Los Altos Garbage Franchise Agreement 79-006 and 03-094
LOS ALTOS GARBAGE COMPANY
FRANCHISE AGREEMENT
TABLE OF CONTENTS
Recitals ----------------------------------------------------------------------------------- 1
I. Definitions ------------------------------------------------------------------------ 2
II. General Conditions and Term of Franchise ----------------------------------------- 9
III. Company Services ----------------------------------------------------------------12
IV. Service Rates and Adjustments ---------------------------------------------------18
V. Accounting Provisions -----------------------------------------------------------21
VI. Billing and Compensation -------------------------------------------------------- 22
VII. Interruption of Service by Labor Dispute ----------------------------------------- 23
VIII. Cancellation of Franchise by City ------------------------------------------------- 24
IX. Ownership of Solid Waste -------------------------------------------------------- 25
X. Disposal Facilities ----------------------------------------------------------------25
XI. Legal Liability, Insurance, Bonds ------------------------------------------------- 26
XII. Assignments --------------------------------------------------------------------- 28
XIII. Disaster Operations -------------------------------------------------------------- 29
XIV. Miscellaneous Terms and Conditions --------------------------------------------- 30
XV. Previous Agreements Superseded ------------------------------------------------- 33
Exhibit A - Liquidated Damages
Exhibit B - Schedule of Approved Rates
-i-
FRANCHISE AGREEMENT
This Agreement is entered into to be effective as of December 4, 1995 (the
"Commencement Date") by and between the City of Cupertino, a municipal corporation
(hereinafter referred to as "City"), and Los Altos Garbage Company, Inc., a California
corporation (hereinafter referred to as "Company").
RECITALS
WHEREAS, City regulates the collection and disposal of Solid Waste and Mixed
Recyclables so as to protect the physical health and safety of its inhabitants; and
WHEREAS, City is acting under clearly articulated and affirmatively expressed policies of
the State of California empowering cities to regulate the collection and disposal of Solid Waste
and Mixed Recyclables under powers expressly granted to cities in Article XI, Section 7 of the
California Constitution, and also set forth in Section 4250 of the Health and Safety Code of
California and Sections 66755 to 66757, inclusive, of the Government Code of California; and
WHEREAS, City has examined and found the performance and services provided by
Company to inhabitants of City under the franchise agreement-during the preceding years to have
been satisfactory;
WHEREAS, The City Council of City has determined that the public interest and
convenience, and the physical health and safety of its inhabitants, require the entering into of the
following Franchise Agreement; and
WHEREAS, City and Company desire to enter into a new Franchise Agreement providing
continuation by Company of the collection, removal and transportation of Solid Waste and Mixed
Recyclables produced, generated or accumulated within City Limits; and
WHEREAS, City and Company desire to extend the term of the existing franchise
agreement for an additional ten years commencing from November 1, 2000 and continuing
through October 31, 2010.
Page 1
FRANCHISE AGREEMENT
NOW THEREFORE, for and in consideration of the mutual promises, covenants and
conditions contained in this Agreement, and for other and valuable consideration, the parties
hereto agree as follows:
ARTICLE I
DEFINITIONS
The following capitalized names and terms shall have the respective meanings indicated
throughout this Agreement:
1.1. Area-wide Cleanup Service.
"Area-wide Cleanup Service" means the service that Company may, at
City's option, provide at times and dates agreed upon between Company
and City sufficient to collect and remove accumulated bulky residential
Solid Waste not collected through the regular residential collection services
to be provided by Company, and as more particularly described in Section
3.1 of this Agreement.
1.2. Biomedical Waste. -
"Biomedical Waste" means waste which may be reasonably considered
infectious, pathological or biohazardous, originating from hospitals, public
or private medical clinics, departments of research laboratories,
pharmaceutical industries, blood banks, forensic medical departments,
mortuaries, veterinary facilities and other similar facilities and includes
(without limitations) 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), shares (hypodermic
needles, syringes, etc.), dialysis unit waste, chemotherapeutic waste, animal
carcasses, offal and body parts, biological materials (vaccines, medicines,
etc.), and other similar materials, but excluding any such waste which is
determined by evidence reasonably satisfactory to Company to have been
rendered non-infectious, non-pathological and non-biohazardous.
Page 2
1.3. City.
"City" means the City of Cupertino, a municipal corporation organized
under the laws of the State of California.
1.4. City Council
"City Council" means the elected body of officials who govern the
municipal affairs of City pursuant to the laws of the State of California.
1.5. Ci , Limits.
"City Limits" means all of the geographic area lying within the municipal
boundaries of City either as of the Commencement Date or as may be
annexed or added thereto during the term of this Agreement.
1.6. City Manager.
"City Manager" means the duly appointed City Manager of City.
1.7. City Rules and Regulations.
"City Rules and Regulations" has the meaning set forth in Section 2.7.
1.8. Com an ctor.
"Compactor" means container in which a mechanical blade is used to
compress the contents held by said container.
1.9. Company_
"Company" means Los Altos Garbage Company, Inc., a California
corporation, and its successors and assigns.
1.10. Curbside Rec, cly ink
"Curbside Recycling" means the curbside collection, removal and Recycling
of Recyclables discarded at residential dwellings, as more particularly
described in Section 3.1.
Page 3
1.11. Customers.
"Customers" means those persons or entities whose residential,
commercial, industrial, institutional, municipal, or agricultural premises or
activities are located within the City Limits and who either voluntarily or
mandatorily subscribe for Solid Waste collection services with Company.
1.12. Debris Box.
"Debris Box" means aroll-off waste container used to collect and / or
accumulate, without mechanical compaction, any Solid Waste, including
but not limited to any construction and / or demolition site debris and other
similar materials.
1.13. Disposal Facilities.
"Disposal Facilities" means one or more sanitary landfills designated by
City for the delivery and disposal by Company of Solid Waste collected
pursuant Section 3.1 of this Agreement.
1.14. Extraordinary Costs
"Extraordinary Costs" means those costs which increase Company's costs
of providing service under this Agreement due to changes in circumstances
beyond the control of Company including, without limitation, Regulatory
Changes, and the inability of Company to dispose of collected Solid Waste
at the Disposal Facilities designated by City pursuant to Section 3.1 of this
Agreement.
1.15. Franchise.
"Franchise" means the rights and privileges granted by City to Company
under this Agreement, particularly Section 2.1 herein, subject to all of the
provisions of this Agreement.
1.16. Franchise Fee.
"Franchise Fee" means the fee payable by Company to City, pursuant to
Section 6.3 of this Agreement, for the privilege of being granted the
Franchise under this Agreement.
Page 4
1.17. Government Regulations.
"Government Regulations" means all statues, laws, ordinances, rules,
regulations, orders, decrees or permit requirements enacted, ordained, or
promulgated by any governmental entity with jurisdiction over the
operations of Company, including judicial or administrative orders and
decrees, as are applicable to the accumulation, collection, removal, and
hauling of Solid Waste, and Mixed Recyclables, or to the other activities of
Company contemplated by this Agreement.
1.18. Hazardous Waste.
"Hazardous Waste" means any of the following:
(a.) All waste defined or characterized as hazardous waste by the
federal Solid Waste Disposal Act (42 U.S.C. Section 3251, et sea.),
as amended, including the Resource Conservation and Recovery
Act of 19876 (42 U.S.C. Section 6901, et sea.) and all future
amendments thereto, or regulations promulgated thereunder;
(b.) 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 Board) 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;
(c.) Radioactive wastes;
(d.) Any sewage sludge or other residue from wastewater treatment
facilities;
(e.) Waste commonly known as cannery waste;
(f.) Those substances and items which require special or extraordinary
handling or disposal due to their hazardous, harmful, toxic or
dangerous character or quality; and
(g.) Those substances and items which are not normally expected to be
disposed of by generally accepted sanitary landfill disposal methods.
Page 5
"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 concurrent 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 thereof, considered harmful, toxic, dangerous
or hazardous, then such substances 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 appropriate 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.
1.19. Recvclables.
"Recyclables" mean any discarded materials, substances or objects that may
be reusable, with or without reprocessing or remanufacturing into new
products, or which otherwise may have commercial value, that prior to
collection by Company are separated or segregated by their generator from
Solid Waste. Without limiting the generality of the foregoing, examples of
"Recyclables" include: newspaper, cans, corrugated cardboard, glass,
certain types of plastic, metals, wood, construction debris, and automobile
oil.
1.19.1. Mixed Recvclables. -
"Mixed recyclables" means more than one type of recyclable material
commingled in a bin, debris box, compactor or other type of container.
This material includes, but not limited to, wood, paper, plastic, metals,
glass, and other dry waste. The material must not have more than 10%
putrescrible or non-recyclable waste.
