . . . . . . . . . . . . . 13
28 . INDEMNIFICATION. . . . . . . . . . . . . . . . . . . . . 14
29 . ATTORNEY' S FEES. . . . . . . . . . . . . . . . . . . . . 15
30. ASSIGNABILITY. . . . . . . . . . . . . . . . . . . . . . 15
31 . INVOLUNTARY ASSIGNMENT. . . . . . . . . . . . . . . . . 16
32 . NOTICE PROVISIONS. . . . . . . . . . . . . . . . . . . . 17
33 . ANNEXATION AND CHANGE OF FRANCHISE AREA BOUNDARIES. . . 17
34 . AFFILIATEI) ENTITIES. . . . . . . . . . . . . . . . . . . 17
35 . BREACH AND TERMINATION. . . . . . . . . . . . . . . . . 18
36 . EMERGENCY. . . . . . . . . . . . . . . . . . . . . . . . 19
37 . COMPLIANCE WITH FEDERAL, STATE AND LOCAL LAWS. . . . . . 20
38 . AMENDMENT OR MODIFICATION. . . . . . . . . . . . . . . 20
39 . POLICE POWERS. . . . . . . . . . . . . . . . . . . . . . 20
May 3, 1995 ii
ti
40 . CONTEST OF AGREEMENT' S TERMS. . . . . . . . . . . . . . 20
41 . SEVERABILITY. . . . . . . . . . . . . . . . . . . . . . 20
42 . WAIVER. . . . . . . . . . . . . . . . . . . . . . . . 21
43. SURVIVAL OF OBLIGATIONS. . . . . . . . . . . . . . . . . 21
44 . NEW AGREEMENT. . . . . . . . . . . . . . . . . . . . . . . 21
45 . ENTIRE AGREEMENT. . . . . . . . . . . . . . . . . . . . 21
46 . OPERATIVE DATE. . . . . . . . . . . . . . . . . . . . . 21
47 . GUARANTY. . . . . . . . . . . . . . . . . . . . . . 21
May 3, 1995 iii
FRANCHISE AGREEMENT WITH
PLEASANT HILL BAYSHORE DISPOSAL, INC.
1 . EFFECTIVE DATE, PARTIES. This Agreement is binding
between the County and the below named Contractor and is
effective on the date last signed by the parties hereto.
2 . DEFINITIONS. As used herein, the following terms shall
have the meanings set forth below:
a. Agreement. Agreement means this Agreement by and
between the County and Contractor for the collection, removal,
and disposal of solid waste and the recycling of material .
b. Act. Act means the California Integrated Waste
Management Act of 1989 (Public Res . Code, S 40000 et seq. ) and
all rules and regulations adopted under any of those sections, as
such sections, rules and regulations may be amended from time to
time in the future.
C. Board. Board means the Board of Supervisors for
the County of Contra Costa.
d. 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 wastes from heavy industry (i .e. ,
industry that manufactures or processes petroleum, lumber, steel,
chemicals, explosives, fertilizers, gas, rubber, cement, sugar
and other products [see section 84-60.402 of the Contra Costa
County Ordinance Code. ] ) .
e. Contractor. Contractor means Pleasant Hill
Bayshore Disposal, Inc. a wholly owned subsidiary of Browning
Ferris Industries of California, Inc. , a California Corporation,
and is the entity which has been granted an exclusive franchise
pursuant to the terms and conditions set forth herein.
f. County. County means the County of Contra Costa.
g. Customers . Customers means those who have
contracted with the Contractor for the collection of materials
for recycling and/or for the collection, removal, or disposal of
Solid Waste, pursuant to this Agreement and applicable ordinances
of County, including mandatory subscription ordinances .
h. 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.
May 3, 1995 1
I
i . Franchise Area. . Franchise Area means the
geographic: area generally described in Exhibit A to this
Agreement, which Exhibit is attached hereto and incorporated
herein by reference, and illustrated in the six hundred (600) -
scale maps to be maintained and available for inspection at the
Community Development Department. Exhibit A and said six hundred
(600) - scale maps shall be amended from time to time to reflect
changes of boundaries of the Franchise Area in such a manner as
to identify each alteration to the Franchise Area and the
effective date thereof.
j . Hazardous Waste. Hazardous Wastes include any
waste material or mixture of wastes which is toxic, corrosive,
flammable, an irritant, 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 an approximate 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) . ( 14 Cal .Code Regs . , 5 17225 . 32 . )
k. Industrial Waste. Industrial Waste includes all
types of Solid Waste which result from industrial processes and
manufacturing operations and/or which originates from such
facilities .
1 . Infectious Waste. Infectious Wastes include:
( 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, as is also defined in
Section 314 (d) of the California Administrative Code, Title 17 .
( 14 Cal .Code Regs . , S 17225.36 . )
M. Recycle or Recycling. Recycle or Recycling means
May 3, 1995 2
the process of collecting, sorting, cleaning, treating and
reconstituting materials and recovering them so that they may be
used in the form of raw material for new, reused, or
reconstituted products .
n. 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.
o. 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 .
p. Solid Waste. Solid Waste has the meaning set
forth in Section 40191 of the California Public Resources Code as
of the date of execution of this Agreement. Solid Waste
includes, but is not limited to, all putrescible and
nonputrescible solid, semisolid, and liquid wastes, including
garbage, trash, refuse, paper, rubbish, ashes, demolition and
construction wastes, abandoned vehicles and parts thereof,
discarded home and industrial appliances, dewatered, treated, or
chemically .fixed sewage sludge which is not hazardous waste,
manure, vegetable or animal solid and semisolid wastes and other
discarded solid and semisolid wastes . "Solid Waste" does not
include infectious, designated, and hazardous waste, except
household hazardous waste.
q. 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, at
County's discretion, 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 35 (Breach and
Termination) , the term of this Agreement and the exclusive
franchise granted hereunder shall be 20 years, commencing on the
effective date first mentioned in section 1 of this Agreement.
