HomeMy WebLinkAbout7.1 Attachment 2
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EXHIBIT 2
PRELIMINARY DRAFT AGREEMENT
FOR INTEGRATED SOLID WASTE
MANAGEMENT SERVICES
JANUARY 23, 1995
CITY COUNCIL MEETING
STAFF REPORT
,
PRELIMINARY DRAFT
AGREEMENT
BETWEEN
THE CITY OF DUBLIN
AND
FOR
INTEGRATED SOLID WASTE
MANAGEMENT SERVICES
.. .. ..
January 18, 1995
RECITALS
ARTICLE 1.
1.1
1.2
1.3
1.4
1.5
1.6
1.7
1.8
1.9
1.10
1.11
1.12
1.13
1.14
1.15
1.16
1.17
1.18
1.19
1.20
1.21
1.22
1.23
..24
1.25
1.26
PRELIMINARY DRAFT
AGREEMENT
BETWEEN
THE CITY OF DUBLIN
AND
FOR
INTEGRATED SOLID WASTE
MANAGEMENT SERVICES
TABLE OF CONTENTS
DEFINITIONS
AB 939
. Affiliate
Agreement
Billings
California Integrated Waste Management Act
City
Collect/ Collection
Commercial and Industrial Property
Commercially Generated Recyclable Materials
Company
Company Compensation
Company s Proposal
Construction Debris
Containers
Demolition Debris
Disposal
Disposal Company
Disposal Site(s)
Environmental Laws
Facility
Fiscal Year
Franchise
Garbage
Green Waste
Hazardous Substance
Hazardous Waste
l.
Page
1
3
3
3
3
4
4
4
4
4
4
4
4
5
5
5
5
5
5
5
5
6
6
6
6
6
6
7
January 18, 1995, Draft
I
1.27
1.28
1.29
1.30
1.31
1.32
1.33
1.34
1.35
1.36
1.37
1.38
1.39
1.40
1.41
1.42
1.43
1.44
1.45
1.46
1.47
1.48
1.49
1.50
ARTICLE 2.
2.1
2.2
2.3
2.4
2.5
2.6
2.7
2.8
2.9
2.10
2.11
2.12
2.13
2.14
2.15
Household Hazardous Waste (HHW)
Legislation
Materials Recovery Facility (MRF)
Mixed Recyc1ables
Multi-Family Dwelling Unit
Owner
Pass-Through Cost
Person
Premises
Recycling
Recyclable
Recyclable Materials
Recycled
Refuse
Related Party Entity
Residential Property
Rubbish
Single-Family Dwelling Unit
Solid Waste
Source Reduction Program
Source Separation
Transfer Company
Transfer Station
Waste Generator
GRANT AND ACCEPTANCE OF FRANCHISE
Grant and Acceptance of Franchise
Effective Date
Term of Agreement
Option to Extend Term
Conditions to Effectiveness of Agreement
Scope of Franchise
Limitations to Scope
The City's Right to Direct Changes
Ownership of Solid Waste
Company Status
Company Authorization
Statements and Information in Proposal
Status of Disposal Site
Oosure of Disposal Site
Status of Transfer Station
Page
7
7
7
7
7
8
8
8
8
8
8
8
9
9
9
9
9
9
9
10
10
. 10
10
10
11
11
11
11
11
11
12
12
14
14
15
15
16
16
16
17
January 18, 1995, Draft
ARTICLE 3.
3~1
3.2
3.3
3.4
ARTICLE 4.
4.1
4.2
4.3
4.4
4.5
4.6
4.7
4.8
4.9
ARTICLE 5.
5.1
5.2
5.3
5.4
ARTICLE 6.
6.1
6.2
6.3
6.4
6.5
6.6
6.7
6.8
6.9
6.10
6.11
FRANCHISE FEE AND SOURCE REDUCTION AND RECYCLING
FEE (SRR FEE), AND ADMINISTRATIVE FEE
Franchise Fee
Source Reduction and Recycling (SRR) Fee
Administria e Fee
Other Fees
DIRECT SERVICES
Solid Waste
Recycling
Green Waste Program
Operations
Implementation Plan
Contingency Plan
"[Intentionally Left Blank]
Transfer
Disposal
OTHER SERVICES
Services and Customer Billing
Customer Service
Education and Public Awareness
Waste Generation/Characterization Studies
COMPANY'S COMPENSATION AND RATES
. General
Solid Waste, Recyclables and Green Waste Collection Company's
Initial Compensation
Solid Waste, Recyclables and Green Waste Collection Company's
Compensation for the Third Rate Year
Solid Waste, Recyclables and Green Waste Collection Company's
Compensation for the Four Rate Years Ending March 31, 2003
Solid Waste, Recyclables and Green Waste Collection Company's
Compensation for the Extension Period
Variances from Projections
Schedule
Interim Compensation Adjustment
Initial Rates
Subsequent Rates
Disposal Rate and Future Adjustments
January 18, 1995, Draft
t
Page
18
18
19
20
20
21
21
24
25
26
33
33
33
34
37
42
42
43
45
46
47
47
47
48
53
55
55
55
56
56
56
56
ARTICLE 7.
7.1
ARTICLE 8.
8.1
8.2
8.3
8.4
ARTICLE 9.
9.1
9.2
9.3
9.4
9.5
ARTICLE 10.
10.1
10.2
10.3
10.4
10.5
10.6
ARTICLE 11.
11.1
11.2
11.3
11.4
11.5
11.6
ARTICLE 12.
12.1
12.2
12.3
12.4
12.5
REVIEW OF SERVICES AND PERFORMANCE
Performance Hearing
RECORDS, REPORTS AND INFORMATION REQUIREMENTS
General
Records
Reports
Right to Inspect Records
INDEMNIFICATION, INSURANCE AND BOND
Indemnification
Hazardous Substances IndemnIfication
AB 939 Indemnification
Insurance
Faithful Performance Bond
THE CITY'S RIGHT TO PERFORM SERVICE
General
Temporary Possession of Company's Property
Billing and Compensation to City During City's Possession
City's Right to Relinquish Possession
City's Possession Not a Taking
Duration of City's Possession
DEFAULT, REMEDIES AND liQUIDATED DAMAGES
Events of Default
Right to Terminate Upon Default
. Liquidated Damages
Excuse from Performance
Notice, Hearing and Appeal of City Breach
Assurance of Performance
OTHER AGREEMENTS OF THE PARTIES
Relationship of Parties
Compliance with Law
Governing Law
Jurisdiction
Assignment
January 18, 1995, Draft
Page
57
57
59
59
59
61
65
66
66
67
67
68
73
74
74
75
76
76
76
76
77
77
78
79
82
83
84
85
85
85
85
85
86
12.6
12.7
12.8
12.9
12.10
12.11
12.12
12.13
12.14
12.15
12.16
12,.17
12.18
1219
12.20
ARTICLE 13.
13.1
13.2
13.3
13.4
13.5
13.6
13.7
Exhibits
Affiliated Companies
Contracting or Subcontracting
Binding on Assigns
Transition to Next Company
Parties in Interest
Waiver
Company's Investigation
Condemnation
Notice
Representatives of the Parties
City Free to Negotiate with Third Parties
Compliance with Municipal Code
Lease of Equipment and Facilities
Loans
Privacy
Page
88
88
88
89
89
89
89
89
89
90
91
91
91
91
91
MISCELLANEOUS AGREEMENTS
92
Entire Agreement
Section Headings
References to Laws and Other Agreements
Interpretation
Agreement
Severability
Exhibits
92
92
92
92
92
92
93
1. Company's Proposal
2. Public Facilities
3. Initial Rates
4. Faithful Performance Bond
5. Notary Certification
January 18, 1995, Draft
RECITALS
This Franchise Agreement (Agreement) is entered into this _ day of
-oJ 1995, by aI.ld between the City of Dublin (City) and
(Company), for the collection, transportation, recycling, .processing, and disposal of
solid waste and other services related to meeting the goals and requirements of the
California Integrated Waste Management Act.
Recitals
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 solid waste
handling within their jurisdictions; and,
WHEREAS, pursuant to California Public Resources Code Section 40059(a)(2), the
City Council of the 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,
transfer and transportation, recycling, processing, and disposal of solid waste and other
services related to meeting the diversion goals of 25% by January 1, 1995, and 50% by
January 1,2000, and other requirements of the California Integrated Waste Management
Act; and,
WHEREAS, the City Council of the City declares its intention of maintaining
reasonable rates for the collection, transportation, recycling, processing, and disposal of
solid waste and other services; and,
WHEREAS, the current franchise agreements will expire on March 31, 1996; and,
WHEREAS, the City and Company (Parties) hereto desire to enter said Agreement;
and,
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January 18, 1995, Draft
WHEREAS, Company agrees to and acknowledges that it shall arrange for .the
proper disPOSal of all solid waste collected in the City and the City is not instructing
Company how to collect and dispose of solid waste.
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:
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January 18, 1995, Draft
ARTICLE 1
DEFINITIONS
1. AB 939
"AB 939" means the California Integrated Waste Management Act of 1989
(California Public Resources Code Section 40000 et al.), as it may be amended
from time to time.
2. Affiliate
"Affiliate" means all businesses (including corporations, limited and general
partnerships and sole proprietorships) which are directly or indirectly related to
the Company by virtue of direct or indirect ownership interest or common
management shall be deemed to be "Affiliated with" Company and included
within the term "Affiliates" as used herein. An Affiliate shall include a business
in which Company owns a direct or indirect ownership interest, a business
which has a direct or indirect ownership interest in the Company and/or a
business which is also owned, controlled or managed by any business or
individual which has a direct or indirect ownership interest in Company. For
purposes of determining whether an indirect ownership interest exists, the
constructive ownership provisions of Section 318(a) of the Internal Revenue Code
of 1986, as in effect on the date of this Agreement, shall apply; provided,
however, that (i) "ten percent (10%)" shall be substituted for "fifty percent (50%)"
in Section 318(a)(2)(C) and in Section 318(a)(3)(C) thereof; and (ii) Section
318(a)(5)(C) shall be disregarded. For purposes of determining ownership under
this paragraph and constructive or indirect ownership under Section 318(a),
ownership interest of less than ten percent (1~%) shall be disregarded and
percentage interests shall be determined on the basis of the percentage of voting
interest or value which the ownership interest represents, whichever is greater.
3. Agreement
"Agreement" means this Franchise Agreement between the City and Company
for Collection, transportation, Recycling, processing and Disposal of Refuse,
Recyclable Materials and Yard Waste, and other services related to meeting the
goal and requirements of AB 939, including all exhibits and attachments, and any
amendments thereto.
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January 18, 1995, Draft
4. Billh\g$
"BnUngs" means any all staten. . "S of charg~ for services rendered,
ho \,,, .,oover made, de ed or dested by (.. rnpany, or made by others for
Company, to owners UN .JCCUpants OA property, mcluding Residential Property
and Commercial and Industrial Property, served by Company for the Collection
of Solid Waste.
5. California Intep'ated Waste M~Fment Ad
"California Integrated Waste Management Act" means (Public Resources Code,
Section 40000 et seq.l.
6. ~
"Oty" means the City of Dublin, a municipal corporation, and all the territory
lying within the municipal boundaries of the Oty as presently existing or as su~
boundaries may be modified during the term of this Agreement.
7. Collect/Collection
"Collect" or "Collection" means to take physical possession, transport, and
remove Solid Waste within and from the Oty .
8. Commercial and Indu~trial Property
"Commercial and Industrial Property" means property upon which business
activity is conducted, including but not limited to retail sales, services, 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.
9. Cmrunercially Generated Rec:yclable Materials
"Commercially Generated Recyclable Materials" means Recyclable materials
generated at Commercial and/or Industrial Property and separated by the Waste
Generator for Collection in a manner different from Garbage or Refuse.
10. Com.paI\Y
"Company" means . a corporation organized
a:' d operating under the laws of the State of and its officers,
directors, employees, agents, companies and subcontractors.
11. COlI\Pany COlI\Pensation
"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. '
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January 18, 1995, Draft
12. Conwcuv's Proposal
"Company's Proposal" means the proposal submitted and received on_
I by Company in response to a Request for Proposals dated
. which is included as Exhibit 1 to this Agreement and is
incorporated by reference.
13. Construction Debris
"Construction Debris" means used or discarded construction materials removed
from a Premises during the construction of a structure.
14.. Containers
"Containers" means any and all types of Solid Waste receptacles.
15. Demolition Debris
"Demolition Debris" means used construction materials removed from a site
during the razing or renovation of a structure as part of a total service offered by
a duly licensed demolition contractor (C-21 license).
16. Diaposal
"Disposal" means the final disposition of Solid Waste Collected by the Company
at a landfill or other facility approved by the City.
17. Diaposal Company
"Disposal Company" means . a corporation organized and
operating under the laws of the State of and its officers,
directors, employees, agents, companies and subcontractors.
18. Diaposal Site(s)
"Disposal Site(s)" mean the Solid Waste handling facility or facilities designated.
by the City for the ultimate Disposal of Solid Waste Collected by the Company.
19. Environmental Laws
"Environmental Laws" means all federal and state statutes, county, local and the
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 use S9601 et seq.; the
Resource Conservation and Recovery Act, 42 use S6902 et seq.; the Federal
Oean Water Act, 33 USC SI251 et seq.; the Toxic Substances Control Act, 15 USC
S1601 et seq.; the Occupational Safety and Health Act, 29 USC S651 et seq.; the
California Hazardous Waste Control Act, California Health and Safety Code
~25100 et seq.; the California Toxic Substances Account 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
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January 18, 1995, Draft
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January 18, 1995, Draft
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 biphenyls (''PCBs''), petroleum, natural gas and synthetic fuel
products, and by-products.
26. 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 u.s. Environmental Protection Agency, pursuant to the
Federal Resource Conservation and Recovery Act (42 use ~6901 et seq.), all
future amendments thereto, and all rules and regulations promulgated
thereunder.
27. Household Hazardous Waste (HHWl
"Household Hazardous Waste" means Hazardous Waste generated at residential
Premises.
28. Legislation
"Legislation" means any code, ordinance, resolution or any. other
forms/enactment of the governing body of the Oty which now exists or which
may hereafter be adopted which constitutes law or regulation governing the
operation of the Company.
29. Materials RecoveQT Facllity (MRFl
"Materials Recovery Facility" means a permitted Solid Waste facility where Solid
Wastes or Recyclable Materials are sorted or separated for the purposes of
Recycling or composting.
30. Mixed Rec:yc1ables
"Mixed Recyclables" means more than one type of Recyclable materials in a bin,
debris box, compactor or other type of Container which have been separated
from Solid Waste. This material includes but is not limited to wood, paper,
plastic, metals, glass, and other dry waste.
31. Multi-Family Dwelling Unit
"Multi-Family Dwelling Unit" means any Premises serviced in a manner similar
to Commercial and Industrial Property (bin Qr debris box), but used for
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January 18, 1995, Draft
residential purposes (not including hotels or motels), irrespective of whether
residence therein is transient, temporary or permanent.
32. Owner
"Owner" means the Person holding the legal hue to the real property constituting
the Premises to which Solid Waste Collection service is to be provided under this
Agreement.
33. Pass- Thro~ Cost
"Pass-Through Cost" means a cost to the Company (e.g., Disposal and Franchise
fees) which no element of overhead, administrative expense, profit, or other cost
is added nor with respect to which any other amount is credited, such that the
specific amount of such cost is included without modification in the calculations
or reports to which such costs pertain.
