HomeMy WebLinkAboutAgreement A-16-191with Mid Valley Disposal LLC.pdf Agreement No. 16-191
1 LANDFILL USE AGREEMENT
2 THIS LANDFILL USE AGREEMENT is made and entered into this 1Othday of
3 May , 2016 between the County of Fresno, a political subdivision of the State of
4 California (the"County"), and Mid Valley Disposal, LLC., a California Limited Liability Company
5 ("Contractor"), located at 3444 W. Whitesbridge Avenue, Fresno, CA 93706 with reference to
6 the following facts.
7 RECITALS
8 WHEREAS, County owns, manages and operates the American Avenue Disposal Site
9 ("Landfill'). The Landfill is used for the disposal of municipal solid waste pursuant to the
10 California Integrated Waste Management Act of 1989 (Division 30 of the California Public
11 Resources Code);
12 WHEREAS, the Landfill is a Class III, regional non-hazardous facility;
13 WHEREAS, Contractor desires to enter into this Disposal Agreement on the terms and
14 conditions set forth herein;
15 WHEREAS, Contractor has determined that the execution of this Agreement by the
16 Contractor will provide Contractor with reliable disposal services and the continuation of sound
17 environmental management; and,
18 WHEREAS, County has determined that the execution of this Agreement will serve the
19 public health, safety and welfare by providing a more stable, predictable and reliable supply of
20 municipal solid waste and the resulting service payment revenue, thereby enabling County to
21 finance the planning, management and operations of the Landfill consistent with its obligations
22 to the State;
23 It is, therefore, agreed as follows:
24 ARTICLE 1
25 DEFINITIONS AND INTERPRETATION
26 SECTION 1.1 DEFINITIONS.
27 As used in this Agreement, the following terms shall have the meanings set forth below.
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1 "Acceptable Waste" means all garbage, refuse, rubbish and other materials and
2 substances discarded or rejected as being spent, useless, worthless or in excess to the owners
3 at the time of such discard or rejection and which are normally disposed of by or collected from
4 residential (single-family and multi-family), commercial, industrial, governmental and institutional
5 establishments and which are acceptable at Class III landfills under Applicable Law.
6 "Act" means the California Integrated Waste Management Act of 1989 (Division 30 of the
7 California Public Resources Code), as amended, supplemented, superseded and replaced from
8 time to time.
9 "Agreement" means this Landfill Use Agreement between County and Contractor as the
10 same may be amended or modified from time to time in accordance herewith.
11 "Annual Evaluation Period" means the period of time, commencing on the Contract Date
12 during which the Contract Disposal Rate applicable to the immediately preceding Contract Year
13 is determined in accordance with the procedure for annual waste flow reconciliation and
14 enforcement specified in Section 3.1(C) of this Agreement.
15 "Applicable Law" means the Act, the Fresno County Ordinance Code, CERCLA, RCRA,
16 CEQA, any legal entitlement and any federal or state rule, regulation, requirement, guideline,
17 permit, action, determination or order of any Governmental Body having jurisdiction, applicable
18 from time to time to the siting, design, permitting, acquisition, construction, equipping, financing,
19 ownership, possession, operation or maintenance of the Landfill, the transfer, handling,
20 transportation and disposal of Acceptable Waste, Unacceptable Waste, or any other transaction
21 or matter contemplated hereby (including any of the foregoing which concern health, safety, fire,
22 environmental protection, mitigation monitoring plans and building codes).
23 "CEQA" means the California Environmental Quality Act, codified at Cal. Pub. Res. Cod
24 Section 21000 et seq. as amended or superseded, and the regulations promulgated thereunder.
25 "CERCLA" means the Comprehensive Environmental Response, Compensation, and
26 Liability Act, 42 U.S.C.A. Section 9601 et seq., as amended or superseded, and the regulations
27 promulgated thereunder.
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2
1 "Change in Law" means any legislative enactment, or issuance of a controlling
2 administrative regulation or judicial opinion, on or after the Commencement Date, providing for
3 new or revised legal requirements, including without limitation any expansion in scope or
4 material modification of any Applicable Law, that has a material and adverse effect on the
5 performance by the parties of their respective obligations under this Agreement, or on the siting,
6 design, permitting, acquisition, construction, equipping, financing, ownership, possession,
7 operation or maintenance of the Landfill.
8 A "Change in Law" also shall include any new or revised requirements relating to the
9 funding or provision, by or at the direction of local public agencies, of waste collection and
10 disposal services.
11 "City" means the City of Fresno, a municipal corporation and charter city.
12 "City of Fresno Acceptable Waste" means all Acceptable Waste which was originally
13 discarded by the first generator thereof within the City of Fresno Solid Waste Collection Service
14 Area and collected or delivered by City of Fresno or its Transfer Station Operators that is
15 credited towards the obligations of the City of Fresno Landfill Use Agreement (Agreement No.
16 14-737).
17 "Contractor" means Mid Valley Disposal, LLC., a Limited Liability Company located at
18 3444 W. Whitesbridge Avenue, Fresno, CA 93706.
