HomeMy WebLinkAbout32149AGREEMENT NO.15-337
1 LANDFILL USE AGREEMENT
2 THIS LANDFILL USE AGREEMENT is made and entered into this V^day of To-lt^2015
3 between the County of Fresno, a political subdivision of the State of California (the "County"),and Mid
4 Valley Disposal, LLC, a California Limited Liability Company ("Contractor"),located at 3444 W.
5 Whitesbridge Avenue, Fresno, CA93706 with reference to the following facts.
6 RECITALS
7 WHEREAS,County owns,manages and operates the American Avenue Disposal Site ("Landfill").
8 The Landfill is used for the disposal of municipal solid waste pursuant to the California Integrated Waste
9 Management Actof 1989 (Division 30 ofthe California Public Resources Code);
10 WHEREAS,the Landfill is a Class III,regional non-hazardous facility;
11 WHEREAS,Contractor desires to enter into this disposal agreement on the terms and conditions
12 set forth herein;
13 WHEREAS,Contractor has determined that the execution of this Agreement by the Contractor
14 will provide Contractor with reliable disposal services and the continuation of sound environmental
15 management;and,
16 WHEREAS,County has determined that the execution of this Agreement will serve the public
17 health,safety and welfare by providing a more stable,predictable and reliable supply of municipal solid
18 waste and the resulting service payment revenue, thereby enabling County to finance the planning,
19 managementand operationsofthe Landfill consistent with its obligations tothe State;
20 It is,therefore,agreed as follows:
21 ARTICLE I
22 DEFINITIONS AND INTERPRETATION
23 SECTION 1.1 DEFINITIONS.
24 As used in thisAgreement,the following terms shall have the meanings set forth below.
25 "Acceptable Waste"means all garbage,refuse, rubbish and other materials and substances
26 discarded or rejected as being spent, useless,worthless or in excess to the ownersat the time ofsuch
27 discard or rejection and which are normally disposedofbyor collected from residential (single family and
28 multi-family),commercial,industrial,governmental and institutional establishments and which are
29 acceptable at Class III landfills under Applicable Law.
30 "Act"means the California Integrated Waste Management Actof 1989 (Division 30 of the California
31 Public Resources Code), as amended, supplemented,superseded and replaced fromtime totime.
32 "Agreement"means this Landfill Use Agreement between County and Contractor as the same may
33 be amended or modified from time to time in accordance herewith.
34 "Annual Evaluation Period"means the period oftime, commencing on the Contract Date duringwhich
35 the Contract Disposal Rate applicable to the immediately preceding Contract Year is determined in
36 accordance with the procedureforannual waste flow reconciliation and enforcement specified in Section
37 3.1 (C) of this Agreement.
38 "Applicable Law" means the Act, the Fresno County Ordinance Code, CERCLA, RCRA, CEQA, any
39 legal entitlement and any federal or state rule, regulation, requirement, guideline, permit, action,
40 determination or order of any Governmental Body having jurisdiction, applicable from time to time to the
41 siting, design, permitting, acquisition, construction, equipping, financing, ownership, possession,
42 operation or maintenance of the Landfill, the transfer, handling, transportation and disposal of Acceptable
43 Waste, Unacceptable Waste, or any other transaction or matter contemplated hereby (including any of
44 the foregoing which concern health, safety, fire, environmental protection, mitigation monitoring plans and
45 building codes).
46 "CEQA" means the California Environmental Quality Act, codified at Cal. Pub. Res. Code
47 Section 21000 et seq. as amended or superseded, and the regulations promulgated thereunder.
48 "CERCLA" means the Comprehensive Environmental Response, Compensation, and Liability Act,
49 42 U.S.C.A. Section 9601 et seq., as amended or superseded, and the regulations promulgated
50 thereunder.
5 I "Change in Law" means any legislative enactment, or issuance of a controlling administrative
52 regulation or judicial opinion, on or after the Commencement Date, providing for new or revised legal
53 requirements, including without limitation any expansion in scope or material modification of any
54 Applicable Law, that has a material and adverse effect on the performance by the parties of their
55 respective obligations under this Agreement, or on the siting, design, permitting, acquisition, construction,
56 equipping, financing, ownership, possession, operation or maintenance of the Landfill.
57
58 A "Change in Law" also shall include any new or revised requirements relating to the funding or provision,
59 by or at the direction of local public agencies, of waste collection and disposal services.
60
61 "City" means the City of Fresno, a municipal corporation and charter city.
62 "City of Fresno Acceptable Waste" means all Acceptable Waste which was originally discarded by the
63 first generator thereof within the City of Fresno Solid Waste Collection Service Area and collected or
64 delivered by City of Fresno or its Transfer Station Operators that is credited towards the obligations of the
65 City of Fresno Landfill Use Agreement (Agreement No. 14-737).
66 "Contractor" means Mid Valley Disposal LLC., a limited liability company located at 3444 W
67 Whitesbridge Avenue, Fresno, CA 93706.
68 "Contractor Acceptable Waste" means all Acceptable Waste discarded by the Contractor's forces at
69 the Landfill and not classified as City of Fresno Acceptable Waste.