34. Person -
"Person" means any individual, firm, association, organization, partnership,
corporation, business trust, joint venture, the United States, the State of
California, the County of Alameda, towns, cities, and special purpose districts.
35. Premises
"Premises" means any land, or building in the Oty where Solid Waste is
generated or accumulated.
36. Rec:yc1iIlg
"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 Solid Waste not intended for, or capable of, reuse is
not Recycling. Recycling does not include use of Solid Waste for conversion to
energy.
37. . Rec:yc1able
"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.
38. Rec:yc1able Mat~~dal&
"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
. "Recyclable Materials" includes Mixed Recyclables.
-8-
January 18, 1995, Draft
39. Rec:ycled
"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 mate~s.
40. Refuse
"Refuse" includes both Garbage and Rubbish and means putrescible and non-
putrescible Solid Waste or debris, except sewage, whether combustible or non-
combustible.
41. Related Party Entity .
"Related Party Entity" means any Affiliate which has financial transactions with
the Company
42. Residential PrQperty
"Residential Property" means property used for residential purposes, irrespective
of whether such dwelling units are rental units or are owner-occupied.
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.
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 or
town house in all cases in which there is separate or individual Solid Waste
Collection service using cans or carts.
45. Solid Waste
"Solid Waste" means all putrescible and non-putrescible residential Refuse,
commercial Refuse, institutional Refuse, Garbage, Recyclable Material, Green
Waste, and Rubbish and as otherwise defined in Public Resources Code ~0191.
Any material that a Waste Generator pays to be hauled away shall be defined to
be Solid Waste and not a Recyclable Material.
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January 18, 1995, Draft
46. Source Reduction PrQg1am
"Source Reduction Program" means any program that reduces the amount of
Refuse that would otherwise be disPosed of in a landfill, including without
limitation Recycling, processing, salvaging and waste-to-energy projects.
47. Source S~aration
. "Source Separation" means the segregation into separate Containers by the Waste
Generator of individual components of material which otherwise would become
:&::~:use or Garbage, such as glass bottles, nu-rta} cans, newspapers, plastic
containers, etc., for the sole purpose of Recycling, to be picked up by Company.
48. Transfer Conwany
"Transfer Company" means . a corporation organized and
operating under the laws of the State of and its officers,
directors, employees, agents, companies and subcontractors.
49. Transfer Station
"Transfer Station" includes those facilities used to receive Solid Wastes,
temporarily store, separate, convert, or otherwise process the materials in the
Solid Wastes, or to transfer the Solid Wastes directly from smaller to larger
vehicles for transport to a Disposal Site.
50. Waste Generator
'Waste Generator" means any Person as defined by Section 40170 of the Public
Resources Code, whose act or process produced Solid Waste as defined in Public
Resources Code Section 40191, or whose act first causes Solid Waste to become
subject to regulation.
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January 18, 1995, Draft
ARTICLE 2
GRANT AND ACCEPTANCE OF FRANCHISE
2.1 Grant and Acceptance of Franchise
Subject to Section 2.5, the City hereby grants to Company the exclusive
Franchise, right and privilege to Collect, transfer, transport, Recycle, process, and
dispose of Solid Waste and Construction and Demolition Debris accumulating in
the City that is required to be accumulated and offered for Collection to the
Company in accordance with this Agreement.
Company hereby accepts the Franchise on the terms and conditions set forth in
this Agreement.
2.2 Effective Date
The effective date of this Agreement shall be
("effective date").
2.3 Term of Agreement
The term of this Agreement shall be seven (7) years commencing at midnight
and expiring at midnight subject to
extension as provided in Section 24.
2.4 Option to Extend Term
The City shall have the sole option to extend this Agreement three (3) times up to
thirty-six (36) months in periods of at least twelve (12) months each. If the City
elects to exercise this option, it shall give written notice not later than ninety (90)
days prior to the initial termination date, or, if an extension has been exercised,
ninety (90) days prior to the extended termination date.
2.5 Conditions to Effective:g.ess of Agreement
The obligation of the 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 the City.
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January 18, 1995, Draft
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 9.
d) Effectiveness of City Council Action. The City's Resolution No.
approving this Agreement, ~ have become effective pursuant to
California law prior to the effective date.
2.6 Scope of Franchise
Subject to Section 27, the Franchise granted to Company shall be exclusive for
Garbage, Mixed Recyclables, Recyclable Materials, Refuse, Rubbish, Construction
and Demolition Debris, residential, commercial and industrial Solid Waste,
cannery waste, and Green Waste except where otherwise precluded by state law
or where other current programs provide for Collection and Disposal of HHW.
2.7 Limitations to Sco.pe
The Franchise for the Collection, removal and Disposal of Solid Waste granted to
Company shall be exclusive except as to the following categories of Solid Waste
listed in this Section. The granting of this Franchise shall not preclude the
categories of Solid Waste 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
the City which is otherwise required by law:
a) Recyclable Materials source separated (as defined in the Dublin
Municipal Code Chapter 5.32) from Solid Waste by the Waste Generator
and for which Waste Generator sells or is otherwise compensated by a
collector in a manner resulting in a net payment to the Waste Generator;
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January 18, 1995, Draft
b) Solid Waste, including Recyclable Materials and Green Waste, 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 a processing or Disposal Facility;
c) Recyclable Materials and Green Waste which are source separated at any
Premises by the Waste Generator and donated to youthl civic, or
charitable organizations.
d) . Containers delivered for Recycling under the California Beverage
Container Recycling Litter Reduction Act, Section 14500, et. seq. 9Uifornia
Public Resources Code:
e) Green Waste removed from a Premises by a gardening, landscaping, or
tree trimming Company as an incidental part of a total service offered by
that Company rather than as a hauling service;
f) Demolition Debris removed from a Premises by a licensed demolition or
construction company using its own employees and equipment as an
incidental part of a total service offered by that company rather than as a
hauling service;
g) Animal waste and remains !rom slaughterhouse or butcher shops for use
as tallow;
h) By-products of sewage treatment, including sludge, sludge ash, grit and
screenings; and,
i) Hazardous Waste and designated waste regardless of its source.
The Company acknowledges and agrees that the City may permit other Persons
besides the Company to Collect any or all types of the Solid Waste listed in this
Section 27, including Recyclable materials, without seeking or obtaining
approval of the Company under this Agreement.
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. January 18, 1995, Draft
This grant to the Company of an exclusive Franchise, right and privilege to
ColleM:, transport or process and Dispose of Solid Waste shall be interpreted to be
cor; ,..mt 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 Solid Waste handling, exclusive
Franchise, control Recyc1ables, 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 the City to lawfully provide for the scope of
Franchise services as specifically set forth herein, the 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 the City shall not be
responsible for any lost profits claimed by the 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 the Company to minimize the financial impact to
other services being provided as much as possible.
2.8 The City's Rtght to Direct Chat'\ges
The City may direct Company to perform additional services (including billing
services) or modify the manner in which it performs existing services. Company shall
respond to direction from the City in writing within thirty (30) days.
If Company is capable of performing or developing the ability to perform a requested
service or modifying an existing service, and an adjustment in the Company's revenue
requirement has been requested but has not been agreed upon, Company shall
commence the new or changed service while the appropriate revenue adjustment is
being determined. 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 the City may direct.
Company acknowledges and agrees that the City may permit other Persons besides
Company to perform additional Solid Waste services, if Company and the City cannot
agree on terms and conditions of such services in sixty (60) days from the date when
the City first requests a proposal from the Company to perform such services.
2.9 Ownership of Solid Waste
Once Solid Waste is placed in Containers and properly placed at the designated
Collection location, ownership and the right to possession shall transfer directly from
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January 18, 1995, Draft
the Waste Generator to Company by operation of law. Subject to Company's objective
to meet the Source Reduction and Recycling goals which apply to the City and the
City's right to direct the Company to process and dispose of Solid Waste at a
particular licensed Solid Waste processing Facility or to dispose of Solid Waste at a
particular licensed Disposal Facility, if and only if the City exercises such right by
providing specific written direction to Company, Company is hereby granted the
right to retain, Recycle, process, Dispose of, and otherwise use such Refuse, Green
Waste, Recyclable Materials, Construction and Demolition Debris, or any part thereof,
in any lawful fashion or for any lawful purpose desired by Company. 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 use the Refuse,
Green Waste, Recyclable Materials, Construction and Demolition Debris which it
Collects. Any cost savings shall off-set the Company's operating expenses. Refuse,
Green Waste, Recyclable Materials, Construction and Demolition Debris, or any part
thereof, which is disposed of at a Disposal Site or sites (whether landfill,
transformation Facility, Transfer Station, or Material Recovery Facility) shall become
the proPerty of the Owner or operator of the Disposal Site(s) once deposited there by
Company. The City may obtain ownership or possession of Solid Waste 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 the City has such
ownership or possession unless such written notice has been given to Company.
2.10 COl1\Pany Status
The Company is duly organized, validly existing and 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.
2.11 Company Authorization
The Company has the authority to enter into and perform its obligations under this
Agreement. The Board of Directors or partners of the Company (or the shareholders,
if necessary) have taken all actions required by law, its articles of incorporation, its
bylaws or otherwise to authorize the execution of this Agreement. The Persons
signing this Agreement on behalf of the Company have authority to do so.
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January 18, 1995, Draft
2.12 Statements and Information in Proposal
The proposal dated . 1995, and any information submitted to the City
supplementary thereto, on which the City has :relied upon in awarding the Franchise
to the Company and entering into this Agreement, does not contain any untrue
statement of a material fact nor omit to state a material fact necessary in order to make
the statements made, in light of the circumstances in which they were made, not
misleading.
2.13 Status of Disposal Site
owns the landfill. The landfill has been designed and constructed in
accordance with 23 California Code of Regulations Section 2510.~ ~ ("Subchapter
15"). The landfill has been issued all permits from federal, state, regional, county and
City agencies necessary for it to operate as a Class _ Sanitary Landfill and is in
compliance with all such permits.
is currently authorized to accept, under its existing permit, and has
sufficient uncommitted capacity to accept, all Solid Waste delivered to it by, or on
behalf of, the City until . provided that the rate of delivery does not
significantly increase over the current rate (e.g., tons per year, with a
peak daily loading of tons per day).
2.14 Closure of D~osal Site
The closure and post-closure maintenance plans required by 14 California Code of
Regulations Section 18260 et ~ have been submitted to and approved by the state
and local permit enforcement agencies having jurisdiction over the landfill. Owner of
the Disposal site has submitted evidence to the appropriate governing authorities of
adequate provisions to finance the closure and post-closure maintenance of the
landfill as required by 14 California Code of Regulations Section 18260 gt ~ and
these arrangements have also been approved by the state and local permit
enforcement agencies having jurisdiction. The mechanism which Owner of the
Disposal site currently plans to utilize to meet the state requir~ent of financial
assurance for closure is a and the mechanism Owner of the Disposal site
currently plans to use to meet the state requirement of financial assurance for post-
closure maintenance is . Owner of the Disposal
site may change either or both of these mechanisms to another legally authorized
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January 18, 1995, Draft
mechanism if the change is approved by the California Integrated Waste Management
Board.
2.15 Status of Trapsfer Station
owns the Transfer Station. The Transfer Station has been designed and
constructed in accordance with all applicable state and local laws (e.g., CEQA,
California Code of Regulations, etc.). The Transfer Station has been issued all permits
from federal, state, regional, county and Oty agencies necessary for it to operate as a
Transfer Station and is in compliance with all such permits.
The Transfer Station is currently authorized to accept, under its existing permit, and
has sufficient uncommitted capacity to accept, all Solid Waste delivered to it by, or on
behalf of, the City for the duration of the Agreement, provided that the rate of
delivery does not significantly increase over the current rate (e.g., tons per
year, with a peak c;iaily loading of tons per day).
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January 18, 1995, Draft
ARTICLE 3
FRANCHISE FEE,
SOURCE REDUCTION AND RECYCLING FEE (SRR FEE),
AND ADMINISTRATIVE FEE
3.1 Franchise Fee
3.L1 Franchise Fee.Amount
In consideration of the exclusive Franchise provided in Section 21 of this
Agreement, Company shall pay to the City 4.8% percent (or another amount as
provided in Section 3.1.3) of the gross revenues derived by Company from
services provided in the City. This Franchise fee shall be a Pass-Through Cost.
3.1.2 Time and Method of Payment
On or before the twentieth (20th) day of each month during the term of this
Agreement, Company shall remit to the City a sum of money equal to the
percent, as provided in Section 3.1.1, of the gross Solid Waste revenues collected
by Company from within the City, including revenues from the sale of Recycled
Materials during the preceding calendar month, as a Franchise Fee. If the
Franchise fee is not paid on or before the twentieth (20th) day of any month,
Company shall pay to the City a late payment fee in an amount equal to two ,
percent (2%) of the amount owing for that month. Company shall pay an
additional two percent (2%) owing on.any unpaid balance for each following
thirty (30) day period the Franchise Fee remains unpaid. Late payment fees shall
not be included in any revenue requirement. The City may lawfully deduct any
Franchise Fees and/or penalties remaining unpaid from amounts which the City
may owe the Company in accordance with Section 5.1.2
Each monthly remittance to the City shall be accompanied by a statement
detailing gross receipts for the period covered from all operations conducted or
permitted, including revenues from the sale of Recyclable Materials, pursuant to
this Agreement. In addition, Company shall maintain copies of all Billing and
Collection records for three (3) years, following the date of billing, for inspection
and verification by the City at any reasonable time upon request.
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January 18, 1995, Draft
3.1.3 Adjusbnent to Franchise Fee
The City may adjust the amount of the Franchise Fee annually. Such adjustment
shall be reflected in the rates that the Company is allowed to charge and collect
from customers.
3.2 Source Reduction and Rec:ycliIla (SRR) Fee
3.2.1 SRR Fee Amount
The City has incurred expenses for preparing and adopting the Source Reduction
and Recycling and Household Hazardous Waste Elements (SRRE and HHWE,
respectively) required by AB 939. The City has, and will continue, to incur
expenses for implementing the programs in the SRRE and mIWE. These
expenses will be determined and a fee designed to reimburse the City. Such fees
shall be set by Oty resolution and provided to Company by the Oty. Company
will collect these fees from customers on the regular Billings and remit (X)llected
amounts to the Oty on a monthly basis, as provided below. This fee shall be a
Pass-Through Cost. Company may be required to separately identify the SRR
Fee and other specific costs on bills as determined and directed by the City.
3.2.2 Time and Method of Payment
Except as expressly provided below, during the term of this Agreement and any
extension thereof, Company shall remit one-twelfth (1/12th) of the total amount
identified as the SRR Fee in the rate structure monthly to the Oty in the same
fashion and subject to the same terms and conditions as the Franchise Fee.
Company shall continue to pay the same one-twelfth (1/12) of the SRR Fee to the
Oty each month until the SRR Fee is changed by Oty resolution. The annual SRR
Fee set upon execution of this Agreement shall be Zero Dollars ($0).
3.2.3 Adjusbnent to SRR Fee
The City may adjust the amount of the SRR Fee annually. Such adjustment shall
be reflected in the rates that the Company is allowed to charge and collect from
customers.