19 "Contractor Acceptable Waste" means all Acceptable Waste discarded by the
20 Contractor's forces at the Landfill and not classified as City of Fresno Acceptable Waste.
21 "Contract Date" means July 1, 2016, which shall be the date on which the obligations of
22 the parties hereunder shall commence and may be used interchangeably herein with the term
23 "Commencement Date".
24 "Contract Disposal Rate" has the meaning specified in Sections 4.1 and 4.2.
25 "Contract Year" means one (1) 365-day calendar year, the first of which shall commence
26 on the Contract Date and end one (1) year from the Contract Date. (For example, the first
27 Contract Year, if the Agreement has a Contract Date of July 1, 2016, would end on June 30,
28 2017.)
3
1 "County" means the County of Fresno, a Political Subdivision of the State of California
2 and party to this Agreement.
3 "Hazardous Substance" has the meaning given such term under Applicable Law, as
4 amended from time to time including but not limited to any of the following: CERCLA, the
5 Carpenter-Presley-Tanner Hazardous Substance Account Act (California Health and Safety
6 Code Section 25300 et seq.), and Titles 22 and 26 of the California Code of Regulations and
7 other regulations promulgated thereunder.
8 "Hazardous Waste" means:
9 (A) Any waste which by reason of its quality, concentration, composition or physical,
10 chemical or infectious characteristics may do either of the following: cause, or significantly
11 contribute to, an increase in mortality or an increase in serious irreversible, or incapacitating
12 reversible, illness, or pose a substantial threat or potential hazard to human health or the
13 environment, or any waste which is defined or regulated as a hazardous waste, toxic substance,
14 hazardous chemical substance or mixture, or asbestos under Applicable Law, as amended from
15 time to time including, but not limited to any of the following: (1) The federal Resource
16 Conservation and Recovery Act and the regulations contained in 40 CFR Parts 260-281; (2)
17 The Toxic Substances Control Act (15 U.S.C. Sections 2601 et seq.) and the regulations
18 contained in 40 CFR Parts 761-766; (3) California Health and Safety Code, Section 25117
19 (West 1992 & Supp. 1996); (4) California Public Resources Code, Section 40141 (West 1996);
20 and (5) Any future additional or amended Applicable Law enacted subsequent to the
21 Commencement Date hereof and pertaining to the identification, treatment, storage or disposal
22 of toxic substances or hazardous wastes; or
23 (B) Radioactive materials which are source, special nuclear or by-product material as
24 defined by the Atomic Energy Act of 1954 (42 U.S.C. Section 2011 et seq.) and the regulations
25 contained in 10 CFR Part 40.
26 "Landfill" means the American Avenue Disposal Site, a Class III regional landfill owned
27 and operated by the County of Fresno, and located at 18950 W. American Avenue, Kerman,
28 California.
4
1 "Legal Proceeding' means every action, suit, litigation, arbitration, administrative
2 proceeding, and other legal or equitable proceeding having a bearing upon this Agreement.
3 "Prohibited Medical Waste" means any medical or infectious waste prohibited or
4 restricted under Applicable Law from being received by or disposed at the Landfill.
5 "Resource Conservation and Recovery Act" or"RCRA" means the Resource
6 Conservation and Recovery Act, 42 U.S.C. Sections 6901 et seq., as amended and
7 superseded.
8 "State" means the State of California.
9 "Term" means the duration of this Agreement which, as specified in Section 6.1 hereof,
10 shall be for three (3) years from the Contract Date, unless earlier terminated in accordance with
11 Article V.
12 'Ton" means a "short ton" of 2,000 pounds.
13 'Transfer Station" means a permitted solid waste handling facility that receives, handles,
14 separates, converts, transports or otherwise processes solid waste materials.
15 "Unacceptable Waste" means Hazardous Waste; Hazardous Substances; Prohibited
16 Medical Waste; explosives, ordnance, highly flammable substances, and noxious materials and
17 lead-acid batteries (except if delivered in minimal quantities); drums and closed containers;
18 liquid waste, oil, human wastes; machinery and equipment from commercial or industrial
19 sources, such as hardened gears, shafts, motor vehicles or major components thereof,
20 agricultural equipment, trailers, marine vessels and steel cable; hot loads; and any waste which
21 the Landfill is prohibited from receiving under Applicable Law.
22 "Uncontrollable Circumstance" means any act, event or condition affecting the Landfill,
23 County, or Contractor, or their contractors or suppliers to the extent that it materially and
24 adversely affects the ability of either party to perform any obligation under the Agreement
25 (except for payment obligations), if such act, event or condition is beyond the reasonable control
26 of and also is not the result of the willful or negligent act, error or omission or failure to exercise
27 reasonable diligence on the part of the party relying thereon as justification for not performing an
28 obligation or complying with any condition required of such party under the Agreement;
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1 provided, however, that the contesting in good faith or the failure in good faith to contest such
2 action or inaction shall not be construed as willful or negligent action or a lack of reasonable
3 diligence of either party. Examples of Uncontrollable Circumstances are: (1) an act of God,
4 landslide, lightning, earthquake, fire, explosion, flood, sabotage or similar occurrence, acts of a
5 public enemy, extortion, war, blockade or insurrection, riot or civil disturbance; and, (2) a
6 Change in Law, excepting only a Change in Law that was both initiated and enacted by the
7 County and as to which its enactment was not required in order to comply with or implement a
8 Change in Law effectively imposed upon the County by state or federal authorities.
9 SECTION 1.2 INTERPRETATION.
10 In this Agreement, unless the context otherwise requires:
11 (A) Persons. Words importing persons include firms, companies, associations, general
12 partnerships, limited partnerships, trusts, business trusts, corporations, and other legal entities,
13 including public bodies, as well as individuals.
