Item 25 Staff Report Green Valley Disposal Company/Guadalupe Disposal CompanyDATE:
TO:
FROM:
SUBJECT:
MEETING DATE: 7/21/97
ITEM NO. 25
COUNCIL AGENDA REPORT
July 17, 1997
MAYOR AND TOWN COUNCIL
TOWN MANAGER
GREEN VALLEY DISPOSAL COMPANY/GUADALUPE DISPOSAL COMPANY
A. CONSIDER ADOPTING RESOLUTION AUTHORIZING TOWN MANAGER TO
EXECUTE SETTLEMENT AGREEMENT AND RELEASE FROM LIABILITY
BETWEEN TOWN OF LOS GATOS AND GREEN VALLEY DISPOSAL
COMPANY FOR REFUSE COLLECTION SERVICES AND GUADALUPE
RUBBISH DISPOSAL COMPANY, INCORPORATED (SETTLING CASE
NUMBERS CV 751534 CV 752693)
B. CONSIDER ADOPTING RESOLUTION AUTHORIZING THE TOWN MANAGER
TO EXECUTE AGREEMENT WITH GREEN VALLEY DISPOSAL COMPANY
FOR REFUSE COLLECTION SERVICES
C. CONSIDER ADOPTING RESOLUTION AUTHORIZING TOWN MANAGER TO
EXECUTE AGREEMENT WITH GUADALUPE DISPOSAL COMPANY FOR
DISPOSAL SERVICES
RECOMMENDATION:
1. Adopt resolution authorizing the Town Manager to execute Settlement Agreement and Release From
Liability Between Town of Los Gatos and Green Valley Disposal Company for Refuse Collection Services
and Guadalupe Rubbish Disposal Company, Inc., settling case numbers CV 751534 CV 752693.
2. Adopt resolution authorizing the Town Manager to execute agreement Between Town of Los Gatos and
Green Valley Disposal Company for Refuse Collection Services
3. Adopt resolution authorizing the Town Manager to execute Disposal Agreement Between Guadalupe
Rubbish Disposal Company, Inc. and the Town of Los Gatos.
BACKGROUND:
The Town has agreements with Green Valley Disposal Company, Inc. ("Green Valley") for collection of refuse in
Los Gatos, and an agreement with Guadalupe Rubbish Disposal Company, Inc. ("Guadalupe") for use of the
Guadalupe Landfill. These agreements were each entered into in 1983 for a twenty (20) year term. Over the years,
these agreements have become dated and difficult to apply.
In particular, the current Collection Agreement mandates a cumbersome process for setting collection rates that has
led to disputes with Green Valley. This process involves a review by a Rate Review Committee consisting of staff
members from Campbell, Los Gatos, Monte Sereno, and Saratoga, and ultimately adoption of rates by the Town
Council. Aside from specifying a "guideline" of five percent (5%) after tax return to Green Valley, the current
agreement offers little guidance on how rates are to be set.
Similarly, the present Disposal Agreement also sets forth a difficult and convoluted procedure for establishing the
PREPARED BY: Orry P. Korb, Town Attorney((/
Regina A. Falkner, Community Services Direc
Reviewed by:
Finance Revised: 7/17/97 4:35 pm
Reformatted: 10/23/95
•
PAGE 2
MAYOR AND TOWN COUNCIL
SUBJECT: GREEN VALLEY DISPOSAL COMPANY/GUADALUPE DISPOSAL COMPANY
July 17, 1997
disposal fees to be charged by Guadalupe. Under the present agreement, the fee was to be based on a survey of
"comparable" landfills. However, in recent years it has become increasingly difficult to agree on comparable sites
for use in the survey.
In both instances, substantial time and effort is expended in determining whether rate increases are appropriate, and
if so, the correct amount of the increases. Indeed, the parties argue over whether the ratepayers should bear the
costs Green Valley and Guadalupe incur in making applications for rate increases.
These difficulties resulted in lawsuits filed against the Town, Campbell, Monte Sereno and Saratoga by Green
Valley and Guadalupe alleging that they (Green Valley and Guadalupe) were entitled to higher rates than those
being charged at the time for solid waste services.
DISCUSSION:
A. The Settlement Agreement
Agreements settling the pending lawsuits have been negotiated between the public entities and Green
Valley and Guadalupe. Approval of the proposed Settlement Agreement, along with the proposed
Collection and Disposal Agreements which are integral to the settlement, will have the benefit of ending
the litigation; updating the terms of Collection and Disposal Agreements providing better protection to the
Town; setting new base rates without a rate increase at this time; limiting future rate increases to
predetermined percentages of the December -to -December Consumer Price Index for All Urban Consumers
(" CPI") with an annual 5% cap, and thereby eliminating the complexity of the present system of
determining rate increases; requiring Green Valley to pay $37,578.00 to the Town; and, requiring Green
Valley and Guadalupe to repay the Town's attorney's fees in the amount of $41,835.38. In consideration of
these terms, the proposed settlement would extend the term of the Collection and Disposal Agreements an
additional four (4) years.
B. The Disposal Agreement
Under the new Disposal Agreement, the total disposal fee is $36.94 per ton, which is approximately six
dollars ($6.00) per ton less than the fee last approved by the Town Council in 1995. Instead of using the
old survey methodology for determining increases, the "Base Rate" component of the disposal fee ($20.30)
would be adjusted annually at ninety percent (90%) of the CPI. Applicable surcharges would then be
added to the base rate to arrive at the total disposal fee.
The new Agreement also updates the agreement to specifically provide for certain indemnity, insurance
and bonding requirements now common in the industry.
In consideration for the aforementioned changes, the Agreement requires that all Los Gatos refuse
collected by Green Valley be delivered to Guadalupe and provides a four (4) year extension over the
current agreement.
}
PAGE 3
MAYOR AND TOWN COUNCIL
SUBJECT: GREEN VALLEY DISPOSAL COMPANY/GUADALUPE DISPOSAL COMPANY
July 18, 1997
C. The Collection Agreement
The new Collection Agreement has also been substantially updated over the current version. As with the
Disposal Agreement, the new Collection Agreement replaces the old rate -setting process with an annual CPI
adjustment equal to eighty percent (80%) of the National Consumer Price Index. Because of the reduction in
disposal fees, the solid waste rates for this year will not have to be increased and will serve as the base rate for
future CPI adjustments.
Also, like the new Disposal Agreement, the Collection Agreement includes updated insurance, bonding and
disclosure requirements, as well as a new section setting forth performance standards. This new agreement
will also be extended for four (4) years beyond the term of the old agreement, to be coterminous with the
Disposal Agreement (until February 28, 2007).
D. Rates
Council approved service rates adopted effective February 1, 1995 will remain in effect through June 30, 1998.
If necessary, rates will be adjusted next Spring effective July 1, 1998, based on reports submitted by Green
Valley and Guadalupe. Although both agreements include a CPI adjustment and a 5% cap, there are of
circumstances that may result in an increase over 5% such as:
• increased disposal surcharges (i.e. rates would reflect any increase in State or local fees such as the
San Jose Business tax);
• increased landfill closure costs resulting from changes in State laws;
• Town imposed increases in franchise fees or surcharges; and,
• increased costs resulting from increased services requested by the Town.
ENVIRONMENTAL ASSESSMENTS:
These solid waste management agreements are not projects defined under CEQA, and no further action is required.
FISCAL IMPACT:
Council adopted rates will remain in effect through June 30, 1998. Any necessary rate adjustment will take effect July
1, 1998.
The agreement with Green Valley will result in franchise fee revenues of approximately $360,000. These are included
in the 1997/98 Adopted Budget (1111-42513). The Town will also receive funds to offset Solid Waste Management
Program costs such as: contract monitoring, the Household Hazardous Waste Program attorney's fees, and the West
Valley Cooperative Program (210-48500: $184,000)
Fees received by the Town as a result of the Settlement Agreement will be deposited in the General Fund deposit
account 100-26009, except that portion representing reimbursement for legal expenses which will be returned to the
funds that provided them.
RAF:tl
CSD31:A: cnclrptsldispagr.wpd
PAGE 4
MAYOR AND TOWN COUNCIL
SUBJECT: GREEN VALLEY DISPOSAL COMPANY/GUADALUPE DISPOSAL COMPANY
July 18, 1997
Attachments:
I. Resolution authorizing the Town Manager to execute Settlement Agreement and Release From Liability
Between Town of Los Gatos and Green Valley Disposal Company for Refuse Collection Services and
Guadalupe Rubbish Disposal Company, Incorporated (Settling case numbers CV 751534 CV 752693)
2. Resolution authorizing the Town Manager to execute agreement Between Town of Los Gatos and Green
Valley Disposal Company for Refuse Collection Services
3. Resolution authorizing the Town Manager to execute Disposal Agreement Between Guadalupe Rubbish
Disposal Company, Inc. and the Town of Los Gatos
Distribution:
Scott Hobson; Hilton, Farnkopf, & Hobson
RESOLUTION
RESOLUTION OF THE TOWN COUNCIL
OF THE TOWN OF LOS GATOS
AUTHORIZING THE TOWN MANAGER TO EXECUTE A
SETTLEMENT AGREEMENT & RELEASE FROM LIABILITY WITH
GREEN VALLEY DISPOSAL COMPANY, INC. &
GUADALUPE RUBBISH DISPOSAL COMPANY, INC.
THE TOWN COUNCIL OF THE TOWN OF LOS GATOS RESOLVES AS
FOLLOWS:
That the Town Manager is authorized to execute the Settlement Agreement and
Release From Liability Agreement (Exhibit 1) with Green Valley Disposal Company, Inc.
(GVDC) and Guadalupe Rubbish Disposal Company, Inc. (GRDC).
That the agreement supersedes and replaces any and all previous agreements between
the Town of Los Gatos and GVDC and GRDC concerning Santa Clara Superior Court case
numbers CV751534 and CV752693.
PASSED AND ADOPTED at a regular meeting of the Town Council of the Town
of Los Gatos, California, held on the 21st day of July, 1997, by the following vote:
COUNCIL MEMBERS:
AYES:
NAYES:
ABSENT:
ABSTAIN:
SIGNED:
MAYOR OF THE TOWN OF LOS GATOS
LOS GATOS, CALIFORNIA
ATTEST:
CLERK OF THE TOWN OF LOS GATOS
N:\SHARE\CS072197.R01
ATTACHMENT 1
Settlement Agreement and Release From Liability
WHEREAS, GREEN VALLEY DISPOSAL COMPANY, INC., a California corporation
(hereinafter referred to as "GVDC") filed the following lawsuits against the following cities in the
Superior Court for the County of Santa Clara:
Cit,v Case Number
(1) City of Campbell (hereinafter referred
to as "Campbell"
(2) Town of Los Gatos ( hereinafter
referred to as "Los Gatos")
(3) City of Monte Sereno (hereinafter
referred to as "Monte Sereno")
(4) City of Saratoga (hereinafter referred
to as "Saratoga")
CV 751536
CV 751534
CV 751537
CV751535;
WHEREAS GUADALUPE DISPOSAL COMPANY, INC., a California corporation
(hereinafter referred to as "GDC") filed a lawsuit against Campbell, Los Gatos, Monte
Sereno, and Saratoga (collectively referred to as "Cities") in case number CV 752693 of the
Superior Court of Santa Clara County; and
WHEREAS, Cities and GVDC and GDC (hereinafter collectively referred to herein
as "Companies") are desirous of settling Superior Court case numbers CV 751536, CV
751534, CV751537 and CV751535 (collectively referred to herein as "Litigation"), and all
issues that were raised or reasonably could have been raised therein, on the terms and
conditions set forth in this Settlement Agreement and Release from Liability (hereinafter
referred to as "this Agreement");
NOW, THEREFORE, for and in consideration of each others' mutual promises and
representations as set forth herein, the Town of Los Gatos and Companies agree as follows:
1. Concurrent with execution of this Agreement, GVDC shall execute an
agreement for Refuse Collection Services in substantially the same form and substance as set
forth in Exhibit A, which is attached hereto and made a part hereof (hereinafter referred to
as the "Collection Agreement"); and also concurrent with the execution of this Agreement,
GDC shall execute an agreement for Waste Disposal in substantially the same form and
substance as set forth in Exhibit B, which is attached hereto and made a part hereof
(hereinafter referred to as the "Disposal Agreement").
1
2. Upon delivery of the executed originals of this Agreement, the Collection
Agreement and the Disposal Agreement to the City Attorney of Los Gatos, Los Gatos shall
schedule this Agreement, the Collection Agreement and the Disposal Agreement for
consideration by its City Council at Los Gatos's next reasonablely available City Council
meeting.
3. Companies agree that upon approval and execution of this Agreement, the
Collection Agreement and the Disposal Agreement by Town of Los Gatos, and approval of
substantially similar agreements by all of the other Cities:
a. This Agreement shall serve to release and forever discharge Town of Los
Gatos, its Council Members, officers, employees, agents, and attorneys from
any and all claims, damages, losses, demands, actions and causes of action
arising out of or in any way related to the circumstances giving rise to, alleged
in, or which reasonablely could have been alleged in the Litigation. This
Agreement constitutes a full and final release applying to all know and all
unknown and unanticipated claims, demands, losses, actions, causes of
actions, injuries, deaths, or damages of any nature that the Companies may
have against Town of Los Gatos, its City Council Members, officials, officers,
employees, agents, and attorneys, and Companies waive all rights or benefits
under the terms of Section 1542 of the Civil Code if the State of California,
which section reads as follows:
A general release does not extend to the claims which the
creditor does not know or suspect to exist in his favor at the
time of executing the release, which if known by him must
have materially affected his settlement with the debtor.
b. Companies shall indemnify, defend and hold harmless Los Gatos , its Council
Members, officials, officers, employees, agents and attorneys against any and
all claims, actions, demands, damages and losses (including any costs or
attorney's fees reasonably incurred in defense of any matter covered by this
provision) arising out of the circumstances giving rise to the Litigation.
c. Companies shall abandon and dismiss with prejudice all complaints and causes
of action in the Litigation.
d. Companies shall reimburse Los Gatos for its attorney's fees and costs incurred
in the defense of the Litigation in the amount of $41,835.38, which
2
shall be payable in four (4) quarterly installments in the amounts and on the
dates set forth below:
October 15, 1997
January 15, 1998
April 15, 1997
July 15, 1998
10,458.85
10,458.84
10,458.84
10,458.84
e. GVDC shall pay the sum of $37,578, representing the "recycle balance
account," to Los Gatos.
4. It is understood and agreed that the execution of this Agreement is not
intended to bind or abrogate the legislative discretion of the City Council of Los Gatos in
determining whether or not to approve the Collection Agreement or Disposal Agreement; and
it is further understood and agreed that this Agreement is expressly contingent upon approval
of the Collection Agreement and Disposal Agreement by Companies and Los Gatos, and on
approval of substantially identical Settlement Agreements, Collection Agreements and
Disposal Agreements by and between Companies and all the other Cities.
5. It is also expressly understood and agreed that the Collection Agreement and
Disposal Agreement between Companies and Los Gatos shall be of no force or effect unless
and until all Cities have approved and entered substantially identical Collection Agreements
and Disposal Agreements with Companies.
6. The parties to this Agreement understand that the liability for matters alleged
in the Litigation is disputed by the parties, and this Agreement is a comprise and shall not be
construed as an admission of liability.
7. Companies represent that there are no liens, or assignments in law or equity,
or otherwise, of, or against, the claims or causes of action of the Companies in the Litigation;
further that the undersigned parties are fully entitled to give this complete release and
discharge on behalf of Companies.
8. This Agreement contains the entire agreement between the parties hereto. The
terms of this Agreement are contractual and are not a mere recital. This Agreement is
executed without reliance upon any representation by any person and the parties have
carefully read and understand the contents of this Agreement and sign the same as their own
free act.
9. The parties acknowledge that they have been represented by an attorney of
their choosing with regard to the execution of this Agreement.
3
10. This Agreement may be executed in counterparts and as so executed shall
constitute one agreement binding to all parties.
TOWN OF LOS GATOS
Date: By.
Date.
its
GUADALUPE DISPOSAL COMPANY,
INC.
By
its
GREEN VALLEY DISPOSAL
Date• COMPANY, INC.
Approved as to form and content:
Date.
By:
its
Orry P. Korb, Esq.
Date. Town Attorney for the Town of Los Gatos
Jesse Jack, Esq.
Attorney for Green Valley Disposal
Company, Inc. and Guadalupe Disposal
Company, Inc.
4
RESOLUTION
RESOLUTION OF THE TOWN COUNCIL
OF THE TOWN OF LOS GATOS
AUTHORIZING THE TOWN MANAGER TO EXECUTE A
FRANCHISE AGREEMENT WITH
GREEN VALLEY DISPOSAL COMPANY, INC.
FOR REFUSE COLLECTION SERVICES
THE TOWN COUNCIL OF THE TOWN OF LOS GATOS RESOLVES AS
FOLLOWS:
That the Town Manager is authorized to execute a Franchise Agreement with Green
Valley Disposal Company, Inc. (GVDC) for refuse collection (Exhibit 1).
That the agreement supersedes and replaces any and all previous franchise agreements
between the Town of Los Gatos and GVDC.
PASSED AND ADOPTED at a regular meeting of the Town Council of the Town
of Los Gatos, California, held on the 21st day of July, 1997, by the following vote:
COUNCIL MEMBERS:
AYES:
NAYES:
ABSENT:
ABSTAIN:
SIGNED:
MAYOR OF THE TOWN OF LOS GATOS
LOS GATOS, CALIFORNIA
ATTEST:
CLERK OF THE TOWN OF LOS GATOS
LOS GATOS, CALIFORNIA
CSD08:A:\RESOS\CS072197.R03
N:\Share\CS072197. R03
ATTACHMENT 2
FINAL
AGREEMENT
BETWEEN
TOWN OF LOS GATOS
AND
GREEN VALLEY DISPOSAL COMPANY, INC.
FOR
REFUSE COLLECTION SERVICES
* * *
July 1, 1997
FINAL
AGREEMENT
BETWEEN
TOWN OF Los GATOS
AND
GREEN VALLEY DISPOSAL COMPANY, INC.
FOR
REFUSE COLLECTION SERVICES
TABLE OF CONTENTS
PAGE
ARTICLE 1 3
DEFINITIONS 3
1.1 AB 939 , 3
1.2 AGREEMENT 3
1.3 BILLINGS 3
1.4 CALIFORNIA INTEGRATED WASTE MANAGEMENT ACT 3
1.5 CITY 3
1.6 COLLECT/COLLECTION 3
1.7 COMMERCIAL PROPERTY 3
1.8 COMPANY 4
1.9 COMPANY COMPENSATION 4
1.10 CONSTRUCTION AND DEMOLITION DEBRIS 4
1.11 CONTAINERS 4
1.12 CURBSIDE 4
1.13 DISPOSAL 4
1.14 DISPOSAL SITE(S) 5
1.15 ENVIRONMENTAL LAWS 5
1.16 EXISTING AGREEMENT 5
1.17 FACILITY 5
1.18 FISCAL YEAR. 5
1.19 FRANCHISE , 5
1.20 FRANCHISE FEE 6
1.21 GARBAGE 6
1.22 GREEN WASTE 6
1.23 GROSS REVENUES 6
1.24 HAZARDOUS SUBSTANCE 6
1.25 HAZARDOUS WASTE 7
1.26 HOUSEHOLD HAZARDOUS WASTE (HHW) 7
1.27 LEGISLATION 7
1.28 MISSED PICK-UP 7
1.29 MULTI -FAMILY DWELLING UNIT 7
1.30 OWNER 8
1.31 PERSON 8
1.32 PREMISES 8
1.33 RATE YEAR 8
1.34 RATES 8
1.35 RECYCLING 8
i
1.36 RECYCLABLE 8
1.37 RECYCLABLE MATERIALS 9
1.38 RECYCLED 9
1.39 REFUSE. 9
1.40 RESIDENTIAL PROPERTY 9
1.41 ROLL -OFF CONTAINER 9
1.42 ROLL -OFF COLLECTION SERVICES 9
1.43 RUBBISH 10
1.44 SINGLE FAMILY DWELLING UNIT 10
1.45 SOLID WASTE 10
1.46 SOURCE REDUCTION PROGRAM 10
1.47 SOURCE SEPARATION 10
1.48 UNACCEPTABLE WASTE 11
1.49 WASTE GENERATOR 11
ARTICLE 2 12
REPRESENTATIONS AND WARRANTIES OF COMPANY 12
2.1 COMPANY STATUS 12
2.2 COMPANY AUTHORIZATION 12
2.3 AGREEMENT DULY EXECUTED 12
2.4 NO CONFLICT WITH APPLICABLE LAW OROTHER DOCUMENTS 12
2.5 NO LITIGATION 13
2.6 FINANCIAL ABILITY, DISCLOSURES, NO MATERIAL CHANGE 13
2.7 EXPERTISE 13
2.8 COMPANY'S INVESTIGATION 13
ARTICLE 3 14
TERM AND SCOPE OF FRANCHISE 14
3.1 TERM OF AGREEMENT 14
3.1.1 Effective Date 14
3.1.2 Term of Agreement 14
3.1.3 Conditions to Effectiveness of Agreement 14
3.2 FRANCHISE 15
3.2.1 Grant and Acceptance of Franchise 15
3.2.2 Scope of Franchise 15
3.2.3 Limitations 16
3.2.4 Acceptance of Franchise 16
3.2.5 City's Right to Direct Changes 16
3.2.6 Ownership of Refuse 16
ARTICLE 4 18
FRANCHISE FEE AND OTHER SURCHARGES 18
4.1 FRANCHISE FEE , 18
4.1.1 Franchise Fee Amount 18
4.1.2 Time and Method of Payment 18
4.1.3 Adjustment to Franchise Fee 18
4.2 OTHER SURCHARGES 18
4.2.1 Other Surcharge Amounts 18
4.2.2 Time and Method of Payment 19
4.2.3 Adjustment to Surcharge 19
4.3 OTHER FEES . 19
ARTICLE 5 20
DIRECT SERVICES 20
5.1 REFUSE COLLECTION 20
5.1.1 General 20
5.1.2 Residential Refuse - Single Family Dwelling Unit . 20
5.1.3 Commercial, Industrial, and Multi -Family Dwelling Units 20
5.1.4 City Facilities' Collection 21
5.1.5 Temporary Bins/Roll-off Service 21
5.1.6 Cleanups 21
5.2 OPERATIONS 22
5.2.1 Schedules 22
5.2.2 Vehicles 23
5.2.3 Containers 25
5.2.4 Litter Abatement 26
5.2.5 Personnel 26
5.2.61dentification Required 27
5.2.7 Fees and Gratuities 27
5.2.8 Non -Discrimination 27
5.2.9 Change in Collection Schedule 28
5.2.10 Report of Accumulation of Refuse; Unauthorized Dumping 28
5.3 CONTINGENCY PLAN 28
5.4 TRANSPORTATION OF REFUSE 28
5.5 DISPOSAL OF REFUSE 29
5.6 SERVICE EXCEPTIONS; HAZARDOUS WASTENOTIFICATIONS 29
ARTICLE 6 30
OTHER SERVICES 30
6.1 SERVICES AND CUSTOMER BILLING 30
6.1.1 Service Description 30
6.1.2 Billing 30
6.1.3 Review of Billings 30
6.2 CUSTOMER SERVICE , 31
6.2.1 Local Office 31
6.2.2 Complaint Documentation. 31
6.2.3 Resolution of Customer Complaints 32
6.2.4 Liaisons 32
6.3 WASTE GENERATION/CHARACTERIZATION STUDIES 32
ARTICLE 7 33
COMPANY'S COMPENSATION AND RATES 33
7.1 GENERAL 33
7.2 INITIAL RATES 33
7.3 SUBSEQUENT RATES 33
7.3.1 Monthly Collection Rate per Waste Generator Adjustment 34
7.3.2 Monthly Disposal Base Rate per Waste Generator Adjustment 34
7.3.3 Monthly Disposal Surcharge Rate per Waste Generator Adjustment. 34
7.3.4 Franchise Fee Adjustment 34
7.3.5 Surcharge Adjustment 34
7.3.6 Total Monthly Service Rate 36
7.4 VARIANCES FROM PROJECTIONS 36
7.5 SCHEDULE , 37
7.6 INTERIM RATE ADJUSTMENT 37
7.7 SUBSEQUENT RATES 37
ARTICLE 8 38
REVIEW OF SERVICES AND PERFORMANCE 38
8.1 PERFORMANCE HEARING 38
ARTICLE 9 40
RECORDS, REPORTS AND INFORMATION REQUIREMENTS 40
9.1 GENERAL 40
9.2 RECORDS 40
9.2.1 General 40
9.2.2 Financial Records 41
9.2.3 Refuse Records 41
9.2.4 CERCLA Defense Records 41
9.2.5 Disposal Records 42
9.3 REPORTS 42
9.3.1 Report Formats and Schedule 42
9.3.2 Quarterly Reports 43
9.3.3 Annual Report 43
9.4 ADVERSE INFORMATION 44
111
ARTICLE 10 45
INDEMNIFICATION, INSURANCE AND BOND 45
10.1 INDEMNIFICATION 45
10.2 HAZARDOUS SUBSTANCES INDEMNIFICATION 46
10.3 INSURANCE 47
10.4 FAITHFUL PERFORMANCE BOND 51
ARTICLE 11 52
CITY'S RIGHT TO PERFORM SERVICE 52
11.1 GENERAL 52
11.2 TEMPORARY POSSESSION OF COMPANY'S PROPERTY 53
11.3 BILLING AND COMPENSATION TO CITY DURING CITY'S POSSESSION 54
11.4 CITY'S RIGHT TO RELINQUISH POSSESSION 54
11.5 DURATION OF CITY'S POSSESSION 54
ARTICLE 12 55
DEFAULT, REMEDIES AND LIQUIDATED DAMAGES 55
12.1 EVENTS OF DEFAULT 55
12.2 RIGHT TO TERMINATE UPON DEFAULT 56
12.3 LIQUIDATED DAMAGES 57
12.4 EXCUSE FROM PERFORMANCE 61
12.5 NOTICE, HEARING AND APPEAL OF CITY BREACH 61
12.6 ASSURANCE OF PERFORMANCE 62
ARTICLE 13 63
OTHER AGREEMENTS OF THE PARTIES 63
13.1 RELATIONSHIP OF PARTIES 63
13.2 COMPLIANCE WITH LAW 63
13.3 GOVERNING LAW 63
13.4 JURISDICTION . 63
13.5 ASSIGNMENT 64
13.6 CONTRACTING OR SUBCONTRACTING . 65
13.7 BINDING ON ASSIGNS 66
13.8 TRANSITION TO NEXT COMPANY 66
13.9 PARTIES IN INTEREST 66
13.10 WAIVER 66
13.11 CONDEMNATION 66
13.12 NOTICE 67
13.13 REPRESENTATIVES OF THE PARTIES 67
13.14 CITY FREE TO NEGOTIATE WITH THIRD PARTIES 68
13.15 COMPLIANCE WITH MUNICIPAL CODE .68
13.16 PRIVACY .68
ARTICLE 14 69
MISCELLANEOUS AGREEMENTS 69
14.1 ENTIRE AGREEMENT 69
14.2 SECTION HEADINGS 69
14.3 REFERENCES TO LAWS AND OTHER AGREEMENTS 69
14.4 INTERPRETATION . 69
14.5 AGREEMENT . 69
14.6 SEVERABILITY .69
14.7 EXHIBITS .70
14.8 NON -WAIVER PROVISION 70
EXHIBITS
1. PUBLIC FACILITIES
2. INITIAL RATES
3. RATE ADJUSTMENT METHODOLOGY
4. FAITHFUL PERFORMANCE BOND
5. NOTARY CERTIFICATION
1V
RECITALS
This Franchise Agreement (Agreement) is entered into this 1st day of July, 1997, by and
between the Town of Los Gatos (City) and Green Valley Disposal Company, Inc.
(Company), for the collection, transportation, and disposal of Refuse.
