02-088 Solid Waste Int'l Disposal Corp.b~~
~a
AGREEMENT FOR DISPOSAL OF MUNICIPAL SOLID WASTE
BETWEEN
THE CITY OF CUPERTINO
AND
INTERNATIONAL DISPOSAL CORP. OF CALIFORNIA, INC.
TABLE OF C~~NTENTS
SECTION
PAGE
RECITALS ..................................................................................................................................... 1
1. DEFINITIONS ....................................................................................................................1
1.1 Allocation Quantity .................................................................................................. 1
1.2 Ash ........................................................................................................................... 1
1.3 Biomedical Waste .................................................................................................... 2
1.4 City ........................................................................................................................... 2
1.5 Clean Up Campaign ................................................................................................. 2
1.6 Contractor ................................................................................................................ 2
1.7 Debris Box ............................................................................................................... 2
1.8 Designated Hauler ................................................................................................... 2
1.9 Hazardous Waste .................................................................................................... 2
1.10 Maintenance Waste ................................................................................................. 3
1.11 Municipal Solid Waste ............................................................................................. 3
1.12 Newby Island ........................................................................................................... 4
1.13 Publicly Hauled Waste ............................................................................................. 4
1.14 Rate Adjustment Date .............................................................................................. 4
1.15 Recycling ................................................................................................................. 4
1.16 Regulatory Changes ................................................................................................. 4
1.17 Santa Clara County Municipalities .......................................................................... 4
1.18 Source Separated Recyclables ................................................................................. 4
1.19 Taxes ........................................................................................................................ 4
1.20 Tipping Fee .............................................................................................................. 5
1.21 Ton ........................................................................................................................... 5
1.22 Waste-to-Energy Facility ......................................................................................... 5
1.23 Yard Waste ............................................................................................................... 5
2. CITY'S RESPONSIBILITIES ............................................................................................ 5
2.1 Delivery of Municipal Solid W~~ste ......................................................................... 5
2.2 Waste-to-Energy Facility ......................................................................................... 5
2.3 Unauthorized Waste ................................................................................................. 6
2.4 Debris Box Municipal Solid W<<ste ......................................................................... 6
3. CONTRACTOR'S RESPONSIBILITIES .......................................................................... 6
3.1 Receipt of Municipal Solid Wa~;te ........................................................................... 6
3.2 Operational Requirements ....................................................................................... 7
3.2.1 Hours .........................................................................................................7
3.2.2 Signs ..........................................................................................................7
3.2.3 Site Access ................................................................................................ 7
3.2.4 Scales; Cubic Yard Conversion ................................................................ 7
3.2.5 Records ..................................................................................................... 7
3.3 Designated Haulers .................................................................................................. 8
3.3.1 Acceptance of Waste.... ............................................................................. 8
3.3.2 City Designation ....................................................................................... 8
3.3.3 No Preference ............................................................................................ 8
3.4 [Reserved] ................................................................................................................ 8
3.5 Unauthorized Waste ................................................................................................. 8
3.6 Compliance with Laws and Regulations .................................................................. 8
3.7 Permits, Licenses, Approvals ................................................................................... 9
3.7.1 Contractor to Obtain ..................................................:............................ 9
3.7.2 Closure Plan ............................................................................................ 9
3.8 Inspection of Operations ........................................................................................ 9
3.9 Labor Force ........................................................................................................... 9
3.9.1 Employment ............................................................................................9
3.9.2 Safety Provisions .................................................................................... 9
3.10 Discrimination Prohibited .................................................................................... 10
4. TERM OF AGREEMENT ............................................................................................... 10
4.1 Effective Date of Performance ............................................................................... 10
4.2 Termination ............................................................................................................10
5. COMPENSATION ............................................................................................................ 10
5.1 Tipping Fee ............................................................................................................ 10
5.2 Annual Adjustment of Tipping I~ee ....................................................................... 10
5.3 [Reserved] .............................................................................................................. 11
5.4 Other Adjustments ................................................................................................. 11
5.4.1 Regulatory Changes ................................................................................ 11
5.4.2 Termination by City ................................................................................ 12
5.4.3 City's Proportionate Sliare ...................................................................... 12
5.4.4 Taxes ....................................................................................................... 13
5.5 Payment ..................................................................................................................14
5.5.1 Monthly Invoice and R_eport ................................................................... 14
5.5.2 Time of City's Paymerit .......................................................................... 14
5.5.3 Payment for Publicly 1=lauled Waste ....................................................... 14
5.6 Full Payment ........................................................................................................ 14
6. DISPOSAL SERVICES RENDERED .PRIOR TO JULY 1, 2002 .................................. 15
7. ASSURANCE OF PERFORMANCE .............................................................................. 15
7.1 Force Majeure ....................................................................................................... 15
7.1.1 Events Resulting in Force Majeure ......................................................... 15
7.1.2 Suspension of Obligations ...................................................................... 15
7.1.3 Alternative Disposal Arrangements ........................................................ 15
7.2 Performance Bond ................................................................................................ 16
7.3 Insurance Requirements............ ............................................................................ 16
7.4 Hold Harmless and Indemnific~~tion ..................................................................... 17
7.4.1 By Contractor .............. ............................................................................ 17
7.4.2 By City ........................ ............................................................................ 17
7.4.3 Negligence Defined ... ............................................................................ 17
7.4.4 Notice and Access ....... ............................................................................ 17
7.4.5 Insurance Coverage .... ............................................................................ 18
7.4.6 Survival ...................... ............................................................................18
7.5 Suspension or Termination for .Default ................................................................. 18
8. GENERAL PROVISIONS .............................................................................................. 19
8.1 Independent Contractor ........................................................................................ 19
8.2 City Warranty ........................................................................................................ 20
8.3 Venue .................................................................................................................... 20
8.4 Savings Clause ...................................................................................................... 20
8.5 Section Headings .................................................................................................. 20
8.6 Amendment ...........................................................................................................20
8.7 Assignability ......................................................................................................... 21
8.8 Notices .................................................................................................................. 21
8.9 Waiver ...................................................................................................................21
8.10 Law to Govern ...................................................................................................... 22
8.11 Attorney's Fees ..................................................................................................... 22
8.12 Entirety ..................................................................................................................22
GUARANTEE .............................................................................................................................. 24
EXHIBITS
"A" Allocation Quantity
"B" Unincorporated Geographic Ar~;a of Santa Clara County
"C" Equivalent Weight of Municipal Solid Waste
"D" Report of Refuse Received at Newby Island
"D (1)" Quarterly Debris Box Diversion Status Update Form
"E" Insurance Requirements
AGREEMENT FOR DISPOSAL OF MUNICPAL SOLID WASTE
THIS AGREEMENT is made and entered into this ~ day of September 2002, by and
between the CITY OF CUPERTINO, CALIFORNIA a California municipal corporation
(herein "City"), and INTERNATIONAL DISPOSAL CORP. OF CALIFORNIA, INC., a
California corporation (herein "Contractor"), which is a wholly-owned subsidiary of
Browning-Ferris Industries, Inc., a Delaware corporation.
RECITALS:
WHEREAS, City desires to contract for recycling and long-term disposal of
Municipal Solid Waste (as defined herc;in); and
WHEREAS, Contractor owns and operates the Newby Island sanitary landfill and
associated recycling facilities ("Newby Island"); and
WHEREAS, City and Contractor desire that Newby Island be maintained as a
fully permitted facility in order to receive Municipal Solid Waste from City for
recycling and disposal in accordance with this Agreement; and
WHEREAS, this Agreement is intended to supercede and replace an earlier
version made and entered into by the parties on or about April 1 1, 1989.
NOW THEREFORE, in consideration of the mutual promises, covenants and
conditions contained in this Agreement, and for other good and valuable
consideration, the parties to this Agreement hereby agree as follows.
SECTION 1. Definitions
The following capitalized names and terms shall have the respective meanings
indicated:
1.1. Allocation Quantity
"Allocation Quantity" means the maximum Tons of Municipal Solid Waste
(including Municipal Solid Waste collected in Debris Boxes), calculated at the
entrance to Newby Island, which City :hall be entitled to deliver or have delivered
to Newby Island for Recycling and/or disposal in accordance with this
Agreement. City's Allocation Quantit}~, including the portion thereof attributable
to Municipal Solid Waste collected in Debris Boxes, is set forth in Exhibit "A",
attached hereto and made a part hereof. City's Allocation Quantity shall not
include amounts of Publicly Hauled Waste delivered to Newby Island.
1.2. Ash
"Ash" means the material remaining after incineration of Municipal Solid Waste,
including bottom ash, fly ash and water.
1.3. Biomedical Waste
"Biomedical Waste" means waste which maybe reasonably considered
infectious, pathological or biohazardous, originating from hospitals, public or
private medical clinics, departments or research laboratories, pharmaceutical
industries, blood banks, forensic medical departments, mortuaries, veterinary
facilities and other similar facilities and includes equipment, instruments, utensils,
fomites, laboratory waste (including pathological specimens and fomites attendant
thereto), surgical facilities, equipment, bedding and utensils (including
pathological specimens and disposal fomites attendant thereto), sharps
(hypodermic needles, syringes, etc.), dialysis unit waste, animal carcasses, offal
and body parts, biological materials, (vaccines, medicines, etc.) and other similar
materials, but does not include any such waste which is determined by evidence
reasonably satisfactory to Contractor to have been rendered non-infectious, non-
pathological and non-biohazardous.
