HomeMy WebLinkAboutAGENDA BACKUP 11-19-85
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CentrE Contra CostaSanitar' ~istrict
BOARD OF DIRECTORS
PAGE 1 OF 5
POSITION
PAPER
BOARD MEETING OF
SUBJECT
NO.
IV.
BIDS AND AWARDS
1
AWARD A PURCHASE ORDER FOR FOUR MANUALLY OPERATED SLIDE
GATES TO WATERMAN INDUSTRIES AND AUTHORIZE $28,600 FROM THE
SEWER CONSTRUCTION FUND FOR THE PREAERATION TANK ISOLATION
GATE PROJECT, DISTRICT PROJECT NO. 20030.
SUBMITTED BY
DATE
October 31, 1985
TYPE OF ACTION
Dave Reindl, Assistant En ineer
AUTHORIZE PURCHASE
ORDER
AUTHORIZE FUNDS
ISSUE: The District has received bids from three manufacturers to supply
manually operated slide gates for isolation of the two preaerated grit tanks.
The Board of Directors is requested to authorize funds so that a purchase order
can be placed with the supplier and the design of the project can be completed.
BACKGROUND: Gates to provide hydraulic isolation of the two preaerated grit
tanks were not installed at the time-of the 5A Hydraulic Expansion. The lack of
isolation gates for the preaeration tanks results in higher than desirable
hydrau1 ic 1 oadi ngs on the primary sedimentati on tanks duri ng those peri ods in
which the preaeration tanks are being cleaned.
Approximately once a year the two preaeration grit tanks require cleaning. The
cleaning is required since residual grit, which is not removed by the grit pumps,
tends to accumulate in the preaeration tanks as well as the common channel into
which the two tanks discharge (see Attachment 1). The common discharge channel
for the preaerati on grit tanks is a1 so the common feed channel to the four
primary sedimentation tanks. At the present there is only one point for
i sol ati ng the flows between the two preaerati on tanks and the four primary
sedimentation tanks. This isolation point consists of two slide gates located in
the common channel. Having only the one point of isolation necessitates
dewateri ng two of the four sedimentati on tanks w hevever one of the preaerati on
grit tanks is dewatered for cleaning purposes. Such an arrangement results in
higher than desirable hydraulic loadings on the two sedimentation tanks remaining
in service during the cleaning period. The cleaning period generally lasts
between two and three days. Staff feels that the added flexibility resulting
from the install ati on of the preaerati on tank i sol ati on gates w ill improve
Treatment Plant reliability and maintainability.
Pre1 imi na ry desi gn work was coopl eted by Dodson and Young Engi neers under a
General Manager-Chi ef Engi neer $5,000 authorizati on. Subsequent to the
completion of the preliminary design, staff decided that it would be in the best
interest of the proj ect to prepurchase the i sol ati on gates. The mai n reason to
prepurchase the gates was based on the long lead time associated with delivery of
the gates <12 to 14 weeks). Since the construction (installation) period was
estimated to requi re onl y four weeks, it was deci ded that it woul d be best to
have the gates on-si te at the time the construct; on contract was awarded. The
District solicited bids for the gates on September 19 and 25, 1985. The District
received three bids and opened those bids on October 8, 1985. Waterman
REVIEWED AND RECOMMENDED FOR BOARD ACTION
(JRt0
130211..9/85
DRW
RAB
SUBJECT
AWARD A PURCHASE ORDER FOR FOUR MANUALLY OPERATED SLIDE
GATES TO WATERMAN INDUSTRIES AND AUTHORIZE $28,600 FROM THE
SEWER CONSTRUCTION FUND FOR THE PRE AERATION TANK ISOLATION
GATE PROJECT, DISTRICT PROJECT NO. 20030.
POSITION PAPER
PAGE 2 OF 5
DATE
October 31, 1985
Industries is the lowest responsible bidder with a price of $16,723. The
attached bid tabulation shows the results of the bidding process (see
Attachment 2).
The total estimated proj ect cost for the purchase and install ati on of the
preaeration tank isolation gates is $135,000 including the prepurchasing of the
gates (see Attachment 3). Constuction is scheduled for summer of 1986. At this
time $28,600 is requested to affirm the initial $5,000 General Manager-Chief
Engineer authorization, prepurchase the gates, complete the design of the
installation, and correct a negative balance in the project budget.
This project is included in the 5-Year Capital Expenditure Plan as part of the
Stage SA Completion. This work is not eligible for Clean Water Grant Funding.
RECOMMENDATION: Authorize award of a purchase order to Waterman Industries for
four manually operated slide gates for $16,723, and authorize $28,600 from the
Sewer Construction Fund to complete the design installation.
1.....______.
13028-9/85
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4
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1
PRIMARY
TANKS '.~
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DISTRIBUTION CHAN~ELS
ATTACHMENT 1
Page 3 of 5
(D
PREAERATION
GRIT TANKS
I
proposed isolation gates
(total of four)
ATTACHMENT 2
Page 4 of 5
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ATTACHP-ENT 3
Page 5 of 5
PREAERATION TANK ISOLATION GATES
01 STR ICT PROJ ECT NO. 20030
Preliminary Cost Estimate
October 31, 1985
DESIGN
Dodson & Young, Engineers (Preliminary Design) S 4,600
District Forces 7,277
- Proj ect Management
- Completion of Design
- Printing and Advertising
Subtotal Design S 11,877
CONSTRUCTION
Equipment Prepurchase (District)
Installation (Contractor)
$ 16,723
64,000
Grit Tank Cleaning (District)
15,000
Subtotal Construction
95 ,7 23
CONSTRUCTION MANAGEMENT
District Forces
- Contract Administration
- Inspection
S 15,000
Subtotal Construction Management
15,000
Su btota 1 Proj ect Cost
$122,600
Contingency (10 percent)
12,400
TOTAl ESTIMATED PROJECT COST
$135,000
Authorization requested at this time:
Total Design Cost
Prepurchase of Equipment
$11,877
16,723
$28,600
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Centr~_ Contra Costa Sanitar) District
BOARD OF DIRECTORS
PAGE 1 OF 2
POSITION PAPER I BOARD MEETING OF 11
November X, 1985
SUBJECT
AUTHORIZATION FOR P.A. 85-27 (DANVILLE) TO BE INCLUDED
IN A FUTURE FORMAL ANNEXATION TO THE DISTRICT
NO.
V. CONSENT CALENDAR 4
DATE
November 12, 1985
TYPE OF ACTION
ACCEPT FOR PROCESSING
SUBMITTED BY
Dennis Hall, Associate Engineer
INITIA TING DEPT./DIV.
Engineering/Construction
Pa rce 1
No. Area
Owner
Address
Parcel No. & Acreage
Remarks
Lead
Agency
85-27 Danvi 11 e
(l8C5 )
Sabin Construction, Inc.
B. J. Sabin
175 Bernal Road, #200
San Jose, CA 95119
197-161-013 (2.55 Ac.)
Owner intends to build one
single family home on this
property.
District to prepare
"Notice of Exemption"
CCCSD
RECOMMENDATION: Authorize P.A. 85-27 to be included in a future formal annexation.
INITIATING DEPT./DIV.
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REVIEWED AND RECOMMENDED FOR BOARD ACTION
130211.9/85
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DH
JMc
RAB
" ,ROGER J. DOLAN
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CAMEf'IISUN
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PA. 85 -27
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Centr... Contra Costa Sanitar. District
BOARD OF DIRECTORS
PAGE 1 OF 1
POSITION
PAPER
BOARD MEETING OF
November 19, 1985
NO.
VI.
ADMIN ISTRATIVE
1
SUBJECT
DATE
November 8, 1985
AUTHORIZE EXECUTION OF AGREEMENT WITH DAVID M. GRIFFITH
AND ASSOCIATES FOR INDIRECT COST RATE CALCULATION
SERVICES FOR $10,000 TO BE DRAWN FROM THE SEWER
CONSTRUCTION FUND
TYPE OF ACTION
AUTHORIZE EXECUTION OF
AGREE~NT AND FUNDS
SUBMITTED BY
INITIATING DEPT./DIV.
Walter N. Funasaki, Finance Officer
Administrative/Finance & Accounting
ISSUE: Authorization is required to execute an agreement with David M. Griffith and
Associates for services in developing indirect cost rates on Clean Water Grant
projects.
BACKGROUtI>: Under the Cl ean Water Grant program regul ati ons coveri ng the Di stri ct' s
Stage SA and 5B projects, certain force account costs and related indirect costs are
reimbursable. The indirect costs, representing an overhead component, are determined
by use of indirect cost rates which are applied to the force account labor costs. The
indirect cost rates require approval by the State Water Resources Control Board.
The services of David M. Griffith and Associates (DMG), a firm specializing in
developing computer-processed indirect cost rates, were obtained under a previous
authorization for assistance in developing indirect cost rates for four prior fiscal
years for a fixed fee of $20,000. Based on the satisfactory work product produced by
DMG, District staff proposes to retain DMG to assist in developing indirect cost rates
for five of the remai ni ng seven fi scal years for which indi rect cost rates are
required; the indirect cost rates for the two earliest years, in which force account
costs were comparatively low, will be developed by District staff.
DMG will provide its services for the five fiscal years covered under this agreement
for a fixed fee of $10,000. The lower charge per fiscal year under this agreement is
the result of a change in the scope of DMG's activities, wherein District staff will
have responsibility to accumulate all data required in formats designed by DMG for
inputting and computer-processing by DMG.
Although the cost of DMG's services is not eligible for grant reimbursement, the
indirect cost rates developed will enable the District to obtain reimbursement of
major indirect cost amounts.
RECCMENDATION: Authorize the execution of an agreement with David M. Griffith and
Associates for services in developing indirect cost rates for a fixed fee of $10,000
to be drawn from the Sewer Construction Fund.
C~A...I
1302.4..9/85 WF
PM
cs
REVIEWED AND RECOMMENDED FOR BOARD ACTION
INITIATING DEPT./DIV.
~
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.
Centra.
Contra Costa Sanitar District
.
BOARD OF DIRECTORS
PAGE 1
OF 1
POSITION
PAPER
BOARD MEETING OF
November 19, 1985
NO.
VI.
ADMINISTRATIVE 2
SUBJECT
CONSIDER A REQUEST FOR EMERGENCY WITHDRAWAL OF FUNDS FROM
THE DEFERRED COMPENSATION PLAN
DATE
November 6, 1985
TYPE OF ACTION
CONSIDER EMERGENCY
WITHDRAW AL
SUBMITTED BY
INITIATING DEPT.lDIV.
Walter N. Funasaki, Finance Officer
Administrative/Finance & Accounting
ISSUE: Authorization by the Board of Directors is required for emergency withdrawal
of funds from the Deferred Compensation Plan.
BACKGROUND: William H. Perez, Plant Operator II, has requested a $3,850 emergency
withdrawal from the Deferred Compensation Plan based on extreme financial hardship
caused by a medical leave of absence. The Deferred Compensation Pl an Advisory
Committee has reviewed the request and determined that it meets the requirements for
emergency withdrawal.
RECOMMENDATION: Approve William H. Perez's request for an emergency withdrawal of
$3,850 from the Deferred Compensation Plan, as recommended by the Deferred
Compensation Plan Advisory Committee.
REVIEWED AND RECOMMENDED FOR BOARD ACTION
PM
JH
INITIATING DEPT./DIV.
~~~._>
130211.9/85 F
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.
Centr~
Contra Costa Sanitar District
.
BOARD OF DIRECTORS
PAGE 1 OF 4
POSITION
PAPER
BOARD MEETING OF
November 19, 1985
NO.
VIr.