70 "Contract Date" means July 1, 2015, which shall be the date on which the obligations of the parties
71 hereunder shall commence and may be used interchangeably herein with the term "Commencement
72 Date".
73 "Contract Disposal Rate" has the meaning specified in Sections 4.1 and 4.2.
74 "Contract Year" means the term of this Agreement, consisting of one 365-day calendar year,
75 commencing on the Contract Date and ending one (1) year from the Contract Date. (For example, the
76 Contract Year, if the Agreement has a Contract Date of July 1, 2015, would end on June 30, 2016.)
77 "County" means the County of Fresno, a political subdivision of the State of California and party to
78 this Agreement.
79 "Hazardous Substance" has the meaning given such term under Applicable Law, as amended from
80 time to time including but not limited to any of the following: CERCLA, the Carpenter-Presley-Tanner
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8I Hazardous Substance Account Act (California Health and Safety Code Section 25300 et seq.), and Titles
82 22 and 26 of the California Code of Regulations and other regulations promulgated thereunder.
83 "Hazardous Waste" means:
84 (a) any waste which by reason of its quality, concentration, composition or physical, chemical or
85 infectious characteristics may do either of the following: cause, or significantly contribute to, an increase
86 in mortality or an increase in serious irreversible, or incapacitating reversible, illness, or pose a substantial
87 threat or potential hazard to human health or the environment, or any waste which is defined or regulated
88 as a hazardous waste, toxic substance, hazardous chemical substance or mixture, or asbestos under
89 Applicable Law, as amended from time to time including, but not limited to any of the following: (1) the
90 federal Resource Conservation and Recovery Act and the regulations contained in 40 CFR Parts 260-
9I 281; (2) the Toxic Substances Control Act (15 U.S.C. Sections 2601 et seq.) and the regulations
92 contained in 40 CFR Parts 761-766; (3) California Health and Safety Code, Section 25117 (West 1992 &
93 Supp. 1996); (4) California Public Resources Code, Section 40141 (West 1996); and (5) any future
94 additional or amended Applicable Law enacted subsequent to the Commencement Date hereof and
95 pertaining to the identification, treatment, storage or disposal of toxic substances or hazardous wastes; or
96 (b) radioactive materials which are source, special nuclear or by-product material as defined by the
97 Atomic Energy Act of 1954 (42 U.S.C. Section 2011 et seq.) and the regulations contained in 10 CFR
98 Part 40.
99 "Landfill" means the American Avenue Disposal Site, a Class Ill regional landfill owned and operated
IOO by the County of Fresno, and located at 18950 W. American Ave., Kerman, California.
IOI "Legal Proceeding" means every action, suit, litigation, arbitration, administrative proceeding, and
I02 other legal or equitable proceeding having a bearing upon this Agreement.
I03 "Prohibited Medical Waste" means any medical or infectious waste prohibited or restricted under
I04 Applicable Law from being received by or disposed at the Landfill.
105 "Resource Conservation and Recovery Act" or "RCRA" means the Resource Conservation and
106 Recovery Act, 42 U.S.C. Sections 6901 et seq., as amended and superseded.
107 "State" means the State of California.
108 "Term" means the duration of this Agreement which, as specified in Section 6.1 hereof, shall be for
109 one (1) year from the Contract Date, unless earlier terminated in accordance with Article V, and for
110 purposes of this Agreement has the same meaning as the term "Contract Year".
111 "Ton" means a "short ton" of 2,000 pounds.
112 "Transfer Station" means a permitted solid waste handling facility that receives, handles, separates,
I I 3 converts, transports or otherwise processes solid waste materials.
I 14 "Unacceptable Waste" means Hazardous Waste; Hazardous Substances; Prohibited Medical Waste;
I I5 explosives, ordnance, highly flammable substances, and noxious materials and lead-acid batteries
116 (except if delivered in minimal quantities); drums and closed containers; liquid waste, oil, human wastes;
I I 7 machinery and equipment from commercial or industrial sources, such as hardened gears, shafts, motor
118 vehicles or major components thereof, agricultural equipment, trailers, marine vessels and steel cable;
I I 9 hot loads; and any waste which the Landfill is prohibited from receiving under Applicable Law.