1.4. City
"City" means the City of Cupertino, C~~lifornia, a municipal corporation organized
under the laws of the State of California, all of the geographic area lying within
the municipal boundaries of the City ar-d all of the geographic area lying within
such unincorporated areas of Santa Clara County, California as are set forth and
described in Exhibit "B", attached hereto and made a part hereof.
1.5. Clean Up Campaign
"Clean Up Campaign" means the annual, semi-annual or other similar periodic
program conducted by City, its agents and/or a Designated Hauler the purpose of
which is to provide residents of City a -neans of disposing of bulky wastes and/or
similar materials which are not collected through the regular Municipal Solid
Waste collection service.
1.6. Contractor
"Contractor" means International Disp~~sal Corp. of California, its successors and
assigns.
1.7. Debris Box
"Debris Box" means aroll-off waste cc-ntainer used to collect, without
compaction, residential and commercial construction debris, commercially
generated Yard Waste and similar matetrials.
1.8. Designated Hauler
"Designated Hauler" means the waste Haulers named by City pursuant to
subsection 3.3.2 to deliver Municipal Solid Waste to Newby Island.
1.9. Hazardous Waste
"Hazardous Waste" means any of the fallowing:
(i) all waste defined or chaa-acterized as hazardous waste by the
federal Solid Waste Disposal Act (42 U.S.C: Section 3251 et seq.),
as amended, including the Resource Conservation and Recovery
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Act of 1976 (42 U.S.C. Section 6901 et seq.) and all future
amendments thereto, or regulations promulgated thereunder;
(ii) all waste defined or characterized as hazardous waste by the
principal agencies of the; State of California (including without
limitation the Department of Health Services and the California
Waste Management Bo~ird) having jurisdiction over hazardous
waste generated by facilities within such State, and pursuant to any
applicable State or local law or ordinance, and all future
amendments thereto, or regulations promulgated thereunder;
(iii) radioactive wastes;
(iv) any sewage sludge or other residue from wastewater treatment
facilities;
(v) waste commonly known. as cannery waste;
(vi) those substances or items which require special or extraordinary
handling or disposal due to their hazardous, harmful, toxic or
dangerous character or quality; and
(vii) those substances and items which are not normally expected to be
disposed of by generally accepted sanitary landfill disposal
methods.
"Hazardous Waste" shall be construed to have the broader, more encompassing
definition where a conflict exists in the definitions employed by two or more
governmental agencies having concurrc;nt or overlapping jurisdiction over
hazardous waste. If any governmental agency or unit having appropriate
jurisdiction shall hereafter determine that substances which are not, as of the date
hereof, considered harmful, toxic, dangerous or hazardous, are harmful, toxic,
dangerous or hazardous, then such sub~~tances shall be Hazardous Waste for the
purposes of this Agreement as of the effective date of such determination. If any
governmental agency or unit having ap~~ropriate jurisdiction shall hereafter
determine that substances which are, as of the date hereof, considered harmful,
toxic, dangerous or hazardous, are not Harmful, toxic, dangerous or hazardous,
then such substances shall not be Hazardous Waste for purposes of this
Agreement as of the effective date of such determination.
1.10. Maintenance Waste
"Maintenance Waste" means the follo~~ing materials collected by City
maintenance employees or private cont~~actors hired to collect such materials
instead of such employees: (i) debris from street and sewer repairs, (ii) debris
from street sweepings, (iii) grass clippi~igs, leaves and tree trimmings from
maintenance of city parks, streets, median strips and City property, (iv) rock and
concrete, (v) asphalt pavement from streets and (vi) tree stumps.
1.11. Municipal Solid Waste
"Municipal Solid Waste" means all substances or materials that are generally
discarded or rejected as being spent, usf;less, worthless or in excess to the owners
at the time of rejection, including, without limitation, trash, garbage, refuse and
rubbish, and which are generated by all residential, commercial, industrial,
institutional, municipal, agricultural anti other activities within the City; provided,
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however, Municipal Solid Waste does :not include Hazardous Waste, Biomedical
Waste, Ash, and Source Separated Recyclables.
1.12. Newby Island
"Newby Island" means the Newby Island sanitary landfill and associated
Recycling facilities, located at 1601 Dixon Landing Road, San Jose, CA 95131.
1.13. Publicly Hauled Waste
"Publicly Hauled Waste" means Municipal Solid Waste generated at residences or
commercial establishments in the City and hauled directly to a Recycling facility
or an ultimate disposal site, including I`lewby Island, by the respective generators
(or, in the case of residences, their family members) of such waste.
1.14. Rate Adjustment Date
"Rate Adjustment Date" has meaning set forth in Section 5.2.
1.15. Recycling
"Recycling" or "Recycle" means the process of collecting, sorting, cleansing,
treating, and reconstituting materials that would otherwise become solid waste,
and returning them to the economic mainstream in the form of raw material for
new, reused, or reconstituted products which meet the quality standards necessary
to be used in the marketplace.
1.16. Regulatory Changes
"Regulatory Changes" means changes in laws or regulations (including enactment
or new laws or regulations and permit c;hanges) affecting Newby Island which
occur on or after July 1, 2002, and changes in the enforcement or interpretation of
present or future laws or regulations (including permits) affecting Newby Island
which occur on or after July 1, 2002, including Contractor's future increased costs
for financial assurances for closure, po:;t-closure, third-party and pollution
liability required by applicable regulatory agencies.
1.17. Santa Clara County Municipalities
"Santa Clara County Municipalities" means any city or town within Santa Clara
County, California and Santa Clara County itself, acting on behalf of the
unincorporated portions of said County.
1.18. Source Separated Recyclables.
"Source Separated Recyclables" means discarded materials that are separated
from Municipal Solid Waste prior to collection for purposes of Recycling.
"Source Separated Recyclables" includes, without limitation, Yard Waste that is
generated at residential properties and separated from Solid Waste for collection.
"Source Separated Recyclables" does not include Yard Waste or other materials
collected in Debris Boxes by the Desig~iated Hauler.
1.19. Taxes
"Taxes" means all taxes or governmental fees now or hereafter imposed on the
Recycling and/or disposal of Municipal Solid Waste delivered to Newby Island
4
pursuant to this Agreement. As of the date of this Agreement, "Taxes" are $18.25
per Ton, composed of the following: 7'he current City of San Jose Business Tax
of $13.00 per ton, the City of San Jose Enforcement Fee of $0.63 per ton, the
County of Santa Clara Solid Waste Planning Fee of $0.42 per ton, the County of
Santa Clara AB 939 Fee of $2.80 per ton, and the $1.40 fee resulting from State
AB 1220.
1.20. Tipping Fee
"Tipping Fee" means the amount, as sett forth in Section 5, payable by City to
Contractor for each Ton of Municipal Solid Waste delivered to Newby Island
pursuant to this Agreement.
1.21. Ton
"Ton" means a short Ton of 2,000 pou~rds avoirdupois.
1.22. Waste-to-Energy Facility
"Waste-to-Energy Facility" means a fa~~ility at which waste is burned to produce
steam for heat or electricity.
1.23. Yard Waste
"Yard Waste" means discarded vegetative material resulting from the growing
and maintenance of yards, gardens, flo~Ners, shrubs, trees and similar plantings.
SECTION 2. CITY'S RESPONSIBILITIES
2.1. Delivery of Municipal Solid Waste
Subject to the other provisions of this ~~greement, during the term of this
Agreement, City shall deliver or cause delivery of all Municipal Solid Waste to
Newby Island, for Recycling and/or disposal in accordance with this Agreement;
provided, however, City shall not be re~~uired to deliver or cause delivery of
Municipal Solid Waste collected pursuant to City's Clean Up Campaign, Publicly
Hauled Waste, Maintenance Waste, or :Municipal Solid Waste delivered to a
Waste-to-Energy Facility under Section 2.2.
2.2. Waste-to-Energy Facility
City may divert Municipal Solid Waste from Newby Island to aWaste-to-Energy
Facility; provided, however, that all Ml~nicipal Solid Waste which is delivered to,
but is for any reason not incinerated at the said Waste-to-Energy Facility, shall be
delivered to Newby Island in accordance with Section 2.1. Any diversion of
Municipal Solid Waste to aWaste-to-Energy Facility will not change the Tipping
Fee at Newby Island for Municipal Solid Waste. City may deliver or cause
delivery of all resulting Ash to Newby [sland if regulations and permits allow for
disposal of such Ash and subject to a mutually agreeable disposal rate. The price
for Ash disposal will be negotiated at tl~e time such aWaste-to-Energy Facility is
in the planning phase.
2.3. Unauthorized Waste
City shall use reasonable business efforts to prevent delivery to Newby Island by
Designated Haulers of waste or materiel other than Municipal Solid Waste.
Subject to Contractor's agreement, as set forth in Section 3.5 to attempt to reject
or have a Designated Hauler remove such other waste or material, City shall pay
all costs of handling, demurrage, reloading, transportation and/or disposal of such
other waste or material.