1.19.2. Single Source Separated Recyclables.
"Single Source Separated Recyclables" means any Recyclables that, prior
to collection by Company, are or have been separated or segregated by
their generator as to type or category of material and are or have been
placed into separate containers according to type or category, i. e., all
newspapers are separated from all other Recyclables and are placed
together in their own separate container or containers, all cans are
separated from all other Recyclables and are placed together in their own
separate container or containers, and so on.
Page 6
1.20. Recvcling / Recce
"Recycling" and "Recycle" means that process of controlled manual and /
or mechanical separation and removal of Recycles from the stream of Solid
Waste, and any subsequent activities necessary for the marketing and sale
of such Recyclables.
1.21. Regulatory Changes
"Regulatory Changes" means enactment of Government Regulations,
revisions to present or future Government Regulations, including the
manner of enforcement or interpretation thereof, which materially and
adversely affect the ability of Company to provide services and perform its
obligations under this Agreement.
1.22. Schedule of Approved Rates.
"Schedule of Approved Rates" means the service rates pursuant to which
Company receives compensation for services it performs under this
Agreement, as more particularly described in Article IV herein.
1.23. Solid Waste.
"Solid Waste" means all materials, substances or objects that are generally
discarded by, or rejected as being spent, useless, worthless or in excess to,
the owners at the time of discard or rejection, including, without limitation,
materials, substances or objects commonly- referred to as "trash,"
"garbage," "refuse," and "rubbish" that are produced, generated or
accumulated by all residential, commercial, industrial, institutional,
municipal, agricultural and other inhabitants, premises and activities within
City Limits, the collection of which is regulated by City through license,
permit, franchise, contract or other authorization as of the Commencement
Date; provided, however, "Solid Waste" does not include (i) Hazardous
Waste, (ii) Biomedical Waste, (iii) ash, (iv) sewage (whether combustible
or non-combustible) and other highly diluted water-carried materials or
substances and those in gaseous form, and (v) Recyclables.
Page 7
1.24. Special Waste
"Special Waste" shall mean those solid wastes which consist of or contain
pollutants which, under ambient environmental conditions at a sanitary
landfill or other waste management unit could be released at concentrations
in excess of applicable water quality objectives, or which could cause
degradation of waters of the State, and which may only be discharged at
waste management units that are designated either "Class I" or "Class II"
by the California State Waste Management Board, or successor agency.
1.25. Standard Container.
"Standard Container" means a metallic or plastic can with close fitting
cover with handle and side bails and which has a maximum capacity of 32
gallons or less in gross capacity.
1.26. Unacceptable Waste.
"Unacceptable Waste" means (i) Hazardous Waste, (ii) Biomedical Waste,
(iii) ash, (iv) sewage (whether combustible or non-combustible) and other
highly diluted water-carried materials or substances and those in gaseous
form, (v) Special Waste and (vi) any Solid Waste the collection, removal,
handling, hauling,, or disposal of which would in the reasonable judgment of
Company either (a) pose a substantial threat to public health or safety, or
(b) result in residues which are ash or Hazardous Waste, or (c) cause
applicable air quality or water effluent standards to be violated, or (d)
otherwise pose a reasonable possibility of adversely affecting the operation
of Company in any material respect. Without limiting the generality of the
foregoing, examples of "Unacceptable Waste" include: drums or sealed
containers; explosives, including dynamite, hand grenades, blasting caps,
shotgun shells and fireworks; gasoline; kerosene; turpentine, waste oil;
ether; naphtha; acetone; solvents; paints; alcohol; acids; hydraulic oil;
petroleum; caustics; sewage or process wastewaters; leachate; burning or
smoldering materials; flammable or volatile liquids; any other liquids;
asbestos; farm machinery of equipment; batteries; motor vehicles and
motor vehicle parts including transmissions, rear ends, springs, fenders, and
other large motor vehicle parts.
1.27. Yardwaste.
"Yardwaste" shall mean organic waste materials generated by the care and
trimming of lawns, garden plants, trees, shrubbery, other plants used for
purposes of landscaping and ornamentation, and other vegetation.
Page 8
ARTICLE II
GENERAL CONDITIONS AND TERM OF FRANCHISE
2.1. Franchise Granted.
City grants exclusively to Company the right and privilege (the
"Franchise") of engaging as a collector in the business of collecting,
removing and transporting all Solid Waste and Recyclables produced,
generated or accumulated within City Limits, subject to the limitations
described in Section 2.5 of this Article II, and the other provisions of this
Agreement. The exclusive services to be performed by Company, as
granted by this Franchise, are more particularly described in Section 3.1 of
this Agreement.
The Franchise herein granted shall be subject to the following:
(a.) The other provisions of this Agreement;
(b.) Compliance with all applicable Government Regulations (including
City ordinances) as they presently exist or as they may be amended
during the term of or extension of this Agreement, and
(c.) The City Rules and Regulations established by the City Manager
pursuant to Section 2.7 of this Article II-
In the event of any conflict between this Agreement and applicable
Government Regulations (including City ordinances), the latter shall
prevail.
2.2. Franchise Term.
The term of the Franchise granted herein shall begin at 12:01 A.M. on the
Commencement Date and shall continue, unless otherwise terminated
hereunder, until 11:59 P.M. October 31, 2010.
2.3 Use of Citv Streets.
City grants to Company, during the term of this Agreement, the right and
privilege to use and operate upon City maintained streets and other public
rights-of--way, to the extent necessary to perform Company's obligations
specified herein.
Page 9
2.4. Independent Contractor Status.
Company, its employees and agents, are independent contractors and not
employees, agents or sub-agents of City. Company shall not use a firm
name containing the word "City" or other words implying municipal
ownership.
2.5. Exceptions to Exclusivity of Franchise Granted.
The Franchise granted herein by City to Company shall be exclusive except
with respect to the following:
(a.) Collection of Single Source Separated Recyclables from
nonresidential premises and residential building of five (5) or more
dwelling units.
(b.) Collection of Recyclables from residential premises, provided
however, that no person other than the Company shall be permitted
to collect Recyclables from residential premises unless that person
meets all of the following four criteria (i) is anot-for-profit
organization as defined in Section 501(c)(3) of the Internal
Revenue Code of 1986, as amended, (ii) is an organization that has
traditionally engaged in Recycling activities within City Limits, (iii)
has received a permit to engage in Recycling activities within City
Limits by the City Manager, and (iv) receives no consideration from
the person or entity who discarded such-Recyclables other than the
value of the Recyclables themselves.
(c.) Non-container hauling services incidental to other services to be
performed at the premises of a Customer by businesses such as
gardeners, landscapers or tree services.
(d.) Non-container hauling services provided on an irregular and ad hoc
basis by bulky item haulers.
(e.) Hauling of accumulated and / or stored Solid Waste from building
construction and / or demolition sites wherein such Solid Waste has
not been accumulated and / or stored in a Debris Box.
(f.) Collection of Unacceptable Waste, and other materials, substances
and objects that are neither Solid Waste nor Recyclables.
Page 10
2.6. Office Established.
Company shall establish and maintain a local office for the purpose of
receiving applications for service and the receipt and handling of Customer
complaints. Such office shall be open to the public daily between 8:00
A.M. and 4:30 P.M., excepting Saturday and Sunday and such holidays as
are recognized by Company and approved by the City Manager. Company
shall provide in said office a qualified person to manage Company's
obligations pursuant to the Agreement, and such person shall have the
responsibility to assure that all collection operations are effectively
performed and all Customer complaints courteously handled and
satisfactorily resolved.
2.7. Rules and Regulations of the City Manager.
The City Manager shall have the power to establish reasonable rules and
regulations (the "City Rules and Regulations") respecting the collection,
removal, accumulation, and transportation of Solid Waste and Mixed
Recyclables not inconsistent with the provisions of this Agreement or with
the provisions of any applicable Government Regulations, provided such
City Rules and Regulations are found to be necessary or convenient by the
City Manager for the enforcement of the provisions of this Agreement, the
provisions of any and all applicable sanitary laws and ordinances, and the
preservation of the public peace, health and safety. Company shall comply
with any and all such City Rules and Regulations.
2.8. Enforcement Responsibility. -
The administration and enforcement of this Agreement shall be the
responsibility of the City Manager, or such representatives as may be
designated by the City Manager by notice to Company. All services to be
provided by Company pursuant to this Franchise shall be performed in a
manner reasonably satisfactory to the City Manager pursuant to City Rules
and Regulations.
2.9. Notices.
Any and all notices to be given under this Agreement, or which either party
may desire to give to the other, shall be in writing and shall be deemed to
be duly and properly given if personally delivered or deposited in the
United States Mail as certified mail, return receipt requested, postage
prepaid, addressed to the other party at the address designated below, or to
such other place or address as may be designated by the other party by
written notice delivered pursuant to the provisions of this Section 2.9.
Page 11
If to Company:
Los Altos Garbage Company
20863 Stevens Creek Boulevard, Suite 100
Cupertino, CA 95014
If to City:
City of Cupertino
10300 Torre Avenue
Cupertino, California 95014
Notwithstanding the foregoing, if either party to this Agreement relocates,
notice of such fact, including the new address for notice, shall be given to
the other party not less than thirty (30) days in advance of such relocation.