I20 "Uncontrollable Circumstance" means any act, event or condition affecting the Landfill, County, or
12 I Contractor, or their contractors or suppliers to the extent that it materially and adversely affects the ability
I22 of either party to perform any obligation under the Agreement (except for payment obligations), if such
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123 act, event or condition is beyond the reasonable control of and also is not the result of the willful or
124 negligent act, error or omission or failure to exercise reasonable diligence on the part of the party relying
125 thereon as justification for not performing an obligation or complying with any condition required of such
126 party under the Agreement; provided, however, that the contesting in good faith or the failure in good faith
127 to contest such action or inaction shall not be construed as willful or negligent action or a lack of
128 reasonable diligence of either party. Examples of Uncontrollable Circumstances are:
129 (1) an act of God, landslide, lightning, earthquake, fire, explosion, flood, sabotage or similar
130 occurrence, acts of a public enemy, extortion, war, blockade or insurrection, riot or civil disturbance; and,
131 (2) a Change in Law, excepting only a Change in Law that was both initiated and enacted by the
132 County and as to which its enactment was not required in order to comply with or implement a Change in
133 Law effectively imposed upon the County by State or federal authorities.
134 SECTION 1.2 INTERPRETATION.
135 In this Agreement, unless the context otherwise requires:
136 (A} Persons. Words importing persons include firms, companies, associations, general partnerships,
137 limited partnerships, trusts, business trusts, corporations, and other legal entities, including public bodies,
138 as well as individuals.
139 (B) No Third Party Beneficiaries. Nothing in this Agreement is intended to confer on any waste
140 Haulers, or any other person other than the parties hereto and their respective successors and assigns
141 hereunder, any rights or remedies under or by reason of this Agreement.
142 (C) Counterparts. This Agreement may be executed in any number of original counterparts. All such
143 counterparts shall constitute but one and the same Agreement.
144 (D) Applicable Law. This Agreement shall be governed by and construed in accordance with the
145 Applicable Laws of the State of California.
146 (E) Severability. If any clause, provision, subsection, Section or Article of this Agreement shall be
147 ruled invalid by any court of jurisdiction, then the invalidity of such clause, provision, subsection, Section
148 or Article shall not affect any of the remaining provisions hereof, and this Agreement shall be construed
149 and enforced as if such invalid portion did not exist, unless such invalidity frustrates the underlying
150 primary purpose of the Agreement.
151 (F) Integration. This Agreement contains the entire agreement between the parties with respect to
152 the transactions contemplated hereby. This Agreement shall completely and fully supersede all prior
153 understandings and agreements between the Parties with respect to such transactions.
154 (G) Recitals. The recitals to this Agreement are not intended to bind the parties hereto. In the event
155 of a conflict between the recitals and the operative provisions of this Agreement, the operative provisions
156 shall prevail. The recitals shall not be used to interpret the provisions of the Agreement.
157 ARTICLE II
158 REPRESENTATIONS AND WARRANTIES
159 SECTION 2.1 REPRESENTATIONS AND WARRANTIES OF CONTRACTOR
160 Contractor represents and warrants that:
161 (A) Authority to Direct Flow. Contractor has the authority to collect Acceptable Waste and deliver
162 same to the Landfill.
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163 (B) Will Not Cause Breach. Neither the execution of this Agreement nor the performance by
164 Contractor of their obligations hereunder: (1) conflicts with, violates or results in a breach of any currently
165 applicable law; or (2) conflicts with, violates or results in a breach of any term or condition of any
166 judgment, decree, agreement or instrument to which Contractor is a party or by which Contractor is
167 bound, or constitutes a default under any such judgment, decree, agreement or instrument.
168 (C) Absence of Litigation. There is no action, suit or other proceeding as of the date of this
169 Agreement, at law or in equity, or to the best of Contractor's knowledge, any investigation, before or by
170 any court or governmental authority, pending or threatened against Contractor which is likely to result in
171 an unfavorable decision, ruling or finding which would materially and adversely affect the validity or
172 enforceability of this Agreement or any such agreement or instrument entered into by Contractor in
173 connection with the transactions contemplated hereby, or which could materially and adversely affect the
174 ability of Contractor to perform its obligations hereunder or which would have a material adverse effect on
175 the financial condition of Contractor.
176 SECTION 2.2 REPRESENTATIONS AND WARRANTIES OF COUNTY.
177 County represents and warrants that:
178 (A) Landfill Status. The daily permitted capacity of the Landfill is sufficient to accommodate
179 Contractor demand. The Landfill is permitted to August 2031 with reasonable expectations that the permit
180 will be extended beyond the term of this Agreement.
181 (B) Will Not Cause Breach. Neither the execution of this Agreement nor the performance by County
182 of its obligations hereunder: (1) conflicts with, violates or results in a breach of any currently applicable
183 law; or (2) conflicts with, violates or results in a breach of any term or condition of any judgment, decree,
184 agreement or instrument to which County is a party or by which County is bound, or constitutes a default
185 under any such judgment, decree, agreement or instrument.
186 (C) Absence of Litigation. There is no action, suit or other proceeding as of the date of this
187 Agreement, at law or in equity, or to the best of County's knowledge, any investigation, before or by any
188 court or governmental authority, pending or threatened against County which is likely to result in an
189 unfavorable decision, ruling or finding which would materially and adversely affect the validity or
190 enforceability of this Agreement or any such agreement or instrument entered into by County in
191 connection with the transactions contemplated hereby, or which could materially and adversely affect the
192 ability of County to perform its obligations hereunder or which would have a material adverse effect on the
193 financial condition of County.