2.4. Debris Box Municipal Solid Waste
City shall deliver or cause delivery of all Municipal Solid Waste collected in
Debris Boxes to Newby Island for Rec_~cling and/or disposal in accordance with
this Agreement.
If Contractor does not meet the diversion goal for the Debris Box waste stream
described in Section 3.1, the City shall have the option of directing its Debris Box
waste stream to another facility if that other facility offers to pursue a higher
diversion rate goal than that being achieved by Contractor at Newby Island,
provided that Contractor shall have the right of first refusal, with a minimum of
sixty (60) days advance written notice i rom the City of the terms (diversion level
and price) offered by such other facilit}~, to meet those terms and retain the City's
Debris Box waste stream.
SECTION 3. CONTRACTOR'S RESPONSIBILITIES
3.1 Receipt of Municipal Solid Waste
Subject to the other provisions of this ~~greement, during the term of this
Agreement, Contractor shall receive all Municipal Solid Waste delivered to
Newby Island for Recycling and/or disposal at Newby Island in accordance with
this Agreement.
Contractor shall determine in its sole discretion whether to Recycle or dispose of
such Municipal Solid Waste; provided, however, that Contractor shall use
reasonable business efforts starting with the date of execution of this Agreement
to achieve the annual goal of Recyclin;; and diverting from disposa150 percent
by weight of the combined weight of clean soil, concrete, construction/demolition
debris and commercial yard waste delivered to Newby Island in Debris Boxes by
the Designated Hauler. Contractor's compliance with this diversion goal shall be
determined annually based on how much of the aforesaid material delivered to
Newby Island in Debris Boxes was lancifilled and how much was Recycled.
Contractor shall provide the City with quarterly reports of its progress towards the
50 percent diversion goal in substantially the form of the sample report form
attached hereto as Exhibit "D(1)" and made a part hereof. Municipal Solid Waste
that is, as of the date of this Agreement, collected in front-end loader vehicles
shall not be covered by the diversion goal, in the event such material is instead
delivered to Newby Island in Debris Boxes. Contractor shall not be in breach of
this Agreement if Contractor fails to achieve the annual Recycling and diversion
6
goal of 50 percent, and the City's sole remedy if Contractor fails to achieve this
goal is to seek another facility to achie~~e higher Recycling and diversion levels,
subject to Contractor's right of first refusal described herein.
3.2 Operational Requirements
3.2.1 Hours
Contractor shall operate Newb}~ Island for the receipt of Municipal Solid
Waste from the Designated Haulers from at least 6:00 a.m. to 5:00 p.m.
Monday through Friday and from 8:00 a.m. to 4:00 p.m. on Saturday,
except that Newby Island may lie closed on Christmas Day, the fourth
Thursday of November and Ne~,v Year's Day.
3.2.2 Suns
At Contractor's sole expense, Contractor shall prominently post signs at
the entrance to Newby Island detailing the regulations which must be
followed by vehicles entering t}ie site, indicating the hours of operation,
the types of waste or recyclable materials accepted and a local telephone
number to call for information ~~r in case of emergency.
3.2.3 Site Access
Contractor shall construct and maintain all roads running in and over
Newby Island as shall be reasonable under the circumstances, from the
end of the public access road to the points designated for the deposit of
materials. A smooth surface within the disposal area will be maintained
properly to assist vehicles in th~;ir disposal operations. Contractor shall
designate an area immediately ~idjacent to an all-weather road for disposal
during periods of inclement weather. Contractor shall operate and
maintain such inclement weathf;r site and shall construct and maintain an
access road to such site. Contr~lctor shall not be responsible for any
expense or inconvenience incurred by Designated Haulers as a result of
construction along the public ac;cess road. If delay occurs, Contractor and
Designated Haulers shall attempt to arrange alternate scheduling.
3.2.4 Scales; Cubic Yard Conversion
Contractor shall operate and m~iintain a scale or scales to weigh all
Municipal Solid Waste delivered by Designated Haulers to Newby Island.
In the event that the scales are temporarily out of service to weigh
Municipal Solid Waste delivered to Newby Island, then, for the purposes
of this Agreement, the Ton equivalent of cubic yards of waste, measured
at the entrance of Newby Island, shall be as set forth in Exhibit "C,"
attached hereto and made a part. hereof.
3.2.5 Records
Contractor shall maintain daily records for each Designated Hauler
necessary to compile the monthly report to be provided by Contractor
pursuant to subsection 5.5.1. City or City's designated representative shall
have the right to inspect such records and the record keeping procedures at
7
any time during normal business hours provided that such representative
does not interfere with work being performed by Contractor.
3.3 Designated Haulers
3.3.1 Acceptance of Waste
Contractor shall accept all Municipal Solid Waste, not to exceed the
Allocation Quantity, from City's Designated Haulers and shall charge City
the Tipping Fee therefor.
3.32 City Desi ation
City shall designate those waste; haulers responsible for delivery of
Municipal Solid Waste to Newby Island, provided that those so designated
shall agree to observe all regulations at Newby Island and to operate
according to safe industry practices.
3.3.3 No Preference
Contractor shall give no preference or priority of treatment over
Designated Haulers to any other persons bringing wastes to Newby Island.
Also, Contractor shall not give .any preference or priority among
Designated Haulers unless and until such preference or priority is
requested by Contractor or City and approved in writing by the other party
to this Agreement. Said approval shall not be unreasonably withheld.
3.4 [Reserved]
3.5 Unauthorized Waste
In the event that waste or material other than Municipal Solid Waste is delivered
or attempted to be delivered by Design,~ted Haulers to Newby Island, Contractor
shall first attempt to reject such attempted delivery or cause the Designated
Hauler, at its expense, to remove such waste or material from Newby Island.
However, in the event that such delivery occurs and such waste or material in not
so removed, Contractor shall promptly notify City thereof and, subject to City's
payment of costs as set forth in subsection 2.3, use reasonable business efforts to
comply with City's request for handlin,; and transportation of such waste or
material to a disposal facility that can l:~wfully accept it.
3.6 Compliance with Laws and Regulation~~
Subject to the other terms and conditio~is of this Agreement, Contractor agrees
that, in the operation of Newby Island rind the performance of services under this
Agreement, Contractor will qualify under, and comply with, any and all federal,
state and local laws and regulations no~v in force and which may hereafter, during
the term of this Agreement, be enacted and become effective, which are
applicable to Contractor, its employees„ agents, or subcontractors, if any,
concerning the operation of Newby Island. However, Contractor shall have the
right to contest in good faith the applic~ition of such law or regulation to Newby
Island and Contractor shall not be deerr~ed in breach of this Agreement during
such good faith contest for failure to comply.
8
3.7 Permits, Licenses, Approvals
3.7.1 Contractor to Obtain
Subject to the other terms and conditions of this Agreement, Contractor
shall be responsible, at its sole expense, for obtaining and maintaining all
necessary permits, licenses and approvals from any and all governmental
entities having jurisdiction over Newby Island in order that Contractor
may operate Newby Island in accordance with the terms and conditions of
this Agreement and any laws or regulations applicable to Newby Island.
City shall fully cooperate with (contractor in obtaining and maintaining
such permits, licenses and approvals as long as any out of pocket expense
incurred by City is borne by Contractor. Contractor shall file with the City
a true and correct copy, certified by the granting agency, of each permit,
license or approval. However, Contractor shall have the right to contest in
good faith any requirement of a permit, license or approval necessary for
the operation of Newby Island rind Contractor shall not be deemed in
breach of this Agreement durin,; such good faith contest for failure to
comply.
3.7.2 Closure Plan
Contractor shall demonstrate adequate financial responsibility sufficient to
finance Contractor's closure an~i post closure plan as submitted to state
and local permit enforcement al;encies.
3.8 Inspection of Operations
The designated representative of City shall have the right to observe and review
Contractor's operations and enter Contrractor's premises at Newby Island for the
purpose of such observation and reviev~~ during normal operating hours, subject to
reasonable notice. This provision shall not be construed as giving to City any
right to exercise control over the business or operations of Contractor or to direct
any operations of Contractor or to direct in any respect the manner in which the
business and operations shall be condu~:ted.
3.9 Labor Force
3.9.1 Employment
Contractor shall employ only such superintendents, mechanics, and other
workers who are careful, competent and fully qualified to perform the
duties or tasks assigned to them. All workers shall have sufficient skill,
ability and experience to properly perform the work assigned to them and
to operate any equipment necessary for them to carry out their assigned
duties property.
3.9.2 Safety Provisions
Contractor shall operate Newby Island in compliance with all applicable
federal, state and local laws and- regulations pertaining to safety.
9
3.10 Discrimination Prohibited
In the performance of this Agreement, Contractor will comply with the provisions
of the California Fair Employment and Housing Act, California Government
Code Section 12900 et seQ., as amended, and any regulations promulgated
thereunder, and with any federal statutes, and regulations promulgated thereunder,
prohibiting employment discrimination.
SECTION 4. TERM OF AGREEMENT
4.1 Effective Date of Performance
Performance hereunder shall be deemed to have commenced on November 21,
1988.
4.2 Termination
Notwithstanding anything to the contrary contained in this Agreement, this
Agreement shall continue in full force ;end effect until the first to occur of the
following, unless sooner terminated in accordance with this Agreement:
(i) the Allocation Quantity is depleted in accordance with this Agreement; or
(ii) November 20, 2023.