ENGINEERING
1
SUBJECT
AUTHORIZE $25,000 FROM THE SEWER CONSTRUCTION
FUND FOR DESIGN OF SEWER REPAIRS AT LOS ARABIS
DRIVE (DISTRICT PROJECT NO. 4152)
DATE
October 28, 1985
TYPE OF ACTION
AUTHORIZE FUNDS
SUBMITTED BY
David R. Williams
En ineering Division Manager
INITIATING DEPT./DIV.
Engineering Department/
Engineering Division
ISSUE: Install ati on of sanitary sewer faci 1 iti es at 3881 Los Arabi s Drive,
Lafayette, California, is required to provide continued adequate service to
upstream properties.
BACKGROUND: Heavy rains during the winter storm of 1982-83 resulted in a
landsl ide at 3881 Los Arabis Drive, Lafayette, California. The landsl ide carried
away the house located at 3881 Los Arabi s Drive as well as a secti on of the
sanitary sewer 1 i ne runni ng through a backyard easement on the property. (See
Plot Plan on Attachment 1.) Subsequent to the landslide, District personnel
installed a temporary sewer 1 ine across the face of the sl ide which provided
interim service from 1983 to the present. Recently the property was sold and the
new owner has now rep.aired the slide, at his own cost, and has decided to
reconstruct the house which was situated at the top of the slide.
Since the occurrence of heavy rains during the 1982-83 wet weather season,
Di stri ct staff has been engaged in an ongoi ng effort to rep1 ace and/or reroute
sanitary sewer lines which have been damaged by landslides. Because there are
pl ans to reconstruct the house at 3881 Los Arabi s Drive, the proj ect for
installation of the sanitary sewer facilities has been scheduled for construction
in the spring of 1986, and thus design needs to be initiated. District staff has
reviewed the situation and developed several alternatives for reinstallation of
the sewer line.
The first alternative investigated was to simply reinstall the sanitary sewer line
through the repaired slide area. District staff carefully examined this
alternative but decided against reinstallation of a line through the repaired
slide area based on the advice of the District's geotechnical consultants,
Woodward Clyde Consulting Engineers. Woodward Clyde expressed concern over the
long term stability of the slope as reconstructed. The intended construction of
a new, expensive home at the top of the repai red sl ide area poses substanti al
exposure to the District should a subsequent slide occur.
Several other alternatives were also evaluated, one of which was to reroute the
sewer line below the repaired slide area and another was to reroute the sewer line
around the top of the repaired slide area. Due to difficulty in obtaining
necessary easements, p1 us the fact that the rerouted sewer 1 ine wou1 d be located
at the toe of the repaired slide, made the alternative to reroute the sewer line
REVIEWED AND RECOMMENDED FOR BOARD ACTION
INITIATING DEPT./DIV.
lftJ3
'oM
1302"'..9/85
DRW
RAB
SUBJECT
AUTHORIZE $25,000 FROM THE SEWER CONSTRUCTION
FUND FOR DESIGN OF SEWER REPAIRS AT LOS ARABIS
DRIVE (DISTRICT PROJECT NO. 4152)
POSITION
PAPER
PAGE
DATE
October 28, 1985
2
OF
4
below the slide non-viable. After a thorough evaluation of all alternatives, the
best al ternative was to reroute the sanitary sewer 1 ine around the top of the
property. This alternative would result in the sanitary sewer line being
installed completely out of the repaired slide area. Such an installation
requires a small pumping facility in order to lift the waste water flow around the
top of the property. This approach has several advantages, one of which is to
el imi nate a substanti al 1 ength. of backyard easement through an area Wh1Ch has
extremely difficult access. Another important advantage is the reduced liability
on the part of the District as a result of the sewer 1 ine being instal led
completely out of the repaired slide area.
Attachment 2 shows the breakdown of project costs for designing and bidding the
proj ect. Once bi ds are received, staff will make a request to the Board for the
authorization of funds for construction of the project. A preliminary estimate of
construction costs for the project is $53,000. This estimate is for construction
only and does not include construction management.
RECOMMENDATION: Authorize $25,000 in sewer construction funds for the design of a
pump station and force main to serve the homes in the vicinity of 3881 Los Arabis
Drive, Lafayette, California.
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13028- 9/85
CCCSDENGlh~C:RING DIVISION A rr~cf.l MENf I
'ROJECT ......~!~.r~. O'~~.a.9.~..~.~~~~y.
SUBJECT S,te No. 1 ..........................................................................SHEET 3 OF 4
............. :::::J~f:A ra'b" s" iroaci';" ratayette..... 71 [)"'2'" ....................................... I Y. .oAJiRiLDA TE 4-13-8
......................... ........... ..........,.........:~............................................ CHK.D........... DATE' ..
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-~. ------,._-
---_._~-~-_._...,---_..........-_.~---,_._,--_._--,-,...,.._- -----
ATTAQi~NT NO. 2
AUTHORIZATION REQUEST
SEWER roNSTRUCTION AT 3881 LOS ARABIS DRIVE
DISTRICT PROJ ECT NO. 4152
Summary of Proj ect Design Cost
l1!!!!
o Survey
o Easement Acquisition
o Design
o Desi gn Rev i &tI
o Printing and Advertising
Total
-.....-^"--_._.__._,.._--_.._----_._-_."<..~-~--~-~._--_._-----.---".------.
Cost
$ 1,000
10,000
11 ,500
1,000
1,500
$25 ,000
Page 4 of 4
.
Centr" Contra Costa Sanitar:;. District
BOARD OF DIRECTORS
PAGE 1 OF60
POSITION
PAPER
BOARD MEETING OF
November 19, 1985
NO.
IX.
SOLID WASTE
1
SUBJECT
DATE
November 12, 1985
RECEIVE DRAFT OF RENEGOTIATED REFUSE COLLECTION
FRANCHISE AGREEMENT AND SCHEDULE PUBLIC HEARING DATE
TYPE OF ACTION
RECEIVE DRAFT FRANCHISE
AGREEMENT AND SET
PUBLIC HEARING
SUBMITTED BY
INITIATING DEPT.lDIV.
Paul Morsen, Deputy General Manager
Administrative
ISSUE: In October 1984, the Board of Directors determined that the agreement between
Central Contra Costa Sanitary District and the franchised refuse collectors should be
renegotiated and submitted for its consideration by December 1, 1985; the draft of the
renegotiated franchise agreement is submitted herewith.
BACKGROUND: The terms of the existing refuse collection franchise agreement required
written notification to refuse collectors prior to November 30, 1984, if the current
agreement were not to be renewed for a ten-year option period beginning December 1,
1986. On October 18, 1984, the Board authorized transmitting written notification to
the refuse collectors that the franchise agreement would terminate on November 30,
1986 by virtue of nonrenewal of the ten-year option period, and that negotiations
with the present refuse collectors should commence immediately to produce a successor
franch i se agreement. .
Prior to the October 18, 1984 Board Meeting, a District task force committee composed
of Roger J. Dolan, Robert Baker, James Kelly, Paul Morsen, Walter Funasaki and
District Counsel was organized to review alternatives to routine exercise of the
option period, and to identify revisions to the existing franchise agreement
provisions, as well as required new provisions, in consideration of the following
significant issues and uncertainties:
o Direction of wastestream
o Term of the franchise agreement
o Antitrust uncertainty
o Transfer stations
o Recycling refuse
o Hazardous waste
o Insurance limits
o Assignability of franchise
o Standardized rate applications
Foll owi ng the Board's deci si on to renegoti ate the franchi se agreement, a negoti ati on
committee consisting of Paul Morsen, Walter Funasaki and James Hazard entered into
negotiations with the refuse collectors' representative, Mr. Sanford M. Skaggs. The
negotiations, which were conducted over the past year and have culminated in the draft
of the renegotiated franchise agreement, were characterized by the necessity on the
part of the District in incorporating revisions and additions to the franchise
JH
.I;t:::u
OGER J. DOLAN
REVIEWED AND RECOMMENDED FOR BOARD ACTION
SUBJECT
POSITION PAPER
RECEIVE DRAFT OF RENEGOTIATED REFUSE COLLECTION
FRANCHISE AGREEMENT AND SCHEDULE PUBLIC HEARING DATE
PAGE 2
DATE
November 12, 1985
OF 60
agreement, and the able representation of the refuse collectors' interests by
Mr. Skaggs. The negotiations were demanding in time and effort but were
conducted in a spirit of cooperation and with the purpose of developing constructive
solutions and limiting unresolved issues; however, two major issues which have not
been resolved through negotiations are:
o Term of the franchise agreement (Section 34)
o Disposal of garbage (Section 27)
Additionally, three issues of secondary importance which have not been completely
resolved, are as follows:
o Industrial waste disposal (Section 3)
o Refuse collection by District under certain conditions (Sections 31 and
32)
o Issuance of collection rate schedules to customers (Section 18)
These remaining five issues are summarized on Attachment I which describes the
negotiation committee's suggested provisions. The refuse collectors' position on
these issues are summarized by Mr. Skaggs in Attachment II.
A summary of the noteworthy provisions which are included in the renegotiated
franchise agreement is shown in Attachment III.
The renegotiated franchise agreement will be extended to the District's present
franchised refuse collectors, including Pleasant Hill Bayshore Disposal Service,
provided that this refuse col lector submits a rate appl ication by March 31, 1986.
Based on its ownership structure and the comparatively small service area which is
within the District's jurisdiction, Pleasant Hill Bayshore Disposal has requested
particular modifications to the renegotiated franchise agreement to permit submission
of a statement of operations prepared by a certified public accountant without audit,
to permit the transfer of ownership to the sol e proprietor's son without written
consent of the District, and to waive the requirement for a balance sheet for
operations within the District's jurisdiction. The refuse collector's requests are
submitted in Attachment IV. The negotiation committee has reviewed the justifications
for the requested modifications, and considers them to be reasonable.
At the October 18, 1984 Board Meeting, the Board instructed staff to meet with
officials of San Ramon, Danville, Lafayette, Moraga and the Orinda Association to
obtain their concerns and suggestions before negotiations with the refuse collectors
commenced. Such meetings were held, and the information obtained was transmitted to
the Board, and considered by the committee during the course of the negotiations. The
unique concerns of the City of San Ramon, and the consideration by the City of
Lafayette and the Town of Moraga to assuming refuse collection franchising authority
are summarized in Attachment V, VI and VII, respectively.
-.._------
13028-9/85
SUBJECT
POSITION PAPER
RECEIVE DRAFT OF RENEGOTIATED REFUSE COLLECTION
FRANCHISE AGREEMENT AND SCHEDULE PUBLIC HEARING DATE
PAGE
DATE
3
OF 60
Novemher 17. lqAt;
The negotiation committee recommends that the Board receive and consider the draft of
the renegotiated franchise agreement and provide comment and guidance, after
deliberating the unresolved issues. A Public Hearing should be scheduled for
December 19, 1985, to receive comment from the public at large, interested cities and
the refuse collectors. The intervening Board Meeting on December 5, 1985 will enable
further review and consideration of any additional information which the Board may
have requested following its November 19, 1985 consideration of the draft of the
renegotiated franchise agreement.
RECOMMENDATION: The District negotiation committee recommends the following:
1)
Receive and consider the draft of the renegotiated refuse collection
franchise agreement and provide comment and guidance.
2)
Schedule a Public Hearing on December 19, 1985 to receive public comment
on the draft of the renegotiated refuse collection franchise agreement.