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January 18, 1995, Draft
3.3 Administrative Fee
3.3.1 Administrative Fee Amount
In consideration of the costs related to the administration of the exclusive
Franchise provided in Section 21 of this Agreement, Company shall pay to the
Oty 2% percent (or another amount as provided in Section 3.3.3) of the gross
revenues derived by Company from services provided in the City, including the
revenue from the sale of Recyclable Materials. This Administrative Fee shall be a
Pass-Through Cost.
3.3.2 Time and Method of Payment
On or before the twentieth (20th) day of each month during the term of this
Agreement, Company shall remit to the City a sum of money equal to two
percent (2%) of the gross Solid Waste revenues Collected by Company from
within the City, including revenues from the sale of Recyclable Materials during
the preceding calendar month, as an Administrative Fee. H the Administrative
Fee is not paid on or before the twentieth (20th) day of any month, Company
shall pay to the City a late payment fee in an amount equal to two percent (2%) of
the amount owing for that month. Company shall pay an additional two percent
(2%) owing on any unpaid balance for each following thirty (30) day Period the
Administrative Fee remains unpaid. Late fees shall not be included in any
revenue requirement. The Oty may lawfully deduct any Administrative Fees
and/ or penalties remaining unpaid from amounts which the City may owe the
Company in accordance with Section 5.1.2.
3.3.3 Adjustment to Administrative Fee
The City may adjust the amount of the Administrative Fee annually. Such
adjustment shall be reflected in the rates that the Company is allowed to charge
and Collect from customers.
3.4 Other Fees
The City shall reserve the right to set other fees, as it deems necessary. These fees
will be treated as a Pass-Through Cost The amount, time and method of
payment and adjustment process will be set similar to Section 3.1 above.
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January 18, 1995, Draft
ARTICLE 4
DIRECT SERVICES
4.1 Solid Waste
4.L1 General
The work to be done by the 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 the Company of the duty to furnish
all others, as may be required, whether enumerated or not.
The work to be done by the Company pursuant to this Agreement shall be
accomplished in a thorough and professional manner so that the residents and
businesses within the City are provided reliable, courteous and high-quality
Solid Waste Collection at all times. The enumeration of, and specification of
requirements for, particular aspects of service quality shall not relieve the
. 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.
4.1.2 Residential Refuse - Single Family Dwelling Unit
Company shall Collect Refuse from the Containers delivered for Collection by
the Waste Generator at locations including backyard, sideyard or curbside [or, at
the curbside from Company-provided Containers, if automated service is
selected], not less than once per week, except as specified below.
If automated service is selected, senior citizens (age 65 or older and head of
household), and handicapPed or temporarily incapacitated residents shall have
the option of placing their Containers near their dwelling, visible from curbside,
and Company will pick up Solid Waste at this location or other arrangement
suitable to this category of rate payer and return Container to same location.
Authorization for residents to participate in this optional program shall come
from the City and information on this option shall be provided by the Company
upon request. Company will notify all residents annually, beginning within
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January 18, 1995, Draft
thirty (30) days of execution of this Agreement, of this Collection option and
submit, for approval, a draft notification to the Oty prior to distribution to
customers. New customers should be notified of this option upon requesting
service.]
4.1.3 Commercial, Industrial, and Multi-Family Dwelling Units
Company shall Collect Refuse from Company-provided Solid Waste Containers
of a size and shape acceptable to Company, not less than once per week. Special
consideration shall be given when determining the pick up area for Commercial,
Industrial, and/or Multi-Family 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, if disputed by customer or Company, shall be
determined by the City. 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.
4.1.4 City Facilities' Collection
Company shall Collect and dispose of all Refuse generated at Premises owned
and/or operated by the Oty. Company shall make Collections from Containers
Monday through Friday or on Saturdays following non-working holidays.
Commercial (bin) and industrial (debris box) Collections shall be scheduled at a
time mutually agreed upon by the Company and the City. Th~ location of these
public collections are described in Exhibit 2
Company shall provide, at the City's direction, additional Solid Waste Collection,
Disposal, processing and consulting services entailing: >
a) Collection of Solid Waste from all public sidewalk litter Containers;
b) Collection of Green Waste and Recyclable Materials from Oty facilities
and parks;
c) Collection of Solid Waste from City sponsored special events;
d) Collection of Solid Waste from litter Containers in Oty parks;
e) Drop box or container services to City; and,
f) Review of plans for land uSe or property developments with regard to
Solid Waste service issues.
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January 18, 1995, Draft
Except for item f) above, the services required by this Subsection 4.1.4 shall be
provided at no charge to the City but the cost of providing them shall be an
allowable expense.
4.LS Construction and Temporary BinslRoll-off Service
Company shall provide construction and temporary bins/roll-off service for the
purpose of Collection of non-hazardous Solid Waste. 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 Construction and 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 pickup area, if disputed by customer or
Company, shall be determined by the Oty. 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.
4.1.6 Annual Oeanups
Company shall provide services for four (4) Oty cleanups annually, as described
in its proposal. Each cleanup shall be a minimum two -(2) weeks long. The dates
for the cleanup shall be proposed by Company prior to January of each year and
approved by the City. Company shall pick up authorized annual cleanup items
from all Single Family Dwelling Units at the curbside and transport to a Transfer
Station, Disposal Site or MRF at no additional cost of customers. The following
guidelines must be followed:
· All waste must be left at the curb by 5:30 a.m.
· The truck will pass each street one time only.
· Items must be placed in disposable garbage bags or boxes only. Regular
garbage cans will not be emptied.
· Tree pruningsand branches must be tied in bundles not longer than 5 feet.
· The maximum each residence may disPOse of is 3 cubic yards (approximately
24 trash bags or 3' x 3' x 9'). .
· No single item over 75 pounds will be accepted.
· The following items will not be picked up: Hazardous Waste, including waste
oil or anti-freeze, concrete and dirt, or appliances.
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January 18, 1995, Draft
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 Solid Waste, as described
above, after reasonable warnings have been given. Company shall notify City of
. Persons whose clean-up items were not collected.
Company shall record by class and weight (in tons) the Solid Waste, white goods
(e.g., refrigerators, major household appliances), etc., Collected during the
cleanup events. Company shall record the kinds and weights (in tons) of Solid
Waste diverted during these cleanups from the landfill through Recycling, reuse,
transformation or other means of diversion.
4.2 Recycling
4.2.1 General
Company shall Collect and remove all Recyclable Materials placed in or adjacent
to Recycling Containers at ~e designated Collection locations for Single Family
Dwelling Units, Multi-Family Dwelling Units and commercial accounts in
accordance with its Proposal (Exhibit 1). Company shall keep separate records
on aD Recyclable Materials Collected from each sector (e.g., commercial, multi-
family, single family, residential). Such records shall be made available for
inspection by the City upon request during normal hours of operation.
Recyclable Material Collection from Residential ProPerty within the City shall be
a minimum of once each week. Residential Recyclable Materials Collection shall
be on the same day of the week as Solid Waste Collection service. Company
shall notify Recycling customers, as is done for regular. service, regarding holiday
Collection schedules. Commercial and multi-family recycling Collection sh~ be
performed at a time mutually agreed upon by the Company and the Waste
Generator or Owner of the proPerty.
The minimum amount that should be diverted through Recycling, as described
in the City's SRRE, is _ % by the year 2000. The goal is a minimum and it is
expected that achievements in existing programs will increase as a result of the
plans and programs required by this Agreement. Company agrees to work
diligently to promote and expand Recycling programs to meet these goals. Best
efforts shall be made by Company to help achieve the Recycling Diversion Goals.
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January 18, 1995, Draft
4.2.2 Warning Notice
Company may refuse to Collect Recyclable Materials and shall not be obligated
to continue to provide any Recycling Container to any Waste Generator in the
Recycling program who, after reasonable warning, fails to sort properly and set
out Recyclable Materials. Company shall report monthly to the City any
warning notices issued.
4.2.3 Marketing and Sale of Recyclable Materials
Company shall be responsible for marketing and sale of all Recyclable Materials
Collected pursuant to this Agreement. Revenues from the sale of these materials
shall be applied to the cost of services under the Agreement to reduce Company's
revenue requirement. Company shall sell all Recyclable Materials Collected
pursuant to this Agreement at not less than fair market value.
Company shall prepare, submit to the City for approval, and maintain a
marketing plan for all Recyclable Materials Collected by Company under this
Agreement. The approved marketing plan shall be in place with the execution of
this Agreement for proposed Recycling service and at the time of beginning any
expanded service. The marketing plan shall fully describe the Company's
marketing methods and approach, targeted primary and contingent markets,
pricing policy and assumed salvage value for each Collected type of Recyclable
Material.
4.3 Green Waste Progl'am
4.3.1 General
Company agrees to develop, implement, operate and participate Qocally and
regionally) in mulching, comPOSting, alternative daily cover, transformation or
other programs to achieve the City's Green Waste diversion requirements, in
accordance with Company's proposal (Exhibit 1). In particular, Company agrees
to accomplish the programs set out in this Agreement and to be aggressive in the
pursuit of new opportunities to divert Green Waste from Disposal. The
minimum amount that should be diverted through Green Waste Processing as
described in the City's SRRE is _ % by the year 2000. This amount is a minimum
and best efforts should be made to divert as much Green Waste from Disposal as
possible.
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January 18, 1995, Draft
Company shall provide weekly curbside Collection of Green Waste on the same
day as Refuse Collection from the City's Single Family Dwelling Units placed in
Containers.
4.3.2 Christmas Tree Collection Program
Company shall operate an annual Christmas Tree Collection program. The
program shall include curbside and drop-off Collection (if necessary) and target
all Residential properties in the City. Company shall reasonably cooperate with
the City and non-profit groups in the scheduling and operation of the Christmas
tree collection program.
4.3.3 End Uses for Green Waste
Company shall.divert Green Waste materials Collected through curbside
Collection, Christmas Tree Collection and mixed waste processing (if applicable)
from Disposal. Company must provide end uses for Green Waste that maximize
diversion credits for the City according to regulations established by the
California Integrated Waste Management Board.
4.3.4 Backyard Composting
Company shall provide the City. technical advice and management assistance
from existing staff to develop and implement backyard composting programs as
required in the City's SRRE in conjunction with programs operated by the
Alameda County Waste Management Authority. Such assistance and advice
.shall entail no more than an average of eight (8) hours per month and the
inclusion of prepared materials with bills and shall be considered an operating
cost. Company agrees to provide other direct assistance suCh as purchasing and
providing comPOSting materials and supplies, and additional technical staff
based on direction from the City and with equitable reimbursement.
4.4 Operations.
4.4.1 Schedules
To preserve peace and quiet, no Solid Waste, Recyclable Materials, or Green
Waste shall be Collected from or within two-hundred (200) feet of Residential
Premises between 6:00 P.M. and 5:30 A.M. on any day. Such Solid Waste,
Recyclable Materials and Green Waste shall be Collected, Monday through
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January 18, 1995, Draft
Friday. Company shall notify the City and customers in writing at least two (2)
weeks before an alternate Collection day is scheduled when the regularly
. scheduled Collection day falls on Christmas Day or New Year's Day. Collection
of Solid Waste from Commercial and Industrial Properties may be extended to
include Saturdays and the hours of 6:00 p.m. to 5:30 a.m. if prior written
approval is granted by the City.
Company shall be prepared to review its operations plan outlining the Collection
routes, intervals of Collection and Collection times for all materials Collected
under this Agreement with the Oty once annually upon 3o-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 the Oty, Company shall revise pl~
incorporating any changes into a revised plan and review said revised plan with
the Oty within thirty (30) calendar days.
When notified of a missed pick-up, Company shall Collect the Solid Waste,
and/ or Recyclable Materials, and/ or Green Waste within one (1) business day.
4.4.2 Vehicles
A. General. Company shall provide Collection vehicles suffici~t 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,
Recycling, Construction and Demolition Debris, and Green Waste Collection
services shall be registered with the California Department of Motor Vehicles. All
such vehicles shall have water-tight 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
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January 18, 1995, Draft
one-half (2 1/2) inches high. Company shall not place the City's name and/or any
City logos on Company vehicles.
D. Oeaning 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, Recyclable Materials,
Construction and Demolition Debris and Green Waste shall be painted,
thoroughly washed, and thoroughly steam cleaned on a regular basis
so as to present a clean appearance. The City may inspect vehicles at
any time to determine compliance with this Agreement. Company
shall also make vehicles available to the Alameda County Health
Department for inspection, at any frequency it requests.
3) Company shall repaint all vehicles used in the Collection of Solid
Waste, Recyclable Materials and Green Waste within thirty (30) days'
notice from the City, if the City determines that their appearance
warrants painting.
4) 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 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 mileage and shall make such records
available to the City upon request.
5) 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. H 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
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January .18, 1995, Draft
mileage, nature of repair and the verification by signature of a
maintenance supervisor that the repair has been proPerly performed.
6) Company shall furnish the City a written inventory of all equipment,
including Collection vehicles, used in providing service, 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.
Company equipment used for Refuse, Recycling, and Green Waste services shall
be registered with the California Department of Motor Vehicles. Equipment shall
comply with US. Environmental Protection Agency 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. Company shall store all equipment in safe and secure locations in
accordance with the City's applicable zoning regulations.
Company shall be responsible for any damage it causes to the City's driving
surfaces, whether or not paved, and assodatedcurbs, gutters and traffic control
devices, resulting from or directly attributable to any of its oPerations.
4.4.3 Containers
The standard size Container for Residential Refuse Collection shall not exceed 32
gallons and the combined weight of the Container and contents shall not exceed
75 pounds unless the Container is designed, and the Company equipped, for
mechanical lifting.
4.4.~.1 Non-Residential Refuse Containers
Company shall furnish customers appropriate Containers to Collect Refuse at
Multi-Family Dwelling Unit, commercial/industrial, and other Premises upon
customer request. Containers with a capacity of one cubic yard or more shall be
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January 18, 1995, Draft
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 and shall have reflectorized markings, shall be
maintained in good repair with neatly and uniformly painted surfaces and shall
prominently display the name and tel~phone number of Company.
4.4.3.2 Recycling and Green Waste Containers
Company shall provide and distribute appropriately sized Recycling Containers
as described in their proposal (Exhibit 1) for their Recycling program and 64- or
96-gallon Green Waste Containers specially made of rigid construction at no
additional cost to each Single-Family Dwelling Unit in the City. Containers shall
be identified for Green Waste or Recyc1ables only. As programs continue arid/or
expand, Company shall provide additional, appropriate Containers as required.
Company shall provide and distribute appropriate Recycling and Green Waste
Containers to Multi-Family Dwelling Units, commercial and Institutional Entities
as needed or as requested by customers.
All Containers purchased by Company will become property of the City at the
end of the term.
The City and Company also acknowledge that from time to time Containers may
be stolen from the customer. When notified of such occurrence, Company shall
replace the stolen Container(s), at no charge to the customer, not more than one
(1) time within a year.
4.4.4 Litter Abatement
A. Minimization of Spills. Company shall use due care to prevent Solid Waste
from being spilled or scattered during the Collection or transportation process. . H
any Solid Waste is spilled during Coll~on, Company shall promptly clean up all
spilled materials. Each Collection vehicle shall carry a broom and shovel at all times
for this purpose.
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January 18, 1995, Draft
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, or a pre-approved method of Solid Waste transfer between vehicles, without
prior written approval by the City.
B. Oean Up. During the Collection or transportation process, Company shall
clean up litter in the immediate vicinity of any Solid Waste storage area (including
the areas where Collection bins and debris boxes are delivered for Collection)
whether or not Company has caused the litter. Company shall discuss instances of
repeated spillage not caused by it directly with the Waste Generator responsible and
will report such instances to the Oty. The 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.