194 ARTICLE III
195 DELIVERY AND ACCEPTANCE OF WASTE AND PROVISION OF DISPOSAL SERVICE
196 SECTION 3.1 DELIVERY OF WASTE AND CONTRACTOR COMMITMENTS.
197 (A) Waste Disposal Covenant. From and after the Contract Date and throughout the Term of this
198 Agreement, Contractor shall deliver Contractor Acceptable Waste to the Landfill in accordance with the
199 provisions of this Agreement.
200 (B) Waste Flow Reconciliation and Enforcement. Contractor acknowledges and agrees that the
201 tipping fee is based on the amount of tonnage of Contractor Acceptable Waste delivered by Contractor to
202 the Landfill. At the beginning of each Annual Evaluation Period the Contract Disposal Rate will be set at
203 the initially presumed tonnage delivery range of 50,000 -149,999 Tons per Contract Year. If it is
204 determined at the end of the Contract Year, by County's review and reconciliation of the tonnage delivery
205 records, that the total amount of Contractor Acceptable Waste delivered by the Contractor to the Landfill
206 during the Contract Year is less than 50,000 Tons, then the Contractor shall pay the County, within 45
207 days after receipt of invoice, the difference in the Contract Disposal Rate tier multiplied times the number
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208 of Tons of Contractor Acceptable Waste determined by County to have actually been delivered by the
209 Contractor to the Landfill during the Contract Year. If it is determined by County's review and
210 reconciliation that the total amount of Contractor Acceptable Waste delivered by the Contractor to the
211 Landfill during the Contract Year exceeded 149,999 Tons, then the County shall provide the Contractor a
212 credit within 45 days after County's completion of the review and reconciliation in the amount of the
213 appropriate Contract Disposal Rate tier multiplied times the number of Tons of Contractor Acceptable
214 Waste delivered during the Contract Year.
215 (C) Contractor Termination. In the event the Contractor terminates this Agreement for convenience
216 as specified in Section 5.1, as a result of such termination for convenience, the Contractor agrees to pay
217 to County, within 45 days after receipt of invoice, a dollar amount equal to the Contractor's reconciled
218 total of Contractor Acceptable Waste tonnage delivered from the start of the Contract Year through the
219 date of termination. If delivered tonnage is less than 50,000, the delivered tonnage shall be multiplied
220 times the difference between the tipping rate for the Contractor's initially presumed tonnage delivery
221 range of 50,000-149,999 and the then-current disposal rate applicable for the 0-49,999 tonnage delivery
222 range. If the reconciled delivered tonnage amount is greater than 149,999, no credit will be applied to the
223 Contractor's account.
224 (D) Hazardous Waste Identification and Exclusion Program. Contractor shall take all reasonable
225 precautions and use all reasonable efforts to prevent the disposal of Hazardous Materials at the Landfill.
226 Contractor shall educate residents on proper Household Hazardous Waste disposal. Contractor shall
227 train, and direct its waste collection drivers to identify Hazardous Waste in the waste stream and prevent
228 its collection, and shall conduct a load check program to identify loads where Hazardous Waste was
229 inadvertently included and to remove the material before delivery to the Landfill.
230 (E) Pass-through of Tipping Rate Savings to Customers. Contractor agrees to pass-through the
231 Contract Disposal Rate reduction to Contractor's Exclusive Service Area Program customers by reducing
232 the current maximum cart and bin collection rates in the amount as indicated on Attachment "A" of this
233 Agreement.
234 SECTION 3.2 PROVISION OF DISPOSAL SERVICES BY COUNTY.
235 (A) Service Covenant. Commencing on the Contract Date, County shall provide landfill disposal
236 services for all Contractor Acceptable Waste at the Landfill, and shall do and perform all acts and things
237 which may be necessary or desirable in connection with its covenants in this Agreement, including
238 without limitation all planning, development, administration, implementation, construction, operation,
239 maintenance, management, financing and contract work related thereto or undertaken in connection
240 therewith.
241
242 (B) Daily Capacity. County shall immediately advise Contractor by telephone of any situation, event,
243 or circumstance which results in the partial or complete inability of County to receive Contractor
244 Acceptable Waste at the Landfill, alternatives available, and County's best estimate of the probable
245 duration. County shall confirm such advice in writing within 24 hours of the occurrence of any such
246 inability. County shall exercise all reasonable efforts to resume normal operation of the Landfill as soon
24 7 as possible.
248
249 SECTION 3.3 COUNTY RIGHT TO REFUSE WASTE.
250 (A) Right of Refusal. Notwithstanding any other provision hereof, County may refuse delivery of:
251 • Hazardous Waste;
252 • Acceptable Waste delivered before or after posted hours for delivery; and,
253 • Unacceptable Waste.