---------
13028- 9/85
ATTACHtJfNT I
SlM4ARY OF UNRESOlVED ISSUES
MAJOR UNRESOLVED ISSUE - TERM OF THE FRANCHISE AGREEMENT
Section 34 of the draft of the franchise agreement provides for a term of
ten years from January 1, 1986 to December 31, 1995; however, after five
years, the refuse collector must demonstrate to the District that it has
a legally enforceable right to use an acceptable disposal site with
capacity to accommodate the additional five years of garbage volume under
this agreement. The failure of the refuse collector to adequately
demonstrate that a solution has been provided to the disposal site
question will effectually terminate the agreement after five years.
The negotiation committee recommends the term of the franchise agreement
described in the foregoing paragraph based on the following
considerations:
1. The term of ten years, which is equivalent to the unrenewed
option period under the current agreement, is long enough to
provide a stable environment to ensure responsible refuse
collection and financing of equipment acquisition. The refuse
collectors' have, during the course of negotiations, indicated
a minimum period of seven years for amortization of garbage
trucks.
2. The term of ten years is the longest term which will allow the
District reasonable flexibility to adjust to uncertainties of
the future and thereby provide for the long-term best interests
of the rate payors. A longer term woul d needl essl y ti e the
hands of future District Boards in addressing future problems.
A term of less than ten years has been adopted by other
franchising agencies to provide needed flexibility.
3. The requirement for assuring disposal site capacity after five
years recognizes the critical sol id waste disposal problem in
the County, and is intended to encourage the private sector to
develop a solution by guaranteeing an additional five year
term. In the event the disposal problem is not solved, the
District would be able to pursue other options to protect the
interest of the rate paying public.
4. A term longer than ten years is unnecessary for the purpose of
amortizing the franchisees' investment in providing adequate
disposal capacity. A public garbage franchise is not required
to provi de long-term guaranteed profitabil ity or remove all
risk from collateral private sector disposal enterprises.
5. The City of Lafayette and the Town of Moraga have previousl y
indicated that a term of ten years, or less, was considered
reasonable. An official of the then-existing Orinda
Page 4 of 21
Association expressed support for a term of less than ten
years.
The negotiation committee considers the ten year term to be reasonably
arrived at during the negotiation process, and does not regard it as a
"negotiating floor."
The negotiation committee does not recommend including a renewable option
period within the term of the agreement to avoid any perception of an
"automatic" or "pro forma" renewal and to avoid any legal questions as to
the right of renewal.
MAJOR UNRESOLVED ISSUE - DISPOSAL OF GARBAGE
Section 27 of the draft of the renegotiated franchise agreement consists
of two alternative paragraphs regarding the franchisee's duties and
responsibil ities to dispose of garbage. Both alternatives provide for
the franchisee being responsible for the disposal of garbage,
notwithstanding the fate of the Acme Landfill Corporation, for the full
term of the agreement and its extensions. The first alternative merely
provides that on 30 days notice the District may direct that the garbage
be del ivered to an alternative disposal site or transfer station at no
cost to the District. The franchisee then has the right to apply for a
rate increase to reflect any additional costs. The District could direct
the garage to be di sposed of at a site other than a site owned or
controlled by the franchisees, even in the event the franchisees were to
develop a new disposal site.
The second alternative provides that in the event the franchisee becomes
owner or interest-holder in a new disposal site which is properly
approved and permitted, the District will direct the garbage from this
agreement to that site, if the franchisee provides the District with the
power to regulate the rates and charges at the site. This alternative
guarantees to the franchisees the flow of garbage to a new disposal site,
if they provide the District with rate-setting authority at that site.
The negotiation committee recommends the inclusion of the terms of the
second alternative for the following reasons:
1. In consideration of the sol id waste disposal crisis in the
County, the alternative which commits the District's
wastestream to the franchisees' disposal site and provides
incentive to the private sector to develop a site serves the
interest of the rate payors.
2. Under this alternative, the District will be provided the
ability to regulate the rates and charges at the dump site for
all garbage disposed of at the site; if this is in conflict
with other jurisdictional authority, the negotiation committee
recommends extending rate regulation to the District's
wastestream only.
Page 5 of 21
3. Regulation of rates and charges at the dump site is not unique,
and is exerci sed by other regul atory bod i es in other
jurisdictions.
4. Of the two alternatives, the refuse collectors have expressed a
preference for the second alternative.
The two alternatives regarding the disposal of garbage are considered by
the negotiation committee to be negotiable, and Board comment and
guidance is solicited.
SECONDARY UNRESOLVED ISSUE - INDUSTRIAL WASTE DISPOSAL
Section 3 of the draft of the renegotiated franchise agreement provides
that the agreement extends to the regul ation of the collection, removal
and disposal of all garbage; however, the agreement excludes the
regulation of the collection, removal and disposal of industrial waste,
hazardous waste or septage.
The refuse collectors have expressed a desire to include industrial waste
within the scope of the exclusive franchise agreement.
The negotiation committee recommends that industrial waste be
categorically excluded for the following reasons:
1. The unique character of industrial waste material removal and
disposal requirements prevents the establishment of a uniform
and fairly determined rate schedule. As such, these rates are
better set by free market forces.
2. Existing industrial waste disposal contracts which were
established in a free market environment should not be
supplanted by rates which may require subsidies by other
categories of customers.
3. As ever increasing numbers of industrial waste products are
classified as hazardous, the risk of liability for damage to
property and peopl e bei ng retrospectively assessed upon
regulators should be considered.
4. Public agencies, such as the District, which produce unique
industrial waste material should not be constrained in their
attempt to obtain the most efficient, economical, and safe
removal and disposal means.
SECONDARY UNRESOLVED ISSUE - ISSUANCE OF COLLECTION RATE SCHEDULES TO
CUSTO~RS
Section 18 of the draft of the renegotiated franchise agreement provides
that the franchisee shall distribute to all customers printed information
cards indicating amounts of refuse which will be collected, rates, days
of coll ecti on and compl ai nt procedures. The informati on cards shall be
Page 6 of 21
distributed at least once every 24 months, and every time a rate change
takes place.
The negotiation committee recommends inclusion of the requirement for
information cards to ensure that the rate payors within the District are
knowledgeable of the services and charges for refuse collection, and are
provided with timely updates when rate changes occur. Dissemination of
the required information on separate information cards, or by
incorporation onto the computer-produced billing statements which reflect
the changed rates, would satisfy the requirements of this provision of
the renegotiated franchise agreement.
SECONDARY UNRESOLVED ISSUE - REFUSE COLLECTION BY DISTRICT UNDER CERTAIN
CONDITIONS
In the event of early termination of the agreement due to a material
breach, Section 31 of the renegotiated franchise agreement provides that
the District will have the right to take over and use the franchisee's
trucks and facilities for a period not to exceed 12 months. During that
period, revenues from the collection of garbage shall be owed to the
District, subject to payments to the franchisee for the fair rental value
of the equipment used. Under Section 32 of the renegotiated franchise
agreement, the provisions for taking over the franchisee's facilities
shall also be available to the District in the case of a natural disaster
or labor strike.
The negotiation committee recommends the inclusion of Sections 31 and 32
for the following reasons:
1. The District's ability to terminate the franchise agreement
because of a material breach by the refuse collector would have
little effectiveness without the means of continuing
uninterrupted service to the public.
2. The District is ultimately responsible to provide refuse
collection services to its public under any circumstances,
including natural disasters, strikes or other incapacity of the
refuse collector. These provisions enable the District to
fulfill this responsibility.
3. These priovisions are believed to be lawful and not
confiscatory. They are included in similar agreements of other
public agencies, such as the City of Walnut Creek, and provide
the ability to take extraordinary action to serve the public
welfare under emergency situations.
Page 7 of 21
ATTACHMENT II
MCCUTCHEN, DOYLE, BROWN & ENERSEN
FORMERLY
SAN rRANCISCO OFFICE
VAN VOORHIS & SKAGGS
SAN JOSE OFFICE
THREE EMBARCADERO CENTER
SAN FRANCISCO, CALIFORNIA 94111
(415) 393-2000
COUNSELORS AT LAW
ONE ALMADEN BOULEVARD, SUITE 620
1855 OLYMPIC BOULEVARD, THIRD FLOOR
SAN JOSE, CALIFORNIA 95113
(408) 947-8400
POST OFFICE BOX V
WALNUT CREEK, CALIFORNIA 94596-1270
(415) 937-8000
TELECOPIER (415) 937-8004
November 13, 1985
Hon. Parke Bonneysteele, President
and Members of the Board
Central Contra Costa Sanitary District
5019 Imhoff Place
Martinez, CA 94553
Comments On Draft Franchise A9reement
Our File No. 71573.005
Dear Directors:
We appreciate the opportunity to submit this letter on
behalf of our clients Orinda-Moraga Disposal, Inc., Pleasant Hill
Bay Shore Disposal, and Valley Disposal Service, Inc.
Introduction:
Approximately one year ago you told us that CCCSD was
not interested in renewing the current franchise agreements. You
also indicated that CCCSD was interested in negotiating new
agreements with the existing collectors and that CCCSD was
interested in changes or additions to the agreement in a number
of particular substantive areas.
We have negotiated with your staff. Our negotiations
have resulted in the 37-page draft agreement now submitted to
you for review. Our clients, of course, would prefer to continue
to operate under the terms and provisions of the existing form of
agreement which is only seven pages in length. CCCSD, the
collectors and the public have been well served by this agreement
and its predecessor for nearly 25 years. We are not convinced
that experience or circumstances warrant the additional thirty
pages of text.
Nevertheless, in many instances your negotiators have
insisted that provisions be added or that the language of the
existing agreement be expanded or that provisions which were
previously implied and understood be made express. Assuming that
Page 8 of 21,
Hon. Parke Bonneysteele, President
and Members of the Board
Central Contra Costa Sanitary District
November 13, 1985
Page 2
these requirements reflect the Board's desires, we have attempted
to negotiate language which is satisfactory, or at least
acceptable, to the collectors. (In doing so, we have contributed
also to the length of the final product.) The draft includes
many such provisions; i.e., provisions which we feel are
unnecessary or which we believe were adequately covered under the
existing practices and agreement, but which are acceptable to us
in their current draft form if the Board chooses to include them
in the new agreement.
Term and Waste Stream:
The term of the franchise and control and disposition of
the waste stream are the two primary areas where we have been
unable to reach agreement with your negotiators. We have been
invited to present our position to you initially by this letter.
Historically the collectors have been bound
contractually to dispose of garbage collected in the district.
Presumably failure to do so would be grounds for termination of
the franchise agreement. The collectors also have had control
and ownership of the waste stream. The collectors have provided
the Acme landfill which until recently was thought to have
capacity sufficient to last into the mid-1990s if not into the
next century.
After Acme's expansion area was severely limited by
conditions imposed by the Corps and other regulatory agencies,
the collectors intensified their search for a new site.
Collectively, to date, they have expended several million dollars
in this effort. Substantial additional sums will be required
before permits are issued. CCCSD's own study estimates that
development of the permitted site will cost $5 million to $10
million.
Capital costs of this magnitude require amortization
over a substantial period. Return of this capital investment is
dependent upon usage of the new landfill; that is, upon a
guaranteed waste stream.
Negotiations have stalemated on this point. Your staff
requires language which obligates the collectors to dispose of
the garbage. At the same time, your staff also requires language
which gives the District the right to change its mind, on short
Page 9 of 21
Hon. Parke Bonneysteele, President
and Members of the Board
Central Contra Costa Sanitary District
November 13, 1985
Page 3
notice, and to divert the waste to some other disposal facility
(See, paragraphs 25, 27). Only paragraph 27, alternative 12
provides any semblance of a guaranteed waste stream and then only
after (i) CCCSD decides, at some time in the future, that the
disposal site is acceptable and (ii) CCCSD is given control of
all rates charged at the landfill not just those charged for
disposal of garbage generated within CCCSD.