14 (B) No Third Party Beneficiaries. Nothing in this Agreement is intended to confer on an
15 waste haulers, or any other person other than the parties hereto and their respective successor
16 and assigns hereunder, any rights or remedies under or by reason of this Agreement.
17 (C) Counterparts. This Agreement may be executed in any number of original
18 counterparts. All such counterparts shall constitute but one and the same Agreement.
19 (D) Applicable Law. This Agreement shall be governed by and construed in accordance
20 with the Applicable Laws of the State of California.
21 (E) Severability. If any clause, provision, Subsection, Section or Article of this
22 Agreement shall be ruled invalid by any court of jurisdiction, then the invalidity of such clause,
23 provision, Subsection, Section or Article shall not affect any of the remaining provisions hereof,
24 and this Agreement shall be construed and enforced as if such invalid portion did not exist,
25 unless such invalidity frustrates the underlying primary purpose of the Agreement.
26 (F) Integration. This Agreement contains the entire agreement between the parties with
27 respect to the transactions contemplated hereby. This Agreement shall completely and fully
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1 supersede all prior understandings and agreements between the Parties with respect to such
2 transactions.
3 (G) Recitals. The recitals to this Agreement are not intended to bind the parties hereto.
4 In the event of a conflict between the recitals and the operative provisions of this Agreement,
5 the operative provisions shall prevail. The recitals shall not be used to interpret the provisions
6 of the Agreement.
7 ARTICLE II
8 REPRESENTATIONS AND WARRANTIES
9 SECTION 2.1 REPRESENTATIONS AND WARRANTIES OF CONTRACTOR.
10 Contractor represents and warrants that:
11 (A) Authority to Direct Flow. Contractor has the authority to collect Acceptable Waste
12 and deliver same to the Landfill.
13 (6) Will Not Cause Breach. Neither the execution of this Agreement nor the
14 performance by Contractor of their obligations hereunder: (1) conflicts with, violates or results in
15 a breach of any currently applicable law; or(2) conflicts with, violates or results in a breach of
16 any term or condition of any judgment, decree, agreement or instrument to which Contractor is a
17 party or by which Contractor is bound, or constitutes a default under any such judgment,
18 decree, agreement or instrument.
19 (C) Absence of Litigation. There is no action, suit or other proceeding as of the date of
20 this Agreement, at law or in equity, or to the best of Contractor's knowledge, any investigation,
21 before or by any court or governmental authority, pending or threatened against Contractor
22 which is likely to result in an unfavorable decision, ruling or finding which would materially and
23 adversely affect the validity or enforceability of this Agreement or any such agreement or
24 instrument entered into by Contractor in connection with the transactions contemplated hereby,
25 or which could materially and adversely affect the ability of Contractor to perform its obligations
26 hereunder or which would have a material adverse effect on the financial condition of
27 Contractor.
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1 SECTION 2.2 REPRESENTATIONS AND WARRANTIES OF COUNTY.
2 County represents and warrants that:
3 (A) Landfill Status. The daily permitted capacity of the Landfill is sufficient to
4 accommodate Contractor demand. The Landfill is permitted to August 2031 with reasonable
5 expectations that the permit will be extended beyond the Term of this Agreement.
6 (B) Will Not Cause Breach. Neither the execution of this Agreement nor the
7 performance by County of its obligations hereunder: (1) conflicts with, violates or results in a
8 breach of any currently applicable law; or(2) conflicts with, violates or results in a breach of any
9 term or condition of any judgment, decree, agreement or instrument to which County is a party
10 or by which County is bound, or constitutes a default under any such judgment, decree,
11 agreement or instrument.
12 (C) Absence of Litigation. There is no action, suit or other proceeding as of the date of
13 this Agreement, at law or in equity, or to the best of County's knowledge, any investigation,
14 before or by any court or governmental authority, pending or threatened against County which is
15 likely to result in an unfavorable decision, ruling or finding which would materially and adversely
16 affect the validity or enforceability of this Agreement or any such agreement or instrument
17 entered into by County in connection with the transactions contemplated hereby, or which could
18 materially and adversely affect the ability of County to perform its obligations hereunder or
19 which would have a material adverse effect on the financial condition of County.
20 ARTICLE III
21 DELIVERY AND ACCEPTANCE OF WASTE AND PROVISION OF DISPOSAL SERVICE
22 SECTION 3.1 DELIVERY OF WASTE AND CONTRACTOR COMMITMENTS.
23 (A) Waste Disposal Covenant. From and after the Contract Date and throughout the
24 Term of this Agreement, Contractor shall deliver Contractor Acceptable Waste to the Landfill in
25 accordance with the provisions of this Agreement.