Recitals
WHEREAS, Company is currently providing Refuse Collection Services to residents and
to businesses in the City pursuant to a written agreement dated March 8, 1983 between
City and Company which is set to expire on February 28, 2003; and,
WHEREAS, the parties wish to terminate the current agreement and enter into a new
agreement in order to allow the City to better meet the needs of the City rate payers;
and,
WHEREAS, the Legislature of the State of California, by enactment of the California
Integrated Waste Management Act of 1989 (AB 939) (California Public Resources Code
Section 40000 et seq.), has declared that it is in the public interest to authorize and
require local agencies to make adequate provisions for Refuse handling within their
jurisdictions; and,
WHEREAS, pursuant to California Public Resources Code Section 40059(a)(2), the City
Council of City has determined that the public health, safety, and well-being require
that an exclusive franchise be awarded to a qualified company for the collection,
transportation, and disposal of Refuse; and,
WHEREAS, City and Company are mindful of the provisions of the laws governing the
safe collection, transfer, and disposal of Refuse, the Resource Conservation and
Recovery Act (RCRA) and the Comprehensive Environmental Response, Compensation
and Liability Act ("CERCLA"); and,
WHEREAS, City and Company desire to leave no doubts as to their respective roles, and
by entering into this Agreement, City is not thereby becoming a "generator" or an
"arranger" as those terms are used in CERCLA § 107(a)(3), and it is Company, not City,
which is "arranging for" the collection, removal, transportation, and disposal of Refuse
which may contain hazardous substances; and,
1
WHEREAS, the City Council of City declares its intention of maintaining reasonable rates
and quality service related to the collection, transportation, and disposal of Refuse and
other services; and,
WHEREAS, City and Company (Parties) hereto desire to enter said Agreement.
NOW, THEREFORE, in consideration of the premise above stated and the terms,
conditions, covenants and agreements contained herein, the Parties do hereby agree as
follows:
2
ARTICLE 1
DEFINITIONS
1.1 AB 939
"AB 939" means the California Integrated Waste Management Act of 1989 (California
Public Resources Code Section 40000 et seq.), as it may be amended from time to time.
1.2 Agreement
"Agreement" means this Franchise Agreement between City and Company for
Collection and transportation of Refuse, including all exhibits and attachments, and any
amendments thereto.
1.3 Billings
"Billings" means any and all statements of charges for services rendered, howsoever
made, described or designated by City or Company, or made by others for City or
Company, to owners or occupants of property, including Residential Property and
Commercial Property, served by Company for the Collection of Refuse
1.4 California Integrated Waste Management Act
"California Integrated Waste Management Act" means Public Resources Code, Section
40000 et seq.
1.5 City
"City" means Town of Los Gatos, a municipal corporation, and all the territory lying
within the municipal boundaries of City as presently existing or as such boundaries
may be modified during the term of this Agreement.
1.6 Collect/Collection
"Collect" or "Collection" means to take physical possession, transport, and remove
Refuse within and from City .
1.7 Commercial Property
"Commercial Property" means commercial and industrial property upon which
business activity is conducted, including but not limited to retail sales, services,
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94,
wholesale operations, manufacturing and industrial operations, but excluding
businesses conducted upon Residential Property which are permitted under applicable
zoning regulations and are not the primary use of the property.
1.8 Company
"Company" means Green Valley Disposal Company, Inc., a corporation organized and
operating under the laws of the State of California and its officers, directors, employees
and agents.
1.9 Company Compensation
"Company Compensation" means the revenue received by the Company from Billings
in return for providing services in accordance with this Agreement and any
amendments to this Agreement.
1.10 Construction and Demolition Debris
"Construction and Demolition Debris" means construction materials resulting from
construction, remodeling, repair or demolition operations, as part of a total service
offered by a duly -licensed demolition contractor or the City, including rocks, soil, tree
remains, and other Green Waste which normally results from land clearing or land
development operations for a construction project and such materials as defined as
"construction and demolition debris" by applicable local ordinances in existence as of
the Effective Date of this Agreement.
1.11 Containers
"Containers" means any and all types of Refuse receptacles.
1.12 Curbside
"Curbside" means the placement of containers for pickup no more than five (5) feet from
any traveled street or alleyway or as designated by the City.
1.13 Disposal
"Disposal" means the ultimate disposition of Refuse collected by Company at a landfill
in full regulatory compliance.
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1.14 Disposal Site(s)
"Disposal Site(s)" mean the Refuse handling Facility or Facilities meeting all applicable
local, state, and federal licensing and permitting regulations utilized for the ultimate
Disposal of Refuse Collected by Company..
1.15 Environmental Laws
"Environmental Laws" means all federal and state statutes, county, local and City
ordinances concerning public health, safety and the environment including, by way of
example and not limitation, the Comprehensive Environmental Response,
Compensation and Liability Act of 1980, 42 USC §9601 et seq.; the Resource
Conservation and Recovery Act, 42 USC §6902 et seq.; the Federal Clean Water Act, 33
USC §1251 et seq.; the Toxic Substances Control Act, 15 USC §1601 et seq.; the
Occupational Safety and Health Act, 29 USC §651 et seq.; the California Hazardous
Waste Control Act, California Health and Safety Code §25100 et seq.; the California
Toxic Substances Control Act, California Health and Safety Code §25300 et seq.; the
Porter -Cologne Water Quality Control Act, California Water Code §13000 et seq.; the
Safe Drinking Water and Toxic Enforcement Act, California Health and Safety Code
§25249.5 et seq.; as currently in force or as hereafter amended, and all rules and
regulations promulgated thereunder.
1.16 Existing Agreement
"Existing Agreement" means that agreement dated March 8, 1983, between City and
Company.
1.17 Facility
"Facility" means any plant or site, owned or leased and maintained, operated or used by
Company for purposes of performing under this Agreement.
1.18 Fiscal Year
"Fiscal Year" means the period commencing July 1 of one year and concluding June 30
of the subsequent year for Company.
1.19 Franchise
"Franchise" means the special right granted by City to operate a Refuse service within
the City.
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1.20 Franchise Fee
"Franchise Fee" means the fee paid by Company to City for the right to hold the
Franchise for Refuse services granted by this Agreement.
1.21 Garbage
"Garbage" means putrescible animal, fish, food, fowl, fruit or vegetable matter, or any
form thereof, resulting from the preparation, storage, handling or consumption of such
substances.
1.22 Green Waste
"Green Waste" means tree trimmings, grass cuttings, dead plants, leaves, branches and
dead trees (not more than three (3) inches in diameter) and similar materials generated
at the Premises, and such materials as defined as "green waste" by applicable local
ordinances in existence as of the Effective Date of this Agreement.
1.23 Gross Revenues
"Gross Revenues" means any and all revenue or compensation in any form of
Company or subsidiaries, or parent companies of Company, for the Collection and
transportation of Refuse pursuant to this Agreement, in accordance with Generally
Accepted Accounting Principals, including, but not limited to, monthly customer fees
for Collection of Refuse, without subtracting Franchise Fees or any other cost of doing
business, except for City surcharges and recycling services.
1.24 Hazardous Substance
"Hazardous Substance" shall mean any of the following: (a) any substances defined,
regulated or listed (directly or by reference) as "Hazardous Substances", "hazardous
materials", "Hazardous Wastes", "toxic waste", "pollutant" or "toxic substances" or
similarly identified as hazardous to human health or the environment, in or pursuant to
(i) the Comprehensive Environmental Response, Compensation and Liability Act of
1980, 42 USC §9601 et seq.(CERCLA); (ii) the Hazardous Materials Transportation Act,
49 USC §1802, et seq.; (iii) the Resource Conservation and Recovery Act, 42 USC §6901
et seq.; (iv) the Clean Water Act, 33 USC §1251 et seq.; (v) California Health and Safety
Code §§25115-25117, 25249.8, 25281, and 25316; (vi) the Clean Air Act, 42 USC §7901 et
seq.; and (vii) California Water Code §13050; (b) any amendments, rules or regulations
promulgated thereunder to such enumerated statutes or acts currently existing or
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hereafter enacted; and (c) any other hazardous or toxic substance, material, chemical,
waste or pollutant identified as hazardous or toxic or regulated under any other
applicable federal, state or local environmental laws currently existing or hereinafter
enacted, including, without limitation, friable asbestos, polychlorinated biphenyl's
("PCBs"), petroleum, natural gas and synthetic fuel products, and by-products.
1.25 Hazardous Waste
"Hazardous Waste" means all substances defined as Hazardous Waste, acutely
Hazardous Waste, or extremely Hazardous Waste by the State of California in Health
and Safety Code §25110.02, §25115, and §25117 or in the future amendments to or
recodifications of such statutes or identified and listed as Hazardous Waste by the US
Environmental Protection Agency (EPA), pursuant to the Federal Resource
Conservation and Recovery Act (42 USC §6901 et seq.), all future amendments thereto,
and all rules and regulations promulgated thereunder.
1.26 Household Hazardous Waste (HHW)
"Household Hazardous Waste" means Hazardous Waste generated at residential
Premises within the City.
1.27 Legislation
"Legislation" means any code, ordinance, resolution or any other forms/enactment of
the governing body of City which now exists or which may hereafter be adopted which
constitutes law or regulation governing the operation of Company.
1.28 Missed Pick-up
"Missed Pick-up" means failure of Company to pick up Refuse that has been set out by
the customer at the time, at the weight, in the volume, in the proper container, with the
lawful contents in accordance with this Agreement, and at the prescribed level of
service, as mutually agreed upon by the customer and Company.
1.29 Multi -Family Dwelling Unit
"Multi -Family Dwelling Unit" means any Premises serviced in a manner similar to
Commercial Property (bin or debris box), but used for residential purposes (not
including hotels or motels), irrespective of whether residence therein is transient,
temporary or permanent.
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1.30 Owner
"Owner" means the Person holding the legal title to the real property constituting the
Premises to which Refuse Collection service is to be provided under this Agreement.
1.31 Person
"Person" means any individual, firm, association, organization, partnership,
corporation, business trust, joint venture, the United States, the State of California, the
County of Santa Clara, towns, cities, and special purpose districts.
1.32 Premises
"Premises" means any land, or building, in City where Refuse is generated or
accumulated.
1.33 Rate Year
"Rate Year" means the twelve month period, commencing July 1, of one year and
concluding June 30 of the subsequent year, for which Company Compensation is
calculated.
1.34 Rates
"Rates" means the unit to be charged customers by Company for providing Refuse
Collection and Disposal services. Rates may be adjusted from time to time in
accordance with this Agreement.
1.35 Recycling
"Recycling" means the process of separating for Collection, Collecting, treating and/or
reconstituting Recyclable Materials which would otherwise be discarded without
receiving compensation and returning them to the economy in the form of raw
materials for new, reused, or reconstituted products. The Collection, transportation or
Disposal of Refuse not intended for, or capable of, reuse is not Recycling.
1.36 Recyclable
"Recyclable" means a material which can be processed into a form suitable for reuse
through reprocessing or re -manufacture consistent with the requirements of the
California Integrated Waste Management Act.
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1.37 Recyclable Materials
"Recyclable Materials" means residential, commercial or industrial Source Separated by-
products of some potential economic value, set aside, handled, packaged, or offered for
Collection in a manner different from Garbage or Refuse.
1.38 Recycled
"Recycled" means the act of having processed Recyclable Materials into a form suitable
for reuse and having marketed those processed materials for a use consistent with the
requirements of the California Integrated Waste Management Act for Recycled
materials. The act of marketing does not require that revenue is generated from the
processed materials.
1.39 Refuse
" Refuse " includes both Garbage and Rubbish and means putrescible and non-
putrescible Refuse or debris, except sewage, whether combustible or non-combustible,
which, for the purposes of Disposal, have been placed in or next to a receptacle which is
regularly emptied for disposal, and such materials as defined as "refuse" by applicable
local ordinances in existence as of the Effective Date of this Agreement.
1.40 Residential Property
"Residential Property" means property used for residential purposes, irrespective of
whether such dwelling units are rental units or are owner -occupied.
1.41 Roll -Off Container
"Roll -Off Container" means any unit, container, or enclosure including, but not limited
to sizes ranging from 6 to 40 cubic yards which can be used for Refuse. A Roll -Off
Container may be an open top container or an enclosed container with a compaction
unit.
1.42 Roll -Off Collection Services
"Roll -Off Collection Services" means the service provided to customers for the collection
of Refuse using a Roll -Off Container.
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C/I1A
1.43 Rubbish
"Rubbish" means all waste wood, wood products, printed materials, paper, paste board,
rags, straw, used and discarded clothing, packaging materials, ashes, floor sweepings,
glass and other materials not included in the definition of Garbage, Hazardous
Substance, Yard Waste or Recyclable Materials, and such materials defined as "rubbish"
by applicable local ordinances in existence as of the Effective Date of this Agreement.
1.44 Single Family Dwelling Unit
"Single Family Dwelling Unit" means each Premises used for or designated as a single
family residential dwelling, including each unit of a duplex, triplex, four-plex, or town
house in all cases in which there is separate or individual Refuse Collection service
using cans or carts.
1.45 Solid Waste
"Solid Waste" means all putrescible and non-putrescible residential Solid Waste,
commercial Solid Waste, institutional Solid Waste, Garbage, Recyclable Material, Green
Waste, and Rubbish and as otherwise defined in Public Resources Code §40191. Any
material that a Waste Generator pays to be hauled away, or directs to be paid, shall be
defined to be Solid Waste and not a Recyclable Material, and such materials defined as
"solid waste" by applicable local ordinances in existence as of the Effective Date of this
Agreement.
1.46 Source Reduction Program
"Source Reduction Program" means any program that reduces the amount of Solid
Waste that would otherwise be disposed of in a landfill, including without limitation
Recycling, processing, salvaging and waste -to -energy projects.
1.47 Source Separation
"Source Separation" means the segregation into separate Containers by the Waste
Generator of individual components of material which otherwise would become Refuse
or Garbage, such as glass bottles, metal cans, newspapers, plastic containers, etc., for the
sole purpose of Recycling, to be picked up by Company.
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1.48 Unacceptable Waste
"Unacceptable Waste" means any and all waste, including but not limited to, Hazardous
Waste, Hazardous Substances, Biohazardous and Biological Waste, the acceptance or
handling of which would cause a violation of any permit condition or legal or
regulatory requirements, substantial damage to Contractor's equipment or facilities, or
present a substantial endangerment to the health or safety of the public or Contractor's
employees, provided, that de minimis quantities or waste of a type and amount
normally found in residential Refuse after implementation of programs for the safe
collection, Recycling, treatment and disposal of Household Hazardous Waste in
compliance with Section 41500 and 41802 of the California Public Resources Code shall
not constitute Unacceptable Waste.
1.49 Waste Generator
'Waste Generator" means any Person as defined by the Public Resources Code, whose
act or process produced Refuse as defined in the Public Resources Code, or whose act
first causes Refuse to become subject to regulation.
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ARTICLE 2
REPRESENTATIONS AND WARRANTIES OF COMPANY
2.1 Company Status
Company is a duly organized, validly existing Corporation in good standing under the
laws of the State of California. It is qualified to transact business in the State of
California and has the power to own its properties and to carry on its business as now
owned and operated and as required by this Agreement.
2.2 Company Authorization
Company has the authority to enter into and perform its obligations under this
Agreement. The Board of Directors of Company have taken all actions required by
law, its articles of incorporation, its bylaws or otherwise to authorize the execution of
this Agreement.
2.3 Agreement Duly Executed
The persons signing this Agreement on behalf of Company have been duly authorized
by Company to do so, and this Agreement has been duly executed and delivered by
Company in accordance with the authorization of its Board of Directors or
shareholders, if necessary, and is enforceable against Company in accordance with its
terms.
2.4 No Conflict With Applicable Law or Other Documents
Neither the execution and delivery by Company of this Agreement nor the performance
by Company of its obligations hereunder:
a) Conflicts with, violates or will result in a violation of any existing applicable
law; or
b) Conflicts with, violates or will result in a breach or default under any term or
condition of any existing judgment, order or decree of any court, administrative
agency or other governmental authority, or of any existing agreement or
instrument to which Company is a party, or by which Company or any of
Company's properties or assets is bound; or
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c) Will result in the creation or imposition of any lien, charge or encumbrance of
any nature whatsoever upon any of the properties or assets of Company which
will interfere materially with Company's performance hereunder.
2.5 No Litigation
There is no action, suit, proceeding or action at law or equity, or to the best of
Company's knowledge, any investigation before or by any court or governmental
entity, pending or threatened against Company or otherwise affecting Company,
wherein an unfavorable decision, ruling or finding, in any single case or in the
aggregate, would materially adversely affect Company's performance hereunder, or
which in any way, would adversely affect the validity or enforceability of this
Agreement, or which would have a material adverse effect on the financial condition of
Company.
2.6 Financial Ability, Disclosures, No Material Change
Company has sufficient financial resources to perform all aspects of its obligations
hereunder. Company has provided the City with audited financial statements for
period ending June 30, 1996, which present fairly, in accordance with generally
accepted accounting principles, the financial resources of Company. There has been no
material adverse change in Company's financial circumstances since the date of the
most recent financial statements.
2.7 Expertise
Company has the expert, professional, and technical capability to perform all of its
obligations under this Agreement.
2.8 Company's Investigation
Company has made an independent investigation (satisfactory to it) of the conditions
and circumstances surrounding the Agreement and the work to be performed by
Company under the Agreement, and enters into this Agreement on the basis of that
independent investigation.
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ARTICLE 3
TERM AND SCOPE OF FRANCHISE
3.1 Term of Agreement
3.1.1 Effective Date
The effective date of this Agreement shall be July 1, 1997 ("effective date'). Company
shall continue to provide service under the Existing Agreement up to the date all new
services are commenced under this Agreement.
3.1.2 Term of Agreement
The term of this Agreement shall be nine (9) years, eight (8) months, commencing at
12:00 a.m. July 1, 1997, and expiring at midnight February 28, 2007.
3.1.3 Conditions to Effectiveness of Agreement
The obligation of City to permit this Agreement to become effective and to perform its
undertakings provided for in this Agreement is subject to the satisfaction of each and all
of the conditions set out below, each of which may be waived in whole or in part by
City, upon City's expressed written consent. Waivers are limited to those expressed in
writing, and are in the sole and exclusive discretion of the City.
a) Accuracy of Representations. Representations and warranties made by
Company throughout this Agreement are accurate, true and correct on and as of
the effective date of this Agreement.
b) Absence of Litigation. There is no litigation pending or threatened in any court
challenging the award of this Franchise to Company or the execution of this
Agreement or seeking to restrain or enjoin its performance.
c) Furnishing of Insurance and Bonds. Company has furnished evidence of the
insurance and bonds required by Article 10.
d) Effectiveness of City Council Action. City's Resolution No. approving this
Agreement, shall have become effective pursuant to California law prior to the
effective date.
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3.2 Franchise
3.2.1 Grant and Acceptance of Franchise
Subject to Section 3.1.3, City hereby grants to Company the exclusive Franchise, right
and privilege to Collect and transport Refuse accumulating in City that is required to be
accumulated and offered for Collection to Company in accordance with this
Agreement, and such rules and regulations set forth by ordinances of the City that are
not inconsistent with this Agreement.
3.2.2 Scope of Franchise
The Franchise for the Collection and transportation of Refuse granted to Company shall
be exclusive except as to the following categories of Refuse listed in this Section. The
granting of this Franchise shall not preclude the categories of Refuse listed below from
being delivered to and Collected and transported by others provided that nothing in
this Agreement is intended to or shall be construed to excuse any Person from obtaining
any authorization from City which is otherwise required by law:
a) Refuse which is removed from any Premises by the Waste Generator, and which
is transported personally by the Owner or occupant of such Premises (or by his
or her full-time employees) to any processing or Disposal Facility;
b) Construction and Demolition Debris which is removed from any Premise by
employees of the construction or demolition contractor or the City, using
equipment owned by the contractor or the City;
c) Animal waste and remains from slaughterhouses or butcher shops for use as
tallow;
d) By-products of sewage treatment, including sludge, sludge ash, grit and
screenings; and,
e) Hazardous Waste and designated waste regardless of its source.
Company acknowledges and agrees that City may permit other Persons besides
Company to Collect any or all types of the Refuse listed in this Section 3.2.2, without
seeking or obtaining approval of Company under this Agreement.
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3.2.3 Limitations
This grant to Company of an exclusive Franchise, right and privilege to Collect,
transport, and Dispose of Refuse shall be interpreted to be consistent with state and
federal laws, now and during the term of the Franchise, and the scope of this exclusive
Franchise shall be limited by current and developing state and federal laws with regard
to Refuse handling, exclusive Franchise, Solid Waste flow control, and related doctrines.
In the event that future interpretations of current law, enactment or developing legal
trends limit the ability of City to lawfully provide for the scope of Franchise services as
specifically set forth herein, Company agrees that the scope of the Franchise will be
limited to those services and materials which may be lawfully provided for under this
Agreement, and that City shall not be responsible for any lost profits claimed by
Company to arise out of further limitations of the scope of the Agreement set forth
herein. In such an event, it shall be the responsibility of Company to minimize the
financial impact to other services being provided as much as possible.
3.2.4 Acceptance of Franchise
Company hereby accepts the Franchise on the terms and conditions set forth in this
Agreement, and all such ordinances adopted by the City that are not inconsistent with
this Agreement.
3.2.5 City's Right to Direct Changes
City may direct Company to modify the manner in which it performs existing services.
Pilot programs and innovative services which may entail new Collection methods,
different kinds of services and/or new requirements for Waste Generators are included
among the kinds of changes which City may direct. Company may seek an adjustment
in its Company Compensation in accordance with Section 7.6 for providing such
additional or modified services.
3.2.6 Ownership of Refuse
Once Refuse is placed in Containers and properly placed at the designated Collection
location, ownership and the right to possession shall transfer directly from the Waste
Generator to Company by operation of this Agreement. Subject to the provisions of this
Agreement, Company shall have the right to retain any benefit resulting from its right
to retain, Recycle, process, Dispose of, or reuse the Refuse, which it Collects. Refuse„
or any part thereof, which is disposed of at a Disposal Site or sites (whether landfill,
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transformation Facility, Transfer Station, Processing Facility or Material Recovery
Facility) shall become the property of the Owner or operator of the Disposal Site(s) once
deposited there by Company. City may obtain ownership or possession of Refuse
placed for Collection upon written notice of its intent to do so, however, nothing in this
Agreement shall be construed as giving rise to any inference that City has such
ownership or possession unless such written notice has been given to Company.
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ARTICLE 4
FRANCHISE FEE AND OTHER SURCHARGES
4.1 Franchise Fee
4.1.1 Franchise Fee Amount
In consideration of the exclusive Franchise provided in Section 3.2.1 of this Agreement,
Company shall pay to City 10% (or another amount as provided in Section 4.1.3) of the
Gross Revenues collected by Company from services provided in City.
4.1.2 Time and Method of Payment
On or before the twentieth (20th) day of each month, Company shall calculate the
franchise fees due to the City for services rendered during the preceding calendar
month. The City shall review the Company's schedule and calculations and may
request, and Company shall provide, supporting documents related to the schedule
provided. Should the City identify adjustments to the schedules or calculations, City
shall notify Company within thirty 30 days after receipt of franchise fee payment and
seek an explanation for any apparent differences. If the franchise fee is not paid on or
before the twentieth (20th) day of any month, Company shall pay to City a late payment
fee in an amount equal to one percent (1%) of the amount owing for that month for each
thirty (30) day period the franchise fee remains unpaid.
4.1.3 Adjustment to Franchise Fee
City may adjust the amount of the Franchise Fee annually. Such adjustment shall be
reflected in the rates that Company is allowed to charge and collect from customers in
accordance with Article 7, such that Company may receive the calculated Company
Compensation including the amount of Franchise Fees payable to City.
4.2 Other Surcharges
4.2.1 Other Surcharge Amounts
The City has incurred, and will continue to incur, expenses for other Solid Waste
programs and franchise administration. These expenses may be determined and a
surcharge may be calculated to reimburse City. The City's surcharges set upon
execution of this Agreement shall be as shown in Exhibit 1. Company will collect these
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tic
amounts from customers on the regular billings and remit the amount collected on a
monthly basis, as provided below. Company may be required to separately identify
some or all of the surcharges on bills as determined and directed by City.
4.2.2 Time and Method of Payment
On or before the twentieth (20th) day of each month, Company shall pay City the
amount collected during the previous month. If the surcharges are not paid on or
before the twentieth (20th) day of any month, Company shall pay to City a late payment
fee in an amount equal to one percent (1(Y°) of the amount owing for that month for each
thirty (30) day period the surcharges remain unpaid.
4.2.3 Adjustment to Surcharge
City may adjust the amount of the surcharges annually. Such adjustment shall be
reflected in the rates that Company is allowed to charge and collect from customers in
accordance with Article 7, such that Company may receive the calculated Company
Compensation including the amount of surcharges payable to City.
4.3 Other Fees
City shall reserve the right to set other fees, as it deems necessary. The amount, time
and method of payment and adjustment process will be set by action of the City
Council.
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ARTICLE 5
DIRECT SERVICES
5.1 Refuse Collection
5.1.1 General
The work to be done by Company pursuant to this Agreement shall include, but not be
limited to, the furnishing of all labor, supervision, equipment, materials, supplies, and
all other items necessary to perform the services required. The enumeration of, and
specification of requirements for, particular items of labor or equipment shall not
relieve Company of the duty to furnish all others, as may be required, whether
enumerated elsewhere in the Agreement or not.
The work to be done by Company pursuant to this Agreement shall be accomplished in
a thorough and professional manner so that the residents and businesses within City
are provided reliable, courteous and high -quality Refuse Collection at all times. The
enumeration of, and specification of requirements for, particular aspects of service
quality shall not relieve Company of the duty of accomplishing all other aspects in the
manner provided in this Section, whether such other aspects are enumerated elsewhere
in the Agreement or not.
5.1.2 Residential Refuse - Single Family Dwelling Unit
Company shall Collect Refuse from the Containers delivered for Collection by the
Waste Generator at the subscribed service level from Containers provided by Waste
Generator, not less than once per week. Standard Collection service shall be manual or
semi -automated Collection, unless another method is approved by the City. City
approval will not be unreasonably withheld.
5.1.3 Commercial, Industrial, and Multi -Family Dwelling Units
Company shall Collect Refuse from Company -provided Refuse Containers and
customer -provided 32-gallon commercial cans and compactor containers of a size and
shape acceptable to Company, in compliance with any and all local ordinances in
existence as of the Effective Date of this Agreement, not less than once per week.
Special consideration shall be given when determining the pick up area for Commercial,
and/or Multi -Family accounts to ensure that the flow of traffic is not impeded and that
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it does not result in aesthetic degradation of an area. Additionally, if in the City's
opinion the location of an existing pick up area is inappropriate, City may require the
customer to relocate the pick up area.
5.1.4 City Facilities' Collection
Company shall Collect and dispose of all Refuse generated at public facilities and
events identified in Exhibit 1 at no charge to the City. Company shall make Collections
from Containers Monday through Friday or on Saturdays following non -working
holidays. Collections from bins and roll -off boxes shall be scheduled at a time mutually
agreed upon by Company and City.
5.1.5 Temporary Bins/Roll-off Service
Company shall provide temporary bins/roll-off service for the purpose of Collection of
non -hazardous Refuse. Company shall deliver and Collect bins at the direction of the
customer. Bins shall be free of graffiti and in good repair. Bins must be clearly marked
and identifiable as belonging to Company. Special consideration shall be given when
determining the pick up area for temporary bins/roll-off service accounts to ensure that
the flow of traffic is not impeded and that it does not result in aesthetic degradation of
an area. The designated pick up area, shall be in accordance with all applicable laws
and permit conditions. Additionally, if in City's opinion the location of an existing pick
up area is inappropriate, City may require the customer or Company to relocate the
pick up area. Should a non -franchised hauler provide service that falls under the scope
of this franchise, the City, upon notification by Company, shall shall attempt to give
written notification, within twenty-four (24) hours, but no later than seventy-two (72)
hours, of Company's notification, to the non -franchised hauler to cease and desist such
activity. Should the non -franchised hauler fail to cease and desist, within twenty-four
(24) hours of receipt of the City's written notification, such activity and the activity
consists of the placement of boxes/bins on City streets or other City -owned property,
the City may summarily remove or have the same removed. If the boxes/bins are
located on private property, Company may, in cooperation with the City, initiate all
appropriate civil or criminal action to cause the activity to cease and desist.