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254 {B) Identification of Unacceptable Waste. County shall have the right (but not the duty or the
255 obligation) to inspect all vehicles delivering material to the Landfill, and may require that the Contractor
256 proceed to remove any Unacceptable Waste from such vehicle before it is unloaded. If County
257 determines that it is impractical to separate Acceptable Waste from Unacceptable Waste in any vehicle,
258 or if the Contractor and its Subcontractor(s) are unwilling to make such separation, or if any vehicle is
259 carrying waste which may spill or leak, then County may reject the entire load, and Contractor shall
260 forthwith remove or cause the removal of the entire delivery from the Landfill. County may take all
261 reasonable measures to prevent waste from being blown or scattered before and during unloading.
262 Contractor shall observe and comply with Applicable Law, the operating rules and regulations of County,
263 and the provisions of this Agreement prohibiting the delivery of Unacceptable Waste to the Landfill.
264 (C) Hazardous Waste and Hazardous Substances. The parties acknowledge that the Landfill has not
265 been designed or permitted, and is not intended to be used in any manner or to any extent, for the
266 handling, transportation, storage or disposal of non-Household Hazardous Waste or Hazardous
267 Substances. Neither County nor Contractor or its Subcontractors shall countenance or knowingly permit
268 the delivery of Hazardous Waste or Hazardous Substances to the Landfill.
269 (D) Disposal of Unacceptable Waste and Hazardous Waste. If Unacceptable Waste or Hazardous
270 Waste is discovered in a vehicle at the Landfill, the driver of the vehicle will not be permitted to discharge
271 the load. If a vehicle is observed unloading Unacceptable Waste or Hazardous Waste in the Landfill
272 tipping area, County personnel will use all reasonable efforts to assure that such material has been
273 characterized, properly secured and its disposition resolved at Contractor's expense. The return or
274 reloading onto the delivery vehicle of any Hazardous Waste, Prohibited Medical Waste or other waste
275 requiring special handling or transportation shall be conducted in accordance with Applicable Law,
276 likewise at Contractor's expense.
277 SECTION 3.4 MISCELLANEOUS OPERATIONAL MATTERS.
278 (A) Operating Days and Hours. The Landfill is currently scheduled to be open to the public the
279 following hours and days:
280
281
282
283
284
285
•
•
•
•
Monday-Friday: 7:00a.m. to 3:00p.m.
Saturday: 8:00 a.m. to 2:30 p.m.
Sunday: Closed
Closed the following holidays:
Thanksgiving Day, Christmas Day and New Year's Day.
286 (B) Hours of operation may be modified at County's discretion.
287 ARTICLE IV
288 CONTRACT DISPOSAL RATE
289 SECTION 4.1 CHARGING AND SECURING PAYMENT OF CONTRACT DISPOSAL RATE.
290 Contractor acknowledges that County shall have the right to charge and collect a fee for the
291 acceptance and disposal of Contrac.tor Acceptable Waste delivered to the Landfill by Contractor. The
292 Contract Disposal Rate shall be calculated and established, and may be modified, as provided in
293 Section 4.2. In addition, Contractor acknowledges that County shall have the right to establish as part of
294 the operating rules and regulations reasonable measures to secure the payment of all Contract Disposal
295 Rates.
296 Ill
297 Ill
298 Ill
299 /II
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300 SECTION 4.2 APPLICATION AND IMPLEMENTATION OF CONTRACT DISPOSAL RATE.
30I (A) Establishment of Contract Disposal Rate. The Contract Disposal Rate, beginning with the
302 Contract Date through and including the remainder of the Contract Year, shall be based on the 50,000-
303 149,999 Tons per Calendar Year rate in accordance with the following Contract Disposal Rate Table:
304
CONTRACT DISPOSAL RATE TABLE
0 -49,999 Tons per Year $22.50 per Ton (as of 07/01/2015 rate)
50,000-149,999 Tons per Year $21.50 per Ton (as of 07/01/2015 rate)
150,000-249,999 Tons per Year $21.00 per Ton (as of 07/01/2015 rate)
250,000-299,999 Tons per Year $18.50 per Ton (as of 07/01/2015 rate)
300,000 Plus Tons per Year $18.00 per Ton (as of 07/01/2015 rate)
305
306 For example, if the total Contractor Acceptable Waste Tons delivered by the Contractor during the
307 Contract Year is ultimately determined, as a result of the annual reconciliation provided for in Section
308 3.1 (B), to have been between 50,000 and 149,999 Tons, then all such Tons will have been appropriately
309 charged at the initial Commencement Date rate of $21.50 per Ton. However, if the tonnage delivered to
3IO the Landfill during the Contract Year is ultimately determined to have been between 0 and 49,999 Tons,
3 I I then the appropriate charge would be at the rate of $22.50 per Ton, and the Contractor would be
3 I2 responsible for payment of the difference within 45 days after receipt of invoice as more thoroughly
313 provided above in Section 3.1 (B).