This issue also directly relates to the term of the
franchise. We believe that an investment of the magnitude
required justifies a 25-year term for collection and disposal of
the District's wastes. Your staff has not been willing to
consider more than 10 years.
A 10-year term would be acceptable for a franchise of
the collection operation, without any obligation to provide a
disposal site. Financing and amortization of capital costs and
reasonable planning require an adequate franchise term.
If CCCSD insists that the collectors continue to have
the obligation to provide a disposal site, we urge the Board
(i) to provide that wastes generated in CCCSD will be directed to
the collectors' disposal site, and (ii) grant a 25 year franchise
or at a minimum, to grant the traditional 10 year term with a 10
year option, exercisable by the collector provided he is not in
breach of the franchise agreement (unlike the option in the
existing contract which CCCSD contends can be unilaterally
cancelled without cause).
Other Matters:
Our clients also object strenuously to the provisions
relating to Termination (~ 31) and Emergency (, 32). In both
cases, staff's proposal allows CCCSD to confiscate the
collector's trucks, operate the business and charge the collector
for any shortfall between revenues and expenses which CCCSD
experiences. the contractors use their trucks for business not
franchised by CCCSD. Seizure would prevent them from operating
those businesses not regulated by CCCSD. There is no
justification for making the contractors pay for CCCSD's losses
if CCCSD choses to take over the business.
The current draft eliminates the exclusive franchise for
non hazardous industrial waste which is granted by the current
Page 10 of 21
Hon. Parke Bonneysteele, President
and Members of the Board
Central Contra Costa Sanitary District
November 13, 1985
Page 4
agreement. We know of no problem or complaint which suggests
that this departure from past practice is necessary or desirable.
Our clients are also concerned about the new provision
which requires them to send rate cards to all of their customers
at the time of each rate change. To our knowledge, no one has
complained about the absence of such information. In the context
of these negotiations, it is difficult to address costs and
administrative problems which would be created by this
requirement. We request that the language be modified to make
clear that CCCSD may require the collectors to send rate cards
and to postpone the actual decision until we jointly can consider
all of the ramifications of such a requirement. To do this, we
suggest that the first paragraph of page 16 read as follows:
The District may require Contractor to supply customers
with printed information in such form as District may
require from time to time.
Very truly yours,
~4~-- --
Sa'nfordOM. Skaggs ~O~
SMS-lj:C/4
WASTE 1/2
Page 11 of 21
ATTACHfJENT II I
SlJI4ARY OF NOTEWORTHY PROVISIONS IN THE DRAFT OF THE RENEGOTIATED
FRANCHISE AGREEJENT
A. SCOPE OF AGREEMENT. The draft franchise agreement grants an
exclusive franchise for the collection and disposal of all inorganic
and organic refuse and rubbish collected within each franchise area.
Several categorical exceptions are provided for in the agreement,
including hazardous waste, septage, industrial waste and a specific
category of bul k debris. The franchisees are al so granted the
exclusive right to operate drop boxes within the prescribed area,
however, a buil ding contractor or property owner may make speci al
arrangements to remove bulk debris, so long as it does not interfere
with the franchisee's rights with regard to drop boxes.
B. ADMINISTRATION OF THE AGREEMENT. The District retains the right to
set all rates concerning the collection of garbage. The District
will also receive a yearly fee from the franchisee for reimbursement
of District costs attributable to the administration of the
franchise, including costs attributable to District personnel as
well as outside professional fees.
The franchisee is requi red to keep records of the operation and
submit by March 31 of each year an audited financial statement. The
franchisee may apply for rate increases no more frequently than once
each year and all applications for rate increases must be
accompanied by the yearly fi nanci al statement. In the event that
the District requires the franchisee to alter his mode of operation,
the franchisee may make a special application to the Board for rate
adjustments.
C. DUTIES OF CONTRACTOR. The franchisee is required to collect and
dispose of all garbage within the designated area, subject to the
terms of the agreement. The pickup time for garbage collections
will be between 4 a.m. and 7 p.m. The franchisee shall provide an
office within the area served and shall supply each customer with a
list of charges and services periodically, in addition to each time
a rate change is granted.
The franchisee is further required to comply with all state and
federal regulations concerning the collection of garbage and the
handl ing of hazardous waste. The franchisee further agrees to
provide liability insurance for his operations to include coverage
in the amount of $5 million per person, and $10 million per
incident. The franchisee will provide indemnity to the District in
regard to liability arising out of its related operations.
The franchisee may not assign voluntarily or involuntarily (i.e. due
to insol vency) rights under this agreement and the assignment of
rights under the agreement wil 1 constitute grounds for termination
of the agreement.
Page 12 of 21
--_.__.----_.~--~... ..._--,-_._..---~---,-,--,.,-,-,-""--."--'---"'---'-_.__.._~..__._-_.,_.__._~--,._-,..--~--_.__..-----_....-_.~--~_._.
D. PROVISIONS REQUIRING ALTERATION OF CONTRACTOR'S OPERATIONS. Several
provisions have been included which would effectually require the
alteration of the franchisee's operations. Those provisions include
a right of the District to require additional efficiencies in
operation as may be directed after an investigation by the District.
Additional provisions deal with the right of the District to set up
programs concerning recycling and conversion of waste to energy. In
each case, the franchisee would be required to modify its operations
in order to conform with the needs of the District's program.
Additionally, the District retains the right to other varieties of
salvage as the District may discover and pursue.
E. MISCELLANEOUS PROVISIONS. The Agreement provides for the alteration
of the zone of operation when requi red by annexations or
deannexations. Additional provisions relate to the possible event
of takeover of portions of the franchise by a municipality. In the
event that a municipal ity undertakes the necessary procedures to
franchise the garbage within its boundaries, the agreement provides
that the District shall retain the right to direct the location for
disposal of the garbage collected during the term of the agreement.
The franchisee is allowed to prospectively bill for the collection
services on a quarterly basis. Payments are due 30 days into the
quarter and no termination for nonpayment can occur until the
conclusion of the quarter when the bill is 60 days overdue.
The agreement is written so as to be severable in the event of legal
attack by third parties. As between the parties, the agreement is
nonseverable and any attempt by either party to challenge the
validity of a provision of the agreement shall be deemed a material
breach and grounds for termination of the agreement.
Page 13 of 21
__ ___...__.."._..~_m.~..___,.__""__'_M -~_._^_.,'-_.~-"~,_._--_.---
ATTACHMENT IV
McCUTCHEN, DOYLE, BROWN & ENERSEN
FORMERLY
SAN FRANCISCO OFFICE
VAN VOORHIS & SKAGGS
SAN JOSE OFFICE
THREE EMBARCADERO CENTER
ONE ALMADEN BOULEVARD. SUITE 620
COUNSELORS AT LAW
SAN JOSE, CALIFORNIA 95113
(408) 947-8400
SAN FRANCISCO, CALIFORNIA 94111
(415) 393-2000
1855 OlYMPIC BOUlEVARD, THIRD FlOOR
POST OFFICE BOX V
WAlNUT CREEK, CAliFORNIA 94596-1270
(415) 937-8000
TELECOPIER (415) 937-8004
November 13, 1985
Hon. Parke Bonneysteele, President
and Members of the Board
Central Contra Costa Sanitary District
5019 Imhoff Place
Martinez, CA 94553
Comments of PHBS
Our File No. 71573.005
Dear Directors:
We represent Pleasant Hill Bay Shore Disposal which is
owned by Boyd M. Olney, Jr. Because it is a sole proprietorship
and not a corporation like the other two collectors, PHBS has
some unique concerns with the terms of the draft franchise
agreement.
In addition to the comments and requests submitted on
behalf of all of the collectors, PHBS requests two modifications
of the draft insofar as it applies to PHBS.
First, PHBS requests that it not be required to prepare
and submit audited statements. Mr. Olney operates seven
franchised collection operations as well as a number of other
unregulated businesses. Since he is a sole proprietor, an
audited statement cannot be prepared for the CCCSD operation
alone. No other franchisor requires an audited statement from
Mr. Olney. Nor does Wells Fargo Bank which has extended seven
figure credit to Mr. Olney. We suggest that the following
language be substituted for the third full paragraph of section 7
of the draft agreement when preparing the PHBS agreement:
The Contractor shall, by March 31 of each year, submit
to the District an income and expense statement for
operations in the Zone for the most recent reporting
year, prepared by a CPA without audit. Contractor shall
Page 14 of 21
Hon. Parke Bonneysteele, President
and Members of the Board
Central Contra Costa Sanitary District
November 13, 1985
Page 2
further furnish to the District a report of its total
number of Customers, within the Zone, by types of
Customers and such other operating statistics in such
manner and with such detail as the District may request.
The draft allows transfer of the Collector's business to
persons who are now shareholders. <,21) In the case of the
other two collectors this provision allows transfer of the
business to family members who are now active in the business.
Mr. Olney's son, David Olney, is active in PHBS and serves as its
general manager. In order to treat him equally, we suggest that
, 21, line 3 of the PHBS agreement read as follows:
. . . to a person other than David Olney without the
written consent of the District.
PHBS also subscribes to the comments, requests and
suggestions made in the letter of even date submitted by us on
behalf of the three collectors.
Finally, it is the understanding of PHBS that it will
not be required to submit a balance sheet for its operations
within the Zone in connection with any rate application. This
requirement will be waived in recognition of the structure of the
business of PHBS and the small portion of that business which is
regulated by CCCSD.
Very truly yours,
d:t:~~
SMS:lj-C/2:B2
Page 15 of 21
ATTACHtlfNT V
INlERESTS AtI> CONCERNS OF TIE CIlY OF SAN RAMON
Areas of the City of San Ramon which are within the Central Contra Costa
Sanitary District's boundaries are served by Valley Disposal Service and
areas within Dublin San Ramon Services District boundaries are served by
Oakland Scavenger Company. The City is interested in assuming
franchising authority for all refuse collection within the City of San
Ramon and its sphere of influence to achieve uniform service levels and
rates. To facll itate assumption of total franchising authority as of a
common date, the City wishes to have the Valley Disposal Service
franchise agreement to be co-terminus with the Oakland Scavenger
agreement with Dubl in San Ramon Services 01 strict. The current Oakl and
Scavenger agreement expires April 1, 1986.
On October
resolution
collection
01 strict's
22, 1985, the City Council of the City of San Ramon adopted a
declaring its assumption of franchising authority for refuse
for the City, and requesting the Central Contra Costa Sanitary
Boa rd :
1.
To attempt to negotiate a termination date of March 31, 1986
for the current refuse collection franchise with Valley
Disposal Service, insofar as it pertains to the City of San
Ramon.
2.
To enter into a Joint Powers Agreement with the City of San
Ramon, delegating to it the responsibil ity for refuse
collection within its sphere of influence.
A copy of the City Council resolution is attached.