26 (B) Waste Flow Reconciliation and Enforcement. Contractor acknowledges and agrees
27 that the tipping fee is based on the amount of tonnage of Contractor Acceptable Waste
28 delivered by Contractor to the Landfill. At the beginning of each Annual Evaluation Period the
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1 Contract Disposal Rate will be set at the initially presumed tonnage delivery range of 50,000—
2 149,999 Tons per Contract Year. If it is determined at the end of the Contract Year, by County's
3 review and reconciliation of the tonnage delivery records, that the total amount of Contractor
4 Acceptable Waste delivered by the Contractor to the Landfill during the Contract Year is less
5 than 50,000 Tons, then the Contractor shall pay the County, within 45 days after receipt of
6 invoice, the difference in the Contract Disposal Rate tier multiplied times the number of Tons of
7 Contractor Acceptable Waste determined by County to have actually been delivered by the
8 Contractor to the Landfill during the Contract Year. If it is determined by County's review and
9 reconciliation that the total amount of Contractor Acceptable Waste delivered by the Contractor
10 to the Landfill during the Contract Year exceeded 149,999 Tons, then the County shall provide
11 the Contractor a credit within 45 days after County's completion of the review and reconciliation
12 in the amount of the appropriate Contract Disposal Rate tier multiplied times the number of Ton
13 of Contractor Acceptable Waste delivered during the Contract Year.
14 (C) Contractor Termination. In the event the Contractor terminates this Agreement for
15 convenience as specified in Section 5.1, as a result of such termination for convenience, the
16 Contractor agrees to pay to County, within 45 days after receipt of invoice, a dollar amount
17 equal to the Contractor's reconciled total of Contractor Acceptable Waste tonnage delivered
18 from the start of the Contract Year through the date of termination. If delivered tonnage is less
19 than 50,000, the delivered tonnage shall be multiplied times the difference between the tipping
20 rate for the Contractor's initially presumed tonnage delivery range of 50,000 - 149,999 and the
21 then-current disposal rate applicable for the 0-49,999 tonnage delivery range. If the reconciled
22 delivered tonnage amount is greater than 149,999, no credit will be applied to the Contractor's
23 account.
24 (D) Hazardous Waste Identification and Exclusion Program. Contractor shall take all
25 reasonable precautions and use all reasonable efforts to prevent the disposal of Hazardous
26 Materials at the Landfill. Contractor shall educate residents on proper Household Hazardous
27 Waste disposal. Contractor shall train, and direct its waste collection drivers to identify
28 Hazardous Waste in the waste stream and prevent its collection, and shall conduct a load check
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1 program to identify loads where Hazardous Waste was inadvertently included and to remove the
2 material before delivery to the Landfill.
3 (E) Pass-through of Tipping Rate Savings to Customers. Contractor agrees to pass-
4 through the Contract Disposal Rate reduction to Contractor's Exclusive Service Area Program
5 customers by reducing the current maximum cart and bin collection rates in the amount as
6 indicated on Attachment"A" of this Agreement.
7 SECTION 3.2 PROVISION OF DISPOSAL SERVICES BY COUNTY.
8 (A) Service Covenant. Commencing on the Contract Date, County shall provide landfill
9 disposal services for all Contractor Acceptable Waste at the Landfill, and shall do and perform
10 all acts and things which may be necessary or desirable in connection with its covenants in this
11 Agreement, including without limitation all planning, development, administration,
12 implementation, construction, operation, maintenance, management, financing and contract
13 work related thereto or undertaken in connection therewith.
14 (B) Daily Capacity. County shall immediately advise Contractor by telephone of any
15 situation, event, or circumstance which results in the partial or complete inability of County to
16 receive Contractor Acceptable Waste at the Landfill, alternatives available, and County's best
17 estimate of the probable duration. County shall confirm such advice in writing within 24 hours of
18 the occurrence of any such inability. County shall exercise all reasonable efforts to resume
19 normal operation of the Landfill as soon as possible.
20 SECTION 3.3 COUNTY RIGHT TO REFUSE WASTE.
21 (A) Right of Refusal. Notwithstanding any other provision hereof, County may refuse
22 delivery of:
23 • Hazardous Waste;
24 • Acceptable Waste delivered before or after posted hours for delivery; and,
25 • Unacceptable Waste.
26 (B) Identification of Unacceptable Waste. County shall have the right (but not the duty or
27 the obligation) to inspect all vehicles delivering material to the Landfill, and may require that the
28 Contractor proceed to remove any Unacceptable Waste from such vehicle before it is unloaded.
10
1 If County determines that it is impractical to separate Acceptable Waste from Unacceptable
2 Waste in any vehicle, or if the Contractor and its Subcontractor(s) are unwilling to make such
3 separation, or if any vehicle is carrying waste which may spill or leak, then County may reject
4 the entire load, and Contractor shall forthwith remove or cause the removal of the entire delivery
5 from the Landfill. County may take all reasonable measures to prevent waste from being blown
6 or scattered before and during unloading. Contractor shall observe and comply with Applicable
7 Law, the operating rules and regulations of County, and the provisions of this Agreement
8 prohibiting the delivery of Unacceptable Waste to the Landfill.