3 I 4 (B) Adjustment Resulting from Increased Fees. In addition to the other adjustments specified herein,
3 I 5 the Contract Disposal Rate shall be adjusted to reflect the imposition of new fees or increase in existing
3 I 6 fees relating to the disposal of Contractor Acceptable Waste imposed by state, federal or other agencies
3I7 (e.g., the State's Integrated Waste Management fee, which is currently $1.40 per Ton). The adjustment
3 I 8 shall be equal to the amount of any new or increased fee, and the adjustment shall take effect so as to
3 I 9 coincide with the imposition of the new or increased fee. County shall provide notice of any increase
320 pursuant to this Section 4.2(B) as soon as practicable after becoming aware of the imposition or increase
32I of any fees as described above.
322 (C) Changes In Law. Uncontrollable Circumstances and Environmental Remediation. County may
323 increase Contract Disposal Rates for the following reasons:
324 i) Increased costs incurred by County (in excess of available insurance proceeds) due to
325 the occurrence of one or more Uncontrollable Circumstances, other than Changes in Law;
326 ii) Increased costs incurred by County (in excess of available insurance proceeds) due to
327 the occurrence of one or more Changes in Law; and/or,
328 iii) Costs incurred by County (in excess of available insurance proceeds and amounts
329 available in the Corrective Action Fund for such purposes) remediating environmental conditions
330 at the Landfill, which, if uncorrected, could give rise to potential claims under CERCLA or related
33 I federal or state statutes.
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332 Any adjustments to the Contract Disposal Rate permitted by this Section shall be calculated by
333 County to reflect the actual costs or expenses of addressing the circumstance or circumstances pursuant
334 to which the adjustment is authorized. County will provide supporting cost detail to Contractor for review.
335 Should the Contractor identify errors in the calculations it shall promptly inform the County.
336 SECTION 4.3 RESPONSIBILITY FOR PAYMENT OF THE CONTRACT DISPOSAL RATE.
337 (A) Payment by Contractor. Contractor shall pay the Contract Disposal Rate for Contractor
338 Acceptable Waste delivered by the Contractor to the Landfill, and shall take all such action as may be
339 necessary to provide for the timely payment of the Contract Disposal Rate.
340 (B) Disputes. If Contractor disputes any amount billed by County in any billing statement, Contractor
341 shall nonetheless pay the billed amount and shall provide County with written objection within 15
342 business days of the receipt of such billing statement indicating the scale transaction(s) and amount that
343 is being disputed and providing all reasons then known to Contractor for any objection to or disagreement
344 with such amount. If Contractor and County are not able to resolve such dispute within 30 business days
345 after Contractor's objection, either party may pursue appropriate legal remedies as permitted per this
346 Agreement.
347 SECTION 4.4 GATE FEE BILLING.
348 County shall record tonnage delivered by Contractor and shall submit invoices to Contractor for
349 payment. Contractor shall remit payment within 30 calendar days of receipt of invoice.
350 ARTICLE V
351 TERMINATION
352 SECTION 5.1 TERMINATION.
353 (A) TERMINATION BY CONTRACTOR:
354 (i) Contractor shall have the right to terminate this Agreement in its sole discretion, for its
355 convenience and without cause at any time during the Term hereof upon a minimum of 90 calendar
356 days' written notice to County. Provided, that if Contractor exercises its rights to terminate the
357 Agreement pursuant to this Section, Contractor shall pay to County, within 90 calendar days of
358 Contractor's delivery of such written notice, a termination fee equal to the dollar amount calculated in
359 accordance with Section 3.1 (C).
360 (ii) If Contractor gives the required 90 days' advance written notice, and pays the
36 I termination fee to County in a timely manner, it is specifically agreed that upon satisfaction of both of
362 those contingencies the County will incur no additional damage based solely on Contractor's
363 termination of this Agreement under this Section 5.1. It is acknowledged that the agreed upon
364 termination fee is essentially a liquidated damages provision, providing a reasonable estimate of the
365 amount of damages County would incur solely as a result of Contractor's termination of the Agreement
366 under this Section 5.1 , in consideration of all the circumstances and based also on the extreme
367 difficulty and impracticability of any attempt to determine the exact amount of such damages.
368
369 It is further specifically understood and agreed that the foregoing shall not be construed as a waiver by
370 County of any right to payment by Contractor of any sums due and payable to County at the time of
371 Contractor's Notice of Termination, pursuant to any outstanding and unpaid Annual Evaluation Period
372 reconciliation invoice(s) having previously been issued by County pursuant to the provisions of
373 Sections 3.1 (B) and 4.2(A) hereinabove.
374 /II
375 /II
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376 (B) TERMINATION BY COUNTY:
377 (i) County shall have the right to terminate this Agreement in its sole discretion, for its
378 convenience and without cause at any time during the Term hereof upon a minimum of 90 calendar days'
379 written notice to Contractor.