SECTION 5. COMPENSATION
5.1 Tiepin Fee
The Tipping Fee for the disposal and/or Recycling of Municipal Solid Waste at
Newby Island effective as of July 1, 2002 shall be $36.00 per Ton, inclusive of
Taxes, which amount shall be adjusted in accordance with Sections 5.2 and 5.4.
Notwithstanding the foregoing, for Debris Boxes containing source separated
loads of concrete or clean soil the City shall be charged the gate rates for concrete
and clean soil, respectively, provided a~~plication of those gate rates results in a
lower cost to the City.
5.2 Annual Adjustment of Tipping Fee
The Tipping Fee (as adjusted under Section 5.4) shall be adjusted as of July 1 of
each year, beginning as of July 1, 2003., (the "Rate Adjustment Date") in
accordance with the following formula:
P = A(.8 x B)
A = The adjustable portion of the Tipping Fee (as described below) in
effect as of the Rate Adjustment Date. The "adjustable portion of
the Tipping Fee", as that phrase is used above, is the Tipping Fee
in effect as of the Rate ~.djustment Date, less the portion thereof
attributable to Taxes. A;~ of the date of this Agreement, the
adjustable portion of the Tipping Fee is $ 17.75.
10
B = The net percentage change in the Consumer Price Index (CPI), All
Urban Consumer (CPI-iJ), for San Francisco-Oakland-San Jose,
California, published by the U.S. Department of Labor, Bureau of
Labor Statistics.
P = The amount adjustment to the Tipping Fee for the new twelve (12)
month period.
All "net percentage changes", as that phrase is used above, are to be computed as
the difference between the applicable index value for the month of February
immediately prior to the current Rate Adjustment Date and for the month of
February immediately prior to the last Rate Adjustment Date (February 2002 in
the case of the first adjustment hereunder), divided by the index value for the
month of February immediately prior to the last Rate Adjustment.
Contractor shall notify City in writing of any adjustment under this Section at the
earliest practicable time. On the next billing date after the receipt of Contractor's
statement showing adjustment under this Section, City shall pay to Contractor or
Contractor shall credit to City, as the c~ise may be, a lump sum equal to any
increase or decrease applicable to that period which has elapsed during which the
new Tipping Fee is effective. Thereafter, the Tipping Fee charged by Contractor
shall not be modified to reflect any change under this Section until a subsequent
adjustment statement is received by City. Adjustment to the Tipping Fee will
only be made in units of one cent ($0.01). Fractions less than one cent ($0.01)
will not be considered in making adjustment.
Should the index named in this Section not be published for February of any
given year, the calculations shall be performed using the index value as published
for the last month immediately preceding the February in question (or, in the case
of a quarterly published index, the index value for the quarter including the
February in question).
Should the index named in this Section be discontinued, a successor index shall
replace same. The successor index shall be that index which is most closely
equivalent to the discontinued index as recommended by the publishing agency.
5.3 [Reserved]
5.4 Other Adjustments
5.4.1 Re u~y Changes
The Tipping Fee maybe adjusted by Contractor from time to time to reflect City's
pro rata share of all costs incurred or to be incurred by Contractor in operating
Newby Island (including closure and ~~ost-closure monitoring) which are
attributable to Regulatory Changes; prc-vided, however, Contractor may not
increase the Tipping Fee for costs attributable to any of the following:
11
(i) Regulatory Changes, b~,~ their terms, imposed solely with respect to
operation of a sanitary andfill located adjacent to San Francisco
Bay;
(ii) existing regulatory or remedial work, monitoring or other work
which is required due to refuse which was placed in Newby Island
sanitary landfill prior to November 21, 1988 even if part of such
wastes were generated i n the City;
(iii) Contractor's intentional. misconduct or negligent acts or omissions
in operation of Newby Island;
(iv) compliance with the Calderon Legislation (California Health &
Safety Code Section 41805.5), subchapter 15, BAAQMD Rule 34,
Proposition 65, and California Administrative Code Titles 14 and
22, and the final versior- of EPA's Subtitle D criteria when it is
enacted; provided, however, this subparagraph (iv) shall not
include any future changes to the foregoing statutes, rules and/or
regulations; and
(v) odor, noise and/or dust ~~ontrol due to encroaching land uses
around Newby Island which uses were not present on November
21, 1988.
5.4.2 Termination By City
If, upon any increase in the Tipping Fee under subsection 5.4.1 due to
Regulatory Changes, the Tipping Fee (exclusive of Taxes and all
adjustments under Section 5.2) exceeds, by thirty percent (30%) or more,
the disposal rate (exclusive of t;~xes and adjustments for inflation) then
payable pursuant to the long term disposal contract first entered into by
any of the "North County Citie:;" for disposal of municipal solid waste at
the Kirby Canyon Landfill in S;~nta Clara County, City shall have the
option to terminate this Agreement without penalty; provided, however,
City must exercise such option, if at all, by providing Contractor with
written notice thereof (including; written evidence of the aforesaid
percentage differential in disposal rates) within sixty (60) days after any
such increase in the Tipping Fey;. In the event that City properly exercises
its aforesaid option, this Agreement shall terminate on the date as of which
City has received all necessary regulatory approvals and made all
necessary arrangements to process and/or dispose of elsewhere Municipal
Solid Waste then being delivered hereunder to Newby Island. As used
above, "North County Cities" means the cities of Palo Alto, Sunnyvale
and Mountain View, California.
5.4.3 City's Proportionate Share
City's pro rata share of costs attributable to Regulatory Changes under
subsection 5.4.1 shall be determined on the basis of either of the
following:
(i) The percentage of the daily volume of wastes disposed of at the
sanitary landfill at Newby Island or Recycled at Newby Island, as
the case maybe, which is attributable to City, for those costs which
are, according to generally accepted accounting principles,
12
attributable to the daily operating costs of the sanitary landfill and
Recycling operations at Newby Island, as the case maybe. The
percentage of daily volume attributable to City, shall be based
upon the average amounts during the one-year period immediately
preceding the request for an adjustment pursuant to this Section; or
(ii) The percentage of the rf:maining total site capacity at the sanitary
landfill at Newby Island or the percentage of material Recycled at
Newby Island, as the case maybe, which is expected to be utilized
by or attributable to the City under this Agreement, for those costs
which are, by generally accepted accounting principles, not
attributable to the daily operating costs of disposal or Recycling
operations, as the case maybe. If costs incurred by Contractor are
amortized over several ~/ears, the increase in the Tipping Fee shall
be repealed at the end o:f such amortization period. This repeal
shall not affect other increases resulting from costs which were not
amortized.
(iii) Contractor shall notify (;ity of any Tipping Fee adjustment
attributable to Regulatory Changes under this Section 5.4 at the
earliest practicable time. At the time Contractor makes a request
for a Tipping Fee adjustment attributable to Regulatory Changes
pursuant to this Section 5.4, Contractor shall submit to City written
documentation showing the actual costs incurred or estimated to be
incurred in future years (for costs that are expected to be incurred
or amortized over more than one year), demonstrating that the
costs were incurred by reason of Contractor's compliance with
changes in laws or regulations or changes in the enforcement or
interpretation thereof, indicating the method of determining City's
pro rata share of such cast, and showing the calculation of City's
pro rata share. If Contr~ictor bases the request for adjustment on a
change in the enforcement on interpretation of a law or regulation
affecting Newby Island, then Contractor shall also provide to City
supporting documentation demonstrating the existence of and the
nature of the change in f:nforcement or interpretation. City shall
have the right, at reason,~ble times and upon reasonable notice to
Contractor, to inspect all records or other information contained
therein pertaining to Contractor's request for adjustment under
Section 5.4. No increase: in the Tipping Fee attributable to
Regulatory Changes shall be made pursuant to this Section 5.4
unless and until Contractor has submitted the above described
written documentation t~~ City.
5.4.4 Taxes
The Tipping Fee shall be adjusted by Contractor from time to time to
include all Taxes.
13
5.5 Payment
5.5.1 Monthly Invoice and Report
On or before the tenth (10th) da.y of each month, Contractor shall submit to
City an invoice for the precedi~ig month. Said invoice shall state the
Tipping Fee then in effect and the amount due for the invoice month
calculated in accordance with the provisions of this Section 5.
At the time Contractor submits the monthly invoice, Contractor shall also
submit to City a report stating, for each Designated Hauler, the
information in substantially the form of the sample report form attached
hereto as Exhibit "D" and made a part hereof.
In the event City institutes a voucher system whereby City issues vouchers
or coupons to Designated Haulers for delivery of Municipal Solid Waste,
Contractor shall attach to the monthly report either copies of such list or
the voucher numbers printed on such vouchers and the name of the
Designated Hauler submitted voucher.
5.5.2 Time of City's Payment
City shall review the monthly i~lvoice and the monthly report received
from Contractor. City shall have ten (10) working days from receipt of the
report to request reasonable additional information regarding the report.