Page 16 of 21
RESOLUTION NO. 85-91
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF SAN RAMON
DECLARING THE INTENTION OF THE CITY TO ASSUME THE
FRANCHISE RESPONSIBILITY FOR SOLID WASTE COLLECTION SERVICES
THROUGHOUT CITY AND REQUESTING THE CENTRAL CONTRA COSTA
SANITARY DISTRICT TO ENTER INTO A JOINT POWERS AGRgE~ENT
FOR THE CITY TO ASSUME FRANCHISE RESPONSIBILITY' F6~'
SOLID WASTE COLLECTION SERVICE WITHIN ITS SPHERE OF INFLUENCE
WHEREAS. the franchising for solid waste collection service
within the City 0% San Ramon is accomplished by the Central Contra
Costa Sanitary District and the Dublin San Ramon Services Dis-
trict; and
WHEREAS. the franchising for solid waste collection by two
separate agencies has resulted in the residents 0% the City
receiving two levels 0% service and being subJected to two rate
schedules, depending on the area 0% the City in which they reside;
and
WHEREAS. the current franchise agreement of the Central
Contra Costa Sanitary District and Valley Disposal Service expires
November 1, 1986; and
WHEREAS. the current franchise agreement of the Dublin San
Ramon Services District and Oakland Scavenger Company expires
April 1, 1986; and
WHEREAS. the renewal of both franchises are currently being
negotiated; and
WHEREAS, in the interests of uniform services and rates and
planning %or the wel%are 0% current and %uture residents 0% the
City, it is essential %or the City to assume the solid waste %ran-
chise responsibility %or the City and %or its sphere 0% in%luence:
NOW THEREFORE BE IT RESOLVED. that the City pursuant to auth-
ority vested in it by the Constitution and the laws 0% the State
0% Cali%ornia assumes the %ranchise responsibility %or solid waste
removal services %or the City; and requests the Board 0% Directors
0% the Central Contra Costa Sanitary District:
1. To attempt to negotiate 0 termination dote of March 31.
1986 %or the current solid waste re%use collection fran-
chise with Valley Disposal Services, in so far as it per-
tains to the City of San Ramon;
2. To enter into a Joint Powers Agreement with the City of
San Ramon, delegating to it the responsibility for the
solid waste collection %or the area within its Sphere of
Page 1
Page 17 of 21
Influence ~s deline~ted by Contr~ Cost~ County Loc~l
Agency Formation Commission Resolution dated November 14,
1984 (Exhibit A).
IT IS FURTHER RESOLVED, that the City Council understands and
agrees that any changing 0% boundaries %or solid waste collection
services or any in%ormation submitted on behal% 0% such changes
will not in way a%%ect the current or %uture boundaries or Sphere
0% In%luence 0% the District %or other sanitary services.
FURTHERMORE, the City Council decl~res its commitment to the
open democratic process that there will not be any changes 0%
special district boundaries or spheres 0% in%luence without public
input and delibe~ation and Eull consideration 0% tha interests 0%
the current and %uture residents 0% the respective special dis-
tricts.
PASSED, APPROVED AND ADOPTED at the meeting of October 22,
1985, by the %ollowing vote
AYES:
NOES:
ABSENT:
Mayor
ATTEST:
City Clerk
Page 2
Page 18 of 21
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ATTACHMENT VI
INlERESTS AND CONCERNS OF THE CITY OF LAFAYETTE
The following interests and concerns were expressed by City officials in
a meeting with District representatives on October 30, 1984:
1. City officials and citizens are satisfied with the service and
rates for refuse collection and desire the continuation of the
present arrangement, within the bounds of necessary changes to
the franchise agreement required by the District.
2. The renewal period should be set in consideration of the
collector's concern for a period that would not prevent
financing new equipment acquisition.
3. The City of Lafayette foll ows the contract city concept and
would not seek to assume franchising authority.
At its October 28, 1985 Council Meeting, the City Council reviewed the
issue of the assumption of refuse collection franchising authority for
services within the City of Lafayette. Following deliberation, the
Council directed its City Manager to contact the District to obtain the
following:
1. The schedule for finalizing the franchise agreement
negotiations, and the decision points by the City and District
in the next several months.
The negotiation schedule has been provided to the City Manager
by the District.
2. Whether flexibility exists to add special provisions to the
franchise agreement which would apply to the City, such as the
inclusion of a franchise fee for the City of Lafayette.
This inquiry is being reviewed by District Counsel.
Page 20 of 2.1
ATTACHt-ENT VII
INTERESTS AND CONCERNS OF THE TOWN OF MORAGA
In a letter dated December 5, 1984, the Town Council of the Town of
Moraga provided the District's Board with its position regarding the
renegotiation of the franchise agreement, as follows:
1. The Council supports a time extension for Orinda-Moraga
Disposal Service and believes a term less than ten years would
be appropriate.
2. The Cou nc il encou rages the Boa rd to ma i nta in its p resent rate
structure for services to the residents of Moraga.
3. The Council believes the present level of services to residents
of Moraga is appropriate and requests that this service level
continue.
4. The Council is most concerned with the fact that recycling of
solid waste is not presently being accomplished. It recognizes
that this is a complicated matter, but does believe that
progress in this direction is desirable.
5. The Council bel ieves that the recommendations enclosed in the
Price Waterhouse report should be followed when reviewing
future rate requests from Orinda-Moraga Disposal Service.
At its November 6, 1985 Council Meeting, the Town Council directed its
staff to prepare a resolution for its consideration at the next Council
Meeting on November 20, 1985 to advise the District that it wishes to
assume franchising authority from the Central Contra Costa Sanitary
District. However, the Town Council will review the draft of the
renegotiated franchise agreement before making a final determination
regarding assumption of franchising authority.
Page 21 of 21
AGREEMENT FOR COLLECTION, REMOVAL
AND DISPOSAL OF GARBAGE
ZONE
November 12, 1985
TABLE OF CONTENTS
Section
Page
1. Definitions 2
2. Exclusive Privilege 4
3. Intent to Regulate All Garbage Collection,
Removal or Disposal 4
4. Exceptions to Exclusive Privilege 5
5. Right to Sell Valuable Commodity 6
6. Rates 6
7. Duty of Contractor to Maint.ain Records --
Right of District to Examine Contractors
Records 7
8. Applications by Contractor for Rate
Increase 9
9. 0peration By Contractor 10
10. Compliance with Federal, State and Local
ordinances 10
11. Limitation of Time on Collection 11
12. District May Require Efficiencies in Operation 11
13. Salvage
12
14. Faithful Performance Bond
12
15. Insurance
13
16. Legal Liability
14
17. Attorneys' Fees
15
18. Miscellaneous Obligations of Contractor
15
19. Fee for Exclusive Privilege
20. Billing
16
17
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Section
Page
21. Assignability of Agreement 18
22. Involuntary Assignment 18
23. Notice provisions 19
24. Recycling 21
25. Waste to Energy Program 21
26. Hazardous Waste 23
27. Disposal of Garbage (Alternative #1) 23
27. Disposal of Garbage (Alternative #2) 25
28. Annexation and Change of Zone Boundaries 26
29. Takeover of Franchise Rights by Other
Public Entity 27
30. Affiliated Entities 28
31. Breach and Termination 29
32. Emergency 32
33. District Code 33
34. Term of the Agreement 33
35. Contest of Agreement's Term by the Parties 34
36. Severability 35
37. Terms of Agreement Bargained For 35
38. This Agreement Shall Supersede Prior
Agreements 36
-ii-
AGREEMENT FOR COLLECTION, REMOVAL
AND DISPOSAL OF GARBAGE
ZONE
This Agreement made and entered into this day of
, 19__, by and between the District and the Contractor,
WHEREAS the District and Contractor have entered into a
Second Amended Agreement for Collection, Removal and Disposal of
Garbage dated the 1st day of July, 1976, (hereinafter referred to
as "said agreement") granting to Contractor the exclusive priv-
ilege to collect, remove and dispose of Garbage in the Zone until
November 30, 1986; and
WHEREAS, said agreement provides that it may be extended on
November 30,1986 at the option of the Contractor, unless at least
two years prior to the termination of said agreement the District
has notified the Contractor in wri ting that it does not desire said
agreement to be extended for an additional period; and
WHEREAS, the Contractor exercised its option to extend said
agreement; and
WHEREAS, the District has notified the Contractor that it
does not desire said agreement to be extended under the same terms
and conditions.
NOW, THEREFORE, in consideration of the covenants and agree-
ments of the parties hereto and the payment of certain fees as
hereinafter set forth, it is mutually convenanted and agreed as
follows:
-1-
1. DEFINITIONS:
As used herein, the following terms shall have the meanings
set forth below:
(a) "Agreement": This agreement for the collection,
removal,. recycling and disposal of garbage by and between the
District and the Contractor entered into as of the date first
written above.
(b) "Contractor":
of
(c) "Customers": Those who have contracted with the
, dba
Contractor for the collection, removal, recycling or disposal of
Garbage as provided herein.
(d) "District" : The Central Contra Costa Sani tary
District, a public corporation.
(e) "Garbage" :
(1) animal, fruit and vegetable refuse;
(2) offal;
(3) leaves and cuttings, trimmings from trees,
shrubs and grass;
(4) inorganic refuse and rubbish;
(5) anything thrown away as worthless; provided,
however, that Garbage shall not be defined as or include Hazardous
Waste, Septage or Industrial Waste.
(f) "Hazardous Waste":
A waste, or combination of
wastes, which because of its quanti ty, concentration, or physical,
chemical, or infectious characteristics may either:
-2-
(1) cause, or signif icantly contribute to an
increase in mortality or an increase in serious irreversible, or
incapacitating reversible, illness; or
(2) pose a substantial present or potential haz-
ard to human heal th or environment when improperly treated,
stored, transported, or disposed of, or otherwise managed.
This definition will include, but not be limited to,
hazardous waste as defined by the state of California and its
agencies, or the United States or its agencies.
(g) "Septage": Non-sewered liquid or semi-liquid
waste which may be trucked to the District or other treatment
facility for disposal, to include, but not limited to, waste from
residential septic tanks, commercial grease cleanouts, and indus-
trial waste holding facilities.
(h) "Industrial Waste": Non-sewered liquid waste and
solid waste produced as by-product of industrial processes, or
other refuse produced or accumulated as a result of industrial
processes, including waste produced by the District and other
public enti ties as a result of treatment or other processes
undertaken in providing public utility services.
(i) "Zone": The geographic area generally described
in Exhibit A to this Agreement, which exhibit is attached hereto
and incorporated herein by reference, and more particularly as set
forth in the six hundred (600) scale maps maintained and available
for inspection at the office of the Secretary of the District,
excepting therefrom any geographic area which is wi thin the
-3-
boundaries of another jurisdiction, including any military base,
which is exercising its authority to regulate garbage collection.
Said six hundred (GOO) scale maps shall reflect changes of bound-
aries of the Zone in such a manner as to identify each alteration
to the Zone and the effective date thereof.
2. EXCLUSIVE PRIVILEGE
The District, by this Agreement, grants to the Contractor for
the term as set forth in paragraph 34 of this Agreement, unless
terminated in accordance with this Agreement, the exclusive pri-
vilege to collect, remove and dispose of all Garbage as said term
is defined in this Agreement within the Zone. This exclusive
privilege to collect, remove, and dispose of garbage is only
qualified as set forth in this Agreement.
The Zone may be expanded or reduced in size (a) by mutual
agreement of the parties; or (b) as provided in paragraphs 28 and
29 of this Agreement.
3. INTENT TO REGULATE ALL GARBAGE COLLECTION, REMOVAL OR
DISPOSAL:
The parties hereto agree that the District currently has
jurisdiction to regulate the collection, removal and disposal of
all Garbage in the Zone. The parties further agree that by the
terms of this Agreement the District has exercised its juris-
diction and is regulating the collection, removal and disposal of
all Garbage in the Zone. This Agreement does not regulate the
-4-
collection, removal and disposal of industrial waste, hazardous
waste or septage.
Whether a particular garbage collection activity is regu-
lated by this Agreement or not, is within the sole determination
of the District. If there is any question as to whether the garbage
collection activity is regulated or unregulated, it shall be the
responsibility of the Contractor to inquire of the District and
therafter provide such information as the District may require to
enable the District to provide Contractor with a formal written
opinion as to whether the garbage collection activi ty is regulated
or unregulated.