380 (ii) If County gives the required 90 days' advance written notice, it is specifically agreed that the
381 Contractor will incur no damage based solely on County's Termination of this Agreement under this
382 Section 5.1. It is specifically agreed between the parties that the 90-day notice period would provide
383 sufficient time for Contractor to make other appropriate arrangements for disposal of its Contractor
384 Acceptable Waste, and that the Contractor would neither incur nor claim to have incurred any special,
385 incidental or consequential damages solely as a result of County's termination for convenience in
386 accordance with the provisions of this Section 5.1
387
388 SECTION 5.2 NO WAIVERS.
389 No action of County or Contractor pursuant to this Agreement and no failure to act shall constitute a
390 waiver by either party of the other party's compliance with any term or provision of this Agreement. No
391 course of dealing or delay by County or Contractor in exercising any right, power or remedy under this
392 Agreement shall operate as a waiver thereof or otherwise prejudice such party's rights, powers and
393 remedies. No single or partial exercise of (or failure to exercise) any right, power or remedy of County or
394 Contractor under this Agreement shall preclude any other. or further exercise thereof of the exercise of
395 any other right, power or remedy.
396 ARTICLE VI
3~ TERM
398 SECTION 6.1 EFFECTIVE DATE.
399 This Agreement shall be given retroactive effect and shall become effective on the Contract Date and
400 shall be in full force and effect and shall be legally binding upon Contractor and County from and after the
401 Contract Date, and shall continue in full force and effect for one (1) year from the Contract Date, unless
402 earlier terminated in accordance with Article V of this Agreement.
403 SECTION 6.2 OPTION TO RENEW.
404 This Agreement shall not be subject to renewal.
405 SECTION 6.3 SURVIVAL; ACCRUED RIGHTS.
406 The rights and obligations of the parties hereto pursuant to Section 3.1 (B) and (C), and Sections
407 4.2(A}, 4.3, 5.1 and 7.2 hereof shall survive the termination or expiration of this Agreement, and no such
408 termination or expiration shall limit or otherwise affect the respective rights and obligations of the parties
409 hereto accrued prior to the date of such termination or expiration. At the end of the Term of this
410 Agreement, all other obligations of the parties shall terminate.
10
4II
4I2
ARTICLE VII
GENERAL PROVISIONS
4I3 SECTION 7.1 RELATIONSHIP OF THE PARTIES.
4I4 In performing its obligations under Section 3.2 of this Agreement, County acts as an independent
4I5 contractor of Contractor, and nothing in this Agreement is intended, nor shall this Agreement or any
4I6 provision hereof be interpreted, to create or establish any partnership or to create any type of fiduciary
4I7 relationship, as between the parties hereto.
4I8 SECTION 7.2 INDEMNIFICATION.
4I9 Contractor agrees to indemnify, save, hold harmless, and at County's request, defend County, its
420 officers, agents, and employees from any and all costs and expenses, damages, liabilities, claims, and
42I losses occurring or resulting to any person, firm, or corporation who may be injured or damaged by the
422 performance, or failure to perform, of Contractor, its officers, agents and employees, under this
423 Agreement.
424 County agrees to indemnify, save, hold harmless, and at Contractor's request, defend Contractor, its
425 officers, agents, and employees from any and all costs and expenses, damages, liabilities, claims, and
426 losses occurring or resulting to any person, firm, or corporation who may be injured or damaged by the
427 performance, or failure to perform, of County, its officers, agents and employees, under this Agreement.
428 SECTION 7.3 AMENDMENTS.
429 Neither this Agreement nor any provision hereof may be changed, modified, amended or waived
430 except by written agreement duly authorized and executed by both parties.
43I SECTION 7.4 NOTICE OF LITIGATION.
432 Each party shall deliver written notice to the other of any Legal Proceeding to which it is a party and
433 which questions the validity or enforceability of this Agreement executed by Contractor or County or any
434 Legal Entitlement issued in connection herewith. The party required by this Section 7.4 to deliver such
435 written notice shall make such delivery to the other party at the earliest practicable date and time
436 following its having become cognizant of the initiation or existence of such Legal Proceeding.
437 SECTION 7.5 ASSIGNMENT OF AGREEMENT.
438 Neither this Agreement nor any of the rights or obligations hereunder may be assigned by either party
439 hereto without the prior written consent of the other party.
440 SECTION 7.6 BINDING EFFECT.
44I This Agreement shall bind and inure to the benefit of the parties hereto and any successor or
442 assignee acquiring an interest hereunder in accordance with the provisions of the immediately preceding
443 Section 7.5 hereof.
444 SECTION 7.7 NOTICES.
445 Any notice or communication required or permitted hereunder shall be in writing and sufficiently given
446 if delivered in person or sent by certified or registered mail, postage prepaid, to the notice address of the
447 respective parties set forth on the cover page of this Agreement. Changes in the respective addresses to
448 which such notices may be directed may be made from time to time by any party by notice to the other
449 party.
II
450 SECTION 7.8 DISCLOSURE OF SELF-DEALING TRANSACTIONS
451 This provision is only applicable if the Contractor is operating as a corporation (a for-profit or non-
452 profit corporation) or if during the term of this AGREEMENT, the Contractor changes its status to operate
453 as a corporation.