Such request shall be in writing and shall specify the information
requested. Contractor shall have ten (10) working days from the date of
the request to supply the City tree requested additional information. City
shall remit payment to Contractor with thirty (30) days of receipt of the
requested information, or, if no additional information is requested, within
thirty (30) days of receipt of they invoice and report. Where City disputes a
portion of any invoice, City shall nevertheless timely pay in full the
undisputed portion. City shall lay a charge for all past due amounts for
each month or part thereof duri~ig which such amounts remain unpaid at
the prime annual interest rate then established by Chase Manhattan Bank,
N.A., but in no event higher than the maximum rate allowed by applicable
law.
5.5.3 Payment for Publicly Hauled Waste
Contractor shall accept Publicly Hauled Waste for disposal and shall
require those delivering such w~iste to pay directly for disposal at a rate
not more than that posted from time to time for deliveries of waste by the
general public.
5.6 Full Payment
Contractor hereby agrees to accept payments from City and those delivering
Publicly Hauled Waste as described above as full compensation for services
rendered under this Agreement.
14
SECTION 6. DISPOSAL SERVICES RENDERED PRIOR TO JULY 1, 2002.
On the date of execution of this Agreement, the City and Contractor have
executed a separate stipulation and sett ement agreement in order to resolve a
dispute between them regarding payments due for disposal services rendered prior
to June 30, 2002. The terms of the stipulation and settlement agreement require,
among other things, execution of this Agreement to replace the earlier version
made and entered into by the parties on or about April 11, 1989. Pursuant to the
terms of the stipulation and settlement ;agreement, the City has also paid to
Contractor $1,500,000, which payment constitutes full satisfaction of all unpaid
or partially unpaid disposal bills submitted by Contractor to the City prior to June
30, 2002.
SECTION 7. ASSURANCE OF PERFORMANCE
7.1 Force Majeure
7.1.1 Events Resulting in Force Majeure
The obligations of City and Contractor are subject to riots, wars, civil
disturbances, insurrections, acts of terrorism at Newby Island, epidemics,
landslides, hurricanes, earthquakes, lightning, floods, washouts,
explosions, fires, acts of God, government orders and regulations and
other similar catastrophic events which are beyond the reasonable control
of City or Contractor, as the case maybe. It is specifically understood that
"other similar catastrophic events" does not include, among other things,
strikes, lockouts, other labor di~;turbances or breakage or accidents to
machinery, equipment or plants.
7.1.2 Suspension of Obligations
In the event either party is rendered unable, wholly or in part, by the
occurrence of any event described in subsection 7.1.1 to carry out any of
its obligations, then the obligations of such party, to the extent affected by
such occurrence and to the extent that due diligence is being used to
resume performance at the earliest practicable time, shall be suspended
during the continuance of any i~iability so caused but for no longer period.
Any time that such a party intends to rely upon the occurrence of an event
described in subsection 7.1.1 to suspend obligations as provided in this
Section 7, such party shall notify the other party as soon as reasonably
possible, setting forth the particulars of the situation. Notice shall again be
given when the effect of the occ;urrence of such event has ceased.
7.1.3 Alternative Disposal Arrangem'~nts
In the event that Contractor fails or is unable to accept or dispose of any
waste which it is obligated to ac;cept or dispose of under the terms of this
Agreement because of any event other than described in subsection 7.1.1
whose occurrence materially and adversely affects Contractor's ability to
accept or dispose of such waste at Newby Island, Contractor shall
15
transport and dispose of such waste at an alternative landfill site or
disposal facility selected by Contractor at no additional cost to City or in
the alternative, at Contractor's ~~ption, shall reimburse City for any and all
extra costs incurred by City, over and above the Tipping Fee, to haul and
dispose of Solid Waste at such other location. Where City hauls or
arranges for hauling of said wa:>te, it is understood that these costs may
include costs incurred by the City which are payable by it to Designated
Haulers for using an alternative landfill site. The provisions of this
subsection 7.1.3 shall govern o~~er any conflict with section 7.5.
7.2 Performance Bond
Contractor shall also make, execute an~i deliver to City a good and sufficient
surety bond in a form reasonably satisfactory to City to secure the faithful
performance by Contractor of the term; and conditions herein. Such bond shall
be in the penal amount of Seven Hundred Fifty Thousand and No/100 Dollars
($750,000.00) and shall be for a term of at least two (2) years. Such bond shall be
signed by the President or General Officer of Contractor, together with signature
of its corporate secretary and corporate seal. The surety shall be a surety
company duly authorized to do business in the State of California and acceptable
to City. The surety company which issues the bond shall not be obligated to
renew the bond after the expiration of the year term; provided, however,
Contractor shall maintain similar replacement bonds issued by a mutually
acceptable surety company meeting they requirements set forth above during the
term of this Agreement. City agrees that Contractor's failure to replace the bond
shall not result in City having any right to make a claim on the expiring bond.
Notwithstanding the foregoing, Contra~:tor may at any time, in lieu of the
aforesaid surety bond, provide City with a letter of credit in the aforesaid sum, in
a form reasonably satisfactory to City, securing the faithful performance by
Contractor of the terms and conditions herein.
7.3 Insurance Requirements
Contractor shall obtain and shall maint;~in throughout the term of this Agreement
at least the minimum insurance policies;, with at least the required coverage limits
and endorsements, as is set forth in Exhibit "E", entitled "INSURANCE
REQUIREMENTS", attached hereto acid made a part hereof. The insurance
requirements set forth in Exhibit "E" shall be reviewed for sufficiency by City at
five year intervals and such requirements maybe reasonably amended or
modified by City as deemed necessary or prudent by City, provided that any
required new or increased coverage is <<vailable on a commercially reasonable
basis.
Within (30) days of the effective date of this Agreement, Contractor shall submit
proof of the aforesaid coverage in the firm of Certificates of Insurance, with
copies of all required endorsements att~iched thereto, to City.
16
7.4 Hold Harmless and Indemnification
7.4.1 By Contractor
Contractor agrees to protect, defend, hold harmless and indemnify City, its
Council, officers, employees, alid agents from and against any and all
liability, including but not limited to, contractual liability, losses,
penalties, claims, demands, damages to property (real and/or personal),
environmental contamination, including attorneys fees, and personal
injury to or death of any person or persons, and all expenses resulting from
any claim or cause of action of any nature, including clean up or remedial
action sought by private or governmental parties, occurring by reason of:
(i) Contractor's sole negligence;
(ii) Contractor's comparative share of the joint negligence of the
parties;
(iii) Contractor's breach of this Agreement; or
(iv) Contractor's operation of Newby Island; provided, however,
Contractor shall have no obligation of indemnity under this
subsection 7.4.1(iv) (a) ~~vith respect to adjustments to the Tipping
Fee authorized under Section 5.4 and (b) to the extent that the
liability and expenses result from any of the events set forth in
subsection 7.4.2.
7.4.2 By City
City agrees to protect, defend, hold harmless and indemnify Contractor
and its affiliated corporations, and their officers, employees, directors and
agents from and against any anti all liability, including but not limited to,
contractual liability, losses, penalties, claims, demands, damages to
property (real and/or personal), environmental contamination, including
attorneys fees, and personal injury to or death of any person or persons,
and all expenses resulting from any claim or cause of action of any nature,
including clean up or remedial Diction sought by private or governmental
parties, occurring by reason of:
(i) City's sole negligence;
(ii) City's comparative share of the joint negligence of the parties;
(iii) City's breach of this Agreement; or
(iv) Delivery by City or its agents (including Designated Haulers) of
materials or substances to Newby Island which are not Municipal
Solid Waste.
7.4.3 Negligence Defined
For purposes of Sections 7.4.1 rind 7.4.2, "negligence" shall be deemed to
include both negligent acts and omissions and willful misconduct, and the
negligence of a party shall include the negligence of its respective officers,
employees or agents (including subcontractors).
7.4.4 Notice and Access
The party claiming a right to indemnity shall:
17
(i) give written notice thereof within a reasonable period following
the earlier of actual or c~~nstructive notice of the event or
occurrence as to which the right to indemnification is or maybe
asserted, provided, that ;any delay in or failure to give such notice
shall not alter any oblig~ltion of indemnity herein, except to the
extent the indemnifying party is materially prejudiced thereby; and
(ii) allow the other party (including their employees, agents and
counsel) reasonable accE;ss to any of its employees, property and
records reasonably related to the matter giving rise to the claim for
indemnification (excluding records protected by the privilege
applicable to communications between attorney and client and the
work product of attorney/s) for the purpose of conducting an
investigation of such claim and taking such other steps as maybe
necessary to preserve evidence of the occurrence on which the
claim is based.
7.4.5 Insurance Coverage
Provision of the insurance cove-rage set forth in Section 7.3 does not
relieve Contractor or its subcontractors from liability under the above hold
harmless/indemnification clausf;.
7.4.6 Survival
The indemnities contained in this Section 7 shall survive expiration or
termination of this Agreement.
7.5 Suspension or Termination For Default
City shall not suspend or terminate this Agreement unless and until Contractor has
failed to substantially perform under this Agreement and has been given notice of
such failure and has not cured such failure, or commenced to cure such failure,
within thirty (30) days after receipt of said notice (and, in the case of
commencement to cure, does not there<<fter diligently proceed to cure such
failure); provided that no opportunity to cure prior to suspension shall be required
if the health, welfare, or safety of the p~.~blic is endangered by the continued
delivery of Municipal Solid Waste to Tfewby Island.