4.4.5 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 posses
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 Transfer Station, Processing
Facility or Disposal Site.
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
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January 18, 1995, Draft
Agreement, Company shall take all necessary corrective measures including, but not
limited to, transfer, discipline or termination. If the City has notified Company of a
complaint related to a 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.
4.4.6 Identification Required
Company shall provide its employees, companies and subcontractors with
identification for all individuals who may make personal contact with residents or
businesses in the Cty. The City may require the Company to notify customers yearly of
the form of said identification. The Company shall provide a list of current employees,
companies, and subcontractors to the City upon request.
4.4.7 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,
transportation, Recycling, processing, and Disposal of So lid Waste, Recycling,
Construction and Demolition Debris, and Green Waste otherwise required under this
Agreement.
4.4.8 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.
4.4.9 Change in Collection Schedule
Company shall notify the City forty-five (45) days prior ~, and residential customers
not later than thirty (30) days prior to, any change in residential Collection operations
which results in a change in the day on which Solid Waste Collection occurs. Company
will not permit any customer to go more than seven (7) days without servi~ in
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January 18, 1995, Draft
connection with a Collection schedule change. The City's approval of any change in
Residential Collection is required prior to such change, and approval will not be
withheld unreasonably.
4.4.10 Report of Accumulation of Solid Waste; Unauthorized Dumping
Company shall direct its drivers to note (1) the addresses of any Premises at which they
. observe that Solid Waste is accumulating and is not being delivered for Collection; and
(2) the address, or other location description, at which Solid Waste has been dumped in
an apparently unauthorized manner. Company shall deliver the address or description
to the City within five (5) working days of such observation.
4.5 Implementation Plan
The parties recognize that substantial planning will ~ required in order to assure an
orderly initiation of Solid Waste Collection services on Apri11, 1996. To that end, the
City has required the Company to submit, as a part of its proposal, a detailed
implementation plan addressing, among other things, the steps Company will take and
the schedule on which it will take them, to prepare for such an orderly initiation of
service. The implementation plan shall cover Company's schedule for acquiring
necessary equipment, personnel, storage and maintenance facilities, administrative
offices and customer relations materials (including Collection schedules, route maps,
billing forms, complaint forms, service request forms, etc.). Company agrees to adhere
strictly to the implementation plan.
Failure to adhere to the implementation schedule will constitute a breach of this
Agreement and, if incurred, an event of default under Article 11.
4.6 Contit\gency Plan
Company shall submit to the 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 11.4.
4.7. [Intentionally Left Blankl
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January 18, 1995, Draft
4.8 Transfer [If applicable]
4.8.1 Receipt of Solid Waste
Commencing April 1, 1996, the Transfer Company shall receive and accept all deliveries
of Solid Waste delivered by the City or its collection company.
4.8.2 Transfer and Haul of Solid Waste
Upon receipt of Solid Waste, Transfer Company shall transfer the Solid Waste to
transfer vehicles and haul the Solid Waste to the Disposal site designated by the City.
4.8.3 Permits for Use of Transfer Station
Transfer Company shall keep in force and comply with the terms of all existing permits
approvals from governmental authorities necessary for the use of the Transfer Station
throughout the Term of this Agreement for the receipt of Solid Waste from the Oty.
Transfer Company shall keep the Oty fully informed of its progress in securing
renewals of all such permits which occur during the Term and shall provide the Oty
with copies of all correspondence with permitting agencies and all other material
correspondence related to the permitting process with third parties, but not including
interna1memoranda or correspondence between Transfer Company and its agents,
consultants or attorneys. Transfer Company shall give the City immediate notice of any
proposed amendment to or alternation of such permits, or any new permits which may
be required. Transfer Company shall resist any amend1llents or alternations to permits,
the terms of which would prevent or materially interfere with the performance of its
obligations under this Agreement, through all available administrative procedures. In
the event that such permit amendments occur despite Transfer Company's efforts to
resist them, Transfer Company shall not be in breach of this Agreement if Transfer
Company complies with such permit amendments provided that Transfer Company
also complies with Section 4.8.4.
4.8.4 Alternative Transfer Facility
H Transfer Company becomes unable to accept and transfer the City's Solid Waste at the
Transfer Station due to causes within its control and which could have been avoided by
the exercise of due care, the Transfer Company shall arrange for the Oty's Solid 'i\laste
to be accepted at another transfer station, in which case Transfer Company shall pay
any difference in the Transfer Fee charged at such transfer station and the Transfer Fee
then in effect under this Agreement. Transfer Company shall reimburse the Oty for
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January 18, 1995, Draft
any additional transportation costs incurred in delivering the Solid Waste to the
alternative Transfer Station.
4.8.5 Disposition of Unauthorized Waste
Transfer Company shall implement procedures to identify and reject Solid Waste
materials delivered to the Transfer Station which are Hazardous Wastes, Designated
Waste, or which otherwise may not be legally accepted at the Transfer Station and
Disposal Site under their permits and other applicable governmentalregu1ations then in
effect. Transfer Company shall implement such procedures in a uniform and non-
discriminatory manner as applied to Solid Waste materials delivered to the Transfer
Station from the City and from all other sources. Transfer Company may, in the course
of implementing such procedures, refuse to accept Solid Waste materials supPOSed to
be deposited from tl\e City if they constitute Hazardous Waste, or otherwise may not be
legally accepted at the Transfer Station or Disposal Site and shall be solely responsible
for materials which it accepted. If Transfer Company discovers such Solid Waste
among materials which it has accepted, it shall dispose of such Solid Waste at its own
expense. Transfer Company may pursue all legal rights and remedies it may have
against the Waste Generator(s) of such Solid Waste, if the Waste Generator can be
identified. In addition, Transfer Company may require the City's Collection Company
to dispose of such Solid Wastes at its expense if the Solid Waste is identified prior to or
while being deposited at the Disposal Site.
4.8.6 Days and Hours of Operation
Transfer Company shall operate the Transfer Station for the receipt and transfer of Solid
~aste in accordance with the following schedule:
[To be Inserted]
Subject to conditions in its permits restricting operating hours, and other legal
constraints, Transfer Company shall reasonably cooperate with the City to receive
deliveries .at other times, the additional cost of such extended operating hours to be
borne by the City. In addition, Transfer Company shall, if requested by the City,
attempt to obtain modifications to permit conditions "restricting operating hours and to
remove other legal constraints on receipt of Solid Waste outside the hours shown above,
the costs of obtaining such permit amendments and the additional costs of extended
operating hours to be borne by the City.
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January 18, 1995, Draft
4.8.7 Weighing
A. Maintenance of Scale Systems. Transfer Company shall install, operate and
maintain an adequate scale system at the Transfer Station. All scales and weighing
equipment shall be kept in good and accurate condition operating at the standards of
accuracy and reliability specified in Title 4, California Code of Regulations, Articles 8
and 9. Transfer Company shall request that the California Department of Food and
Agriculture, Division of Measurement Standards, or a successor governmental agency,
inspect all scales and weighing equipment at least once per year. If a scale or weighing
equipment is found to be measuring inaccurately and the errors are outside the
tolerances allowed in Title 4, California Code of Regulations, Articles 8 and 9, Transfer
Company shall promptly repair or recalculate such equipment so that it does operate
accurately.
B, Establishment of Vehicles' Tare Weights. Effective
Transfer Company shall weigh each transfer vehicle or Solid Waste Collection vehicle
operated by the City, or its Collection Company which will or may be used to deliver
Solid Waste to the Transfer Station, to determine its unloaded (lttarelt) weight. The tare
weight of each vehicle shall be recorded by the Collection Company name and vehicle
number and the tare weights of all vehicles shall be furnished to the City, and to
Collection Company as to vehicles it pwns, within thirty (30) days after each vehicle is
weighed. Transfer Company shall be responsible for coordinating the weighing of
vehicles with the City or Collection Company. When additional or replacement
vehicles are placed into service, Transfer Company shall promptly weigh such
additional and replacement vehicles and provide the tare weights to the City Collection .
Company wi.thin thirty (30) days after the vehicles are weighed.
C. Weighing of Solid Waste. All vehicles of the Collection Company delivering
Solid Waste to a Transfer Station shall be weighed, and their weights recorded, so as to
accurately measure tons of Solid Waste delivered.
If the scales and weighing equipment at the Transfer Station are out of service, Transfer
Company shall determine the amount of Solid Waste delivered to that landfill in the
vehicles operated by the Collection Company by utilizing the arithmetic average of that
vehicle's recorded tons of Solid Waste delivered it immediately preceding three (3)
deliveries to the Transfer Station.
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January 18, 1995, Draft
All information required by this Agreement shall continue to be recorded for each
delivery during any period the scales are out of services. Information recorded shall be
made available to City upon request.
Transfer Company shall repair or replace inoperable scales as promptly as possible. In
addition, if the scales are out of service forty-eight (48) hours, Transfer Company shall
immediately supply temporary substitute scales, rather than continuing to use the
volume to weight conversion factors.
4.9 Disposal
4.9.1 Receipt of Solid Waste
Commencing Apri11, 1996, Disposal Company shall receive, accept and lawfully
dispose of at the Disposal Site all Solid Waste delivered to the Disposal Site by
the City, the Collection Company, the Transfer Company or any other agent of
the City.
4.9.2 Permits for Use of Landfill
Existing Permits. Disposal Company shall keep in force and comply with the
terms of all existing permits and approvals from governmental authorities
necessary for the use of the Disposal Site throughout the term for receipt of Solid
Waste from the City.
Disposal Company shall keep the City fully informed of its progress in securing
renewals of all such permits which occur during the term and shall provide the
City with copies of all correspondence with permitting agencies and all other
material correspondence related to the permitting process with third parties, but
not including internal memoranda or correspondence between Disposal
Company and its agents, consultants or attorneys. Disposal Company shall also
provide the City with a monthly status report on applications for renewals of
existing permits or any new permits which may be required to continue
operations at the Disposal Site within existing permitted areas. Disposal
Company shall give the City immediate notice of any proposed amendment to or
alteration of such penluts, or any new permits which may be required. Disposal
Company shall resist any amendments or alterations to permits, the terms of
which would prevent or materially interfere with the performance of its
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January 18, 1995, Draft
obligations under this Agreement, through all available administrative
procedures. In the event that such permit amendments occur despite Disposal
Company's efforts to resist them, Disposal Company shall not be in breach of this
Agreement if Disposal Company complies with such permit amendments
provided that Disposal Company also complies with Section 4.9.4.
4.9.3 Reservation of Disposal Capacity
Disposal Company shall reserve fo~ and provide to the City permitted Disposal
capacity for the term and any extensions of this Agreement.
4.9.4 Alternative Disposal Facility
A. H Disposal Company becomes unable to accept and dispose of the City's
Solid Waste at the Disposal Site as the result of causes within its control and
which could have been avoided by the exercise of due care, then Disposal
Company shall accept and dispose of such Solid Waste at another Disposal ~ite.
Any additional transportation costs incurred in delivering the Solid Waste to the
other landfill will be disallowed as part of the rate base.
B. HDisposal Company becomes unable to accept and dispose of the City
Solid Waste at the Disposal Site as the result of causes which are beyond its
control and which could not have been prevented by the exercise of due care,
then Disposal Company shall, to the extent it is legally able to do so, accept and
dispose of Solid Waste at another landfill owned by it (or by another company
which is owned and controlled, directly or indirectly, by its parent company) at
the lowest Disposal fee then in effect at such landfill under contracts entered into
after the effective date of this Agreement which would be deemed substantially
similar. Additional transportation costs incurred in delivering the Solid Waste to
the other landfill will be allowed as a part of the rate base.
C. Disposal Company will promptly apply for, and diligently pursue, any
amendments to permits necessary for it to be legally able to accept Solid Waste
from the City at such other landfill if required to carry out Section 4.9.4 of the
Agreement.
D. H the cost of delivery (i.e., the Disposal fee plus additional Solid Waste
transportation costs) at such other 1a.'1dfill is higher than the Disposal fee then in
effect under this Agreement, the City may terminate this Agreement, as provided
in Section 11.2 of this Agreement
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January 18, 1995, Draft
4.9.5 Disposition of Unauthorized Waste
Disposal Company shall implement procedures to identify and reject Solid Waste
materials delivered to the Disposal Site which are Hazardous Wastes, Designated
Waste, or which otherwise may not be legally accepted at the Disposal Site under
its permits and other applicable governmental regulations then in effect. .
Disposal Company shall implement such procedures in a uniform and non-
discriminatory manner as applied to Solid Waste materials delivered to the
Disposal Site from the Oty and from all other sources.
Disposal Company may, in the course of implementing such procedures, refuse
to accept Solid Waste materials proposed to be deposited from the Oty if they
constitute Hazardous Waste, or otherwise may not be legally accepted at the
Disposal Site and shall be solely responsible for materials which is accepted. If
Disposal Company discovers such Solid Wastes among materials which it has
accepted, it shall dispose of such Solid Wastes at its own expense. Disposal
Company may pursue all legal rights and remedies it may have against the
Waste Generator(s) of such Solid Waste, if the Waste Generator can be identified.
In addition, Disposal Company may require the Oty's Collection Company
and/or Transfer Company to dispose of such Solid Wastes at its or their expense
if the Solid Wastes are identified prior to or while they are being deposited at the
Disposal Site.
4.9.6 Days and Hours of Operation
Disposal Company shall operate the Disposal Site for the receipt and Disposal of
Solid Waste in accordance with the fonowing schedule:
[To be Inserted]
Subject to conditions in its permits restricting operating hours, and other legal
constraints, Disposal Company shall reasonably cooperate with the City to
receive deliveries at other times, the additional cost of such extended operating
hours to be borne by the Oty. In addition, Disposal Company shall, if requested
by the Oty, attempt to obtain modifications to permit conditions restricting
operating hours and to remove other legal constraints on receipt of Solid Waste
outside the hours shown above, the costs of obtaining such permit amendments
and the additional costs of extended operating hours to be borne by the City.
-39-
January 18, 1995, Draft
4.9.7 Weighing
A. Maintenance of Scale Systems. Disposal Company shall install, operate
and maintain an adequate scale system at the Disposal Site. All scales and
weighing equipment shall be kept in good and accurate condition operating at
the standards of accuracy and reliability specified in Title 4, California Code of
Regulations, Articles 8 and 9. Disposal Company shall request that the California
Department of Food and Agriculture, Division of Measurement Standards, or a
SUC(1$sor governmental agency, inspect all scales and weighing equipment at
lea.,mce per year. H a scale or weighing equipment is found to be measuring
inaccurately and the errors are outside the tolerances allowed in ntle'4,
Californi"Code of Regulations, Articles 8 and 9, Disposal Company shall
promptly repair or recalculate such equipment so that it does operate accurately.
B. Establishment of Vehicles' Tare Weights. Effective . Disposal
Company shall weigh each transfer vehicle or Solid Waste Collection vehicle
operated by the City, its Collection Company or its Transfer Company which will or
may be used to deliver Solid Waste to the Disposal Site, to determine its unloaded
("tare") weight. The tare weight of each vehicle shall be recorded by the Collection
Company or Transfer Company name and vehicle number and the tare weights of
all vehicles shall be furnished to the City, and to Collection Company or Transfer
Company as to the vehicles it owns, within thirty (30) days after each vehicle is
weighed. Disposal Company shall be responsible for coordinating the weighing of
vehicles with the City, Collection Company or Transfer ~mpany. When additional
or replacement vehicles are placed into service, Disposal Company shall promptly
weigh such additional and replacement vehicles and provide the tare weights to the
City, Collection Company or Transfer Company within thirty (30) days after the
vehicles are weighed.