454 Members of the Contractor's Board of Directors shall disclose any self-dealing transactions that
455 they are a party to while the Contractor is providing goods or performing seNices under this Agreement.
456 A self-dealing transaction shall mean a transaction to which the Contractor is a party and in which one or
457 more of its directors has a material financial interest. Members of the Contractor's Board of Directors
458 shall disclose any self-dealing transactions that they are a party to by completing and signing a Self-
459 Dealing Transaction Disclosure Form (attached as Attachment B and incorporated herein by this
460 reference); and submitting it to the COUNTY prior to commencing with the self-dealing transaction or
461 immediately thereafter.
462 /II
463 Ill
464 Ill
465 Ill
466 Ill
467 Ill
468 Ill
469 Ill
470 Ill
471 Ill
472 Ill
473 Ill
474 Ill
475 Ill
476 Ill
477 Ill
478 Ill
479 Ill
480 Ill
481 Ill
12
482 IN WITNESS WHEREOF,COUNTY and CONTRACTOR have caused this Agreement to be
483 executedbytheir duly authorized-officers or representatives as ofthe dayand year first above written.
COUNTY OF FRESNO
3444 W.WHITESBRIDGE AVENUE
KERMAN,CA 93706
484 FUND /SUBCLASS /ORG /ACCOUNT
485 0700/15000/9026/4991
13
lUmkRBy:
DEBORAH A.POOCHIGIAN,CH
Board of Supervisors
MAN
REVIEWED AND RECOMMENDED FOR
APPROVAL
&&i£_4/UBy:
ALAN WEAVER,DIRECTOR
DEPARTMENT OF PUBLIC WORKS AND
PLANNING
APPROVED AS.TO LEGAL FORK
DANIEL C,CEPERBORG//I
DEPUTY
APPROVED AS TO ACCOUNTING FORM
VICKI CROW,C.P.A.
AUDITOR-CONTROLLER/TREASURER-
TAX COLLECTOR
ATTEST:
BERNICE E.SEIDEL,Clerk
Board of Supervisors
By ^W^rr-£ui<~\
Deputy
Attachment "A" Calculation of Disposal Fee Adjustment Assumptions 111 150 pounds of solid waste per cubic yard 201.974 gallons per cubic yard 0.742669849 pounds of solid waste per gallon Carts -$1.00 dollars per ton -0.0005 dollars per pound Calculation Gallons Pounds of solid waste per month Disposal fee portion of rate/month Bins Calculation Cubic yards/1 x per week Pounds of solid waste per month Dsposal fee portion of rate Cubic yards/2 x per week Pounds of solid waste per month Disposal fee portion of rate Cubic yards/3 x per week Pounds of solid waste per month Disposal fee portion of rate Cubic yards/4 x per week Pounds of solid waste per month Disposal fee portion of rate Cubic yards/5 x per week Pounds of solid waste per month Disposal fee portion of rate Cubic yards/6 x per week Pounds of solid waste per month Disposal fee portion of rate Notes: 35 64 96 112.6381737 205.9669 308.950419 $ (0.06) $ (0.1 0) $ (0.15) 1 1.5 2 650 975 1,300 --($0.33) (lQ.1Q) ($0.65) 1 1.5 2 1,300 1,950 2,600 -($0.65) (!_0.98) ($1.30) 1 1.5 2 1,950 2,925 3,900 -($0.98) (!J..46) ($1.95) 1 1.5 2 2,600 3,900 5,200 -($1.30) ($1.95) ($2.60) 1 1.5 2 3,250 4,875 6,500 -($1.63) ($2.44) ($3.25) 1 1.5 2 3,900 5,850 7,800 -($1.95) ($2.93) ($3.90) -3 1,950 ($0.98) 3 3,900 ($1.95) 3 5,850 -($2.93) 3 7,800 ($3.90) 3 9,750 ($4.88) 3 11,700 ($5.85) 4 5 2,600 3,250 ($1.30) (11.63) 4 5 6 5,200 6,500 7,800 ($1..§_0~ _ru.25) _(.§2. !ill) 4 5 6 7,800 9,750 11,700 ($3.90) ($4.88) ($5.85) 4 5 6 10,400 13,000 15,600 ($5.20) ($6.50) ($7.80) 4 5 6 13,000 16,250 19,500 ($6.50) ($8.13) ($9.75) 4 5 6 15,600 19,500 23,400 ($7.80) ($9.75) ($11.70) 1. Assumptions provided by Brown, Vence and Associates, consultant for the establishment of the Exclusive Service Area Program 2/19/20152:23 PM
"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 : Date :
Job Title :
(2) Company/Agency Name and Address :
(3) Disclosure (Please describe the nature of the self-dealing transaction you are a party to)
(4) Explain why this self-dealing transaction is consistent with the requirements of Corporations Code
5233 (a)
(5) Authorized Signature
Signature : Date :