A copy of the suspension order or action of the City shall be served on Contractor
and on Contractor's surety (if there is a surety). When work is suspended for any
cause or causes during the term of this .Agreement, Contractor shall discontinue
the work or such part thereof as City shall designate, whereupon the surety may,
at its option, assume this Agreement or that portion thereof which City has
ordered Contractor to discontinue, and may perform the same or may sublet the
work or that portion of the work taken ever to a contractor approved in writing by
City's Director of Public Works; provided, however, that the surety shall exercise
its option and begin performance of the work, it at all, within thirty (30) days after
the written notice to discontinue the work has been served upon Contractor and
upon the surety or its authorized agent. The surety, in such event, shall assume
Contractor's place in all respects and shall be bound by all the terms and
18
conditions of this Agreement. The surc;ty shall be paid by City for all work
performed by it in accordance with the terms of this Agreement.
In case the Surety does not, within the above specified time, assume Contractor's
responsibilities under this Agreement, ~~r that portion thereof which City has
ordered Contractor to discontinue, then. City shall have the power and right to
perform and complete, by contract or otherwise, as it may determine, the work
herein described or such part thereof a~~ it may deem necessary, and Contractor
agrees that City shall have the right to procure equipment, labor and materials
necessary for the completion of the work. City shall be required to mitigate
expenses, in accordance with applicable law, for the work of completing the
services provided in this Agreement, alid the expense to City for same shall be the
actual cost to City of such work, plus any additional costs which City may incur
in payment to its Designated Haulers should the alternate disposal site be located
at greater distance from the point of collection of Municipal Solid Waste than
Newby Island.
In case such expenses shall exceed the amount which would have been payable
under this Agreement if the same had 1'~een fully performed by Contractor, then
Contractor and its surety shall pay the ~imount of such excess to City on notice
from City of the excess due. When amr particular part of the work is carried out
by the surety or by City, by contract or otherwise, under the provisions of this
Section, Contract shall continue the remainder of the work in conformity with the
terms of this Agreement.
In all instances, Contractor and its surety shall be liable for all damages incurred
by City during the period after notice to discontinue the work has been served
upon Contractor and the surety; provided, however, notwithstanding anything to
the contrary contained in this Agreement, Contractor shall not be liable to City for
any special, punitive or consequential damages, whether in contract, tort, strict
liability or otherwise.
In computing damages which City incurs under this Section, additional costs of
haulage of waste to a more distant site for waste disposal shall be included, as
well as actual fees charged for disposal. Such additional haulage costs shall be
negotiated in good faith between City ~md its Designated Haulers, and shall be
passed on to surety and Contractor without markup.
SECTION 8. GENERAL PROVISIONS
8.1 Independent Contractor
It is expressly understood and agreed that Contractor shall perform all work and
services described herein as an independent contractor and not as an officer,
agent, servant or employee of City; that Contractor shall have exclusive control of
and the exclusive right to control the dc;tails of the services and work performed
hereunder and all persons performing the same; that Contractor shall be solely
responsible for the acts and omissions of its officers, agents, employees,
19
contractors and subcontractors, if any; and that nothing herein shall be construed
as creating a partnership or joint venture between City and Contractor. No person
performing any of the work or services described hereunder shall be considered
an officer, agent, servant or employee of City, nor shall any such person be
entitled to any benefits available or gr~inted to employees of City.
8.2 City Warranty
City warrants to Contractor that
(i) City has full power in accordance with applicable law to enter into
this Agreement;
(ii) the entering into this Agreement will not constitute a violation or
breach by City
a. of any contract or other instrument to which the City is a
party,
b. of any judgment, order, writ, injunction or decree issued
against or imposed upon City, or
c. that will result iii a violation of any applicable law, order,
rule or regulation of any governmental authority; and
(iii) this Agreement- constitutes a valid and binding obligation of City in
accordance with its ternis, including, without limitation, for the full
period of the term of this Agreement notwithstanding the future
change of elected or apI-ointed City officials or the City's failure to
budget and appropriate ;sufficient funds for this Agreement. Prior
to the parties' entering into this Agreement, legal counsel for the
City shall render a written legal opinion to Contractor that the
matters set forth in this Section 8.2 are true and correct.
8.3 Venue
The parties agree that should any actio~i, whether real or asserted, as law or in
equity, arise out of the terms and conditions of this Agreement, venue for said
action shall be in Santa Clara County, (~alifornia.
8.4 Savings Clause
If any nonmaterial provision of this Agreement shall for any reason be held to be
invalid or unenforceable, the invalidity or unenforceability ofsuch provision shall
not affect any of the remaining provisic-ns of this Agreement and this agreement
shall be enforced as if such invalid and unenforceable provision had not been
contained herein.
8.5 Section Headings
The Section and paragraph headings contained herein and the table of contents
attached hereto are for convenience in reference and are not intended to define or
limit the scope of any provision of this Agreement.
8.6 Amendment
This Agreement maybe amended only by written agreement duly authorized and
executed by the parties hereto.
20
8.7 Assignability
This Agreement is assignable with the written consent of both parties and shall be
binding upon and insure to the benefit ref the parties hereto and their respective
heirs, successors in interest, and assigns. Such consent shall not be withheld
unreasonably, nor shall such consent b~~ required in the event of any of the
following: (i) an assignment by operation of law, (ii) an assignment to an affiliate
or subsidiary of Contractor, or (iii) an ~issignment by City to the State of
California or to any agency or subdivision of the State of California or to any
agency or subdivision of the State or o~~ City if such entity undertakes
responsibility of the disposal of Municipal Solid Wastes; provided, however,
assignor shall remain responsible for performance of its obligations under this
Agreement.
8.8 Notices
Notices by either party to this Agreement to the other party shall be deemed given
if personally served or if sent by expre:;s mail or deposited in the United States
Mail as certified mail, return receipt re~~uested, postage prepaid, addressed to the
other party as designated below, or to such other place designated in writing.
Such notice shall be deemed effective on the date personally served or when
actually received. Notice that a party intends to rely upon the occurrence of an
event described in subsection 7.1.1 hereof to suspend obligations under this
Agreement maybe given verbally; provided that written notice is provided
immediately following such verbal notification.
To City:
City Manager
10300 Torre Avenue
Cupertino, CA 95014
To Contractor:
District Manager Regional Vice President
Browning-Ferris Industries Browning-Ferris Industries
of California, Inc. of California, Inc.
1601 Dixon Landing Rd. 441 N. Buchanan Circle
Milpitas, CA 95035 Pacheco, CA 94553
Secretary
Browning-Ferris Industries
of California, Inc.
15880 N. Greenway-Hayden Loop, Ste. 100
Scottsdale, AZ 85260
8.9 Waiver
A waiver of any breach of any provision of this Agreement shall not constitute or
operate as a waiver of any other breach. of such provision or of any other
21
provision, nor shall any failure to enforce any provision hereof operate as a
waiver of such provision.
8.10 Law to Govern
It is understood and agreed by the parties that the law of the State of California
shall govern the rights, obligations, duties and liabilities of the parties to this
Agreement and shall govern the interpretation of this Agreement.
8.11 Attorney's Fees
In the event legal action is instituted to enforce this Agreement the prevailing
party shall be entitled to reasonable att~~rneys' fees and actual costs incurred in
connection with such action.
8.12 Entirety
The parties agree that this Agreement, together with the separate stipulation and
settlement agreement described in Section 6, above, represent the full and entire
agreement between the parties to this ~~greement with respect to matters covered
herein. This Agreement completely re~~laces and supercedes an earlier version
made and entered into by the parties ors or about April 11, 1989; provided,
however, that the respective obligations of the parties arising under the earlier
version of this Agreement on or before June 30, 2002 shall not be extinguished by
this Agreement except as provided her~;in.
THE PARTIES TO THIS AGREEMENT hereby indicate their acknowledgment and
acceptance of the terms and conditions stated herein by the following signatures of their
duly authorized representatives.
International Disposal Corp. of California, Inc.
By: Dated: ~Ca~,,,,,~~ ~ y ~U~ Z
Norm Christensen
District Manager
International Disposal Corp.
of California, Inc.
Approved as to Form:
Thomas M. Bruen
Dated: ~~J.. .2 `'/', ,.ti~~
Y
Attorney for International Disposal Corp.
of California, Inc.
22
City of Cupertino
By:
David W. Knapp
City Manager
Approved as to Form:
By:
Charles Killian
City Attorney
P:\CUPERTINO\Settlement\Restated Agreement.doc
Dated: ! . Z ~! ~ `~ Z-
Dated:
23
GUARA:vTY
Browning-Ferris Industries of California, Ir~c., a California corporation, which is a wholly
owned subsidiary ofBrowning-Ferris Industries, In.c., a Delaware corporation, hereby guarantees
to City the performance by International Disposal (:orp. of California of its obligations under this
Agreement.
BRO~'VNING-FERRIS INDUSTRIES
OF C~~I,IFORNIA, INC.