9 (C) Hazardous Waste and Hazardous Substances. The parties acknowledge that the
10 Landfill has not been designed or permitted, and is not intended to be used in any manner or to
11 any extent, for the handling, transportation, storage or disposal of non-Household Hazardous
12 Waste or Hazardous Substances. Neither County nor Contractor or its Subcontractors shall
13 countenance or knowingly permit the delivery of Hazardous Waste or Hazardous Substances to
14 the Landfill.
15 (D) Disposal of Unacceptable Waste and Hazardous Waste. If Unacceptable Waste or
16 Hazardous Waste is discovered in a vehicle at the Landfill, the driver of the vehicle will not be
17 permitted to discharge the load. If a vehicle is observed unloading Unacceptable Waste or
18 Hazardous Waste in the Landfill tipping area, County personnel will use all reasonable efforts to
19 assure that such material has been characterized, properly secured and its disposition resolved
20 at Contractor's expense. The return or reloading onto the delivery vehicle of any Hazardous
21 Waste, Prohibited Medical Waste or other waste requiring special handling or transportation
22 shall be conducted in accordance with Applicable Law, likewise at Contractor's expense.
23 SECTION 3.4 MISCELLANEOUS OPERATIONAL MATTERS.
24 (A) Operating Days and Hours. The Landfill is currently scheduled to be open to the public
25 the following hours and days:
26 • Monday— Friday: 7:00 a.m. to 3:00 p.m.
27 • Saturday: 8:00 a.m. to 2:30 p.m.
28 • Sunday: Closed
11
1 Closed the following holidays:
2 Thanksgiving Day, Christmas Day and New Year's Day.
3 (B) Hours of operation may be modified at County's discretion.
4 ARTICLE IV
5 CONTRACT DISPOSAL RATE
6 SECTION 4.1 CHARGING AND SECURING PAYMENT OF CONTRACT DISPOSAL RATE.
7 Contractor acknowledges that County shall have the right to charge and collect a fee for
8 the acceptance and disposal of Contractor Acceptable Waste delivered to the Landfill by
9 Contractor. The Contract Disposal Rate shall be calculated and established, and may be
10 modified, as provided in Section 4.2. In addition, Contractor acknowledges that County shall
11 have the right to establish as part of the operating rules and regulations reasonable measures t
12 secure the payment of all Contract Disposal Rates.
13 SECTION 4.2 APPLICATION AND IMPLEMENTATION OF CONTRACT DISPOSAL RATE.
14 (A) Establishment of Contract Disposal Rate. The Contract Disposal Rate, beginning
15 with the Contract Date through and including the remainder of the Contract Year, shall be based
16 on the 50,000— 149,999 Tons per Calendar Year rate in accordance with the following Contract
17 Disposal Rate Table:
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1 CONTRACT DISPOSAL RATE TABLE (CONTRACT YEAR 1)
2 0-49,999 Tons per Year $23.06 per Ton (as of 07/01/2016 rate)
3 50,000— 149,999 Tons per Year $22.04 per Ton (as of 07/01/2016 rate)
4 150,000—249,999 Tons per Year $21.53 per Ton (as of 07/01/2016 rate)
5 250,000—299,999 Tons per Year $18.96 per Ton (as of 07/01/2016 rate)
6 300,000 Plus Tons per Year $18.45 per Ton (as of 07/01/2016 rate)
7 CONTRACT DISPOSAL RATE TABLE (CONTRACT YEAR 2)
8 0 -49,999 Tons per Year $23.64 per Ton (as of 07/01/2017 rate)
9 50,000— 149,999 Tons per Year $22.59 per Ton (as of 07/01/2017 rate)
10 150,000—249,999 Tons per Year $22.06 per Ton (as of 07/01/2017 rate)
11 250,000—299,999 Tons per Year $19.44 per Ton (as of 07/01/2017 rate)
12 300,000 Plus Tons per Year $18.91 per Ton (as of 07/01/2017 rate)
13 CONTRACT DISPOSAL RATE TABLE (CONTRACT YEAR 3)
14 0-49,999 Tons per Year $24.23 per Ton (as of 07/01/2018 rate)
15 50,000— 149,999 Tons per Year $23.15 per Ton (as of 07/01/2018 rate)
16 150,000—249,999 Tons per Year $22.61 per Ton (as of 07/01/2018 rate)
17 250,000—299,999 Tons per Year $19.92 per Ton (as of 07/01/2018 rate)
18
300,000 Plus Tons per Year $19.38 per Ton (as of 07/01/2018 rate)
19
20 For example, if the total Contractor Acceptable Waste Tons delivered by the Contractor
21 during the Contract Year is ultimately determined, as a result of the annual reconciliation
22 provided for in Section 3.1(B), to have been between 50,000 and 149,999 Tons, then all such
23 Tons will have been appropriately charged at the initial Commencement Date rate of$22.04 per
24 Ton. However, if the tonnage delivered to the Landfill during the Contract Year 1 is ultimately
25 determined to have been between 0 and 49,999 Tons, then the appropriate charge would be at
26 the rate of$23.06 per Ton, and the Contractor would be responsible for payment of the
27 difference within 45 days after receipt of invoice as more thoroughly provided above in Section
28 3.1(B).