All weighing shall be conducted in accordance with Disposal Company's standard
procedures, a copy of which shall be supplied to the City, Collection Company or
Transfer Company and updated from time to time. Disposal Company shall have
the right to conduct random re-weighing of all vehicles, provided that re-weighing
of any vehicle shall occur no more than twice a year. Adjusted tare weights shall be
furnished to the City, Collection Company or Transfer Company within thirty (30)
days after re-weighing. Tare weights of vehicles delivering publicly-hauled Solid
-40-
. January 18, 1995, Draft
Waste which are required to be weighed will be established by weighing such
vehicles on each entry to and exit from the Disposal Site.
C. Weighing of Solid Waste. All vehicles of the Collection Company or
Transfer Company delivering Solid Waste to a Disposal Site shall be weighed, and
their weights recorded, so as to accurately measure tons of Solid Waste delivered.
If the scales and weighing equipment at the Disposal Site are out of service, Owner
shall determine the amount of Solid Waste delivered to that landfill in the vehicles
operated by the Collection Company or Transfer Company, by utilizing the
arithmetic average of that vehicle's recorded tons of Solid Waste delivered on its
immediately preceding three (3) deliveries to that landfill.
All information required by this Agreement shall continue to be recorded for each
delivery during any period the scales are out of servi~. Such recorded information
shall be made available to City upon request.
Disposal Company shall repair or replace inoperablesca1es as promptly as possible.
.In addition, if the scales are out of service forty-eight (48) hours, Disposal Company
shall immediately supply temporary substitute scales, rather than continuing to use
the volume to weight conversion factors.
.-41-
January 18, 1995, Draft
ARTICLE 5
OTHER SERVICES
5.1 Services and Customer BilliI\a
5.Ll Service
Company shall periodically prepare and distribute, subject to the direction of the
City, a notice to each Owner or occupant of property entitled or mandated 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 form subject to the City's approval prior to
its distribution and may be included with Billings made by Company.
Company's costs for services under this SeCtion shall be deemed operating costs.
5.1.2 Billing
The Company shall either prepare, mail and collect bills (or shall issue written
receipts for cash payments) for Solid Waste and Yard Waste Collection services
provided by the Company under this Agreement. The City has provided'and
currently intends to provide billing of residential customers for minimum Collection
service through property tax assessments. The City will provide two (2) payments
to the Company of the revenues received from this process. The first payment shall
be within forty-five (45) days of December 1 covering the period July to December
and the second payment shall be within forty-five (45) days of April 1, covering the
period January to June. Bills for additional services shall be prepared and mailed by
Company to customers quarterly in advance of the provision of service. The City
shall have the right to require the Company to act as a billing agent on behalf of the
City. The City shall have the right to revise the billing format to itemize certain
charges.
The Company shall maintain copies of said Billings and receipts, each in
chronological order, for a period of three (3) years after the date of service for
inspection by the City upon request. The 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.
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January 18, 1995, Draft
The City shall establish by resolution rates for the types of service provided; the
Company shall bill and collect at those rates.
5.1.3 Review of Billings
Company shall review its Billings to customers under Section 5.1.2. The purpose
of the review is to determine that the amount which the 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 the
Company. The Company shall review customer accounts not less than every
other year, unless the City shall direct Company to do so annually, and submit to
the Oty a writt~ report of that review annually on the anniversary of the
Effective Day of this Agreement. The intent of this Section is for the City to
receive reports on a annual basis which will cover the entire list of customers
every other year. The scope of the review and the reviewer's workplan shall be
submitted to the City for approval no later than six (6) months before the
submission of the first report.
5.2 Customer Service
5.2.1 Local Office
Company shall maintain a local office in Dublin, Livermore, San Ramon or
Pleasanton. Office hours shall be, at a minimum, from 8:00 A.M. to 5:00 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. The Company's telephone system
shall be adequate to handle the volume of calls typically experienced on the
busiest days. The 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.
5.2.2 Complaint Documentation
All service complaints shall be directed to the Company. Daily logs of
complaints concerning Collection of Solid Waste, Recydable materials and Gr~
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January 18, 1995, Draft
Waste shall be retained for a minimum of twenty-four (24) months and shall be
available to the 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 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 the Company to respond to and remedy the complaint.
All customer service records and logs kept by Company shall be available to the
City upon request and at no cost to the City. The 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.
5.2.3 Resolution of Customer Complaints
The Company shall notify customers in writing of this complaint procedure at
the time customers apply for or are provided service, and subsequently,
annually.
A customer dissatisfied with Company's decision regarding a complaint may ask
the City to review the complaint To obtain this review, the customer must
request the City review, in writing, within thirty (30) days of receipt of
Company's response to the Complaint, or within forty-five (45) days of
submitting the complaint to the Company if the Company has failed to respond
to the complaint. The City may extend the time to request its review for good
cause. Before reviewing a complaint, the City shall refer it to the Company. If
the Company fails to cure the complaint within ten (10) working days, the City
shall review the customer's complaint and determine if further action is
warranted. The Ci 'if may request written statements from the Company and
customer, and/or ':J presentations.
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January 18, 1995, Draft
The City shall determine if the customer's complaint is justified, and if so, what
remedy, if any shall be provided. The remedy under this Section shall be limited
to a rebate of customer charges related to the period of breach of any of the terms
of this Agreement or for liquidated damages as specified in Section 11.3.
The City may delegate these duties to a designee. The decision of the City 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 the City
Council. Such review.shall not be applicable to liquidated damages.
Nothing in this Section is intended to effect the remedies of third parties against
the Company. To the extent that remedies are warranted through this
Agreement, this Section shall apply.
5~4 Government Liaison
The Company shall designate in writing a "Government Liaison" who shall be
responsible for working with the City and/or the City's designated
representative(s) to resolve customer complaints.
5.3 Education and Public Awareness
5.3.1 General
Company acknowledges and agrees that education and public awareness are
critical, key and essential elements of any efforts to achieve AB 939 requirements.
Accordingly, Company agrees to take direction from the City to exploit
opportunities to expand public and customer knowledge concerning needs and
methods to reduce, reuse and recycle Solid Waste and to cooperate fully with the
City in this regard. The Company's public education plan is included as part of
the Company's proposal (Exhibit 1).
Company shall maintain its own program of providing infornlation relevant to
billing and Solid Waste services, issues and needs with its bills. All public
education materials shall be approved in advance by the City. Company shall
also mail to all City residents additional information as directed by the City.
Such mailings shall include single family accounts that subscribes to minimum
Collection service and are not normally billed by the Company. The City will
-45-
January 18, 1995, Draft
provide not less than thirty (30) days notice to the Company prior to the mailing
date any proposed mailing to permit the Company to make appropriate
arrangements for inclusion of the City's materials. The City will provide the
Company the mailers at least fifteen (15) days prior to the mailing date. The City
shall normally bear the expense of reproduction and distribution of such
additional information only to the extent it is clearly in excess of Company's
normal billing costs.
5.3.2 Community Events
At the direction of the City, the Company shall participate in and promote
Recycling and other diversion techniques at community events and local
activities. Such participation would normally include providing, without cost,
Collection and educational and publicity information promoting the goals of the
City's Solid Waste program.
5.4 W ute GenerationlCharaderization Studies
Company acknowledges that the City must do Solid Waste generation and
Disposal characterization studies .periodically to comply with AB 939
requirements. Company agrees to participate and cooperate with the City and its
agents and to accomplish studies and data collection and prepare reports as
needed to determine weights and volumes of Solid Waste and characterize Solid
Waste generated, disposed, transformed, diverted or otherwise hfmdled/
processed to satisfy AB 939 requirements.
-46-
January 18, 1995, Draft
ARTICLE 6
COMPANY'S COMPENSATION AND RATES
6.1 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 presai~.
The Company will perform the responsibilities and duties desaibed 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. The City shall have
the right to structure those rateS as it deems appropriate so long as the revenues
forecasted to be received by the Company from charging such rates can reasonably
be expected to generate sufficient revenues to provide for the Company's
compensation as calculated in accordance with this Agreement.
The Transfer and Disposal Company shall perform all of its respopsibilities and
duties under this Agreement, including but not limited to paying the costs associated
with obtaining and complying with all permits and approvals, landfill operations,
closure and post-closure maintenance and remediation in consideration of the right
to charge and collect the Disposal fees in the amounts and on the terms set forth in
this Agreement. At all times during the term of the Agreement, the Disposal
Company must provide the City with the lowest Disposal fee offered to jurisdictions
. by the Company in Alameda or Contra Costa Counties.
6.2 Solid Waste. Rec:yclables and Green Waste Collection Compal\Y's Initial
Compensation
Subject to Section 6.6, the Company's Solid Waste Collection, processing, transfer and
Disposal Compensation for the initial year of this Agreement (i.e., from April 1, 1996,
to March 31, 1997) shall be ($->.
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January 18, 1995, Draft
Subject to Section 6.6, the Solid Waste Collection, Processing, Transfer and Disposal
Compensation for the second year of this Agreement (i.e., from April 1, 1997, to
March 31, 1998) shall be ($ ).
These amounts shall be fixed for both years and shall not be increased to reflect
increases in costs above those anticipated by the Company lL Its proposal, nor
decreased to reflect decreases.in costs below those anticipated by the Comp~,;.. v in its
proposal.
6.3 Solid Waste. Rec:yclables and Green Waste Collection COlI\Pal\y's Compensation
for the Third Rate Year
6.3.1 Company's Application
On October 1, 1997, the Company shall submit a'Request for Adjustment to
Compensation ("Application"). This request shall be based on the audited financial
statements for the preceding Rate Year and shall reflect the Company's forecast of its
Company's Compensation for the period April 1, 1998, to March 31, 1999.
The request shall be submitted in the same format, and shall calculate the Company's
Compensation in the same manner, as that described below. The Company shall .
assemble, provide, and submit such information that is necessary to support the
assumptions made by the Company with regard to the assumptions underlying the
forecast.
The City, or its representative, will review the Company's Application for compliance
with this Agreement, accuracy, and reasonableness. The Company will provide all
information requested by the City as part of its review of the Company's Application,
including, but not limited to, all information from related parties requested by the
City regarding any transactions between the Company and any Related Party Entity.
6.3.2 Determination of Company's Compensation
The Company's ComPenSation shall consist of the Forecasted Annual Cost of
Operations (FACO), Profit (P) and Forecasted Pass-Through Expense (FPE)
calculated as set forth below.
6.3.2.1 ForecaSted Annual Cost of Operations for Rate Year Three
The Forecasted Annual Cost of Operations consists of the sum of:
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January 18, 1995, Draft
Forecasted Labor-Related Costs (FLC3)
Forecasted Vehicle-Related Costs (FVC3)
Forecasted Other Costs (FOC3)
Forecasted Depreciation EXPense(FDE3)
Each of these sums shall be determined as follows:
A. Determination of Actual Costs. The Company's financial statement will be
reviewed to determine the Company's costs for each of the forgoing categories
during the Rate Year ended March 31, 1997. The City will determine that costs have
actually been incurred and have been assigned to the appropriate category.
B. Adjustment of Actual Costs. The City may adjust the actual costs in two
ways: (1) to exclude any non-allowable costs, set out below, and (2) to exclude
and/ or reduce any costs which were not reasonably and necessarily incurred in the
performance of the services provided in accordance with this Agreement
Costs which are non-allowable consist of the following:
a) PaYments to directors and/or Owners of the Company unless paid as
reasonable compensation for services actually rendered.
b) Promotional, entertainment and travel expenses, unless authorized in advance
by the City.
d) PaYments to repair damage to property of third parties or the City for which
the Company is legally liable.
d) Fines or penalties of any nature.
e) Liquidated damages assessed under Section 11.3 of this Agreement.
f) Federal or state income taxes.
g) Charitable or political donations.
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January 18, 1995, Draft
h) Rental or lease charges for Collection vehicles.
i) Attorney's fees and other expenses incurred by the Company in any court
proceeding in which the City and the Company are adverse parties, unless the
Company is the prevailing party in such proceeding. .
j) Attorneys' fees and other expenses incurred by the Company in any court
proceeding in which the Company's own negligence, violation of law or
regulation, or wrong doing are in issue and occasion, in whole or in part, the
attorneys' fees and expenses claimed; and attorneys' fees and expenses
incurred by the Company in a court proceeding in which the legal. theory or
statute providing a basis of liability against the Company also provides for
separate potential liability for the City arising from the action of its citizens or
rate payers (such as in a CERCLA lawsuit).
k) PaYments to related parties for products or services, in excess of cost to the
related party for those products or services.
1) Costs for numbers of personnel and equipment not specifically identified in
Company's proposal.
The costs resulting from the adjustments in this Section 6.3.2.1 are:
Allowed Labor-Related Costs (ALC)
Allowed Vehicle-Related Costs (AVC)
Allowed Other Costs (AOC)
6.3.2.2 Forecast of Costs
Allowed costs of operations for the Rate Year ending March 31, 1997, will be
multiplied by the change in the appropriate indices compiled and published
(including revisions thereto) by the United States Department of Labor, Bureau of
L.,.bar Statistics, as described below:
A. Labor Related Costs. Labor-Related Costs will be forecasted for the Rate Year
ending March 31 , 1999, by (1) multiplying the Allowed Labor Related Costs by 1
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January 18, 1995, Draft
plus the percentage change in the "San Francisco-Oakland Metropolitan Area Index
(Urban Wage Earners; 1982~84=100)" between the index most recently published
prior to submission of the Request for Adjustment of Company's Compensation and
the corresponding index published twelve (12) months earlier, and (2) multiplying
the result of step one by the same percentage change used in step one. The result is
the Forecasted Labor-Related Costs for the third Rate Year (FLC3)
B. Vehicle Related Costs. Vehicle-Related Costs will be forecasted for the Rate
Year ending March 31 , 1999, by (1) multiplying the Allowed Vehicle-Related Costs
by 1 plus the percentage change in the "Motor Fuel Index all Urban Consumers, U.S.
City Average (CPI-U) 1981-1984=100" between the index most recently published
prior to submission of the Request for Adjustment of Company's Compensation and
the corresponding index published twelve (12) months earlier, and (2) multiplying
the result of step one by the same percentage change used in step one. The result is
the Forecasted Vehicle-Related Costs for the third Rate Year (FVC3).
C. Other Costs. Other Costs will be forecasted for the Rate Year ending March
31, 1999, by (1) multiplying the Allowed Other Related Costs by 1 plus the percentage
change in the national "Producer Price Index Industrial Commodities" between the
index most recently published prior to submission of the Request for Adjustment of
Company's Compensation and the corresponding index published twelve (12)
months earlier, and (2) multiplying the result of step one by the same percentage
change used in step one. The result is the Forecasted Vehicle-Related Costs for the
third Rate Year (FVC3).
D. Depreciation Expense. Depreciation Expense will be calculated by dividing
the actual purchase price of the assets by seven (7) years, except for buildings and
improvements that shall be divided by twenty-five (25) years. The result is the
Forecasted Depreciation Expense for the third Rate Year (FDE3).