4. INTENT TO REGULATE ALL RECYCLING AND RESIDENTIAL AND
SOLID WASTE COLLECTION, REMOVAL AND/OR DISPOSAL. The parties
hereto agree that County currently has jurisdiction to regulate
the collection, removal and disposal of all Solid Waste, and the
recycling of all material, in the Franchise Area. The 'intent of
this Agreement is to regulate Solid Waste handling service and
recycling of material in the Franchise Area.
5 . EXCLUSIVE PRIVILEGE AND DUTY. To the extent allowed by
law, County hereby grants to Contractor the exclusive privilege
May 3, 1995 3
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and duty to collect and remove for disposal and recycling, all
residential and commercial Solid Waste, including recyclable
materials, within the Franchise Area 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.
The Franchise Area may be expanded or reduced in size by
mutual agreement of the parties, or as provided in Section 33
(Annexation and Change of Franchise Area Boundaries) of this
Agreement.
6 . EXCEPTIONS TO EXCLUSIVE PRIVILEGE. The exclusive
privilege granted by this Agreement shall not apply if :
(a) A person or entity generates Solid Waste,
including recyclable materials, and personally collects, removes
and disposes or recycles such in a clean and sanitary manner in
conformance with all applicable laws and regulations, including
mandatory subscription ordinances . This exception shall not
apply to a person who incurs a net cost of collection to a third
person in the above described activities; or
(b) A person or entity contracts with a third person
for the removal and disposal or recycling of inorganic refuse or
garden waste (a "Non-Franchised Contractor" ) and such removal and
disposal or recycling is solely incidental to work such as
remodeling or gardening occasionally performed by or for the
customer. This exception shall not apply if the Non-Franchised
Contractor incurs a net cost of collection to any third person in
connection with its collection and/or disposal of said Solid
Waste.
7 . CONTRACTOR'S DUTY TO MAINTAIN RECORDS; COUNTY'S
RIGHT TO EXAMINE RECORDS. Contractor shall maintain a proper set
of books and records in accordance with generally accepted
accounting principles, accurately reflecting the business done by
it under this Agreement.
Contractor shall further maintain and make available to
County, upon its request, records as to number of Customers,
total and by type, route maps, service records and other
materials and operating statistics in such manner and with such
detail as County may require. County shall treat the information
required by this paragraph that affects the competitive position
of the company as confidential information to the extent
permitted by law.
County may at any time during the term of this Agreement,
have the books and records of the Contractor examined by a County
Agent or Agents appointed for that purpose by the County. County
shall give thirty (30) days ' written notice to the Contractor of
May 3, 1995 4
such examination date. County expenses incurred under this
section shall be paid by Contractor subject to their recovery
through the rates allowed by the County hereunder.
The information required by this section shall pertain to
Contractor's operations covered and regulated by this Agreement,
and nothing contained herein shall require the Contractor to
provide the County with information pertaining to the
Contractor' s operations which are not regulated by the County,
except in conformance with this section.
County's Agents may examine Contractor's books, records and
financial statements pertaining to operations not regulated by
the County as may be reasonably required for the sole purpose of
gathering information necessary to allow the Agents to ascertain
whether income, expenses, assets and liabilities are reasonably
and consistently allocated among operations regulated by County
and those not regulated by the County. Contractor shall obtain
County's written approval of its method of segregating its
financial records between County-regulated -and non-County
regulated operations . County shall not unreasonably withhold
such approval .
To the extent allowed by law, information gained from
examination of records pertaining to operations not regulated by
the County shall be treated by County and its agents as
confidential information.
For the review of books and other financial records
necessary to verify the Contractor' s income, expenses, assets and
liabilities, "County Agent" shall mean County employees or an
independent Certified Public Accountant or public accountancy
firm. For all other information or records, including the
results of financial verification, "County Agent" shall mean any
consultant designated by the County or County employees .
Nothing in this section will prevent County from allowing
public access to County records as provided for under the
California Government Code, and in the event any dispute arises
as to the public access to information provided by Contractor
under the terms of this Agreement, the County shall in its
discretion provide public access to said information according to
. law or tender the defense of any claims made against the County
concerning said information to Contractor. Prior to releasing
any information pursuant to this paragraph, County shall make a
good faith effort to notify Contractor of the intended release.
8. RATES. Rates shall be fixed by the County from time
to time. In determining the rates, the County shall consider
fairness to both Contractor and the Customers . Reasonable costs
incurred by Contractor pursuant to this Agreement shall be
designated as "pass-through" or "subject to reasonable profit" as
May 3, 1995 5
determined by the County during the rate review process . Rates
fixed by County shall be maximum rates which Contractor may
charge the Customers . The maximum rates fixed by the County at
this time shall be the highest commercial rate and the highest
residential rate being charged by Contractor within the Franchise
Area immediately before the effective date of this Agreement as
set forth in . Nothing in this Agreement
precludes Contractor from charging rates less than the maximum
rates fixed by the County. Pending a rate review by the County,
the maximum rates chargeable shall be those rates charged on the
effective date of this Agreement.
Following consultation with the Contractor and examination
of industry norms and trends, the County, in its sole discretion,
shall determine the method of determining Contractor
profitability.
All costs associated with County review and processing of
rate applications shall be paid by Contractor and shall be
allowed as a pass-through cost in the rate application process .
Contractor will offer a mini-can program at reduced rates as
directed by the County following consultation with Contractor.
9 . RATE APPLICATIONS. Rate applications shall be prepared
in accordance with such forms and in such detail as required by
the County. The application shall include one reproducible hard
copy, 15 hard copies bound in an appropriate manner and one copy
on disk formatted pursuant to County specifications .
Contractor shall submit its first rate application as
directed by the County. All rate applications shall include
information from the previous rate change to the present, or such
other period of time as is selected by the County. Every three
years, a rate application shall be accompanied by an audited
financial statement covering the entire period since the last
audited rate application together with supporting documentation
as required to segregate its County regulated activities from
other business activities .
The County Administrator may, in writing, allow the rate
application to be submitted without an audited financial
statement provided the County Administrator is satisfied that the
level of verifiable detail allows for adequate assessment of the
Contractor's income, expenses, assets and liabilities.