By
Name
~~a
U
EBNIBIT 'A'
ALLOCATION QOANTITY
City of Cupertino, California
2,050,000 'Cons
APPROVED AS TO FORl~i AND LEGALITY: CITY OF CUPERTI.NO, CALIFORNIA,
Hy:
Name:
Title: City Attorney
ATTEST:
By: `
Name
Title: Cit Clerk
a municipal corporation
By:
Name:
Titl : Mayor
10300 Torre Ave.
Cupertino, California 95014
'City"
ATTEST:
INTERNATI
n
Name : -_~~~1i. ~ •C ~ ~~nl~y Name
Title: ~/~'Tq,e~ ~ii~C_i~ Title:
C~FFiCIAL ~ =.AL
~~:\
_; = ..=`.'' ~1yi r:o-sx~ Inc ~c --Ooanwa
~f`-- _-~
S'S Almaden
S;an Jose,
T~~ lephone
SAL CORP.
IA
S.
E
Boulevard
California 95113
(408) 432-1234
'Contractor'
9470-1
EXHIBIT 'H'
UNINCORPORATED GEOG:RAPNIC AREA OF
SANTA CLARA COUNTY
INCLQDED WITHIN DHFINITION OF CITY
The unincorporated geographic area of Santa Clara County shall
include the "Boundary Agreement Area" defined as of the date of
this agreement by agreement betwee~~ the cities of Santa Clara
County delineating limits beyond which the cities will not annex_
Said boundaries as adopted by the ~~ocal Agency Formation Commissio n
are defined--_~-the 500' scale Official City Boundary Maps located
in the County Surveyor's Office.
APPROVED AS TO FORM D L GALITY:
ey; t
Name :-~
Title: City Attorney
ATTEST : /'/
~---~ (/ -
By:
Name:
Title: City Cler'sc
CITY OF CUPERTINO, CALIFORNIA,
a municipal corporation
;3 y : -
Name:
't'itle. Mayor
:10300 Torre Ave.
Cupertino, California 95014
°City'
ATTEST:
r r ~
Name : ~ fi•~/~F,-;~.-'r ~ f-~%r~~~
Title: ~~'i'Ti?~'S~ ~'c~f~~ i~
~.. OFFICIAL SE.~ L
SUZA~1t~lE F GOOD
a . • ~ WC7F.RY PU3L1C -CALIFORNIA
" t;1 ~ SAf~TA CLhF.~ CZ'iU1iTY
-' ky ccmm. expires SfP 3, 1989
iNTERNAT~~~~ DI S~jJSAL CORP.
LIF RNIA ~
By :
]Name. -'r'i~' ~ i~EJ~~~)/
'Tit 1 e : ~~c= ~i v~=~c,'T
55 Almaden Boulevard
:San Jose, California 95113
'Telephone: (4081 432-1234
'Contractor'
~•-rn_i
SSHIBIT 'C'
EQUIVALENT WEIG1iT
OF MUNICIPAL SOLID WASTE
Type of Refuse
1 . Compacted Refuse
a. Front Loader or
Side Loader Vehicle
b. Rear Loader Vehicle
c. Roll-Off Compactor
Container
2. Loose Refuse
3. Demolition Refuse
4. Concrete, Asphalt, Soil
Ton Equivalent
xer Cubie Yard
.20 Ton/Cubic Yard
.30 Ton/Cubic Yard
.40 Ton/Cubic Yard
.20 Ton/Cubic Yard
.50 Ton/Cubic Yard
1.00 Ton/Cubic Yard
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EXHIBIT "D"
REPORT OF DEFUSE RECEIVED 11T
NEHiIT I SL11ND
11TTRIBUT118LE TO TI{E CITY OF CUPERTINO, C),LIfOR?II1~
DES I GNIITED NAUI.ER
MONT1{ OF
TOT1~L TOT1~L COST
NUMBER OF T07'I~L R11TE pf
DINE TRUCKS TONS ($/TON} ~OI,D
MONTHLY
TOT1,L
EXHIBIT "D(1)"
Newby Island
Quarterly Debris Box Diversion Status Update Form
For the City of Cupertino
Designated Hauler:
Quarter _ of 20
Month Total
Debris Box
Material
(Tons) Inert
Material
Recycled
(Tons) Dirt Used
for Cover
(Tons) Asphalt &
Concrete
Recycled
(Tons) Yard Waste
Recycled
(Tons) Total C&D
Debris
Received
Tons) C&D
Debris
Recycled
Tons C&D
Debris
Disposed
(Tons
Totals
Percentage of Debris Box load diversion attributed to the City of Cupertino for quarter reported:
E%HIBIT 'E"
INSURANCE REQ~~[REMENTS
A. (1) An E%TENDED BROAD FORM r1INIMUM COMPREHENSIVE GENERAL
LIABILITY INSURANCE POLICY covering Bodily Injury and
Property Damage with a combined single- limit of at
least Five Million Dollars ($5,000,000) per occur-
rence providing the following coverages:
(a) Premises Operations
(b) Independent Contractors
(c) Contractual Liability (for liability of of-Piers
assumed by the Subcontractor in the contract
between the Subcon~_ractor and Contractor).
(d) Property Damage L~:ability arising out of the
'%CU' hazards (exp7_osion, collapse and under-
ground damage). -_
(e) Completed Operations - Products
(f) Broad Form Property Damage Endorsement
(g) Personal Injury Endorsement
_{2) A WORKERS' COMPENSATION AND EMPLOYERS' LIABILITY
POLICY (if required by Sate law) written in accor-
dance with the laws of t:he State of California and
providing the following ~~overages for any and all
employees of Contractor:
(a) Statutory Workers' Compensation Coverage A
{statutory limit).
(b) Employers' Liabilit~- Insurance - Coverage B.
Not less than: ;100,000 .each accident/BI,
$500,000 policy limit BI by disease and
$100,000 each emploY~ee BI by disease.
(3) A COMPREHENSIVE AUTOMOBILE POLICY with a minimum
combined limit of not less than One Million Dollars
($1,000,000) for bodily injury and property damage,
applicable to' vehicles used pursuit of any of the
activities associated with this Agreement and provid-
ing the following coverages (without deductibles):
{a) All owned vehicles
9470-1
(b) I ?oyer's Non-ownership Lia' :ty
(c) Hired Automobiles
(4) ENDORSEMENTS AND CLAUS~~S. All of the fo11o_wing
clauses and endorsements, or similar provi~~7rs, ~~re
required to be made a part of each of the above
required policies:
(a) A "Cross Liability" or "Severabilit-y of -Inter-
est" clause; and
(b) City, its employees, officers, agents and
contractors are hereby added as additional
insured as respects all liabilities arising out
of Contractor's negligence or willful mis-
conduct during performance of work under this
Agreement; and
(c) This policy shall be considered--pri-wary insur-
ance as respects any other valid and col-
lectible insurance City may possess, including
any self-insured retention City may have, and
any other insurance City possesses s~a11_ _be
considered excess insurance only; and
(d) NO CANCELLATION OR NON-RENEWAL OF THIS POLICY
OR MODIFICATION OF THE COVERAGE AFFORDED UNDER
THIS ENDORSEMENT SHALL BE EFFECTIVE UNTIL
WRITTEN NOTICE HAS BEEN GIVEN AT LEAST THIRTY
(30) DAYS PRIOR TO THE EFFECTIVE DATE OF SUCH
MODIFICATION OR CANCELLATION TO THE CITY OF
CUPERTINO, CALIFORNIA. ATTENTION: CITY
' MANAGER.
D. PROOF OF INSURANCE COVERAGE AND COVERAGE VERIFICATION. A
copy of the Certificate of Insurance and completed coverage
verification. shall be provided to City by each of the
C-ontractor's insurance companies as evidence of the stipu-
lated coverages within thirty (:30) days of the effective
day of this Agreement. The Cert:ificate(s) of Insurance and
coverage verification shall be m<~iled to City.
9470-1 _ 2 _
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E. CLEMENT SHUTE, JR. (State Bar No. 36542)
OSA L. ARMI (State Bar No. 193543)
MARLENA G. BYRNE (State Bar No. 212251)
SHUTE, MIHALY & WEINBERGER LLP
396 Hayes Street
San Francisco, CA 94102
Phone: (415) 552-7272
Fax: (415) 552-5816
CHARLES T. KILIAN (State Bar No. 49559)
EILEEN H. MURRAY (State Bar No. 182288)
LAW OFFICES OF CHARLES T. KILIAN
10320 S. De Anza Blvd., Suite 1 D
Cupertino, CA 95014
Phone: (408) 777-3403
Attorneys for Defendant
City of Cupertino
SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF SA1~1TA CLARA
INTERNATIONAL DISPOSAL )
CORPORATION OF CALIFORNIA, a )
California Corporation, )
Plaintiff, )
v. )
CITY OF CUPERTINO et al., )
Defendant. )
-)
Case No.: CV793115
Notice of Stipulation and
Settlement Agreement with
[Proposed] Order Entering
Stipulation and Settlement
Agreement
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Plaintiff/cross-defendant International Disposal Corp. of California, Inc., a California
corporation, ("IDC") and defendant/cross-complainant City of Cupertino, a municipal
corporation, ("City") (collectively, "the parties") hereby provide notice that they have
enter into a stipulation and settlement agreement in the above-captioned action
("Agreement"). The parties hereby agree and stipulate as follows:
1. On September 24, 2002, the parties executed a new Agreement for Disposal of
Municipal Solid Waste to replace, except as pr~~vided therein, the Agreement for Disposal
of Municipal Solid Waste made and entered intro by the parties on or about April 11,
1989.