E. Projected Annual Costs of Rate Year Three. The sum of Forecasted Labor-
Related Costs, Projected Vehicle-Related Costs, Forecasted Other Costs and
Forecasted Depreciation Expense shall equal the "Projected Annual Costs of
Operations for Rate Year Three".
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January 18, 1995, Draft
6.3.2.3 Profit
Profit for Rate Year Three shall be calculated by dividing the Forecasted Annual Cost
of Operations for Rate Year Three by 0._ and subtracting the Forecasted Annual
Costs of Operations for Rate Year Three from the dividend.
6.3.2.4 Pass-Through Expenses for Rate Year Three
The Forecasted Pass-Through EXPense consists of the sum of:
Forecasted Transfer and Disposal Expense (FD3)
Forecasted Interest Expense (FI3)
Forecasted Regulatory Fees (FR3)
Forecasted Franchise, Source Reduction and Recycling, and Administrative
Fees (FCF3)
Each of these sums shall be determined as follows:
A. Forecasted Transfer and Disposal Expense. The Forecasted Transfer and
Disposal Expense for Rate Year Three shall result from multiplying the tonnage of
Solid Waste forecasted to be disposed of by the effective transfer and Disposal rate
for the Third Rate Year, or if no such rate has been placed in effect, then that rate in
effect at the time the Company's Request for Adjustment to Compensation is
submitted shall be used.
B. Forecasted Interest Expense. The Forecasted Interest Expense for Rate Year
Three shall be calculated by subtracting actual interest earnings (if any) from actual
interest expense (if any) for Rate Year One. The interest rate used to determine
interest expense shall be the one year U.s. Treasury bill rate in effect at the end of
Rate Year One.
C. Forecasted Regulatory Fees. The Forecasted Regulatory Fees for Rate Year
Three shall result from multiplying the tonnage of Solid Waste forecasted to be
disposed of by the effective Regulatory Fees for Rate Year Three, or if no such rate
has been placed in effect, then that rate in effect at the time the Company's Request
for Adjustment to Compensation is submitted shall be used in accordance with the
appropriate methodology for the relevant fees using forecasted Rate Year Three
values.
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January 18, 1995, Draft
A
D. Forecasted Franchise and Source Reduction, Recycling and Administrative
Fees. The Forecasted Franchise and Source Reduction, Recycling and Administrative
Fees for Rate Year Three shall be calculated in accordance with Article 3 of this
Agreement using forecasted Rate Year Three values.
6.4 Solid Waste. Recyclables and Green Waste CQllection Company's Compensation for
the Four Rate Years Ending March 31. 2003
6.4.1 Company's Compensation for the Rate Year Ending March 31,2000 (Rate Year
Four)
The Company's Compensation for Rate Year Four, shall consist of the Forecasted
Annual Cost of Operations (FC04), plus Profit (P4), plus Forecasted Pass-Through
EXPense (FPE4). Each of these amounts shall be calculated as follows.
6.4.1.1 Forecasted Annual Cost of Operations
Forecasted Annual Cost of Operations for the Rate Year Four, shall consist of the sum
of:
a) Forecasted Labor-Related Costs for Year Three multiplied by 1 plus the
percentage change in the sam~ index used in step one of Section 6.3.2.2.A) using
current information and values, plus,
b) Forecasted Vehicle-Related Costs for Year Three multiplied by the percentage
change in the same index used in step two of Section 6.3.2.2.B) using current
information ~d values, plus,
c) Forecasted Other Costs for Year Three multiplied by the percentage change in the.
same index used in step three of Section 6.3.2.2.C) using current information and
values.
d) Depreciation Expense shall be calculated as described in Section 6.3.2.2.D.
6.4.1.2 Profit
Profit for Rate Year Four shall be calculated by dividing the Forecasted Annual Costs of
Operations for Rate Year Four by 0._ and subtracting the Annual Costs of Operations
for Rate Year Four from the dividend.
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January 18, 1995, Draft
6.4.1.3 Pass-Through Expenses for Rate Year Four
The Forecasted Pass-Through Expense for Rate Year Four consists of the sum of:
Forecasted Transfer and Disposal Expense (FD4)
Forecasted Interest Expense (FI4)
Forecasted Regulatory Fees (FR4)
Forecasted Franchise and Source Reduction, Recycling and Administrative Fees
(FCF4)
Each of these sums shall be determined as follows:
A. ForeCasted Transfer and Disposal Expense shall be calculated in the same
manner as Section 6.3.2.4.A using current Solid Waste volume and rate
information.
B. Forecasted Interest Expense (if any) shall be calculated in the same manner as
Section 6.3.2.4.B using current interest rates.
C. Forecasted Regulatory Fees shall be calculated in the same manner as Section
6.3.2.4.C using current information and data.
D. Forecasted Franchise and Source Reduction, Recycling and Administrative
Fees shall be calculated in the same manner as Section 6.3.2.4.D using current
information and values.
6.4.2 Company's Compensation for the Rate Year Ending March 31 , 2001 (Rate
Year Five)
The Company's Compensation for Rate Year Five, shall consist of the Forecasted
Annual Cost of Operations (FAC05), plus .Profit (P5), plus Forecasted Pass-Through .
Expense (FPES). Each of these amounts shall be calculated in the same manner as
Section 6.4.1 using current information and values.
6.4.3 Company's Compensation for the Rate Year Ending March 31 , 2002 (Rate
Year Six)
The Company's Compensation for Rate Year Six, shall consist of the Forecasted
Annual Cost of Operations (FAC06), plus Profit (P6), plus Forecasted Pass-Through
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January 18, 1995, Draft
.
Expense (FPE6). Each of these amounts shall be calculated in the same manner as
Section 6.3 using current information and values.
6.4.4 Company's Compensation for the Rate Year Ending March 31,2003 (Rate
Year Seven)
The Company's Compensation for Rate Year Seven, shall consist of the Forecasted
Annual Cost of Operations (FC07), plus Profit (P7), plus Forecasted Pass-Through
Expense (FPE7). Each of these amounts shall be calculated in the same manner as
Section 6.4.1 using current information, dates and values.
6.5 Solid Waste. Rec:yclables and Green Waste Collection Company's Compensation
for the Extension Period
The Company's Compensation for each of the Rate Years during the extension
period, if any, shall consist of the Forecasted Annual Cost of Operations (FACOE),
plus Profit (PE), plus Forecasted Pass-Through Expense (FPEE). The First Rate Year
of the "extension period shall be calculated in the same manner as Section 6.4.1. The
Second Rate Year extension shall be calculated in the same manner as Section 6.3. and
the Third Rate Year of the extension using Section 6.4.1 using current information,
dates and values.
6.6 Variances from Projeqions
The Company shall retain any income from actual costs being less than projected but
shall not be compensated for actual costs being more than projected. In addition,
calculations of the Company's Compensation shall not be adjusted for past variances
of actual cost from those projected.
6.7 Schedule
The Solid Waste, Recyclables and Green Waste Collection Company shall submit its
Request for Adjustment of Company's Compensation on or before October 1. The
City shall use its best efforts to make the adjustment effective by April 1 of the
following year. However, the City shall not make any retroactive adjustments to
compensate for any delay in calculating the Company's Compensation which results
in whole or in part from the failure of the Company to submit its request by October
1 and/or respond promptly and completely to requests of the City for information
related to any of the calculations required by this Section or from appeals of the
determination to the City which extends the process of determination.
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January 18, 1995, Draft
~
. 6.8 Interim COll\Pensation Adjustment
In the event the City directs the Solid Waste, Recyclables and Green Waste Collection
Company to change its operations in accordance with Section 28 of this Agreement
and such adjustment materially affects the Company's Annual Cost of Operations or
Pass-Through Expense, then the Solid Waste, Recyclables and Green Waste
Collection Company or the City may submit a request for an interim Compensation
adjustment. In such case, the Company shall prepare a Complete Application in
accordance with Section 6.3, unless otherwise agreed to by the City.
6.9 Initial Rates
The rates for the two Rate Years ending March 31 , 1998, are those established by the
City Resolutiol\ No. _ (a copy of which is attached as Exhibit 4), unless amended in
accordance with this Agreement. Unless and until the rates set forth on Exhibit 4 are
adjusted by the City, the Solid Waste, Recyclables and Green Waste Collection
Company will provide the service required by this Agreement, charging no more and
no less than the rates authorized by Exhibit 4 unless authorized to do so by the City.
6.10 Subsequent Rates
From time to time and based on changes to the Solid Waste, Recyclables and Green
Waste Collection Company's Compensation, as described above, and other
considerations, the City Council shall revise the initial rates by resolution.
6.11 Disposal ~ate and Future Adjustments
[To be completed based on proposals]
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January 18, 1995, Draft
..
ARTICLE 7
REVIEW OF SERVICES AND PERFORMANCE
7.1 performance Hearin.1
The City may hold a public hearing on or about the second anniversary date of
this Agreement at which the Company shall be present and shall participate, to
review the Solid Waste Collection, source reduction, processing and other
diversion services and performance. Subsequent Solid Waste services and
performance review hearings may be scheduled by the Oty every two (2) years
thereafter. The purpose of the hearing is to provide for a discussion and review
of technological, economic, and regulatory changes in Collection, source
reduction, Recycling, processing and Disposal to achieve a continuing, advanced
Refuse Collection, source reduction and Recycling and Disposal system; and to
ensure services are being provided with adequate quality, effectiveness and
economy.
Sixty (60) days after receiving notice from the City of a Solid Waste Services and
Performance Review Hearing, Company shall, at a minimum, submit a report to
the Oty indicating the following:
a) Changes recommended and/or new services to improve the Oty's ability
to meet the goals of AB 939 and to contain costs and minimize impacts on
rates.
b) Any specific plans for provision of changed or new services by the
Company.
The reports required by this Agreement regarding customer complaints shall be
used as one basis for review. Company may submit other relevant performance
information and reports for consideration. The Oty may request Company to
submit specific information 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.
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January 18, 1995, Draft
~
Topics for discussion and review at the Solid Waste 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, new
initiatives for meeting or exceeding AB 939's goals, regulatory constraints and
Company performance. The City and Company may each select additional
topics for discussion at any Solid Waste Services and Performance Review
Hearing.
Not later than sixty (60) days after the conclusion of each Solid Waste Services
and Performance Review Hearing, the City may issue a report. As a result of the
review, the City may require Company to provide expanded or new services
within a reasonable time and for reasonable rates and compensation and the City
may direct or take corrective actions for'any performance inadequacies.
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January 18, 1995, Draft
4
ARTICLE 8
RECORDS, REPORTS AND INFORMATION REQUIREMENTS
8.1 General
The 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 Solid Waste program management needs of the 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 the City, the
records and reports to be maintained and provided by the Company in
accordance with this and other Articles of the Agreement may be adjusted in
number, format, or frequency.
8.2 Records
8.2.1 General
Company shall maintain records required to conduct its operations, to support
requests it may make to the City, and to respond to requests from the City in the
conduct of the 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.
Company agrees that the records of any and all companies conducting
operations addressed in the Agreement, including Related Party Entities, shall be
provided or made available to the City and its official representatives during
normal business hours.
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January 18, 1995, Draft
~
8.2.2 Financial Records
Financial records shall be maintained and cost and revenue information for the
City shall be segregated from other areas served by the Company.
Where the allocation of costs or revenues to various categories of customers is
required to develop equitable rates that reflect the cost of service, Company shall
segregate such costs and revenues.
8.2.3 Solid Waste Records
Records shall be maintained by the Company for the City relating to:
a) Customer services and billing;
b) Character, weight and volume of Solid Waste, especially as related to
reducing and diverting Solid Waste. Information is to be separated by
kind of account (including Multi-Family Dwelling Units with Residential).
c) Special annual cleanup event results;
d) Routes;
e) Facilities, equipment and personnel used;
f) Facilities and equipment operations, maintenance and repair;
g) Processing and Disposal of Solid Waste;
h) Complaints; and,
i) Missed pick ups.
Company shall maintain records of Disposal of all Solid Waste Collected in the
City for the period of this Agreement and all extensions to this Agreement or
SUccessor Agreements. In the event Company discontinues providing Solid
Waste services to the City, Company shall provide all records of Disposal or
processing of all Solid Waste Collected in the City within thirty (30) days of
discontinuing service. Records shall be in chronological and organized form and
readily and easily interpreted.
8.2.4 Recycling and Green Waste Service Records
Records shall be maintained for the City that relate to:
a) Records described in 8.2.3, "bove;
b) Recycling and Green Waste participation - especially as related to
determining participation rates and implementing programs to increase
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January 18, 1995, Draft
existing participation and to expand diversion (names, addresses, contacts
made, etc.);
c) Weight of each material by type of program;
d) Sales.. kind of material, name of buyer / user, date of sales/ transaction,
processing costs, quantity purchased (in tons) and value Per ton, and net
sales;
e) Inventories; and,
f) Accomplishments ~elative to milestones contained in Company's proposal
(Exhibit 1).
8.2.5 Other Programs' Records
Records for other programs shall be tailored to specific needs. In general, they
shall include:
a) Plans, tasks, and milestones; and,
b) Accomplishments in terms such as dates, activities conducted, quantities
of products used, produced or distributed, and numbers of participants
~d responses.
8.3 Reports
8.3.i 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 effica,cy of oPerations;
b) Evaluate past and expected progress towards achieving goals and
objectives;
c) Determine needs for adjusbnent 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 shall be approved by the
City.
Monthly reports shall be submitted within ten (10) calendar days after the end of
the report month. Quarterly reports shall be submitted within fifteen (15)
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January 18, 1995, Draft
calendar days after the end of the quarter. Quarters end on March 31, June 30,
September 30 and December 31. Annual reports shall be submitted before
January 31st following the reporting year.
All reports shall be submitted to:
Assistant City Manager/Administrative Services Director
City of Dublin
100 Civic Plaza
Dublin, California 94568
8.3.2 Monthly Reports
The information listed shall be the minimum reported for each service:
~ar Services
a) Solid Waste, sorted by kind of Waste Generator, Collected by Company, in
tons.
b) Complaint summary, for month and cumulative for report year, as above.
Summarized by nature of complaints.
c) Narrative summary of problems encountered and actions taken with
recommendations for the City, as appropriate.
Re~cling and Green Waste Services
a) Same as Regular Service, but for Recycling by material type and Green
Waste, including the Percentage diverted by material type and category
(Residential, Commercial, Industrial).
b) Number of accounts by category shown for each month of reporting year
and previous years, as above.
c) Participation rates in same format as number of accounts.
d) Recyc1ables Container Distribution. Information on the number of
Recycling Containers distributed, including why Containers have been
distributed (i.e., new Recycling customer, broken, lost, stolen, other).
e) Materials SaleS. Sales statement showing: kinds of material, the name of
each buyer/user, date of sale/transaction, terms of sale/transaction,
quantity purchased (in tons), value per ton, and net sales. Tonnages sold
at different prices during month must be reported separately.
Adjustments to previous month's sales (such as for contamination) shall be
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January 18, 1995, Draft
. reported on the current statement as a reduction of sales and referenced to
the previous month's statement, wherein the original sale was reported.
The sales numbers shall be reconciled with the daily tonnage and
differences shall be justified. Information for report month and
cumulative for year.
f) Inventories - Description showing the quantity and type of Recyclable
materials remaining in inventory at the close of the month.