Rate changes may be initiated by County at any time or by
Contractor under the conditions allowed in this section. In
either case, Contractor shall prepare a rate application in
accordance with the requirements of this section.
May 3, 1995 6
If the rate change is initiated by County, the Contractor
shall submit its rate application to County within 60 days of
County' s notice to Contractor.
If the rate change is initiated by Contractor, it shall be
submitted no more than once a year under normal operating
conditions . The date of Contractor initiated applications shall
be standard, year by year; such date to be determined upon mutual
agreement of the parties and reasonably related to the fiscal
year of Contractor.
In the event that the rate change that would be requested by
Contractor is no more than the change in the Consumer Price Index
for All Urban Consumers for the San Francisco Bay Area for that
fiscal year of Contractor, Contractor may increase its rate up to
such amount and not request a rate change from the County.
Contractor may defer a rate application pursuant to this
paragraph for a maximum of two consecutive years .
In the event that Contractor must make significant changes
in its operations or experiences significant changes in costs of
revenue not under its control, Contractor may submit a rate
application. Contractor shall provide documentation for the need
for such rate application relative to those changes . The
application will thereafter be considered by the Board.
10. OPERATION BY CONTRACTOR. Contractor shall furnish all
necessary equipment (excluding containers for single-family
residential wastes) for services provided pursuant to this
Agreement in the Franchise Area and shall maintain such equipment
in a sanitary condition at all times . Contractor shall furnish
all necessary labor in connection with the operation of a Solid
Waste collection system in the Franchise Area.
The Contractor, in performance hereof, shall use trucks with
covered, water-tight truck bodies constructed of sufficient
strength to withstand a fire within, without endangering adjacent
property. Trucks, drop boxes, bins, or similar types of
equipment shall be kept clean and in good repair. Contractor
shall have its name and telephone number on the side of each
truck and on each drop box, bin or similar type equipment
provided by Contractor.
11 . LIMITATION ON TIME AND MANNER OF COLLECTION.
Contractor shall systematically collect Solid Waste, and to the
extent permitted by this Agreement, materials for recycling from
its Customers. Frequency, place of pickup (e.g. , curbside,
backyard, etc. ) or any other manner of collection shall be
subject to the review and approval of the Director of Community
Development. Upon commencement of service and upon changes in
collection day schedules, Contractor shall provide each customer
with notice of the scheduled collection day. Contractor shall
May 3, 1995 7
I
not collect Solid Waste from an inhabited dwelling or dwelling
unit between the hours of 7 :00 p.m. and 4 : 00 a.m. , except that if
a dwelling unit is part of a collection route that predominately
serves commercial accounts, collection may begin as early as
3: 00 a.m.
12 . CUSTOMER SATISFACTION, AB 939 AND EFFICIENCIES IN
OPERATION. (a) From time to time, at its discretion, County may
examine Contractor's operation in order to evaluate whether the
Contractor is operating at a satisfactory level of efficiency and
customer satisfaction. Contractor agrees to cooperate in any
such examination and shall permit County representatives to
inspect, at Contractor' s principal place of business, such
information pertaining to Contractor' s obligations hereunder as
County may require, including, but not limited to, such things as
customer inquiry records, collection routes and equipment
records . Access to Contractor' s records shall be subject to
Paragraph 8 (Contractor' s Duty to Maintain Records; County' s
Right to Examine Records) .
(b) Notwithstanding any contrary provision in this
Agreement, the County shall have the right to direct Contractor
to 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 requested
by the County 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 County harmless
from and against any and all liability to the State of California
for the County' s noncompliance with the requirements of the
California Integrated Waste Management Act due in whole or
material part to the material failure of Contractor to properly
carry out the reasonable directives of the County to Contractor
regarding collection and disposition of Solid Waste and
recyclable material; provided, however, that Contractor shall not
be obligated to carry out any such directive (and shall not
indemnify nor hold the County harmless from any resulting
liability) if the County fails to agree to allow Contractor its
reasonable costs (including a reasonable profit) associated with
carrying out such directives .
(c) County may require Contractor to develop plans for and
conduct programs on alternative methods of Solid Waste
collection, including pilot programs of limited scope, or may
require additional programs, for the purpose of improving
service, increasing customer satisfaction, and meeting diversion
requirements . County may also require Contractor to implement.
efficiencies in its operation upon written notice from County.
May 3, 1995 8
The notice shall allow Contractor a reasonable period of time to
• implement the specified service (efficiency) . Should County
require commencement of such a program as outlined in this
paragraph, Contractor agrees not only to do those things
specified herein, but also to act at the direction of the County
on other matters that may be necessary for the success and
efficiency of the project, such as public information and
notification. In the event that County elects to direct
Contractor to discontinue any service theretofore performed by
Contractor at the direction of County hereunder, County shall
allow Contractor to recover its reasonable capital equipment
costs and other reasonable costs arising upon termination of the
service. Rate adjustments applicable solely to programs
instituted pursuant to this subsection (c) initially shall be
established at the time the County authorizes implementation of
the program or efficiency.
13 . CUSTOMER SERVICE STANDARDS. Contractor shall provide
prompt, efficient, continuous and professional service to its
Customers . Contractor shall have a phone system with sufficient
capacity to promptly respond to telephone calls for at least 8
hours a day during weekdays, excluding those holidays observed by
Contractor. Telephone numbers for customer service shall be
located in the local telephone directory. All telephone lines
for customer service shall be toll free to Customers .
Not less than once every three years 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 Director of Community Development. A
copy of the survey results shall be sent to the County within
sixty (60) days of completion of the survey. Nothing in this
paragraph shall limit the right of the County to conduct
additional surveys . The Contractor shall cooperate with the
County in such cases .
Upon initiation of service, and at least once a year,
Contractor shall send or deliver to Customers information
concerning the conditions of service, including, but not limited
to, rates, fees, charges, service options, payment options,
discounts (if any) , days of collections, the amount and manner of
refuselto 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 thelCounty Community Development Department. The form and
content shall be subject to the review and approval of the
Director of Community Development.