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1 (B) Adiustment Resulting from Increased Fees. In addition to the other adjustments
2 specified herein, the Contract Disposal Rate shall be adjusted to reflect the imposition of new
3 fees or increase in existing fees relating to the disposal of Contractor Acceptable Waste
4 imposed by state, federal or other agencies (e.g., the State's Integrated Waste Management
5 fee, which is currently $1.40 per Ton). The adjustment shall be equal to the amount of any new
6 or increased fee, and the adjustment shall take effect so as to coincide with the imposition of the
7 new or increased fee. County shall provide notice of any increase pursuant to this Section
8 4.2(B) as soon as practicable after becoming aware of the imposition or increase of any fees as
9 described above.
10 (C) Changes In Law, Uncontrollable Circumstances and Environmental Remediation.
11 County may increase Contract Disposal Rates for the following reasons:
12 i) Increased costs incurred by County (in excess of available insurance proceeds)
13 due to the occurrence of one or more Uncontrollable Circumstances, other than
14 Changes in Law;
15 ii) Increased costs incurred by County (in excess of available insurance
16 proceeds) due to the occurrence of one or more Changes in Law; and/or;
17 iii) Costs incurred by County (in excess of available insurance proceeds and
18 amounts available in the Corrective Action Fund for such purposes) remediating
19 environmental conditions at the Landfill, which, if uncorrected, could give rise to potential
20 claims under CERCLA or related federal or state statutes.
21 Any adjustments to the Contract Disposal Rate permitted by this Section shall be
22 calculated by County to reflect the actual costs or expenses of addressing the circumstance or
23 circumstances pursuant to which the adjustment is authorized. County will provide supporting
24 cost detail to Contractor for review. Should the Contractor identify errors in the calculations it
25 shall promptly inform the County.
26 SECTION 4.3 RESPONSIBILITY FOR PAYMENT OF THE CONTRACT DISPOSAL RATE.
27 (A) Payment by Contractor. Contractor shall pay the Contract Disposal Rate for
28 Contractor Acceptable Waste delivered by the Contractor to the Landfill, and shall take all such
14
1 action as may be necessary to provide for the timely payment of the Contract Disposal Rate.
2 (B) Disputes. If Contractor disputes any amount billed by County in any billing
3 statement, Contractor shall nonetheless pay the billed amount and shall provide County with
4 written objection within 15 business days of the receipt of such billing statement indicating the
5 scale transaction(s) and amount that is being disputed and providing all reasons then known to
6 Contractor for any objection to or disagreement with such amount. If Contractor and County are
7 not able to resolve such dispute within 30 business days after Contractor's objection, either
8 party may pursue appropriate legal remedies as permitted per this Agreement.
9 SECTION 4.4 GATE FEE BILLING.
10 County shall record tonnage delivered by Contractor and shall submit invoices to
11 Contractor for payment. Contractor shall remit payment within 30 calendar days of receipt of
12 invoice.
13 ARTICLE V
14 TERMINATION
15 SECTION 5.1 TERMINATION.
16 (A) Termination by Contractor.
17 (i) Contractor shall have the right to terminate this Agreement in its sole
18 discretion, for its convenience and without cause at any time during the Term hereof upon a
19 minimum of 90 calendar days written notice to County. Provided, that if Contractor exercises its
20 rights to terminate the Agreement pursuant to this Section, Contractor shall pay to County,
21 within 90 calendar days of Contractor's delivery of such written notice, a termination fee equal to
22 the dollar amount calculated in accordance with Section 3.1(C).
23 (ii) If Contractor gives the required 90 days advance written notice, and pays the
24 termination fee to County in a timely manner, it is specifically agreed that upon satisfaction of
25 both of those contingencies the County will incur no additional damage based solely on
26 Contractor's termination of this Agreement under this Section 5.1. It is acknowledged that the
27 agreed upon termination fee is essentially a liquidated damages provision, providing a
28 reasonable estimate of the amount of damages County would incur solely as a result of
15
1 Contractor's termination of the Agreement under this Section 5.1, in consideration of all the
2 circumstances and based also on the extreme difficulty and impracticability of any attempt to
3 determine the exact amount of such damages.
4 It is further specifically understood and agreed that the foregoing shall not be construed
5 as a waiver by County of any right to payment by Contractor of any sums due and payable to
6 County at the time of Contractor's Notice of Termination, pursuant to any outstanding and
7 unpaid Annual Evaluation Period reconciliation invoice(s) having previously been issued by
8 County pursuant to the provisions of Sections 3.1(6) and 4.2(A) hereinabove.
9 (6) Termination by County. (i) County shall have the right to terminate this Agreement
10 in its sole discretion, for its convenience and without cause at any time during the Term hereof
11 upon a minimum of 90 calendar days written notice to Contractor. (ii) If County gives the
12 required 90 days advance written notice, it is specifically agreed that the Contractor will incur no
13 damage based solely on County's Termination of this Agreement under this Section 5.1. It is
14 specifically agreed between the parties that the 90-day notice period would provide sufficient
15 time for Contractor to make other appropriate arrangements for disposal of its Contractor
16 Acceptable Waste, and that the Contractor would neither incur nor claim to have incurred any
17 special, incidental or consequential damages solely as a result of County's termination for
18 convenience in accordance with the provisions of this Section 5.1
19 SECTION 5.2 NO WAIVERS.
20 No action of County or Contractor pursuant to this Agreement and no failure to act shall
21 constitute a waiver by either party of the other party's compliance with any term or provision of
22 this Agreement. No course of dealing or delay by County or Contractor in exercising any right,
23 power or remedy under this Agreement shall operate as a waiver thereof or otherwise prejudice
24 such party's rights, powers and remedies. No single or partial exercise of(or failure to exercise)
25 any right, power or remedy of County or Contractor under this Agreement shall preclude any
26 other or further exercise thereof of the exercise of any other right, power or remedy.