5.1.6 Cleanups
5.1.6.1 City Cleanups. - Company shall provide services for Refuse cleanups as
directed by the City within five (5) working days of a request. If the City determines
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that the public health or safety is threatened, Company shall provide clean up services
within twenty-four (24) hours of a request to do so by City. Company shall pick up
authorized cleanup items and transport such items to the Disposal Site. Services shall
be provided at the customer's sole cost and expense and for which the Company shall
bill the customers for the services. If Company is unable to collect the customer's bill
from customer, City shall use whatever means it reasonably has available to it to obtain
payment on behalf of Company.
5.1.6.2 Cleanup Days. - If requested by the City, Company agrees, at Company's sole
cost and expense, to participate in "Community Cleanup Days" annually as specified in
Exhibit 1, on dates mutually established by Company and City. The Company shall
pickup Refuse placed at Curbside and transport such items to the Disposal Facility at no
additional cost to customers. The following guidelines must be followed:
• All waste must be left at the curb by 6:00 a.m.
• Items, where appropriate, should be placed in Company -approved cans, bags or
boxes.
• Tree prunings and branches cannot exceed 3 inches in diameter, or be longer than 3
feet, and weigh no more than 70 pounds per bundle..
• Items that can not be safely loaded by one person will not be accepted. No single
item can weigh more than 70 pounds.
The following items will not be picked up: Hazardous Waste, including Waste Oil
or anti -freeze; concrete or dirt; tires; and items containing CFCs.
Company may refuse to collect clean-up items and shall not be obligated to provide this
service to any person who does not set out Refuse, as described above.
Company shall record the kinds and weights (in tons) of Refuse diverted, if any, during
these cleanups from the landfill through Recycling, reuse, transformation or other
means of approved diversion.
5.2 Operations
5.2.1 Schedules
To preserve peace and quiet, no Refuse shall be Collected from Residential Premises
between 9:00 P.M. and 6:00 A.M. on any day. The times for collections in non-
Yj�
residential areas adjacent to residential areas shall be fixed by mutual agreement of City
and Company after consideration, among others, of traffic conditions, accessibility to
and from the collection areas and any other circumstances which may require an early
pickup. Such Refuse shall be Collected, Monday through Friday. Annually, on the
service day preceding the affected Holiday , Company shall notify City and customers
in writing of the alternate Collection day when the regularly scheduled Collection day
falls on Christmas Day or New Year's Day. Collection of Refuse from Commercial
Properties may include Saturdays and shall be between the hours of 3:00 a.m. and 10:00
p.m.
Company shall be prepared to review its operations plan outlining the Collection
routes, intervals of Collection and Collection times for all Refuse Collected under this
Agreement with City once annually upon 30-day written notice requesting said review.
More frequent reviews may be required if operations are not satisfactory based on
documented observations or reports or complaints. If the plan is determined to be
inadequate by City, Company shall revise the plan, incorporating any changes into a
revised plan, and review said revised plan with City within thirty (30) calendar days.
When notified of a missed pick-up, Company shall Collect the Refuse within one (1)
business day. For residential service, a business day shall mean Monday through
Friday, excluding Christmas and New Year's Day.
5.2.2 Vehicles
A. General. Company shall provide Collection vehicles sufficient in number and
capacity to efficiently perform the work required by the Agreement in strict accordance
with its terms. Company shall have available on Collection days sufficient back-up
vehicles for each type of Collection vehicle (e.g., can or cart service, bin service and
debris box service) used to respond to complaints and emergencies.
B. Specifications. All vehicles used by Company in providing Refuse Collection
services shall be registered with the California Department of Motor Vehicles. All such
vehicles shall have bodies designed to prevent leakage, spillage or overflow.
C. Vehicle Identification. Company's name, local telephone number, and a unique
vehicle identification number designed by Company for each vehicle shall be
prominently displayed on all vehicles, in letters and numbers no less than two and one-
23
��U
half (2 1/2) inches high. Company shall not place City's name and/or any City logos on
Company vehicles.
D. Cleaning and Maintenance
1) Company shall maintain all of its properties, vehicles, facilities, and
equipment used in providing service under this Agreement in a good,
safe, neat, clean and operable condition at all times.
2) Vehicles used in the Collection of Refuse shall be painted, thoroughly
washed, and thoroughly steam cleaned on a regular basis so as to present
a clean appearance. Upon reasonable notice, City may inspect vehicles at
any time to determine compliance with this Agreement. Company shall
repaint or refurbish to the satisfaction of the City all vehicles used in the
Collection of Refuse within thirty (30) days' notice from City, if City
determines that their appearance warrants painting. Company shall also
make vehicles available to the Santa Clara County Health Department for
inspection, at any frequency it requests.
3) Company shall inspect each vehicle daily to ensure that all equipment is
operating properly. Vehicles which are not operating properly shall be
removed from service until repaired and operating properly. Company
shall repair, or arrange for the repair of, all of its vehicles and equipment
for which repairs are needed because of accident, breakdown or any other
cause so as to maintain all equipment in a safe and operable condition. If
an item of repair is covered by a warranty, Company shall obtain
warranty performance. Company shall maintain accurate records of
repair, which shall include the date and operating hours, nature of repair
and the verification by signature of a maintenance supervisor that the
repair has been properly performed.
4) Company shall perform all scheduled maintenance functions in
accordance with the manufacturer's specifications and schedule.
Company shall keep accurate records of all vehicle maintenance, recorded
according to date and operating hours and shall make such records
available to City upon request.
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5) Company shall furnish City a written inventory of all Collection
equipment, including Collection vehicles, used in providing service under
this Agreement, and shall update the inventory annually. The inventory
shall list all equipment by manufacturer, ID number, date of acquisition,
type, and capacity.
E. Operation. Vehicles shall be operated in compliance with the California Vehicle
Code, and all applicable safety and local ordinances. Company shall not load vehicles
in excess of the manufacturer's recommendations or limitations imposed by state or
local weight restrictions on vehicles.
Equipment shall comply with US EPA noise emission regulations, currently codified at
40 CFR Part 205 and other applicable noise control regulations, and shall incorporate
noise control features throughout the entire vehicle. Noise levels of equipment used for
Collection shall comply with City ordinance.
Subject to Section 10.1, Company shall be responsible for any damage resulting from or
directly attributable to any of its operations.
5.2.3 Containers
5.2.3.1 Residential Refuse Containers. The standard size Container for single-family
residential Refuse Collection shall not exceed 32 gallons, and container and contents
combined shall not exceed 70 pounds.
5.2.3.2 Non -Residential Refuse Containers. Company shall furnish customers
appropriate Containers to Collect Refuse at Multi -Family Dwelling Unit, commercial,
and other Premises upon customer request. Containers with a capacity of one cubic
yard or more shall be available in standard sizes. The kind, size and number of
Containers furnished to particular customers shall be as determined mutually by the
customer and Company. Containers which are front loading bins, shall have lids. All
Containers with a capacity of one cubic yard or more shall meet applicable regulations
for Refuse bin safety, shall have reflectorized marking (unless normally located in an
enclosure), shall be maintained in good repair with neatly and uniformly painted
surfaces, and shall prominently display the name and telephone number of Company.
Reflectorized markings are to be placed on bins by Company at the next scheduled
service, but no later than 24 months from the Effective Date of this Agreement.
25
5.2.4 Litter Abatement
A. Minimization of Spills. Company shall use due care to prevent Refuse or fluids
from leaking, being spilled, and/or scattered during the Collection or transportation
process. If any Refuse or fluids leak or are spilled during Collection, Company shall
promptly clean up all such materials. Each Collection vehicle shall carry a broom and
shovel at all times for this purpose.
Company shall not transfer loads from one vehicle to another on any public street,
unless it is necessary to do so because of mechanical failure, accidental damage to a
vehicle, without prior written approval by City.
B. Clean Up. During the Collection or transportation process, Company shall clean
up litter in the immediate vicinity of any Refuse storage area (including the areas where
Collection bins and debris boxes are delivered for Collection) unless the litter is pre-
existing. Company shall discuss instances of repeated spillage not caused by it directly
with the Waste Generator responsible and will report such instances to City. City will
attempt to rectify such situations with the Waste Generator if Company has already
attempted to do so without success.
C. Covering of Loads. Company shall properly cover all open debris boxes during
transport to the Disposal Site.
5.2.5 Personnel
Company shall furnish such qualified drivers, mechanical, supervisory, clerical,
management and other personnel as may be necessary to provide the services required
by this Agreement in a satisfactory, safe, economical and efficient manner. All drivers
shall be trained and qualified in the operation of vehicles they operate and must possess
a valid license, of the appropriate class, issued by the California Department of Motor
Vehicles.
Company also agrees to establish and vigorously enforce an educational program
which will train Company's employees in the identification of Hazardous Waste.
Company's employees shall not knowingly place such Hazardous Waste in the
Collection vehicles, nor knowingly dispose of such Hazardous Wastes at the Disposal
Site.
917A,
26
Company shall train its employees in customer courtesy, shall prohibit the use of loud
or profane language, and shall instruct Collection crews to perform the work quietly.
Company shall use its best efforts to assure that all employees present a neat
appearance and conduct themselves in a courteous manner. If any employee is found
to be discourteous or not to be performing services in the manner required by this
Agreement, Company shall take all necessary corrective measures including, but not
limited to, transfer, discipline or termination. If City has notified Company of a
complaint related to discourteous or improper behavior, Company will consider
reassigning the employee to duties not entailing contact with the public while Company
is pursuing its investigation and corrective action process.
Company shall provide suitable operations, health and safety training for all of its
employees who use or operate equipment or who are otherwise directly involved in
Collection or other related operations.
5.2.6 Identification Required
Company shall provide its employees, companies and subcontractors with
identification for all individuals who may make face-to-face contact with residents or
businesses in City. City may require Company to notify customers yearly of the form of
said identification. Company shall provide a list of current employees, companies, and
subcontractors to City upon request.
5.2.7 Fees and Gratuities
Company shall not, nor shall it permit any agent, employee, or subcontractors
employed by it, to request, solicit, demand, or accept, either directly or indirectly, any
compensation or gratuity for temporary bin/roll off services or the Collection and
transportation of Refuse, otherwise required under this Agreement. Compensation or
gratuity shall exclude Holiday gifts.
5.2.8 Non -Discrimination
Company shall not discriminate in the provision of service or the employment of
Persons engaged in performance of this Agreement on account of race, color, religion,
sex, age, physical handicap or medical condition in violation of any applicable federal
or state law.
94v
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5.2.9 Change in Collection Schedule
Company shall notify City thirty (30) days prior to, and residential customers not later
than two (2) weeks prior to, any change in the residential Collection schedule which
results in a change in the day on which Refuse Collection occurs. Company will not
permit any customer to go more than seven (7) days without service in connection with
a Collection schedule change. City's approval of any change in Residential Collection is
required prior to such change, and such approval will not be withheld unreasonably.
5.2.10 Report of Accumulation of Refuse; Unauthorized Dumping
Company shall direct its drivers to note (1) the addresses of any Premises at which they
observe that Refuse is accumulating and is not being delivered for Collection; and (2)
the address, or other location description, at which Refuse has been dumped in an
apparently unauthorized manner. Company shall deliver the address or description to
City within five (5) working days of such observation.
5.3 Contingency Plan
Company shall submit to City on or before the effective date of the Agreement, a
written contingency plan demonstrating Company's arrangements to provide vehicles
and personnel and to maintain uninterrupted service during breakdowns, and in case of
natural disaster or other emergency (not including a labor dispute), including the events
described in Section 12.4.
5.4 Transportation of Refuse
The Company shall transport all Refuse collected under Section 5.1 to the Disposal Site.
Company agrees to identify commercial and industrial containers containing significant
quantities of Recyclables and offer the Waste Generator commercial recycling service.
The Contractor shall maintain accurate records of the quantities of Refuse transported
to the Disposal Site and will cooperate with the City in any audits or investigations of
such quantities.
The Contractor shall cooperate with the operator of the Disposal Site with regard to
operations therein, including, for example, complying with directions from the operator
to unload Collection vehicles in designated areas, accommodating to maintenance
operations and construction of new facilities, cooperating with its Hazardous Waste
exclusion program, and so forth.
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5.5 Disposal of Refuse
The Company shall dispose of all Refuse collected under Section 5.1 at the Disposal
Site. If the Disposal Site becomes unable to accept and dispose of City's Refuse for
reasons outside the Company's control, the Company shall, with the prior approval of
City, to the extent it is legally able to do so, transport and dispose of the City's Refuse at
another Disposal Site that results in the lowest possible transportation and disposal
cost. Additional transportation and disposal cost incurred in delivering the Refuse to
another Disposal Site will be the responsibility of Company to recover from the Owner
of the Disposal Site.
5.6 Service Exceptions; Hazardous Waste Notifications
A. Hazardous Waste Inspection and Reporting. Company reserves the right and
has the duty under law to inspect Refuse put out for Collection and to reject Refuse
observed to be contaminated with Hazardous Waste and the right not to collect
Hazardous Waste put out with Refuse. Company shall notify all agencies with
jurisdiction, if appropriate, including the California Department of Toxic Substances
Control and Local Emergency Response Providers and the National Response Center of
reportable quantities of Hazardous Waste, found or observed in Refuse anywhere
within the City. In addition to other required notifications, if Company observes any
substances which it or its employees reasonably believe or suspect to contain
Hazardous Wastes unlawfully Disposed of or released on any City property, including
storm drains, streets or other public rights of way, Company will immediately notify
the City Manager or the City Manager's designee.
B. Failure to Collect. When Refuse is not Collected from any Residential Waste
Generator, Company shall notify the Waste Generator in writing, at the time Collection
is not made, through the use of a "tag" or otherwise, of the reasons why the Collection
was not made. When Refuse is not Collected from any Commercial Waste Generator,
Company shall notify customer by phone of the reasons why the Collection was not
made.
C. Hazardous Waste Diversion Records. Company shall maintain records showing
the types and quantities, if any, of Hazardous Waste found in Refuse and which was
inadvertently Collected from service recipients within the City, but diverted from
landfilling.
/71
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ARTICLE 6
OTHER SERVICES
6.1 Services and Customer Billing
6.1.1 Service Description
Company shall annually prepare and distribute, subject to the direction of City, a notice
to each Owner or occupant of property entitled to service under this Agreement a
listing of Company's Collection rates, rates for other services, annual holiday schedule,
and a general summary of services required to be provided hereunder and optional
service which may be furnished by Company. Such notice shall be in a form subject to
City's approval prior to its distribution and may be included with Billings made by
Company.
6.1.2 Billing
Company shall bill and collect from persons receiving Collection and Disposal services
at rates fixed by the City from time -to -time. Billing shall be performed either monthly
or quarterly for each account, but in no event less frequently than once per quarter.
Company may terminate Collection service to Refuse accounts that become more than
sixty (60) days past due, following thirty (30) days written notice. Company shall
promptly restore service when the delinquent charges, including reinstatement charges,
have been paid in full. The Company may require a deposit from customers who are
habitually delinquent.
6.1.3 Review of Billings
Company shall review its Billings to customers under Section 6.1.2. The purpose of the
review is to determine that the amount which Company is billing each customer is
correct in terms of the level of service (i.e., frequency of Collection, size of container,
location of container) being provided to such customer by Company. Company shall
distribute new route books to its drivers each quarter. Each driver is to provide the
service level shown in the route book, adding and subtracting customers and service
levels, as necessary. Route supervisors shall periodically check the routes to ensure that
drivers are providing service in accordance with their route books.
30
Company shall maintain copies of said Billings and receipts, each in chronological
order, for a period of five (5) years after the date of service for inspection by City upon
request. Company may, at its option, maintain those records in computer form, on
microfiche, or in any other manner, provided that the records can be preserved and
retrieved for inspection and verification in a timely manner.
6.2 Customer Service
6.2.1 Local Office
Office hours shall be, at a minimum, from 8:00 A.M. to 4:30 P.M., Monday through
Friday, exclusive of holidays. A responsible and qualified representative of Company
shall be available during office hours for communication with the public at the local
office. Normal office hour telephone numbers shall either be a local or toll free call.
Company's telephone system shall be adequate to handle the volume of calls typically
experienced on the busiest days. Company shall also maintain a local or toll free
telephone number for use during other than normal business hours. Company shall
have a representative, answering or message providing/receiving (voice -mail) service
available at said after-hours telephone number.
6.2.2 Complaint Documentation
All service complaints shall be directed to Company. Daily logs of complaints
concerning Collection of Refuse shall be retained for a minimum of twenty-four (24)
months and shall be available to City at all times upon request.
Company shall log all complaints received by telephone and said log shall include the
date and time the complaint was received, name, address and telephone number of
caller, description of complaint, employee recording complaint and the action taken by
Company to respond to and remedy complaint.
All written customer complaints and inquiries shall be date -stamped when received
and shall be initially responded to within one (1) business day of receipt. Company
shall log action taken by Company to respond to and remedy the complaint.
All customer service records and logs kept by Company shall be available to City upon
request and at no cost to City. City shall, at any time during regular Company business
hours, have access to Company's customer service department for purposes that may
include monitoring the quality of customer service or researching customer complaints.
31
6.2.3 Resolution of Customer Complaints
A customer dissatisfied with Company's decision regarding a complaint may ask City
to review the complaint. Company shall provide the customer with the number of the
City Liaison, as designated in accordance with Section 6.2.4. City Liaison shall contact
Company's Government Liaison to request additional information and ask Company to
respond to the complaint. Company shall attempt to cure the complaint and notify City
Liaison by telephone or in writing of resolution. If the customer is still dissatisfied, the
matter may be referred to the City Manager.
The decision of City Manager or his/her designee shall be final on any matter under
One Thousand Dollars ($1,000.00). In the event of a decision on a matter awarding a
rebate of one thousand dollars or more ($1,000.00), Company may seek review by an
appeal/review board appointed as described in Section 12.5.
Nothing in this Section is intended to effect the remedies of third parties against
Company.
6.2.4 Liaisons
Company shall designate in writing a "Government Liaison" who shall be responsible
for working with City and/or City's designated representative(s) to resolve customer
complaints. City shall designate in writing a "City Liaison" who shall be responsible
for working with Company and/or Company's designated representative to resolve
customer complaints.
6.3 Waste Generation/Characterization Studies
Company acknowledges that City must perform Refuse generation and Disposal
characterization studies periodically to comply with AB 939 requirements. Company
agrees to participate and cooperate with City and its agents and to accomplish studies
and data collection and prepare reports, as needed, to determine weights and volumes
of Refuse and characterize Refuse generated, disposed, diverted or otherwise
handled/processed to satisfy AB 939 requirements.
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ARTICLE 7
COMPANY'S COMPENSATION AND RATES
7.1 General
The Company's Compensation provided for in this Article shall be the full, entire and
complete compensation due to the Company pursuant to this Agreement for all labor,
equipment, materials and supplies, taxes, insurance, bonds, overhead, Disposal, profit
and all other things necessary to perform all the services required by this Agreement in
the manner and at the times prescribed.
The Company will perform the responsibilities and duties described in this Agreement
in consideration of the right to charge and collect from customers for services rendered
at rates fixed by the City from time -to -time in accordance with this agreement. The
Company does not look to the City for the payment of any sums under this Agreement.
7.2 Initial Rates
The rates for the Rate Year ending June 30, 1998, are those established by City
Resolution No. _ (a copy of which is attached as Exhibit 2), unless amended in
accordance with this Agreement. Unless and until the rates set forth on Exhibit 2 are
adjusted by the City, the Company will provide the service required by this Agreement,
charging no more and no less than the rates authorized by Exhibit 2 unless authorized
to do so by the City.
The City and Company agree that the rates set forth on Exhibit 2 have been calculated
to generate an amount of revenue necessary to compensate Company for its costs
(including disposal) and profit and to cover the City's Franchise Fees and other
surcharges.
The rates shall be fixed and shall not be increased to reflect decreases in revenues below
those anticipated by the City and Company, nor decreased to reflect increases in
revenues above those anticipated by the City and Company.
7.3 Subsequent Rates
For each Rate Year beginning with Rate Year Two (i.e., from July 1, 1998 to June 30,
1999), rates shall be adjusted as described below and illustrated in Exhibit 3. For
purposes of this calculation, rates shall be composed of six (6) components: a Collection
33
Rate, a monthly Disposal Base Rate, a monthly Disposal Surcharge Rate, a Franchise
Fee, Jurisdiction Surcharges and Recycling Surcharges, as shown in Exhibit 3.
7.3.1 Monthly Collection Rate per Waste Generator Adjustment
The monthly Collection Rate shall be adjusted upward or downward to reflect eighty
percent (80%) of the change in the National Consumer Price Index (CPI) for the most
recent twelve (12) month period ending December 31, for all urban consumers, as
published by the U.S. Department of Labor, Bureau of Labor Statistics. No monthly
Collection Rate increase shall exceed five percent (5%) per annum.
7.3.2 Monthly Disposal Base Rate per Waste Generator Adjustment
The monthly Disposal Rate shall be adjusted upward or downward to reflect ninety
percent (90%) of the change in the CPI for the most recent twelve (12) month period
ending December 31. No monthly Disposal Rate increase shall exceed five percent (5%)
per annum.
7.3.3 Monthly Disposal Surcharge Rate per Waste Generator Adjustment
The monthly Disposal Surcharge Rate shall be adjusted upward or downward by the
percentage change, if any, in the actual surcharges per ton.
7.3.4 Franchise Fee Adjustment
The Franchise Fee component shall be calculated by adding the monthly Collection
Rate, the monthly Disposal Base Rate and monthly Disposal Surcharge Rate (as
calculated in Section 7.3.1, 7.3.2, and 7.3.3) and multiplying the resulting total by 0.1111.
7.3.5 Surcharge Adjustment
The Surcharges component is composed of charges for residential curbside recycling
and green waste Collection programs and other miscellaneous surcharges.
7.3.5.1. A Residential Recycling and Green Waste. Charges for residential curbside
recycling and green waste collection services are determined in accordance with a
separate contract between the City and Company. The contract provides for an annual
adjustment based on changes in certain indices. The charges are defined on a per -
household basis.
34
For purposes of this Agreement, the per -household charge shall be converted to a per -
can charge. The per -can charge shall be calculated by multiplying the per -household
charge for recycling and green waste services times the monthly average number of
customers during the most recent twelve-month period ending December 31 and
dividing the monthly revenue by the equivalent number of refuse cans subscribed to by
all residential customers during the most recent twelve-month period ending Decenber
31. The equivalent number of refuse cans shall be calculated by multiplying the number
of households times the number of cans subscribed to by each household, except that
two -can customers shall be deemed to subscribe to 2.1 cans, three -can customers shall
be deemed to subscribe to 3.2 cans, four -can customers shall be deemed to subscribe to
4.3 cans and five -can customers shall be deemed to subscribe to 5.4 cans, and customers
subscribing to low income one -can service shall have their equivalent cans, calculated as
described above, further reduced by one-third. For purposes of this Agreement, low
income customers are defined as a service recipient eligible for Supplemental Security
Income (SSI).
7.3.5.1.B. Multi -Family and Commercial Recycling. Charges for Multi -Family and
Commercial cardboard recycling services are determined in accordance with a separate
contract between City and Company. The contract provides for an annual adjustment
based on changes in certain indices.
For purposes of this Agreement, the "lump sum" revenue requirement for Multi -Family
recycling and the "lump sum" revenue requirement for Commercial cardboard
recycling will be allocated among the Cities of Campbell, Monte Sereno and Saratoga
and the Town of Los Gatos on a percentage basis. The Multi -Family revenue
requirement will be allocated using a ratio, the numerator of which is the number of
Multi -Family Dwelling Units in City and the denominator of which is the total number
of Multi -Family Dwelling Units in the four jurisdictions as of December 31 in each year.
After allocating the amount to the jurisdictions based on the ratio of total units in each
jurisdiction, Campbell's portion shall be reduced by 10 percentage points for collection
efficiency (Campbell's allocated Amount). The difference between the Multi -Family
Revenue Requirement and Campbell's Allocated Amount shall be allocated among the
remaining jurisdictions based on the ratio of the number of each jurisdiction's Multi -
Family Dwelling Units to the total of the remaining jurisdictions' Multi -Family
Dwelling Units.
35
Commercial cardboard revenue requirement is allocated among the jurisdictions using
the ratio of the average number of refuse bins (including Multi -Family refuse bins) for a
twelve month period ending December 31 in each jurisdiction, to the total average
number of bins in the four jurisdictions for the same period.
7.3.5.2 Other Jurisdiction Surcharges. The annual amount of other surcharges shall be
determined by the City. Unless and until the surcharges are changed by the City, the
rates shall indude the per -can surcharge amounts shown on Exhibit 2. If the City
changes the amount of the surcharges in accordance with Section 4.2.3, a new per -can
surcharge rate shall be calculated.
A. Residential Surcharges. For residential customers, the per -can surcharge rate
shall be increased or decreased by the percentage change, if any, in the total surcharges.
B. Commercial and Roll -Off Surcharges. For commercial customers, the per -
customer surcharge rate shall be increased or decreased by the percentage change, if
any, in the total surcharges.
7.3.5.3 Total Monthly Surcharge Rate. The total monthly surcharge rate shall be the
sum of the monthly curbside recycling and green waste per can rate multiplied by the
number of cans plus the monthly other surcharge per can rate multiplied by the number
of cans and by the appropriate factor (hard -to -serve, distance from the curb, and/or low
income discount).
7.3.6 Total Monthly Service Rate
The total monthly service rate shall be the sum of the monthly collection rate plus the
monthly disposal rate plus the monthly curbside recycling and green waste rate plus
the monthly surcharge rate.
7.4 Variances from Projections
The Company assumes all risk of variations from the revenue projection such that the
Company shall retain any revenue from actual revenue being greater than projected but
shall not be compensated for actual revenue being less than projected. In addition,
calculations of the rates shall not be adjusted for past variances of actual revenues from
those projected.
36
7.5 Schedule
The Company shall submit its annual Calculation of Rate Adjustment on or before
March 1 of each year for the following Rate Year. The City shall use its best efforts to
make the adjustment effective by July 1 of the following year. However, the City shall
not make any retroactive adjustments to compensate for any delay in calculating the
rates which results in whole or in part from the failure of the Company to submit its
request by March 1 and/or respond promptly and completely to requests of the City
for information related to any of the calculations required by this Section. The City
shall make retroactive CPI adjustments calculated in accordance with Section 7.3 to
compensate for any delay in processing and approving the calculation of the Rate
Adjustment that is the sole responsibility of the City.
7.6 Interim Rate Adjustment
In the event the City directs the Company to change its operations in accordance with
Section 3.2.5 of this Agreement or in the event of an extraordinary or unanticipated
event including a change in law, a change in Disposal Site, or an extraordinary
adjustment to the Disposal Rate, and such adjustment materially affects the Company's
annual cost of operations then the Company or the City may submit a request for an
interim Rate adjustment. In such case, the Company shall provide City with its
calculations of the impact of the change in a format approved by the City. Any
proposed change in the approved Rates shall be subject to City review and approval.
Nothing in this section shall be construed to require City to accept Company's
calculations as correct.
7.7 Subsequent Rates
From time to time and based on changes to the Rates, as described above, and other
considerations, the City Council shall revise the rates by resolution or ordinance, as
determined in the good faith exercise of its legislative discretion.
37
Q4A,
ARTICLE 8
REVIEW OF SERVICES AND PERFORMANCE
8.1 Performance Hearing
City may hold a public hearing on or about ninety (90) days after receipt of the Annual
Report from Company at which time Company shall be present and shall participate, to
review the Refuse Collection, services and overall performance. The purpose of the
hearing is to provide for a discussion and review of technological, economic, and
regulatory changes in Collection to achieve a continuing, advanced Refuse Collection
system; and to ensure services are being provided with adequate quality, effectiveness
and economy.