May 3, 1995 9
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i
14 . LOCAL ADVISORY BOARD. The Board of Supervisors may
designate an existing committee to represent the Franchise Area,
or form an advisory body to advise the Board on the performance
of the Contractor in the community, local service interests and
needs, and rate applications . In all cases, the Committee shall
hold its meetings at a time and place convenient to the public.
The Committee shall keep a record of all public comments and
submit such comments when reporting to the Board.
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 Director of
Community Development.
16 . BILLING. The form and content of customer bills shall
be subject to the review and approval of the Director of
Community Development.
Bills for services may be monthly, bimonthly or quarterly as
determined by County. Contractor may bill its customer in
advance or in arrears . The County may establish billing period
options for Customers upon a finding that such options are cost-
effective and meet a community need.
Full payment for drop boxes may be required by Contractor
prior to delivery of the drop box to the customer.
The County shall have the right to direct the Contractor to
change or alter its billing system in which event the marginal
additional expenses incurred by the Contractor in the
implementation of the change, with regard to the accounting,
printing, mailing, loss of use of funds, or otherwise, shall be
recoverable by the Contractor through the rates allowed by the
County provided such expenses are reasonable. Contractor shall
inform customers of all rate changes at least 30 days prior to
their effective date. A copy or facsimile of such notice shall
be provided to County at the time of customer notification.
17 . RECYCLING. County grants to Contractor the right and
obligation to operate recycling programs, including curbside
pickup of recyclable materials, as determined and designated by
County, subject to County's right to terminate this grant to
Contractor pursuant to the provisions of this section.
Contractor has instituted and is implementing a recycling
program including regular curbside pickup at all single family
residences of at least aluminum, tin, newsprint, glass bottles,
non-colored HDPE and PET. This program is currently operating to
the satisfaction of County; however, County has the right at
anytime to modify said program or require new programs as
May 3, 1995 10
provided at Section 12 (b) hereof.
Contractor shall maintain and provide to the County records
relating to its recycling programs as directed by the Director of
Community Development.
Contractor' s provision of recycling service shall be
reviewed within three (3) years of the effective date of this
Agreement and, at County's discretion, every five years
thereafter. If County determines that continuation of such
service by Contractor is not consistent with the County' s
ratepayers best interest, but not as a result of Contractor' s
failure to satisfactorily provide recycling services, Contractor
shall be allowed to recoup its unamortized capital expenditures
as follows . Contractor shall make a good faith effort to sell
all disposable assets acquired in furtherance of the program for
their fair market value. If income derived from the sale is
insufficient to cover the unamortized costs of such assets,
Contractor may transfer those losses together with net operations
profits or losses to its general account and submit a rate
application to cover such losses .
If County determines that Contractor has failed to
satisfactorily provide and perform recycling services, County 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 County or County's ratepayers .
18. FREE SERVICE FOR COUNTY. Contractor shall provide
Solid Waste collection and disposal services at those County
buildings designated by the Director of Community Development
from time to time, at no charge to the County.
19 . FRANCHISE AREA-WIDE COLLECTION. In addition to its
regular collections, Contractor shall provide two annual
collections for each region in the Franchise Area as determined
by the Community Development Director. Said collections shall be
made each year throughout the term of this Agreement in
accordance with practices and procedures established by
Contractor and subject to the approval of the Community
Development Director.
20. PARTICIPATION IN COMMUNITY CLEAN-UP PROJECTS.
Contractor shall provide, upon direction of the Community
Development Director, Solid Waste drop boxes or equivalent
containers for community or other clean-up projects within the
Franchise Area. The Contractor' s obligation shall be limited to
the equivalent of ten ( 10) 20-cubic yard drop boxes per year, per
region in the Franchise Area.
21 . DISPOSAL AND WASTE STREAM CONTROL. Contractor shall be
solely responsible for the disposal of the Solid Waste collected
May 3, 1995 11
pursuant to this Agreement. County has complete authority and
control over the Franchise Area waste stream. County may, at its
sole discretion upon providing 60 days ' notice to Contractor,
direct the Solid Waste collected under this Agreement to be
delivered to any site or facility of its choosing. This shall
include the right of the County to direct the Solid Waste to be
delivered to any County designated transfer station, disposal
site, transformation facility and/or resource recovery facility.
It is understood that County may contract with any party, public
or private, to commit the waste stream from the Franchise area,
and that Contractor' s contracts may not bind County, nor need
County consider such other contracts for any purpose.
Notwithstanding the above, Contractor may propose, and
County may but need not consider, waste management and/or
disposition alternatives which are cost effective. In
determining or comparing costs, County shall consider all
relevant factors, including but not limited to, transportation
costs, closure and postclosure requirements, costs and
liabilities, disposal fees, fees levied by governmental entities,
including benefits to Contractor's customers from paying such
fees, costs of compliance with ordinances and other local
requirements, and long-term costs, including degree of control
over future costs .
22 . MISCELLANEOUS OBLIGATIONS OF CONTRACTOR. Contractor
shall . assist County in its enforcement of its mandatory
subscription ordinance by providing County with the addresses of
properties not subscribing to collection service within the
Franchise Area and by providing collection service to such
properties upon written request by the County.
23. ADMINISTRATIVE SERVICES AND FRANCHISE FEES. Contractor
shall pay to the County for (a) the services provided by the
County in administering this Agreement, (b) for services and
programs pertaining to Solid Waste provided by the County, and
(c) additionally as directed by the County, a percentage of its
gross annual revenues generated from the performance of such
waste collection services under this Agreement. Such percentage,
time and frequency of payment shall be established by County
from time to time. Said sums shall be payable from the
Contractor to the County upon the inclusion of the administrative
service charge in the allowed rate and upon the collection of
said rate by the Contractor. Such administrative and program
services and any franchise fees shall be considered a reasonable
cost and subject to "pass-through" as described in Section 8 on
Rates .
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
May 3, 1995 12
providing new definitions, tests and regulations concerning these
substances . Under this Agreement, it is Contractor's
responsibility to keep current with the regulations and tests on
such substances and to identify such substances and to comply
with all federal, state and local regulations concerning such
substances .