ARTICLE III
COMPANY SERVICES
3.1. Franchised Services.
Company shall provide the following exclusive services under this
Franchise:
(a.) Solid Waste Collection. Company shall furnish the personnel, labor
and equipment required for the collection, removal, handling and
transportation to Disposal Facilities of all Solid Waste produced,
generated or accumulated within the City Limits in accordance with
the terms of this Agreement. Subject to the provisions of Section
10.1 of this Agreement, Company shall haul all Solid Waste
collected to one or more Disposal Facilities outside of the City
Limits, the location of which shall be designated by the City
Manager. Refusal by the operators of such Disposal Facilities to
accept Company's delivery of Solid Waste shall not remove
Company from responsibility under this Agreement.
(b.) Debris Box Service. Company shall provide Debris Box collection,
removal and hauling -services on an on-call basis, for the provision
of Debris Boxes to both residential dwelling and nonresidential
units and to construction sites, and Company shall charge for such
services the appropriate charge appearing in the Schedule of
Approved Rates as provided for herein.
Page 12
(c.) Curbside Recycling. Company shall provide residential Customers
with appropriate containers into which such Customers may
segregate and discard Recyclables. Company shall collect and
remove Recyclables from such containers on alternating weeks, or
more often as maybe necessary, subject to standards to be mutually
agreed upon between the parties. Items included for collection
include: aluminum, glass (clear or colored), tin, PET plastic (or
other grades of plastic as mutually agreed upon by the parties),
newspaper and used motor oil.
(d.) City's Solid Waste. At no cost to City, Company shall furnish the
personnel, labor and equipment required for the collection, removal,
hauling and delivery to a Disposal Facility of any Solid Waste
generated on parcels of ~ property owned, leased or otherwise
occupied by City.
(e.) Area-wide Cleanup Service. At City's option, and on dates and at
times to be mutually agreed upon between Company and City,
Company shall provide an annual Area-wide Cleanup Service for
residential Customers within the City Limits.
(f.) Compactor Service. All compactors located within the City shall be
hauled by the Company except for special accounts that have been
granted a permit by the Director of Public Works.
(g.) Additional Services. At City's request, and subject to the following,
Company may elect to provide any other exclusive services not
granted by this Franchise ("New Services") upon receiving a written
proposal from City and subject to the establishment of an
appropriate rate for such New Services; provided, however, if
Company elects not to provide any proposed New Service and so
notifies City in writing, City may perform, or contract with other
persons or entities to perform, any such New Service.
(g.l.) Mixed Recyclable Collection. Company shall provide
Mixed Recyclable collection, removal and hauling services
for commercial businesses, and Company shall charge for
such services the appropriate rate as defined in the
"Approved Schedule of Rates". Sorting fees associated
with this service shall be the responsibility of Company.
Page 13
(g.2.) Commercial Cardboard Collection. Company shall provide
commercial cardboard collection, removal and hauling
services for commercial businesses. Revenues received
from the sale of commercial cardboard collected in City
will be remitted by Company on a quarterly basis to City.
(g.3.) Yardwaste Collection. Company shall provide residential
yardwaste collection, utilizing ninety-six (96) gallon
wheeled containers to single-family and certain multi-family
units, on alternating weeks, or more often as may be
necessary, subject to the standards mutually agreed upon
between the parties.
(g.4.) Multi-Family/Hillside Rec~~ Program. Company shall
provide a recycling program similar to that described in
Section 3.1 (c, g.3 and g.5) of this Agreement to certain
multi-family, hillside and / or "difficult to service" units,
subject to standards to be mutually agreed upon between
the parties.
(g.5.) Residential Mixed Paper Collection. Company shall
provide residential mixed paper collection, removal and
hauling services on alternating weeks, or more often as
may be necessary. Any and all revenues received by
Company for the sale of residential mixed paper shall be
retained by Company, except that those revenues
exceeding $100,000 annually shall be split evenly between
the Company and the City, based on rates published and
agreed to by both parties.
Nothing in this Agreement shall be construed so as to limit or preclude
Company from engaging in any lawful activity or business within City
Limits not otherwise granted exclusively herein to Company.
Page 14
3.2. Place of Residential Collections.
City shall enact and enforce such ordinances as may be necessary to assure
that residential Customers situate discarded Solid Waste for collection by
Company in the front yard of such Customers' dwelling premises in
locations that are free of all enclosures such as gates and fences; provided,
however, at the option of City, certain residential Customers may be
allowed to situate discarded Solid Waste for collection by Company in
alternative locations on such Customers' dwelling premises ("Alternative
Collection Services"), and City shall approve reasonable service rate
differentials, within the Schedule of Approved Rates, for such Alternative
Collection Services to reflect the increased costs to Company thereof.
3.3. Times of Collection.
Company's Solid Waste collection activities in residential areas shall begin
after 6:00 A.M. and shall conclude by 5:00 P.M., Monday through Friday,
or during such additional times as shall comply with City's noise ordinance,
subject to the approval of the City Manager.
Company's Solid Waste collection activities in nonresidential areas shall be
performed on weekdays other than Sundays, during such times as shall
comply with City's noise ordinance. The times and days for collection in
nonresidential areas adjacent to residential areas shall be fixed by mutual
agreement of City and Company after due consideration of traffic
conditions, noise and accessibility to and from the collection area, and any
other appropriate factors and circumstances.
3.4. Holidavs
Company shall not provide collection services on holidays on which the
designated disposal facility is closed, which may include, but are not limited
to the following days: New Year's Day, Thanksgiving Day and Christmas
Day.
3.5. Additional Requirements.
Company shall comply with each of the following requirements:
Page 15
(a.) Company shall provide, annually for atwo-week period following
January 1, curbside collection of Christmas trees cut into lengths no
more than four (4) feet.
(b.) All of Company's collection vehicles and equipment shall be so
constructed and maintained to prevent leakage, spillage and
overflow. Company shall maintain all vehicles, detachable
containers and Debris Boxes in a clean and sanitary condition and
shall perform such maintenance as may be necessary to assure each
vehicle and piece of equipment is capable of performing all
functions for which it was designed. All trucks and equipment shall
be clearly identified with Company name and a current telephone
number. City may refuse to permit the operation within the City
Limits of any vehicle not adequately serviced, cleaned, or in need of
repair. Removal of vehicles for servicing and repair shall not
relieve Company from observing all collection schedules.
(c.) Company shall collect and remove from any and all premises, within
twenty-four (24) hours after demand, notice or request, any and all
Solid Waste which Company shall have failed to collect and remove
as required at the regularly scheduled time.
(d.) Company shall not litter Customer premises or City streets in the
process of performing its collection and removal services, nor shall
Company allow any Solid Waste to blow or fall from any vehicle
used for collections. Company shall clean up all spills, including oil
and debris, on the streets resulting from its operations.
(e.) Company shall replace lids or covers on all Customer containers
immediately after emptying the same and shall repair or replace, at
its expense, any containers damaged as a result of its handling
thereof, normal wear and tear excepted. Company shall restore all
containers used by Customers in an upright position in
approximately the same location found by Company immediately
prior to being emptied by Company. Company shall restore all
commercial bins to the position where the containers were located
immediately prior to being emptied by Company, within any
enclosures provided, and shall close the doors or gates provided for
screening the bins. Company shall instruct its employees to comply
with the foregoing requirements, and shall exercise .sufficient
supervision of such employees to assure that these instructions are
followed.
Page 16
(f.) Company shall keep records of all Solid Waste collected and
removed and shall maintain these records separately from other
Company operations. Route status sheets for each collection route
shall be maintained by Company indicating the address of each
Customer, type and frequency of service, and such other pertinent
information as may be reasonably required by City. City shall be
provided such collection records and route status sheets upon
request. Company may provide City with quarterly summaries of
collection operations within City including number of vehicles and
amounts of Solid Waste collected.
(g.) Company shall extend routes and services promptly upon
annexation of new areas to City or upon other increase in the
service demand. Company shall provide service upon all dedicated
public streets and private roads when and as practicable.
(h.) Company shall respond on an on-call basis for the pick up of large
or bulky items and shall charge the Customer for such service.
3.6. Standard Containers.
The Standard Container for residential and nonresidential service shall not
exceed thirty-two (32) gallons and its gross weight shall not exceed
seventy (70) pounds.
Company shall also furnish ninety six (96) and sixty four (64) gallon
wheeled container carts as an option to Customers. A separate service fee
may be charged for the cart, which fee shall be included in calculating the
Franchise Fee to be paid to City. These carts, if damaged or lost, except
through repeated negligence or intentional conduct by the Customers, will
be repaired or replaced by Company, at its option, at no charge. Printing
on such carts will be limited to their identification as property of Company,
including an identification number, and instructions for use.