4. EXCEPTIONS TO EXCLUSIVE PRIVILEGE:
The exclusive privilege granted by this agreement shall not
apply if:
(a) The person or enti ty generating garbage personally
collects, removes and disposes of such in a clean and sanitary
manner in conformance wi th all applicable laws and regulations, or
(b) The person or entity generating inorganic refuse
or rubbish contacts the Contractor to arrange for the collection,
removal and disposal of such and the Contractor declines to do so
or is unable to do so in a timely manner, or
(c) The person generating the garbage contracts with
another to remove and dispose of (i) inorganic refuse or rubbish,
or (ii) leaves, cuttings, trimmings from trees, shrubs or grass by
truck or other vehicular means, when such removal is incidental to
-5-
other contract work being performed.
Nothing in this paragraph shall be construed to eliminate or
qualify the exclusive privilege of the Contractor to provide drop
boxes and/or bulk collection containers for collection of garbage
within the Zone.
5. RIGHT TO SELL VALUABLE COMMODITY:
This Agreement is not intended to and does not affect or limi t
the right of any person to sell any valuable commodity to the
Contractor or to any other person lawfully doing business within
the Zone at prices agreed upon by the parties to such transaction,
provided that the valuable commodity is separated at the source by
the generator and that the person purchasing the valuable com-
modity does not collect and dispose of other garbage.
6. RATES:
Contractor shall perform the responsibili ties and duties
herein agreed in the Zone in accordance with and in consideration
of the reasonable rates fixed by the District from time to time.
The statement that the actions in paragraphs 12, 24, 25, and 27 may
be directed "at no cost to the District" shall not be construed to
mean that the Contractor is prohibited, subject to the District's
approval, from passing on its costs of taking those actions to the
Customers. It is the intent of the parties that the rates fixed
shall be in conformity with applicable law.
-6-
7. DUTY OF CONTRACTOR TO MAINTAIN RECORDS -- RIGHT OF
DISTRICT TO EXAMINE CONTRACTOR'S RECORDS:
Contractor shall maintain a proper set of books and records
in accordance wi th generally accepted accounting principles,
accurately reflecting the business done by it under this Agree-
mente
Contractor shall further maintain records as to its total
number of Customers, said records to detail the types of Customers
and such other operating statistics in such manner and with such
detail as the District may require.
The Contractor shall, by March 31 of each year submit to the
District an audited financial statement for the most recent
reporting year and shall further furnish to the District a report
of its total number of Customers within the Zone by types of
Customers and such other operating statistics in such manner and
with such detail as the District may request.
The District may, at its own expense, at any time during the
term of this Agreement, examine the books and records of the
Contractor, or have the books and records of the Contractor
examined by a person appointed for that purpose by the District.
District shall give thirty (30) days written notice to the Con-
tractor in advance of such examination date.
The information required by this paragraph shall pertain to
the Contractor's operations in the Zone. Nothing contained herein
shall require the Contractor to provide the District wi th informa-
tion pertaining to the Contractor's operations which are not
-7-
regulated by the District; provided that the District's agent may
examine the Contractor's books, records and financial statements
pertaining to operations not regulated by the District for the sole
purpose of gathering information necessary to allow the agent to
ascertain as to whether income, expenses, assets and liabilities
are reasonably and consistently allocated among operations re-
gulated by the District and operations not regulated by the
District. As used in this paragraph "District Agent" shall mean
an independent CPA, as agreed upon by the parties, or, failing
agreement, appointed by the Presiding Judge of the Contra Costa
County Superior Court. Notwithstanding this requirement to use an
independent CPA as the "District Agent," the District may use
District employees, or any other person designated by the Dis-
trict, to examine records of the Contractor otherwise available to
other public entities. Information gained from such examination
of records pertaining to operations not regulated by the District
shall be treated by the District and its agents as confidential
information. However, nothing in this paragraph will prevent the
District allowing public access to District records as provided
for under the California Government Code, and in the event any
dispute arises as to the public access to information provided by
the Contractor under the terms of this Agreement, the District
shall in its discretion provide public access to said information
according to law or tender the defense of any claims made against
the District concerning said information to the Contractor.
-8-
8. APPLICATIONS BY CONTRACTOR FOR RATE INCREASE:
Any and all requests for rate increases, excepting those
provided for under paragraphs 12, 24, 25, and 27 of this Agreement,
may be made no more frequently than on an annual basis. Any such
request for rate increase by the Contractor, excepting those
provided for in paragraphs 12, 24, 25, and 27 of this Agreement,
shall be submitted together with the audited financial statement
required under paragraph 7 of this Agreement by March 31 of that
year. Approval of the rate increase, or other action by the Board
on the application, shall occur only after the District has had
sufficient time to review the application and financial statement,
and in no event will a rate increase take effect before July 1 of
the year in question.
Rate increase applications submitted by Contractor will be
prepared using such formats, including such operating statistics
as the District may prescribe from time to time. Any rate increase
application will be accompanied by audited financial statements
for the most recent reporting year preceding the requested effec-
tive date of rate increase.
In the event the Contractor is required to make changes in its
operation pursuant to the conditions set forth in paragraphs 12,
24, 25, and 27 of this Agreement, the Contractor may petition the
Board using the format mentioned herein, at any time during the
calendar year. The District staff shall calender the peti tion for
rate increase within seventy-five (75) days of receipt of an
-9-
extraordinary petition presented pursuant to paragraphs 12, 24,
25, and 27 of this Agreement.
9. OPERATION BY CONTRACTOR:
Contractor shall furnish all necessary equipment for the
operation of refuse collection service in the Zone and shall
maintain such equipment in a sanitary condition at all times.
Contractor shall furnish all necessary labor in connection with
the operation of a refuse collection service in the Zone.
The Contractor, in performance hereof, shall use covered (by
tarpaulin or otherwise) water-tight bodied motor trucks wi th truck
bodies constructed of sufficient strength to withstand a fire
within, without endangering adjacent property. The trucks, drop
boxes, bins, or similar types of equipment shall be kept neat and
clean and in good repair. The Contractor shall paint its name,
permit number and telephone number on the side of each truck (in
letters at least four (4) inches high) and each drop box, bin or
similar type equipment owned or leased by the Contractor.
10. COMPLIANCE WITH FEDERAL, STATE AND LOCAL ORDINANCES:
The Contractor shall comply with all applicable ordinances
and rules and regulations that are now in effect or may be
promulgated or amended from time to time by the Government of the
united States, the State of California, the County of Contra Costa,
the District and any other agency now authorized or which may be
authorized in the future to regulate the services to be performed
herein regarding the collection, removal and disposal of Garbage.
-10-
11. LIMITATION ON TIME OF COLLECTION:
The Contractor shall make a systematic collection of Garbage
from each place where collection is made in a manner that the
person receiving the service can predict the day on which collec-
tion will be made. Contractor shall not collect Garbage from an
inhabited dwelling or dwelling unit between the hours of 7:00 p.m.
and 4:00 a.m.
12. DISTRICT MAY REQUIRE EFFICIENCIES IN OPERATION:
The District may from time to time at its discretion and at
its expense, examine the Contractor's operation in order to insure
that the Contractor is operating at a satisfactory level of
efficiency.
The Contractor agrees to cooperate in any such examination
and shall provide for inspection to the District or its designated
representatives, at the Contractor's principal place of business,
such information as the District may require, including but not
limited to such things as collection routes and equipment records.
In addition, the District may require the Contractor to
evaluate alternative methods of Garbage collection for the purpose
of improved efficiencies and to develop and submit a plan to
implement the efficiencies within one hundred and eighty (180)
days of notice to the Contractor. The District can require the
Contractor to implement the efficiencies within one (1) year of
approval of the Contractor I s plan, unless the Contractor can
demonstrate that one (1) year is unreasonable. Should the District
-11-
commence such a program as outlined in this paragraph, Contractor
agrees to not only do those things specified herein, but also to
act at the direction of the District on other matters that may be
necessary for the success and efficiency of such a project(s).
13. SALVAGE:
District shall be entitled to the right of salvage at the
expense of the District from the Garbage collected pursuant to this
Agreement, but at its sole discretion may delegate this right to,
or waive the same in favor of, the Contractor. District has
temporarily waived its right of salvage and has delegated such to
Contractor; and such waiver and delegation shall continue until
notice in wri ting by the District to the contrary is given. In the
event the District independently wishes to exercise its right to
salvage, the District shall give in writing to the Contractor
notice of its intent and said right shall commence and accrue to
the District ninety (90) days from the date of said notice. The
salvage rights set forth in this paragraph specifically are
intended to refer to salvage operations once the garbage is in the
waste stream. This paragraph should not be read to be in conflict
with the rights to recycle set forth in paragraph 24.
14. FAITHFUL PERFORMANCE BOND:
The Contractor shall submit to the District simultaneously
wi th the execution of this Agreement a corporate surety bond in the
-12-
amount of $100,000.00 ($50,000.00). The bond shall be executed by
a surety company licensed to do business in the State of California
and acceptable to the District. The bond shall be approved by the
District and shall be payable to the District. The condition of
the bond shall be that the Contractor will faithfully perform the
duties imposed by ordinance, this Agreement and the rules and
regulations of the District. Any action by the District to proceed
against the Bond shall not limit or affect the right of the
District to use other remedies available to the District under the
Agreement, or in courts of law or equity. Notwithstanding the
foregoing, in lieu of the corporate surety bond, Contractor may
provide to District a letter of credit or cash bond in a form
satisfactory to the District.
15. INSURANCE:
Contractor shall maintain continually in force during the
term of this Agreement, public liability insurance, property
damage insurance and worker's compensation insurance as follows:
Public liability -- $5,000,000.00 per person /
$10,000,000.00 per accident;
Property damage -- $500,000.00 per anyone claim;
Worker's compensation -- as required by state law.
Such insurance shall be obtained from a company or companies
licensed to do business in the State of California and acceptable
to the District. The District shall be named as addi tional insured
and each such policy shall contain a clause providing that the
insurer will not cancel or decrease the insurance coverage wi thout
-13-
first giving thirty (30) days' notice in writing to the District.
A Certificate of Insurance shall be provided to the District.
Failure of Contractor to maintain insurance in the manner and
amount stated above will constitute a breach of this Agreement.
16. LEGAL LIABILITY:
All work and performance covered by this Agreement shall be
at the risk of the Contractor.
Contractor agrees to save, indemnify and keep harmless the
district against any and all liability, claims, judgments, or
demands, including demands arising from injuries or deaths of
persons and damage to property, arising directly or indirectly out
of the obligations here undertaken or out of the operations con-
ducted by the Contractor, save and except claims or litigation
arising through the sole negligence or willful misconduct of the
District, and will make good to and reimburse District for any
expenditures, including reasonable attorneys' fees, that the
District may make by reason of such matters and, if requested by
District shall defend any suit at the sole cost and expense of
Contractor.
Upon request by the District, the Contractor shall appear for
and defend the District in any action which challenges the validi ty
of this Agreement or the procedure by which this Agreement was
entered into, or the validity of any District ordinance which
authorizes District to enter into this Agreement. Defense of the
District shall be provided by counsel satisfactory to the Dis-
-14-
trict. All costs of litigation including attorneys' fees, and, to
the extent permitted by law, any money judgment entered against
District, its Board members, officers or employees or agents,
shall be borne by the Contractor. In each case the District shall
have the sole and final authority to determine whether such costs
and/or judgment be chargeable as an operating expense or charge-
able against Contractor's profits.
Should any party successfully challenge the validity of this
Agreement or the procedure by which this Agreement was entered into
or the validity of any District ordinance which authorizes the
District to enter into this Agreement, then in such case the
Contractor shall have no cause of action for damages or any other
relief against the District as a result of such successful chal-
lenge.
17. ATTORNEYS' FEES:
In the event of litigation between the parties arising
hereunder, the prevailing party shall recover its reasonable costs
of litigation, including attorneys' fees and costs as determined
by the Court.