Contractor agrees to provide to County upon its request,
Contractor' s program for identifying hazardous waste and
complying with all federal, state and local statutes and
regulations dealing with hazardous waste.
Contractor shall make every reasonable effort to prohibit
the collection and the disposal of hazardous waste in any manner
inconsistent with applicable law.
25 . PRELIMINARY DISPUTE RESOLUTION. If Contractor has a
question as to the interpretation of this Agreement, it shall
submit a written request to the Director of Community Development
for a determination of the issue. The Contractor shall provide
and submit such information as the Director of Community
Development may request or require to make the requested
determination. The written determination of the Director of
Community Development may be appealed to the Board of Supervisors
pursuant to Ordinance Code Chapter 14-4 .
26 . FAITHFUL PERFORMANCE BOND. Contractor shall submit to
County simultaneously with the execution of this Agreement a
corporate surety bond in the amount of $10,000 . 00, provided
however, that the Board may increase this amount not more often
than every three years to reflect changes in the Consumer Price
Index for All Urban Consumers for the San Francisco Bay Area.
The bond shall be executed by a surety company licensed to do
business in the State of California and acceptable to County.
The bond shall be approved by County and shall be payable to
County. The condition of the bond shall be that Contractor will
faithfully perform the duties imposed by ordinance, this
Agreement and the rules and regulations of County. Any action by
County to proceed against the Bond shall not limit or affect the
right of County to use other remedies available to County under
the Agreement, or in courts of law or equity. Notwithstanding
the foregoing, in lieu of the corporate surety bond, Contractor
may provide to County a letter of credit, cash bond or other
security acceptable to the County Administrator' s Office in a
form satisfactory to the County.
27 . INSURANCE. Contractor shall procure and maintain in
full force and effect at all times during the entire term of this
Agreement the following insurance coverage:
(a) Public liability and property damage insurance
including completed operations, products, contractual, broad form
May 3, 1995 13
property damage, personal injury and owned and non-owned
• automobile liability with such coverages and limits as may be
reasonably requested by County from time to time, but in no event
with limits not less than the sum of $1 million combined single
limit for each occurrence arising from the services as stated in
the Agreement herein. County shall be named as an additional
insured under such liability insurance policy or policies, if
commercially available.
(b) Contractor shall carry workers ' compensation
insurance for all its employees .
Evidence of liability and workers ' compensation insurance
shall be provided by Contractor by filing with County a
certificate of insurance indicating that County is 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 County thirty (30) days in advance of the effective
date thereof . No cancellation, alteration or change of
beneficiary shall be made without written notice to County.
County reserves the right to examine all policies 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 County. Failure of Contractor to maintain insurance in the
manner and amount stated herein and as directed by County
Administrator, subject to the approval of the Board, will
constitute a material breach of this Agreement.
28 . INDEMNIFICATION. a. Complete Indemnification of
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
County, its officers, employees, agents and assigns against any
and all liability, claims, judgments, or demands, including
demands arising from injuries or deaths of persons and damage to
property, 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 County, and will make good to and reimburse County
for any expenditures, including reasonable attorney's fees, that
County may make by reason of such matters and, if requested by
County shall defend any such suit at the sole cost and expense of
Contractor.
The above promise by Contractor to indemnify, hold harmless
May 3, 1995 14
i
and defend the County expressly includes, but is not limited to,
all claims, damages ( including by 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
attorneys 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, County, its officers,
employees or agents arising from or attributable to any repair,
cleanup or detoxification, or preparation and implementation of
any removal, remedial, response, closure or other plan
(regardless or 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 County.
The intent of the section is to provide County with the highest
level of protection possible under existing and future laws.
b. Defense of Agreement. Should any party successfully
challenge the validity of this Agreement, the procedure by which
this Agreement was entered into or the validity of any County
ordinance which authorizes the County to enter into this
Agreement, then in such case the Contractor shall have no cause
of action for damages or any other relief against County as a
result of such successful challenge.
Contractor has the right to defend this Agreement and
County. County has no duty to Contractor to defend the validity
of this Agreement or any provision hereof .
29 . ATTORNEY'S FEES. In the event of litigation between
the parties arising hereunder, each party shall be responsible
for and pay its own litigation expenses, including attorney' s
fees .
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 County.
The term assignment shall include any dissolution, merger,
consolidation or other reorganization of Contractor, which
May 3, 1995 15
I
results in change of control of Contractor.
It is understood and agreed by the parties that any
corporation wholly owned by Browning Ferris Industries of
California, Inc. may presently and in the future perform the
obligati-ons and responsibilities of the Contractor in the regions
of the Franchise Area. Performance of the obligations and
responsibilities of the Contractor by such companies shall not
require an assignment under this section.
In the event Contractor herein attempts to assign or
subcontract this Agreement or any part hereof or any obligation
hereunder, County shall have the right to elect to terminate this
Agreement forthwith, without suit or other proceeding.
Consent to assignment may not be unreasonably withheld.
However, it is understood that County's grant of this franchise
to Contractor is partly persuaded by the Contractor' s financial
strength and background in the field of waste management;
therefore, assuming Contractor maintains it ability to faithfully
carry out its duties hereunder, it is in the County' s ratepayers '
best interest for Contractor to continue under this Agreement.
Following a public hearing, County may assign or transfer
any or all of its rights under this Agreement without the consent
of Contractor to any legally authorized public entity.
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 County with the right to elect to terminate
the Agreement forthwith, without suit or other proceeding:
( 1) If Contractor is or becomes insolvent, or makes an
assignment for the benefit of creditors;
(2 ) If Writ of Attachment or Execution is levied on
this Agreement or other property of Contractor such that would
affect Contractor's ability to perform its duties and obligations
under this Agreement.
( 3) If in any proceeding to which Contractor is a
party, a Receiver is appointed with authority to take possession
of Contractor' s property such that would affect Contractor' s
ability to perform its duties and obligations under this
Agreement.
(4) Except as otherwise provided in Section 31
(Assignability) , in the event of a probate proceeding where the
rights of Contractor under the Agreement would pass to another
individual or other individuals .