Company may refuse to collect and remove Solid Waste from Customers'
containers which exceed these volume and weight specifications, provided
that Company informs such Customers of the reasons for such refusal.
Page 17
ARTICLE IV
SERVICE RATES AND ADJUSTMENTS
4.1. Rate Authorization.
Company shall be compensated under this Agreement by billing Customers
according to the Schedule of Approved Rates, in effect from time to time
as provided hereunder. Company shall not charge Customers any amount
in excess of those rates shown on the Schedule of Approved Rates for any
services required or permitted to be performed under this Agreement.
4.2. Schedule of Approved Rates; Revisions.
The Schedule of Approved Rates shall be those rates as shall be duly
adopted by the City Council by resolution. The initial Schedule of
Approved Rates (the "Initial Rates"), to be effective as of the
Commencement Date is attached hereto as Exhibit B. Subject to the
provisions of Section 4.4 of this Article IV, revisions to the Schedule of
Approved Rates, if any, shall become effective on the date specified by
resolution of the City Council providing for such revisions, but shall not be
retroactive unless expressly made retroactive in the resolution.
4.3. Adjustment for Extraordinary Costs.
The parties agree to adjust the Schedule of- Approved Rates to fully
reimburse and compensate Company for Extraordinary Costs to the extent
and in proportion to Company's increased costs of providing services
hereunder, subject to the following limitations:
(a.) The Schedule of Approved Rates shall not be adjusted as a result of
increases in Company's costs which result from Company's failure
to conform to existing (as of the Commencement Date),
consistently interpreted applicable Government Regulations.
(b.) For purposes of determining the appropriate increase in the
Schedule of Approved Rates, Extraordinary Costs shall be allocated
either as current expenses or, if such Costs have a useful life
exceeding one year, as capital expenditures ("Extraordinary Capital
Costs"), as shall be determined by Company's independent public
accounting firm using generally accepted accounting principles.
Page 18
Extraordinary Capital Costs shall be amortized over the useful life thereof
in accordance with generally accepted accounting principles; provided,
however, any corresponding increase in the Schedule of Approved Rates
resulting from amortization of Extraordinary Capital Costs shall be
repealed at the end of such amortization period; provided further that the
repeal of any such increase shall not affect other increases resulting from
Extraordinary Costs which were not amortized.
4.3.1. Timing Of Additional Review.
Upon receiving the Company's written request for additional review and
such information deemed necessary to support such request, the City shall
have thirty (30) days to act upon the request; provided that the request is
deemed complete by the City. If the request is based upon an increase in
any fee, tax or charge mandated or imposed by Federal, State, County, City
or other law, the City agrees to take action to remedy costs incurred by
Company.
4.4. Differential Rates.
Differential rates for similar services may be established for those areas
within City Limits where terrain, topography, density or other factors have
a demonstrated effect upon the operational economy and profitability of
Company. Rate differentials thus established shall be applied to services
only in those geographic or other clearly identifiable circumstances for
which they are approved by the City Council. -
4.5. Future Rate Adjustments.
Company and City agree that each of the rates shown on the Schedule of
Approved Rates in effect as of June 30 of each year (the "Base Year")
shall, commencing on the date of this Agreement, be adjusted (either
increased or decreased) effective as of August 1st (the "Rate Adjustment
Date"), by the percentage increase or decrease (the "Rate Adjustment")
that is calculated pursuant to the following formula, which the parties
understand and agree appropriately considers both growth and cost of
living factors:
Rate Adjustment = CPI BR (.25L + .25E + .50 CPI- (.6R + .7C + .3D)
BR (.25L + .25E + .50 CPI)
where the terms of the formula, shall have the following meaning:
Page 19
BR = Base Revenue, or revenue anticipated for the Base Year ending
on June 30 excluding adjustments granted for cost of living
increase or non-scheduled adjustments granted in the previous
twelve (12) months.
L = The net percentage change during the May to May Year in the
Employment Cost Index (compensation), as published by the
U.S. Department of Labor, Bureau of Labor Statistics. (May
statistics)
E = The net percentage change during the May to May Year in the
Gross National Product Implicit Price Deflator for Producer's
Durable Equipment (non-residential), as published quarterly by
the U.S. Department of Commerce, Bureau of Economic
Analysis.
CPI = The net percentage change during the May to May Year in the
Consumer Price Index (All Items) for the San Francisco -
Oakland Metropolitan Area, as published by the U. S.
Department of Labor, Bureau of Labor Statistics. (May
statistics)
R = The net increase in revenue for residential customer above base
revenue (can service).
C = The net increase in revenue for commercial accounts above base
revenue (container type).
D = The net increase in revenue for roll-off debris box service above
base revenue.
Should any of the aforementioned index values not be published for the
month of May during the Base Year, the rate adjustment calculations shall
be performed using the index values as published for the last month
immediately preceding the May in question (or, in the case of a
quarterly-published index, the index value for the quarter including the May
in question). Should any of the indices named in this section be
discontinued, a successor index shall replace the same, provided that any
successor index shall be that index which is most closely equivalent to the
discontinued index as recommended by the publishing agency.
Page 20
ARTICLE V
ACCOUNTING PROVISIONS
5.1. Books and Records.
Books and records relating to services provided under this Agreement shall
be kept and maintained by Company. The City Manager, or his /her
designated representative, may audit and inspect such books and records to
the extent and for the sole purpose of ascertaining the correct amount of
sums due to City. Financial records and operating data required by City for
the purposes of any review of the Schedule of Approved Rates shall be
furnished by Company at no expense to City and shall be prepared in a
manner and form reasonably described by City.
5.2. Accounting Method and Period.
The accounting records of Company, for purposes of billing, collections,
and payment of Franchise Fees, shall be kept on a "cash basis". The
operating year for financial and accounting purposes shall begin October 1
and end September 30.
5.3. Financial Reporting Requirements.
Company shall annually provide City with copies of an annual audit
prepared by an independent certified public accountant who has annexed
his /her opinion thereto. City Manager may reasonably specify the form
and detail of the annual audit and may inspect the financial records of
Company at all reasonable times for any purpose relevant to the
performance or the enforcement of the provisions of this Agreement.
Page 21
ARTICLE VI
BILLING AND COMPENSATION
6.1. Company Billing_and Collection.
Company shall, no less frequently than once per calendar quarter, bill
Customers and collect the appropriate sums of money due for all such
services performed by Company hereunder, such sums to reflect the
Schedule of Approved Rates. Company shall also include on such
Customer bills, and shall collect as an agent for City, all additional disposal
charges authorized by the City Council, and those monies shall be passed
through to City.
6.2. Liability of Citk
Neither City, nor any of its officers nor employees shall be liable or in any
way be responsible for the payment or collection of any service rates or
charges due Company for performing services within the City Limits.
6.3. Franchise Fee.
On or before the twentieth (20th) day of each calendar month during the
term of this Agreement, Company shall remit to-City a sum of money equal
to ten percent (10%) of the gross revenues collected by Company from its
Customers within the City Limits during the preceding calendar month, as a
Franchise Fee for the privilege of operating the Franchise granted under
this Agreement. Each monthly remittance to City shall be accompanied by
a statement detailing, for the period covered, gross receipts from
operations conducted within the City Limits, pursuant to this Agreement.
6.4 Franchise Surcharge.
Commencing July 1, 1996, Company shall remit on or before the twentieth
(20th) day of each calendar month during the term of his Agreement, a sum
of money equal to two percent (2%) of the gross revenues collected by
Company from its Customers within the City Limits during the preceding
calendar month. This Administrative Fee shall be paid in addition to the
Franchise Fee set forth in Section 6.3.
Page 22
ARTICLE VII
INTERRUPTION OF SERVICE BY LABOR DISPUTE
7.1. Temporary Possession by City
In the event that Company's Solid Waste collection, removal and hauling
services are interrupted by a labor dispute and Company's regularly
scheduled collection services are discontinued for a period of more than
forty-eight (48) hours (a "Service Interruption"), City shall have the right
(1) to take temporary possession of all facilities, equipment and / or
vehicles of Company for the purposes of continuing those services which
Company has agreed to provide hereunder so as to preserve and protect
the public health and safety, and (2) to retain possession of said facilities,
equipment, and / or vehicles to render the necessary services until
Company can demonstrate to the satisfaction of the City Council that such
services can be resumed by Company; provided, however, City will
indemnify and defend Company and its officers, directors, agents, and
employees, and hold such parties harmless against all suits, actions,
liabilities, costs, and expenses (including reasonable attorneys' fees and
costs of defense) arising out of or related to City's negligence or willful
misconduct while in possession or operation of any facilities, equipment,
and / or vehicles of Company, or in the performance of Company's services
hereunder during any such Service Interruption-
7.2. Gross Revenue to Citv.
During any period of Service Interruption while City has temporarily
assumed the obligations of Company under this Agreement, City shall be
entitled to collect and retain the gross revenue attributable to operations
during such period and shall pay therefrom only those costs and expenses
applicable or allocable to said period. The excess, if any, of revenue over
applicable or allocable costs and expenses during such period shall be
deposited in the treasury of City to the credit of the general fund. The loss,
if any, during such period shall be charged against Company and shall be
paid to City by Company upon demand. Final adjustment and allocation of
gross revenues, costs and expenses to the period during which City
temporarily assumed the obligation of Company shall be determined by an
audit by an independent certified public accountant and prepared in report
form with his /her opinion annexed thereto.