Forty-five (45) days after receiving notice from City of a Refuse Services and
Performance Review Hearing, Company shall, at a minimum, submit a report to City
indicating the following:
a) Changes recommended and/or new services to improve City's Collection
Services and to contain costs and minimize impacts on rates.
b) Any specific plans for provision of changed or new services by Company.
The reports required by this Agreement regarding customer complaints may be used as
one basis for review. Company may submit other relevant performance information
and reports for consideration. City may request, and Company shall submit, specific
information related to the performance for the hearing. In addition, any customer may
submit comments or complaints during or before the hearing, either orally or in writing,
and these shall be considered.
Topics for discussion and review at the Refuse Services and Performance Review
Hearing shall include, but shall not be limited to, services provided, feasibility of
providing new services, application of new technologies, customer complaints,
amendments to this Agreement, developments in the law, regulatory constraints and
Company performance. City and Company may each select additional topics for
discussion at any Refuse Services and Performance Review Hearing.
Not later than sixty (60) days after the conclusion of each Refuse Services and
Performance Review Hearing, City may issue a report. As a result of the review, City
38
may require Company to provide expanded or new services within a reasonable time
and for reasonable rates and compensation, as determined in the City Councils good
faith legislative discretion, and City may direct or take corrective actions for any
performance inadequacies.
39
ARTICLE 9
RECORDS, REPORTS AND INFORMATION REQUIREMENTS
9.1 General
Company shall maintain such accounting, statistical and other records related to its
performance under this Agreement as shall be necessary to develop the financial
statements and other reports required by this Agreement. Also, Company agrees to
conduct data collection, information and record keeping, and reporting activities
needed to comply with applicable laws and regulation and to meet the reporting and
Refuse program management needs of City. To this extent, such requirements set out in
this and other Articles of this Agreement shall not be considered limiting or necessarily
complete. In particular, this Article is intended to only highlight the general nature of
records and reports and is not meant to define exactly what the records and reports are
to be and their content. Further, with the written direction or approval of City, the
records and reports to be maintained and provided by Company in accordance with
this and other Articles of the Agreement shall be adjusted in number, format, or
frequency. The foregoing is not intended to require significant additional
administrative labor or the modification of Company's computer software.
9.2 Records
9.2.1 General
Company shall maintain records required to conduct its operations, to support requests
it may make to City, and to respond to requests from City in the conduct of City
business. Adequate record security shall be maintained to preserve records from events
that can be reasonably anticipated such as a fire, theft and earthquake. Electronically
maintained data/records shall be protected and backed up. All records shall be
maintained for five (5) years after the expiration of this Agreement, with the exception
of accounts payable records, which will be maintained for three (3) years after payment.
Company agrees that the records addressed in the Agreement shall be provided or
made available to City and its official representatives during normal business hours.
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9.2.2 Financial Records
Financial records shall be maintained in a manner such that cost and revenue
information can be allocated among the service types (residential, commercial and drop
box) and to the City.
9.2.3 Refuse Records
Records shall be maintained by Company for City relating to:
a) Customer services and billing;
b) Weight and volume of Refuse. Information is to be separated between Single -
Family Dwelling Units from Commercial premises.
c) Special annual cleanup event results;
d) Routes;
e) Facilities, equipment and personnel used;
f) Facilities and equipment operations, maintenance and repair;
g) Disposal of Refuse;
h) Complaints; and,
i) Missed pick ups.
9.2.4 CERCLA Defense Records
City views the ability to defend against CERCLA (Comprehensive Environmental
Response, Compensation, and Liability Act of 1980, 42 USC §9601, et seq.) and related
litigation as a matter of great importance. For this reason, the City regards the ability to
prove where Refuse Collected in the City was taken ,for Disposal, as well as where it
was not taken, to be matters of concern. Company shall maintain data retention and
preservation systems which can establish where Refuse Collected in the City was
landfilled (and therefore establish where it was not landfilled) and provide a copy or
summary of the reports required in Section 5.6 for five (5) years after the term during
which Collection services are to be provided pursuant to this Agreement, or to provide
copies of such records to City. Company agrees to notify City's Risk Manager and City
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Attorney before destroying such records. This provision shall survive the expiration of
the period during which Collection services are to be provided under this Agreement.
9.2.5 Disposal Records
Company shall maintain records of Disposal of all Refuse Collected in City for the
period of this Agreement and all extensions to this Agreement or successor
Agreements. In the event Company discontinues providing Refuse services to City,
Company shall provide all records of Disposal or processing of all Refuse Collected in
City within thirty (30) days of discontinuing service. Records shall be in chronological
and organized form and readily and easily interpreted.
9.3 Reports
9.3.1 Report Formats and Schedule
Records shall be maintained in forms and by methods that facilitate flexible use of data
contained in them to structure reports, as needed. Reports are intended to compile
recorded data into useful forms of information that can be used to, among other things:
a) Determine and set rates and evaluate the financial efficacy of operations;
b) Evaluate past and expected progress towards achieving AB 939 goals and
objectives;
c) Determine needs for adjustment to programs; and,
d) Evaluate customer service and complaints.
Company may propose report formats that are responsive to the objectives and
audiences for each report. The format of each report will be mutually agreed upon by
City and Company. Company agrees to submit all reports on computer discs in a
mutually agreed upon format at no additional charge, if requested by City. Company
will provide a certification statement, under penalty of perjury, by the responsible
Company official, that the report being submitted is true and correct.
Monthly reports shall be submitted within thirty (30) calendar days after the end of the
report month. Quarterly reports shall be submitted within forty-five (45) calendar days
after the end of the quarter. Quarters end on September 30, December 31, March 31,
and June 30,. Annual reports shall be submitted before September 30th following the
reporting year.
Q4(k
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All reports shall be submitted to:
City Manager (or designated representative)
Town of Los Gatos
208 E. Main Street
Los Gatos, CA 95031
9.3.2 Quarterly Reports
The information listed shall be the minimum reported for each service:
A. Regular Services
1) Refuse Collected by Company, sorted between Single -Family Dwelling
Units and Commercial and Industrial Premises and the Disposal Site used,
in tons.
2) Complaint summary, for month and cumulative for report year,
summarized by nature of complaints.
3) Narrative summary of problems encountered (including scavenging) and
actions taken with recommendations for City, as appropriate.
4) A summary or copy of the Hazardous Waste records required under
Section 5.6.
5) Other information or reports that City may reasonably request or require.
B. Summary Assessment. Provide a summary assessment of the overall Refuse
program from Company's perspective relative to financial and physical status of
program. The physical status is to relate to how well the program is operating for
efficiency, economy and effectiveness relative to meeting all the goals and objectives of
this Agreement and AB 939. Provide recommendations and plans to improve.
Highlight significant accomplishments and problems.
9.3.3 Annual Report
The Annual Report is to be essentially in the form and content of the quarterly reports.
In addition, Company's annual audited/reviewed financial reports/statements shall be
included. The annual report shall also include a list of Company's officers and
members of its board of directors.
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9.3.3.1 Financial Statements. Financial statements shall show Company's results of
operations on a combined basis for the Cities of Campbell, Monte Sereno, Saratoga and
the Town of Los Gatos, including the specific revenues and expenses in connection with
the operations provided for in this Agreement and others included in such financial
statements. The financial statements and footnotes shall be prepared in accordance
with Generally Accepted Accounting Principles (GAAP). The financial statements shall
be reviewed or audited, on an alternating basis annually in accordance with Generally
Accepted Auditing Standards (GAAS) by a certified public accountant (CPA) licensed
(in good standing) to practice public accounting in the State of California as determined
by the State of California Department of Consumer Affairs Board of Accountancy. The
CPA opinion on Company's audited financial statements shall be unqualified. The first
review shall be performed for fiscal year 1996-97 and the first audit shall be performed
for the fiscal year 1997-98.
9.4 Adverse Information
A. Reporting Adverse Information. Company shall provide City two copies (one
to the City Manager, one to the City Attorney) of all reports, pleadings, applications,
notifications, Notices of Violation, or other formal actions relating specifically to
Company's performance of services pursuant to this Agreement, submitted by
Company to, or received by Company from, the United States or California
Environmental Protection Agency, the California Integrated Waste Management Board,
the Securities and Exchange Commission or any other federal, state or local agency,
including any federal or state court actions brought by any of the aforementioned
agencies, with regard to Company's operations in the State of California. Copies shall
be submitted to City simultaneously with Company's filing or submission of such
matters with said agencies. Company's routine correspondence to said agencies need
not be routinely submitted to City, but shall be made available to City promptly upon
City's written request.
B. Failure to Report. The refusal or failure of Company to file any required reports,
or to provide required information to City, or the inclusion of any materially false or
misleading statement or representation by Company in such report shall be deemed a
material breach of the Agreement as described in Section 11.1 and shall subject
Company to all remedies which are available to the City under the Agreement or
otherwise.
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ARTICLE 10
INDEMNIFICATION, INSURANCE AND BOND
10.1 Indemnification
Company hereby agrees to and shall indemnify and hold harmless City, its elected and
appointed boards, commissions, officers, employees, and agents (collectively,
indemnities) from and against any and all loss, liability, penalty, forfeiture, claim,
demand, action, proceeding or suit in law or equity of any and every kind and
description (including, but not limited to, injury to and death of any Person and
damage to property, or for contribution or indemnity claimed by third parties) arising
or resulting from and in any way connected with (1) the negligence or willful
misconduct of Company, its officers, employees, agents, contractors and/or
subcontractors in performing services under this Agreement; (2) the failure of
Company, its officers, employees, agents, contractors and/or subcontractors to comply
in all respects with the provisions of this Agreement, applicable laws (including,
without limitation, the Environmental Laws), ordinances and regulations, and/or
applicable permits and licenses; (3) the acts of Company, its officers, employees, agents,
contractors and/or subcontractors in performing services under this Agreement for
which strict liability is imposed by law (including, without limitation, the
Environmental Laws). The foregoing indemnity shall apply regardless of whether such
loss, liability, penalty, forfeiture, claim, demand, action, proceeding, suit, injury, death
or damage is also caused in part by any of the indemnitees' negligence, but shall not
extend to matters resulting from the indemnitees' negligence, willful misconduct or
breach of this Agreement. Company further agrees to and shall, upon demand of City,
at Company's sole cost and expense, defend (with attorneys acceptable to City) City, its
elected and appointed boards and commissions, officers, employees, and agents against
any claims, actions, suits in law or equity or other proceedings, whether judicial, quasi-
judicial or administrative in nature, arising or resulting from any of the aforementioned
events.
Company, upon demand of the City, made by and through the City Attorney, shall
protect City and appear in and defend the City and its elected officials, officers,
employees and agents, in any claims or actions by third parties, whether judicial,
administrative or otherwise, including, but not limited to disputes and litigation over
the definitions of "Refuse" or the limits of City's authority with respect to the grant of
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licenses, or agreements, exclusive or otherwise, asserting rights under the Dormant
Commerce Clause or federal or state laws to provide Refuse services in the City. This
provision shall survive the expiration of the period during which Collection services are
to be provided under this Agreement. City and Company agree to confer following any
trial to decide jointly whether to appeal or to oppose any appeal. In the event City and
Company jointly agree to appeal, or to oppose any appeal, City and Company agree to
share equally the costs of appeals. Should either City or Company decide to appeal, or
to oppose an appeal, and the other decide not to appeal, or to oppose an appeal, the
party which decides to appeal, or to oppose an appeal, shall bear all fees and costs of
the appeal or the opposition to the appeal.
Company's duty to indemnify and defend from the aforementioned events arising
during the Term of the Agreement and as it may be extended shall survive the
expiration or earlier termination of this Agreement.
10.2 Hazardous Substances Indemnification
Company shall indemnify, defend with counsel reasonably acceptable to City, protect
and hold harmless City, its elected and appointed boards, commissions, officers,
employees, and agents (collectively, Indemnitees) from and against all claims, damages
(including but not limited to special, consequential, natural resources and punitive
damages), injuries, costs, (including without limit any and all response, remediation
and removal costs), losses, demands, debts, liens, liabilities, causes of action, suits, legal
or administrative proceedings, interest, fines, charges, penalties, attorney's fees for the
adverse party and expenses (including without limit attorneys' and expert witness fees
and costs incurred in connection with defending against any of the foregoing or in
enforcing this indemnity), (collectively, "Damages") of any kind whatsoever paid,
incurred or suffered by, or asserted against, Indemnities arising from or attributable to
the acts or omissions of Company, its officers, directors, employees, companies or
agents, whether or not negligent or otherwise culpable, in connection with or related to
the performance of this Agreement, including without limit Damages arising from or
attributable to any repair, cleanup or detoxification, or preparation and implementation
of any removal, remedial, response, closure or other plan (regardless of whether
undertaken due to governmental action) concerning any Hazardous Substance,
Hazardous Waste, and/or Household Hazardous Waste (Collectively, "Waste") at any
places where Company Collects and transports, processes, stores, or disposes of City
Refuse, and/or construction and street debris, or other waste. The foregoing indemnity
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shall not apply to the processing, storage, or disposal of City Refuse, and/or
construction and street debris, or other waste, unless the Company is engaging in those
activities. The foregoing indemnity is intended to operate as an agreement pursuant to
§107(e) of the Comprehensive Environmental Response, Compensation and Liability
Act, CERCLA, 42 USC. §9607(e) and California Health and Safety Code §25364, to
defend, protect, hold harmless, and indemnify City from liability. This provision is in
addition to all other provisions in this Agreement and shall survive the end of the term
of this Agreement. The foregoing applies only to facilities owned or operated by
Company pursuant to this Agreement.
10.3 Insurance
City does not, and shall not, waive any rights against Company which it may have by
reason of the aforesaid hold harmless agreements, because of acceptance by City or the
deposit with City by Company of the insurance policies described in this provision.
Company shall maintain insurance policies meeting the following specifications at all
times during the term of this Agreement.
A. Minimum Scope of Insurance. Coverage shall be at least as broad as:
1) The most recent editions of Insurance Services Office form number GL
0002 covering Comprehensive General Liability and Insurance Services
Office form number GL 0404 covering Broad Form Comprehensive
General Liability; or Insurance Services Office Commercial General
Liability coverage ("occurrence" form CG 0001).
2) The most recent editions of Insurance Services Office form number CA
0001 covering Automobile Liability, code 1 "any auto" and endorsement
CA 0025.
3) Workers' Compensation insurance as required by the Labor Code of the
State of California and Employers Liability insurance.
B. Minimum Limits of Insurance. Company shall maintain in force for the term of
this Agreement limits no less than:
1) Comprehensive General Liability: Five Million Dollars ($5,000,000)
combined single limit per occurrence for bodily injury, Personal injury
and property damage.
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2) Automobile Liability: Five Million Dollars ($5,000,000) combined single
limit per accident for bodily injury and property damage.
3) Workers' Compensation and Employers Liability: Workers' compensation
limits as required by the Labor Code of the State of California and
Employers Liability limits of $1,000,000 per accident.
C. Deductibles and Self -Insured Retentions. If Company wants to increase its
deductibles over the amount as of the Effective Date of this Agreement, the Company
shall obtain the written consent of the City. City's consent will not be unreasonably
withheld.
D. Other Insurance Provisions. The policies are to contain, or be endorsed to
contain, the following provisions:
1) General Liability and Automobile Liability Coverages
a) City, its elective and appointive boards, commissions, officials,
employees, agents and volunteers are to be named as additional
insureds as respects: liability arising out of activities performed by
or on behalf of Company; products and completed operations of
Company; Premises owned, leased or used by Company; or vehicles
owned, leased, hired or borrowed by Company. The coverage shall
contain no special limitations on the scope of protection afforded to
City, its elective and appointive boards, commissions, officials,
employees, agents or volunteers.
b) Company's insurance coverage shall be primary insurance as
respects City, its elective and appointive boards, commissions,
officials, employees, agents and volunteers. Any insurance or self-
insurance maintained by City, its officials, elective and appointive
boards, commissions, employees, agents or volunteers shall be
excess of Company's insurance and shall not contribute with it.
c) Any failure to comply with reporting provisions of the policies shall
not affect coverage provided to City, its officials, elective and
appointive boards, commissions, employees, agents or volunteers.
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d) Coverage shall state that Company's insurance shall apply
separately to each insured against whom claim is made or suit is
brought, except with respect to the limits of the insurer's liability.
2) Workers' Compensation and Employers Liability Coverage - The insurer
shall agree to waive all rights of subrogation against City, its officials,
elective and appointive boards, commissions, employees, agents and
volunteers for losses arising from work performed by Company for City.
3) All Coverages - Each insurance policy required by this clause shall be
endorsed to state that coverage shall not be suspended, voided, canceled
by either party, reduced in coverage or in limits except after thirty (30)
days' prior written notice by certified mail, return receipt requested, has
been given to City.
E. Acceptability of Insurers. The insurance policies required by this Section shall
be issued by an insurance company or companies authorized to do business in the State
of California and with a rating in the most recent edition of Best's Insurance Reports of
size category VII or larger and a rating classification of A or better.
F. Verification of Coverage. Simultaneously with the execution of this Agreement,
Company shall furnish City with certificates of insurance and with original
endorsements affecting coverage required hereunder, in form and substance
satisfactory to City. The certificates and endorsements for each insurance policy are to
be signed by a Person authorized by that insurer to bind coverage on its behalf. Such
certificates and endorsements shall show the type and amount of coverage, effective
date and dates of expiration of policies, and shall have all required endorsements. City
reserves the right to review copies of all required insurance policies, at Los Gatos Town
Hall, upon the reasonable request of the City.
Renewal certificates will be furnished periodically to City to demonstrate maintenance
of the required coverage throughout the Term.
If Company fails to procure and maintain any insurance required by this Agreement,
City may take out and maintain, at Company's expense, such insurance as it may deem
proper.
G. Contractors and Subcontractors. Company shall include all contractors and
subcontractors providing Collection services under this Agreement as insureds under
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its policies or shall furnish separate certificates and endorsements for each contractor
and subcontractor. All coverages for contractors and subcontractors shall be subject to
all of the requirements stated herein. All other subcontractors having face-to-face
contact with the customers shall be required by Company to carry general liability
insurance.
H. Required Endorsements
1) The Workers' Compensation policy shall contain an endorsement in
substantially the following form:
"Thirty (30) days prior written notice by certified mail, return receipt
requested, shall be given to City in the event of cancellation, reduction in
coverage, or non -renewal of this policy. Such notice shall be sent to:
City Manager
Town of Los Gatos
208 E. Main Street
Los Gatos, CA 95031
2) The Public Liability policy shall contain endorsements in substantially the
following form:
a) "Thirty (30) days prior written notice by certified mail, return receipt
requested, shall be given to City in the event of cancellation, reduc-
tion in coverage, or non -renewal of this policy. Such notice shall be
sent to:
City Manager
Town of Los Gatos
208 E. Main Street
Los Gatos, CA 95031
b) "City, its officers, elective and appointive boards, commissions,
employees, and agents are additional insureds on this policy."
c) "This policy shall be considered primary insurance as respects any
other valid and collectible insurance maintained by City, including
any self -insured retention or program of self-insurance, and any
other such insurance shall be considered excess insurance only."
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d) "Inclusion of City as an insured shall not affect City's rights as
respects any claim, demand, suit or judgment brought or recovered
against Company. This policy shall protect Company and City in
the same manner as though a separate policy had been issued to
each, but this shall not operate to increase Company's liability as set
forth in the policy beyond the amount shown or to which Company
would have been liable if only one party had been named as an
insured."
10.4 Faithful Performance Bond
Company shall deposit either a letter of credit or a performance bond (collectively
referred to as "Performance Bond") in the amount of Three Hundred Thirty Five
Thousand Dollars ($335,000). The letter of credit or Performance Bond shall be in a
form acceptable to the City (see Exhibit 5). The Performance Bond shall serve as
security for the faithful performance by Company of all the provisions and obligations
of this Agreement.
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ARTICLE 11
CITY'S RIGHT TO PERFORM SERVICE
11.1 General
In the event that Company, for any reason whatsoever, fails, refuses or is unable to
Collect or transport any or all Refuse which it is required by this Agreement, at the time
and in the manner provided in this Agreement, for a period of more than forty-eight
(48) hours, and if, as a result thereof, Refuse should accumulate in City to such an
extent, in such a manner, or for such a time that City should find that such
accumulation endangers or menaces the public health, safety or welfare, then City shall
have the right, but not the obligation, upon twenty-four (24) hour prior written notice to
Company during the period of such emergency as determined by City, (1) to perform,
or cause to be performed, such services itself with its own or other personnel without
liability to Company; and/or (2) to take temporary possession of any or all of
Company's land, equipment and other property used or useful in the Collection and
transportation of Refuse, and to use such property to Collect and transport any Refuse
generated within City which Company would otherwise be obligated to Collect and
transport pursuant to this Agreement.
If Refuse accumulates in City to such an extent, in such a manner or for such a time that
City finds that such accumulation represents an immediate danger or menace to the
public health safety or welfare, City shall not be required to provide the twenty-four
(24) hour prior written notice set forth above in order to take the above actions.
Notice of Company's failure, refusal or neglect to Collect and transport Refuse may be
given orally by telephone to Company at its principal office and shall be effective
immediately. Written confirmation of such oral notification shall be sent to Company
within twenty-four (24) hours of the oral notification.
Company further agrees that in such event:
A. It will take direction from City to effect the transfer of possession of equipment
and property to City for City's use.
B. It will, if City so requests, keep in good repair and condition all of such
equipment and property, provide all motor vehicles with fuel, oil and other service, and
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provide such other service as may be necessary to maintain said property in operational
condition.
C. City may immediately engage all or any personnel necessary or useful for the
Collection and transportation of Refuse, including, if City so desires, employees
previously or then employed by Company, Company further agrees, if City so requests,
to furnish City the services of any or all management or office Personnel employed by
Company whose services are necessary or useful for Refuse Collection, transportation,
processing and disposal operations and for the billing and Collection of fees for these
services.
City agrees that it assumes complete responsibility for the proper and normal use of
such equipment and facilities while in its possession.
If the interruption or discontinuance in service is caused by any of the reasons listed in
Section 12.4, City shall pay to Company the reasonable rental value of the equipment
and facilities, possession of which is taken by City, for the period of City's possession, if
any, which extends beyond the period of time for which Company has rendered bills in
advance of service, for the class of service involved.
Except as otherwise expressly provided in the previous paragraph, City's exercise of its
rights under this Article 11 (1) does not constitute a taking of private property for which
compensation must be paid; (2) will not create any liability on the part of City to
Company; and (3) does not exempt Company from any of the indemnity or insurance
provisions of this Agreement, which are meant to extend to circumstances arising under
this Section, provided that Company is not required to indemnify City against claims
and damages arising from the negligence or willful misconduct of City, its elective and
appointive boards, commissions, officers, employees and agents in the operation of
Collection vehicles during the time City has taken possession of such vehicles.
11.2 Temporary Possession of Company's Property
If City suffers an interruption or discontinuance of service (including interruptions and
discontinuance due to events described in. Section 12.4), City may take possession of
and use all of Company's property described above until other suitable arrangements
can be made for the provision of Refuse Services.
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11.3 Billing and Compensation to City During City's Possession
During such time that City is providing Refuse services, as above provided, Company
shall bill and Collect payment from all users of the above -mentioned services as
described in Section 6.1. Company further agrees that, in such event, it shall reimburse
City for any and all costs and expenses incurred by City beyond that billed and received
by Company in taking over possession of the above -mentioned equipment and
property for Refuse service in such manner and to an extent as would otherwise be
required of Company under the Terms of this Agreement. Such reimbursement shall be
made from time to time after submission by City to Company of each statement listing
such costs and expenses, but in no event later than five (5) working days from and after
each such submission.
11.4 City's Right to Relinquish Possession
It is further mutually agreed that City may at any time at its discretion relinquish
possession of any or all of the above -mentioned property to Company and thereupon
demand that Company resume the Refuse services as provided in this Agreement,
whereupon Company shall be bound to resume the same.
11.5 Duration of City's Possession
City's right pursuant to this Article to retain temporary possession of Company's
facilities and equipment, and to render Collection services, shall terminate when the
event which caused the taking possession under 11.1 is cured and the Performance
Bond is fully restored. In any case, City has no obligation to maintain possession of
Company's property or equipment and/or continue its use for any period of time and
may at any time, in its sole discretion, relinquish possession to Company.
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ARTICLE 12
DEFAULT, REMEDIES AND LIQUIDATED DAMAGES
12.1 Events of Default
All provisions of the Franchise and this Agreement to be performed by Company are
considered material. Each of the following shall constitute an event of default.
A. Fraud or Deceit. If Company practices, any fraud or deceit upon City.
B. Insolvency or Bankruptcy. If Company becomes insolvent, unable, or unwilling
to pay its debts, or upon listing of an order for relief in favor of Company in a
bankruptcy proceeding.
C. Failure to Maintain Coverage. If Company fails to provide or maintain in full
force and effect the Workers' Compensation, liability, or indemnification coverage as
required by this Agreement unless such insurance becomes unavailable.
D. Violations of Regulation. If Company violates any orders or filings of any
regulatory body having jurisdiction over Company, which orders or filings have a
material impact on Company's ability to perform this Agreement, provided that
Company may contest any such orders or filings by appropriate proceedings conducted
in good faith, in which case no breach of the Franchise and this Agreement shall be
deemed to have occurred.
E. Failure to Perform. If Company ceases to provide Collection services as required
under this Agreement for a period of two (2) consecutive days or more, for any reason
within the control of Company, including labor disputes. If City performs service
under Article 11, the Company's failure to perform shall not be considered a default.
F. Failure to Pay. If Company fails to make any payments required under this
Agreement and/or Refuses to provide City with required information, reports, and/or
records in a timely manner as provided for in the Agreement.
G. Acts or Omissions. Any other act or omission by Company which violates the
terms, conditions, or requirements of this Agreement, the California Integrated Waste
Management Act of 1989, as it may be amended from time to time, or any law, statute,
ordinance, order, directive, rule, or regulation issued thereunder and which is not
corrected or remedied within the time set in the written notice of the violation or, if
55
Company cannot reasonably correct or remedy the breach within the time set forth in
such notice, if Company should fail to commence to correct or remedy such violation
within the time set forth in such notice and diligently effect such correction or remedy
thereafter.
H. False or Misleading Statements. Any material representation or disclosure
made to City by Company in connection with or as an inducement to entering into this
Agreement, or any future amendment to this Agreement, which proves to be false or
misleading in any material respect as of the time such representation or disclosure is
made, whether or not any such representation or disclosure appears as part of this
Agreement.
I. Attachment. There is a seizure of, attachment of, or levy on, the operating
equipment of Company, including without limits its equipment, maintenance or office
facilities, or any part thereof.
J. Failure to Provide Assurance of Performance. If Company fails to provide
reasonable assurances of performance as required under Section 12.6.
Company shall be given forty-eight (48) hours from notification by City to cure any
default arising under subsections C, E, F, I, and J provided, however, that the City shall
not be obligated to provide Company with a notice and cure opportunity if the
Company has committed the same or similar breach within a twenty-four (24) month
period.
12.2 Right to Terminate Upon Default
In the event that Company should default and subject to the right of the Company to
cure, in the performance of any provisions of this contract, and the default is not cured
within forty-eight (48) hours from notification of default from City for any default
arising under Section 11.1.C., E, F, I, or J, or ten (10) days' notice if the public health or
safety is threatened, or otherwise thirty (30) days after receipt of written notice of
default from the City, then the City may, at its option, hold a hearing at its next
practically available City Council meeting to determine whether this contract should be
terminated. In the event City decides to terminate this contract, City shall serve thirty
(30) days' written notice of its intention to terminate upon Company. In the event City
exercises its right to terminate this contract, City may, at its option, either directly
undertake performance of the services or arrange with other persons to perform the
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94,
services with or without a written agreement. This right of termination is in addition to
any other rights of City upon a failure of Company to perform its obligations under this
Agreement.
City's right to terminate this Agreement and to take possession of Company's Facility
are not exclusive, and City's termination of this Agreement shall not constitute an
election of remedies. Instead, they shall be in addition to any and all other legal and
equitable rights and remedies which City may have.
By virtue of the nature of this Agreement, the urgency of timely continuous and high -
quality service, the time required to effect alternative service, and the rights granted by
City to Company, the remedy of damages for a breach hereof by Company may be
inadequate and City may seek injunctive relief.