May 3, 1995 16
32 . NOTICE PROVISIONS. Any notice required or permitted
under this Agreement shall be in writing and shall be deemed to
have been given if delivered personally or ten ( 10) days after
posted by certified mail, return receipt requested, addressed as
appropriate either to Contractor:
Pleasant Hill Bayshore, Inc.
Attn: Ken Etherington
441 North Buchanan Circle
Pacheco, CA 94553
Or to County:
Attention: Director of Community Development
651 Pine Street, 4th Floor North Wing
Martinez, California 94553
33. ANNEXATION AND CHANGE OF FRANCHISE AREA BOUNDARIES .
Contractor shall give notice to County by January 30 of the next
calendar year of any geographic area in the Franchise Area or
immediately contiguous to the Franchise Area, in which Contractor
has commenced service within the preceding year, notwithstanding
whether Contractor deems that area to be regulated or
unregulated.
Contractor realizes that the public agency boundaries may be
altered by virtue of actions taken by the Contra Costa County
Local Agency Formation Commission (LAFCO) . Contractor agrees
that should a municipal corporation lawfully annex territory
which is within the Franchise Area, County may make such
alterations to the Franchise Area as the annexation necessitates .
Should the Franchise Area boundaries be amended, Contractor
agrees that it will abide by any change resulting from the
Franchise Area change. Contractor agrees that the Board of
Supervisors may make such alterations to the Franchise Area as
are necessitated by such Local Agency Formation Commission
actions and shall have no right or claim to damages or other
relief against the County for such alterations to the Franchise
Area. However, nothing herein is intended to abrogate
Contractor' s rights under Public Resources Code Section 49520 or
any successor or similar statute.
34 . AFFILIATED ENTITIES. Contractor shall provide
information necessary to reasonably satisfy County that the
charges made by any Affiliated Entity are reasonable in
accordance with the provisions of Section 8 (Contractor's Duty to
Maintain Records; County's Right to Examine Records) .
Information gained from examination of books and records
pertaining to operations not regulated by the County shall be
treated by the County and its agents as confidential information.
May 3, 1995 17
I
"Affiliated Entity" shall be defined, for purposes of this
section, as any entity which provides products or services to
Contractor and in which either Contractor or the affiliated
entity owns a ten percent ( 10%) or greater interest in the other,
or where one person or entity owns ten percent ( 10%) or greater
interest in both. For purposes of this section, the term
"Contractor" shall include Contractor, and if Contractor is an
individual or a group of individuals (partnership) , all immediate
family members, or if a corporation, major shareholders, and if
any major shareholder is an individual, said individuals '
immediate family members. For the purpose of this paragraph,
"immediate family" includes spouses and relatives of the first
degree of sanguinity, and their spouses .
35 . BREACH AND TERMINATION. The Director of Community
Development shall have authority, subject to review by the Board
of Supervisors upon appeal, to determine whether a breach of any
provision of this Agreement by Contractor has occurred. Any
waiver of a breach shall not be deemed to be a waiver of any
subsequent breach or to be construed as approval of a course of
conduct. In the event that the Director determines that a breach
has occurred, County shall give Contractor written notice of the
breach setting forth the breach or default. Contractor shall
have a reasonable period to cure the noticed breach, said breach
not to exceed 60 days . In the event the breach or default is
cured .to the satisfaction of the Director of Community
Development within the period of time allotted, the breach shall
not be deemed a material breach. In the event that the Director
of Community Development determines that Contractor has failed to
satisfactorily cure the breach or default within the period of
time allotted, the Director of Community Development may
determine such breach or default to be material.
Multiple or repeated breaches, or a pattern of breaches and
subsequent attempts to cure said breaches by Contractor shall
provide an adequate basis for the Director of Community
Development, in his discretion, to declare any subsequent breach
to be material, notwithstanding whether that breach is ultimately
cured by Contractor.
If such a determination of material breach is made, the
Director of Community Development 's determination shall be
automatically appealed to the Board of Supervisors for final
action.
A material breach shall be cause for termination of this
Agreement by the Board of Supervisors.
In the event of a termination pursuant to this section,
County shall have the right to temporarily assume the obligations
of Contractor and shall have the right to forthwith take
May 3, 1995 18
possession of all trucks and other equipment of Contractor and
exercise Contractor's right to enter and use any disposal
facilities for the purpose of performing the services agreed to
be performed by Contractor herein until such time as County can
make other arrangements for the performance of said services .
However, such temporary assumption of Contractor' s obligations
under the Agreement shall not be continued by County for a period
exceeding twelve ( 12) months from the date such operations are
undertaken by County.
During any period in which County has temporarily assumed
the obligations of Contractor under this Agreement, County shall
be entitled to the gross revenue attributable to operations
during such period and shall pay therefrom only those costs and
expenses applicable or allocable to said period, including the
reasonable rental value of the trucks and equipment to be paid to
Contractor. County shall be entitled to the excess, if any, of
revenue over applicable or allocable costs and expenses during
such period. The loss, if any, during such period shall be a
charge against Contractor, and shall be paid to County by
Contractor on demand. Final adjustment and allocation of gross
revenue, costs, and expenses to the period during which County
temporarily assumed the obligations of Contractor shall be
determined by an audit by a Certified Public Accountant and
prepared in report form with his unqualified opinion annexed
thereto.
Nothing in this Agreement shall prevent County during any
period in which County temporarily assumes the obligations of
Contractor under this Agreement, from employing persons who were
employed by the Contractor for the collection of Solid Waste
under this Agreement.
Upon the occurrence of a material breach and the declaration
of such and termination of this Agreement by the Board of
Supervisors, this Agreement and the franchise granted thereunder
shall be of no further force and effect, expecting these
provisions concerning County's right to temporarily assume
Contractor' s obligations and to use Contractor' s facilities, and
Section 28 ( Indemnification) . County then shall be free to enter
into whatever other arrangements are deemed justified and
necessary for the collection, removal and disposal of Solid Waste
within the Franchise Area.
36 . EMERGENCY. Notwithstanding Contractor's exclusive
franchise rights set forth in Paragraph 5 (Exclusive Privilege
and Duty) , in the event of an emergency due to natural disaster
or labor strike which interrupts the collection of Solid Waste by
Contractor, the Board of Supervisors shall have the right to
declare a temporary suspension of this Agreement for the
reasonable duration of the emergency and until such time as
County determines that Contractor is able to reassume all
May 3, 1995 19
obligations under this Agreement. Should Contractor fail to
demonstrate to the satisfaction of the Board of Supervisors that
required services can be resumed by Contractor prior to the
expiration of a six (6) month period, this Agreement may be
terminated at the direction of the Board.
37. 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 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
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.
38. AMENDMENT OR MODIFICATION. This Agreement maybe
amended or modified upon written agreement of the parties hereto.
The parties agree to meet and confer in good faith if amendments
or modifications are proposed.
39 . POLICE POWERS. Nothing in this Agreement is intended
to or may limit County authority pursuant to its police power.
40. 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.
This section shall not be construed to prevent either party
from seeking redress from the courts for the purpose of legal
review of administrative proceedings regarding rate setting or
County actions taken pursuant to this Agreement, or for the
purpose of interpreting or enforcing the provisions contained in
this Agreement.
41 . SEVERABILITY. In the event legal action is brought by
a person or entity, other than the parties to this Agreement, to
challenge, invalidate, contest or set aside any of the provisions
of this Agreement, each and every term and condition, and each
and every section and paragraph is severable from the remaining
terms, conditions, sections, and paragraphs. The invalidation of
May 3, 1995 20
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.
42 . WAIVER. The waiver by either party of any breach or
violation of any provisions of this Agreement shall not be deemed
to be 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.
43 . 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.
44 . NEW AGREEMENT. Upon the effective date of this
Agreement, all other Agreements between the parties for the
provision of solid waste and/or recycling services within the
Franchise Area are superseded except that all continuing
obligations under said superseded agreements shall continue in
full force and effect for the periods covered. by said superseded
agreements .
45 . ENTIRE AGREEMENT. This Agreement represents the full
and entire agreement between the parties hereto with respect to
the matters covered herein.
46 . OPERATIVE DATE.. This Agreement becomes operative on
the Effective date as to areas within the Franchise Area subject
to other agreements between the parties (e.g. , portions of the
Bay Point area) . As to all other areas within the Franchise
Area, this Agreement becomes operative on August 5, 1996, or on
such earlier date as the parties .
47 . GUARANTY. Prior to the the operative date, Contractor
shall provide to the Director of Community Development, proof of
guaranty by Browning Ferris Industries of California, Inc. , of
the performance by Contrator of each and every provision of this
Agreement to be performed by Contractor. Proof of Guaranty shall
May 3, 1995 21
H
be in the form set forth in Exhibit B.
/
COUNTY OF CONTRA COSTA
CHAIR, BOARD OF SUPERVISORS Date
ATTEST, Phil Batchelor,
Clerk of the Board
and County Administrator
By:
DEPUTY
CONTRACTOR
PLEASANT HILL BAYSHORE
DISPOSAL, INC. , a California
Corporation
Title Date
Taxpayer I .D. No.
LTF 17a: \frnbfi5. 395
May 3, 1995 22
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EXHIBIT B
GUARANTY
This Guaranty is made and entered into this day of 1995 ,
by and between the County of Contra Costa (hereinafter "County") and
a corporation ("Guarantor") .
RECITALS
WHEREAS, Pleasant Hill Bayshore Disposal, Inc. ("Contractor"), an
indirect wholly owned subsidiary of Guarantor desires to enter into a certain
Franchise Agreement with the County (the "Agreement") for the provision of
solid waste handling service within specified areas in the unincorporated area of
the County;
WHEREAS, pursuant to Section 47 of the Agreement, the County has
demanded that Contractor obtain certain assurances from Guarantor, as to all
conditions and obligations of the Agreement to be fulfilled by Contractor; and
WHEREAS, in order to induce the County to enter into the Agreement with
Contractor, Guarantor desires to provide the County with said assurances as to
all conditions and obligations of the Agreement to be fulfilled by Contractor;
NOW, THEREFORE, the County and Guarantor hereby agree as follows:
1. Guarantor hereby guarantees to the County the full performance by
Contractor of all conditions and obligations in the Agreement which are to be
fulfilled by Contractor, provided that the County has fulfilled all of its
obligations under the Agreement, and in particular, without limiting the
foregoing, that the County has provided Contractor with the requisite notice(s),
and opportunities to cure as provided for in the Agreement.
2. The County agrees to give Guarantor notice by certified mail, return
receipt requested, at (Attention:
General Counsel) each time that the County becomes aware of any fact or
circumstance which may give rise to an obligation of Guarantor to perform
pursuant to this Guaranty.
3. The County shall not sell, assign or otherwise transfer this Guaranty,
or its rights or obligations thereunder, without the written consent of Guarantor,
which consent shall not be unreasonably withheld if the assignment is to a
municipal corporation.
IN WITNESS WHEREOF, this Guaranty has been executed on the date first
above written.
COUNTY OF CONTRA COSTA
By:
GUARANTOR
By:
Its:
By:
Its:
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DATE:
REWEsz To SPEAK FORM
(THREE (3) MINUTE LIMIT)
Complete this form and place it in the box near the speakers' rostrum before
addressing the Board.
NAME: ` l L PHONE:
ADDRESS: CrrY:
I am speaking formyself OR organization:
NAME OF ORGANI7V-10N)
Check one:
I wish to speak on Agenda Item #
My comments will be: general for against
I wish to speak on the subject of
I do not wish to speak but leave these comments for the Board to consider.
DATE:
REgUEST TO SPEAK FORM a
THREE (3) MINUTE LIMIT)
Complete this form and place it in the box near the speakers' rostrum before
addressing the Board.
NAME: ,f V PHONE:
ADDRESS: CITY:
I am speaking formyself OR organization:
Check one: NAME OF ORGAN I7aT1ON)
I wish to speak on Agenda Item #
My comments will be: general for against
I wish to speak on the subject of
I do not wish to speak but leave these comments for the Board to consider.
DATE:
REQUEST TO SPEAK FORM
(THREE (3) MINUTE LIMIT a ,
Complete this form and place it in the box near the speakers' rostrum before
addressing the Board.
NAME: e�� PHONE: (�e`y
ADDRESS: 1?1Y1/ /J - L�-oc44� CITY:
I am speaking formyself OR organization: EF1
Check one: NAME OF ORGANIT.aI'ION�
OC I wish to speak on Agenda Item # 2 . 3
My comments will be: general for against
I wish to speak on the subject of
I do not wish to speak but leave these comments for the Board to consider.
PNT100 CP 94509
CITY HALL THIRD AND H PO 130
s
(510) 779-7035
May 3, 1995
Patty Mehaouchi
BFI/Pleasant Hill Bayshore Disposal, Inc
441 No. Buchanan Circle
Pacheco, CA 94553
SUBJECT: Antioch Sphere of Influence
Dear Patty:
Please be advised that the Antioch DuPont facility and those
properties bounded by the San Joaquin River to the north,
Bridgehead Road to the east, East Eighteenth Street ("Victory
Highway") to the south, and the present Antioch City limits to the.
west are within our Sphere of Influence and are expected to
ultimately be annexed to the City.
If you should require additional information, please contact me at
(510) 779-7035.
Sincerely,
A
Ron Bendor
Associate Tanner
/RB
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OFFICE OF COUNTY COUNSEL DEPUTIES:
VICTOR J. WESTMAN CONTRA COSTA COUNTY PHILLIP S.ALTHOFF
COUNTY COUNSEL SHARON L.ANDERSON
COUNTY ADMINISTRATION BUILDING BRANDON D.BAUM
ANDREA W.CASSIDY
P.O.BOX 69 VICKIE L.DAWES
SILVANO B. MARCHESI MARTINEZ,CALIFORNIA 94553 MARKS S.ESTIS
ARTHUR W.WALENTA,JR. MICHAEL D.FARR
LILLIAN T.FUJII
ASSISTANTS TELEPHONE(510)646-2074 DENNIS C.GRAVES
FAX(510)646-1078 GREGORY C.HARVEY
KEVIN T.KERR
GAYLE MUGGLI EDWARD V.LANE,JR.
OFFICE MANAGER VIVIAN LILY
MARY ANN MASON
PAUL R.MUNIZ
May 9, 1995 VALERIE J.RANCHE
DAVID F.SCHMIDT
DIANA J.SILVER
VICTORIA T.WILLIAMS
Thoma . Bruen, Esq.
BRU & GORDON
19 No. California Blvd., Suite 608
alnut Creek, CA 94596
Re: County Franchise with Pleasant Hill Bayshore Disposal, Inc.
Dear Tom:
Following up on the Board of Supervisors approval today of the franchise
agreement with Pleasant Hill Bayshore Disposal, Inc.:
1. Enclosed is a revised page 21, dated May 9, 1995 of the franchise. Page
21 has been modified to add the words "may agree" at the end of the last sentence in
section 46. Thank you for pointing our this omission. Section 46 will read:
"46. OPERATIVE DATE. This Agreement becomes
operative on the Effective date as to areas within the
Franchise Area subject to other agreements between the
parties (e.g., portions of the Bay Point area). As to all other
areas within the Franchise Area, this Agreement becomes
operative on August 5, 1996, or on such earlier date as the
parties may agree."
Please replace page 21 of the May 3, 1995 franchise agreement with the new
enclosed page 21, dated May 9, 1995.
2. Please have at least two copies of the corporate guaranty (Exhibit B)
executed by your principals, and attach them to the Pleasant Hill Bayshore Disposal,
Inc. executed copies of the franchise. One original will remain filed with the Clerk of
the Board. Another original will be maintained in either the County Administrator's
Office or the Community Development Department.
Thomas M. Bruen, Esq.
May 9, 1995
Page 2
3. Attach as Exhibit C to each copy of the franchise, Ken Etherington's May 2,
1995 letter to Val Alexeeff, setting forth Pleasant Hill Bayshore's rates. Type "Exhibit
C" in the blank space in the first paragraph of page 6 of the franchise.
4.. Attach an Exhibit A (consistent with the Board's May 9, 1995 action) to each
copy of the franchise.
Please deliver the executed franchises to this office or to the Clerk of the
Board. The Clerk. of the Board will submit the agreements to the chair for signature
after the agreements have been approved as to form.
Very truly yours,
Victor J. Westman
County Counsel
By: Lillian T. Fujii
Deputy County Co
Encl. Page 21, dated May 9, 1995
cc: Val Alexeeff, Director, GMEDA (w/encl.)
Ann Cervelli, Deputy Clerk (w/ encl.)
18. filtr5.995
• s
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.
42,. -'WAIVER. The waiver by either party of any breach or
violation of any provisions of this Agreement shall not be deemed
to be 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
nyprovision of this Agreement.
43 . 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.
44. NEW AGREEMENT. Upon the effective date of this
Agreement, all other Agreements between the parties for the
provision of solid waste and/or recycling services within the
Franchise Area are superseded except that all continuing
obligations under said superseded agreements shall continue in
full force and effect for the periods covered by said superseded
agreements .
45 . ENTIRE AGREEMENT. This Agreement represents the full
and entire agreement between the parties hereto with respect to
the matters covered herein.
46 . OPERATIVE DATE. This Agreement becomes operative on
the Effective date as to areas within the Franchise Area subject
to other agreements between the parties (e.g. , portions of the
Bay Point area) . As to all other areas within the Franchise
Area, this Agreement becomes operative on August 5, 1996, or on
such earlier date as the parties may agree.
47 . GUARANTY. Prior to the the operative date, Contractor
shall provide to the Director of Community Development, proof of
guaranty by Browning Ferris Industries of California, Inc. , of
the performance by Contrator of each and every provision of this
Agreement to be performed by Contractor. Proof of Guaranty shall
May 9, 1995 21
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