Page 23
7.3. Temporar,~m~lokment by City.
City may employ, during a Service Interruption, employees of Company
while City temporarily assumes the obligations of Company under this
Agreement; provided, however, the rate of compensation to be paid such
employees, or any other employees, shall be at the rate or rates in erect at
the time of the Service Interruption.
ARTICLE VIII
CANCELLATION OF FRANCHISE BY CITY
8.1. Default, Cure, and Termination.
In the event Company defaults in the performance of any of its material
obligations under this Agreement, City shall give Company notice setting
forth in reasonable detail the facts of such default (the "Notice of Default"),
and if Company fails, neglects or refuses for a period of more than thirty
(30) days after receipt of the Notice of Default to cure such default by
performing its obligations hereunder, City may, without further notice
terminate this Agreement and revoke, cancel and annul the Franchise
granted hereunder.
In the event of termination of this Agreement for Company's failure to cure
a material default, City shall have the right to take possession of vehicles
and other equipment of Company used to perform work under this
Agreement. City shall have the right to retain possession of said vehicles
and equipment until other suitable vehicles and equipment can be
purchased or otherwise acquired by City for said purpose, and City shall
pay Company the reasonable rental value of such trucks and equipment
during the time the same are used by City for such purpose. City shall also
have access to Company's records for the purpose of billing Customer
service accounts during the period which City is providing Solid Waste
collection and disposal services, and City shall retain all fees collected for
providing such services.
Page 24
ARTICLE IX
OWNERSHIP OF SOLID WASTE
9.1. Property of Compank
Title to Recyclables shall pass to the Company when such Recyclables are
collected from Customers at their source of generation. Title to Solid
Waste shall remain with the Customer until such Solid Waste is delivered
to and accepted at the Disposal Facilities or, as to Solid Waste capable of
being recycled, separated by the Company for recycling.
ARTICLE X
DISPOSAL FACII.ITIES
10.1. Delivery to Designated Disposal Facilities.
Subject to Section 10.2 below, Company shall transport the Solid Waste
collected pursuant to this Agreement, and shall deliver the same to the
Disposal Facilities designated by City, as provided for in Section 3.1 of this
Agreement.
Company is responsible for maintaining records to account for the total
amount of Solid Waste disposed of at each of the Disposal Facilities
designated by City. Company will keep the Disposal Facilities informed of
the total amount of Solid Waste delivered from collection within City
Limits pursuant to this Agreement.
Any increased Company costs resulting from delivery of Solid Waste to a
Disposal Facility other than Newby Island sanitary landfill, located at 1601
Dixon Landing Road in San Jose, shall be passed through to Customers
and shall be treated as ari Extraordinary Cost, as provided for in Section
4.3 of this Agreement.
Page 25
10.2. Recvclables.
Notwithstanding any other provision of this Agreement to the contrary,
Company shall have the right to market, sell or otherwise lawfully dispose
of all Recyclables collected and removed by Company pursuant to the
Franchise granted by this Agreement, including the right to retain the
revenues from any such sale; except as provided for under Section 3.1 (g)
New Programs, provided, however, that the revenues from the sale of any
Recyclables shall not be subject to the Franchise Fee provided for in
Section 6.3 of this Agreement.
ARTICLE XI
LEGAL LIABILITY, INSURANCE. BONDS
11.1. Surety Bond.
Within ten (10) days of the executive of this Agreement, Company shall
furnish to City and shall file with the City Clerk a corporate surety bond
approved by the City Manager, and approved as to form by the City
Attorney, and executed by Company as principal, and by a corporate surety
as surety in the sum of Fifty-Thousand Dollars ($50,000.00) conditioned
upon the faithful performance by Company and its subcontractors, if any,
of this Agreement, In lieu of such bond Company may provide City with
such other security for faithful performance as may be approved by the City
Manager.
11.2. Insurance.
Company and its subcontractors, if any, shall at their sole costs and
expense, obtain and maintain in full force and effect throughout the entire
term of this Agreement public liability insurance approved by the City
Manager and approved as to form by the City Attorney. Such policy or
policies shall insure Company and its subcontractors, and City, its officers,
agents and employees, and each of them, against liability for bodily injury
or death to, and of, any person or persons and for any property damage
arising as a result from the operations of Company or its subcontractors in
conducting the business herein and above licensed and authorized.
Minimum bodily injury or death coverage provided by said insurance shall
be Five-Hundred Thousand Dollars ($500,000.00) per each person and
One Million Dollars ($1,000,000.00) per occurrence. Property damage
coverage shall be at a minimum ofTwo-Hundred-Fifty Thousand
Page 26
Dollars ($250,000.00) per occurrence. This however, will not increase the
limits of liability of the insuring company. The above insurance shall be
considered primary insurance with respect to any other valid and collectible
insurance City may possess, including any self-insured retention City may
have, and any other insurance City does possess shall be considered excess
insurance only. Policies or certificates of said insurance shall be filed with
the City Clerk within twenty (20) days after the execution of this
Agreement. Company shall make diligent efforts to obtain a policy of
policies of insurance which contain a provision whereby said insurance will
not be canceled by the insurer without giving twenty-five (25) days written
notice to City of any cancellations so proposed.
Company and its subcontractors, if any, shall obtain and maintain in full
force and effect throughout the entire term of this Agreement, full worker's
compensation insurance in accordance with the laws of the State of
California and other applicable laws. Certificates of such insurance shall be
filed with the City Clerk within ten (10) days after the executive of this
Agreement. Company shall immediately inform City of any Cancellation,
withdrawal and / or change of any such insurance.
11.3. Com~anv to Indemnify Citk
Except as otherwise provided by Section 7.1 or Section 13.5 of this
Agreement, Company shall protect and save harmless City, its officers,
agent and employees, for and form any and all losses, liability, demands,
actions or suits, of any and every kind in description.
(a.) arising or resulting from or in any way connected with the
operation of Company or its subcontractors in exercising any
license or privilege granted to Company by this Franchise or by any
City ordinance, or
(b.) arising or resulting from the failure of Company, or its
subcontractors, to comply in all material respects with the
provisions and requirements of this Agreement and with all
applicable Government Regulations.
Company shall, upon demand of City, at Company's sole cost and expense,
defend, and provide attorneys to defend City, its officers, agents and
employees against any and all actions or suits brought against City, its
officers, agents and employees arising or resulting from or in any way
connected with the aforementioned operations of Company or its
subcontractors, or its subcontractor's failure to comply with this Agreement
and with applicable Government Regulations.
Page 27
11.4. Waivers.
The waiver by City of any breach or violation of any term, covenant or
condition of this Agreement or of any provision of any applicable
Government Regulation shall not be deemed to be a waiver of such term,
covenant, condition, ordinance, or law, or of any subsequent breach or
violation of the same of any other term, covenant, condition, ordinance, or
law, or of any subsequent breach or violation of the same or of any other
term, covenant, condition, or Government Regulation. The subsequent
acceptance by City of any license fee or of any other monies which may
become due hereunder to City shall not be deemed to be a waiver of any
preceding breach or violation by Company or of any term, covenant or
condition of this Agreement or of any applicable Government Regulation.
11.5. Performance A Condition.
This Agreement and the license and the Franchise herein granted to
Company is and are conditioned upon the faithful performance by
Company and by each and every one of its subcontractors, if any, of each
and all of the material covenants of Company contained herein, including
covenants to pay all Franchise Fees and other monies herein agreed to be
paid by Company.
ARTICLE XII
ASSIGNMENTS
12.1. Successors and Assigns.
This Agreement shall be binding upon and inure to the benefit of the
successors and assigns of the parties hereto; provided that no party hereto
may assign this Agreement without the prior consent of the other party,
which consent the City may not unreasonably withhold; and provided,
further, that no assignment shall be valid and binding that endeavors to
relieve the assigning party of any obligations to make payments that
accrued prior to the date of assignment or of which the assignee has not
affirmatively agreed, in writing, to assume all obligations of the assignor
thereunder. Any dissolution, merger, consolidation, or other
reorganization of Company, or the sale or other transfer of a controlling
percentage of the Company, shall be deemed a voluntary assignment. The
phrase "controlling percentage" means that ownership of, and the right to
vote, stock possessing at least 51% of the total combined voting power of
all classes of Company's capital stock issued, outstanding, and entitled to
vote for the election of directors.