12.3 Liquidated Damages
The provisions of this Section 12.3 shall not apply until July 1, 1998. The Company shall
gather data during the period July 1, 1997, and June 30,1998, necessary to establish the
standards contained in Section 12.3.B.1 and 12.3.B.2, below. Such data shall be subject
to the review and approval of City.
A. General. The City finds, and Company agrees, that as of the time of the
execution of this Agreement, it is impractical, if not impossible, to reasonably ascertain
the extent of damages which shall be incurred by City as a result of a breach by
Company of its obligations under this Agreement. The factors relating to the
impracticability of ascertaining damages include, but are not limited to, the fact that: (i)
substantial damage results to members of the public who are denied services or denied
quality or reliable service; (ii) such breaches cause inconvenience, anxiety, frustration,
and deprivation of the benefits of the Agreement to individual members of the general
public for whose benefit this Agreement exists, in subjective ways and in varying
degrees of intensity which are incapable of measurement in precise monetary terms; (iii)
that Franchised services might be available at substantially lower costs than alternative
services and the monetary loss resulting from denial of services or denial of quality or
reliable services is impossible to calculate in precise monetary terms; and (iv) the
termination of this Agreement for such breaches, and other remedies are, at best, a
means of future correction and not remedies which make the public whole for past
breaches.
57
B. Service Performance Standards; Liquidated Damages for Failure to Meet
Standards. The parties further acknowledge that consistent, reliable Refuse Collection
service is of utmost importance to City and that City has considered and relied on
Company's representations as to its quality of service commitment in awarding the
Franchise to it. The parties further recognize that some quantified standards of
performance are necessary and appropriate to ensure consistent and reliable service and
performance. The parties further recognize that if Company fails to achieve the
performance standards, or fails to submit required documents in a timely manner, City
and its residents will suffer damages and that it is and will be impractical and extremely
difficult to ascertain and determine the exact amount of damages which City will suffer.
Therefore, without prejudice to City's right to treat such non-performance as an event of
default under this Article 12, the parties agree that the following liquidated damage
amounts represent a reasonable estimate of the amount of such damages considering all
of the circumstances existing on the date of this Agreement, including the relationship
of the sums to the range of harm to City that reasonably could be anticipated and the
anticipation that proof of actual damages would be costly or impractical. In placing
their initials at the places provided, each party specifically confirms the accuracy of the
statements made above and the fact that each party has had ample opportunity to
consult with legal counsel and obtain an explanation of the liquidated damage
provisions at the time that the Agreement was made.
Company City
Initial Here I1 ' Initial Here
Company agrees to pay (as liquidated damages and not as a penalty) the amounts set
forth below:
1. Collection Reliability
a) For each failure to commence service to a new customer
account within seven (7) days after order, which exceed
such failures annually:
b) For each failure to Collect Refuse, which has been properly
set out for Collection, from an established customer account
on the scheduled Collection day and not Collected within
the period described in this Agreement which exceeds
such failures annually:
$150.00
$150.00
58
c) For each failure to Collect Refuse, which has been properly
set out for Collection, from the same customer on two (2)
consecutive scheduled pickup days: $150.00
d) For each failure to prepare for or properly conduct Annual
Cleanups including advertising and press releases: $250.00
e) For each failure to perform and submit billing reviews: $250.00
2. Collection Quality
a) For each occurrence of damage to private property which
exceeds such occurrences annually: $250.00
b) For each occurrence of failure to properly return empty
Containers to avoid pedestrian or vehicular traffic
impediments or to place cans upright with lids secured
which exceeds ten such occurrences annually: $150.00
c) For each occurrence of excessive noise or discourteous
behavior: $250.00
d) For each failure to clean up Refuse spilled from Containers
which exceeds such failures annually: $150.00
e) For each occurrence of Collecting Refuse during
unauthorized hours which exceeds such occurrences
annually: $250.00
3. Customer Responsiveness
a) For each failure to initially respond to a customer complaint
within one (1) business day: $100.00
b) For each failure to process customer complaints to City as
required by Article 5: $500.00
c) For each failure to carry out responsibilities for establishing
service: $500.00
59
4. Timeliness of Submissions to City
Any report shall be considered late until such time as a correct and complete
report is received by City. For each calendar day a report is late, the daily
liquidated damage amount shall be:
a) Quarterly Reports:
b) Annual Reports:
5. Process
$100 per day
$350 per day
Liquidated damages will only be assessed after Company has been given the
opportunity but failed to rectify the damages as described in this Agreement.
City may determine the occurrence of events giving rise to liquidated damages
through the observation of its own employees or representative or investigation
of customer complaints.
Prior to assessing liquidated damages, City shall give Company notice of its
intention to do so. The notice will include a brief description of the
incident(s)/non-performance. Company may review (and make copies at its
own expense) all information in the possession of City relating to
incident(s)/non-performance. Company may, within ten (10) days after
receiving the notice, request a meeting with City. Company may present
evidence in writing and through testimony of its employees and others relevant
to the incident(s)/non-performance. City will provide Company with a written
explanation of its determination on each incident(s) /non-performance prior to
authorizing the assessment of liquidated damages. The decision of City shall be
final.
C. Amount. City may assess liquidated damages for each calendar day or event, as
appropriate, that Company is determined to be liable in accordance with this
Agreement.
D. Timing of Payment. Company shall pay any liquidated damages assessed by
City within ten (10) days after they are assessed. If they are not paid within the ten (10)
day period, City may proceed against the performance bond required by the Agreement
or order the termination of the Franchise granted by this Agreement, or both.
60�,
12.4 Excuse from Performance
The parties shall be excused from performing their respective obligations hereunder in
the event they are prevented from so performing by reason of floods, earthquakes, other
natural disasters, war, civil insurrection, riots, acts of any government (including
judicial action), and other similar catastrophic events which are beyond the control of
and not the fault of the party claiming excuse from performance hereunder. Labor
unrest, including, but not limited to, strike, work stoppage or slowdown, sick-out,
picketing, or other concerted job action conducted by Company's employees or directed
at Company is not an excuse from performance and Company shall be obligated to
continue to provide service notwithstanding the occurrence of any or all of such events.
The party claiming excuse from performance shall, within two (2) days after such party
has notice of such cause, give the other party notice of the facts constituting such cause
and asserting its claim to excuse under this Section.
The interruption or discontinuance of Company's services caused by one or more of the
events excused shall not constitute a default by Company under this Agreement.
Notwithstanding the foregoing, however, if Company is excused from performing its
obligations hereunder for any of the causes listed in this Section for a period of seven (7)
days or more, City shall nevertheless have the right, in its sole discretion, to terminate
this Agreement by giving ten (10) days' notice, in which case the provisions relative to
taking possession of Company's land, equipment and other property and engaging
Company's Personnel in Article 10 and this Article 11 will apply.
12.5 Notice, Hearing and Appeal of City Breach
Should Company contend that City is in breach of this Agreement, it shall file with the
City Manager a written request with City for an administrative hearing. Said request
shall be made within ninety (90) days of the event or incident which allegedly gave rise
to the breach. City shall notify Company of the time and date said hearing shall be held
within thirty (30) days of receipt of Company's request. Company shall present its
position and all relevant facts after City staff has made its presentation. Company shall
be notified of City's ruling in writing within fourteen (14) days of the administrative
hearing.
If Company is not in agreement with the ruling issued by City at the administrative
hearing, it shall have the right to appeal this ruling to the City Council or to a three (3)
61
94t,
person appeal/review board, one member appointed by the City Council, another
member appointed by Company, and the third member selected by the other two
appointees. This appeal shall be made in writing to City no later than fourteen (14)
days after receipt of the administrative hearing ruling. City shall notify Company of the
time and date the Board will review Company's allegation. Company shall present its
position and all relevant facts after staff has made its presentation. Company shall be
notified in writing within thirty (30) days of the Board's ruling. The Board's ruling shall
be final, and Company shall have no further rights of appeal.
Notwithstanding any other provision to the contrary in this Agreement, Company's
sole remedy for any dispute or claim it may have relating to compensation or rates is to
file a petition for writ of mandate pursuant to C.C.P. Section 1085. Company shall have
no cause of action for damages against City in relation to any such dispute or claim.
12.6 Assurance of Performance
Each party may, at its option and in addition to all other remedies it may have, demand
from the other Party reasonable assurances of timely and proper performance of this
Agreement, citing specific reasons for the Party's concern over the other Party's ability
to perform, in such form and substance as the Party may require. If the other Party fails
or refuses to provide satisfactory assurances of timely and proper performance in the
form and by the date required by the Party, such failure or refusal shall be an event of
default.
62
EXHIBIT 1
PUBLIC FACILITIES
Town of Los Gatos Services
Front Load:
FACILITY ADDRESS # BINS SERVICE P/U WEEK
LG Police Department 110 E. Main 1 3 yard 3
LG Recreation Center 123 E. Main 1 2 yard 1
Neighborhood Center • Main & Fiesta 1 2 yard 3
Museum 4 W. Main 1 1.3 yard 1
Can Service:
ADDRESS SERVICE # P/U WEEK
Bus stop 131 E. Main 1 can 2
Bus stop 230 University 1 can 2
Bus stop 291 E. Main 1 can 2
Bus stop 300 E. Main 1 can 2
Bus stop 316 N. Santa Cruz 1 can 2
Bus stop 332 N. Santa Cruz 1 can 2
Bus stop 333 N. Santa Cruz 1 can 2
Bus stop 375 Knowles 1 can 1
Bus stop 440 N. Santa Cruz 1 can 2
Bus stop 5157 Union 1 can 1
Bus stop 555 Knowles 1 can 1
Bus stop 657 N. Santa Cruz 1 can 2
Bus stop 664 N. Santa Cruz 1 can 2
Bus stop 80 University 1 can 2
Bus stop 815 Pollard 1 can 1
Bus stop E. Main @ Civic Center 1 can 2
Bus stop E. Main @ Police Station 1 can 2
Bus stop Lark & Oka 1 can 1
Bus stop Lark & Oka 1 can 1
Bus stop LG Almaden Road & National 1 can 1
Bus stop LG Almaden Road & Peach Blossom 1 can 1
Bus stop LG Almaden Road & Verde Ct. 1 can 1
Bus stop Los Gatos Blvd @ Anderson Chevy 1 can 1
Bus stop Los Gatos Blvd @ New Town 1 can 1
Bus stop Los Gatos Blvd @ Villiage Square 1 can 1
Bus stop Los Gatos Blvd. across from 371 1 can 1
Bus stop Los Gatos Blvd. @ Cavalry Church 1 can 1
Bus stop Los Gatos -Saratoga & Monterey 1 can 2
Bus stop Winchester @ AAA 1 can 1
Bus stop Winchester @ Elks parking lot 1 can 1
Town Can 100 S. Santa Cruz 1 can 3
Town Can 100 W. Main St. 1 can 3
Town Can 101 W. Main St. 1 can 3
Town Can 101 S. Santa Cruz 1 can 3
Town Can 105 N. Santa Cruz 1 can 3
Town Can 130 N. Santa Cruz 1 can 3
Town Can 133 N. Santa Cruz 1 can 3
Town Can 137 N. Santa Cruz 1 can 3
Town Can 14 E. Main 1 can 3
PAGE 1
Town of Los Gatos Services
Town Can 145 W. Main St. 1 can 3
Town Can 150 N. Santa Cruz 1 can 3
Town Can 151 N. Santa Cruz 1 can 3
Town Can 15695 Los Gatos Blvd. 1 can 1
Town Can 15780 Los Gatos Blvd. 1 can 1
Town Can 15951 Los Gatos Blvd. 1 can 1
Town Can 16 N. Santa Cruz 1 can 3
Town Can 160 W. Main St. 1 can 3
Town Can 1990 LG Almaden Road 1 can 1
Town Can 2 N. Santa Cruz 1 can 3
Town Can 20 Park 1 can 3
Town Can 20 S. Santa Cruz 1 can 3
Town Can 201 N. Santa Cruz 1 can 3
Town Can 204 Los Gatos Blvd. 1 can 1
Town Can 207 Los Gatos Blvd. 1 can 1
Town Can 208 Bachman 1 can 3
Town Can 208 Bachman 1 can 3
Town Can 208 N. Santa Cruz 1 can 3
Town Can 21 E. Main 1 can 3
Town Can 21 N. Santa Cruz 1 can 3
Town Can 224 E. Main 1 can 3
Town Can 227 N. Santa Cruz 1 can 3
Town Can 236 N. Santa Cruz 1 can 3
Town Can 244 E. Main 1 can 3
Town Can 27 E. Main 1 can 3
Town Can 301 N. Santa Cruz 1 can 3
Town Can 34 E. Main 1 can 3
Town Can 37 N. Santa Cruz 1 can 3
Town Can 40 N. Santa Cruz 1 can 3
Town Can 420 N. Santa Cruz 1 can 3
Town Can 470 N. Santa Cruz 1 can 3
Town Can 49 E. Main 1 can 3
Town Can 51 N. Santa Cruz 1 can 3
Town Can 51 University 1 can 3
Town Can 51 University 1 can 3
Town Can 51 University 1 can 3
Town Can 51 University 1 can 3
Town Can 51 University 1 can 3
Town Can 51 University 1 can 3
Town Can 55 N. Santa Cruz 1 can 3
Town Can 58 N. Santa Cruz 1 can 3
Town Can 61 E. Main 1 can 3
Town Can 7 Montebello 1 can 3
Town Can 88 W. Main 1 can 3
Town Can 9 N. Santa Cruz 1 can 3
Town Can E. Main & High School Ct. 1 can 3
Town Can E. Main & High School Ct. 1 can 3
Town Can E. Main & High School Ct. 1 can 3
Town Can Los Gatos Blvd. & Magneson Loop 1 can 1
Town Can Los Gatos Blvd. & Shannon 1 can 1
Town Can Los Gatos Blvd. & Thrifty 1 can 1
Town Can S. Santa Cruz @ Town Plaza 1 can 3
Town Can S. Santa Cruz @ Town Plaza 1 can 3
PAGE 2
A/
Town of Los Gatos Services
Town Can S. Santa Cruz @ Town Plaza 1 can 3
Town Can S. Santa Cruz @ Town Plaza 1 can 3
Town Can S. Santa Cruz @ Town Plaza 1 can 3
Town Can S. Santa Cruz @ Town Plaza 1 can 3
Town Can S. Santa Cruz @ Town Plaza 1 can 3
Town Can S. Santa Cruz @ Town Plaza 1 can 3
Drop -off -box:
SIZE PULLS
18 Cubic yard 388
30 Cubic Yard 12
30 Cubic Yard (yard waste) 50
Locations: Miles Avenue Corporation Yard
Oak Meadow Park
Community Event
Christmas Parade
Cleanup Days
2 per year
PAGE 3
EXHIBIT 2
INITIAL RATES
Town of Los Gatos
1997/98 Residential Rates
Addn'I City City City Disposal Disposal Annual
DAacd61IA9 Ceresuit SlIrchaggge Fran Fear Surcharges Garbage BaseFees Surcharges Yardwasle Curbside Total Revenue
Flatland
1 Low Income 0 - 5'! 26 0.50
1 Can 0 - 5' 5,980 0.74
1 Can 6- 30' 119 0.99
1 Can 31-130' 120: 1.35
1 Can Over 130' 3' 2.52
2 Cans 0 - 5' 968 1.56
2 Cans 6 - 30' 27 2.07
2 Cans 31-130' 20 2.84!
2 Cans Over 130' 1 1 5.28 !
3 Cans 0 - 5' 381
3.2.3816i
3 Cans 6-30' 16'
3 Cans 31-130' 51 4.321
3 Cans Over 130' ! 11 8.051
4 Cans 0-5' 1 101 3.201
4 Cans6-30 ti 4.241
4 Cans 31-130' 21 5.81!
4 Cans Over 130' ; 01 10.82!
5 Cans 0 - 5' 111 4.07
0.46
0.70
0.92
1.26
2.35
1.46
1.94:
2.65 ;
4.951
2.231
2.961
4.05
7.531
2.991
3.97;
5.441
10.131
3.811
0.62
0.94 •
1.24
1.70
3.17
1.97
2.61
3.57
6.65
3.00
3.97
5.44.
10.13!
4.031
5.34 •
7.31
13.611
5.12'
3.36
5.04
6.68 •
9.15
17.03
10.58
14.03
19.21
35.78
16.12
21.38
29.27!
54.511
21.66
28.73
39.33
73.26
27.57
0.47
0.70
0.93
1.27
2.37
1.47
1.95
2.68
4.98 i
2.25
2.981
4.081
7.601
3.021
4.00 i
5.48
10.21
3.84
0.35
0.53
0.70
0.96
1.78
1.11
1.47
2.01
3.74i
1.69
2.24
3.06
5.71 1
2.27!
3.01!
4.121
7.671
2.891
2.89
4.34
4.34
4.34
4.34
9.12.
9.12'
9.12'
9.12!
13.891
13.891
13.891
13.891
18.671
18.67!
18.67!
18.67!
23.44;
1 84
2.76 15.75' 1,130,220.00'
2.76 18.57 26,517.96
2.76 • 22.80 • 32,832.00'
10.50 3,276.00
2.76 36.33: 1,307.88
5.80' 33.07' 384,141.12
5.80' 38.99: 12,632.76:
5.80 47.87: 11,488.80
5.80, 76.30: 915.60'
8.841 50.391 230,383.08 ji
8.841 59.411 11, 406. 721
8.84, 72.95 4,377.001
8.841 116.261 1,395.12''
11.87; 67.71! 8,125.20
11.871 79.83! 957.96
11.871 98.021 2.352.48
11.87 156.23 0.00
14.91 85.66 11,307.12
5 Cans 6 - 30' 1; 5.38! 5.04: 6.77' 36.45 5.08
5 Cans 31-130 21 7.35. 6.88, 9.25 49.76 6.93
5 Cans Over 130' 1 01 13.64! 12.771 17.16 92.36 12.87'
Sub -Total: 7,6941
3.811
5.211
9.671
23.44! 14.91 100.89 1,210.68.
23.441 14.91 ' 123.73 2,969.52
23.441 14.91 ' 196.82 240
1,877,817.00
Hard -to -Serve
1 Can 0-5'
1 Can 6.30'
1 Can 31-130'
1 Can Over 130'
344!
21
6i
01
1.20 i
1.59!
2.161
3.991
1.13
1.48
2.02
3.73
1.52
2.00
2.71
5.02
8.16
10.74
14.61
27.00
1.14
1.501
2.04
3.76'.
0.85
1.12'
1.53 •
2.83;
4.341
4.341
4.341
4.341
2.76
2.761
2.761
2.76'
21.10
25.53 ;
32.17
53.42
87,100.80
612.72
2,316.24'
0.00
2 cans u-0'
691
2.D31 Z.3/i
3.16.
1/.14
Z.39'
1./U:
`l.1Z1
0.6U'
44.32'
41,333.76
2 Cans 6 - 30'
1;
3.33
3.12!
4.19:
22.55
3.14'
2.361
9.121
5.80'
53.61
643.32
2 Cans 31-130' •
0 !
4.53
4.241
5.701
30.68 '
4.28 '
3.211
9.121
5.801
67.56 i
0.00
2 Cans Over 130' 1
01
8.37
7.841
10.54:
56.69
7.90!
5.931
9.12!
5.801
112.19'
0.00
3 Cans 0 - 5' 1
291
3.86
3.611
4.85
26.11 '
3.64
2.731
13.891
8.841
67.53
23,500.44
3 Cans 6 - 30'
0;
5.08
4.7511
6.39'
34.37'
4.79
3.60!
13.891
8.84 i
81.70
0.00
3 Cans 31-130'
2!
6.91
6.461
8.69:
46.76 :
6.51
4.89 i
13.891
8.841
102.951
2.470.80 '
3 Cans Over 130'
0!
12.76
11.941
16.05 :
86.39 '
12.04
9.04 i
13.891
8.841
170.961
0.00
4 Cans 0-5'
1'
5.18
4.851
6.521
35.09
4.89,
3.67!
18.671
11.871
90.75'
1,089.00:
4 Cans 6-30'
1'
6.82
6.38
8.58!
46.18'
6.43!
4.831
18.671
11.871
109.78;
1,317.36
4 Cans31-130'
0'
9.28
8.68
11.68'
62.83;
8.751
6.58!
18.871
11.87!
138.34'
0.00
4 Cans Over 130' 1
01
17.15
16.05!
21.57
116.091
16.17!
12.151
18.67!
11.871
229.72:
0.00
5 Cans 0- 5'
01
6.56
6.141
8.26 •
44.43!
6.19 i
4.651
23.441
14.91 1
114.591
0.00
5 .Cans 6-30'
0!
8.62
8.07!
10.85;
58.37!
8.131
6.111
23.44!
14.911
138.50
0.00.
5 Cans31-130'
0!
11.711 10.96!
14.731
79.27'
11.041
8.301
23.44!
14.91,1
174.36:
0.00;
5 Cans Over 130'
Sub -Total:
01
4751
21.591
20.201
27.16 i
146:15
20.361
15.301
23.441
14.911
289.12' 0.00
166,384.44
Grand -Total: i 8.169!
2A44.2O1.44
Town of Los Gatos
1997/98 Commercial Rates
Addn'I City City City Disposal Disposal Annual
4Co!.[1p11o1 Census gu .6arge6 Era Fn Sumharnas Garbage Base.F,ees Sumitomo Comm.Card Muhl-Eamily Tots! Rare
Commercial-1.3 Yards
1 1 p/u per week 177
6.66
2 2 p/u per week 36 11.49
3 3 p/u per week 7 16.26
4 4 p/u per week 2 21.10.
5 5 p/u per week 1 25.94
6 6 p/u per week 0 30.73
1 Extra Dump 0 1.85
1 Saturday Dump 0 2.02',
Commercial-2 Yards
7.96
13.74.
19.44
25.231
31.02
36.75
2.21
2.42
1.731
2.98 I
4.22 :
5.48:
6.74.
7.98;
0.48 :
0.52
42.39
73.18
103.49
134.31
165.14
195.65
11.77
12.86'
16.71
28.85
40.80
52.95
65.10
77.13
4.64 ,
5.07'
12.56
21.67
30.651
39.78!
48.91.
57.94i
3.491
3.81
3.46
5.97
8.44
10.95
13.46
15.95
0.96
1.05
3.551
6.131
8.67
11.261
13.84!
16.401
0.991
1.081
95.02
164.02
231.97
301.051
370.15
438.53
26.38
28.83
201,822.48;
70,856.64
19,485.48
7,225.20
4,441.80'
0.00
0.00
0.00 ,
1 1 p/u per week 117 9.41 11.26 2.44 I 59.931 23.631 17.751 4.89 ] 5.021
2 2 p/u per week 381 18.65 ; 22.31 4.841 118.761 46.82 !! 35.171 9.681 9.951
3 3p/uperweek 13' 29.92! 35.78 7.77' 190.521 75.111 56.42! 15.53: 15.97!
4 4 p/u per week 1 4; 34.831 41.65 9.04. 221.761 87.431 65.681 18.08 18.591
5 5 p/u per week 01 42.941 51.351 11.15 273.39! 107.781 . 80.971 22.291 22.911
6 6 p/u per week 0 ! 63.631 76.09 i 16.521 405.091 159.701 119.981 33.031 33.951
1 Extra Dump 01 2.611 3.121 0.681 16.62' 6.551 4.92' 1.361 1.391
1 Saturday Dump 01 3.29 ' 3.931 0.85 20.921 8.251 6.191 1.71 1 1.751
Commercial-3 Yards
134.34
266.19
427.03
497.06
612.79.
907.991
37.251
46.88 I
188,613.36
121,382.641
66,616.68';
23,858.881
0.00'
0.00:
0.00 '
0.001
1 1 p/u per week
2 2 p/u per week
3 3 p/u per week
4 4 p/u per week
5 5 p/u per week
6 6 p/u per week
91
58.
51
13
17
8
15.47'1
27.10
39.28
54.051
63.641
78.571
18.501
32.40 I
46.971
64.631
76.101
93.951
4.02
7.04'
10.20
14.03!
16.531
20.401
98.50!
172.51
250.07
344.09
405.18
500.23
38.831
68.01 !
98.591
135.651
159.741
197.21 1
29.17
51.09;
74.06 i
101.911
120.001
148.15';
8.03
14.07
20.39,
28.061
33.041
40.791
8.261
14.461
20.961
28.841
33.961
41.931
220.79
386.68
560.52
771.26
908.19
1,121.231
241,102.681
269,129.28
343,038.24.
120,316.56'
185,270.76
107,638.08:
1
Extra Dump
0
4.281
5.121 1.11,
27.281
10.751
8.08'
2.221
2.29!
61.14'
0.00'
1
Saturday Dump
0 •
4.721
5.641 1.22 ;
30.021
11.841
8.89;
2.451 •
2.521
67.29 i
0.00
c_ortirnerciawaialds
1
!
!
1
1
1 p/u per week :
15
26.731
31.96
6.94 i
170.18:
67.091
50.401
13.88 I
14.261
381.461
68,662.80,
2
2 p/u per week
844..
48.84 I
58.40
12.68 ;
310.931
122.581
92.091
25.351
26.061
696.931
66,905.28 I
3
13 p/u per week
91
75.821
90.66
19.691
482.701
190.301
142.961
39.361
40.461
1,081.941
116,849.52;
4
4 p/u per week
21
102.921
123.07
26.731
655.251
258.331
194.071
53.43!
54.921
1,468.71 '
35,249.04 j
5
.5 p/u per week 1
4 i
127.121
152.01
33.01 1
809.341
319.081
239.701
65.991
67.841
1,814.09
87,076.321
6
6 p/u per week !
1;
151.241
180.85
39.271
962.871
379.601
265.171
76 51 i
on 7n I
ire''7 ,
9G eaA CA i
1 Extra Dump
1 Saturday Dump
Sub -Total:
0!
0'
6721
8.29
9.91
2.151
9.12' 10.91 2.371
52.79
58.071
20.81 1
22.901
15.631
17.20!
4.301
4.74
4.421
4.87'
118.321 0.001
130.17 0.001
2,371,440.361
Commercial -Cans
1'1 p/u per week
40
0.97
1.16
0.251
6.20
2.44
1.84,
0.51
! 0.52'
13.90'
6,672.00!
2 '1 p/u per week
341
1.951
2.33
0.511
12.40
4.89
3.671
1.01
1.04
27.80
11,342.40
3 1 p/u per week
421
2.921
3.49
0.76
! 18.60
7.33
5.511
1.52
1.561
41.70 :
21,016.80 '
4 1 p/u per week 1
7
3.901
4.66
1.011
24.81
9.78
7.35!
2.02
2.081
55.60.
4,670.40 i
5 1 p/u per week '
11
4.871
5.82
1.26
i 31.01
12.22
9.181
2.53
2.601
69.50;
834.00 !
6 1 p/u per week
121
5.841
6.99
1.521
37.21
14.67
11.021
3.03
3.121
83.401
12,009.601
7 1 p/u per week
0
6.82
8.15
1.771
43.40
17.11
12.86 r
3.54
3.641
97.291
0.00
8 1 p/u per week
1
7.791
9.32
2.021
49.61
19.56
14.691
4.04
4.161
111.191
1,334.28;
9 1 p/u per week
4
8.77
10.48
2.281
55.81
22.00
16.531
4.55
4.68
125.09 I
6,004.321
12 1 p/u per week
1 ;
11.691
13.98
3.031
74.41
29.34
22.041
6.07
6.24
166.79
2,001.481
13 1 p/u per week
0'
12.66
15.14
3.29!
80.61.
31.78
23.881
6.57
6.761
180.69
0.00'
151 p/uperweek
1
14.61
17.47
3.791
93.02
36.67
27.551
7.58
7.80j
208.49'
2,501.88'.