8.3.3 Quarterly Report
Regular Service and ~clini and Green Waste quarterly reports shall be
quarterly summaries- of the monthly information.
Other Programs
For each program, provide activity related and narrative reports on goals and
milestones and accomplishments. Describe problems encountered, actions taken
and any recommendations to facilitate progress. Describe vehicles, personnel,
and equipment utilized for each program.
Summcuy Assessment
Provide a summary assessment of the overall Solid Waste 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.
8.3.4 Annual Report
The Annual Report is to be essentially in the form and content of the quarterly
reports. In addition, Company's and Related Party Entities' annual audited
financial reports/ statements shall be included. The annual report shall also
include a complete inventory of equipment used to provide all services.
Financial statements shall include a supplemental combining schedule showing
the Company's results of operations, including the specific revenues and
expenses in connection with the operations provided for in this Agreement and
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January 18, 1995, Draft
others included in such financial statements. The financial statements,
supplemental schedule and footnotes shall be prepared in accordance with
Generally Accepted Accounting Principles (GAAP) and audited, 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 the Company's
annual financial statements and supplemental schedule shall be unqualified. The
cost for the annual audit shall be borne by the Company as a direct cost of
service.
Company shall, in its agreement with the CPA performing its annual audit
referred to above, have its CPA make available to the Oty (or the City's
designated representative) such CPA's working papers related to the audit. The
cost, if any, incurred by Company's CPA shall be included in the cost of the
audit.
As part of the annual audit requirement described, or within ninety (90) days of
each Related Party Entity's Fiscal Year-end, if timing does not coincide with the
annual report date, Company shall provide the City a copy of the Related Party
Entity's annual audited financial statements and management letter for that
Fiscal Year. The financial statements shall be prepared in accordance with GAAP
and audited, in accordance with GAAS, by a CPA licensed in the state in which
the Related Party Entity is headquartered. The CPA's opinion on each Related
Party Entity's annual financial statements shall be unqualified.
Each Related Party Entity shall, in its agreement with the CPA performing its
annual audit referred to above, have its CPA make available to the City (or the
Oty's designated representative) such CPA's working papers related to the audit.
Company agrees that all financial transactions with all Related Party Entities
shall be approved in advance in writing and disclosed annually (coinciding with
the Company's annual audited financial statements referred to in this Section) to
the Oty in a separate disclosure letter to the Oty. This letter shall include, but
not be limited to, the following information:
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January 18, 1995, Draft
A general description of the nature of each, or type of (for many
similar) transaction, as applicable. Such description shall include
for each (or similar) transaction, amounts, specific Related Party
Entity, basis of amount (how amount was determined), and
description of the allocation methodology used to allocate any
common costs. Amounts shall be reconciled to the Related Party
Entity disclosures made in Company's annual audited financial
statements referred to in this Section.
At the City's request, Company shall provide the City with copies of working
papers or other documentation deemed relevant by the City relating to
information shown in the annual disclosure letter. The annual disclosure letter
shall be provided to the City within ninety (90) days of Company's Fiscal Year
. end.
8.4 Right to I~ect Records
The City shall have the right to inspect or review the payroll tax reports, specific
documents or records required expressly or by inference pursuant to this
Agreement, or any other similar records or reports of the Company or its
Affiliated Related Party Entities that the City shall deem, in its sole discretion,
necessary to evaluate annual reports, compensation applications provided for in
this Agreement and the Company's performance provided for in this Agreement.
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January 18, 1995, Draft
ARTICLE 9
INOEMNIFICATION, INSURANCE AND BOND
9.1 Indemnification
Company hereby agrees to and shall indemnify and hold harmless the 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
indemnities' negligence. Company further agrees to and shall, upon demand of the
City, at Company's sole cost and expense, defend (with attorneys acceptable to the
City) the City, its elected and ~ppointed 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.
The 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.
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January 18, 1995, Draft
9.2 Hazardous Substances Indemnification
Company shall indemnify, defend with counsel selected by the City, protect and
hold harmless the City, its elected and appointed boards, commissions, officers,
employees, and agents (collectively, indemnities) 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 House Hazardous Waste (Collectively, 'Waste") in the City at any places
where Company transports, processes, stores or disposes of City Solid Waste,
and/ or construction and street debris, or other waste. The foregoing indemnity is
mtended to operate as an agreement pursuant to ~107(e) of the Comprehensive
Environmental Response, Compensation and Liability Act, CERCLA, 42 use.
~9607(e) and California Health and Safety Code ~25364, to defend, protect, hold
harmless, and indemnify the 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.
9.3 AB 939 Indemnification
Company agrees to indemnify and hold harmless the City, its officers, employees,
and agents from and against all fines and/ or penalties imposed by the California
. Integrated Waste Management Board in the event the source reduction and
Recycling goals or any other requirement of AB 939 are not met by the City with
respect to the waste stream Collected under this Agreement and such failure is due
to the failure of Company to meet its obligations under this Agreement and for
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January 18, 1995, Draft
delays in providing information that prevents the City from submitting reports
required by AB 939 in a timely manner.
9.4 Insurance
The City does not, and shall not, waive any. rights against the 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.
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 Comprehensiye General Liability and Insurance Services
Office form number GL 0404 covering Broad Form Comprehensive
Gmer~Li~ili~mwuranceServicesOfficeCo~~alGeneral
liability coverage ("occurrence" form CG 0001).
2. The most recent editions of wurance 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 Gmeral Liability: Five Million Dollars ($5,000,000)
combined single limit per occurrence for bodily injury, Personal injury
and property damage.
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
C~ifornia and Employers Liability limits of $1,000,000 per accident.
C. Deductibles and Self-Insured Retentions. Any deductibles or self-insured
retentions must be declared to and approved by the City. At the option of the
City, either: the insurer shall reduce or eliminate such deductibles or self-
insured retention's as respects the City, its officials, employees and agents; or
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January 18, 1995, Draft
Company shall procure a bond guaranteeing payment of losses and related
investigations, claim administration and defense expenses.
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) The 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 the City, its
elective and appointive boards, commissions, officials,
employees, agents or volunteers.
b) Company's insurance coverage shall be primary insurance as
respects the City, its elective and appointive boards,
commissions, officials, employees, agents and volunteers. Any
insurance or self-insurance maintained by the 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 the City, its officials,
elective and appointive boards, commissions, employees, agents
or volunteers.
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.
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January 18, 1995, Draft
2 Workers' Compensation and Employers Liability Coverage - The
insurer shall agree to waive all rights of subrogation against the City,
its officials, elective and appointive boards, commissions, employees,
agents and volunteers for losses arising from work performed by
Company for the 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 the 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 vn or larger and a rating
classification of A or better.
F. Verification of Coverage. Company shall furnish the City with certificates of
insurance and with original endorsements affecting coverage required by this
clause. 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.
The certificates and endorsements are to be on forms provided by or
acceptable to the City and are to be received and approved by the City before
work commences. The City reserves the right to require complete, certified
copies of all required insurance policies, at any time.
G. Contractors and Subcontractors. The Company shall include all contractors
and subcontractors as insureds under 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.
H. Required Endorsements
1. The Workers' Compensation policy shall contain an endorsement in
substantially the following form:
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January 18, 1995, Draft
"Thirty (30) days prior written notice shall be given to the City
in the event of cancellation, reduction in coverage, or non-
renewal of this policy. Such notice shall be sent to:
Assistant City Manager / Administrative Services Director
Oty of Dublin
100 Civic Plaza
Dublin, California 94568
2. The Public Liability policy shall contain endorsements in substantially
the following form:
a) ''Thirty (30) days prior written notice shall be given to the
Oty in the event of cancellation, reduction in coverage, or
non-renewal of this policy. Such notice shall be sent to:
Assistant City Manager/Administrative Services
Director
Oty of Dublin
100 Ovic Plaza
Dublin, California 94568
b) '.'The Oty, 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 the Oty, including any self-insured retention or program
of self-insurance, and any other such insurance shall be
considered excess insurance only."
d) "Inclusion of the City as an insured shall not affect the City's
rights as respects any claim, demand, suit or judgment
brought or recovered against Company. This policy shall
protect Company and the Oty in the same manner as though
a separate policy had been issued to each, but this shall not
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January 18, 1995, Draft
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."
I. Delivery of Proof of Coverage. Simultaneously with the execution of this
Agreement, Company shall furnish the City certificates of each policy of
insurance required hereunder, in form and substance satisfactory to the
City. . Such certificates shall show the type and amount of coverage,
effective dates and dates of expiration of policies and shall have all
required endorsements. If the City requests, copies of each policy,
together with all endorsements, shall also be promptly delivered to the
City.
Renewal certificates will be furnished periodically to the City to
demonstrate maintenance of the required coverage throughout the Term.
J. Other Insurance Requirements
1. In the event any services are delegated to a contractor or
subcontractor, Company shall require such contractor or
subcontractor to provide statutory workers' compensation
insurance and employer's liability insurance for all of the contractor
or subcontractor's employees engaged in the work in accordance
with this Section 9.4. The liability insurance required by this
Section 9.4 shall cover all contractor or subcontractors or the
contractor or subcontractor must furnish evidence of insurance
provided by it meeting all of the requirements of this Section 9.4.
2. Company shall comply with all requirements of the insurers
issuing policies. The carrying of insurance shall not relieve
Company from any obligation under this Agreement. If any claim
exceeding the amount of any deductibles or self-insured reserves is
made by any third Person against Company or any contractor or
subcontractor on account of any occurrence related to this
Agreement, Company shall promptly report the facts in writing to
the insurance canier and to the City.
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January 18, 1995, Draft
H Company fails to procure and maintain any insurance required
by this Agreement, the City may take out and maintain, at
Company's expense, such insurance as it may deem proper and
deduct the cost thereof from any moneys due Company.
9.5 Faithful Performance Bond
Simultaneously with the execution of this Agreement, Company shall file with
the City a bond, payable to the City, securing the Company's faithful
performance of its obligations under this Agreement. The principal sum of the
bond shall be One Million Dollars ($1,000,000). The bond shall be executed as
surety by a corporation authorized to issue surety bonds in the State of
California, with a financial condition and record of service satisfactory to the
City. The bond shall be in the form attached as Exhibit 5.
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January 18, 1995, Draft
ARTICLE 10
THE CITY'S RIGHT TO PERFORM SERVICE
10.1 General
In the event that Company, for any reason whatsoever, fails, refuses or is unable to
Collect, transport or dispose of any or all Solid Waste 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, Solid Waste should
accumulate in the City to such an extent, in such a manner, or for such a time that
the City should find.that such accumulation endangers or menaces the public health,
safety or welfare, then the City shall have the right, but not the obligation, upon
twenty-four (24) hour prior written notice to the Company during the period of such
emergency as determined by the City, (1) to perform, or cause to be performed, such
services.itself with its own or other Personnel without liability to the Company;
and/ or (2) to take possession of any or all of Company's land, equipment and other
property used or useful in the Collection and transportation of Solid Waste, and to
use such property to Collect and transport any Solid Waste generated within the
City which Company would otherwise be obligated to Collect, transport and
properly dispose of or process pursuant to this Agreement.
Notice of the Company's' failure, refusal or neglect to Collect, transport and properly
dispose of or process Solid Waste 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 the City to effect the transfer of possession of
equipment and property to the City for the City's use.
B. It will, if the 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 provide such other service as may be necessary to maintain said
property in operational condition.
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January 18, 1995, Draft
C. The City may immediately engage all or any Personnel necessary or useful for
the Collection and transportation of Solid Waste, including, if the City so
desires, employees previously or then employed by Company, the Company
further agrees, if the City so requests, to furnish the City the services of any or
all management or office Personnel employed by Company whose services
are necessary or useful for Solid Waste Collection, transportation, processing
and disposal operations and for the billing and Collection of fees for these
services.
The 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 11.4, the City shall pay to Company the reasonable rental value of the
equipment and facilities, as described in Exhibit 1, possession of which is taken by
the City, for the period of the 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, the City's
exercise of its rights under this Article 10 (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 the City to Company; and (3) does not exempt Company from the
indemnity provisions of Article 9, which are meant to extend to circumstances
arising under this Section, provided that Company is not required to indemnify the
City against claims and damages arising from the sole negligence of the City, its
elective and appointive boards, commissions, officers, employees and agents in the
operation of Collection vehicles during the time the City has taken possession of .
such vehicles.
10.2 Tempor~ Possession of CQmpany's Property
If the City suffers an interruption or discontinuance of service (including
interruptions and discontinuance due to events described in Section 11.4), the 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 Solid Waste Collection
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January 18, 1995, Draft
Services which may include the grant of a Franchise to another waste hauling
company.
10.3 Billing and Compensation to City During City's Possession
During such time that the City is providing Solid Waste services, as above provided,
Company shall bill and Collect payment from all users of the above-mentioned
services as described in Section 5.1.2. Company further agrees that, in such event, it
shall reimburse the City for any and all costs and expenses incurred by the City in
taking over possession of the above-mentioned equipment and property for Solid
Waste 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 the 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.
. 10.4 City's Right to Relinq,uish Possession
It is further mutually agreed that the 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 Solid Waste services as provided in this.
Agreement, whereupon Company shall be bound to resume the same.
10.5 City's Possession Not A T~I
The City's exercise of its rights under this Article (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 the City to Company, and (3) does not exempt Company from any of
the indemnity and insurance provisions of this Agreement, which are meant to extend
to circumstances arising under this Section.
10.6 Duration of City's Possession
The 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
City determines that such services can be resumed by Company, or when the City no
longer reasonably requires such property or equipment. In any case, the 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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January 18, 1995, Draft
ARTICLE 11
DEFAULT, REMEDIES AND LIQUIDATED DAMAGES
11.1 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, or attempts to practice, any fraud or
deceit upon the Oty.
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
D. . Violations of Regulation. If Company violates any orders or filings of any
regulatory body having jurisdiction over Company relative to 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, processing or
Recycling 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.
F. Failure to Pay. If Company fails to make any payments required under this
Agreement and/or refuses to provide the Oty 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
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January 18, 1995, Draft
Integrated Waste Management Act of 1989, as it may be amended from time
to time, or any law, statute, ordinance, order, directive, rule, !Jr regulation
issued thereunder and which is not corrected or remedied within the time set
in the written notice of the violation or, if 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 representation or disclosure made to
the Oty 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~ Suspension or Termination of Service. There is any termination or
suspension of the transaction of business by Company, including without
limit, due to labor unrest including strike, work stoppage or slowdown, sick-
out, picketing, or other concerted job action lasting more than two (2)
consecutive days.
K. Failure to Provide Assurance of Performance. It Company fails to provide
reasonable assurances of performance as required under Section 11.6.
11.2 Right to Terminate Qpon Default
Upon "a default by Company, the Oty shall have the right to terminate this Franchise
and this Agreement upon a ten (10) days notice if the pubUc health or safety is
threatened, or otherwise a thirty (30) days notice, but without the need for any
hearing, suit or legal action. This right of termination is in addition to any other
rights of the City upon a failure of Company to perform its obligations under this
Agreement.
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January 18, 1995, Draft
The City's right to terminate this Agreement and to take possession of Company's
Facility are not exclusive, and the 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 the Oty 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 the Oty to Company, the remedy of damages for a breach hereof by
Company is inadequate and the Oty shall be entitled in injunctive relief.
11.3 Liquidated Damages
A. General. The Oty 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 the 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 (0 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; (ill) 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.
B. Service Performance Standards; Liquidated Damages for Failure to Meet
Standards. The parties further acknowledge that consistent, reliable Solid
Waste Collection service is of utmost importance to the City and that the 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
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January 18, 1995, Draft
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, the 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 the City will suffer. Therefore, without prejudice to the City's right to
treat such non-performance as an event of default under this Article 11, 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 the 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
Initial Here
City
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 five
(5) such failures annually:
b) For each failure to Collect Solid Waste, 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
ten (10) such failures annually:
c) For each failure to Collect Solid Waste, which has been
properly set out for Collection, from the same customer on
two (2) consecutive scheduled pickup days:
$150.00
$150.00
$150.00
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January 18, 1995, Draft
Collection Reliability (ConQJlued)
d) For each failure to prepare for or properly conduct Annual
Oeanups including advertising and press releases:
e) For each failure to perform and submit billing reviews:
2. Collection Ouality
a) For each occurrence of damage to private property which
exceeds five (5) such occurrences annually:
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 (in
areas where customers own their containers, if applicable)
which exceeds ten (10) such occurrences annually:
c) For each occurrence of excessive noise:
d) For each occurrence of discourteous behavior to a customer
e) For each failure to clean up Solid Waste spilled from Solid
Waste Containers which exceeds ten (10) such failures
annually:
f) For each occurrence of Collecting Solid Waste during
unauthorized hours which exceeds five (5) such occurrences
annually:
3. Customer Responsiveness
a) For each failure to initially respond to a customer complaint
within one (1) business day:
b) For each failure to process customer complaints to the City as
required by Artie1e 5:
c) For each failure to carry out responsibilities for establishing
service:
$250.00
$250.00
$250.00
$150.00
$250.00
. $250.00
$150.00
$250.00
$100.00
$500.00
$500.00
4. Timeliness of Submissions to the City
Any report shall be considered late until such time as a correct and complete
report is received by the City. For each calendar day a report is lat~, the daily
liquidated damage amount shall be:
Monthly Reports:
Quarterly Reports:
Annual Reports:
a)
b)
c)
$100 per day
$250 per day
$500 per day
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January 18, 1995, Draft
The 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, the Oty 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 the Oty relating to
incident(s)/non-performance. Company may, within ten (10) days after
receiving the notice, request a meeting with the Oty. Company may
present evidence in writing and through testimony of its employees and
others relevant to the incident(s)/non~performance. The Oty will provide
Company with a written explanation of his or her determination on each
incident(s)/non-performance prior to authorizing the assessment of
liquidated damages. The decision of the City shall be final.
C. Amount. The Oty 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 the Oty within ten (10) days after they ar~ assessed. If they
are not paid within the ten (10) day period, the Oty may proceed against
the performance bond required by the Agreement or order the termination
of the Franchise granted by this Agreement, or both.
11.4 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 "acts of God", 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
qom 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
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January 18, 1995, Draft
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, the 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.
11.5 Notice. Hearing and Appeal of City Breach
Should Company contend that the City is in breach of this Agreement, it shall file
with the City Manager a written request with the 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. The 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 the City staff has made its presentation. Company shall be notified of the
City's ruling in writing within fourteen (14) days of the administrative hearing.
H Company is not in agreement with the ruling issued by the City at the
administrative hearing, it shall have the right to appeal this ruling to the City
Council members. This appeal shall be made in writing to the City no later than
fourteen (14) days after receipt of the administrative hearing ruling. The City
shall notify Company of the time and date the City Council 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 City Council's ruling. The City Council's ruling shall be
final, and Company shall have no further rights of appeal.
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11.6 Assurance of Performance
The City may, at its option and in addition to all other remedies it may have,
demand from Company reasonable assurances of timely and proper performance
of this Agreement, in such form and substance as the Oty may require. If
Company fails or refuses to provide satisfactory assurances of timely and proper
performance in the form and by the date required by the Oty, such failure or
refusal shall be an event of default.
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ARTICLE 12
OTHER AGREEMENTS OF THE PARTIES
12.1 Relationshtp of Parties
The parties intend that Company shall perform the services required by this
Agreement as an independent Company engaged by the City and not as an officer or
employee of the City nor as a partner of or joint venture with the City. No employee
or agent or Company shall be or shall be deemed to be an employee or agentof the
City. Except as expressly provided herein, Company shall have the exclusive
control over the manner and means of conducting the Solid Waste Collection and
Disposal services performed under this Agreement, and all Persons performing such
services. Company shall be solely responsible for the acts and omissions of its
officers, employees; contractors, subcontractors and agents. Neither Company nor
its officers, employees, contractors, subcontractors and agents shall obtain any rights
to retirement benefits, workers' compensation benefits, or any other benefits which
accrue to the City employees by virtue of their employment with the City.
12.2 COIl\Pliance with Law
In providing the services required under this Agreement, Company shall at all
times, at its sole cost, comply with all applicable laws and regulations of the United
States, the State of California, and local agencies, the City shall comply with all
applicable regulations promulgated by federal, state, regional or local administrative
and regulatory agencies, now in force and as they may be enacted, issued or
amended during the Term.
12.3 Governing Law
This Agreement shall be governed by, and construed and enforced in accordance
with, the laws of the State of California.
12.4 Jurisdiction
Any lawsuits between the parties arising out of this Agreement shall be brought and
concluded in the courts of the State of California, which shall have exclusive
jurisdiction over such lawsuits.
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With respect to venue, the parties agree that this Agreement is made in and will be
performed in Alameda County.
12.5 Assignment
Except as may be provided for in Article 10 (the City's Right to Perform Service),
neither party shall assign its rights, nor delegate, subcontract or otherwise transfer
its obligations under this Agreement to any other Person without the prior written
consent of the other party. Any such assignment made without the consent of the
other party shall be void and the attempted assignment shall constitute a material
breach of this Agreement.
For purposes of this Section when used in reference to Company, "assignment" shall
include, but not be limited to (i) a sale, exchange or other transfer of substantially all
of Company's assets dedicated to service under this Agreement to a third party; (ii) a
sale, exchange or other transfer of outstanding common stock of Company to a third
party provided said sale, exchange or transfer may result in a change of control of
Company; (Ui) 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 Company; (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 Company'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
Company.
Company acknowledges that this Agreement involved rendering a vital service to
the City's residents and businesses, and that the City has selected Company to
perform the services specified herein based on (1) Company's experience, skill and
reputation for conducting its Solid Waste management operations in a safe, effective
and responsible fashion, at all times in keeping with applicable EnviroIlD.lental
Laws, regulations and best Solid Waste management practices, and (2) Company's
financial resources to maintain the required equipment and to support its indemnity
obligations to the City under this Agreement. The City has relied on each of these
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factors, among others, in choosing Company to perform the services to be rendered
by Company under this Agreement.
If Company requests the City's consideration of and consent to an assignment, the
City may deny or approve such request in its complete discretion. No request by
Company for consent to an assignment need be considered by the City unless and
until Company has met the following requirements:
a. Company shall undertake to pay the City its reasonable expenses for
attorney's 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;
b. Company shall furnish the City with audited financial statements of the
proposed assignee's operations for the immediately preceding three (3)
operating years;
c. Company shall furnish the City with satisfactory proof: (i) that the proposed
assignee has at least ten (10) years of Solid Waste management experience on
a scale equal to or exceeding the sale of operations conducted by Company
under this Agreement; (ii) that in the last five (5) years, the proposed assignee
has not suffered any significant citations or other censure from any federal,
state or local agency having jurisdiction over its Solid Waste management
operations due to any significant failure to comply with state, federal or local
Environmental Laws and that the assignee has provided the City with a
complete list of such citations and censures; (iii) that the proposed assignee
has at all times conducted its operations in an environmentally safe and con-
scientious fashion; (iv) that the proposed assignee conducts its Solid Waste
management practices in accordance with sound Solid Waste management
practices in full compUance with all federal, state and loca11aws regulating
the collection and Disposal of Solid Waste including Hazardous Substances;
and, (v) of any other information required by the City to ensure the proposed
assignee can fulfill the Terms of this Agreement in a timely, safe and effective
manner.
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Under no circumstances shall the City be obliged to consider any proposed
assignment by the Oty if Company is in default at any time during the period of
consideration.
12.6 Afflliated COll\Panies
Company's accounting records shall be maintained on a basis showing the results of
Company's operations under this Agreement separately from operations in other
locations, as if Company were an independent entity providing service only to the City.
The costs and revenues associated with providing service to the City shall not be
combined, consolidated or in any other way incorporated with those of other operations
conducted by Company in other locations, or with those of an Affiliate.
If Company enters into any financial transactions with a Related Party Entity for the
provision of labor, equipment, supplies, services, capital, etc., related to the furnishing
of service under this Agreement, that relationship shall be disclosed to the Oty, and in
the financial reports submitted to the City. In such event, the Oty's rights to inspect
records, and obtain fmancial data shall extend to such Related Party Entity or entities.
If there are any financial transactions between Company and an Affiliate independent
of contract by means of which funds are transferred between Company and such
Affiliate then, in such event, the Oty's right to inspect records and obtain financial data
shall extend to such Affiliate or Affiliates.
Whether or not there are such contractual or extra-contractual relationships between
Company and AffJ.liates, if Company is owned or controlled by another corporation,
then the financial reports and auditor's opinions required of Company shall also be
required of such "parent company" which shall constitute an "AffJ.liate".
12.7 Contracting or Subcontracting
Company shall not engage any contractors or subcontractors for Collection or Disposal
of Solid Waste without the prior written consent of the Oty.
12.8 Binding on Assigns
The provisions of this Agreement shall inure to the benefit to and be binding on the
permitted assigns of the parties.
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12.9 . Transition to Next COll\Pany
If the transition of services to another company occurs through expiration of term,
default and termination, or otherwise, Company will cooperate with the City and
subsequent company(ies) to assist in an orderly transition which will include Company
providing route lists and billing information. Subject to Section 4.4.3.2, Company will
not be obliged to sell Collection vehicles, bins and Containers to the next company.
Depending on Company's circumstances at the point of transition, Company at its.
option may enter into negotiations with the next company to sell (in part or all)
Collection vehicles, bins and Containers.
12.10 Parties in Interest
Nothing in this Agreement, whether express or implied, is intended to confer any rights
on any Persons other than the parties to it and their representatives, successors and
permitted assigns.
12.11 Waiver
The waiver by either party of any breach or violation of any provisions of thiS
Agreement shall not be deemed to be a waiver of any breach or violation of any other
provision nor of any subsequent breach of violation of the same or any other provision.
The subsequent acceptance by either party of any moneys whjch 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.
12.12 COll\PaWs Investiption
Company has made an independent investigation (satisfactory to it) of the conditions
and circumstances surrounding the Agreement and the work to be performed by it.
12.13 Condemnation
The City fully reserves the rights to acquire Company's property utilized in the
performance of this Agreement, by purchase or through the exercise of the right of
eminent domain. This provision is additive, and not intended to alter the rights of the
parties set forth in Article 10.
12.14 Notice
All notices, demands, requests, proposals, approvals, consents'and other
communications which this Agreement requires, authorizes or contemplates shall be in
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January 18, 1995, Draft
writing and shall either be personally delivered to a representative of the parties at the
address below or be deposited in the lInited States mail, first class postage prepaid,
addressed as follows:
If to the City:
Assistant City Manager I Administrative Services Director
City of Dublin
100 Civic Plaza
Dublin, California 94568
If to Company:
The address to which communications may be delivered may be changed from time to
time by a written notice given in accordance with this Section.
Notice shall be deemed given on the day it is Personally delivered or, if mailed, three
days from the date it is deposited in the mail.
12.15 Representatives of the Parties
References in this Agreement to the "the City" shall mean the City Council and all
actions to be taken by the City shall be taken by the City Council except as provided
below. The City Council may delegate, in writing, authority to the Assistant City
Manager, and/or to other the City employees and may permit such employees, in turn,
to delegate in writing some or all of such authority to subordinate employees.
Company may rely upon actions taken by such delegates if they are within the scope of
the authority proPerly delegated to them.
Company shall, by the effective date, designate in writing a responsible officer who
shall serve as the representative of Company in all matters related to the Agreement
and shall inform the City in writing of such designation and of any limitations upon his
or her authority to bind Company. The City may rely upon action taken by such
designated representative as actions of Company unless they are outside the scope of
the authority delegated to him/her by Company as communicated to the City.
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12.16 City Free to N~gotiate with Third Parties
The City may investigate all options for the Collection and Disposal of Solid Waste after
the expiration of the Term. Without limiting the generality of the foregoing, the City
may solicit proposals from Company and from third parties for the provision of
Collection services, Disposal services, Recycling services, Green Waste Collection and
processing, and any combination thereof, and may negotiate and execute agreements
for such services which will take effect upon the expiration or earlier termination under
Section 11.1 of this Agreement.
12.17 Compliance with Municipal Code
Company shall comply with those provisions of the municipal code of the Oty which
are applicable, and with any and all amendments to such applicable provisions during
the term of this Agreement.
12.18 Lease of Equipment and Facilities
Company agrees not to enter into leases or the purchase of equipment and facilities
without the advance, written approval ~f the City.
12.19 Loans
Company agrees to eliminate all Related Party Entity loans by
enter into such future loans upon approval by the Oty.
and only
12.20 Privac:y
Company shall strictly observe and protect the rights of privacy of customers.
Information identifying individual customers or the composition or contents of a
customer's waste stream shall not be revealed to any Person, governmental unit, private
agency, or company, unless upon the authority of a court of law, by statute, or upon
valid authorization of the customer. This provision shall not be construed to preclude
Company from preparing, participating in, or assisting in the preparation of waste
characterization studies or waste stream analyses which may be required by AB 939.
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...
ARTICLE 13
MISCELLANEOUS AGREEMENTS
13.1 Entire Aareement
This Agreement, including the Exhibits, represents the full and entire Agreement
between the parties with respect to the matters covered herein.
13.2 Secij.on Head~s
The article headings and section headings in this Agreement are for convenience of
reference only and are not intended to be used in the construction of this Agreement
nor to alter or affect any of its provisions.
13.3 References to Laws anet Other AlP'eements
All references in this Agreement to laws shall be understood to include such laws as
they may be subsequently amended or recodified, unless otherwise specifically
provided. This Agreement supersedes any and all agreements heretofore entered
into by the parties and the Gty.
13.4 Intel1'retation
This Agreement, including the exhibits attached hereto, shall be interpreted and
construed reasonably and neither for nor against either party, regardless of the
degree to which either party participated in its drafting.
13.5 Apement
This Agreement may not be modified or amended in any respect except by a writing
signed by the parties.
13.6 Severability
H any non-material provision of this Agreement is for any reason deemed to be
invalid and unenforceable, the invalidity or unenforceability of such provision shall
not affect any of the remaining provisions of this Agreement which shall be enforced
as if such invalid or unenforceable provision had not been contained herein.
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January 18, 1995, Draft
.. ..
3.7 Exhibits
Each of Exhibits identified as Exhibit "_" through "_" is attached hereto and
incorporated herein and made a part hereof by this reference.
IN WI1NESS WHEREOF, the Gty and Company have executed this Agreement as of the
day and year first above written.
ATTEST:
SECRETARY
TIm CITY OF DUBLIN
("the Gty")
By
By
CITY
APPROVED AS TO FORM:
("COMP ANY")
the Gty Attorney
By:
Name:
Title:
By:
Name:
Title:
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January 18, 1995, Draft .