Page 28
12.2. Services by Affiliates.
Services under this Agreement may be provided by affiliates or
subcontractors of Franchisee, provided that, 1) written permission is given
for their use by City, 2) any affiliate or subcontractor will be responsible for
the performance of all the terms of the Agreement, 3) the use of affiliates
or subcontractors is limited to a temporary period not to~exceed thirty (30)
days, unless otherwise agreed upon by the parties, and 4) the company
shall be responsible for the actions, inactions or omissions of any
subcontractor or affiliate under this Agreement.
ARTICLE XIII
DISASTER OPERATIONS
13.1. Company Availability of Personnel and Equi ment
In event of wartime, natural, physical or other disaster in or proximate to
the City Limits resulting in the declaration of a State of Emergency by the
City Manager or City Council, Company shall make available to City, at no
cost to City, all equipment, vehicles, and / or personnel normally
performing services under this Agreement, for emergency operations
conducted or directed by the City Disaster Operations Chief.
13.2. Temporary Possession and Emplo,~nt.
City shall have the right to take temporary possession of all such vehicles
and equipment made available by Company, and to temporarily employ all
such Company personnel as emergency operations forces of City, under the
direction and control of the City Disaster Operations Chief.
13.3. Use of Additional Equipment.
Company may make available, in addition to the vehicles, equipment, and
personnel provided in Section 13.1 above, equipment, vehicles, and
personnel from those Company operations and resources not otherwise
serving City pursuant to this Franchise, to the extent necessary to conduct
effective Solid Waste collection and removal services during any declared
Sate of Emergency, subject to the direction and control of the City Disaster
Operations Chief.
Page 29
13.4. Reimbursement.
City shall not be required to compensate Company in any manner or form
for Company's provision of equipment, vehicles, or personnel normally
performing services under this Agreement within the City Limits, when
made available during a declared State of Emergency. When additional
equipment, vehicles, or personnel are provided during such an emergency,
pursuant to Section 13.3 above, City shall compensate Company for actual
expenses incurred by Company in providing such equipment, vehicles, and /
or personnel upon submission by Company to City of detailed records of
costs and expenses actually borne by Company, and upon approval by the
appropriate Federal agency of City's reimbursement of expenses incurred
by Company during such State of Emergency.
13.5. Indemnity.
In the event of a declared State of Emergency during which City takes
possession of and utilizes the equipment, vehicles and / or personnel of
Company pursuant to this Article XIII, City agrees to indemnify and defend
Company and its officers, directors, agents, and employees, and hold such
parties harmless against all actions, suits, liabilities, costs, and expenses
(including reasonable attorneys' fees and costs of defense) arising out of or
related to City's possession and operation of all Company equipment,
vehicles, and facilities utilized by City of render services during any such
State of Emergency. -
ARTICLE XIV
MISCELLANEOUS TERMS AND CONDITIONS
14.1. Development Review.
Company shall provide City with the specific criteria by which development
plans for residential and non-residential units may be reviewed by City
concerning the location of Solid Waste disposal containers and appropriate
screening thereof.
Page 30
14.2. Service Inspection by Cites
To ensure that Company complies with the all applicable Government
Regulations, a representative of City may inspect Company's Franchise
operations during the term of this Agreement upon the following
conditions. City's representative may make inspections of Company's
equipment and facilities at any reasonable hour. At City's request, and
upon reasonable advance notice, Company shall make designated personnel
available to accompany City Inspectors.
14.3. Subcontractor.
Company shall not subcontract all or any portion of its obligations under
this Agreement without the written consent of the City Manager, except as
provided in Section 12.2.
14.4. 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.
14.5. Attorney's Fees.
In the event legal action is instituted to enforce this Agreement, the
prevailing party shall be entitled to recover reasonable attorney's fees and
actual costs incurred in connection with such action.
14.6. Entiretv.
The parties agree that this Agreement represents the full and entire
agreement between the parties to this Agreement with respect to matters
covered herein.
14.7. Venue.
The parties agree that should any action, whether real or asserted, at law or
in equity, arise out of the terms and conditions of this Agreement, venue
for said action shall be in Santa Clara County, California.
Page 31
14.8. Savings Clause.
If any non material provisions of this Agreement shall for any reason be
held to be invalid or unenforceable, the invalidity or unenforceability of
such provision shall not affect any of the remaining provisions of this
Agreement and this Agreement shall be enforced as if such invalid and
unenforceable provision had not been contained herein.
14.9. 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.
14.10. Amendment.
This agreement may be amended only by written agreement duly
authorized and executed by the parties hereto.
Page 32
ARTICLE XV
PREVIOUS AGREEMENTS SUPERSEDED
This Agreement supersedes that certain franchise agreement (the "Previous
Franchise Agreement") entered into between City and Cupertino Garbage
Company, Company's predecessor in interest, for the collection, removal and
transportation of Solid Waste produced, generated and accumulated within the
City Limits, dated October 21, 1991 and such previous Franchise Agreement shall
terminate for all purposes effective as of the Commencement Date of this
Agreement.
IN WITNESS WHEREOF, the parties to this Agreement hereby indicate
their acknowledgment and acceptance of the terms and conditions stated herein by
executing his Agreement this 4th day of December 1995.
CITY OF CUPERTINO
a California municipal corporation
BY: ~~ ~/~1.~~~
Mayor
BY:
City Clerk
Approve s to fo
7 ~
y Attorney
LOS ALTOS GARBAGE COMPANY, INC.
a California corporation
BY: ~~1 C~
ItS: ~~i~nq~ /tilGntif~
-0 6~
Page 33
LOS ALTOS GARBAGE COMPANY FRANCHISE AGREEMENT
SECOND AMENDMENT
The following Sections of the Los Altos Garbage Company Franchise Agreement, are hereby amended
to read:
ARTICLE 1 -DEFINITIONS
[Insert New]
Section 1.3. Bulky Wastes.
"Bulky Wastes" means individual items that weigh more than 50 pounds, or are too large for
one person to manage easily. Bulky wastes include large furniture items (such as couches and cabinets)
and appliances (such as washers, dryers and microwave ovens). Bulky wastes also include refrigerators
and air conditioners (with Freon), televisions sets and computer monitors for which a separate charge
is applied to collection.
[Renumber subsequent Sections under Definitions]
[Replace]
Section 1.19. Recyclable Materials.
"Recyclable Materials" means those items designated in EXHIBIT C of this Agreement; which
are separated by residents and businesses from other discards for the purpose of returning them to
economic use, and set out for collection in an approved container.
1.25. Standard Container.
Standard Container means any container provided by Company for storage and collection of
solid waste, recyclables or compostables (including yardwaste).
A Residential Standard Container means plastic wheeled cart of approximately 32-gallon, 64-
gallon, or 96-gallon capacity, distributed by Company for use by residents.
A Commercial Container means plastic wheeled cart of approximately 32-gallon, 64-gallon, or
96-gallon capacity, or metal bins of from 1 to 6 cubic yard capacity, approved by the City Manager and
provided by Company for use by businesses for solid waste collection services.
ARTICLE II -GENERAL CONDITIONS AND TERM OF FRANCHISE
Section 2.9. Notices:
If to Company:
Los Altos Garbage Company
650 Martin Avenue
Santa Clara, CA 95050
ARTICLE III. COMPANY SERVICES
[Replace]
Section 3.1.(c). Curbside Rec cog -Company shall provide residential Customers with appropriate
Standard Containers into which such Customers may segregate and discard Recyclables. Company
shall collect and remove recyclables from such Containers weekly, on the same day as Solid Wastes
are collected. Company shall collect extra recyclables set out next to the Standard recycling container,
if such recyclables are properly containerized. Recyclable Materials included for collection are listed
in Exhibit C.
Company and City shall work together to minimize the contamination of the recyclables set out for
collection by residents. The City shall promote recycling and discourage residents from including non-
recyclable items in with their recyclables. Company shall instruct drivers to notify residents when the
recyclables they set out are contaminated.
Section 3.1.(e). On-Call Disposal Day Services -Two times per year, Franchisee will provide On-call
collection services to each Residential Service Recipient, upon request. Franchisee shall provide the
services described in EXHIBIT D of this Agreement. Franchisee shall handle all materials received in
a manner that will allow the maximum amount to be recycled, or otherwise diverted from landfill.
Section 3.1.(g). Additional Services
(g.l.) Mixed Recyclable Collection. Company shall provide Mixed Recyclable collection,
removal and hauling services to commercial businesses. Company shall charge for such
services the rate provided in Exhibit B. Approved Schedule of Rates. Sorting fees
associated with this service shall be the responsibility of Company.
(g.2.) Commercial Cardboard Collection. Company shall provide commercial cardboard
collection, removal and hauling services to commercial businesses. Sorting fees
associated with this service shall be the responsibility of Company.
(g.3.) Yardwaste Collection. Company shall provide each residential Customer a 96-gallon
wheeled Container into which Customers may segregate and discard Yardwaste.