18. MISCELLANEOUS OBLIGATIONS OF CONTRACTOR:
The Contractor shall maintain an office with adequate tele-
phone service within the District, and shall keep the office open
during usual business hours for the transaction of business with
its Customers and the public.
-15-
The Contractor shall supply occupants of premises utilizing
his services with printed information cards containing informa-
tion regarding amounts of refuse which will be collected, com-
plaint procedures, rates, and days of collection. Such cards shall
be distributed at least once every twenty-four (24) months, and
every time a rate change takes place.
The Contractor shall provide three additional all-purpose
pickups per year not to exceed two cubic yards per residential unit
in the residential areas of the Zone. The dates for said addi-
tional pickups may be set by the Contractor, however it is the
intent of this Agreement that they shall be as evenly spaced
throughout the year as is practicable and that the Contractor will
provide notice to the Customers of said pickup dates.
19. FEE FOR EXCLUSIVE PRIVILEGE:
The Contractor shall pay to the District for the privilege
granted by this Agreement an annual fee fixed by the District which
is reasonably calculated to reimburse the District for its direct
costs in administering this Agreement, including, but not limited
to outside professional fees incurred by the District, plus a
reasonable allowance for overhead of the District as said overhead
relates to garbage franchising; which sum shall be fixed by the
District and paid annually in advance by the contractors, in
proportion to the number of customers served by each franchised
contractor.
-16-
Amounts due each year shall be paid in advance within thirty
(30) days after July 1 of each fiscal year following the effective
date of this Agreement.
The fee for the fiscal year beginning July 1, 1985, is hereby
fixed at $ , and has been paid. The last payment pursuant
to this paragraph shall be prorated from the beginning of the
fiscal year in which this Agreement ends to the date this Agreement
ends.
20. BILLING:
The Contractor may bill its Customers in advance or in
arrears. Bills in advance shall be due and payable thirty (30)
days after the beginning of the billing period. The billing
periods for advance billing shall be at least quarterly unless the
District approves a less frequent billing. Contractor agrees not
to discontinue service to a Customer until a Customer's account
billed in advance has been delinquent for a period of at least
sixty (60) days, and notice of the termination is provided to the
customer thirty (30) days prior to the termination.
Where the Contractor bills in arrears, the bill shall be due
and payable upon presentation and the Contractor agrees not to
terminate service until the Customer's account billed in arrears
has been delinquent for ten (10) days.
Full payment for debris boxes may be required by the Con-
tractor prior to delivery of debris box to Customer.
-17-
21. ASSIGNABILITY OF AGREEMENT:
The Contractor shall not sell, assign, or transfer this
Agreement or any part hereof, including probate proceedings,
without the written consent of the District.
Neither this Agreement nor any part hereof, nor any obliga-
tion or service to be performed hereunder shall be assigned or
subcontracted wi thout wri tten consent of District. The term
assignment shall include any dissolution, merger, consolidation
or other reorganization of the Contractor, which resul ts in change
of control of the Contractor, or the sale or other transfer by
probate proceeding or otherwise of a controlling percentage of the
Contractor's capital stock to a person not a shareholder on the
date of the execution of this Agreement. In the event the
Contractor herein attempts to assign or subcontract this Agreement
or any part hereof or any obligation hereunder, the District shall
have the right to elect to terminate forthwith, without suit or
other proceeding.
22. INVOLUNTARY ASSIGNMENT:
No interest of Contractor in this agreement shall be assign-
able by operation of law. Each or any of the following acts should
be considered an involuntary assignment providing the District
with the right to elect to terminate the Agreement forthwith,
without suit or other proceeding:
-18-
(1) If the Contractor is or becomes bankrupt or insol-
vent, makes an assignment for the benefit of creditors or in-
sti tutes a proceeding under the Bankruptcy Act in which the
Contractor is the bankrupt,
(2) If Writ of Attachment or Execution is levied on
this Agreement,
(3) If in any proceeding to which the Contractor is a
party a Receiver is appointed wi th authori ty to take possession of
the Contractor's property.
(4) In the event of a probate proceeding where the
rights of the Contractor under the Agreement would pass to another
individual or other individuals.
23. NOTICE PROVISIONS:
Any notice required or permitted under this Agreement shall
be in writing and shall be deemed to have been given if delivered
personally or ten (10) days after posted by certified mail, return
receipt requested, addressed as appropriate, either to the Con-
tractor at: , California, or to the Dis-
trict at 5019 Imhoff Place, Martinez, California 94553, Attention:
General Manager and Chief Engineer.
24. RECYCLING:
District is currently studying refuse recycling as a means to
conserve resources, energy, money and to further enhance the
-19-
environment. The parties hereto recognize that refuse recycling,
use of waste or garbage products and improvements in garbage
collecting efficiencies are changing and developing technologies.
Notwi thstanding anything in this Agreement to the contrary, at any
time during the term of this Agreement the District may require the
Contractor to prepare and submi t a plan to provide refuse recycl ing
in the Zone. The Contractor shall provide such a recycling plan
wi thin 180 days of receiving the wri tten notice requiring prepara-
tion of a recovery plan. The District shall review and comment
upon the proposed recycling plan within sixty (60) days. The
Contractor shall have thirty (30) days from receipt of District's
comments to modify the Contractor's proposed plan in order to make
said proposed plan acceptable to the District. If the plan is
approved by the District Board of Directors, the Contractor shall
implement the plan within ninety (90) days unless that is im-
practicable under the circumstances. Implementation of a refuse
recycling plan will be at no cost to the District.
The District may require, as an element of a program to
recycle refuse among other things, that the contractor undertake
curbside or home pickup of recyclable material and segregate the
garbage into elements suitable for recycling and elements not so
suited. The District may further require that the Contractor
deliver the segregated recyclable refuse to locations or sites
selected by the District.
Contractor agrees to not only do those things specified
herein, but also to act at the direction of the District on other
-20-
matters that may be necessary for the success and efficiency of a
recycling project. The District shall give reasonable advance
notice to Contractor of changes in the Contractor's operations
which may, in the District's discretion, become necessary due to
the implementation of a recycling program.
In the event the Contractor fails to submit or implement a
plan in a timely manner as set forth in this section of the
Agreement, or fails to reasonably act at the direction of District
on matters relating to recycling, any and all such failures will
be treated as a breach of this Agreement and the District shall
have the right to elect to terminate forthwith, without suit or
other proceeding.
25. WASTE TO ENERGY PROGRAM:
The District may evaluate the feasibility of a waste to energy
project as a means to conserve resources, energy and further
enhance the environment. The parties hereto recognize the tech-
nologies in regard to production of energy from waste refuse are
changing and developing. The District may, at any time during the
term of this agreement, undertake a waste to energy project. In
the event the District undertakes such a waste to energy project,
the District shall give thirty-six (36) months' notice to the Con-
tractor of its intent to commence such a program. At the expira-
tion of the thirty-six (36) months, the Contractor shall implement
the changes in the Contractor's operations which may become
necessary due to the waste to energy project.
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The District may require, as an element of the waste to energy
project, that the contractor deliver the garbage collected under
this Agreement, or portion thereof, as directed by the District,
to locations or si tes selected by the District for waste to energy
production. The Contractor agrees also to act at the direction of
the District on other matters that may be necessary for the success
and efficiency of a waste to energy project. In this regard, the
District shall give reasonable advance notice to the contractor of
changes in the Contractor's operations which may, in the Dis-
trict's discretion, become necessary due to the implementation of
the waste to energy project.
The Contractor shall have the right and duty to collect and
dispose of nonhazardous waste or refuse produced as a result of
operations of a District owned or controlled waste to energy
facility, including, but not limited to, ash and other solid
noncombustible material. The Contractor shall collect and dispose
of a share of the refuse produced by the facility and said share
shall be in proportion to the Contractor's share of the total
garbage delivered to the facility.
In the event that District directs the Contractor to deliver
the Garbage to a publicly-owned waste to energy facility, con-
trolled by the District, the District will make reasonable effort
to secure for the Contractor the right to collect any waste or
refuse produced, or at least a proportional share thereof.
The District may, in its discretion, undertake a waste to
energy project in conjunction with a recycling program or other
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garbage program as set forth in paragraphs 13 and 24 of this
Agreement. Nothing in this paragraph shall be read to be in
conflict with the provisions set forth in paragraphs 13 and 24.
26. HAZARDOUS WASTE:
The parties hereto recognize that federal, state and local
agencies with responsibility for the defining of hazardous waste
and for regulating the collection, hauling or disposing of such
substances, are continually providing new definitions, tests and
regulations concerning these substances. Under this Agreement, it
is the Contractor's responsibility to keep current with the
regulations and tests on such substances and to identify such
substances and to comply wi th all federal, state and local regula-
tions concerning such substances.
Contractor agrees to provide to the District upon its request
information, programs, test results and statistics in existence
and relating to the Contractor's program for identifying hazardous
waste and complying wi th all federal, state and local statutes and
regulations dealing with hazardous waste.
The Contractor shall make every reasonable effort to prohibi t
the collection and the disposal of hazardous waste in any manner
inconsistent with applicable law.
27. DISPOSAL OF GARBAGE: (Alternative #1)
Throughout the term of this Agreement, unless District gives
notice as provided for herein, it shall be the Contractor's sole
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responsibility and duty to dispose of the garbage and waste and
other material collected by virtue of this Agreement, including
any extension granted by the Board, in a safe manner in compliance
with all federal, state and local regulations.
The parties agree that the District shall direct the dis-
posal, at no cost to the District, of all Garbage collected by
virtue of this Agreement to a transfer station or stations,
disposal site or sites selected by the District, including dis-
posal site or sites that may be owned or operated by the District,
provided that the disposal of Garbage at such transfer station(s)
or site(s) is authorized by law. The Contractor shall dispose of
the Garbage at the site(s) set forth in Exhibit B, attached hereto
and incorporated herein by reference, beginning on the date of this
Agreement and until such time as the District directs that such
site(s) be changed pursuant to thirty (30) days' notice to the
Contractor.
The Contractor agrees that the District may charge the
Contractor a fee for disposal of Garbage collected by virtue of
this Agreement if such Garbage is disposed of at sites owned by or
controlled by the District. The District agrees that such a fee
shall be entirely passed on to the Customers by means of the rates
fixed by the District for the Contractor. The District agrees that
any fee charged the Contractor for disposal of Garbage at a site
not owned or controlled by the District shall be passed on to the
Customers by means of the rates fixed by the District for the
Contractor, to the extent that such fee is reasonable.
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27. DISPOSAL OF GARBAGE: (Alternative #2)
Throughout the term of this Agreement, unless District gives
notice as provided for herein, it shall be the Contractor's sole
responsibility and duty to dispose of the garbage and waste and
other material collected by virtue of this Agreement, including
any extension granted by the Board, in a safe manner in compliance
with all federal, state and local regulations.
The District agrees in the event that the Contractor becomes
owner of or interest holder in a privately owned disposal site,
acceptable to District as defined in Paragraph 34, other than the
site set forth in Exhibit B, and secondly, that the Contractor
tenders to the District all rights and legal authority to regulate
rates and charges for use of such site, including, but not limited
to, site inspection and audit by all persons or entities, the
District will direct all garbage collected under this Agreement be
delivered to said privately owned disposal site for the term of the
Agreement, including any extensions which may be granted. The
District may thereafter, in its discretion, assume the rate
setting authority or any portion thereof. This Agreement on the
part of the District is conditioned upon the privately owned
disposal site being properly approved and permitted by the neces-
sary public boards and entities. The District in all instances
retains the right to direct the garbage collected under this
Agreement to a transfer station prior to the delivery to the
privately owned disposal si te. Nothing in this paragraph shall be
construed to be in conflict with or eliminate the rights and
obligations provided for in paragraphs 24 and 25.
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In all other events the District reserves the right to direct
the Contractor to deliver all garbage collected under this Agree-
ment to any privately or publicly owned transfer station or
disposal site of the District's choosing.
28. ANNEXATION AND CHANGE OF ZONE BOUNDARIES:
The District agrees to give notice to the Contractor by April
1 of the next calendar year of any geographic area which has been
annexed to or deannexed from the District during the preceding
calendar year and which has been included in, or excluded from, the
Zone. Such notice shall specifically describe the changed bound-
aries of the Zone. If such notice is given to the Contractor, all
of the provisions of this Agreement shall apply to the collection,
removal, and disposal of Garbage wi thin such changed boundaries of
the Zone beginning on July I of the calendar year following the
preceding calendar year during which such annexation or deannexa-
tion occurred.
The Contractor shall give notice to the District by April 1
of the next calendar year of any geographic area in the Zone or
immediately contiguous to the Zone, in which the Contractor has
commenced service wi thin the preceding year, notwithstanding
whether the Contractor deems that area to be regulated or unregu-
lated.
The Contractor realizes that the District boundaries may be
al tered by virtue of actions taken by the Contra Costa County Local
Agency Formation Commission (LAFCO). The Contractor agrees that
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snould the District boundaries be so amended so as to change the
jurisdiction of the District to regulate the collection, removal
and disposal of garbage, that it will abide by whatever changes in
the Zone which become necessary due to changes in the District
boundaries made by the Local Agency Formation Commission. The
Contractor agrees that the District Board of Directors may make
such alterations to the Zone as are necessitated by such Local
Agency Formation Commission action and shall have no right or claim
to damages or other relief against the District for such altera-
tions to the Zone. The District shall provide notice to the
Contractor of all peti tions or resolutions sent by the District to
LAFCO for annexation or deannexations which may directly affect
the territories included in the Zone.
29. TAKEOVER OF FRANCHISE RIGHTS BY OTHER PUBLIC ENTITY:
In the event that the County, or a municipal corporation,
which has boundaries that are entirely or partially included
within the Zone, takes action according to the laws of the State
of California to assume the powers and responsibilities of the
franchisor in relation to garbage collection and disposal within
its boundaries, the rights of the respective parties in regard to
this Agreement shall be as set forth in Government Code S 4270 et
seq. and other applicable law of the State of California.
N(ltwi thstanding any lawful action by another publ ic enti ty to
take over the right to franchise solid waste handling, collection
-27-
and disposal, the District shall retain the right at all times
during the term of this Agreement, including any extensions
granted by the District Board, to direct the disposition of all
garbage collected within the Zone. Contractor agrees, notwith-
standing any actions taken by another public entity in regard to
assuming the role of the solid waste franchisor, to deliver the
garbage collected under this Agreement to the location or loca-
tions designated by the District during the term of this Agreement,
including any extensions granted by the District Board.
30. AFFILIATED ENTITIES:
Tbe Contractor shall provide information necessary to satis-
fy the District that the charges made by any affiliated entity are
reasonable. "Affiliated entity" shall be defined, for purposes of
this paragraph, as any enti ty which provides products or services
to the Contractor and in which the Contractor owns a 10% or greater
interest. The District shall have the right to inspect the
financial records of any affiliated enti ty in which the Contractor
owns a majori ty interest. For purposes of this paragraph the term
"Contractor" shall include the Contractor, if an individual, and
all members of his or her immediate family; or if a corporation,
the controlling shareholder and the controlling shareholder's
immediate family members. For the purpose of this paragraph,
"Immediate Family" includes spouses, children, and relatives of
the first degree of sanguinity.
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31. BREACH AND TERMINATION:
The General Manager/Chief Engineer of the District shall have
,
final authori ty, subject to review by the Board of Directors of the
District upon appeal, to determine whether a breach of any pro-
vision of this Agreement by the Contractor has occurred, and to
determine whether any such breach is material. Any waiver or
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 a breach occurs, the District shall give the Contractor notice
of the breach, in writing, setting forth the breach or default.
The Contractor shall have a reasonable period to cure the noticed
breach, said period not to exceed sixty (60) days. In the event
the breach or default is cured to the satisfaction of the General
Manager/Chief Engineer of the District within the period of time
allotted, the breach shall not be deemed a material breach. In the
event that the General Manager determines that the Contractor has
failed to satisfactorily cure the breach or default within the
period of time allotted, General Manager may determine such breach
or default to be material.
Multiple or repeated breaches, or a pattern of breaches and
subsequent attempts to cure said breaches by Contractor shall
provide an adequate basis for the General Manager, in his dis-
cretion, to declare any subsequent breach to be material, not-
wi thstanding whether or not that breach is ul timately cured by the
Contractor.
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A material breach shall be cause for termination of this
Agreement by the District.
In the event of a termination prior to the natural expiration
of the term of this Agreement, the District shall have the right
to temporarily assume the obligations of the Contractor and shall
therefor have the right to forthwi th take possession of all trucks
and other equipment of the Contractor and exercise the Con-
tractor's right to enter and use of any disposal facilities for the
purpose of performing the services agreed to be performed by the
Contractor herein until such time as the District can make other
arrangements for the performance of said services. However, such
temporary assumption of Contractor's obligations under the Agree-
ment shall not be continued by the District for a period exceeding
twelve (12) months from the date such operations are undertaken by
the District.
During any period in which District has temporarily assumed
the obligations of Contractor under this Agreement, District shall
be enti tIed 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 the Con-
tractor. The excess, if any, of revenue over applicable or
allocable costs and expenses during such period shall be deposi ted
wi th the District funds to the credit of the operation and
maintenance account. The loss, if any, during such period shall
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be a charge against Contractor, and shall be paid to the district
by the Contractor upon demand. Final adjustment and allocation of
gross revenue, costs, and expenses to the period during which the
District temporarily assumed the obligations of Contractor shall
be determined by an audit by a Certified Public Accountant and
prepared in report form with his unqualified opinion annexed
thereto.
District shall indemnify Contractor against and hold it
harmless from, any and all liability claims, judgments or demands,
including demands arising from injuries or deaths of persons and
damage to property, arising directly or indirectly out of the
operations and obligations of Contractor which District assumes
pursuant to the provisions of this paragraph 31, save and except
claims or litigation arising through the sole negligence or
willful misconduct of Contractor and will make good to and reim-
burse Contractor for any expenditures, including reasonable at-
torneys' fees, that the Contractor may make by reason of such
matters and, if requested by Contractor, shall defend any suit at
the sole cost and expense of District.
Nothing in this Agreement shall prevent the District during
any period in which District temporarily assumes the obligations
of the Contractor under this Agreement, from employing persons who
were employed by the Contractor for the collection of garbage under
this Agreement.
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Upon the occurrence of said breach and the declaration of such
by the Board of Directors of the District, this Agreement and the
franchise granted thereunder shall be of no further force and
effect, excepting these provisions concerning District's right to
temporarily assume the Contractor's obligations and to use Con-
tractor's facilities upon early termination as provided herein.
The District then shall be free to enter into whatever other
arrangements are deemed justified and necessary for the collec-
tion, removal and disposal of garbage within the Zone.
Failure by the District to provide the Contractor with the
exclusive franchise to collect and dispose of garbage within the
Zone, as defined in this Agreement, shall constitute a material
breach of this Agreement which will allow the Contractor, in its
discretion, to terminate the Agreement and be relieved of all
obligations and duties hereunder. Notice of termination by the
Contractor must be provided to the District one (1) year prior to
cessation of the duties and responsibilities of the Contractor
hereunder.
32. EMERGENCY:
In the event of an emergency due to natural disaster or labor
strike which interrupts the collection of garbage by the Con-
tractor, the District shall have the right to forthwith take pos-
session of all trucks and other equipment of the Contractor and
exercise the Contractor's right to enter and use of any disposal
-32-
facili ties for the purpose of performing the services agreed to be
performed by the Contractor herein until such time as the District
determines that the Contractor is able to reassume all obligations
under this Agreement or for a period of not more than twelve (12)
months from the date such operations were undertaken by the
District. Should Contractor fail to demonstrate to the satis-
faction of the Board of Directors of the District that required
services can be resumed by Contractor prior to the expiration of
the aforementioned twelve (12) month period, this Agreement shall
be terminated without further notice to Contractor.
The financial obligations of the District and the Contractor
in regard to the takeover of the Contractor's obligations in the
event of an emergency are the same as stated in regard to premature
termination as set forth in paragraph 31 of this Agreement. An
emergency may only be declared by a resolution adopted by a 4/5
vote by the District's Board of Directors.
33. DISTRICT CODE:
This Agreement is entered into under and by virtue of the
authori ty of and pursuant to Chapter 8 of the Code of the District
and in accordance with the provisions thereof which are hereby
incorporated in this Agreement by reference.
34. TERM OF THE AGREEMENT:
The term of this Agreement and the exclusive franchise
granted hereunder shall be for a period of ten (10) years from
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January 1, 1986 to December 31, 1995. However, prior to January
1, 1991, the Contractor shall provide to the District conclusive
proof that: (1) the Contractor has ownership of or a legally
binding right to use a properly approved and permitted disposal
site(s); (2) that said disposal site(s) has sufficient capacity
available to the Contractor to provide for disposal of all the
garbage to be collected under this Agreement; (3) and that said
site(s) provides an economically satisfactory disposal alterna-
tive. Proof of each requirement set forth in this paragraph 34 to
the satisfaction of the District Board of Directors prior to
shall be a condition precedent to the continued
force and effect of the Contractor's exclusive franchise right to
collect and dispose of garbage under this Agreement. Failure of
the Contractor to meet these conditions satisfactorily will con-
stitute a material breach of this Agreement allowing the District
to terminate this Agreement on December 31, 1990, without suit or
other legal action.
35. CONTEST OF AGREEMENT'S TERMS BY THE PARTIES:
In the event either party to this Agreement attempts to
challenge the validity of any portion of this Agreement, such
action in attempting to challenge the Agreement shall constitute
a material breach of this Agreement and the nonbreaching party
shall have the right to elect to terminate forthwith without suit
or other proceeding.
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This paragraph 35 shall not be construed to prevent either
party from seeking redress to the courts for the purposes of legal
review of administrative procedures in regard to rate setting or
District actions taken pursuant to this Agreement, or for the
purpose of enforcing the provisions contained in this Agreement.
36. . SEVERABILITY:
In the event legal action is brought by a person or entity,
other than the parties to this Agreement, to challenge, invali-
date, contest or set aside any of the provisions of this Agreement,
each and every term and condition, and each and every section and
paragraph is severable from the remaining terms, condi tions,
sections, and paragraphs. The invalidation of any term, con-
di tion, section or paragraph as a resul t of a legal action, brought
by a person or entity not a party to this Agreement, shall not
affect the validi ty or enforceabili ty of the remaining provisions.
Each of said remaining provisions shall remain in full force and
effect.
37. TERMS OF AGREEMENT BARGAINED FOR:
All terms, conditions and obligations contained in this
Agreement have been bargained for and agreed upon by the parties
in good faith. Further, the parties have entered into this
Agreement on the advice of counsel.
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38. THIS AGREEMENT SHALL SUPERSEDE PRIOR AGREEMENTS:
This Agreement shall supersede any and all agreements here-
tofore entered into by the parties hereto.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed in duplicate by its duly authorized
officers and representatives as of the date first above written.
CENTRAL CONTRA COSTA SANITARY DISTRICT
By:
Its:
By:
Its:
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