27
28
16
1 ARTICLE VI
2 TERM
3 SECTION 6.1 EFFECTIVE DATE.
4 This Agreement shall become effective on the Contract Date and shall be in full force
5 and effect and shall be legally binding upon Contractor and County from and after the Contract
6 Date, and shall continue in full force and effect for three (3) Contract Years from the Contract
7 Date, unless earlier terminated in accordance with Article V of this Agreement.
8 SECTION 6.2 OPTION TO RENEW.
9 This Agreement shall not be subject to renewal.
10 SECTION 6.3 SURVIVAL: ACCRUED RIGHTS.
11 The rights and obligations of the parties hereto pursuant to Section 3.1(B) and (C), and
12 Sections 4.2(A), 4.3, 5.1 and 7.2 hereof shall survive the termination or expiration of this
13 Agreement, and no such termination or expiration shall limit or otherwise affect the respective
14 rights and obligations of the parties hereto accrued prior to the date of such termination or
15 expiration. At the end of the Term of this Agreement, all other obligations of the parties shall
16 terminate.
17 ARTICLE VII
18 GENERAL PROVISIONS
19 SECTION 7.1 RELATIONSHIP OF THE PARTIES.
20 In performing its obligations under Section 3.2 of this Agreement, County acts as an
21 independent contractor of Contractor, and nothing in this Agreement is intended, nor shall this
22 Agreement or any provision hereof be interpreted, to create or establish any partnership or to
23 create any type of fiduciary relationship, as between the parties hereto.
24 SECTION 7.2 INDEMNIFICATION.
25 Contractor agrees to indemnify, save, hold harmless, and at County's request, defend
26 County, its officers, agents, and employees from any and all costs and expenses, damages,
27 liabilities, claims, and losses occurring or resulting to any person, firm, or corporation who may
28
17
1 be injured or damaged by the performance, or failure to perform, of Contractor, its officers,
2 agents and employees, under this Agreement.
3 County agrees to indemnify, save, hold harmless, and at Contractor's request, defend
4 Contractor, its officers, agents, and employees from any and all costs and expenses, damages,
5 liabilities, claims, and losses occurring or resulting to any person, firm, or corporation who may
6 be injured or damaged by the performance, or failure to perform, of County, its officers, agents
7 and employees, under this Agreement.
8 SECTION 7.3 AMENDMENTS.
9 Neither this Agreement nor any provision hereof may be changed, modified, amended or
10 waived except by written agreement duly authorized and executed by both parties.
11 SECTION 7.4 NOTICE OF LITIGATION.
12 Each party shall deliver written notice to the other of any Legal Proceeding to which it is
13 a party and which questions the validity or enforceability of this Agreement executed by
14 Contractor or County or any Legal Entitlement issued in connection herewith. The party
15 required by this Section 7.4 to deliver such written notice shall make such delivery to the other
16 party at the earliest practicable date and time following its having become cognizant of the
17 initiation or existence of such Legal Proceeding.
18 SECTION 7.5 ASSIGNMENT OF AGREEMENT.
19 Neither this Agreement nor any of the rights or obligations hereunder may be assigned
20 by either party hereto without the prior written consent of the other party.
21 SECTION 7.6 BINDING EFFECT.
22 This Agreement shall bind and inure to the benefit of the parties hereto and any
23 successor or assignee acquiring an interest hereunder in accordance with the provisions of the
24 immediately preceding Section 7.5 hereof.
25 SECTION 7.7 NOTICES.
26 Any notice or communication required or permitted hereunder shall be in writing and
27 sufficiently given if delivered in person or sent by certified or registered mail, postage prepaid, to
28 the notice address of the respective parties set forth on the cover page of this Agreement.
18
1 Changes in the respective addresses to which such notices may be directed may be made from
2 time to time by any party by notice to the other party.
3 SECTION 7.8 DISCLOSURE OF SELF-DEALING TRANSACTIONS.
4 This provision is only applicable if the Contractor is operating as a corporation (a for-
5 profit or non-profit corporation) or if during the Term of this Agreement, the Contractor changes
6 its status to operate as a corporation.
7 Members of the Contractor's Board of Directors shall disclose any self-dealing
8 transactions that they are a party to while the Contractor is providing goods or performing
9 services under this Agreement. A self-dealing transaction shall mean a transaction to which the
10 Contractor is a party and in which one or more of its directors has a material financial interest.
11 Members of the Contractor's Board of Directors shall disclose any self-dealing transactions that
12 they are a party to by completing and signing a Self-Dealing Transaction Disclosure Form
13 (attached as Attachment B and incorporated herein by this reference); and submitting it to the
14 County prior to commencing with the self-dealing transaction or immediately thereafter.
15
16
17 ///
18
19
20 Ill
21 /ll
22
23
24
25 ///
26
27
28 Ill
19
i
1 IN WITNESS WHEREOF, COUNTY and CONTRACTOR have caused this Agreement
2 to be executed by their duly authorized officers or representatives as of the day and year first
3 above written.
4 CM EY DISPOSAL LC COUNTY OF FRESNO
5
BY
6 ERNEST BUDDY MENDES, CHAIRMAN
TITL BOARD OF SUPERVISORS
7 3433 W. WHITE BRIDGE AVENUE
Kf: 4AN, CA 93706
8 r•re4`
REVIEWED AND RECOMMENDED ATTEST:
9 FOR PPR VAL BERNICE E. SEIDEL, CLERK
BOARD OF SUPERVISORS
10 (�
B BY
11 RNA M N INTERIM DIRECTOR DEPUTY
DEPARTMENT F UBLIC WORKS AND
12 PLANNING
APPROVED AS TO LEGAL FORM
13 DANIEL C. CEDERBPRG
MY
NSEL
i 14 15 C
DEPUTY
16
17 APPROVED AS TO ACCOUNTING FORM
VICKI CROW, C.P.A.
18 AUDITOR-CONTROLLER/TREASURER-
TAX COLLECTOR
19
I
20 BY
i DEPUTY
21
i
22
23 FUND /SUBCLASS /ORG/ACCOUNT
0700/ 15000/9026/4991
24
25
26
27
28
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"ATTACHMENT B"
Self-Dealing Transaction Disclosure (Financial)
Non-corporate bidders may disregard this section.
Bidders shall complete a SELF-DEALING TRANSACTION DISCLOSURE FORM, provided
herein, for each applicable corporate director of the bidding company. The signed form(s)
shall be submitted as a part of the company's proposal or quotation.
Complete the form and indicate"NONE" under part 3 when your company is a corporation and
no directors are involved with a Self-Dealing Transaction. The form must be signed by an
individual authorized to legally bind the corporation when no directors have a Self-Dealing
Transaction.
DISCLOSURE OF SELF-DEALING TRANSACTIONS: The following provision will be
incorporated into ensuing agreements. It shall apply only when the CONTRACTOR is
operating as a corporation (a for-profit or non-profit corporation) or if during the term of the
agreement, CONTRACTOR changes its status to operate as a corporation.
This provision is only applicable if the CONTRACTOR is operating as a corporation(a for-profit
or non-profit corporation)or if during the term of this agreement the CONTRACTOR changes
its status to operate as a corporation.
Members of the CONTRACTOR's Board of Directors shall disclose any self-dealing
transactions that they are a party to while CONTRACTOR is providing goods or performing
services under this agreement. A self-dealing transaction shall mean a transaction to which the
CONTRACTOR is a party and in which one or more of its directors has a material financial
interest. Members of the Board of Directors shall disclose any self-dealing transactions that
they are a party to by completing and signing a Self-Dealing Transaction Disclosure Form
(Exhibit#)and submitting it to the COUNTY prior to commencing with the self-dealing
transaction or immediately thereafter
"ATTACHMENT B"
SELF-DEALING TRANSACTION DISCLOSURE FORM INSTRUCTIONS
In order to conduct business with the County of Fresno (hereinafter referred to as "County"),
members of a contractor's board of directors (hereinafter referred to as"County Contractor"),
must disclose any self-dealing transactions that they are a party to while providing goods,
performing services, or both for the County. A self-dealing transaction is defined below:
A self-dealing transaction means a transaction to which the corporation is a party and which
one or more of its directors has a material financial interest"
The definition above will be utilized for purposes of completing the disclosure form.
(1) Enter board member's name,job title (if applicable), and date this disclosure is being
made.
(2) Enter the board member's company/agency name and address.
(3) Describe in detail the nature of the self-dealing transaction that is being disclosed to
the County. At a minimum, include a description of the following:
a. The name of the agency/company with which the corporation has the transaction;
and
b. The nature of the material financial interest in the Corporation's transaction that the
board member has.
(4) Describe in detail why the self-dealing transaction is appropriate based on applicable
provisions of the Corporations Codes.
(5) Form must be signed by the board member that is involved in the self-dealing
transaction described in Sections (3) and (4).
Form provided on following page.
"ATTACHMENT B"
SELF-DEALING TRANSACTION DISCLOSURE FORM
(1) Company Board Member Information:
Name: Joseph Kalpakoff Date: 3/28/2016
Job Title: Vice President
(2) Company/Agency Name and Address:
Mid Valley Disposal LLC
15300 W Jensen Ave Kerman CA 93630
(3) Disclosure (Please describe the nature of the self-dealing transaction you are a party to)
none
(4) Explain why this self-dealing transaction is consistent with the requirements of Corporations Code
5233 (a)
(5) Authorized S' nature
Signature: Date: 3/28/2016