Company shall collect and remove Yardwaste from such Containers weekly, on the
same day as Solid Wastes are collected. Acceptable yard wastes materials are listed in
Exhibit C.
(g.4.) Multi-Family/Hillside Recycling Prop am. Company shall provide a recycling program
similar to that described in Section 3.1 (c and g.3) of this Agreement to certain multi-
family, hillside and / or "difficult to service" units, subject to standards to be mutually
agreed upon between the parties.
Delete (g.5.) Residential Mixed Paper Collection
Section 3.5 (e.) - [delete first sentence]
_• ,1' s,.l. ..#,. ... ~. •1.. ,1 ,.1...,11 .+r rr~r~~si rs.~ „4 ;4., Y.
~ jr~ ~~
~•
~ a ,] „1E ,.F;~~ iv '1' ~~ C - --- 1 isrr~or o-,.a * ~ a Company shall
o
restore ....
[Replace]
Section 3.5 (h.) -Company shall collect large items including:
a) White goods (appliances) which do not contain Freon
b) White goods (appliances) which contain Freon (refrigerators and air conditioners)
c) Computer monitors and television sets
d) Worn and damaged furniture and household furnishings (such as carpet)
e) Reusable (undamaged) household goods, toys and textiles to be donated to a non-
profit service organization
Company shall collect bulky items within one week of service request by resident. Company shall
charge for such services the rate provided in Exhibit B. Approved Schedule of Rates.
(Add]
Section 3.5 (i.) Company shall reduce vehicle exhaust emissions by purchasing or modifying vehicle
engines to run on bio-diesel fuel; or otherwise make changes to achieve comparable exhaust emission
reductions.
[Replace]
Section 3.6. Standardized Containers.
Standardized Containers for residential service shall be wheeled plastic carts, distributed by Company
for use by residents. Company shall distribute one container each for solid wastes, recyclables and
yardwaste to each residential Customer.
The solid waste containers shall be approximately 32-gallon, 64-gallon, or 96-gallon capacity. Solid
waste carts shall be gray.
Recycling carts shall be 64-gallon capacity. Recycling carts shall be blue.
Yardwaste carts shall be 96-gallon capacity. Yardwaste carts shall be tan brown.
Standardized Containers for commercial businesses shall be either plastic wheeled carts of
approximately 32-gallon, 64-gallon, or 96-gallon capacity, or metal bins of from 1 to 6 cubic yard
capacity, distributed by Company.
Company shall maintain, repair and replace, at Company's option, all Standardized Containers at no
charge to the Customer.
Company may refuse to collect and remove solid wastes, recyclables or yardwaste from any cart with a
total weight of more than 150 pounds for the cart and included materials, or if the cart is overflowing,
provided that Company informs Customers of the reasons for such refusal.
ARTICLE IV SERVICE RATES AND ADJUSTMENTS
[Add to end of Section 4.5]
Future Rate Adjustments do not include any compensation adjustment for the provision of
Standardized Containers to Customers, or for loss in revenue received from the sale of Recyclable
Materials.
[Add]
Adjustments for Dama es.
EXHIBIT A. LIQUIDATED DAMAGES
City shall charge the Franchisee any costs City incurs for the Franchisee's failure to:
collect wastes, divert materials to be in compliance with State and Federal Regulations, and
operate equipment properly; or the costs of responding to complaints and problems; and other
costs relating to failure of the Franchisee to comply with all other aspects of this Agreement.
City and Franchisee agree that the following liquidated damage amounts represent a
reasonable estimate of the amount of such damages, including the relationship of the sums to
the range of harm to City that reasonably could be anticipated, and the anticipation that proof of
actual damages would be costly or inconvenient.
Franchisee agrees to pay liquidated damages (not as a penalty) as set forth below:
* For each failure over six (6), in any 12 consecutive month period, to commence service
to a new Service Recipient within seven (7) days of request.
* For each failure to provide Recyclables Containers to a new Service Recipient within
seven (7) days of request.
* For each failure over twelve (12), in any 12 consecutive month period, to collect a Solid
Waste, Recyclables or Yard Trimmings which had been properly set-out for collection,
* For each failure over twelve (12), in any 12 consecutive month period, to collect a
missed set-out within (1) working day,
* For each occurrence of collection during unauthorized hours (starting early or finishing
late),
* For each occurrence over twelve (12), in any 12 consecutive month period, of leaving
litter from a collection vehicle, in a public street,
* For each calendar day a Required Report is incomplete, inaccurate or late,
* For each occurrence of other similar incidents, not corrected within two (2) working
days.
Damages will start at $25.00 per incident, and may increase, at sole discretion of City,
in increments of up to $50, to a maximum of $500 per incident for repeated failure to perform
any one condition as specified in the Agreement. Prior to assessing any liquidated damages,
City shall give Franchisee written notice of its intention to do so. The notice will include a
brief description of the incidents and issues ofnon-performance.
Within ten (10) days of notification by City, Franchisee may submit a written appeal of
the assessment of liquidated damages to City, with an explanation of why the damages should
not be assessed. The decision of the City Manager shall be final. Franchisee shall pay any
liquidated damages within thirty (30) calendar days after they are assessed. Payment of
liquidated damages will in no way be a waiver of City's authority to terminate this Agreement.
Exhibit A - 1
EXHIBIT B - 1/4
CITY OF CUPERTINO RATES
effective August 1, 2004
Rate
SINGLE FAMILY (monthly rate): 04-OS
Front 1 can $ 17.88
Front 2 cans $ 35.76
Front 3 cans $ 53.64
Front ea additional can $ 17.88
Back 1 can $ 27.48
Back 2 cans $ 54.96
Back 3 cans $ 82.44
Back ea additional can $ 27.48
ffiLLSIDE (monthly rate):
Roadside 1 can $ 29.56
Roadside 2 cans $ 59.12
Roadside 3 cans $ 88.68
Roadside ea additional can $ 29.56
DUPLEX/MULTIPLE UNITS & YARDWASTE EXEMPT (monthly rate):
Front 1 can $ 15.12
Front 2 cans $ 30.24
Front 3 cans $ 45.36
Front ea additional can $ 15.12
Back 1 can $ 23.38
Back 2 cans $ 46.76
Back 3 cans $ 70.14
Back ea additional can $ 23.38
SENIOR CITIZENS (monthly rate):
FrontyardBackyard 1 can $ 8.94
Exempt (no yardwaste) 1 can $ 7.58
Hillside 1 can $ 14.79
ADDITIONAL CHARGES:
Extra Bag Tag $ 5.20
10 Bag Tags $ 49.47
Extra Can (1-time} $ 8.96
Waste Wheeler (rental) $ 3.00
Additional Yard Waste Toter $ 6.16
24 HR CONTAINER SERVICE:
Bin By The Day 4 yd $ 115.63
6 yd $ 141.61
7 yd $ 154.60
CITY OF CUPERTINO RATES
effective August 1, 2004
Rate
04-05
COMPACTOR RATE (per cubic yard): includes hauling $ 29.47
COMPACTOR RATE- MIXED RECYCLABLE:
Hauling only $ 273.96
Per ton $ 43.61
ROLL-OFF SERVICE (DEBRIS BOX):
Rock Box 6 tons $ 546.65
7 tons $ 611.91
8 tons $ 677.17
ea additional ton $ 65.26
16 CY Container 3 tons $ 350.89
4 tons $ 416.15
5 tons $ 481.41
ea additional ton $ 65.26
26 CY Container 4 tons $ 536.94
5 tons $ 602.20
6 tons $ 667.46
ea additional ton $ 65.26
30 CY Container 5 tons $ 634.88
6 tons $ 700.14
7 tons $ 765.40
ea additional ton $ 65.26
40 CY Container 6 tons $ 677.27
7 tons $ 742.53
8 tons $ 807.79
ea additional ton $ 65.26
Weekly rental fee (beyond normal ?days): $ 106.05
2/4
CITY OF CUPERTINO RATES
effective August 1, 2004
(monthly rates)
Rate
COMMERCIAL -FRONT LOADER CONTAINERS: 04-OS
1-1/2 CY Container lx week service $ 104.29
2x $ 208.58
3x $ 312.88
4x $ 417.17
Sx $ 521.47
6x $ 625.74
Extra pickup $ 32.78
2 CY Container lx week service $ 125.16
2x $ 250.29
3x $ 375.46
4x $ 500.59
Sx $ 625.74
6x $ 750.89
Extra pickup $ 40.94
3 CY Container lx week service $ 166.86
2x $ 333.73
3x $ 500.59
4x $ 667.48
Sx $ 834.33
6x $ 1,001.19
Extra pickup $ 44.79
4 CY Container lx week service $ 208.58
2x $ 417.17
3x $ 625.74
4x $ 834.33
Sx $ 1,042.92
6x $ 1,251.49
Extra pickup $ 55.84
6 CY Container lx week service $ 292.02
2x $ 584.03
3x $ 876.05
4x $ 1,168.05
Sx $ 1,460.09
6x $ 1,752.10
Extra pickup $ 77.72
8 CY Container lx week service $ 375.46
2x $ 750.89
3x $ 1,126.36
4x $ 1,501.79
Sx $ 1,877.24
6x $ 2,252.68
Extra pickup $ 100.51
3/4
CITY OF CUPERTINO RATES
effective August 1, 2004
(monthly rates)
COMMERCIAL -FRONT LOADER CONTAINERS: continued
Pushout lx week service
2x
3x
4x
Sx
6x
Key Service
COMMERCIAL CAN RATE:
Per can pickup (32 gal. Can)
3x rate for wastewheeler (96 gal)
SPECIAL SERVICES:
Steam cleaning, re-delivery and/or furnishing chains
(one time only)
REAR LOADER SERVICE:
Rate
04-OS
$ 36.71
$ 73.64
$ 110.24
$ 147.07
$ 183.87
$ 220.76
$ 40.88
$ 16.57
$ 70.38
Manure- 1 CY lx week service $ 161.27
2x $ 338.51
3x $ 515.89
4x $ 693.20
Sx $ 870.72
Extra pick-up $ 66.21
BULKY GOODS:
First item $ 25.00
Each additional item (including TVs and Freon-containing items) $ 15.00
LATE CHARGE FEE: 1.2% per month delinquent (not compounded), applies to all rates
4/4
[Add] EXHIBIT C. LIST OF RECYCLABLE MATERIALS
"Recyclable Materials" include but are not
limited to the following:
Glass
- Bottles and jars only (empty and rinsed)
- Any color glass is okay
- Lids and caps are okay
• Bottles
• Beverage containers
• Jars
Metal
- Containers: empty and rinsed
- Lids and caps are okay
• Aluminum foil (clean)
• Aluminum pie pans
• Beverage cans
• Food cans
• Pet food cans
• Scrap metal less than 40 pounds
• Aerosol cans -food related, emptied of gas
& liquid
• Metal pots and pans
Plastic
- Empty and rinse
- Lids and caps are okay
• Bags (must be bundled together inside
another plastic bag)
• Buckets (without handles)
• Containers, like soda, water and juice
bottles (labeled #1 - #7 only)
• Foam egg cartons
• Flower pots (no dirt)
• Household cleaning containers
• Milk jugs
• Large foam blocks (in a clear plastic bag)
• Shrink wrap
Drink Boxes
• Juice Boxes
• Milk Cartons
• Soy Milk Boxes
Other
Household dry-cell batteries: alkaline (non
mercury), nickel cadmium, nickel iron, nickel metal
hydride, carbon zinc
Paper
- Clean and dry with no food matter
- Flatten boxes
- Shredded paper must be in a paper or clear plastic
bag
- Staples, tape, envelope windows are okay
• Books (paperback)
• Boxes, packages
• Cardboard (cut to fit loosely in cart or cut
to 3' x 3' [or smaller] pieces and placed in
between carts)
• Catalogs
• Cereal boxes, cracker boxes, gift boxes
• Colored paper
• Computer paper
• Coupons
• Envelopes
• Gift wrap (non-metallic only)
• Juice boxes
• Magazines
• Milk and cream cartons
• Newspaper and inserts
• Office paper
• Paper bags
• Shredded paper (in a paper bag or clear
plastic bag)
• Telephone books
• Tissue paper (gift type)
• Unsolicited mail
Automotive Products
• Motor Oil
• Oil Filters
Yardwaste [Brown Cart]
• Branches
• Flowers
• Grass clippings
• Holiday trees (tinsel-free)
• Leaves
• Shrubs (small)
• Twigs Weeds
Exhibit C - 1
Recyclable Materials do not include:
Glass
• Plate Glass, mirrors, light bulbs, ceramics,
dishware
Metal
• Propane tanks and cylinders, clothes
hangers, wire, auto parts
Plastic
• Containers not labeled #1-#7, packing
peanuts, bubble wrap, plastic wrap, plastic
utensils, garden hoses, plastic toys, PVC
or other plastic pipe
Paper
• Pizza boxes or other food contaminated
paper products (paper plates), napkins,
paper towels, or facial tissues
Yard Waste
• Tree trunks or stumps, painted trees, fruits
and vegetables, ice plant, cactus, poison
ivy, palm fronds, bug, moth or ant-infested
material, pressure treated wood, dirt, rock,
concrete, sod, ashes, asphalt or building
materials, trash or other garbage.
"Recyclable Materials" must fit within the
wheeled cart, with the lid closed. Additional
recyclables may be placed next to the cart in
proper containers.
Exhibit C - 2
[Add]
EXHIBIT D: ON-CALL DISPOSAL OR RECYCLING DAYS
Customers may choose either:
• 2 garbage disposal days, or
• 2 yardwaste/woodwaste recycling days, or
• 1 garbage disposal day, and 1 yardwaste/woodwaste recycling day
• This service is provided for Cupertino residents with "can" garbage service.
• There is no separate charge.
• Call for an appointment. We need a minimum of 48 hours notice.
• On-call disposal or recycling days will be scheduled on your normal collection day.
• All items must fit within an 8 ft.-long, 4 ft.-wide, and 4 ft.-high area, placed curbside by 6 a.m.
• Single items (bags, bundles or boxes) can't weigh more than SO lbs. each, and must be
manageable by one person.
• Unused On-Call disposal or recycling days are not transferable to the next calendar year.
Disposal Pickup Restrictions:
• Loose items must be bagged, boxed, or bundled.
• Small amounts of dirt, rock, concrete, asphalt, brick and the are OK if boxed. The total amount
of this type of material cannot weigh more than 2501bs. (e.g., 250 lbs. could be contained in
five 50-1b. boxes. Tip: concrete weighs 1501bs./cubic ft.)
• No furniture or appliances over SO lbs. and manageable by one person.
• No car parts with oil or diesel residue.
• No appliances with Freon, such as refrigerators and air conditioners.
• No hazardous waste.
• No TVs or computer monitors
Yardwaste/Woodwaste Recycling Pickup Restrictions:
Bundled piles must not exceed 6-feet in length, and not weigh more than 50 pounds each. No plastic
bags allowed.
Yardwaste restrictions:
• No palm fronds, stumps, ice plant, poison oak, cactus, fruit, vegetables orbug-infested
materials.
• Branches can't be larger than 6" in diameter and 6 ft. long.
• No loose piles-tie branches with string or box trimmings so they can be easily picked up.
Woodwaste restrictions:
• Scrap wood cannot be painted, varnished, stained, or chemically treated.
• Lumber (maximum length 6 ft.) must be stacked neatly. Wood scraps must be boxed or
bundled.
Exhibit D - 1
[Add] EXHIBIT E: ADDITIONAL PROVISIONS
1. The City is not responsible for any costs associated with retrofitting single-stream residential
recycling trucks to meet ARB rules for diesel particulate emissions.
2. Los Altos Garbage will retain all cardboard revenue to offset annual cart replacement and
maintenance. The City had previously agreed to pay half these costs (projected to be $32,000
annually). Historically, the City has received an approximately equal amount in cardboard
revenue annually.
Any loss in revenue to LAGCO due to reductions in garbage service levels (can migration) as a
result of the expanded recycling program will be adjusted at the end of a 12-month period,
commencing the first day of delivery of recycling carts. This is a one time only adjustment.
LAGCO will provide to the City accurate service level records on February 1, 2005, August 1,
2005 and February 1, 2006.
4. The City is responsible for costs associated with promoting the program. LAGCO will, at its
own expense, prepare and distribute one newsletter per year, in lieu of an annual calendar, to
the promotion of the new program.
5. The costs of the carts, delivery and assembly, as shown on the proposal dated Sept. 24, 2003,
will be reimbursed to LAGCO by the City within 30 days of completion of delivery of carts to
all residents.
6. The City will reimburse LAGCO on a monthly basis for items mutually agreed to in the
proposal dated Sept. 24, 2003. The monthly costs will be based on an annual cost of $292,311.
Costs for payroll and truck and garage will be subject to an annual COLA. Cart rental revenue
loss and recycling revenue loss are not subject to the COLA.
7. LAGCO will collect, as part of the weekly service from residents, all household dry-cell
batteries (including alkaline, nickel cadmium, nickel iron, nickel metal hydride and carbon
zinc) placed in clear zip lock bags. The City will pay the cost for recycling of the batteries. City
will reimburse LAGCO on a quarterly basis, in an amount not to exceed $25,000 annually,
based on invoices submitted by LAGCO. LAGCO plans to collect batteries on the same truck
as the garbage.
8. Bulky item rate -City to set the rate and compensate LAGCO for the difference. The proposed
rate is $25 for the first item and $15 for each additional item; plus an additional $15 for each
item containing Freon and $15 for each TV.
Exhibit E - 1