18 1 p/u per week
1 I,
17.53
20.97
4.55
111.621
44.01
33.061
9.10
9.36
250.20
3,002.401
34 ;1 p/u per week
11
33.12
39.60
8.60
' 210.85
83.12
62.451
17.19
17.67
472.60
5,671.20 ;
4311 p/u per week
11
41.881
50.081
10.88
266.66 I
105.13
78.981
21.741
22.35'
597.70
7,172.401
5011 p/u per week ,
11
48.701
58.24
12.65
310.07
122.24
91.831
25.281
25.99
695.00
8,340.001
5411 p/u per week
11
52.60I
62.90
13.66
334.871
132.021
99.181
27.301
28.07!
750.60
9,007.201
Cuh_Tn/al•
Ies 1
I
i
! Grand -Total:
2,473,020.72
Town of Los Gatos
1997/98 Drop Off Box Rates
Addn'l City City City Disposal Disposal Annual
Description Census S_ucchargea Fran Few Surct.a.(gra Garbage Bas_e_Fee Surcbarpes Total Revenue
6 Yard Debri Box 5 12.52 19.37 13.78 107.62 38.09. 28.62 220.00 1,100.00
18 Yard Debri Box 886 20.48 • 31.70 22.54 176.11 62.33 46.83 360.00 318,960.00
30'Yard Debri Box 163 28.74 • 44.46 • 31.62 247.05 87.44 65.69 505.00 82,315.00
40 Yard Debri Box 151 32.43 50.19 35.69 278.84 98.70: 74.14 570.00 86,070.00
10 Yard Compactor; 82 14.23 22.01 15.66 122.30 43.29 32.52• 250.00• 20,500.00
12 Yard Compactor 0 17.07 26.41 18.79 146.76 51.95 39.02' 300.00 '0.00 ,
16 Yard Compactor 0 22.76 35.22 25.05 195.68 69.26 52.03. 400.00 0.00
20' Yard Compactor ' 253 28.45 i 44.02 : 31.31 ' 244.601 86.58 i 65.04: 500.00 126,500.00
25 Yard Compactor 1 74 35.561 55.031 39.14 , 305.751 108.22 1 81.301 625.00 , 46,250.00
34 Yard Compactor 1 9 48.371 74.841 53.231 415.821 147.18: 110.57' 850.00; 7,650.00
45 Yard Compactor i 25 64.021 99.051 70.45' 550.351 194.79: 146.34' 1,125.00 • 29.250-00!
Sub -Total: 1,649 718,595.00
Excess Tonnage Revenue
1,417 • Excess Tons i 0.00: 4.311 0.00: 0.001 22.151 16.641 43.10. 6107210
Special Handling Fees
All Jurisdictions
All Services
Charges: 1) Reinstate service fee: $10.00
2) Return check fee: $15.00
Residential
Charges: 1) Return Trip: $15.00
2) Extra can: $5.50
3) Extra bag: $3.75
4) Special pickup: $45.00 first 3 cubic yards, $20.00 each addition cubic yard
Credits: 1) No charge for vacation stop: minimum 4 weeks
2) Credit no pickup: monthly rate
4.33
Bulky Items: $30.00 first 2 items, $8.00 each additional item. $30.00 for each refrigerated unit
Commercial
Charges: 1) Return Trip: $15.00
2) Return bin after non-payment: $25.00
3) Paint bin: $25.00
4) Steam clean bin (once free every 6 months): $25.00
5) Extra pickup: monthly charge (x)1.2
4.33
6) Saturday extra pickup: monthly charge (x)1.3
4.33
7) Push/Pull charge- $5.00 for every 25 feet (x) number of service days. There is a
separate charge for each push and/or pull.
Credits: 1) Credit no pickup: monthly rate
4.33
Drop -off -box
Charges: 1)
2)
3)
4)
5)
Relocate box: $25.00
Return trip: $25.00
Steam clean compactor: $100.00
Rent: For each pickup less than 4 per month
18 cubic yard- price of box
2
30 cubic yard - price of box
40 cubic yard- price of box
For each day beyond 7 days
18 cubic yard- price of box
2
7
30 cubic yard- price of box
7
40 cubic yard- price of box
7
EXHIBIT 3
RATE ADJUSTMENT METHODOLOGY
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Town of Los Gatos
Hypothetical Adjustment to Residential Rates'
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Town of Los Gatos
Hypothetical Adjustment to Residential Rates'
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Hypothetical Adjustment to Commercial Rates'
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s.
p n m n N^ 0 0 0 n m O V 0 0 0 0 ^ m^ C) ^ 00 0
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Assumptions;
Town of Los Gatos
o o° 0 0. o
0-0
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N 7 N N
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II II II II II H H
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Assumptions:
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the Assumptions.
EXHIBIT 4
FAITHFUL PERFORMANCE BOND
Exhibit 4
Company's Faithful Performance Bond
KNOW ALL MEN BY THESE PRESENTS:
That , a California as PRINCIPAL,
and , a Corporation organized and doing
business by virtue of the laws of the State of California, and duly licensed for the
purpose of making, guaranteeing, or becoming sole surety upon bonds or
undertakings required or authorized by the laws of the State of California, as
SURETY, are held and firmly bound to City, hereinafter called OBLIGEE, in the
penal sum of ($ ) lawful money of the United States, for the
payment of which, well and truly to be made, we and each of us hereby bind
ourselves, and our and each of our heirs, executors, administrators, successors,
and assigns, jointly and severally, firmly by these presents.
NOW, THEREFORE, THE CONDITION OF THIS OBLIGATION IS SUCH
THAT:
WHEREAS, the above bounden PRINCIPAL has entered into a contract, entitled
" REFUSE COLLECTION SERVICES" with City, to do and perform the following
work, to wit: Collect, Process and Dispose of Refuse generated within City, in
accordance with the contract.
NOW, THEREFORE, if the above bounden PRINCIPAL shall well and truly
perform, or cause to be performed each and all of the requirements and
obligations of said contract to be performed by said PRINCIPAL, as in said
contract set forth, then this BOND shall be null and void; otherwise it will remain
in full force and effect.
And the said Surety, for value received hereby stipulates and agrees that no
change, extension of time, alteration or addition to the terms of the contract or to
the work to be performed thereunder or the specifications accompanying the
same shall in any wise affect its obligations on this BOND, and it does hereby
waive notice of any such change, extension of time, alteration or addition to the
terms of the contract or to the work or to the specifications.
IN WITNESS WHEREOF, said PRINCIPAL and said SURETY have caused these
presents to be duly signed and sealed this DAY OF
199_.
a California Corporation SURETY
By: By:
(PRINCIPAL) (ATTORNEY IN FACT)
(SEAL) (SEAL)
EXHIBIT 5
NOTARY CERTIFICATION
Exhibit 5
NOTARY CERTIFICATION
STATE OF CALIFORNIA)
COUNTY OF .5 6 ) ss:
On ,TUA, 26 , /*7 , before me, the undersigned, a Notary Public in and
for the State of California, personally appeared 6E1M /WWA[
, known to
me to be the P,&sIO of Company that executed
the within instrument on behalf of the Company therein named, and
acknowledged to me that such Company executed the same.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal in
the County of Ceti}- this 26, day of i`'F
MARK R. GION
�n Comm. # 1113389 1^
NOTARY PUBLIC-CALIFORNIA Ul
Santa Clara County
��• „0 My Comm. Expires Oct. 10, 2000 "h
My Commission Expires:
Notary Public
lv�io/ae)
}
RESOLUTION
RESOLUTION OF THE TOWN COUNCIL
OF THE TOWN OF LOS GATOS
AUTHORIZING THE TOWN MANAGER TO EXECUTE A
DISPOSAL AGREEMENT WITH
GUADALUPE RUBBISH DISPOSAL COMPANY, INC.
FOR DISPOSAL SERVICES
THE TOWN COUNCIL OF THE TOWN OF LOS GATOS RESOLVES AS
FOLLOWS:
That the Town Manager is authorized to execute a Waste Disposal Agreement with
Guadalupe Rubbish Disposal Company, Inc. (GRDC) (Exhibit 1).
That the agreement supersedes and replaces any and all previous disposal agreements
between the Town of Los Gatos and GRDC.
PASSED AND ADOPTED at a regular meeting of the Town Council of the Town
of Los Gatos, California, held on the 21st day of July, 1997, by the following vote:
COUNCIL MEMBERS:
AYES:
NAYES:
ABSENT:
ABSTAIN:
SIGNED:
MAYOR OF THE TOWN OF LOS GATOS
LOS GATOS, CALIFORNIA
ATTEST:
CLERK OF THE TOWN OF LOS GATOS
LOS GATOS, CALIFORNIA
CSDOR: A:5RESOS\CS072I97. R02
N:1 S h arc1C S 072197. R02
ATTACHMENT 3
4
WASTE DISPOSAL AGREEMENT
Between
GUADALUPE RUBBISH DISPOSAL COMPANY, INC.
and
The Town of Los Gatos
1
GRDC Waste Disposal Contract
4
Y. YARD WASTE 4
II. EFFECTIVE DATE, TERM OF AGREEMENT, EARLY TERMINATION AND OPTION TO
EXTEND
4
A. EH-EcTivE DATE. 4
B TERM
TABLE OF CONTENTS
I. DEFINITIONS
A. ADJUSTMENT DATE
B. ANALYSIS PERIOD
C. ASH.
D. BASE RATE
E. BIOMEDICAL WASTE
F. CITY.
G. DEBRIS BOX
H. CITY FRANCHISE AREA.
2
I. CITY REPRESENTATIVE
2
I CONTRACT GATE RATE
2
K. DESIGNATED HAULER.
2
L. DISPOSAL FACILITY
2
M. EI-I-LCTIVE DATE.
2
N. FEE COMPONENT
0 FRANCHISED SOLID WASTE
3
P. HAZARDOUS SUBSTANCE.
3
Q. HAZARDOUS WASTE.
3
R. GUADALUPE LANDFILL. 3
S. RECYCLABLE M ATERIALS. 3
T. RECYCLING
3
U. RUBBISH
4
V SELF -HAULED SOLID WASTE
4
W. SOLID WASTE 4
X. TON
4
III. CONDITIONS TO EFFECTIVENESS OF AGREEMENT 5
A. CONDITIONS TO CITY'S OBLIGATION TO PERFORM. 5
1. Accuracy of Representations.
5
2. Furnishing of Insurance
5
3. Effectiveness of Resolution. 5
B. CONDITIONS TO CONTRACTOR'S OBLIGATION TO PERFORM 5
I. Accuracv of Representations. 5
IV. OBLIGATIONS OF CITY 5
A. HOUSEHOLD HAZARDOUS WASTE PROGRAMS. 6
B. OBLIGATION TO DIRECT WASTE TO THE DISPOSAL FACILITY 6
C. No LIMIT ON SOURCE REDUCTION. 6
D. FN-FORCEMENT OF FRANCHISE AGREEMENT AGAINST DESIGNATED HAULER 6
V. OBLIGATIONS OF CONTRACTOR 6
A. RECEIPT OF FRANCHISED SOLID WASTE 6
I. Unavailabilityof Disposal Facilities.
7
212/
GRDC Waste Disposal Contract
2. Weigh Tags Issued for All Vehicles 7
3.CONTRACTOR'S Collection of Franchised Solid Waste from Unincorporated Santa Clara County
(District 3) 7
4. Debris Box Storage Area at Guadalupe Landfill 8
5. Service Standard,; Liquidated Damages for Failure to Meet Standards 8
B. PERMITS FOR USE OF DISPOSAL FACILITIES 9
C. NOTICE OF CLAIMS 9
D. DISPOSITION OF UNAUTHORIZED WASTES. 9
1. Procedures for Identification. 9
2. Disposition of Hazardous Waste. 10
E. DAYS AND HOURS OF OPERATION. i0
F. WEIGHING. 10
1. Maintenance of Scale Systems 10
2. Establishment and Maintenance of Vehicles' Tare Weights. 10
3. Scale Operations 11
G. SIGNs. 11
H. SITE ACcFss 11
I. RECORDS, 11
J. INSPECTION OF OPERATIONS. 11
K. LABOR FORCE 11
L. No PREFERENCE. 12
VI. AUTHORIZED DISPOSAL FEES 1 e
A. GENERAL 12
B. CONTRACT GATE RATE. 12
1. Base Rate. 12
2. Fee Component 13
C. NOTIFICATION OF ADJUSTMENT TO BASE RATE. 13
1. Adjustment Dates. 13
2. Analysis Period 13
3. Notices of Adjustments 13
D. CPI INCREASES 14
E. ALLOWABLE COST INCREASES 14
1. Costs Not Allowable 14
2. Allowable Costs 15
3. Mandatory Procedure for Allowable Costs. 15
4. Method of Allocating Allowable Costs 16
F. REGULATORY COST DECREASES. 17
G. COSTS FOR ADDITIONAL SERVICES. 18
1. C1TY'S Written Request. 18
2. CONTRACTOR'S Estimates 18
3. Meet and Confer: Method of Agreement and Acceptance. 18
VII. BILLING AND PAYMENT PROCEDURE 18
A. INvOICEg. 18
B. CITY NOT LIABLE FOR PAYMENT OF DISPOSAL FEES 19
VIII. BOOKS AND RECORDS. 19
IX. COMPILATION OF INFORMATION FOR STATE LAW PURPOSES 19
X. DESIGNATED HAULERS 19
ii
GRDC Waste Disposal Contract
A. REQUIREMENT TO COMPLY WITH LAWS. 19
B. INSPECTION OF RECORDS 19
XI. INDEMNITY AND INSURANCE 20
A. BASIC INDEMNIFICATION. 20
B. HAZARDOUS SUBSTANCE INDEMNIFICATION 20
C. NO INDEMNITY WHERE HAZARDOUS WASTE PROGRAMS NOT IN EFFECT. 20
D. NO RIGHTS OR BENEFITS, ETC. REGARDING DESIGNATED HAULER. 21
E. INDEMNIFICATION PROCEDURE. 21
1. Notice and Cooperation. Etc. 21
2. CONTRACTOR'S Option to Assume Defense 21
F. TYPES AND AMOUNT OF INSURANCE COVERAGE. 21
XII. RIGHT TO DEMAND ASSURANCES OF PERFORMANCE 2 2
XIII. COMPLIANCE WITH LAW 2 2
XIV. REPRESENTATIONS AND WARRANTIES OF CONTRACTOR 22
A. CORPORATE STATUS. 22
B. CORPORATE AUTHORIZATION. 22
C. STATUS OF DISPOSAL FACILITY 23
D. AGREEMENT WILL NOT CAUSE BREACH. 13
E. NO PENDING LITIGATION. 23
F. NOTIFICATION QF MATERIAL CHANGES 23
XV. REPRESENTATIONS AND WARRANTIES OF CITY 2 3
A. STATUS. 23
B. CORPORATE AUTHORIZATION. 23
C. AGREEMENT WILL NOT CAUSE BREACH. 24
D. NO PENDING LITIGATION 24
XVI. RELATIONSHIP OF PARTIES 24
XVII. SUCCESSORS AND ASSIGNS 24
A. ASSIGNMENT BY CONTRACTOR. 24
1. Assignment Defined. 25
2. Permitted Assignments. 25
3. Consent Requirements. 25
B. ASSIGNMENT BY CITY 26
C. ASSIGNMENT NOT A RELEASE 26
XVIII. REPRESENTATIVES OF THE PARTIES 26
A. REPRESENTATIVES OF CITY. 26
B. REPRESENTATIVES OF CONTRACTOR 27
XIX. NOTICES 27
A. IF TO CONTRACTOR- 27
B. IF TO CITY- 28
XX. WAIVER 28
XXI. OVERRIDING FEDERAL AND STATE LAWS 28
XXII. CITY'S DEFAULT 2 8
A. DEFAULT DEFINED. 28
B. CURE. 29
9;1 iii
GRDC Waste Disposal Contract
C. RIGHT TO TERMINATE UPON DEFAULT
29
D. CONTRACTOR'S REMEDIES CUMULATIVE
29
XXIII. DEFAULT BY CONTRACTOR
A. CONTRACTOR DEFAULT. 2 9
29
B. CURE.
1. Failure to Accept Franchised Solid Waste 30
30
2. Any Other Breach.
30
C. CITY'S RIGHT TO TERMINATE PERFORMANCE UPON DEFAULT. 30
D. CITY'S REMEDIES CUMULATIVE: SPECIFIC PERFORMANCE
31
E. NOTICE, HEARING AND APPEAL OF CITY BREACH.
31
XXIV. FORCE MA IEURE.
31
XXV. PARTIES IN INTEREST.
32
XXVI. DUTY OF CONTRACTOR NOT TO DISCRIMINATE 32
XXVII. OBLIGATIONS SURVIVING TERMINATION 32
XXVIII. APPLICABLE LAW.
32
XXIX. JURISDICTION
32
XXX. TIME OF THE ESSENCE.
32
XXXI. EXHIBITS.
32
XXXII. ENTIRETY
32
XXXIII. ADVICE OF COUNSEL/NEGOTIATED AGREEMENT. 33
XXXIV. HEADINGS
33
XXXV. TIME PERIODS
33
XXXVI. SEVERABILITY
3 3
XXXVII. AMENDMENT
33
This Agreement may be amended or modified only by written agreement
duly authorized by CONTRACTOR and CITY Council and executed by their
authorized representatives.
iv
GRDC Waste Disposal Contra.,
WASTE DISPOSAL AGREEMENT
This Agreement ("Agreement") is made and entered into as of
1997, by and between the TOWN OF LOS GATOS, a municipal corporation organized under the
laws of the State of California (hereinafter "CITY") and GUADALUPE RUBBISH DISPOSAL
COMPANY, NC., a California corporation (hereinafter "CONTRACTOR"). CITY and
CONTRACTOR shall be referred to collectively as the "Parties." Other defined terms used herein
are defined in the Definitions or upon the first appearance of said term.
Recitals
WHEREAS, CITY desires to make adequate provision for the final disposition of solid
wastes collected within its incorporated limits to protect the public health, safety and well-being;
WHEREAS, CITY is acting under clearly articulated and affirmatively expressed policies
of the State of California empowering cities to regulate the final disposition of solid wastes under
powers expressly granted to cities in Article XI, Section 7, of the California Constitution, and
pursuant to Sections 40057, 40059, and 49200 of the California Public Resources Code; and
WHEREAS, GRDC owns and operates a waste Disposal Facility known as the Guadalupe
Landfill located in the City of San Jose, California;
WHEREAS, the City Council of the CITY has found and determined that the public health,
safety and well-being of the City will be preserved and protected by the execution of this
Agreement, by ensuring the availability of a suitable site for the disposal of solid waste on a long-
term basis.
Agreement
NOW, THEREFORE, in consideration of the foregoing recitals and of the mutual
promises, covenants and conditions herein, the Parties agree as follows:
I. DEFINITIONS
A. Adjustment Date. "Adjustment Date" shall have the meaning set forth in Section
VI.C.1.
B. Analysis Period "Analysis Period" shall have the meaning set forth in Section
VI.C.2.
C. Ash. "Ash" means the material remaining after incineration of Municipal Solid
Waste, including bottom ash and fly ash. "Ash" does not include ashes from
residential burning, such as fireplaces, barbecues, etc.
D. Base Rate. "Base Rate" shall have the meaning set forth in Section VI.B.
E. Biomedical Waste. `Biomedical Waste" means Waste which may be reasonably
considered infectious, pathological or biohazardous, originating from hospitals,
public or private medical clinics, dental offices, departments of research
laboratories, pharmaceutical industries, blood banks, forensic medical departments,
mortuaries, veterinary facilities and other similar facilities and includes equipment,
1
GRDC Waste Disposal Contract
instruments, utensils, fomites, laboratory Waste (including pathological specimens
and fomites attendant thereto), surgical facilities, equipment, bedding and utensils
(including pathological specimens and disposal fomites attendant thereto) sharps
(hypodermic needles, syringes, etc.), dialysis unit Waste, animal carcasses, offal
and body parts, biological materials (vaccines, medicines, etc.), and other similar
materials, including all wastes which constitute "Infectious Waste" as defined
Health and Safety Code Section 25117.5, and "Medical Waste" as defined in
California Health and Safety Code Section 25023.2, or the regulations promulgated
thereunder, as amended from time to time.
F. CITY. "CITY" means the City of Campbell, Los Gatos, Monte Sereno, Saratoga
or the unincorporated area of Santa Clara County currently referred to as District 3,
which is a municipal corporation, organized under the laws of the State of
California and includes all of the territory lying within its boundaries as presently
existing or as such boundaries may be modified during the Term of this Agreement.
G. Debris Box. "Debris Box" means a roll -off Solid Waste container used to collect,
construction debris and similar materials.
H. City Franchise Area. "City Franchise Area" means and includes all the territory
lying within the boundaries of the CITY as it is presently constituted and as may be
added later by annexation.
I. City Representative. "City Representative" means the Solid Waste Program
Manager for the Cities of Campbell, Monte Sereno and Saratoga, and the Town of
Los Gatos, or such other designated employee(s).
J. Contract Gate Rate. "Contract Gate Rate" shall have the meaning set forth in
Section VI.B.
K. Designated Hauler. "Designated Hauler" means an entity operating under a
franchise agreement or contract with CITY to collect and transport Solid Waste
generated within the City or by CITY.
L. Disposal Facility. "Disposal Facility" means the site known as the Guadalupe
Landfill, San Jose, California, Solid Waste Facility Permit Number 43-AN-0015,
located at 15999 Guadalupe Mines Road, in the City of San Jose, California, and
currently authorized to receive Solid Waste for disposal under applicable laws and
regulations of the State of California. "Disposal Facility" may also refer to
whichever alternate facility is designated by CONTRACTOR as the Disposal
Facility under this Agreement pursuant to Section V.A.1.
M. Effective Date. "Effective Date" means the first date of the Term of this Agreement,
as set forth in Section II below.
N. Fee Component. "Fee Component" shall mean the portion of the Contract Gate
Rate defined as the "Fee Component" in Section VI.B.2.
O. Franchised Solid Waste. "Franchised Solid Waste" shall mean all Solid Waste
produced, generated, or accumulated in the City Franchise Area, other than (1) Self
Hauled Solid Waste, and (2) Solid Waste collected by a person or entity and hauled
directly to a transfer site or disposal site where such collection is incidental to the
principal business of such person or entity (i.e. by means of trucks, drop boxes or
2
GRDC Waste Disposal Contract
Q.
roll -off containers owned or operated by self -haulers such as landscapers, tree
services, bulky item haulers, and construction debris self -haulers).
Franchised Solid Waste also means all substances or materials that are discarded or
rejected as being spent, useless, worthless or in excess of the owner's needs at the
time of discard or rejection including, without limitation, all putrescible and non-
putrescible solid and semi -solid Waste including Garbage, Rubbish, Yard Waste,
bulky wastes, industrial wastes, demolition and construction wastes, and other
activities which are not otherwise restricted in Class 3 landfills by State or Federal
regulations for the disposal site.
Franchised Solid Waste does not include: (1) Hazardous Waste; (2) Biomedical
Waste; (3) Ash; (4) materials which are not set out or otherwise offered for
collection by Waste generators; or (5) Recyclable Materials which are source
separated by the Waste generator or segregated for recycling, including Yard
Waste.
P. Hazardous Substance. "Hazardous Substance" or "Hazardous Substances" means
all substances defined as hazardous substances under Title 42 of the United States
Code, Section 9601(14), Section 25316 of the California Health and Safety Code,
or the regulations promulgated under such statutes, as amended from time to time.
Hazardous Waste. "Hazardous Waste" or "Hazardous Wastes" means all
substances defined as hazardous waste under Title 42 of the United States Code,
Section 6903(5), Section 25117 of the California Health and Safety Code, or the
regulations promulgated under such statutes, as amended from time to time.
R. Guadalupe Landfill. "Guadalupe Landfill" shall have the meaning set forth in the
Recitals.
S . Recyclable Materials. "Recyclable Materials" means any franchised solid waste
materials pulled out of the Solid Waste stream, prior to placement in the landfill,
including domestic, commercial or industrial by-products of some potential value
which are set aside, handled, packaged or offered for collection in a manner
different from Garbage, Rubbish or other forms of Municipal Solid Waste.
"Recyclable Materials" shall mean to include those items so defined in CITY's
Municipal Code, as it may be amended from time to time.
T Recycling. "Recycling" means the process of collecting, sorting, cleaning, treating
or reconstituting Solid Waste materials prior to placement in the landfill, and
recovering them so that they may be used in the form of raw material for new,
reused or reconstituted products.
U. Rubbish. "Rubbish" means all waste wood, wood products, printed materials,
paper, pasteboard, rags, straw, used and discarded clothing, packaging materials,
ashes from residential burning, floor sweepings, glass, and other Waste materials
not included in the definition of Garbage, Hazardous Waste, or Yard Waste.
"Rubbish" shall also include those items so defined in CITY'S Municipal code, as it
may from time to time be amended.
V. Self -Hauled Solid Waste. "Self -Hauled Solid Waste" means Solid Waste hauled
directly to a transfer site or a disposal site by the person or entity generating the
waste.
3
GRDC Waste Disposal Contract
W Solid Waste. "Solid Waste" or "Solid Wastes" means solid waste as defined in
California Public Resources Code Section 40191 and regulations promulgated
thereunder, as amended from time to time, with the exception of: (1) Hazardous
Waste, Low -Level Radioactive Waste, Biomedical Waste, wastewater treatment
byproducts such as sewage sludge, and special wastes requiring special handling
which CONTRACTOR or Disposal Facility is not permitted to accept, and (2) any
materials collected by curbside residential Recycling collection programs or
commercial Recycling programs where such materials are not disposed of but are
actually Recycled.
Notwithstanding any provision to the contrary, "Solid Waste" may include de
minimis volumes or concentrations of Hazardous Substances (as that term is
defined in 42 U.S.C. Section 9601(14)) of a type and amount normally found in
residential solid waste after implementation of programs for the safe collection,
recycling, treatment and disposal of household hazardous waste in compliance with
Sections 41500 and 41802 of the California Public Resources Code.
X. Ton. "Ton" means a short ton of 2,000 pounds avoirdupois.
Y. Yard Waste. "Yard Waste" means plant debris, including tree trimmings, grass
cuttings, dead plants, leaves, branches and dead trees, and similar organic
materials.
II. EFFECTIVE DATE, TERM OF AGREEMENT. EARLY TERMINATION
AND OPTION TO EXTEND
A. Effective Date. This Agreement is made as of July 1, 1997 (the "Effective Date').
B . Term. Subject to the early termination provisions set forth in this Agreement and to
the satisfaction of the conditions set forth in Section III, the term of this
Agreement (the "Term") shall be nine (9) years, eight (8) months, commencing at
12:00 a.m. on July 1, 1997, (the "Effective Date") and expiring at midnight
February 28, 2007.
III. CONDITIONS TO EFFECTIVENESS OF AGREEMENT
A. Conditions to CITY'S Obligation to Perform. The obligation of CITY to perform
under this Agreement is subject to the satisfaction of each and every one of the
conditions set forth below, each of which may be waived in whole or in part by
CITY. Waivers are limited to those expressed in writing, and are in the sole and
exclusive discretion of CITY.
1. Accuracy of Representations. The representations and warranties made by
CONTRACTOR in Section XIV of this Agreement shall be true and
correct as of the Effective Date and shall remain true and correct through the
Termination Date.
2. Furnishing of Insurance. Contractor shall have delivered to CITY the
insurance policies and endorsements required by Section XI and described
in detail in Exhibit A.
4
GRDC Waste Disposal Contrac,
3. Furnishing of Evidence of Closure and Post -Closure Financial Assurance.
Contractor shall deliver to City evidence of financial assurance for landfill
closure and post -closure responsibility required by Section XIV.C.
4. Effectiveness of Resolution. CITY's Resolution No.
approving this Agreement shall have become effective pursuant to California
law prior to the Effective Date.
This Section III.A is not intended to prevent CITY from seeking to employ other
remedies in the event a representation or warranty by CONTRACTOR is later
discovered not to be true and correct or to waive any rights stemming from failure
by CONTRACTOR to perform any obligation under this Agreement.
B . Conditions to CONTRACTOR'S Obligation to Perform. The obligation of
CONTRACTOR to perform under this Agreement is subject to the satisfaction of
each and every one of the conditions set forth below, which may be waived in
whole or in part by CONTRACTOR. Waivers are limited to those expressed in
writing, and are in the sole and exclusive discretion of CONTRACTOR.
1. Accuracy of Representations. The representations and warranties made by
CITY in Section XV of this Agreement shall be true and correct as of the
Effective Date and shall remain true and correct through the Termination
Date.
This Section III.B. is not intended to prevent CONTRACTOR from seeking to
employ other remedies in the event a representation or warranty by CITY is later
discovered not to be true and correct or to waive any rights stemming from the
failure by CITY to perform any obligation under this Agreement.
IV. OBLIGATIONS OF CITY
Subject to the terms and conditions of this Agreement, CITY shall have the following
obligations:
A. Household Hazardous Waste Programs. CITY shall ensure and so certifies that
there is in effect a program for the safe collection, Recycling, treatment and/or
disposal of Hazardous Wastes generated in households, in accordance with law.
CITY has adopted programs and policies designed to exclude the introduction of
Hazardous Waste into the ordinary waste stream. These programs and policies are
described in Exhibit B of this Agreement. CITY shall maintain and modify,
revise or update these programs and policies as specified by state and federal
requirements. CITY shall maintain these programs and policies in effect and will
use good faith efforts to implement them, to enforce their use by the Designated
Hauler, and to encourage their use by CITY residents.
The Parties recognize, however, that CITY cannot assure CONTRACTOR that
such a program will prevent any amount of Hazardous Waste from being delivered
to the designated Disposal Facility. The disposition of unauthorized Hazardous
Waste is described in Section V.D.
B . Obligation to Direct Waste to the Disposal Facility. CITY shall deliver (or delegate
to its Designated Hauler the obligation to deliver) all Franchised Solid Wastes to the
Disposal Facility designed by CONTRACTOR.
5
GRDC Waste Disposal Contra,
C. No Limit on Source Reduction. CITY anticipates that it will continue to develop
and participate in source -reduction, resource recovery and Recycling programs
within its jurisdiction which are likely, over time, to reduce the amount of
Franchised Solid Waste. Nothing in this Agreement shall restrict CITY from any
such activities.
D. Enforcement of Franchise Agreement Against Designated Hauler. CITY shall take
all reasonable steps to enforce its franchise or license agreements with its
Designated Hauler to ensure that the Designated Hauler complies with requirements
imposed by CITY pursuant to this Agreement to deliver Franchised Solid Waste to
CONTRACTOR.
V. OBLIGATIONS OF CONTRACTOR
Commencing on the Effective Date and continuing for the remainder of the Term, subject to
the terms and conditions of this Agreement, CONTRACTOR shall have the following
obligations:
A. Receipt of Franchised Solid Waste. CONTRACTOR shall receive, accept, and
safely and lawfully dispose of, at the Disposal Facility any or all Franchised Solid
Waste delivered by CITY, or its Designated Hauler, to the Disposal Facility.
CONTRACTOR covenants that no Franchised Solid Waste delivered by CITY or
its Designated Hauler shall be landfilled anywhere except at the Guadalupe Landfill
unless agreed to in writing by CITY prior to such disposal or as provided in
Section V.A.1 below. Nothing in this Agreement shall obligate CONTRACTOR
to perform materials recovery or processing of recyclable materials or Recycling at
the Disposal Facility, unless the Parties subsequently agree thereon in a written
instrument pursuant to Section VI.G.
1. Unavailability of Disposal Facilities. If the Guadalupe Landfill (or any
alternative Disposal Facility hereafter designated by CONTRACTOR
pursuant to this Section) is unavailable for disposal of CITY'S Franchised
Solid Waste, for reasons which do not constitute a Force Majeure event
pursuant to Section XXIV below, CONTRACTOR shall provide for
disposal of CITY'S Franchised Solid Waste at an alternate disposal facility
at a total cost equal to the Base Rate plus the Fee Component as described
below. The Base Rate shall be that rate currently in effect as described in
Section VI.B., which would have been charged in accordance with the
terms of this Agreement for disposal at the Guadalupe Landfill. The amount
of the Fee Component shall be based on the factors defined in Section
VI.B.2 for the alternate disposal facility. The provisions of this
Agreement shall continue in full force and effect notwithstanding such
event. CONTRACTOR shall reimburse CITY's Designated Hauler for any
additional transportation cost incurred by the Designated Hauler in
delivering CITY's Franchised Solid Waste to such alternate disposal
facility.
In the event the Disposal Facility in use at the time becomes unavailable and
CONTRACTOR fails to provide for disposal of CITY's Franchised Solid
Waste in accordance with this Section, CITY reserves the right to direct
Franchised Solid Waste, or any portion thereof, elsewhere.
6
GRDC Waste Disposal Contrac.
2. Weigh Tags Issued for All Vehicles. CONTRACTOR shall generate
information using CONTRACTOR'S computerized scale prior to disposal
for each and all vehicles disposing of Franchised Solid Waste by Designated
Hauler. All information shall contain specific information for each vehicle,
load, including: date, time entered scale, weigh ticket number, vehicle
number, if available, vehicle type, (compacted, roll -off, or compacted roll -
off), vehicle capacity, Debris Box number if available, and capacity (based
on current computerized entry, and net weights). CONTRACTOR shall
provide CITY gross and tare weights upon request.
3. CONTRACTOR'S Collection of Franchised Solid Waste from
Unincorporated Santa Clara County (District 3). CONTRACTOR
acknowledges that the Designated Hauler currently collects Franchised Solid
Waste from unincorporated areas located near CITY and that Franchised
Solid Waste generated by CITY is commingled with Franchised Solid
Waste generated in the unincorporated areas (currently referred to as District
3). CONTRACTOR agrees to accept and properly and safely dispose of
Franchised Solid Waste generated within District 3 which is commingled
with the CITY'S Franchised Solid Waste and delivered to CONTRACTOR
during those periods in which CONTRACTOR is obligated under this
Agreement to accept CITY'S Franchised Solid Waste. CITY shall agree
with the jurisdictional breakdown provided by the Designated Hauler as a
basis of payment for commingled loads. CONTRACTOR shall have the
right to observe and review CITY'S or Designated Hauler's jurisdictional
breakdown methods and operation.
4. Debris Box Storage Area at Guadalupe Landfill. CONTRACTOR agrees to
provide a sufficient storage area for twelve (12) debris boxes at Guadalupe
Landfill which is conveniently located for the Designated Hauler to drop off
and pick up empty Debris Boxes at the discretion of the Designated Hauler.
The purpose of the storage area is to optimize efficient Debris Box services
for the Designated Hauler by exchanging a Debris Box after it was emptied
for another. CONTRACTOR shall ensure that the storage area is sited on
an all-weather pad/access which is developed and maintained year-round by
CONTRACTOR. The Debris Boxes placed at the designated storage site
shall only be for accounts located in CITY. CITY acknowledges that the
storage of bins is subject to environmental compliance, safety and
operational requirements at Guadalupe Landfill. CONTRACTOR agrees to
allow the Designated Hauler two (2) hours to empty a Debris Box which
was not emptied prior to placement at the storage site and may charge a fee
of $200 per Debris Box to empty and return it to the storage site.
5. Service Standards: Liquidated Damages for Failure to Meet Standards.
CONTRACTOR and City acknowledge that consistent, reliable disposal
services is of utmost importance to CITY and that CITY has considered and
relied on CONTRACTOR's representations as to its quality of service
commitment in awarding this Agreement to it. The parties further recognize
that quantified standards of performance are necessary and appropriate to
ensure consistent and reliable service. The parties further recognize that if
CONTRACTOR fails to achieve the performance standards, or fails to
submit required documents in a timely manner, CITY and its residents will
suffer damages and that it is and will be impracticable and extremely
difficult to ascertain and determine the exact amount of damages which
7
GRDC Waste Disposal Contract
CITY will suffer. Therefore, without prejudice to CITY'S right to treat
such non-performance as an event of default, CONTRACTOR and CITY
agree that the following liquidated damage amounts represent a reasonable
estimate of the amount of such damages considering all of the circumstances
existing on the date of this Agreement, including the relationship of the
sums to the range of harm to CITY that reasonably could be anticipated and
the anticipation that proof of actual damages would be costly or
inconvenient. In placing their initials at the places provided, each party
specifically confirms the accuracy of the statements made above and the fact
that each party had ample opportunity to consult with legal counsel and
obtain an explanation of this liquidated damage provision at the time that this
Agreement was made.
8
GRDC Waste Disposal Contract
CONTRA CITY
Initial Here: Initial Here:
CONTRACTOagrees to pay (as liquidated damages and not as a penalty)
the amount set forth below. CONTRACTOR agrees that the reports
required to be submitted to CITY by this Agreement (as shown in Exhibit E)
may be used as self -monitoring for purposes of calculating liquidated
damages, subject to CITY review and adjustment, and that such reports
shall be prepared to the best of CONTRACTOR'S ability and shall be
submitted under penalty of perjury, signed by CONTRACTOR'S executive
officer or other person authorized to sign on behalf of CONTRACTOR by
the executive officer.
Timeliness of Submissions to CITY
For each failure to submit reports and other
related requisite documents on the date required:
Completeness of Submissions to CITY
For each failure to submit a substantially
complete report
$100.00 for each
day the report is late.
$100.00 for each
occurrence, and
for each day until a
substantially complete
report is submitted.
B . Permits for Use of Disposal Facilities. Throughout the Term, CONTRACTOR
shall, at its sole expense keep in force all existing permits and approvals from
governmental authorities necessary for CONTRACTOR'S performance under this
Agreement and any laws or regulations applicable to the Disposal Facility.
CONTRACTOR shall file with City Representative a true and correct copy of each
permit, license or approval for operation of the landfill.
C. Notice of Claims. CONTRACTOR covenants that it shall provide reasonably
prompt notice to CITY, but in no event later than sixty (60) days after
CONTRACTOR is put on notice of such claim, if at any time a claim is asserted or
threatened to be asserted which CONTRACTOR reasonably believes is likely to
impair its ability to perform its obligations under this Agreement.
D. Disposition of Unauthorized Wastes.
1. Procedures for Identification. CONTRACTOR shall implement reasonable
procedures consistent with industry practices at the time to identify and
reject waste materials delivered to the Disposal Facility which are Hazardous
Wastes, or which otherwise may not be legally accepted at the Disposal
Facility under its permits and other applicable governmental regulations then
in effect. CONTRACTOR shall implement such procedures in a uniform
and non-discriminatory manner as applied to waste materials delivered to the
Disposal Facility from CITY and from all other sources.
2. Disposition of Hazardous Waste. CONTRACTOR may refuse to accept
wastes either in part or whole load delivered by CITY'S Designated Hauler
if they constitute Hazardous Waste or otherwise may not be legally accepted
at the Disposal Facility. In such event, CONTRACTOR shall have no
GRDC Waste Disposal Contra,
further responsibility for disposition of such unaccepted wastes.
CONTRACTOR shall lawfully dispose of any Hazardous Wastes
discovered after acceptance at the Disposal Facility. In no event shall CITY
have responsibility for the cost of disposition of any Hazardous Wastes that
may be delivered to the Disposal Facility, except that: (a) if CITY itself
knowingly hauls or causes to be delivered Hazardous Waste generated by
CITY to the Disposal Facility, it shall be responsible for the costs of
disposing of any such Hazardous Waste; and (b) if CITY fails to
substantially comply with the obligation set forth in Section IV.A, CITY
shall be responsible for the cost of disposing of any unauthorized
Hazardous Waste collected within the City and delivered to the Disposal
Facility during the time of such noncompliance.
E. Days and Hours of Operation. CONTRACTOR shall comply with all conditions in
all permits in effect from time to time regarding days and hours of operation.
CONTRACTOR'S current operating permit (issued November 21, 1991), specifies
that the Guadalupe Landfill is open seven (7) days per week, opening at 6:00 a.m.
through closing at 4:45 p.m. Monday through Friday, and opening at 8:00 a.m.
through closing at 4:45 p.m. Saturday and Sunday, and is closed on Christmas,
New Year's Day, Easter, Thanksgiving, and one-half day on Christmas Eve and
New Year's Eve. If any of these terms change, CON TRACTOR shall notify CITY
and Designated Hauler in writing as soon as possible, and a minimum of ninety
(90) days in advance of any proposed change. A copy of CONTRACTOR'S
operating permit is attached and is made a part of this contract.
F. Weighing.
1. Maintenance of Scale Systems. CONTRACTOR shall comply with all
conditions in all permits in effect from time to time regarding weighing and
operation of scales. CONTRACTOR shall maintain scale certification with
the California Department of Food and Agriculture, Division of
Measurement Standards.
2. Establishment and Maintenance of Vehicles' Tare Weights.
CONTRACTOR shall promptly weigh each vehicle driven to the Disposal
Facility by the Designated Hauler, as they become available at the Disposal
Facility to determine its loaded and unloaded ("tare") weight. The tare
weight of each vehicle and each Debris Box shall be recorded by
CONTRACTOR along with the corresponding vehicle or box number.
CONTRACTOR shall provide CITY with such information within ten (10)
days after request.
When additional or replacement vehicles or Debris Boxes are placed into
service by Designated Hauler, CONTRACTOR shall promptly weigh such
vehicles or Debris Boxes as they become available at the Disposal Facility.
All weighing shall be conducted in accordance with CONTRACTOR'S
standard procedures, a copy of which shall be supplied to City
Representative.
3. Scale Operations. A scale at the tollgate entrance shall be operational at all
times, regardless of emergency circumstances. The first contingency back-
up is a second electronic scale and the second is a mechanical scale. If
10
GRDC Waste Disposal Contract
neither contingency is available, CONTRACTOR shall base net weight on
the average of the last three (3) recorded weights for each vehicle.
CONTRACTOR agrees to a 48-hour time limit per incident to employ either
contingency.
G. Signs. At CONTRACTOR'S sole expense, CONTRACTOR shall prominently
post signs at the scalehouse to the Disposal Facility detailing the regulations which
must be followed by vehicles entering the site, indicating the hours of operation, the
types of Solid Waste or recyclable materials accepted, the fees for disposal and for
Recycling, and a local telephone number to call for information in case of
emergency.
H. Site Access. CONTRACTOR shall construct and maintain all roads running in and
on the Disposal Facility as shall be reasonable under the circumstances, from the
end of the public access road to the point designated for the dumping of materials.
A smooth surface within the dumping area shall be maintained properly to assist
vehicles in their dumping operations. CONTRACTOR shall designate an area
immediately adjacent to an all-weather road for dumping during periods of
inclement weather. CONTRACTOR shall maintain such inclement weather site and
shall construct and maintain an all-weather access road to such site.
Records, CONTRACTOR shall maintain records on a daily and cumulative
monthly basis for each and all loads delivered by the Designated Hauler. City
Representative shall have the right to inspect such records and the record keeping
procedures at any time during normal business hours, provided that such review
does not interfere with the work being performed.
J. Inspection of Operations. City Representative shall have the right but not the
obligation to observe and review CONTRACTOR'S operations and enter
CONTRACTOR'S premises at the Disposal Facility for the purpose of such
observation and review during normal operating hours, subject to reasonable
notice. This provision does not give CITY any right to exercise control over the
business or operations of CONTRACTOR or to direct in any respect the manner in
which the business and operations shall be conducted.
K. Labor Force. CONTRACTOR shall employ only such workers who are careful,
competent and fully qualified to perform the duties or tasks assigned to them. All
workers shall have sufficient skill, ability and experience to properly perform the
work assigned to them and to operate any equipment necessary for them to carry
out their assigned duties in a safe manner, consistent with all applicable federal,
state and local laws and regulations.
L. No Preference. CONTRACTOR shall give no preference or priority of treatment
over Designated Hauler to any other persons bringing wastes to the Disposal
Facility that has an adverse effect on the Designated Hauler's operations.
VI. AUTHORIZED DISPOSAL FEES
A. General. In consideration of the right to charge and collect Disposal Fees in the
amounts and on the terms set forth in this Agreement, CONTRACTOR shall
perform all of its responsibilities and duties under this Agreement, including but not
limited to paying the costs associated with: (1) complying with all Applicable Laws
(as defined in Section VI.E.1 below), (2) complying with all Legal
11
GRDC Waste Disposal Conn....
Requirements, as required by Section XIII, except to the extent such costs are
attributable to a Change in Law pursuant to Section VI.E.2 below, (3) operations
at its Disposal Facility, and (4) closure, post -closure maintenance, and remediation
at its Disposal Facility. During the Term, these disposal fees will be in the form of
a Contract Gate Rate charged on each ton of Franchised Solid Waste received at the
Disposal Facility.
The payments provided for in this Section VI, are the full, entire, and complete
compensation due to CONTRACTOR for furnishing all labor, equipment, materials
and supplies and other things necessary to perform the services required by this
Agreement in the manner and at the time prescribed, and fulfilling all of its
obligations under this Agreement. Such payments shall include all costs for the
items mentioned above and also for all taxes, insurance, overhead, profit and all
other costs necessary to perform the services in accordance with this Agreement.
B Contract Gate Rate. The Contract Gate Rate will consist of two components: (1)
the proprietary rate for disposal of Franchised Solid Waste at the Guadalupe
Landfill (the "Base Rate"); and (2) the total of taxes and fees assessed to the
Guadalupe Landfill solely for disposal purposes related to the waste operation at the
Disposal Facility (the "Fee Component"). The initial Contract Gate Rate will be
$36.94 per ton, which fee is effective from July 1, 1997, through June 30, 1998.
The Contract Gate Rate may not be increased during the Term, except under the
following circumstances: the Base Rate may be adjusted for CPI Increases as
authorized under Section VI.D. below, for Allowable Cost Increases as provided
in Section VI.E. below, and for additional services requested by CITY, as
provided in Section VI.G below; and the Fee Component may be adjusted to
reflect changes in taxes and fees assessed at the Guadalupe Landfill, as provided in
Section VI.B.2 below.
1. Base Rate. The initial Base Rate shall be $20.30 per ton, which fee is
effective from July 1, 1997, through June 30, 1998, for Franchised Solid
Waste received at the Disposal Facility. Following any adjustment
authorized pursuant to Sections VI.D, E or G, the new Base Rate shall
become the Base Rate for all Franchised Solid Waste received at the
Disposal Facility on and after the Adjustment Date until the next subsequent
Adjustment Date, as provided in Section VI.0 below.
Fee Component. The Fee Component shall be based on a per ton charge
consisting of the total of: (a) all per ton franchise fees, regulatory fees,
mitigation fees, surcharges and taxes assessed by any governmental entity
on Solid Wastes received at the Guadalupe Landfill; and (b) a dollar amount
per ton calculated by taking the total of all of the surcharges and taxes not
assessed on a per ton basis (except for ad valorem real property taxes)
which are assessed on the Guadalupe Landfill (including fees on gross
receipts and license fees) and dividing that amount by the number of
disposed tons of Solid Waste received at the Guadalupe Landfill during the
Analysis Period, as defined in Section VI.C.2.
The Fee Component, which shall be in effect from July 1, 1997, through
June 30, 1998, will be $16.64 a ton. Fees and taxes that will make up the
Fee Component as of the Effective Date are listed in Exhibit C hereto.
CONTRACTOR may immediately adjust the Fee Component whenever any
franchise fees, regulatory fees, mitigation fees, surcharges and taxes
12
GRDC Waste Disposal Contract
relating to the Guadalupe Landfill are imposed or increased.
CONTRACTOR shall immediately adjust the Fee Component whenever
such fees are decreased or eliminated. CONTRACTOR shall notify CITY
in writing at least thirty (30) days in advance of any increase in the Contract
Gate Rate due to changes in fees, surcharges or taxes. Such Notification of
Adjustment shall detail the existing amount of the Fee Component, the basis
for the pro rated share and the additional fee per ton due CONTRACTOR.
C. Notification of Adjustment to Base Rate.
1. Adjustment Dates. The first Adjustment Date ("Adjustment Date") shall be
on July 1, 1998, and each subsequent Adjustment Date shall be on July 1 of
each succeeding year. Increases in the Base Rate due to CPI Increases and
Allowable Cost Increases shall become effective on each Adjustment Date.
2. Analysis Period. This term shall mean to include the time frame since the
last rate adjustment was calculated, as provided for in Section VI.D.
3 . Notices of Adjustments. On or before March 1 of each year of this
Agreement, beginning in 1998 , in which an annual adjustment is to be
made, CONTRACTOR shall submit to City Representative a Rate
Adjustment Statement setting forth the existing Base Rate, the applicable
index values, the percentage change in the applicable indices, the calculation
of the annual adjustment, the new base rate, the Fee Component, and the
resulting Contract Gate Rate. Within forty-five (45) days of
CONTRACTOR'S submittal of the Rate Adjustment Statement to CITY,
City Representative shall notify CONTRACTOR of any exceptions to the
Rate Adjustment Statement. If CITY does not submit written exceptions to
the Rate Adjustment Statement within said forty-five (45) days, CITY shall
be deemed to have accepted the Rate Adjustment Statement submitted by
CONTRACTOR.
Unless a later date is justified by exceptional circumstances, if
CONTRACTOR does not submit its complete rate adjustment request by
March 1, then no consideration of a rate adjustment shall be made, and no
rate adjustment shall be instituted for the forthcoming fiscal year.
D. CPI Increases. The Base Rate in effect on the date preceding any Adjustment Date
may be adjusted upward or downward on each Adjustment Date. The annual
adjustment shall be a percentage of the compensation payable based on ninety
percent (90%) of the annual December -to -December percentage change in the
Consumer Price Index for All Urban Consumers (National CPI-U), in accordance
with the following formula:
Net percentage change = [V(I) - V(I-1)]/V(I-1)
Where: V(I) = Index value for the first December immediately
preceding the effective date of the adjustment and
V(I-1) = Index value for the second December immediately
preceding the effective date of the adjustment
Example: For the July 1, 1998 adjustment, V(I) = the index for
December 1997, and V(I-1) = index for December 1996.
13
GRDC Waste Disposal Contra._
The indices used shall be those published by the United States Department of
Labor, Bureau of Labor Statistics. Should any such index be discontinued, a
successor index shall be used. Successor indices shall be those indices which are
most closely equivalent to the discontinued indices as recommended by the United
States Department of Labor, Bureau of Labor Statistics. Should any such index not
be published for December, the adjustment shall be calculated using the index
values of the Novembers immediately preceding the Decembers contemplated by
this Agreement.
Annual service rate adjustments shall be made only in units of one cent ($0.01).
Fractions less than one cent ($0.01) shall not be considered in making adjustments.
The indices and rates shall be truncated at four (4) decimal places for the adjustment
calculations.
No annual increase or decrease in the Base Rate shall exceed five percent (5%) of
the compensation in effect as of the Effective Date, after the first Adjustment Date
has occurred, or as of the most recent Adjustment Date.
E. Allowable Cost Increases. Certain costs which increase CONTRACTOR'S cost of
providing service under this Agreement shall be allowed as adjustments to the Base
Rate, but only to the extent provided in Section VI.E.2 below.
1. Costs Not Allowable. The Contract Gate Rate to be in effect as of the
Effective Date includes costs associated with complying with all existing
laws and governmental regulations applicable to the Guadalupe Landfill as
of the Effective Date, including existing provisions, if any, which become
effective on or which require compliance by a date after the Effective Date,
and also including existing written interpretive rulings or guidance by public
agencies ("Applicable Laws").
CONTRACTOR shall be responsible for any Disposal Fee increase as a
result of the costs of compliance enumerated in Exhibit D, attached, except
for any change in Applicable Laws enumerated in Exhibit D, which is
enacted or promulgated after the Effective Date of this Agreement..
2. Allowable Costs. If and only to the extent the following costs are necessary
to comply with changes to Applicable Laws, or with new laws and new
governmental regulations (including new written interpretive guidelines by
public agencies interpreting existing Applicable Laws) enacted or
promulgated after the Effective Date (collectively, "Change in Law"), they
shall be Allowable Costs justifying a proportionate increase in the Base Rate
as specified in Section VI.E.4 below:
a. Change -in -Law Operations, Improvements or Modifications.
Incremental operating, maintenance, monitoring, reporting and
capital costs, including but not limited to the costs of making
improvements (including, but not limited to future landfill cells) or
modifications, at the Disposal Facility necessary to perform under
this Agreement, but only to the extent brought about by a Change in
Law.
b. Change -in -Law Closure/Post-Closure Costs. Incremental costs of
performing closure and post -closure and closure and post -closure
14
GRDC Waste Disposal Contract
monitoring at the Disposal Facility, but only to the extent brought
about by a Change in Law.
3 . Mandatory Procedure for Allowable Costs. CONTRACTOR must follow
the procedure in this Section VI.E.3 before the Contract Gate Rate will be
increased to reflect Allowable Costs.
a. Notice to CITY. CONTRACTOR shall give CITY prompt notice of
the Change in Law, specifically identifying such Change (and
providing a copy of the official text of such Change) and describing
what changes or modifications to operations at the Disposal Facility
are required, when compliance is required, and whether
CONTRACTOR or the Disposal Facility is eligible for any
exemptions or variances.
b. Proposed Method to City. CONTRACTOR shall thereafter submit
to CITY its proposed method for complying with the regulations,
the estimated cost of compliance, and the associated increase in the
Disposal Fee for CITY as its proportionate share.
c. Proposed Method to Regulatory Agency. CONTRACTOR shall
submit its proposed method of compliance to the appropriate
regulatory agency. If the agency approves that method without
conditions, the proportionate share of the cost of that method of
compliance will be the amount by which the Disposal Fee may be
increased.
d. Implement Compliance Method. If CONTRACTOR'S method is
not approved, CONTRACTOR will implement the method of
compliance which is approved by the regulatory agency. The
proportionate share of the cost of that method of compliance will be
the amount by which the Disposal Fee may be increased.
4. Method of Allocating Allowable Costs.
a. Use of GAAP. Allowance of Interest on Capital Costs. Allowable
Costs shall be allocated as expenses or capital expenditures as
determined using generally accepted accounting principles. If the
costs are determined to be allocated as capital expenditures, such
costs shall be spread over a number of years in accordance with
generally accepted accounting principles.
b. CaIculation of Per Ton Costs. The per Ton increase due to
Allowable Costs shall be determined as follows:
(1)
Estimates of Increases. As of the beginning of each
Adjustment Date, CONTRACTOR shall estimate the per -ton
increase, if any, in all Allowable Costs which would pertain
at such Date, including in such estimate both: (a) those
Allowable Costs which are to be imposed or incurred on a
per -Ton basis; and (b) those Allowable Costs which are to
be imposed on or incurred by the Disposal Facility as a
whole which must be computed by dividing such Allowable
Costs by the total number of tons of Solid Waste received at
15
GRDC Waste Disposal Contras
the Disposal Facility from all sources during the preceding
Analysis Period. The resulting dollar amount per ton shall
be added to the Base Rate in effect during the prior Analysis
Period. The sum of these two amounts together with any
applicable CPI Increase shall become the new Base Rate
effective on the upcoming Adjustment Date.
(2) Post -Adjustment Audits by CI Y. CITY shall select a
consultant to verify the accuracy of the Allowable Cost
increases. CITY's selection of the consultant shall be
subject to approval of the CONTRACTOR, which approval
shall not be unreasonably withheld. Consultant shall have
the right to inspect the books and records of
CONTRACTOR at any time following any Adjustment Date
to determine whether CONTRACTOR has actually incurred
the amounts of Allowable Costs previously estimated.
Adjustments of Estimated Costs. If the estimated amounts
are determined, as a result of an audit or otherwise, to be
greater than or less than costs actually incurred during a
given period, then CONTRACTOR shall make an
appropriate adjustment in the Base Rate.
c. Amortization of Allowable Costs. If Allowable Costs incurred by
CONTRACTOR are amortized over more than one year, the increase
resulting therefrom in the Base Rate shall be repealed at the end of
such amortization period. The repeal shall not affect other increases
resulting from Allowable Costs which were not so amortized.
d. Interest on Actual Past Costs. To compensate CONTRACTOR for
any increases applicable under this Section VI.E.4 for those years
or portions thereof which have elapsed prior to the Adjustment Date
when the new Base Rate becomes effective, but after the Effective
Date, the new Base Rate shall also include a component for such
prior Allowable Costs, plus simple interest, commencing on the first
day following the day on which Allowable Costs were paid and
ending on the Adjustment Date, at CONTRACTOR'S actual cost of
funds, not to exceed the prime rate, as posted daily in the "Money
Markets" section of the Wall Street Journal. In the event that this
prime rate is discontinued, the contingent rate that shall be used will
be the prime rate (base), as published in the Barron's Money Market
column of Barron's Weekly. In the event the aforementioned index
is no longer in existence, the reference rate from another primary
dealer of the federal reserve system shall be used as agreed upon by
the parties. The prime rate shall be determined by calculating an
average annualized prime rate using each Friday's rate over a fiscal
year period.
F. Regulatory Cost Decreases. Any existing costs directly incurred because of
compliance with regulatory requirements that are eliminated or reduced in the future
will result in a proportionate reduction of the Base Rate.
(3)
a. Notice to City. CONTRACTOR shall notify CITY promptly, in
writing, of any such change, identifying the change (and providing a
16
GRDC Waste Disposal Contract.
copy of the official text of such change), describing what changes or
modifications to operations at the Disposal Facility are required and
when the change is effective.
b. Proposed Method to City CONTRACTOR shall thereafter submit to
CITY its proposed method for complying with the regulations, the
estimated cost of compliance, and the associated decrease in the
Disposal Fee for CITY as its proportionate share.
c. Proposed Method to Regulatory Agency. CONTRACTOR shall
submit its proposed method of compliance to the appropriate
regulatory agency. If the agency approves that method without
conditions, the proportionate share of the cost of that method of
compliance will be the amount by which the Disposal Fee may be
decreased.
d. Implement Compliance Method. If CONTRACTOR'S method is
not approved, CONTRACTOR will implement the method of
compliance which is approved by the regulatory agency. The
proportionate share of the cost of that method of compliance will be
the amount by which the Disposal Fee may be decreased.
G. Costs for Additional Services. CITY may from time to time during the Term
request that CONTRACTOR perform additional services for CITY where such
services are necessary to enable CITY to meet its obligations under applicable
federal, state and local Solid Waste laws. CONTRACTOR hereby covenants to
offer to provide such services to CITY at a commercially reasonable price,
providing for recoupment of CONTRACTOR'S costs of providing such services,
plus a reasonable profit, and consistent with the range of prices charged by
CONTRACTOR or its affiliates to other entities for the same or similar services.
CONTRACTOR shall not be obligated to provide such services to CITY unless the
Parties reach mutual agreement on the price for such services. The agreed rate to be
charged by CONTRACTOR for such services may be added to the Base Rate, or, if
appropriate, billed as a lump sum one-time additional fee (to perform a survey or
waste composition analyses, for example), as follows:
1. CITY'S Written Request. CITY must submit to CONTRACTOR a written
request for additional services, with sufficient detail to allow
CONTRACTOR to estimate the additional costs to CONTRACTOR to
perform such services ("Request for Additional Services'').
CONTRACTOR'S Estimates. Within thirty (30) days after receipt of a
Request for Additional Services, CONTRACTOR shall provide to CITY a
written estimate of the commercially reasonable price of performing such
additional services, with a detailed breakdown of the components of
CONTRACTOR'S costs. The estimate shall include the amount by which
the Contract Gate Rate would be increased as a result of such additional
services, or the lump sum fee for additional services.
3. Meet and Confer, Method of Agreement and Acceptance. The Parties shall
meet and confer in good faith in an effort to reach agreement on the terms
and conditions for CONTRACTOR'S providing such services. If CITY
agrees that the cost estimate is commercially reasonable, CITY may deliver a
written acceptance to CONTRACTOR ("Notice of Acceptance"), and
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GRDC Waste Disposal Conti.
CONTRACTOR shall implement such additional services and increase the
Contract Gate Rate accordingly, or charge the agreed -upon lump sum once
services have been performed.
VII. BILLING AND PAYMENT PROCEDURE
A. Invoices. By the tenth day of each month, CONTRACTOR shall submit to the
Designated Hauler invoices for the Contract Gate Rate covering Franchised Solid
Waste delivered to the Disposal Facility during the prior month. A copy of the
invoice and report shall be sent to the City Representative, regardless of who
receives the original invoice.
B . City Not Liable for Payment of Disposal Fees. The Parties acknowledge that CITY
may not generally physically deliver Solid Waste to the Disposal Facility, that such
deliveries may generally be carried out by one or more Designated Haulers, and that
in such event the Disposal Fees will be paid by the Designated Hauler.
CONTRACTOR will not look to CITY for payment of the Disposal Fees for
Franchised Solid Waste actually delivered by a Designated Hauler, unless CITY
hereafter agrees in writing to guarantee the payment of such Disposal Fees.
VIII. BOOKS AND RECORDS.
Books and records relating to the total amount of monthly tonnage received from CITY,
and the composition of costs claimed by CONTRACTOR as a basis for an increase in the
Contract Gate Rate shall be maintained by CONTRACTOR. CITY'S designated agent,
referred to in Section VI.E.4.b.(2), may audit and inspect such books and records to the
extent and for the sole purpose of ascertaining the correct amount of monthly bills and
increased Contract Gate Rate when claimed by CONTRACTOR. This right to audit and
inspect books and records shall be effective for a period of two years following the
Termination Date during regular work hours and upon reasonable notice by CITY.
I X. COMPILATION OF INFORMATION FOR STATE LAW PURPOSES
CONTRACTOR shall compile information on amounts of Solid Waste delivered to the
Disposal Facility which CITY may reasonably request in order to meet its obligations under
the California Integrated Waste Management Act, as it may be from time to time amended.
X . DESIGNATED HAULERS
A. Requirement to Comply with Laws. CITY shall require that any Designated Hauler
entering the designated Disposal Facility comply with all federal, state and local
health and safety regulations, including any reasonable work or safety rules which
have been promulgated by CONTRACTOR to govern operations of the Disposal
Facility. Vehicles or persons found not to be in compliance may be denied entry to
or removed from the Disposal Facility.
B. Inspection of Records. If CITY'S Designated Hauler also disposes of Solid
Wastes at the Disposal Facility collected from within another jurisdiction that is not
a party to a similar agreement with CONTRACTOR providing for the same
Contract Gate Rate as granted to C1'1 Y pursuant to this Agreement, then CITY shall
18
GRDC Waste Disposal Contract
require that such Designated Hauler provide CONTRACTOR or its agents the right
to inspect the books and records of such Designated Hauler for the limited purpose
of determining that Solid Wastes collected from within such other jurisdiction are
not being disposed of at the Disposal Facility at the Contract Gate Rate granted
CITY pursuant to this Agreement. If CITY obtains such records, CITY shall
provide CONTRACTOR with the results of its review thereof.
XI. INDEMNITY AND INSURANCE
A. Basic Indemnification. GRDC shall indemnify, defend and hold harmless CITY,
its officers, employees and agents, from and against any and all loss, liability,
penalty, forfeiture, claim, demand, action, proceeding or suit, of any and every
kind and description, whether judicial, quasi-judicial or administrative in nature
including, but not limited to, injury to or death of any person and damage to
property or for contribution or indemnity claimed by third parties (collectively, the
"Claims") and attorneys' fees and costs incurred by defending such claims, arising
out of or caused in any way by, directly or indirectly, (1) its performance of, or
failure to perform, its obligations under this Agreement, including but not limited to
failure to comply with Applicable Laws or Legal Requirements (as defined in
Section XIII), or breach of its representations and warranties set forth in this
Agreement, provided that such damages do not arise out of negligence or
intentional misconduct of CITY. CONTRACTOR'S duty to indemnify and defend
shall survive the expiration or earlier termination of this Agreement.
B . Hazardous Substance Indemnification. Subject to the provisions of Section
XI.0 below, GRDC shall protect, defend (with counsel selected by
CONTRACTOR and reasonably acceptable to CITY), indemnify and hold harmless
CITY, its officers, employees, agents, assigns and any successor or successors to
CITY'S interest from and against all claims, actual damages (including but not
limited to special and consequential damages), natural resources damages, punitive
damages, injuries, costs, responses, remediation and removal costs, losses,
demands, debts, liens, liabilities, causes of action, suits, legal or administrative
proceedings, interest, fines, charges, penalties and expenses (including but not
limited to attorneys' and expert witness fees and costs incurred in connection with
defending against any of the foregoing or in enforcing this indemnity) of any kind
whatsoever paid, incurred or suffered by, or asserted against, CITY or its officers,
employees, or agents arising from or attributable to any repair, cleanup, or
detoxification, or preparation, and implementation of any removal, remedial,
response, closure or other plan (regardless of whether undertaken due to
governmental action), concerning the release or threatened release of any Hazardous
Substance or Hazardous Waste at the Disposal Facility, or if the activities of
CONTRACTOR pursuant to this Agreement, from and after the Effective Date of
this Agreement, result in a release of Hazardous Waste or Hazardous Substance
into the environment, provided that such damages do not arise out of the negligence
or intentional misconduct of CITY. The foregoing indemnity is intended to operate
as an agreement pursuant to Section 107(e) of the Comprehensive Environmental
Response and Liability Act ("CERCLA"), 42 U.S.C. Section 9607(e), and
California Health and Safety Code Section 25364, to defend, protect and hold
harmless and indemnify CITY from liability. This provision shall survive the
termination of this Agreement. The foregoing indemnity shall not have any dollar
limitation.
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GRDC Waste Disposal Contra.
C. No Indemnity Where Hazardous Waste Programs Not In Effect. The defense and
indemnity obligations specified in Sections XI.A and B above shall not apply
with respect to: (1) any Hazardous Waste generated by CITY itself and knowingly
delivered by CITY to a third party or CONTRACTOR for disposal at the Disposal
Facility; (2) any Hazardous Waste generated in households collected within the City
and delivered to the designated Disposal Facility during a time when CITY has
failed to maintain, or caused to maintain, in effect programs for the safe collection,
Recycling, treatment and/or disposal of Hazardous Wastes generated in
households, in substantial compliance with its obligation set forth in Section
IV.A; or (3) the disposal or release of Hazardous Substances, which disposal or
release has resulted from the negligence or intentional misconduct of CITY.
D. No Rights or Benefits, Etc. Regarding Designated Hauler. Nothing in this
Section XI shall be deemed to confer any rights or benefits for a defense or
indemnification to CITY'S Designated Hauler, nor shall anything in this Agreement
be deemed to be a waiver or release of any claims by CONTRACTOR against
CITY'S Designated Hauler should such Designated Hauler deliver Hazardous
Waste or Hazardous Substances, including but not limited to Household Hazardous
Waste, to CONTRACTOR.
E. Indemnification Procedure.
1. Notice and Cooperation, Etc. With respect to any claim for defense and
indemnification, CITY shall: (1) give a minimum of fifteen (15) days
written notice to CONTRACTOR following knowledge of the claim or
proceeding as to which the right to indemnification may be asserted by
CITY; (2) allow CONTRACTOR (including its employees, agents and
counsel) reasonable access to any of CITY'S employees, property and
records for the purpose of conducting an investigation and defense of such
claim and taking such other steps as may be necessary to preserve evidence
of the occurrence on which the claim is based; and (3) reasonably cooperate
with and assist CONTRACTOR in the defense of CITY.
2 CONTRACTOR'S Option to Assume Defense. In any instance in which
CITY claims indemnification hereunder, CONTRACTOR may elect to
defend with counsel selected by CONTRACTOR and reasonably acceptable
to CITY (and control the defense and settlement of) any litigation arising out
of the occurrence from which CITY claims that CONTRACTOR'S
indemnity obligation exists. If CONTRACTOR decides not to select
counsel, such decision does not reduce or alleviate CONTRACTOR's
obligation to defend CITY, pursuant to Section XI of this Agreement.
F. Types and Amount of Insurance Coverage. CONTRACTOR, at
CONTRACTOR'S sole cost and expense, shall procure from an insurance
company or companies licensed to do business in the State of California and
maintain in force at all times during the Term the types and amounts of coverage
listed in Exhibit A, together with all endorsements and other special provisions
also listed therein. CONTRACTOR'S indemnity obligations under this Agreement
shall be fulfilled to the extent that such obligations are satisfied by any defense or
indemnity provided to CITY under any coverage provided by CONTRACTOR
pursuant to this Section.
CITY requires prior approval of CONTRACTOR's deductibles.
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ry aiic iM.sposai Lontract
XII. RIGHT TO DEMAND ASSURANCES OF PERFORMANCE
If CONTRACTOR: (1) is the subject of any labor unrest including work stoppage or
slowdown, sick-out, picketing or other concerted job action which materially interferes
with the ability of CONTRACTOR to perform its obligations under this Agreement; (2)
appears in the reasonable judgment of CITY to be unable to regularly pay its bills as they
become due; or (3) is the subject of a criminal proceeding brought by a federal, state,
regional or local agency for violation of an applicable law concerning operation of the
Disposal Facility which CITY reasonably believes has placed CONTRACTOR'S ability to
perform under this Agreement in substantial jeopardy, CITY may, at its option and in
addition to all other remedies it may have, demand from CONTRACTOR reasonable
assurances in such form and substance as CITY may require of timely and proper
performance of this Agreement. Should CONTRACTOR fail to provide reasonable
assurances as determined by CITY, within sixty (60) days of CITY's demand, CITY may
terminate this Agreement upon issuance of written notice to CONTRACTOR. Examples of
reasonable assurances include but are not limited to the following: for labor unrest, sharing
with CITY written plans to obtain temporary workers, to redeploy management, etc. to
assure performance; for financial issues, sharing with CITY letters of credit, access to bank
officials for references, etc., as needed.
XIII. COMPLIANCE WITH LAW
In providing the services required under this Agreement, CONTRACTOR shall at all times
comply with all applicable Iaws, permits and approvals pertaining to CONTRACTOR'S
performance under this Agreement, including but not limited to environmental laws,
permits and approvals as they may be enacted, issued, or amended during the Term
(collectively, "Legal Requirements"); provided, however, that this provision shall not
preclude CONTRACTOR from being entitled to an increase in the Contract Gate Rate due
to a Change in Law as defined in Section VI.E. In the event of any conflict between this
Agreement and a Legal Requirement, the Legal Requirement shall govern, and
CONTRACTOR shall not be in breach of this Agreement if CONTRACTOR complies with
such Legal Requirement in contravention of this Agreement.
XIV. REPRESENTATIONS AND WARRANTIES OF CONTRACTOR
Contractor represents and warrants as of the Effective Date of this Agreement as follows:
A. Corporate Status. CONTRACTOR is a corporation duly organized, validly existing
and in good standing under the laws of the State of California. It has the corporate
power to own its properties and to carry on its business as now owned and
operated and as required by this Agreement.
B . Corporate Authorization. CONTRACTOR has the authority to enter into and
perform its obligations under this Agreement. The Board of Directors of
CONTRACTOR (or the shareholders, if necessary) have taken all actions required
by law and by CONTRACTOR'S articles of incorporation, bylaws, or otherwise,
to authorize the execution of this Agreement. The person signing this Agreement
on behalf of CONTRACTOR has authority to do so.
C. Status of Disposal Facility. GRDC owns and operates the Guadalupe Landfill.
The areas to be receiving Franchised Solid Waste under this Agreement at the
Guadalupe Landfill have been designed and constructed in accordance with, or have
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GRDC Waste Disposal Contiu.;t
received applicable variances under, 23 California Code of Regulations Section
2510 et seq. ("Chapter 15"), and the Guadalupe Landfill has been issued all permits
from federal, state, regional, county and city agencies necessary for it to operate as
a sanitary landfill. Upon written request, CONTRACTOR shall provide
documentation to City Representative that CONTRACTOR has adequate financial
responsibility sufficient to finance CONTRACTOR'S closure plan as submitted to
state and local permit enforcement agencies.
D. Agreement Will Not Cause Breach. To the best of CONTRACTOR'S knowledge,
after reasonable investigation, neither the execution nor delivery of this Agreement
nor the performance of this Agreement by CONTRACTOR:
1. conflicts with, violates or results in a breach of any applicable law; or
2. conflicts with, violates or results in a breach of any term or condition of any
judgment, order or decree of any court, administrative agency or other
governmental authority, or any agreement or instrument to which any
CONTRACTOR is a party or by which any CONTRACTOR or any of its
properties or assets are bound, or constitutes a default thereunder.
E. No Pending Litigation. To the best of CONTRACTOR'S knowledge, after
reasonable investigation, there is no action, suit, proceeding or investigation, at law
or in equity, before or by any court or governmental authority, commission, board,
agency or instrumentality pending against any CONTRACTOR wherein an
unfavorable decision, ruling or finding, in any single case or in the aggregate,
would materially adversely affect the performance by CONTRACTOR of its
obligations hereunder or which, in any way, would adversely affect the validity or
enforceability of this Agreement or which would have a material adverse effect on
the financial condition of CONTRACTOR.
F. Notification of Material Changes. CONTRACTOR shall notify CITY within five
(5) days if a representation or warranty found herein becomes untrue in a material
respect during the Term.
X V . REPRESENTATIONS AND WARRANTIES OF CITY
CITY represents and warrants, as of the Effective Date, as follows:
A. Status. CITY is a municipal corporation organized under the laws of the State of
California.
B. Corporate Authorization. CITY has the authority to enter into and perform its
obligations under this Agreement. The City Council of CITY has taken all actions
required by law to authorize the execution of this Agreement. The person signing
this Agreement on behalf of CITY has authority to do so.
C. Agreement Will Not Cause Breach. To the best of CITY'S knowledge, neither the
execution nor delivery of this Agreement nor the performance of this Agreement by
CITY:
1. conflicts with, violates or results in a breach of any applicable law; or
22
GRDC Waste Disposal Contract
2. conflicts with, violates or results in a breach of any term or condition of any
judgment, order or decree of any court, administrative agency or other
governmental authority.
D. No PendingLitigation. To the best of CITY'S knowledge, after reasonable
investigation, there is no action, suit, proceeding or investigation, at law or in
equity, before or by any court or governmental authority, commission, board,
agency or instrumentality pending against CITY wherein an unfavorable decision,
ruling or finding, in any single case or in the aggregate, would materially adversely
affect the performance by CITY of its obligations hereunder or which, in any way,
would adversely affect the validity or enforceability of this Agreement.
X V I . RELATIONSHIP OF PARTIES
The Parties intend that CONTRACTOR shall perform the services required by this
Agreement as an independent CONTRACTOR engaged by CITY and not as an officer or
employee of CITY nor as a partner of or joint venturer with CITY. No employee or agent
of CONTRACTOR shall be or shall be deemed to be an employee or agent of CITY.
Except as expressly provided herein, CONTRACTOR shall have the exclusive control over
the manner and means of conducting the Solid Waste disposal services performed under
this Agreement, and all persons performing such services. CONTRACTOR shall be solely
responsible for the acts and omissions of its officers, employees, subcontractors, and
agents. Neither CONTRACTOR nor its officers, employees, subcontractors, and agents
shall obtain any rights to retirement benefits, workers' compensation benefits, or any other
benefits which accrue to CITY'S employees by virtue of its employment with CITY. All
references to CITY, or to CITY'S employees, agents, representatives, successors or
assigns shall not be deemed to include or refer to CITY'S Designated Hauler.
XVII. SUCCESSORS AND ASSIGNS
The terms, covenants and conditions of this Agreement shall apply to and shall bind the
successors and assigns of CONTRACTOR and CITY. Under no circumstances shall any
proposed assignment be considered by CITY if CONTRACTOR is in default at any time
during the period of consideration.
A. Assignment by CONTRACTOR.
1. Assignment Defined. For purposes of this Section when used in reference
to CONTRACTOR, "assignment" shall include, but not be limited to, (i) a
sale, exchange or other transfer of substantially all of CONTRACTOR'S
assets dedicated to service under this Agreement to a third party; (ii) a sale,
exchange or other transfer of outstanding common stock of
CONTRACTOR to a third party provided said sale, exchange or transfer
may result in a change of control of CONTRACTOR, excluding stock
transfers among the existing shareholders; (iii) any dissolution,
reorganization, consolidation, merger, re -capitalization, stock issuance or
re -issuance, voting trust, pooling agreement, escrow arrangement,
liquidation, or other transaction to which results in a change of ownership
or control of CONTRACTOR; (iv) any assignment by operation of law,
including insolvency or bankruptcy, making assignment for the benefit of
creditors, writ of attachment for an execution being levied against this
Agreement, appointment of a receiver taking possession of
GRDC Waste Disposal Contract
CONTRACTOR'S property, or transfer occurring in the event of a probate
proceeding; and (v) any combination of the foregoing (whether or not in
related or contemporaneous transactions) which has the effect of any such
transfer or change of ownership, or change of control of CONTRACTOR.
2. Permitted Assignments. CONTRACTOR shall not assign its rights nor
delegate or otherwise transfer any obligations under this Agreement to any
other person without the prior written consent of CITY. Any such
assignment made without the consent of CITY shall be voidable and the
attempted assignment shall constitute a breach of this Agreement.
3. Consent Requirements. If CONTRACTOR requests CITY'S consideration
of and consent to an assignment, such consent shall not be unreasonably
withheld. No request by CONTRACTOR for consent to an assignment
need be considered by CITY unless and until CONTRACTOR or the
proposed assignee have disclosed to CITY all information reasonably
requested by CITY relating to the business, assets and history of the
assignee, including at a minimum, and without limitation:
a. Reasonable Expenses. CONTRACTOR shall agree to undertake to
pay CITY its reasonable expenses for attorneys' fees and
investigation costs necessary to investigate the suitability of any
proposed assignee, and to review and finalize any documentation
required as a condition for approving any such assignment, except
that any expenses in excess of $15,000 shall be approved by
Company in advance;
b. Financial Statements. Audited financial statements of the proposed
assignee's operations for the immediately preceding three (3)
operating years;
c. Experience. Satisfactory evidence that the proposed assignee:
(1) has at least ten (10) years of Solid Waste management
experience in the field of solid waste management on a scale
comparable to the scale of operations conducted by
CONTRACTOR;
(2) has not suffered any significant citations or other censure
from any federal, state or local agency having jurisdiction
over its waste management operations due to any significant
failure to comply with state, federal or local waste
management laws and that the assignee has provided CITY
with a complete list of such citations and censures;
(3) has at all times conducted its operations in an
environmentally safe and conscientious fashion; and
(4) that the proposed assignee conducts its Solid Waste
management practices in full compliance with all federal,
state and local laws regulating the collection and disposal of
Solid Waste, including, Hazardous Waste, as identified in
Title 22 of the California Code of Regulations;.
24
GRDC Waste Disposal Contract
d. Other Information. Such other information as CITY shall
reasonably request in order to ascertain whether the proposed
assignee is capable of, and intends to, fulfill its obligations under
this Agreement in a timely, safe and efficient manner.
B . Assignment by CITY. CITY may assign and delegate all rights and duties of the
City, and its Council, Boards and Officials under this Agreement to any joint
powers authority or other public agency; provided, however, that this Agreement
will continue to govern only the disposal of Franchised Solid Waste generated
within CITY.
C. Assignment Not a Release. No assignment by CONTRACTOR or CITY pursuant
to Sections XVII.A or B shall be construed as a release of CONTRACTOR'S or
CITY'S obligations under this Agreement, unless the Party or Parties to whom
such obligations extend consent in writing to release the obligor from such
obligations.
XVIII. REPRESENTATIVES OF THE PARTIES
A. Representatives of CITY. The person whose title appears on the signature page at
the end of this Agreement as the representative of CITY shall have the authority to
exercise all rights of CITY under this Agreement and shall have authority to
perform all obligations of CITY under this Agreement, unless those rights are
outside the scope of the authority of the representative. The City Council of CITY
may authorize such other persons who are employees of CITY to have and exercise
similar rights and such authority. Any such person may, in turn, delegate such
rights and such authority to subordinate officers of CITY. Alternatively, the City
Council of CITY may designate an agency created under any Joint Exercise of
Powers Act of which CITY is a member, as its representative under this
Agreement. CONTRACTOR may rely upon actions taken by such delegates with
respect to CITY'S collective rights and obligations, to the extent that such actions
are authorized by the CITY Council. Immediately upon making any such
authorization or delegation under this Section XVIII.A, CITY shall duly notify
CONTRACTOR in writing of the name(s) of such persons or agencies and the
nature of such authorization or delegation.
B. Representatives of CONTRACTOR. Appearing at the end of this Agreement in the
space so provided is the name or names of such person(s) as CONTRACTOR has
designated to serve as the representative of CONTRACTOR in all matters related to
this Agreement. CONTRACTOR has placed no limitations on the authority of such
persons. CONTRACTOR shall inform CITY in writing of any change in such
designation(s) and of any limitations upon his or her authority to bind
CONTRACTOR. CITY may rely upon action taken by such designated
representatives as actions of CONTRACTOR unless they are outside the scope of
the authority delegated to him/her by the CONTRACTOR as communicated to
CITY.
XIX. NOTICES
Any and all notices to be given under this Agreement, or which any Party may desire to
give to another, shall be in writing. Said notices shall be deemed delivered by personal
delivery to the other Party's place of business as designated below during regular business
25
GRDC Waste Disposal Conti_ _ L
hours, or on the third day following deposit in the mail in the County of Santa Clara,
California, said deposit by registered or certified mail, return receipt requested, postage
prepaid, and addressed as follows:
A. If to CONTRACTOR: Notices required to be given by CITY to CONTRACTOR
may be given to GRDC, and will be deemed received by CONTRACTOR upon
being deemed "delivered" to GRDC according to the provisions of this Section.
Notice of Breach by CITY to CONTRACTOR arising out of the alleged failure,
refusal or neglect by CONTRACTOR to accept or dispose of Franchised Solid
Waste, may be given to GRDC orally or by telephone at the principal office of each,
if confirmed in writing and delivered in person or by facsimile by noon the
following day. Notice to GRDC on behalf of CONTRACTOR shall be addressed
to the following addresses, as indicated:
Street address is:
Mr. Jim Zanardi
c/o Guadalupe Rubbish Disposal Company, Inc.
15999 Guadalupe Mines Road
San Jose, CA 95120
Mailing address is:
P.O. Box 20957
San Jose, CA 95160
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GRDC Waste Disposal Contract
B . If to CITY: To the name and address shown in the space provided at the end of this
Agreement, with a copy to the person whose name and address also so appears. A
copy shall also be provided to:
Solid Waste Manager
West Valley Cities
City of Monte Sereno
18041 Saratoga -Los Gatos Road
Monte Sereno, CA 95030
Telefax: (408)395-7653
Changes of address shall be promptly filed with the other Parties.
X X . WAIVER
The waiver by any Party of any breach or violation of any provisions of this Agreement
shall not be deemed to be a waiver of any breach or violation of any other provision nor of
any subsequent breach of violation of the same or any other provision. The subsequent
acceptance by any Party of any monies which become due hereunder shall not be deemed to
be a waiver of any pre-existing or concurrent breach or violation by the other Party of any
provision of this Agreement. Failure by any Party to give notice of default pursuant to
Section XIX within a reasonable time, which in no event shall exceed one year, after the
date the non -defaulting Party has notice of the default, shall be deemed a waiver of such
default.
XXI. OVERRIDING FEDERAL AND STATE LAWS
The obligations of the Parties in this Agreement are subject to any and all overriding
Federal and State laws and regulations. Should any material obligation or covenant of any
party in this Agreement be determined by a court of competent jurisdiction to be
unenforceable by reason of any Federal or State law or regulation, then no Party shall be
liable to any other Party for breach of this Agreement or for damages; however, in such
event, CONTRACTOR or CITY may elect to terminate this Agreement without liability to
any other Party.
XXII. CITY'S DEFAULT
A. Default Defined. CITY shall be in default under this Agreement ("CITY Default"),
unless excused under Section XXIV or CITY effects a cure under Section
XXII.B below, if:
1. A representation or warranty contained in Section XV proves to be false
or misleading in a material respect as of the date such representation or
warranty is made; or
2. CITY fails to substantially perform its material obligations under this
Agreement.
B. Cure. A default shall occur if CITY fails to cure such breach within sixty (60) days
after receiving notice from CONTRACTOR specifying the breach, provided that if
the nature of the breach is such that it will reasonably require more than sixty (60)
27