2. On September 24, 2002, the City paid to IDC $1,500,000. This payment
constitutes full satisfaction of all unpaid or partially unpaid disposal bills submitted by
IDC to the Ciry prior to June 30, 2002.
3. IDC shall file with the Court aRequest i-or Dismissal (with prejudice) of the
above-captioned action as to the City only. The; City has consented to the Request for
Dismissal.
4. Each party shall bear its own attorneys', experts', and other consultants' fees and
costs incurred in connection with this action, arid, without limiting any other provision of
this section, each party fully and forever waive:: and releases any claims against the other
party for the recovery, reimbursement, or payment of any such fees or costs and any such
fees or costs in connection with the negotiation,, preparation, or implementation of this
Agreement and/or the September 24, 2002 Agreement for Disposal of Municipal Solid
Waste referenced in paragraph 1, above.
5. Each party releases and forever discharges the other party and their respective
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successors, assigns, boards, councils, departments, officials, officers, directors,
employees, subsidiaries, parents, affiliates, contractors, agents, representatives, and
attorneys (collectively, "Released Parties"), from and against any and all claims,
demands, actions, causes of action, proceedings, obligations, liabilities, damages, losses,
costs, and expenses (including attorneys' fees <<nd costs) of any nature whatsoever, at law
or in equity, known or unknown, foreseen or unforeseen, contingent or noncontingent,
which the City or IDC (each a "Releasor") now has or may hold, based upon any fact, act,
or omission occurring prior to the date of this ~cgreement related to the above-captioned
action or in any way arising out of or in connection with payment for disposal and/or
recycling services rendered by IDC prior to July 1, 2002 pursuant to the Agreement for
Disposal of Municipal Solid Waste entered into by the parties on or about April 11, 1989
(collectively, "Released Claims"). Notwithstanding any provision herein to the contrary,
the release and waiver shall not release or excuse any party to this Agreement from its
obligations to indemnify and hold harmless the other party pursuant to the terms of the
Agreement for Disposal of Municipal Solid Waste entered into by the parties on or about
April 11, 1989 and/or the Agreement for Disposal of Municipal Solid Waste to be entered
into by the parties on September 24, 2002.
6. Each Releasor hereby waives the provisions of section 1542 of the California Civil
Code, which reads as follows:
A general release does not extend to claims which the creditor does not know or
suspect to exist in his favor at the time o:f executing the release, which if known by
him must have materially affected his settlement with the debtor.
The parties fully understand that the facts presently known to them may later be found to
be different and each of them knowingly and expressly accepts and assumes the risk and
responsibility that the facts may be found to be ~jifferent. The parties further agree that,
notwithstanding any such differences in facts, this Agreement shall be effective in all
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respects in accordance with its terms. This rele-ase shall not be construed to limit the right
of any party to assert any claim or cause of action arising in connection with any event,
fact, circumstance, or violation of law occurring after the date of this Agreement. This
release also shall not be construed to limit the rights of any party, or their members,
representatives, or agents, from taking positions adverse to each other on matters other
than the instant action. Notwithstanding any pl•ovision herein to the contrary, the release
and waiver and other provisions of this Agreement shall not release or excuse any party to
this Agreement from performing its respective obligations under this Agreement.
7. Each Releasor covenants and agrees that, from and following dismissal of this
action pursuant to this Agreement, it shall forever refrain from instituting, prosecuting,
maintaining, proceeding on, or participating in any lawsuit, action, or proceeding
(judicial, arbitration, or administrative) against any Released Parties which arises out of,
or is or may be, in whole or in part, based upon, connected with or related to any Released
Claims. The parties acknowledge and agree that this Agreement is a complete defense to ~'
any lawsuit, action, or proceeding which maybe instituted by or on behalf of a party at
any time against any Released Parties wherein any Released Claims are or maybe !,
asserted.
8. This Agreement constitutes a fully binding and complete settlement between the
parties. This Agreement includes binding contl-act rights and provisions.
9. The parties acknowledge and agree that this Agreement and all further documents
and actions hereunder are made in compromise of disputed claims and do not constitute,
and shall not be construed as, any admission of liability or responsibility of any kind on
the part of any party to the above-captioned action or any other Released Parties.
10. The parties represent, warrant and covenant to each other that they are the sole
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owners of the Released Claims and that they have not assigned, transferred, sold or
conveyed all or any portion of their rights or interests in or to the Released Claims. Each
party agrees to indemnify, defend and hold harmless the other party from and against any
and all claims and demands brought by any third party claiming to have succeeded to any
such rights or interests or otherwise arising out: of the breach of any representation,
~ warranty or covenant made by the indemnifying party in this Agreement.
~ 11. In any action or proceeding at law or in equity between the parties to enforce or
interpret any provision of this Agreement, each party shall bear all of its own costs,
including attorneys' and experts' fees.
12. The parties acknowledge that they have been represented by independent legal
counsel throughout the negotiations that culmi~lated in the execution of this Agreement.
The parties further acknowledge that they have been fully advised by their attorneys with
respect to their rights and obligations under this Agreement and understand those rights
and obligations. The parties also acknowledge that, prior to the execution of this
Agreement, they and their legal counsel have bead an adequate opportunity to make
whatever investigation and inquiries were deemed necessary or desirable with respect to
the subj ect matter of this Agreement.
13. This Agreement, together with the sepa~~ate Agreement for Disposal of Municipal
Solid Waste executed by the parties on September 24, 2002, constitutes the entire
agreement between the parties with respect to 1:he subject matter hereof and supersedes
any and all prior or contemporaneous understa~ldings, negotiations, representations,
promises, and agreements, oral or written, by cr between the parties with respect to the
subject matter hereof.
14. The provisions of this Agreement may riot be amended, modified, or otherwise
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changed or supplemented except by a writing signed by duly authorized representatives of
the parties.
15. This Agreement shall be construed and a;nforced pursuant to the laws of the State
of California.
16. This Agreement shall be interpreted and construed in the manner best calculated to
carry out its purpose of achieving a settlement of the above-captioned action. As used
herein: (a) the singular shall include the plural Land vice versa) where the context so
requires; (b) locative adverbs such as "herein," "hereto," "hereof," or "hereunder" shall
refer to this Agreement in its entirety and not to any specific section or paragraph; (c) the
terms "include," "including," and similar terms shall be construed as though followed
immediately by the phrase "but not limited to;" and (d) "shall" is mandatory and "may" is
permissive. The parties have jointly participated in the negotiation and drafting of this
Agreement, and this Agreement shall be constn.led fairly and equally as to the parties,
without regard to any rules of construction relating to the party who drafted a particular
provision of this Agreement.
17. If any term or provision of this Agreement is ever determined to be invalid or
unenforceable for any reason, such term or provision shall be severed from this
Agreement without affecting the validity or enforceability of the remainder of this
Agreement.
18. Each of the parties agrees to execute and. deliver all further documents and to take
all further actions reasonably necessary or appropriate to carry out the provisions of this
Agreement.
19. This Agreement shall be binding upon alid shall inure to the benefit of the parties
Case No. CV793115
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20. The parties represent and warrant to each other that they have taken all requisite
action to approve, authorize, execute, and deliver this Agreement and that each person
executing this Agreement on their behalf has all requisite power and authority to execute
this Agreement and to bind the parties to the provisions of this Agreement.
21. Notwithstanding any provision herein tc- the contrary, this Agreement shall not be
effective unless and until it is executed by both. parties.
22. The Court shall retain jurisdiction over this action for the purpose of enabling the
parties to apply to the Court for any further orders and directions that maybe necessary or
appropriate to construe, implement, or enforce compliance with the terms set forth in this
Agreement.
23. Notwithstanding any provision herein to the contrary, once this Agreement is
executed by both parties, it shall be effective and binding on the parties, regardless of
whether it is entered as an Order of the Court or otherwise approved by the Court.
24. Nothing in this Agreement shall be interpreted as settling or otherwise affecting
IDC's claims in the above-captioned action against the cities of Los Altos and Los Altos
Hills.
///
///
///
///
///
///
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~ 25. This Agreement maybe executed in separate counterparts. The parties shall be
entitled to rely upon facsimile copies of the parties' signatures to this Agreement and any
I instrument executed in connection herewith.
International Disposal Corp. of California, Inc.
s~
By:
orm Christensen
District Manager
International Disposal Corp.
of California, Inc.
~ Approved as to Form:
H
d
Thomas M. Bruen '
Attorney for International Disposal
Corp. of California, Inc.
City upertino
By:
David W. Knapp
City Manager
Approved as to Fo
By~
arles Ki a
City Attorney
Case No. CV793115
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Dated: ,` ZvaZ
Dated: ~.,~. ~ 1 `~. ~. `~`;
Dated: ~ ~ 2`~ ~ Z
Dated:
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ORDER ENTERING STIPULATION A.ND SETTLEMENT AGREEMENT
The Court, having reviewed the Stipulation and Settlement Agreement of the
parties, enters same as an Order of this Court.
By:
Judge of the Superior Court
of the County of Santa Clara
P:\CUPERTINO\Settlement\Stipulation3.wpd
Case No. CV793115
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Dated: