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02-05-1997 CITY COUNCILstaff reports
SApRATOGA CITY COUNCIL EXECUTIVE SUMMARY NO. 7iO AGENDA ITEM:—,n r 4 MEETING DATE: February 5, 1997 CITY MGR: ORIGINATING DEPT.: City Manager's Office Jennifer Britton, Assistant to the City Manager SUBJECT: ... Consideration of Contract -for an Alternate Landfill Disposal Site (Newby Island Landfill): Second Report Transmittal Recommended Motion(s): Authorize the City Manager to sign an alternate landfill disposal site contract with International Disposal Company (IDC) if the city councils of Campbell and Monte Sereno and the town council of the Town of Los Gatos take similar action on the contract. Report summary: This matter was presented to the City Council on January 15, 1997, where it was continued until February 5, 1997. Shortly before the meeting a letter was transmitted to the city from Guadalupe Rubbish Disposal Company relating to the content of the staff report. On January 21, 1997, the Campbell City Council approved the proposed agreement with IDC. This matter is currently scheduled to be consider by the Cities of Monte Sereno and the Town of Los Gatos on February 18, 1997. The original staff report submitted for the January 15, 1997, meeting details the provisions of the proposed contract and sets forth the various steps taken by the West Valley communities in seeking an alternative landfill site for the West Valley communities. This information is attached to this supplemental report as is the proposed contract with IDC. Discussion: There is a need to clarify the reference in the last staff report to the difference in cost to make use of the alternate landfill at Newby Island. In the staff report reference was made to the so called "innovative proposal" from Green Valley regarding the comparable landfill rates. The staff report stated that the base rate at Guadalupe was $27.25 a ton and the base rate at Newby Island would be $17.85, a difference of $9.40 a ton. Actually that is the base rate which is currently the offer of Guadalupe in terms of its ongoing litigation with the West Valley communities over the appropriate base rate at the landfill under the existing agreement. The Green Valley /Guadalupe Proposal, submitted on January 15, 1997, correctly states that the actual difference in base rate between their "innovative proposal" and the Newby Island proposal is a base rate of $22.83 a ton for Guadalupe versus a base rate of $17.85 for Newby ' Island, a difference of $4.98 a ton. Green Valley /Guadalupe claims the staff report compares apples and oranges. This is true. Unfortunately, so does their proposal. Here is why. The Green Valley/ Guadalupe "innovative proposal" requires that the agreement to use the Guadalupe landfill be an exclusive one. If an Alternate Landfill Disposal Site Report #2 Page 2 exclusive arrangement with Newby Island is also used then the base rate tipping fees are as follows: Guadalupe $22.83 a ton, Newby Island $16.75 a ton, a difference of $6.08 a ton. Even that does not yield a complete apples to apples comparison because the Guadalupe "innovative proposal" rate also requires, in addition to an exclusive landfill agreement, the extension of that agreement to the year 2028. The Newby-Is-land-agreement-expires in early 2003. The "innovative proposal" also requires an extension of the current Green Valley franchise agreement to the year 2023. The Green Valley /Guadalupe "innovative proposal" is not a part of the proposal to provide an alternative landfill site for the West Valley communities. To make and apples to apples comparison would require the communities to solicit RFPs (Requests for Proposals) from other vendors so that a true comparison of offers on rubbish services could be made. What must be kept in mind is that the purpose of the West Valley communities seeking proposals on landfill sites was to provide a backup landfill arrangement in the event that the Guadalupe site was unavailable for any reason including, but not limited to 1)loss of permit status, 2)environmental problems, 3)lack of capacity, 4)labor problems, 5)unanticipated acts of God, 6)unacceptable costs to the rate payers. This proposal has nothing to do with the basic rubbish collection franchise agreement. Indeed, the franchise agreement with Green Valley clearly states that Green Valley is to deliver the rubbish collected to the landfill specified by the City, not exclusively to the Guadalupe Landfill. Once the Newby Island agreement is executed by the City, it would only become operational in the event that all four West Valley communities made the decision to change landfills. The actual decision to do so would require specific action by a future City Council to direct this change in concert with the other communities. Fiscal Impacts: As noted in the staff report of January 15, 1997, the savings to Saratoga ratepayers would be between $133,00 and $140,000 per year. Advertising, Noticing and Public Contact: Posting of agenda. Also, a copy of this report has been sent to Guadalupe Rubbish Company. Consequences of Not Acting on the Recommended Motions: As noted in staff report of January 15, 1997, further action on seeking an alternate landfill site and a contract for such would be curtailed, and further, should the City ever have a need for reasons stated above for a backup disposal site, we would be in no position to do so. Follow Up Actions: The City Manager will file a Notice of Determination with the County Clerk. A signed copy of the contract will be forwarded to International Disposal Corporation. Again, the agreement will only become operational in the event that all four West Valley communities make the decision to change landfills. Alternate Landfill Disposal Site Report #2 Page 3 Attachments: 1. Staff report of January 15, 1997: Consideration of Contract for an Alternate Landfill Disposal Site (Newby Island Landfill) 2. Attachment to staff report of January 15, 1997: Waste Disposal Agreement 3. Letter of January 15, 1997 from Guadalupe Rubbish Disposal Company idcrtc2 i A*ck wmt / SARATOGA CITY COUNCIL EXECUTIVE SUMMARY NO. AGENDA ITEM 7A MEETING DATE: January 15, 1997 CITY MGR.�'04 ORIGINATING DEPT. City Manager's Office Jennifer Britton, Assistant to the City Manager SUBJECT: Consideration of Contract for an Alternate Landfill Disposal Site (Newby Island Landfill) Recommended Motion(s): That Council authorize the City Manager to sign an alternate landfill disposal site contract with International Disposal Company. Report Summary: Background Each of the West Valley cities has a 20 -year (1983 - 2003 ) disposal contract with Guadalupe Rubbish Disposal Company to landfill all municipal waste intended for disposal and collected by Green Valley Disposal. This disposal contract is not exclusive, in that the cities /town are not required to dispose of their refuse at Guadalupe Landfill. The amount of the disposal fee has a direct impact on refuse rates paid by residents and businesses in the four cities, and the cities agree that we should seek the most cost - effective services for ratepayers. In 1995, the West Valley cities of Los Gatos, Monte Sereno, Campbell and Saratoga requested an alternate proposal for landfill services from Browning- Ferris Industries, which owns and operates Newby Island Landfill and from the City of Sunnyvale Materials Recovery and Transfer Station. By the end of July, proposals had been received from both companies. An unsolicited offer from Waste Management Inc. was also received. Discussion Discussion with the proposers' representatives indicated that significant disposal cost savings could be realized by hauling waste to BFI's facility at Newby Island. The enclosed agreement specifies a base rate of $17.85 /ton as compared to the innovative proposal from Green Valley Disposal Company of $27.25/ton. The estimated net reduction in rubbish costs for an annual tonnage of 83,000 tons, including added haul costs, would exceed $600,000 per year for the West Valley cities. The City of Saratoga's share of Alternate Landfill Disposal Site Page 2 that savings would exceed $130,000 per year. The West Valley Cities contracted with two consulting firms to evaluate the impact of contracting with an alternate landfill provider: Ecodata, who evaluated the impact on refuse collection costs if waste is hauled to Newby Island Landfill, rather than Guadalupe Landfill as well as to advise on proposed contract terms; and secondly, David J. Powers and Associates who provided an analysis of the potential impacts on the environment if a different landfill were to be used, in accordance with the California Environmental Quality Act. Economic Impact of Using Landfill at Newby Island: Because it is a longer distance from the West Valley cities than Guadalupe Landfill, the Ecodata study concluded that the difference in refuse haul costs were as follows: Commercial Collection $0.93 added haul cost per ton Debris Box Collection $6.02 added haul cost per ton Residential Collection $1.49 reduced haul cost per ton Overall average, all sectors estimated $1.86 - $2.00 per ton added haul cost Last Spring, the cities asked Green Valley Disposal Company, which provides refuse collection and hauling services, to do their own independent haul cost estimate if refuse were to be taken to Newby Island instead of Guadalupe Landfill. To date that estimate has not been provided. The difference between the disposal fee and the additional haul cost nets out to #7.40 /ton.. City -wide, 18,000 to 19,000 tons of solid waste is hauled to the landfill each year. Based upon this volume and assuming the $2.00 /ton additional haul cost, the savings for the City of Saratoga for hauling to Newby Island would be between $133,000 and 140,000 per year. Contract Terms: As noted in the June 19, 1996 Report to Council, the BFI contract offers several major provisions not included in the Guadalupe contract, including an annual cost adjustment using a CPI, a "hold harmless" indemnification clause, contractor insurance requirements, a performance guaranty by the parent company, and improved provisions to ensure the cities' review and approval if the company is sold. Staff and attorneys from each jurisdiction had reviewed the contract proposed by BFI. The consultant from Ecodata Inc. had also advised the cities to ensure that the final contract offers the best possible terms for the West Valley cities. The BFI contract offers the West Valley jurisdictions an alternative disposal site, with the Guadalupe contract remaining Alternate Landfill Disposal Site Page 3 intact. Similarly, selection of an alternate disposal site would not affect the refuse collection agreement with Green Valley Disposal Company. Selection of the actual disposal site would be an administrative determination. Environmental Assessment: In terms of the environmental assessment that had to occur for this project, in February 1996, the cities /town retained the consultant firm of David J. Powers and Associates to analyze the potential impacts of this project on the environment, in accordance with the California Environmental Quality Act. The scope of the project involved evaluating the environmental impacts of using Newby Island Landfill rather than Guadalupe Landfill, as the disposal site for some or all of the cities' waste. The cities are not considering any change in the manner, frequency, or any other attribute of their current system for the collection of municipal waste. The consultant prepared an Initial Study and Negative Declaration (Attachment A) and copies were distributed to various state and local agencies for their response. The only comment received on the Initial Study and Negative Declaration was from the law firm of Matteoni, Saxe & Nanda, representing Guadalupe Rubbish Disposal Company (Attachment B). The letter raised questions about the potential project impacts on landfill capacity at both landfills, suggested that the analysis should identify the impacts of the entire waste haul distance rather than just from the increment of difference, and asked about the context of the increased fuel consumption. The consultant believes that none of the issues addressed lead to a different conclusion than that documented in the Initial Study and Negative Declaration. Each of the items raised in the Matteoni letter is addressed by the consultant in Attachment C. On June 19, 1996, the Council has approved the necessary Negative Declaration for the West Valley Cities disposal site and the City managers in all the affected cities have negotiated and further revised the contract enclosed with this report. Fiscal Impacts• The annual savings to rate payers would be between $133,000 to $140,000 as detailed in the report section entitled "Economic Impact of Using Landfill at Newby Island." Advertising, Noticing and Public Contact: The public was first apprised of the alternative landfill offers from BFI and the City of Sunnyvale last February. At that time, the cities /town were asked to allocate funds for the consultant work. In that report, staff indicated that they would contact Alternate Landfill Disposal Site. Page 4 Green Valley to obtain their estimated haul costs if waste was delivered to Newby Island Landfill. After the consultant completed the environmental assessment in May, the cities /town posted notices in the local papers advising residents of our intent to consider the project and the public's opportunity to comment on the project. In April and May, program staff forwarded a letter to Green Valley Disposal asking for their haul cost estimate to deliver waste to Newby Island Landfill, and to compare it to the haul cost estimates prepared by the cities' consultant. For the June 19, 1996 meeting, the agenda had been posted regarding the negative declaration and consideration of the alternate landfill site issue. Also, a copy of this report has been sent to Guadelupe Rubbish Disposal Company. Finally, proper posting of the agenda for this meeting occurred. Consequences of Not Acting on the Recommended Motions: Further action on seeking an alternate landfill site and a contract for such would be curtailed, and further, should the City ever have need for a back up disposal site we would not be in any position to do so. Follow Up Actions: The City Manager will file a notice of Determination with the County Clerk. A signed copy of the contract will be forwarded to International Disposal Corporation. Attachments: A. West Valley Cities Landfill Disposal Site Initial Study /Negative Declaration dated May 3, 1996 B. Norman E. Matteoni letter of June 4, 1996 re: Comments Concerning Proposed Negative Declaration for Disposal of Municipal Solid Waste at Newby Island Landfill C. Michael Yesney Response of June 7, 1996 to Letter on Negative Declaration and Supplement to the Initial Study /Negative Declaration for the West Valley Cities Disposal Site D. Contract for alternate landfill disposal site with BFI E. Minutes of June 19, 1996 Council meeting NOTE: FULL COPY ON FILE WITH CITY CLERK. NEGATIVE DECLARATION 1. Project Title: _ 2. Lead Agency Name and Address: 3. Contact Person: 4. Project Location: 5. Project Sponsor's Name and Address: 6. Description of Project: ATTACHMENT A Date: May 3, 1996 West Valley Cities Garbage Landfill Disposal Site City of Saratoga, Community Development Department Paul Curtis, Community Development Director (408) 867- 3438 x231 County of Santa Clara West Valley Cities (Campbell, Los Gatos, Monte Sereno, and Saratoga) Vera Dahle - Lacaze Solid Waste Program Manager (408) 354 -5017 The Cities of Campbell, Saratoga, Monte Sereno, and the Town of Los Gatos ( "West Valley Cities ") are proposing to change the location at which some or all of their municipal solid waste may be landfilled. The West Valley Cities presently have their municipal solid waste collected by a single waste hauler, Green Valley Disposal, and taken to the same sanitary landfill; the Guadalupe Sanitary Landfill and Materials Recovery Facility. The West Valley Cities are now considering contracting with a different sanitary landfill for disposal of their municipal waste, the Newby Island Sanitary Landfill and Recyclery. The West Valley Cities are not considering any change in the manner, frequency, or any other attribute of their current system for the collection of municipal waste. However, once the waste is collected, some or all of it would be hauled to a different landfill in a different part of Santa Clara County. I. DESCRIPTION OF THE PROJECT A. OVERVIEW OF THE PROJECT Four cities in Santa Clara County are proposing to change the location at which some or all of their municipal solid waste is landfilled. If this change is approved, garbage collected at homes, businesses and construction sites within these four cities will be hauled to the Newby Island Sanitary Landfill, near the northerly border of Santa Clara County, instead of to the Guadalupe Sanitary Landfill, near the southerly edge of the Santa Clara Valley (see Figure 1). B. PROJECT DESCRIPTION Four of the cities in southwestern Santa Clara County presently have their municipal solid waste collected by a single waste hauler, Green Valley Disposal, and taken to the same sanitary landfill, the Guadalupe Sanitary Landfill and Materials Recovery Facility (Guadalupe). The four cities are Los Gatos, Saratoga, Monte Sereno, and Campbell (subsequently referred to as West Valley Cities). Each of the cities contracts separately with both the waste hauler and the landfill company. However, in the interests of efficiency and cost effectiveness, the four West Valley Cities negotiated similar contractual terms. Both the collection and disposal contracts cover waste collected from residences, businesses, and construction sites. There are also small pockets of unincorporated County property present between and adjacent to these four cities. The County pockets are served by this same collection and disposal "system ". The term system is used because, in the interests of efficiency, the waste from these various jurisdictions is collected and intermingled in the same trucks and hauled to the same landfill. The West Valley Cities are now considering contracting with a different sanitary landfill for disposal of some or all of their municipal waste. The Newby Island Sanitary Landfill and Recyclery (Newby Island) is also located in Santa Clara County. Figure 1 shows the four West Valley Cities and the locations of both Guadalupe and Newby Island. The West Valley Cities are not considering any change in the manner, frequency, or any other attribute. of their current system for the collection of municipal waste. However; once waste is collected, it would be hauled to a different landfill in a different part of Santa Clara County. The proposed destination landfill, Newby Island, is fiilly permitted under the appropriate regulations of Federal and State law, and has all of its local permits. No revision is required or proposed to any of the Newby Island landfill's permits or operating parameters. The four West Valley Cities also have their yard wastes collected by Green Valley and hauled to the Guadalupe site, where they undergo preliminary processing. No change is proposed in the manner or location at which yard wastes are collected or processed. WEST VALLEY CITIES I INITIAL STUDY LANDFILL DISPOSAL SITE ef;nbaon RacydedP&W MAY 1996 C. PROJECT OBJECTIVES The objective of the project is to reduce the cost to the West Valley Cities of disposing solid waste by J P hauling waste to Newby Island rather than continuing to haul all of the waste to Guadalupe. D. CONSISTENCY WITH RELEVANT PLANS, GOALS, AND POLICIES In accordance with Section 15063(d)(5) of the CEQA Guidelines, the following section discusses the consistency of the, project with relevant plans, policies, and land use controls. 1. Federal and State Policies Federal Clean Air Act The Federal Clean Air Act was enacted to protect and enhance air quality and promote the public's health and welfare. The U.S. Environmental Protection Agency (EPA) has established Ambient Air Quality Standards, primarily implemented by State and local agencies. Consistency: The proposed project would not create any new fixed base (point) sources of air pollution and would not generate a significant amount of additional traffic. Since the proposed project would not result in significant air quality impacts, it would be consistent with the Clean Air Act. California Integrated Waste Management Act (Assembly Bill 939) The California Integrated Waste Management Act of 1989 (AB 939) mandates that by January 1, 1995 and January 1, 2000, each California City and County must be diverting 25 percent and 50 percent, respectively, of all solid waste generated within the jurisdiction from disposal through source reduction, recycling, and composting activities. This legislation requires each City and County to prepare, adopt, and submit to the County a Source Reduction and Recycling Element which addresses those goals. Consistency: The proposed change of disposal site would not affect the County's diversion goals. Therefore, the project would be consistent with this law. County of Santa Clara Integrated Waste Management Plan The main goals of the County Integrated Waste Management Plan (CoIWMP) are to: 1) ensure an effective and efficient integrated waste management system 2) preserve the sustainability of our communities, and 3) conserve natural resources and landfill capacity in the County. Consistency: The proposed change of landfill disposal site for the West Valley Cities would not affect the amount of solid waste generated or disposed of in the County. The proposed disposal site is shown in the CoIWMP. Therefore, the project would be consistent with the CoIWMP. ' WEST VALLEY CITIES 3 INITIAL STUDY LANDFILL DISPOSAL SITE Maud onReLydedPW MAY 1996 Source Reduction and Recycling Elements Each of the four cities has prepared a Source Reduction and Recycling Element (SRRE). The primary goal of the SRREs is to meet the waste diversion goals of the California Integrated Waste Management Act of 1989 (AB 939). The SRREs identify all of the permitted landfills within the County and identify each City's plans to deliver solid waste to Guadalupe Landfill. In conformance with State regulations, each City prepares an annual update to its solid waste programs which reflects any changes in those programs and any information in the SRRE that needs to be updated. Should the four cities decide to change their landfill disposal site, this change would be reflected in the following annual update. Consistency: The project would be inconsistent with the existing SRREs, however, upon completing the annual updates, this inconsistency would be resolved. San Jose 2020 General Plan The San Jose 2020 General Plan is an adopted statement of goals and policies which serve as the major planning document defining the character and quality of future development within the City of San Jose. Both the Guadalupe and Newby Island Landfills are designated as Private Open Space with Solid Waste Disposal Site overlays on the Land Use/Transportation Diagram of the adopted General Plan. Consistency: The project proposes hauling waste collected in the West Valley Cities to the Newby Island Landfill, which is an allowed use under the adopted General Plan. The project does not propose any change in the existing land use. Therefore, the project would be consistent with the San Jose 2020 General Plan. E. USES OF THE ENVIRONMENTAL DOCUMENT This Initial Study and Negative Declaration will be`used by each of the West Valley Cities in considering a contract with Browning -Ferns Industries (BFI) which would permit the solid waste collected within each of those cities to be landfilled at the Newby Island Landfill. WEST VALLEY CITIES 4 INITIAL STUDY LANDFILL DISPOSAL SITE Printed on RWYCW PWs MAY 1996 C•.L. Z4 tUPER,T1N6`, .- c . ..... I I III *A II *A 2 .A LT01 o 1.0IItcT I. 'CAMPBELL 85 T • o A 17 :SARATOG KONVI "NINO r .=LC)S GATOS" Zz 0 C-p.-Im. yard Newby Island Guadalupe Landfill It, REGIONAL MAP FIGURE 1 IF It L wura araTlOr MILPITAS, ALVISO so- C4 Q. as rrr 237 MOUNTAIN a 4, IVIEW cw I m SUNNYVALE c SANTA CLAR A- —SAN JOSE II11 1•D C•.L. Z4 tUPER,T1N6`, .- c . ..... I I III *A II *A 2 .A LT01 o 1.0IItcT I. 'CAMPBELL 85 T • o A 17 :SARATOG KONVI "NINO r .=LC)S GATOS" Zz 0 C-p.-Im. yard Newby Island Guadalupe Landfill It, REGIONAL MAP FIGURE 1 IF It L FROM City of Monte Sereno ,Mi• BY FAX AND U - S . 9AIL June d, 1996 Ms. Anne Sybee City Clerk City of Campbell 70 12orth First Street Campbell, CA 9500$ ATTACHMENT B RECEIVED. JUN 0 406 CITY CLERK'S OFFICE Re: Comments concerning Proposed Negative Declaration for Disposal of Municipal Solid Naate at Newby Island Landfill Dear Madam Clerk: X9AA cm.. 1740 Tmdirw Drive . . swk-= Smjsw. CA 94110 /08 411.7400 PAX 4W441 -702 Nswm" C. Mmewr M"OVA FWW Nnda pow M. CYLamon Iwb G. TJW Be" 0. I udhMm our firm represents Guadalupe Rubbish Disposal company which currently serves the West valley cities for disposal of municipal solid waste at the Guadalupe Sanitary Landfill. We have reviewed the proposed negative declaration in this matter and have the following comments. BACiCMIM Newby Island Landfill is permitted under a solid waste facilities permit (No. 43 -AN -003). This permit is undergoing a five year review, including a review of the capacity of the site. The capacity noted in the proposed negative declaration is from the County of Santa Clara Ineegrated solid waste Management Plan, Summary Plan and Siting Element, November, 1995. This plan did not formally review capacity values for landfills in the county, but rather accepted the capacity number provided by the landfill operators. Newby Island Landfill also has been the subject of a revised contract between the City of San Jose and BFI, the operator of Newby Island; and no impact is noted from the reported extension of terms of this contract. JUN. 1J. 1770 lU- F7iw'i r J FROM : City of Monte Sereno PHONE NO. : 408 395 7653 6 -13 -1996 10:54AM FROM CAMPBELL PUBLIC WKS 408 3760958 P.2 Ms. Anne Bybee June 4, 2.996 Page a The proposed negative declaration should address the capacity of the site based upon the most recent and accurate information instead of simply q+ieting the County Summary Plan. This information should be available from the City of San Jose and other contractors. Further, BPI should be able to provide appropriate documentation concerning meestiner capacity needs of current contracts. BPZCzncs I. No Assessment o! Effee:ts or _ r a ndfill L fS or Cumulative Immacts. The IS /ND identified that the project would increase the flog of waste going to Newby Island by 11A (i.e., 346 tons /day or 90.011 tons /year) would be added to the 3current waste load of about 2,700 tons /day). That is actually a 144 increase, but the Newby Island facility is permitted f or 3,260 pear average operating day and not more than 4, 000 tons on any one day (from the Permit) . The addition of the Waste from the four citie z will shorten the life of the landfill projected in Table 1 of the IS /ND as 20 years by a corresponding amount (i.e., Cram 29 to 23 years). This will have an impact on the other cities and communities who are using Newby Island as a disposal site, requiring than e waste generators to look for an alternative site earlier than anticipated. If this happens, the earlier use of an alterna- tive site could r"ult in longer hauls for those cities and communities. This issue Was not addressed in the ZS /No. The transfer of the four citie&O disposal site from Guadalupe Landfill to Newby Tala nd would also reduce the waste going to Guadalupe which could then open an opportunity for other municipalities or other waste generator to haul to the Guadalupe site. Depending on Where these waste generators were located, the "freeing" of capacity at the Guadalupe Rita could have either a beneficial or an adverse impact on transportation, air quality and energy use. The whole issue of the change in fill rate, landfill life and cumulative effects. on landfill users was not explored in the =s /ND. 2. Ina elate Analy-Ais of Air Q�ua`y IM cta. The IS /ND contains an analysis of the increased emissions from JUIti. 1c -Cjon , r - FROM : City of Monte Sereno PHONE NO. 408 395 7653 me. Anne Bybee • June 4, 1996 Page 3 the project (transfer of the tour cities haul tree the Increase in haul distance from the point of pick -up to Newby Island Landrill compared to Guadalupe Landfill) . The increase its emissions from the increased haul component was compared to the BAAQIM thresholds for criteria pollutants (p. 26). This analysis is incomplete according to the CEQA Guidelines, since, under Ste_ goaguuin eta ife Resme Coster v, fly of S?taninlau (1994) 27 CA4th 713, 729 -734, 32 CR 704, this consideration of only the increase could be aonsiderad a "curtailed project dencription" or `truncated project concept." The IS /HD should also have considered the total sit emissions of the project resulting from the total transportation requirement for the haul of the tour cities waste to Guadalupe Landfill vs. Newby Island in relation to the wAQM significance thresholds, rather than just the increase component caused by the relocation of haul. In other words, if the air amiscions from the total haul are already significant according to the WAQZW standard, then the increase in haul is, by 'definition, significant, since it boosts a level of emissions which was already significant before-the increase. 3. Rnex=y Use _ IpMetu May Be ynius i timed,. The I9 /ND states that the proposed project would increase the haul distance from residential, commercial and debris box vehicles by a total of 1.061 miles per `real[ yet concludes that this increase is not significant. This increase in haul distance is not put into perspective by being expressed as a fraction of total haul distance for the four cities,' waste haul. Similarly, the Is /ND ,states (p. 29) that the project would result in the consumption of 1.015 gallons of fuel per weak, but that this increase is not significant, "in the context of the overall !ual aonsu ytion associated with this solid waste system" (p. 29). Yet the total amount of fuel consumption associated with the solid waste system is not stated, so the proportion that the project increase represents cannot be computed. In addition, the increase in fuel con- e .d es5091_fi 807 s, I* o I land - nasdWdo Wo2:w WVSS ° 0 1 966 L _e l -9 ..FROM City of Monte Sereno 6 -13 -1996 10:65AM • Ms. Anne Byboa JUN. 1.-). 1770 lU• U7ni'i r PHONE NO. : 408 395 7653 FROM CAMPBELL PUBLIC WKS 408 3760958 June 4, 1996 Page 4 - sumption could possibly be considered Significant in the light of b®ing in conflict with energy conservation objectives, and could be conxIaered to represent a "Wasteful, inefficient and unnecessary aonsu=ption of energy" according to ci=, unless there is a clear, overriding benefit to changing the location of the laadtill for these lour Cities (see ]appendix F to CEQA Guidelines) . Thin putative bwesfit is not made clear in "a Ib /ND. CONCLMON Therefore, the initial study for the proposed negative declaration is inadequate and additional information and /or preparation of a full ExR is necessary. Please provide any responses to comments or further information on this matter to Jim Lord, Guadalupe Rubbish Disposal Company, P.O. Box 208570 San Jose, CA 95160. V�Y urS, NORMAN E. WX Nr NFM:md cc: Jim Lord 0. P. ,d ©©© DAVID J. POWERS ATTACHMENT C:.. Mon_ ® June 7, 1996 MEMO TO: WEST VALLEY CITIES FROM: MICHELLE YESNEY DAVID J. POWERS & ASSOCIATES RE: RESPONSE TO LETTER ON NEGATIVE DECLARATION Attached please find my analysis of the issues raised in the letter from Matteoni, Saxe and Nanda, dated June 4, 1996. Please let me know if you have any questions, or require further clarification. I do not have a clean copy of the letter itself, but I suggest that you attach such a copy of the letter to this document and include it in your Initial Study file for the project. Please let me know if there is any additional assistance I can provide on this matter. c, Environmental Consultants & planners 1885 The Atamoda - Suite 204 - San Jose, CA 95126 - Tel: 408. 248 -3500 - Fax: 408 -248 -9641 7 1;QCo;70n; 'nr? vvd 'nnccu 70 cVUMOJ nTAY11 TkTi QC '7 171 0C_1 _Irnr SUPPLEMENT TO THE INITIAL STUDY/NEGATIVE DECLARATION FOR TAE WEST VALLEY CITIES DISPOSAL SITE A letter was received by the City Clerk of the City of Campbell, dated June 4, 1996, from the firm of Matteoni, Saxe & Nanda (attached). The letter asked certain questions about the analysis done for the above referenced Initial Study. Following are responses to and clarification of the issues raised in that letter. Item: Under "Background ", the letter points out that the landfill capacity numbers in the Initial Study were taken from the CoIWMP'. It also notes that the Newby Island landfill has been the subject of a contract amendment between Browning_.. Ferris Industries (BFI) and the City of San Jose, which was not discussed. The letter suggests that the Initial Study should address the capacity of the site based upon the "most recent and accurate information ", and that this information should be available from BFI and/or the City of San Jose. Response: The numbers in the Initial Study which were taken from the CoIWMP are the most recent and accurate information currently available about the estimated life expectancy (not landfill capacity) of all of the landfills in the County. It should be noted that the "capacity figures" listed in the Initial Study are only daily permitted "gate capacity" figures, or the maximum amount of waste which is allowed to be buried in the landfill on a daily basis. The 1;gtal lifetime "capacity" of a landfill is always subject to interpretation, and figures may vary based on a number of variables and/or assumptions. The five year review of Newby Island landfill referred to in the letter is just beginning. There is no updated Report of Disposal Site Information for Newby Island yet complete. It would be inappropriate to include speculative or hearsay information in this Initial Study that contradicted the CoIWMP, even if such information were available. With regard to the recent contract amendment betwccn BFI and the City of San Jose, the amendment reduced the annual tonnage which San Jose was required to deliver or pay for at Newby Island, and extended the term of•the agreement by four years and nine months. Using the numbers contained in a staff report to the San Jose City Council dated November 21, 1995, the total capacity contractually allocated to the City of San Jose was reduced by the contract amendment by a total of between one and two million tons (actually between 1.16 and 2.01 million tons). That "capacity" could then be considered as available for sale to others. Other recent changes in that city's waste management system have allowed certain commercial waste generators to contract separately for waste collection and disposal. Waste that was being delivered to Newby Island under the City of San Jose's exclusive franchise is now being landfilled independently; probably at least some is going to Guadalupe Landfill. 'County Integrated Waste Management Plan ? 1i,Q00{700; Vy1 C)TIO11 (TTAWI T +.TI tC•7 T1TI f)C_r _unr Landfill life expectancy is a function of the amount of waste that is received, as well as the ultimate capacity allowed by the permit (in other words, how high the landfill mound can be built). Recent analyses done by the City of San Jose Local Enforcement Agency for the California Integrated Waste Management Board concluded that Newby Island is operating within the parameters of its operating permit? This means that the landfill receives less than 4,000 tons on any one day, and less than 3,260 tons per day on an annualized average. If the landfill receives close to their gate capacity, the lif4 expectancy of the landfill will be shorter. According to BFI, almost half of their incoming waste is non - contractual. This means that it comes from a variety of sources and is not a "secured" waste stream it could be redirected by the waste generators to another landfill at anytime. If the incoming waste approaches the landfill's gate capacity, BFI themselves must redirect some of the non - contracted waste to another landfill. All of the most recent information available about waste management and waste disposal practices in the County indicate that available landfill capacity in the County is increasing beyond that anticipated by the CoIWMP, primarily as a result of waste diversion practices. The analysis in the Initial Study therefore reflects an appropriate conservative estimate of landfill life. . Item: The first issue raised under "Specifics" states that no assessment of effects on landfill life or cumulative impacts was done. It is stated that the proposed project would shorten the landfill by exactly the percentage represented by the incoming tonnage. The specific concern is explained as a possibility that if the proposed project shortens the landfill life of Newby Island, this could result in longer hauls for cities and communities using Newby Island. In addition, a concern is expressed that the "freeing" of capacity at Guadalupe could result in other generators using Guadalupe, having either beneficial or adverse impacts, which should be addressed in the Initial Study. Response: This comment invites inappropriate speculation about what might happen in the future (after Newby Island closes, 25 years from now) if the project is approved. What other jurisdictions or private waste generators might do that far into the future; given the recent rate of change in the waste management industry and the current locally abundant landfill capacity, is not something that anyone can predict. Landfill life is generally a function of the amount and type of waste buried in the landfill, how the landfill is operated, how much cover material is used, what compaction is used to process the waste, and so on. Newby Island is currently operating at below their permitted gate capacity. If they receive an amount of waste which is closer to their gate capacity, they will reach the end of the landfill's life faster than would otherwise be the case. The West Valley Cities' waste stream does not include much industrial waste, making it significantly different than some of the more industrial communities in the County which already use Newby Island landfill. Exactly how that would affect landfill capacity differently than other waste delivered to Newby Island is not known. It would not be accurate to state that it would Conversation with Dennis Ferrier, City of San Jose LEA, June 7, 1996. 2 x ? I; 0C 0;70n; '()IT vv.J '1)CCV 70 CvaunJ ni!VI TIT] Ir'•7 7 v.? 0r1 _17n decrease landfill capacity (and therefore landfill life) by exactly the average percentage that it increases the amount of waste coming through the landfill gate on a particular month. As is stated in the Initial Study (page 30), the proposed project would decrease the active life of the landfill at Newby Island and extend the life of the Guadalupe landfill. Guadalupe Landfill, on the other hand, is also operating at well below their permitted gate capacity (917 out of a permitted 3,510 tons per day). The other jurisdictions or waste generators referred to in the letter who might be encouraged to use Guadalupe if the West Valley Cities stopped, could actually deliver their waste there now. It would be inappropriate (and inaccurate) to identify a hypothetical change in other waste delivery patterns as being a result of the proposed project. Many of the requirements of the Waste Management Act of 1989 (A13939) were intended to encourage cities and counties to deal with waste management issues, especially disposal issues, on a regional basis. The CoIWMP and other planning documents which assign disposal capacity on a county-wide basis reinforce this Policy. The Initial Study concludes that the proposed project will not change the amount of disposal capacity available to the region. There my be other incremental shifts of waste hauled to different landfills in the future. It is not possible to predict what those shifts might be. Item: The second issue raised under "Specifics" states that the Initial Study should have considered the air emissions trom the project as being the air emissions from "the total transportation requirement for the haul of the four cities' waste to Guadalupe Landfill vs Newby Island" and compared those total emissions to the significance thresholds. The statement is made that "if the air emissions from the total haul are already significant according to the BAAQMD' standard, then the increase in haul is, by definition, significant...." The letter also refers to a particular court case (San Joaquin Raptor/Wildlife Rescue Center v County of Stanislaus) as support for its position. Response: The air emissions analysis was a good faith effort on the part of the Lead Agencies to identify the additional increment of impact which might accrue from the project. The BAAQMD guidelines for air quality analyses actually allow the use of vehicle trips as a an alternate measure for determining whether or not the thresholds might be exceeded. Using that measure (2,000 trips per day) the project would not have had to prepare an air quality analysis. Since the BAAQMD guidelines did not anticipate such an atypical project as a change in a waste disposal site, additional analysis was considered appropriate to ensure that the change would not cause a significant deterioration in the regional air quality. Because regional air quality already does not meet current regulatory standards, BAAQMD established certain thresholds of significance. This was specifically done to avoid projects having to guess about what constituted a "significant" additional impact to the already existing air quality problems. The air quality emissions which 'Bay Area Air Quality Management District 3 C 1.1 T;OCO{70n� 'nT,r Y Y i * ')nccu 10 C)TJmn� (77 AY(T TAT 0 " •7 Tva OC_1 _T,Tr)r would be generated if the proposed project were approved was found to be less than - one -sixth of those thresholds. Another recent court case found that project impacts must make a "considerable" addition to cumulative impacts before a project warranted preparation of an EIR.' This reinforced existing CEQA Guidelines language which states that an EIR must be prepared if the project would have "cumulatively considerable" impacts, when considered in conjunction with past, current and probable future projects [§15065(c)]. The Initial Study concluded that the results of the proposed project would P-ol constitute a considerable addition to the local or regional air quality nonattainment conditions. With regard to the statement in the letter that considering only the increased vehicle travel distances constitutes a "curtailed project description ", insisting that the four cities need to look at the total waste haul distance (which would result in a change in the project definition) seems to imply that the cities could choose not to continue to collect garbage. The Initial Study specifically states that there is no intention to change the garbage collection system (page 6) other than minor revisions (page 29). The CEQA Guidelines define "project" as the "whole of an action which has a potential for resulting in a physical change in the environment, directly or ultimatoly "; it also statcs that project `refers to the aetivity which is being approved and which may be subject to several discretionary approvals by governmental agencies. The term `project' does not mean each separate governmental approval." There is no intention here of curtailing the project by omitting or overlooking part of the result of this discretionary action, or of omitting or overlooking other discretionary approvals or other governmental agencies' approvals. The total project which is being considered for approval by the Lead Agencies is the change in disposal site from Guadalupe to Newby Island. There are no other discretionary actions known to the Lead Agencies to be necessary for this project to occur, and there are no other actions contemplated by the Lead Agencies themselves. The Initial Study identifies all of the changes in the physical environment which are considered likely to occur if this project is approved. The Lead Agencies do not agree that the project should be redefined to include the entire waste collection system; that definition would mislead the public as to the action contemplated, and the analysis would not accurately evaluate the true impact of the proposed discretionary action. Item: The letter asks that the increased haul distance (3,061 miles per week) be compared to the total haul distance for the four cities' waste in order to'evaluate whether or not the increase is significance. The letter points out that the increased fuel consumption is also not compared to the total fuel consumption, which would allow the significance of the proportional increase to be evaluated. It is stated that the increased fuel consumption might be in conflict with energy conservation objectives and could be considered a "wasteful, inefficient and unnecessary consumption of energy" unless there is a "clear overriding benefit ". 4San Joaquin Raptor/Wildlife Rescue Center v County of Stanislaus, (1996) Fifth District Court of Appeal. This is a different San Joaquin Raptor decision than the one cited in the letter. 4 0 J T ;OCO;70n; 'MT V11 nncCV 10 CV70n,1 nr vn TIT CC•7 T1TJ 0C_1 _Vnr Response: The waste hauler was not required to provide information on the total miles traveled or the total fuel consumption for the four cities' total waste collection and hauling System. It is not possible, therefore, to compare the total system numbcrs. The conclusion of nonsignificance in the Initial Study was based on the size of the increased mileage compared to the general size and scope of the overall system. The waste collection and hauling system provides services for four cities, and collects waste on a weekly basis from approximately 29,250 households, over 5,000 commercial bins (some accounts have more than one bin) and 126 debris boxes. In that context, the additional 33.3 miles per existing truck shift' per week was not considered to be a significant increase. The issue of whether or not the increased fuel consumption is wasteful and unnecessary must be decided by the four cities in the context of determining the most efficient overall design of their solid waste management system. Allocation of resources and the determination of what is or is not wasteful or unnecessary, including the selection of the appropriate disposal site, is a subjective judgment. The quotation in the letter cites Appendix P. of the CEQA Guidelines, which are suggestions for how to write an energy analysis in an EIR. There is no requirement in CEQA for establishing an overriding benefit for a project evaluated in an Initial Study. The letter raises a number of questions.regarding the analysis in the Initial Study. None of the questions raise issues not addressed in the Initial Study, nor is there any information provided which would conflict with the conclusions reached in the Negative Declaration. 'A truck shift was defined in the Initial Study as a truck and a driver working a full shift. i .J i;QPQ{7on; 'or vyi 'nt)ccy 19 QVJM()j (71Ayrt U,i1 n;,7 rVJ Qn_1 _Trnr ATTAC MENr E City Council Minutes June 19, 1996 C. Newby Island Landfill Contract City Manager Peacock presented the staff report and noted that Campbell and Monte Sereno had recently taken action similar to the one recommended. WOLFE /MORAN TO APPROVE THE NEGATIVE DECLARATION AND TO AUTHORIZE THE CITY MANAGER TO FINALIZE NEGOTIATIONS AND BRING BACK A RECOMMENDED CONTRACT FOR FINAL APPROVAL BY THE CITY COUNCIL. Peggy O Loughlin, Matteoni Saxe & Nanda law firm, said she was _. representing Guadalupe Rubbish Disposal Co. and Green Valley Disposal. Referring to the letter included as attachment B to the staff report, she asked that Council not approve the negative declaration for the following reasons: • The Initial Study and Negative Declaration (IS /ND) did not assess the effects on landfill life or cumulative impacts. • The IS /ND contained an incomplete analysis of air quality impacts. • The conclusion of non - significance of traffic and energy use impacts may be unjustified. She concluded that the initial study for the proposed negative declaration is inadequate and additional information and /or preparation of a full EIR is necessary. Ms. O Loughlin said she had reviewed the response to the issues. she had raised in the letter and had appeared the night before at Monte Sereno s council meeting and asked them for an opportunity to comment on the report that outlines the economic impacts and cost savings the City can utilize. She said Guadalupe and Green Valley would like to provide the cost information in terms of haul rate difference between Newby and Guadalupe. Councilmember Wolfe and Mayor Jacobs agreed that this is a matter of a difference of opinion between parties and has to do with economics and competition. THE MOTION PASSED 5 -0. Mayor Jacobs returned the agenda to Item 6. 6. PUBLIC HEARINGS A. City of Saratoga Budget, 1996 -97 and 1997 -98 (continued from June 5) 1) Resolution adopting budget 2) Resolution adopting appropriations limit 3) Resolution adding to salary classes and permanent position classifications 4) Resolution authorizing permanent positions 5) Resolution adopting fee schedule r 4 ATTACNMENt WASTE DISPOSAL AGREEMENT Between INTERNATIONAL DISPOSAL CORPORATION OF CALIFORNIA, INC. THE CITY OF and TABLE OF CONTENTS I. DEFINITIONS .......................... ..............................1 A. Adjustment Date ................... ............................... 1 B. Analysis Period ..................... ..............................1 C. As ............................... ..............................2 D. Base Rate ................ ..............................2 E. Biomedical Waste ................... ..............................2 F. CITY .............................. .............................2. G. Debris Box ......................... ..............................2 H. IDQ .............................. ..............................2 I. City _Franchise Area .................. ..............................2 J. City Representative ................. ............................... 2 K. Contract Gate Rate .................. ............................... 3 L. Designated Hauler ................... ............................... 3 M. Disposal FaciliV .................... ..............................3 N. Effective Date ....................... ..............................3 0. Fee Component ...................... ..............................3 P. Franchised Solid Waste ............... ............................... 3 Q. Hazardous Substance . ................ ..............................4 R. Hazardous Waste .................... ..............................4 S. Newby Island Landfill . .............. ............................... 4 T. Recyclable Materials ................. ..............................4 U. Recycling . ......................... ..............................4 V. Rubbish ........... ............................... .............4 W. Self- Hauled Solid Waste .............. ............................... 4 X. Solid Waste ........................ ..............................5 Y. Ton ............................... ..............................5 Z. Yard Waste ......................... ..............................5 EFFECTIVE DATE, TERM OF MI_ NT. EARLY TERMINATION AND OPTION T1 EXTEND A. Effective D. C. Option to Extend D. Notice of •n • • CONDITIONS 1 EFFECTIVENESS OF _ M N!_ • of ; • •n 3. Delivery of GugmM of •AMC; u•_..• • 4. Effectiveness • _ Resolution B. Conditions to CONTRACTOR'S Obligation to Perform . ................... 7 v 1. Accuracy of Representations . ................................... 7 IV. OBLIGATIONS OF CITY ................ ..............................7 A. Household Hazardous Waste Programs . . ............................... 7 B. Exclusive Agreement Option . ......... ............................... 8 V. OBLIGATIONS OF CONTRACTOR ....... ............................... 8 A. Receipt of Franchised Solid Waste ...... ............................... 8 1. Notice of Negotiations for New Disposal Quantities ................. 8 Notice of Claims ................... ............................... a. Notice ................. ..............................9 D. 2. Unavailability of Disposal Facilities ............................. 9 3. Weigh Tags Issued for All Vehicles ............................ 10 2. Disposition of Hazardous Waste . ............................... a. Dump Cycle Times Monitored by Parties .................. 11 4. 14- Minute Dump Cycle Time .. ............................... 11 5. CONTRACTOR'S Collection of Franchised Solid Waste from 1. Maintenance of Scale Systems .. ............................... Unincorporated Santa Clara County (District 3) ................... 11 6. Monthly Report of Tons Disposed .............................. 12 7. Debris Box Storage Area at Newby Island Landfill ................ 12 8. Service Standards: Liquidated Damages for Failure to Meet Standards H. VI. AUTHORIZED DISPOSAL FEES ........ ............................... 17 A. General . ........................... .............................17 B. Contract Gate Rate . ................ ............................... 18 1. Base Rate . ................... .............................18 2. Fee Component ................ .............................19 C. Notification of Adjustment to Base Rate .............................. 19 1. Adjustment Dates ............................................ 19 2. Analysis Period ............... .............................19 .. ............................... ......................13 B. Permits for Use of Disposal Facilities . ............................... 14 C. Notice of Claims ................... ............................... 14 D. Disposition of Unauthorized Wastes . ................................. 14 1. Procedures for Identification .... ............................... 14 2. Disposition of Hazardous Waste . ............................... 15 E. Days and Hours of Operation ......... ............................... 15 F. Weighing ........................... .............................15 1. Maintenance of Scale Systems .. ............................... 15 2.. Establishment and Maintenance of Vehicles' Tare Weights .......... 16 .3. Scale Operations ............ ............................... 16 G. Si ns .............................. .............................16 H. Site Access ........................ .............................16 I. ecords :........................... .............................17 J. Inspection of Operations ............ ............................... 17 K. Labor Force: ...................... .............................17 L. No Preference ....................... .............................17 VI. AUTHORIZED DISPOSAL FEES ........ ............................... 17 A. General . ........................... .............................17 B. Contract Gate Rate . ................ ............................... 18 1. Base Rate . ................... .............................18 2. Fee Component ................ .............................19 C. Notification of Adjustment to Base Rate .............................. 19 1. Adjustment Dates ............................................ 19 2. Analysis Period ............... .............................19 VII. EXCLUSIVE AGREEMENT OPTION .... ............................... 26 A. Obligation to Direct Waste to the Disposal Facility ....................... 26 B. No Limit on Source Reduction ......... .............................26 C. Enforcement of Franchise Agreement Against Designated Hauler. .......... 27 VIII. BILLING AND PAYMENT PROCEDURE . ............................... 27 A. Invoices ............................ .............................27 B. Delinquency Period ................... .............................27 C. Non - payment ........................ .............................27 D. City Not Liable for Payment of Disposal Fees ............................ 28 IX. BOOKS AND RECORDS . ............... ............................... 28 X. COMPILATION OF INFORMATION FOR STATE LAW PURPOSES ........ 28 XI. DESIGNATED HAULERS .............. ............................... 28 A. Requirement to Comply with Laws . ... ............................... 28 B. Inspection of Records . .......................... ................. 28 3. Notices of Adjustments . ...... ............................... 20 4. Arbitration ................... .............................20 D. CPI Increases ...................... :............................20 E. Allowable Cost Increases . ........... ............................... 21 1. Costs Not Allowable .......... ............................... 21 2. Allowable Costs . ............ ............................... 22 a. Change -in -Law Operations. Improvements or Modifications. 22 b. Change -in -Law Closure/Post- Closure Costs . ............... 22 3. Mandatory Procedure for Allowable Costs ........:............... 22 a. Notice to CITY ........ ............................... 22 b. Proposed Method to City ............. ................ 22 C. Proposed Method to Regulatory Agency ................... 23 d. Implement Compliance Method ......................... 23 4. Method of Allocating Allowable Costs . ......................... 23 a. Use of GAAP: Allowance of Interest on Capital Costs........ 23 b. Calculation of Per Ton Costs . ........................... 23 C. Amortization of Allowable Costs ......................... 24 d. Interest on Actual Past Costs . ........................... 24 F. Reiaulatory Cost Decreases ........... ............................... 25 G. Costs for Additional Services ......................................... 25 1. CITY'S Written Request ....... ............................... 25 2. CONTRACTOR'S Estimates . .. ............................... 25 3. Meet and Confer: Method of Agreement and Acceptance............ 26 H. Recycling Credit ..................... .............................26 VII. EXCLUSIVE AGREEMENT OPTION .... ............................... 26 A. Obligation to Direct Waste to the Disposal Facility ....................... 26 B. No Limit on Source Reduction ......... .............................26 C. Enforcement of Franchise Agreement Against Designated Hauler. .......... 27 VIII. BILLING AND PAYMENT PROCEDURE . ............................... 27 A. Invoices ............................ .............................27 B. Delinquency Period ................... .............................27 C. Non - payment ........................ .............................27 D. City Not Liable for Payment of Disposal Fees ............................ 28 IX. BOOKS AND RECORDS . ............... ............................... 28 X. COMPILATION OF INFORMATION FOR STATE LAW PURPOSES ........ 28 XI. DESIGNATED HAULERS .............. ............................... 28 A. Requirement to Comply with Laws . ... ............................... 28 B. Inspection of Records . .......................... ................. 28 XII. INDEMNITY AND INSURANCE ......... ............................... 29 A. Basic Indemnification ............... ............................... 29 B. Hazardous Substance Indemnification . . ............................... 29 C. No Indemnity Where Hazardous Waste Programs Not In Effect ............. 30 D. No Rights or Benefits. Etc. Regarding- Designated Hauler .................. 30 E. Indemnification Procedure . .......... ............................... 31 1. Notice and Cooperation. Etc .... ............................... 31 2. CONTRACTOR'S Option to Assume Defense . ................... 31 . F. Types and Amount of Insurance Coverage .............. , .............. 31 XIII. RIGHT TO DEMAND ASSURANCES OF PERFORMANCE ................ 32 A. Reasonable Assurances Generally . .... ............................... 32 XIV. COMPLIANCE WITH LAW ............. ............................... 32 XV. REPRESENTATIONS AND WARRANTIES OF CONTRACTOR ............ 33 A. Corporate Status . .................................................. 33 B. Corporate Authorization ............. ............................... 33 C. Status of Disposal Facility .......... ............................... 33 D. Agreement Will Not Cause Breach ..... ............................... 33 E. No Pending Litigation ............... ............................... 34 F. Notification of Material Changes . ..... ............................... 34 XVI. REPRESENTATIONS AND WARRANTIES OF CITY ...................... 34 A. Status .............................. .............................34 B. Corporate Authorization ............. ............................... 34 C. Agreement Will Not Cause Breach ..... ............................... 34 D. No Pending Liti ag tion .............. ............................... 34 XVII. RELATIONSHIP OF PARTIES .......... ............................... 35 XVIII. SUCCESSORS AND ASSIGNS . ......... ............................... 35 A. Assignment by CONTRACTOR . ..... ............................... 36 1. Assignment Defined . ......... ............................... 36 2. Permitted Assignments ........ ............................... 36 3. Consent Requirements . ........ ............................... 36 a. Reasonable Expenses ... ............................... 36 b. Financial Statements .... ............................... 37 C. Experience .............. .............................37 d. Other Information ..... ............................... 37 B. Assignm ntby CITY . ................ .............................37 C. Assignment Not a Release . .......... ............................... 37 XIX. REPRESENTATIVES OF THE PARTIES . ............................... 38 A. Representatives of CITY ............. ............................... 38 B. Representatives of CONTRACTOR .... ............................... 38 XX. NOTICES .................. ..... ........................... .........38 A. If to CONTRACTOR ............... ............................... 39 B. If to CITY ......................... .............................39 XXI. WAIVER . ............................... .............................40 XXII. OVERRIDING FEDERAL AND STATE LAWS ........................... 40 XXIII. CITY'S DEFAULT ............. ............................... ..... 40 A. Default Defined .................... ............................... 40 B. Cure ............................... .............................40 C. Right to Terminate Upon Default ...... ............................... 41 D. CONTRACTOR'S Remedies Cumulative . ............................. 41 XXIV. DEFAULT BY CONTRACTOR ......... ............................... 41 A. CONTRACTOR Default . ........... ............................... 41 B. Cure ............................... .............................42 1. Failure to Accept Franchised Solid Waste . ....................... 42 2. Any Other Breach ............ ............................... 42 C. CITY'S Right to Terminate Performance Upon Default .................... 43 D. CITY'S Remedies Cumulative; Specific Performance ..................... 43 E. Dispute Resolution . ................ ............................... 43 XXV. FORCE MAJEURE. ............................................. 43 XXVI. PARTIES IN INTEREST . ......... ............................... 44 XXVII. DUTY OF CONTRACTOR NOT TO DISCRIMINATE ................ 44 XXVIII. OBLIGATIONS SURVIVING TERMINATION ...................... 44 XXIX. APPLICABLE LAW . ............. ............................... 44 XXX. JURISDICTION .................... .............................44 XXXI. TIME OF THE ESSENCE .......... ............................... 45 XXXII. EXHIBITS.... ..................... .............................45 XXXIII. ENTIRETY ...................... ............................... 45 XXXIV. ADVICE OF COUNSELINEGOTIATED AGREEMENT . ............. 45 XXXV. HEADINGS ....................... .............................45 XXXVI. TIME PERIODS ................................................. 46 XXXVII. SEVERABILITY . .................. .............................46 XXXVIII. AMENDMENT .................... .............................47 This Agreement may be amended or modified only by written agreement duly authorized by CONTRACTOR and CITY Council and executed by their authorized representatives. WASTE DISPOSAL AGREEMENT This Agreement ( "Agreement ") is made and entered into as of 1996, by and between the CITY OF , a municipal corporation organized under the laws of the State of California (hereinafter "CITY ") and INTERNATIONAL DISPOSAL CORPORATION OF CALIFORNIA, INC., a California corporation (hereinafter "IDC "). IDC shall be referred to in this Agreement as "CONTRACTOR," and CITY and CONTRACTOR shall be referred to collectively as the "Parties." Other defined terms used herein are defined in the Definitions or upon the first appearance of said term. Recitals WHEREAS, CITY desires to make adequate provision for the final disposition of solid wastes collected within its incorporated limits to protect the public health, safety and well- being; WHEREAS, CITY is acting under clearly articulated and affirmatively expressed policies of the State of California empowering cities to regulate the final disposition of solid wastes under powers expressly granted to cities in Article XI, Section 7, of the California Constitution, and pursuant to Sections 40057, 40059, and 49200 of the California Public Resources Code; and WHEREAS, IDC owns and operates a waste Disposal Facility known as the Newby Island Sanitary Landfill located in the City of San Jose, California (the "Newby Island Landfill "); WHEREAS, the City Council of the CITY has found and determined that the public health, safety and well -being of the City will be preserved and protected by the execution of this Agreement, by ensuring the availability of a suitable site for the disposal of solid waste on a long -term basis. Agreement NOW, THEREFORE, in consideration of the foregoing recitals and of the mutual promises, covenants and conditions herein, the Parties agree as follows: I. DEFINITIONS A. Adjustment Date. "Adjustment Date" shall have the meaning set forth in Section VI.C.1. B. Analysis Period "Analysis Period" shall have the meaning set forth in Section VI., C. 2. IDC Waste Disposal Contract Page 2 C. Ash "Ash" means the material remaining after incineration of Municipal Solid Waste, including bottom ash and fly ash. "Ash" does not include ashes from residential burning, such as fireplaces, barbecues, etc. D. Base Rate. "Base Rate" shall have the meaning set forth in Section VI.B. E. Biomedical Waste `Biomedical Waste" means Waste which may be reasonably considered infectious, pathological or biohazardous, originating from hospitals, public or private medical clinics, dental offices, departments of 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, including all wastes which constitute "Infectious Waste" as defined Health and Safety Code Section 25117.5, and "Medical Waste" as defined in California Health and Safety Code Section 25023.2, or the regulations promulgated thereunder, as amended from time to time. F. CITY. "CITY" means the City of Campbell, Los Gatos, Monte Sereno, Saratoga or the unincorporated area of Santa Clara County currently referred to as District 3, which is a municipal corporation, and includes all of the territory lying within its boundaries as presently existing or as such boundaries may be modified during the Term of this Agreement. G. Debris Box. "Debris Box" means a roll -off Solid Waste container used to collect, construction debris and similar materials. H. IDC. "IDC" shall have the meaning set forth in the Recitals. I. City Franchise Area. "City Franchise Area" means and includes all the territory lying within the boundaries of the CITY as it is presently constituted and as may be added later by annexation. J. City Representative. "City Representative" means the Solid Waste Program Manager for the Cities of Campbell, Monte Sereno and Saratoga, and the Town of Los Gatos, or such other designated employee(s). IDC Waste Disposal Contract Page 3 K. Contract Gate Rate. "Contract Gate Rate" shall have the meaning set forth in Section VI.A.B. L. Designated Hauler. "Designated Hauler" means an entity operating under a franchise agreement or contract with CITY to collect and transport Solid Waste generated within the City or by CITY. M. Disposal Facility "Disposal Facility" means the site known as the Newby Island Landfill, San Jose, California, Solid Waste Facility Permit Number 43 -AN -003, located at 1601 Dixon Landing Road, in the City of San Jose, California, and currently authorized to receive Solid Waste for disposal under applicable laws and regulations of the State of California. "Disposal Facility" may also refer to whichever alternate facility is designated by CONTRACTOR as the Disposal Facility under this Agreement pursuant to Section V.A.2. N. Effective Date. "Effective Date" means the first date of the Term of this Agreement, as set forth in Section II below. 0. Fee Component. "Fee Component" shall mean the portion of the Contract Gate Rate defined as the "Fee Component" in Section VI.B.2. P. Franchised Solid Waste. "Franchised Solid Waste" shall mean all Solid Waste produced, generated, or accumulated in the City Franchise Area, other than (1) Self Hauled Solid Waste, and (2) Solid Waste collected by a person or entity and hauled directly to a transfer site or disposal site where such collection is incidental to the principal business of such person or entity (i.e. by means of trucks, drop boxes or roll -off containers owned or operated by self- haulers such as landscapers, tree services, bulky item haulers, and construction debris self - haulers). Franchised Solid Waste also means all substances or materials that are discarded or rejected as being spent, useless, worthless or in excess of the owner's needs at the time of discard or rejection including, without limitation, all putrescible and non - putrescible solid and semi -solid Waste including Garbage, Rubbish, Yard Waste, bulky wastes, industrial wastes, demolition and construction wastes, and other activities which are not otherwise restricted in Class 3 landfills by State or Federal regulations for the disposal site. Franchised Solid Waste does not include: (1) Hazardous Waste; (2) Biomedical Waste; (3) Ash; (4) materials which are not set out or otherwise offered for collection by Waste generators; or (5) Recyclable Materials which are source JAN--:10-97 FRI 13:18 MEYERS,NAVE,RIBACK &SILV. IDC Waste Disposal Contract FAX NU. 51U 3bl 44bi W- 1 Page 4 separated by the Waste generator or segregated for recycling, including Yard Waste. Q. Hazardous Substance. "Hazardous Substance" or "Hazardous Substances" means all substances defined as hazardous substances under Title 42 of the United States Code, Section 9601(14), Section 25316 of the California Health and Safety Code, or the regulations promulgated under such statutes, as amended from time to time. R. Hazardous Waste. "Hazardous Waste" or "Hazardous Wastes" means all substances defined as hazardous waste under Title 42 of the United States Code, Section 6903(5). Section 25117 of the California Health and Safety Code, or the regulations promulgated under such statutes, as amended from time to time. S. Newby Island Landfill. "Newby Island Landfill" shall have the meaning set forth in the Recitals. T. Recyclable Materials. "Recyclable Materials" means any franchised solid waste materials pulled out of the Solid Waste stream, prior to placement in the landfill, including domestic, commercial or industrial by- products of some potential value which are set aside, handled, packaged or offered for collection in a manner different from Garbage, Rubbish or other forms of Municipal Solid Waste. "Recyclable Materials" shall mean to include those items so defined in CITY's Municipal Code, as it may be amended from time to time. U. Recyclina. "Recycling" means the process of collecting, sorting, cleaning, treating or reconstituting Solid Waste materials prior to placement in the landfill, and recovering them so that they may be used in the form of raw material for new, reused or reconstituted products. V. Rubbish. "Rubbish" means all waste wood, wood products, printed materials, paper, pasteboard, rags, straw, used and discarded clothing, packaging materials, ashes from residential burning, floor sweepings, glass, and other Waste materials not included in the definition of (Jarbage, Hazardous Waste, or Yard Waste. "Rubbish" shall also include those items so defined in CITY'S Municipal code, as it may from time to time be amended. W. Self - Hauled Solid Waste. "Self - Hauled Solid Waste" means Solid Waste hauled directly to a transfer site or a disposal site by the person or entity generating the waste. JAN -10 -97 FRI 13:18 MEYERS,NAVE,RIBACK &S1LV. FHA NU. 51U 351 4461 IDC Waste Disposal Contract Page 5 X. Solid Waste. "Solid Waste" or "Solid Wastes" means solid waste as-defined in California Public Resources Code Section 40191 and regulations promulgated thereunder, as amended from time to time, with the exception of: (1) Hazardous Waste, Low -Level Radioactive Waste, Biomedical Waste, wastewater treatment byproducts such as sewage sludge, and special wastes requiring special handling which CONTRACTOR or Disposal Facility is not permitted to accept, and (2) any materials collected by curbside residential Recycling collection programs or commercial Recycling programs where such materials are not disposed of but are actually Recycled. Notwithstanding any provision to the contrary, "Solid Waste" may include & minimis volumes or concentrations of Hazardous Substances (as that term is defined in 42 U.S.C. Section 9601(14)) of a type and amount normally found in residential solid waste after implementation of programs for the safe collection, recycling, treatment and disposal of household hazardous waste in compliance with Sections 41500 and 41802 of the California Public Resources Code. Y. Ton. "Ton" means a short ton of 2,000 pounds avoirdupois. Z. Yard Waste. "Yard Waste" means plant debris, including tree trimmings, grass cuttings, dead plants, leaves, branches and dead trees, and similar organic materials. H. EFFECTIVE DATF. TERM OF A 'REEMFENT, EARLY TIAMINATION AND OPTION TO EXTEND A. Effectivc Date This Agreement is made as of (the "Effective Date "). B. Ted. Subject to the early termination provisions set forth in this Agreement and to the satisfaction of the conditions set forth in Section III, the term of this Agreement (the "Term ") shall begin on , 1996, (the "Effective Date ") and shall end on February 28, 2003. C. 012tiou to Extend. CITY, at CITY'S sole option, may cA.-tend this Agreement using two five -year extensions. CITY. at CITY'S sole option, may provide to CONTRACTOR a written notice that CITY has exercised its option to extend this Agreement using the first of two five -year extensions (March 1, 2003, through February 28, 2008), or both five -yeas extensions (March 1, 2003, through February 28, 2013). CITY agrees to give CONTRACTOR at least 120 days JAN-10-97 FRI 13:19 MEYERS,NAVE,RIBACK &SILV IDC Waste Disposal Contract FAX NO 510 ; !D! 4401 i Page 6 notice prior to termination date to extend this Agreement, whether for five or ten years. The date when this Agreement expires, depending on whether CITY elects one or both options to extend this Agreement, shall be the "Termination Date ". If the term of this Agreement is extended, the same terms and conditions as contained in this Agreement and any amendments thereto shall apply. D. Notice of Termination. If CITY has not elected to enter into an exclusive disposal agreement with CONTRACTOR pursuant to SECTION VII, then CITY has a right to cancel this agreement before the termination date. CITY agrees to give CONTRACTOR 90 days notice prior to termination. Such notice shall not apply in event of CONTRACTOR default (Section XXIV). In the event the City elects to enter into an exclusive disposal agreement with CONTRACTOR, neither CITY nor CONTRACTOR shall have the right to give such notice of termination. IYI. CONDITIONS TO EFFECTIVIEN_ESS OF AGREEMENT A. Conditions to CITY'S Obli tion to Perform. The obligation of CITY to perform under this Agreement is subject to the satisfaction of each and every one of the conditions set forth below, each of which may be waived in whole or in part by CITY. Waivers are limited to those expressed in writing, and are in the sole and exclusive discretion of CITY. 1. Accuracy of Representations. The representations and warranties made by CONTRACTOR in Section XV of this Agreement shall be true and correct as of the Effective Date and shall remain true and correct through the Termination Date. 2. Furnishing of Insurance. IDC shall have delivered to CITY the insurance policies and endorsements required by Section XII and described in detail in Exhibi 3. Delivga of Guaran ty of CONTRACTOR'S Performance. IDC's parent company, Browning -Ferris Industries, Inc. ( "BFI "), shall have delivered to CITY a fully executed Exhibit B as a guaranty of CONTRAC'TOR'S performance under this Agreement. JAN -10-97 FRI 13:19 MEYERS,NAVE,RIBACK &S1LV. FAX NO. 51u �5i 44b1 IDC Waste Disposal Contract Page 7 4. Effectiveness of Resolution: C'.ITY's Resolution No. shall have become effective pursuant to California law prior to the Effective Date. This Section III.A is not intended to prevent CITY from seeking to employ other remedies in the event a representation or warranty by CONTRACTOR is later discovered not to be true and correct or to waive any rights stemming from failure by CONTRACTOR to perform any obligation under this Agreement. B. Conditions to C'ONTRACTOR'S Obligation to Perform. The obligation of CONTRACTOR to perform under this Agreement is subject to the satisfaction of each and every one of the conditions set forth below, which may be waived in whole or in part by CONTRACTOR. Waivers are limited to those expressed in writing, and are in the sole and exclusive discretion of CONIRACTOR 1. Accuracy of Representations. The representations and warranties made by CITY in Section XVI of this Agreement shall be true and correct as of the Effective Date and shall remain true and correct through the Termination Date. This Section III.B. is not intended to prevent CONTRACTOR from seeking to employ other remedies in the event a representation or warranty by CITY is later discovered not to be true and correct or to waive any rights stemming from the failure by CITY to perform any obligation under this Agreement. IV. OBLIGATIONS OF CITY Subject to the terms and conditions of this Agreement, CITY shall have the following obligations: A. Household Hazardous Waste Progmms. CITY shall ensure and so certifies that there is in effect a program for the safe collection, Recycling, treatment and/or disposal of Hazardous Wastes generated in households, in accordance with law. CITY has adopted programs and policies designed to exclude the introduction of Hazardous Waste into the ordinary waste stream. These programs and policies are described in Exhibit C of this Agreement. CITY shall maintain and modify, revise or update these programs and policies as specified by state and federal requirements. CITY shall maintain these programs and policies in effect and will use good faith efforts to implement them, to enforce their use by the Designated Hauler, and to encourage their use by CITY residents. IDC Waste Disposal Contract Page 8 delivered to the designated Disposal Facility. The disposition of unauthorized Hazardous Waste is described in Section V.D. B. Exclusive Agreement Option. City may elect to enter into an exclusive disposal agreement with CONTRACTOR for the remaining term of this Agreement, including any optional extension periods which may thereafter be exercised by CITY. CITY shall make such election by serving written notice on CONTRACTOR unequivocally assuming the additional obligations set forth in Section VII of this Agreement. On the next business day following CONTRACTOR'S receipt of such written notice, and for the remaining term of this Agreement: (a) CITY shall be bound by the additional terms and covenants set forth in Section VII; and (b) the Base Rate in effect on such date shall be reduced by $1.10 per ton and shall thereafter be subject to adjustment as specified in Section VI. The adjustment periods in Section VI.C.1. shall not be affected by the timing of CITY'S election and the next percentage CPI increase shall be applied to the Base Rate pro rata from the date the exclusive option is in effect. V. OBLIGATIONS OF CONTRACTOR Commencing on the Effective Date and continuing for the remainder of the Term, subject to the terms and conditions of this Agreement, CONTRACTOR shall have the following obligations: A. Receipt of Franchised Solid Waste. CONTRACTOR shall receive, accept, and safely and lawfully dispose of, at the Disposal Facility any or all Franchised Solid Waste delivered by CITY, or its Designated Hauler, to the Disposal Facility. CONTRACTOR covenants that no Franchised Solid Waste delivered by CITY or its Designated Hauler shall be landfilled anywhere except at the Newby Island Landfill unless agreed to in writing by CITY prior to such disposal or as provided in Section V.A.2 below. Nothing in this Agreement shall obligate CONTRACTOR to perform materials recovery or processing of recyclable materials or Recycling at the Disposal Facility, unless the Parties subsequently agree thereon in a written instrument pursuant to Section VI.G. 1. Notice of Negotiations for New Disposal Quantities Until such time as CITY elects to be bound by the additional obligations set forth in Section VII of this Agreement, CONTRACTOR agrees to give CITY written notice (as described more fully in subsection (a) below) when CONTRACTOR has made a rate quotation to an existing or potential customer which would reasonably result in the Newby Island Landfill JAN -10 -97 FRI 13:19 MEYERS,NAVE,RIBAOK &S1LV. IDC Waste Disposal Contract FAX N0. b10 .i51 44e i r . uu; ; � Page 9 CONTRACTOR has made a rate quotation to an existing or potential customer which would reasonably result in the Newby Island Landfill accepting increased amounts of Solid Waste which could cause the Newby Island Landfill to become unable to accept all of the CITY'S Solid Waste fqr the Term of this Agreement. If, during the month in which the notice is delivered to CITY, CITY is disposing of all of its residential and compacted commercial Solid Waste at the Newby Island Landfill, then CITY shall have ninety (90) calendar days from the date of such notice to elect to commit its waste stream to the Newby Island Landfill by assuming the additional obligations in Section VII. If, during the month in which the notice is delivered to CITY, CITY is not disposing of all of its residential and compacted commercial Solid Waste at the Newby Island Landfill, then CITY shall have only thirty (30) business days from the date of such notice to elect to commit its wastestream to the Newby Island Landfill by assuming the additional obligations in Section VII. If CITY fails to elect to make a waste stream commitment to CONTRACTOR and assume the obligations set forth in Section VII within the applicable above - described time period, CONTRACTOR shall have no obligation thereafter to send additional notices to CITY and shall have no obligation thereafter to reserve any landfill capacity to accept CITY'S Solid Waste for any portion of the remaining Term of this Agreement. Notice. The Notice described in this section shall be delivered by CONTRACTOR to CITY whenever CONTRACTOR first (after the date of execution of this Agreement) provides a written rate quotation to an existing or potential customer which could result in the Newby Island Landfill accepting increased amounts of Solid Waste for the Term of this Agreement. The Notice should state that a written rate proposal, with provisions similar to those outlined in SECTION VII of this Agreement in terms of volume and duration of the Agreement as well as level of commitment from the customer, has been made to a potential customer which could reasonably cause the Newby Island Landfill to become unable to accept all of the CITY'S Solid Waste for the Term of this Agreement. CITY will maintain as confidential the identity of the existing or potential customer. JAN- 10 -97 FR I 13:20 MEYERS, NAVE, R I BACK &S I LV. FAX NU. 510 351 44d i IDC 'Waste Disposal Contract i u .� Page 10 2. Unavailability of -Disposal Facilities. If the Newby Island Landfill (or any alternative Disposal Facility hereafter designated by CONTRACTOR pursuant to this Section) is unavailable for disposal of CITY'S Franchised. Solid Waste, after CITY has elected to make a waste stream commitment to CONTRACTOR and assumed the obligations set forth in Section VU, for reasons which do not constitute a Force Majeure event pursuant to Seetion XXV below, CONTRACTOR shall provide for disposal of CITY'S Franchised Solid Waste at an alternate disposal facility at a total cost equal to the Base Rate, currently in effect as described in Section VT.R., which would have been charged in accordance with the terms of this Agreement for disposal at the Newby Island Landfill and any incremental costs of hauling its Franchised Solid Waste to the.alternative disposal facility designated pursuant to this Section. The amount of the Fee Component shall be based on the factors defined in Section VLB1 for the alternate disposal facility. The provisions of this Agreement shall continue in full force and effect notwithstanding such event. For reference purposes, effective July 1, 1996, the Fee Component for jurisdictions disposing at the Vasco Road Landfill in Alameda County is $11.24 per ton, and effective July 1, 1996, the Fee Component for jurisdictions disposing at Altamont Landfill in Alameda County is $11.24 per ton. The individual fee amounts which comprise the Fee Component are subject to change, based on legislative action by federal, state or local jurisdictions. In the event the disposal facility in use at the time becomes unavailable,CIT'Y reserves the right to direct Franchised Solid Waste, or any portion thereof, elsewhere. 3. Weigh Tags Issued for All Vehicles: Upon CITY'S election to direct Franchised Solid Waste to the Disposal Facility, CONTRACTOR shall generate a weigh tag using CONTRACTOR'S computerized scale prior to disposal for each and all vehicles disposing of Franchised Solid Waste by Designated Hauler. Each weigh tag shall contain specific information for each vehicle load, including: date, time entered scale, weigh ticket number, vehicle number, if available, vehicle type, (compacted, roll -off, or compacted roll -off), vehicle capacity, Debris Box number if available, and capacity (based on current computerized entry), the CITY from which the vehicle's load was generated or picked up, the driver's name when possible, and net weights. Gross and tare weights are available upon request. All weigh tags shall be signed by the Designated Hauler's JAN -10 -97 FRI 13:20 MEYERS,NAVE,RIBACK &SILV, hAX NU. 51U 36i 4401 IDC Waste Disposal Contract Page 11 driver /collector prior to driver /collector exiting the Disposal Facility scales. a. Dump Cycic Times Monitored by Parties: CONIRACTOR agrees to weigh each and all vehicles disposing of Franchised Solid Waste by Designated Hauler prior to disposal (incoming vehicles) and immediately following disposal (outgoing vehicles) and to issue weigh tags following disposal during six (6) one -week periods every twelve (12) months. CITY will advise CONTRACTOR by written notice of the dates selected fourteen (14) calendar days in advance of the start date for this procedure. CONTRACTOR shall provide copies of all documentation compiled to City Representative within twenty -one (2l ) days of completion of the survey, or other date agreed to by City Representative. 4. l 4- Minute Dump Cycle Time: CONTRACTOR will use its best efforts to ensure that all vehicles disposing of Franchised Solid Waste by Designated Hauler will complete the dumping cycle within fourteen minutes and either be at the scale as an outgoing load or exiting without prior scaling, as directed by CITY. This fourteen - minute timeframe is based on the results of a dump cycle survey conducted by CONTRACTOR during the week of March 25- 30,1996, and provided by William Schrccder, Browning -Ferris Industries, in correspondence dated May 1, 1996, indicating such timeframe. A copy of this letter is attached and is made a pan of this contract. For purposes of this Section, "dumping cycle" shall mean to include the actual time the driver criers Newby Island Landfill, based on the time shown on the actual weigh tag, to the actual time the driver left the Disposal Facility, based on the time shown on the actual weigh tag (pursuant to Section 'V.A.3.2.), and if not indicated on the weigh tag, then based on the computer log. Nothing in this section shall be construed as entitling CITY or its Designated Hauler to any damages, compensation or reduced contract gate rate in the event that the dumping cycle for vehicles exceeds fourteen minutes. CONTRACTOR'S Collection of Franchised Solid Was ex from 1 ] nincorporated Santa Clara Counly (District 3): CONTRACTOR acknowledges that the Designated Hauler currently collects Franchised Solid Waste from unincorporated areas located near CITY and that Franchised Solid Waste generated by CITY is commingled with IDC Waste Disposal Contract Page 12 referred to as District 3). CONTRACTOR agrees to accept and properly and safely dispose of Franchised Solid Waste generated within District 3 which is commingled with the CITY'S Franchised Solid Waste and delivered to CONTRACTOR during those periods, in which CONTRACTOR is obligated under this Agreement to accept CITY'S . Franchised Solid Waste. CITY shall agree with the jurisdictional breakdown provided by the Designated Hauler as a basis of payment for commingled loads. CONTRACTOR shall have the right to observe and review CITY'S or Designated Hauler's jurisdictional breakdown methods and operation. As long as City and County, use the same Designated Hauler, that Designated Hauler shall be responsible for the jurisdictional breakdown of commingled loads and all disposal fees due CONTRACTOR for Franchised Solid Waste delivered by its Designated Hauler to the Disposal Facility. 6. Monthly Report of Tons Disposed: CONTRACTOR shall prepare and forward to City Representative a report of each and all loads delivered by Designated Hauler. The report shall contain the data specified in Section V.A.3, and shall be submitted within ten (10) days of the end of the close of each month. A report of tons disposed by service type (compacted, roll - off, compacted roll -off) is also required on the same due date. 7. Debris Box Storage Area at Newby Island Landfill: CONTRACTOR agrees to provide a sufficient storage area for twelve (12) debris boxes at Newby Island Landfill which is conveniently located for the Designated Hauler to drop off and pick up empty Debris Boxes at the discretion of the Designated Hauler. The purpose of the storage area is to optimize efficient Debris Box services for the Designated Hauler by exchanging a Debris Box after it was emptied for another. CONTRACTOR shall ensure that the storage area is sited on an all- weather pad/access which is developed and maintained year -round by CONTRACTOR. The Debris Boxes placed at the designated storage site shall only be for accounts located in CITY. CITY acknowledges that the storage of bins is subject to environmental compliance, safety and operational requirements at Newby Island Landfill. CONTRACTOR agrees to allow the Designated Hauler two (2) hours to empty a Debris Box which was not emptied prior to placement at the storage site and may charge a fee of $200 per Debris Box to empty and return it to the storage site. CITY agrees that the Base Rate IDC Waste Disposal Contract Page 13 shall be increased by an additional $0.10 per ton during the period in which the Debris Box Storage Area is utilized by Designated Hauler. 8. Service Standards: Liquidated Damages for Failure to Meet Standards: CONTRACTOR and City acknowledge that consistent, reliable disposal services is of utmost importance to CITY and that CITY has considered and relied on CONTRACTOR's representations as to its quality of service commitment in awarding this Agreement to it. The parties further recognize that quantified standards of performance are necessary and appropriate to ensure consistent and reliable service. The parties further recognize that if CONTRACTOR fails to achieve the performance standards, or fails to submit required documents in a timely manner, CITY and its residents will suffer damages and that it is and will be impracticable and extremely difficult to ascertain and determine the exact amount of damages which CITY will suffer. Therefore, without prejudice to CITY'S right to treat such non - performance as an event of default, CONTRACTOR and CITY agree that the following liquidated damage amounts represent a reasonable estimate of the amount of such damages considering all of the circumstances existing on the date of this Agreement, including the relationship of the sums to the range of harm to CITY that reasonably could be anticipated and the anticipation that proof of actual damages would be costly or inconvenient. In placing their initials at the places provided, each party specifically confirms the accuracy of the statements made above and the fact that each party had ample opportunity to consult with legal counsel and obtain an explanation of this liquidated damage provision at the time that this Agreement was made. CONTRACTOR CITY Initial Here: Initial Here: CONTRACTOR agrees to pay (as liquidated damages and not as a penalty) the amount set forth below. CONTRACTOR shall deduct this amount from the next invoice submitted by CONTRACTOR. CONTRACTOR agrees that the reports required to be submitted to CITY by this Agreement may be used as self - monitoring for purposes of calculating liquidated damages, subject to CITY review and adjustment, and that such reports shall be prepared to the best of CONTRACTOR'S ability and shall be submitted under penalty of perjury, signed by CONTRACTOR'S executive officer. JAN -10 -97 FRI 13:20 MEYERS,NAVE,RIBACK &SILV. IDC Waste Disposal Contract FAX NU. bIU 351 401 r.uo Timeliness of Submissions to CITY For each failure to submit reports and other related requisite documents on the date required: (reference Section V, Obligations of CONTRACTOR; Section VI, Authorized Disposal Fees; Section 'VIII, Billing and Payment Procedure. Completeness of Submissions to _CITY For each failure to submit a substantially complete report (reference the same Sections as listed immediately above in "Timeliness of Submissions to CITY ") Page 14 $100.00 for each day the report is late $100.00 for each occurrence, and until a substantially complete report is submitted B. Permits for Use nf Disposal Facilities Throughout the Term, CONTRACTOR shall, at its sole expense keep in force all existing permits and approvals from governmental authorities necessary for CONTRACTOR'S performance under this Agreement and any laws or regulations applicable to the Disposal Facility. CONTRACTOR shall file with City Represcntative a true and correct copy, certified by the granting agency, of each permit, license or approval. A good faith contest of any requirement of a permit, license or approval necessary for the operation of the Disposal Facility shall not excuse CONTRACTOR'S noncompliance with such requirement. C. Notice of Claims. CONTRACTOR covenants that it shall provide reasonably prompt notice to CITY, but in no event later than sixty (60) days after CONTRACTOR is put on notice of such claim, if at any time a claim is asserted or threatened to be asserted which CONTRACTOR reasonably believes is likely to impair its ability to perform its obligations under this Agreement. D. Disposition of Unauthorized Writes. Procedures for Identification. CONTRACTOR shall implement reasonable procedures consistent with industry practices at the time to identify and reject waste materials delivered to the Disposal Facility which are Hazardous Wastes, or which otherwise may not be legally accepted at IDC Waste Disposal Contract Page 15 identify and reject waste materials delivered to the Disposal Facility which are Hazardous Wastes, or which otherwise may not be legally accepted at the Disposal Facility under its permits and other applicable governmental regulations then in effect. CONTRACTOR shall implement such procedures in a uniform and non - discriminatory manner as applied to waste materials delivered to the Disposal Facility from CITY and from all other sources. 2. Disposition of Hazardous Waste. CONTRACTOR may refuse to accept wastes either in part or whole load delivered by CITY'S Designated Hauler if they constitute Hazardous Waste or otherwise may not be legally accepted at the Disposal Facility. In such event, CONTRACTOR shall have no further responsibility for disposition of such unaccepted wastes. CONTRACTOR shall lawfully dispose of any Hazardous Wastes discovered after acceptance at the Disposal Facility. In no event shall CITY have responsibility for the cost of disposition of any Hazardous Wastes that may be delivered to the Disposal Facility, except that: (a) if CITY itself knowingly hauls or causes to be delivered Hazardous Waste generated by CITY to the Disposal Facility, it shall be responsible for the costs of disposing of any such Hazardous Waste; and (b) if CITY fails to substantially comply with the obligation set forth in Section IV.A, CITY shall be responsible for the cost of disposing of any unauthorized Hazardous Waste collected within the City and delivered to the Disposal Facility during the time of such noncompliance. E. Days and Hours of Operation. CONTRACTOR shall comply with all conditions in all permits in effect from time to time regarding days and hours of operation. CONTRACTOR'S current operating permit (issued February 7, 1989), specifies that the Newby Island Landfill is open 24 hours per day, opening at 3:00.a.m., Monday through closing at 4:00 p.m. on Saturday and is closed on the fourth Thursday of November, December 25 and January 1. If any of these terms change, CONTRACTOR shall notify CITY and Designated Hauler in writing as soon as possible, and a minimum of ninety (90) days in advance of any proposed change. A copy of CONTRACTOR'S operating permit is attached and is made a part of this contract. F. Weighing. Maintenance of Scale Systems. CONTRACTOR shall comply with all conditions in all permits in effect from time to time regarding weighing IDC Waste Disposal Contract Page 16 and operation of scales. CONTRACTOR shall maintain scale certification with the California Department of Food and Agriculture, Division of Measurement Standards. 2. Establishment and Maintenance of Vehicles' Tare Weights. CONTRACTOR shall promptly weigh each vehicle-driven to the Disposal Facility by the Designated Hauler, as they become available at the Disposal Facility to determine its loaded and unloaded ( "tare ") weight. The tare weight of each vehicle and each Debris Box shall be recorded by CONTRACTOR along with the corresponding vehicle or box number. CONTRACTOR shall provide CITY with such information within ten (10) days after request. When additional or replacement vehicles or Debris Boxes are placed into service by Designated Hauler, CONTRACTOR shall promptly weigh such vehicles or Debris Boxes as they become available at the Disposal Facility. All weighing shall be conducted in accordance with CONTRACTOR'S standard procedures, a copy of which shall be supplied to City Representative. 3. Scale Operations. A scale at the tollgate entrance shall be operational at all times, regardless of emergency circumstances. The first contingency back -up is an on -site generator and the second is a manual scale. If neither contingency is available, CONTRACTOR shall base net weight on volumetric conversions provided by City of San Jose. CONTRACTOR agrees to a 48 -hour time limit per incident to employ either contingency. G. Sins: At CONTRACTOR'S sole expense, CONTRACTOR shall prominently post signs at the entrance to the Disposal Facility detailing the regulations which must be followed by vehicles entering the site, indicating the hours of operation, the types of Solid Waste or recyclable materials accepted, the fees for disposal and for Recycling, and a local telephone number to call for information in case of emergency. H. Site Access: CONTRACTOR shall construct and maintain all roads running in . and on the Disposal Facility as shall be reasonable under the circumstances, from the end of the public access road to the point designated for the dumping of materials. A smooth surface within the dumping area shall be maintained properly to assist vehicles in their dumping operations. CONTRACTOR shall IDC Waste Disposal Contract Page 17 designate an area immediately adjacent to an all- weather road for dumping during periods of inclement weather. CONTRACTOR shall maintain such inclement weather site and shall construct and maintain an all- weather access road to such site. CONTRACTOR shall not be responsible for any expense or inconvenience incurred by the Designated Hauler as a result of construction along the public access road. If delay occurs, CONTRACTOR and Designated Hauler shall make every effort to arrange emergency scheduling. Records: CONTRACTOR shall maintain records on a daily and cumulative monthly basis for each and all loads delivered by the Designated Hauler. City Representative shall have the right to inspect such records and the record keeping procedures at any time during normal business hours, provided that such review does not interfere with the work being performed. J. Inspection of Operations: City Representative shall have the right but not the obligation to observe and review CONTRACTOR'S operations and enter CONTRACTOR'S premises at the Disposal Facility for the purpose of such observation and review during normal operating hours, subject to reasonable notice. This provision does not give CITY any right to exercise control over the business or operations of CONTRACTOR or to direct in any respect the manner in which the business and operations shall be conducted. K. Labor Force: CONTRACTOR shall employ only such 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 in a safe manner, consistent with all applicable federal, state and local laws and regulations. L. No Preference: CONTRACTOR shall give no preference or priority of treatment over Designated Hauler to any other persons bringing wastes to the Disposal Facility. VI. AUTHORIZED DISPOSAL FEES A. General. In consideration of the right to charge and collect Disposal Fees in the amounts and on the terms set forth in this Agreement, CONTRACTOR shall perform all of its responsibilities and duties under this Agreement, including but IDC Waste Disposal Contract Page 18 not limited to paying the costs associated with: (1) complying with all Applicable Laws (as defined in Section VI.E.1 below), (2) complying with all Legal Requirements, as required by Section X1V, except to the extent such costs are attributable to a Change in Law pursuant to Section VLE'.2 below, (3) operations at its Disposal Facility, and (4) closure, post - closure maintenance, and remediation at its Disposal Facility. During the Term, these disposal fees will be in the form of a Contract Gate Rate charged on each ton of Franchised Solid Waste received at the Disposal Facility. No fee shall be payed to CONTRACTOR until such time as CITY disposes of some or all of its refuse at CONTRACTOR's Disposal Facility. The payments provided for in this Section VI, are the full, entire, and complete compensation due to CONTRACTOR for furnishing all labor, equipment, materials and supplies and other things necessary to perform the services required by this Agreement in the manner and at the time prescribed, and fulfilling all of its obligations under this Agreement. Such payments shall include all costs for the items mentioned above and also for all taxes, insurance, bonds, overhead, profit and all other costs necessary to perform the services in accordance with this Agreement. B. Contract Gate Rate. The Contract Gate Rate will consist of two components: (1) the proprietary rate for disposal of Franchised Solid Waste at the Newby Island Landfill (the "Base Rate "); and (2) the total of taxes and fees assessed to the Newby Island Landfill solely for disposal purposes related to the waste operation at the Disposal Facility (the "Fee Component "). The initial Contract Gate Rate will be $34.49 per ton, which fee is effective from July 1, 1996, through June 30, 1997. The Contract Gate Rate may not be increased during the Term, except under the following circumstances: the Base Rate may be adjusted for CPI Increases as authorized under Section VI.D. below, for Allowable Cost Increases as provided in Section VI.E. below, and for use of the Debris Box Storage Area as provided in Section V.A.7, and for additional services requested by CITY, as provided in Section VLG below; and the Fee Component may be adjusted to reflect changes in taxes and fees assessed at the Newby Island Landfill, as provided in Section VI.B.2 below. 1. Base Rate. The initial Base Rate shall be $17.85 per ton, which fee is effective from July 1, 1996, through June 30, 1997, for Franchised Solid Waste received at the Disposal Facility. Following any adjustment IDC Waste Disposal Contract Page 19 - authorized pursuant to Sections VLD, E, G or V.A.7 below, or the one- time reduction described in Section IV.B., the new Base Rate shall become the Base Rate for all Franchised Solid Waste received at the Disposal Facility on and after the Adjustment Date until the next subsequent Adjustment Date, as provided in Section VLC below. 2. Fee Component. The Fee Component shall be based on a per ton charge consisting of the total of. (a) all per ton franchise fees, regulatory fees, mitigation fees, surcharges and taxes assessed by any governmental entity on Solid Wastes received at the Newby Island Landfill; and (b) a dollar amount per ton calculated by taking the total of all of the surcharges and taxes not assessed on a per ton basis (except for ad valorem real property taxes) which are assessed on the Newby Island Landfill (including fees on gross receipts and license fees) and dividing that amount by the number of disposed tons of Solid Waste received at the Newby Island Landfill during the Analysis Period, as defined in Section VI.C.2. The Fee Component, which shall be in effect from July 1, 1996, through June 30, 1997, will be $16.64 a ton. Fees and taxes that will make up the Fee Component as of the Effective Date are listed in Exhibit D hereto. CONTRACTOR may immediately adjust the Fee Component whenever any franchise fees, regulatory fees, mitigation fees, surcharges and taxes relating to the Newby Island Landfill are imposed or increased. CONTRACTOR shall immediately adjust the Fee Component whenever such fees are decreased or eliminated. Such Notification of Adjustment shall detail the existing amount of the Fee Component, the basis for the pro rated share and the additional fee per ton due CONTRACTOR. CONTRACTOR shall notify CITY in writing at least thirty (30) days in advance of any increase in the Contract Gate Rate due to changes in fees, surcharges or taxes. C. Notification of Adjustment to Base Rate. 1. Adjustment Dates. The first Adjustment Date ( "Adjustment Date ") shall be on July 1, 1997, and each subsequent Adjustment Date shall be on July 1 of each succeeding year. Increases in the Base Rate due to CPI Increases and Allowable Cost Increases shall become effective on each Adjustment Date. 2. Analysis Period This term shall mean to include the timeframe since the last rate adjustment was calculated, as provided for in Section Vl., D. IDC Waste Disposal Contract Page 20 Notices of Adjustments. On or before March 1 of each year of this Agreement, beginning in 1997, in which an annual adjustment is to be made, CONTRACTOR shall submit to City Representative a Rate Adjustment Statement setting forth the existing Base Rate, the applicable index values, the percentage change in the applicable indices, the calculation of the annual adjustment, the new base rate, the Fee Component, and the resulting Contract Gate Rate. Within forty-five (45) days of CONTRACTOR'S submittal of the Rate Adjustment Statement to CITY, City Representative shall notify CONTRACTOR of any exceptions to the Rate Adjustment Statement. If CITY does not submit written exceptions to the Rate Adjustment Statement within said forty-five (45) days, CITY shall be deemed to have accepted the Rate Adjustment Statement submitted by CONTRACTOR. Unless a later date is justified by exceptional circumstances, if CONTRACTOR does not submit its complete rate adjustment request by March 1, then no consideration of a rate adjustment shall be made, and no rate adjustment shall be instituted for the forthcoming fiscal year. 4. Arbitration. All disputes arising under Section Vl, shall be referred to binding arbitration. The arbitrator shall be selected and the arbitration conducted in accordance with the procedures set forth in Exhibit F. CITY shall pay only the undisputed portion of the increased disposal fee until the arbitrator has rendered a final decision. If CONTRACTOR prevails in the arbitration as to all or any portion of the disputed portion of the increased disposal fees, CITY shall pay to CONTRACTOR within thirty (30) days after the arbitration award, the total amount of the unpaid disposal fees upheld by the arbitration, retroactive to the Adjustment Date in question, plus interest thereon at the prime rate pursuant to Section VLEA.a. D. CPI Increases. The Base Rate in effect on the date preceding any Adjustment Date may be adjusted upward or downward on each Adjustment Date. The annual adjustment shall be a percentage of the compensation payable based on one - hundred percent (100 %) of the annual December -to- December percentage change in the Consumer Price Index for All Urban Consumers (National CPI -U), in accordance with the following formula: Net percentage change = [V(I) - V(I- 1))/V(I -1) Where: V(I) = Index value for the first December immediately preceding the effective date of the adjustment and IDC Waste Disposal Contract Page 21 V(I -1) = Index value for the second December immediately preceding the effective date of the adjustment Example: For the July 1, 1997, adjustment, V(I) = the index for December 1996, and V(I -1) = index for December 1995. The indices used shall be those published by the United States Department of Labor, Bureau of Labor Statistics. Should any such index be discontinued, a successor index shall be used. Successor indices shall be those indices which are most closely equivalent to the discontinued indices as recommended by the United States Department of Labor, Bureau of Labor Statistics. Should any such index not be published for December, the adjustment shall be calculated using the index values of the Novembers immediately preceding the Decembers contemplated by this Agreement. Annual service rate adjustments shall be made only in units of one cent ($0.01). Fractions less than one cent ($0.01) shall not be considered in making adjustments. The indices shall be truncated at four (4) decimal places for the adjustment calculations. No annual increase or decrease in the Base Rate shall exceed five percent (5 %) of the compensation in effect as of the Effective Date, after the first Adjustment Date has occurred, or as of the most recent Adjustment Date. The aggregate increase or decrease through February 28, 2003, shall not exceed thirty-five percent (35 %) of the compensation for the base rate in effect upon commencement of CITY'S directing some or all of its Franchised Solid Waste to the Disposal Facility. In the event the term of this Agreement is extended pursuant to Section II.A., for an additional five- or ten -year term, the aggregate increase or decrease for a Base Rate over the term of the extension of this Agreement shall not exceed twenty - five percent (25 %), or fifty percent (50 %), respectively. E. Allowable Cost Increases. Certain costs which increase CONTRACTOR'S cost of providing service under this Agreement shall be allowed as adjustments to the Base Rate, but only to the extent provided in Section VLE.2 below. 1. Costs Not Allowable. The Contract Gate Rate to be in effect as of the Effective Date includes costs associated with complying with all existing laws and governmental regulations applicable to the Newby Island Landfill as of the Effective Date, including existing provisions, if any, which become effective on or which require compliance by a date after the IDC Waste Disposal Contract Page 22 Effective Date, and also including existing written interpretive rulings or guidance by public agencies ( "Applicable Laws "). CONTRACTOR shall be responsible for any Disposal Fee increase as a result of the costs of compliance enumerated in Exhibit E, attached. 2. Allowable Costs. If and only to the extent the following costs are necessary to comply with changes to Applicable Laws, or with new laws and new governmental regulations (including new written interpretive guidelines by public agencies interpreting existing Applicable Laws) enacted or promulgated after the Effective Date (collectively, "Change in Law "), they shall be Allowable Costs justifying a proportionate increase in the Base Rate as specified in Section VLEA below: a. Change -in -Law Operations. Improvements or Modifications. Incremental operating, maintenance, monitoring, reporting and capital costs, including but not limited to the costs of making improvements (including, but not limited to future landfill cells) or modifications, at the Disposal Facility necessary to perform under this Agreement, but only to the extent brought about by a Change in Law. b. Change -in -Law Closure/Post- Closure Costs. Incremental costs of performing closure and post - closure and closure and post - closure monitoring at the Disposal Facility, but only to the extent brought about by a Change in Law. 3. Mandatory Procedure for Allowable Costs. CONTRACTOR must follow the procedure in this Section VLE.3 before the Contract Gate Rate will be increased to reflect Allowable Costs. a. Notice to CITY. CONTRACTOR shall give CITY prompt notice of the Change in Law, specifically identifying such Change (and providing a copy of the official text of such Change) and describing what changes or modifications to operations at the Disposal Facility are required, when compliance is required, and whether CONTRACTOR or the Disposal Facility is eligible for any exemptions or variances. b. Proposed Method to City CONTRACTOR shall thereafter submit to CITY its proposed method for complying with the regulations, IDC Waste Disposal Contract Page 23 the estimated cost of compliance, and the associated increase in the Disposal Fee for CITY as its proportionate share. C. Proposed Method to Regulatory Agency CONTRACTOR shall submit its proposed method of compliance to the appropriate regulatory agency. If the agency approves that method without conditions, the proportionate share of the cost of that method of compliance will'be the amount by which the Disposal Fee may be increased. d. Implement Compliance Method If CONTRACTOR'S method is not approved, CONTRACTOR will implement the method of compliance which is approved by the regulatory agency. The proportionate share of the cost of that method of compliance will be the amount by which the Disposal Fee may be increased. 4. Method of Allocating Allowable Costs. a. Use of GAAP: Allowance of Interest on Capital Costs. Allowable Costs shall be allocated as expenses or capital expenditures as determined using generally accepted accounting principles. If the costs are determined to be allocated as capital expenditures, such costs shall be spread over a number of years in accordance with generally accepted accounting principles, together with interest thereon based on CONTRACTOR'S actual cost of funds, not to exceed the prime rate, as posted daily in the "Money Markets" section of the Wall Street Journal. In the event that this prime rate is discontinued, the contingent rate that shall be used will be the prime rate (base), as published in the Barron's Money Market column of Barron's Weekly. The prime rate shall be determined by calculating an average annualized prime rate using each Friday's rate over a fiscal year period. b. Calculation of Per Ton Costs. The per Ton increase due to Allowable Costs shall be determined as follows: (1) Estimates of Increases. As of the beginning of each Adjustment Date, CONTRACTOR shall estimate the per - ton increase, if any, in all Allowable Costs which would pertain at such Date, including in such estimate both: (a) those Allowable Costs which are to be imposed or incurred IDC Waste Disposal Contract Page 24 on a per -Ton basis; and (b) those Allowable Costs which are to be imposed on or incurred by the Disposal Facility as a whole which must be computed by dividing such Allowable Costs by the total number of tons of Solid Waste received at the Disposal Facility from all sources during the preceding Analysis Period. The resulting dollar amount per ton. shall be added to the Base Rate in effect during the prior Analysis Period. The sum of these two amounts together with any applicable CPI Increase shall become the new Base Rate effective on the upcoming Adjustment Date. (2) Post - Adjustment Audits by CITY. CITY shall have the right to inspect the books and records of CONTRACTOR at any time following any Adjustment Date to determine whether CONTRACTOR has actually incurred the amounts of Allowable Costs previously estimated. (3) Adjustments of Estimated Costs. If the estimated amounts are determined, as a result of an audit or otherwise, to be greater than or less than costs actually incurred during a given period, then CONTRACTOR shall make an appropriate adjustment in the Base Rate, provided that no such adjustment shall be made for any prior costs imposed or incurred more than three years prior to any such adjustment. C. Amortization of Allowable Costs. If Allowable Costs incurred by CONTRACTOR are amortized over more than one year, the increase resulting therefrom in the Base Rate shall be repealed at the end of such amortization period. The repeal shall not affect other increases resulting from Allowable Costs which were not so amortized. d. Interest on Actual Past Costs. To compensate CONTRACTOR for any increases applicable under this Section VLEA for those years or portions thereof which have elapsed prior to the Adjustment Date when the new Base Rate becomes effective, but after the Effective Date, the new Base Rate shall also include a component for such prior Allowable Costs, plus simple interest, commencing on the first day following the day on which Allowable Costs were IDC Waste Disposal Contract Page 25 paid and ending on the Adjustment Date, at CONTRACTOR'S actual cost of funds, not to exceed the prime rate, as posted daily in the "Money Markets" section of the Wall Street Journal. In the event that this prime rate is discontinued, the contingent rate that shall be used will be the prime rate (base), as published in the Barron's Money Market column of Barron's Weekly. In the event the aforementioned index is no longer in existence, the reference rate from another primary dealer of the federal reserve system shall be used as agreed upon by the parties. The prime rate shall be determined by calculating an average annualized prime rate using each Friday's rate over a fiscal year period. F. Regulatory Cost Decreases. Any existing costs directly incurred because of compliance with regulatory requirements that are eliminated in the future will result in a proportionate reduction of the Base Rate. CONTRACTOR shall notify CITY immediately in writing of any such change, resulting in an immediate, proportionate reduction in the Base Rate. G. Costs for Additional Services. CITY may from time to time during the Term request that CONTRACTOR perform additional services for CITY where such services are necessary to enable CITY to meet its obligations under applicable federal, state and local Solid Waste laws. CONTRACTOR hereby covenants to offer to provide such services to CITY at a commercially reasonable price, providing for recoupment of CONTRACTOR'S costs of providing such services, plus a reasonable profit, and consistent with the range of prices charged by CONTRACTOR or its affiliates to other entities for the same or similar services. CONTRACTOR shall not be obligated to provide such services to CITY unless the Parties reach mutual agreement on the price for such services. The agreed rate to be charged by CONTRACTOR for such services may be added to the Base Rate, or, if appropriate, billed as a lump sum one -time additional fee (to perform a survey or waste composition analyses, for example), as follows: 1. CITY'S Written Request. CITY must submit to CONTRACTOR a written request for additional services, with sufficient detail to allow CONTRACTOR to estimate the additional costs to CONTRACTOR to perform such services ( "Request for Additional Services "). 2. CONTRACTOR'S Estimates. Within thirty (30) days after receipt of a Request for Additional Services, CONTRACTOR shall provide to CITY a written estimate of the commercially reasonable price of performing such additional services, with a detailed breakdown of the components of IDC Waste Disposal Contract Page 26 CONTRACTOR'S costs. The estimate shall include the amount by which the Contract Gate Rate would be increased as a result of such additional services, or the lump sum fee for additional services. 3. Meet and Confer: Method of Agreement and Acceptance. The Parties shall meet and .confer in good faith in an effort to reach agreement on the terms and conditions for CONTRACTOR'S providing such services. If CITY agrees that the cost estimate is commercially reasonable, CITY may deliver a written acceptance to CONTRACTOR ( "Notice of Acceptance "), and CONTRACTOR shall implement such additional services and increase the Contract Gate Rate accordingly, or charge the agreed -upon lump sum once services have been performed. H. Recvcling Credit. CONTRACTOR may elect, in its sole discretion, to recover Recyclable Materials from CITY's Franchised Solid Waste delivered to Newby Island Landfill. Should CONTRACTOR do so, CITY shall receive an amount equal to the product of the following formula: (the Contract Gate Rate applicable to such recovered material plus the revenues received by CONTRACTOR from any sale of such recovered materials minus CONTRACTOR's cost to recover, process, ship, sell, and administer the recovery of the Recyclable Materials) multiplied by five percent (5 %). Diversion and monetary credit for recyclables obtained through a recovery program at the Newby Island Landfill will be provided on a pro -rata share basis of CITY's tonnage in relation to the total tonnage entering the facility for the fiscal year period.. VII. EXCLUSIVE AGREEMENT OPTION If CITY elects to enter into an exclusive disposal agreement with CONTRACTOR pursuant to Section IV.B., the following terms and covenants in this Section shall become part of this Agreement for the remaining term hereof: A. Obligation to Direct Waste to the Disposal Facility. CITY shall deliver (or delegate to its Designated Hauler the obligation to deliver) all Franchised Solid Wastes to the Disposal Facility designated by CONTRACTOR. B. No Limit on Source Reduction. CITY anticipates that it will continue to develop and participate in source- reduction, resource recovery and Recycling programs within its jurisdiction which are likely over time to reduce the amount of Franchised Solid Waste. Nothing in this Agreement shall restrict CITY from any such activities. JAN -10 -97 FRI 13:21 MEYERS,NAVE,RIBACK &S1LV. FAA NU. 510 Sot 44UL IDC Waste Disposal Contract Page 27 C. Enforcement of Franchise AgreemenL4P-rainst Designated Hauler. CITY shall take all reasonable steps to enforce its franchise or license agreements with its Designated Hauler to ensure that the Designated Hauler complies with requirements imposed by CITY pursuant to this Agreement to deliver Franchised Solid Waste to CONTRACTOR. VIII. ULLING AND PAXMFNT PR ( .DURE A. Invoices. By the tenth day of each month, CONTRACTOR shall submit to the Designated Hauler invoices for the Contract Gate Rate covering Franchised Solid Waste delivered to the Disposal Facility during the prior month. Each invoice shall be accompanied by a report showing the following information: date and hour of each delivery; vehicle identification number; bin identification number for each Debris Box; quantities of tons (net tons), Contract Gate Rate per ton; and cost per load. A copy of the invoice and report shall be sent to the City Manager and City Representative, regardless of who receives the original invoice. B. Delinquency period. CONTRACTOR'S invoices shall be deemed delinquent if not paid within thirty (30) days of the date thereof, and may thereafter, at CONTRACTOR'S election, bear interest on the unpaid balance at a rate not to exceed one percent (1 %) per month. CONTRACTOR'S invoices may include a provision that the Designated Hauler pay CONTRACTOR'S reasonable attorneys' fees and costs if CONTRACTOR is the prevailing parry in any suit against the Designated Hauler to collect the unpaid balance on any delinquent invoices. C. Non naymen_t. If the Designated Hauler fails to pay any invoice for fifty (50) days from the date thereof, then CONTRACTOR may, on ten (10) days written notice to such company, require that the Designated Hauler pay the Contract Gate Rate COD ( "Cash on Delivery") on delivery of Franchised Solid Waste to CONTRACTOR. CONTRACTOR shall promptly provide a copy of such notice to the City Manager and City Representative if deliveries from its Designated Hauler are placed on a COD basis. If CITY'S Designated Hauler does not thereafter bring its account with CONTRACTOR current within the next thirty (30) days after the Designated Hauler is placed on COD, then CONTRACTOR shall be entitled to refuse all further deliveries of all Solid Waste from the Designated Hauler until all unpaid and outstanding invoices to the Designated Hauler from CONTRACTOR have been paid in full. IDC Waste Disposal Contract Page 27 C. Enforcement of Franchise Agreement Against Designated Hauler. CITY shall take all reasonable steps to enforce its franchise or license agreements with its Designated Hauler to ensure that the Designated Hauler complies with requirements imposed by CITY pursuant to this Agreement to deliver Franchised Solid Waste to CONTRACTOR. VIII. BILLING AND PAYMENT PROCEDURE A. Invoices. By the tenth day of each month, CONTRACTOR shall submit to the Designated Hauler invoices for the Contract Gate Rate covering Franchised Solid Waste delivered to the Disposal Facility during the prior month. Each invoice shall be accompanied by a report showing the following information: date and hour of each delivery; vehicle identification number; bin identification number for each Debris Box; quantities of tons (gross weight, tare weight, and net tons), Contract Gate Rate per ton; and cost per load. A copy of the invoice and report shall be sent to the City Manager and City Representative, regardless of who receives the original invoice. B. Delinquency Period. CONTRACTOR'S invoices shall be deemed delinquent if not paid within thirty (30) days of the date thereof, and may thereafter, at CONTRACTOR'S election, bear interest on the unpaid balance at a rate not to exceed one percent (1 %) per month. CONTRACTOR'S invoices may include a provision that the Designated Hauler pay CONTRACTOR'S reasonable attorneys' fees and costs if CONTRACTOR is the prevailing party in any suit against the Designated Hauler to collect the unpaid balance on any delinquent invoices. - C. Non =payment. If the Designated Hauler fails to pay any invoice for fifty (50) days from the date thereof, then CONTRACTOR may, on ten (10) days written notice to such company, require that the Designated Hauler pay the Contract Gate Rate COD ( "Cash on Delivery") on delivery of Franchised Solid Waste to CONTRACTOR. CONTRACTOR shall promptly provide a copy of such notice to the City Manager and City Representative if deliveries from its Designated Hauler are placed on a COD basis. If CITY'S Designated Hauler does not thereafter bring its account with CONTRACTOR current within the next thirty (30) days after the Designated Hauler is placed on COD, then CONTRACTOR shall be entitled to refuse all further deliveries of all Solid Waste from the Designated Hauler until all unpaid and outstanding invoices to the Designated Hauler from CONTRACTOR have been paid in full. IDC Waste Disposal Contract Page 28 D. City Not Liable for Payment of Disposal Fees. The Parties acknowledge that CITY may not generally physically deliver Solid Waste to the Disposal Facility, that such deliveries may generally be carried out by one or more Designated Haulers, and that in such event the Disposal Fees will be paid by the Designated Hauler. CONTRACTOR will not look to CITY for payment of the Disposal Fees for Franchised Solid Waste actually delivered by a Designated Hauler, unless CITY hereafter agrees in writing to guarantee the payment of such Disposal Fees. IX. BOOKS AND RECORDS. Books and records relating to the total amount of monthly tonnage received from CITY, and the composition of costs claimed by CONTRACTOR as a basis for an increase in the Contract Gate Rate shall be maintained by CONTRACTOR. CITY'S designated agent may audit and inspect such books and records to the extent and for the sole purpose of ascertaining the correct amount of monthly bills and increased Contract Gate Rate when claimed by CONTRACTOR. This right to audit and inspect books and records shall be effective for a period of two years following the Termination Date during regular work hours and upon reasonable notice by CITY. X. COMPILATION OF INFORMATION FOR STATE LAW PURPOSES CONTRACTOR shall compile information on amounts of Solid Waste delivered to the Disposal Facility which CITY may reasonably request in order to meet its obligations under the California Integrated Waste Management Act, as it may be from time to time amended. XI. DESIGNATED HAULERS A. Requirement to Comply with Laws. CITY shall require that any Designated Hauler entering the designated Disposal Facility comply with all federal, state and local health and safety regulations, including any reasonable work or safety rules which have been promulgated by CONTRACTOR to govern operations of the Disposal Facility. Vehicles or persons found not to be in compliance may be denied entry to or removed from the Disposal Facility. B. Inspection of Records. If CITY'S Designated Hauler also disposes of Solid Wastes at the Disposal Facility collected from within another jurisdiction that is not a party to a similar agreement with CONTRACTOR providing for the same IDC Waste Disposal Contract Page 29 Contract Gate Rate as granted to CITY pursuant to this Agreement, then CITY shall require that such Designated Hauler provide CONTRACTOR or its agents the right to inspect the books and records of such Designated Hauler for the limited purpose of determining that Solid Wastes collected from within such other jurisdiction are not being disposed of at the Disposal Facility at the Contract Gate Rate granted CITY pursuant to this Agreement. If CITY obtains such records, CITY shall provide CONTRACTOR with the results of its review thereof. XII. INDEMNITY AND INSURANCE A. Basic Indemnification. IDC shall indemnify, defend and hold harmless CITY, its officers, employees and agents, from and against any and all loss, liability, penalty, forfeiture, claim, demand, action, proceeding or suit, of any and every kind and description, whether judicial, quasi-judicial or administrative in nature including, but not limited to, injury to or death of any person and damage to property or for contribution or indemnity claimed by third parties (collectively, the "Claims ") and attorneys' fees and costs incurred by defending such claims, arising out of or caused in any way by, directly or indirectly, (1) its performance of, or failure to perform, its obligations under this Agreement, including but not limited to failure to comply with Applicable Laws or Legal Requirements (as defined in Section XMI), or breach of its representations and warranties set forth in this Agreement, provided that such damages do not arise out of negligence or intentional misconduct of CITY. CONTRACTOR'S duty to indemnify and defend shall survive the expiration or earlier termination of this Agreement. B. Hazardous Substance Indemnification. Subject to the provisions of Section XII.0 below, IDC shall protect, defend (with counsel selected by CONTRACTOR and reasonably acceptable to CITY), indemnify and hold harmless CITY, its officers, employees, agents, assigns and any successor or successors to CITY'S interest from and against all claims, actual damages (including but not limited to special and consequential damages), natural resources damages, punitive damages, injuries, costs, responses, remediation and removal costs, losses, demands, debts, liens, liabilities, causes of action, suits, legal or administrative proceedings, interest, fines, charges, penalties and expenses (including but not limited to attorneys' and expert witness fees and costs incurred in connection with defending against any of the foregoing or in enforcing this indemnity) of any kind whatsoever paid, incurred or suffered by, or asserted against, CITY or its officers, employees, or agents arising from or attributable to any repair, cleanup, or detoxification, or preparation, and implementation of any removal, remedial, response, closure or other plan (regardless of whether IDC Waste Disposal Contract Page 30 undertaken due to governmental action), concerning the release or threatened release of any Hazardous Substance or Hazardous Waste at the Disposal Facility, or if the activities of CONTRACTOR pursuant to this Agreement result in a release of Hazardous Waste or Hazardous Substance into the environment, provided that such damages do not arise out of any negligence or intentional misconduct of CITY. The foregoing indemnity is intended to operate as an agreement pursuant to Section 107(e) of the Comprehensive Environmental Response and Liability Act ( "CERCLA "), 42 U.S.C. Section 9607(e), and California Health and Safety Code Section 25364, to defend, protect and hold harmless and indemnify CITY from liability. This provision shall survive the termination of this Agreement. The foregoing indemnity shall not have any dollar limitation. C. No Indemnity Where Hazardous Waste Programs Not In Effect. The defense and indemnity obligations specified in Sections XII. A and B above shall not apply with respect to: (1) any Hazardous Waste generated by CITY itself and knowingly delivered by CITY to a third parry or CONTRACTOR for disposal at the Disposal Facility; (2) any Hazardous Waste generated in households collected within the City and delivered to the designated Disposal Facility during a time when CITY has failed to maintain, or cause to maintain, in effect programs for the safe collection, Recycling, treatment and/or disposal of Hazardous Wastes generated in households, in substantial compliance with its obligation set forth in Section IV.A; or (3) the disposal or release of Hazardous Substances, which disposal or release has resulted from the negligence or intentional misconduct of CITY. D. No Rights or Benefits. Etc. Reizardinia Designated Hauler. Nothing in this Section XII shall be deemed to confer any rights or benefits for a defense or indemnification to CITY'S Designated Hauler, nor shall anything in this Agreement be deemed to be a waiver or release of any claims by CONTRACTOR against CITY'S Designated Hauler should such Designated Hauler deliver Hazardous Waste or Hazardous Substances, including but not limited to Household Hazardous Waste, to CONTRACTOR. IDC Waste Disposal Contract E. Indemnification Procedure. Page 31 1. Notice and Cooperation. Etc. With respect to any claim for defense and indemnification, CITY shall: (1) give a minimum of fifteen (15) days written notice to CONTRACTOR following knowledge of the claim or proceeding as to which the right to indemnification may be asserted by CITY; (2) allow CONTRACTOR (including its employees, agents and counsel) reasonable access to any of CITY'S employees, property and records for the purpose of conducting an investigation and defense of such claim and taking such other steps as may be necessary to preserve evidence of the occurrence on which the claim is based; and (3) reasonably cooperate with and assist CONTRACTOR in the defense of CITY. 2. CONTRACTOR'S Option to Assume Defense. In any instance in which CITY claims indemnification hereunder, CONTRACTOR may elect to defend with counsel selected by CONTRACTOR and reasonably acceptable to CITY (and control the defense and settlement of) any litigation arising out of the occurrence from which CITY claims that CONTRACTOR'S indemnity obligation exists. If CONTRACTOR decides not to select counsel, such decision does not reduce or alleviate CONTRACTOR's obligation to defend CITY, pursuant to Section XII of this Agreement. F. Types and Amount of Insurance Coverage. CONTRACTOR, at CONTRACTOR'S sole cost and expense, shall procure from an insurance company or companies licensed to do business in the State of California or provide a self insurance program approved by the State of California and maintain in force at all times during the Term the types and amounts of coverage listed in Exhibit A, together with all endorsements and other special provisions also listed therein. CONTRACTOR'S indemnity obligations under this Agreement shall be fulfilled to the extent that such obligations are satisfied by any defense or indemnity provided to CITY under any coverage provided by CONTRACTOR pursuant to this Section. CITY requires prior approval of CONTRACTOR's self - insurance program and deductibles, and may accept or reject CONTRACTOR's submittals. These documents are required to be submitted to City Representative 30 days before the proposed effective date of the policies. A valid Certificate of Consent to Self - Insure currently in effect and issued by the California Department of Industrial Relations, pursuant to this section of the Agreement, is acceptable to CITY in compliance with the self - insurance requirements of this Agreement. IDC Waste Disposal Contract XIII. RIGHT TO DEMAND ASSURANCES OF PERFORMANCE Page 32 A. Reasonable Assurances Generally. If CONTRACTOR: (1) is the subject of any labor unrest including work stoppage or slowdown, sick -out, picketing or other concerted Job action which materially interferes with the ability of CONTRACTOR to perform its obligations under this Agreement; (2) appears in the reasonable judgment of CITY to be unable to regularly pay its bills as they become due; or (3) is the subject of a civil or criminal proceeding brought by a federal, state, regional or local agency for violation of an applicable law concerning operation of the Disposal Facility which CITY reasonably believes has placed CONTRACTOR'S ability to perform under this Agreement in substantial jeopardy, CITY may, at its option and in addition to all other remedies it may have, demand from CONTRACTOR reasonable assurances in such form and substance as CITY may require of timely and proper performance of this Agreement. Should CONTRACTOR fail to provide reasonable assurances as determined by CITY, within seventy (70) days of CITY's demand, CITY may terminate this Agreement upon issuance of written notice to CONTRACTOR. Examples of reasonable assurances include but are not limited to the following: for labor unrest, sharing with CITY written plans to obtain temporary workers, to redeploy workers from other subsidiaries, to redeploy management, etc. to assure performance; for financial issues sharing with CITY letters of credit, bank statements from parent companies, access to bank officials for references, etc., as needed. XIV. COMPLIANCE WITH LAW In providing the services required under this Agreement, CONTRACTOR shall at all times comply with all applicable laws, permits and approvals pertaining to CONTRACTOR'S performance under this Agreement, including but not limited to environmental laws, permits and approvals as they may be enacted, issued, or amended during the Term (collectively, "Legal Requirements "); provided, however, that this provision shall not preclude CONTRACTOR from being entitled to an increase in the Contract Gate Rate due to a Change in Law as defined in Section VI.E. In the event of any conflict between this Agreement and a Legal Requirement, the Legal Requirement shall govern, and CONTRACTOR shall not be in breach of this Agreement if CONTRACTOR complies with such Legal Requirement in contravention of this Agreement. IDC Waste Disposal Contract Page 33 XV. REPRESENTATIONS AND WARRANTIES OF CONTRACTOR CONTRACTOR represents and warrants as of the Effective Date of this Agreement as follows: A. Corporate Status. CONTRACTOR is a corporation duly organized, validly existing and in good standing under the laws of the State of California. It has the corporate power to own its properties and to carry on its business as now owned and operated and as required by this Agreement. B. Corporate Authorization. CONTRACTOR has the authority to enter into and perform its obligations under this Agreement. The Board of Directors of CONTRACTOR (or the shareholders, if necessary) have taken all actions required by law and by CONTRACTOR'S articles of incorporation, bylaws, or otherwise, to authorize the execution of this Agreement. The person signing this Agreement on behalf of CONTRACTOR has authority to do so. C. Status of Disposal Facility IDC owns and operates the Newby Island Landfill. The areas to be receiving Franchised Solid Waste under this Agreement at the Newby Island Landfill have been designed and constructed in accordance with, or have received applicable variances under, 23 California Code of Regulations Section 2510 et sea. ( "Chapter 15 "), and the Newby Island Landfill has been issued all permits from federal, state, regional, county and city agencies necessary for it to operate as a sanitary landfill. CONTRACTOR covenants that, upon the Effective Date of this agreement, it is in compliance with closure and post - closure financial security requirements. Upon written request, CONTRACTOR shall provide documentation to City Representative that CONTRACTOR has adequate financial responsibility sufficient to finance CONTRACTOR'S closure plan as submitted to state and local permit enforcement agencies. D. Agreement Will Not Cause Breach. To the best of CONTRACTOR'S knowledge, after reasonable investigation, neither the execution nor delivery of this Agreement nor the performance of this Agreement by CONTRACTOR: conflicts with, violates or results in a breach of any applicable law; or 2. conflicts with, violates or results in a breach of any term or condition of any judgment, order or decree of any court, administrative agency or other governmental authority, or any agreement or instrument to which any CONTRACTOR is a party or by which any CONTRACTOR or any of its properties or assets are bound, or constitutes a default thereunder. IDC Waste Disposal Contract Page 34 E. No Pending Liti ag tion. To the best of CONTRACTOR'S knowledge, after reasonable investigation, there is no action, suit, proceeding or investigation, at law or in equity, before or by any court or governmental authority, commission, board, agency or instrumentality pending against any CONTRACTOR wherein an unfavorable decision, ruling or finding, in any single case or in the aggregate, would materially adversely affect the performance by CONTRACTOR of its obligations hereunder or which, in any way, would adversely affect the validity or enforceability of this Agreement or which would have a material adverse effect on the financial condition of CONTRACTOR. F. Notification of Material Changes. CONTRACTOR shall notify CITY within five (5) days if a representation or warranty found herein becomes untrue in a material respect during the Term. XVI. REPRESENTATIONS AND WARRANTIES OF CITY CITY represents and warrants, as of the Effective Date, as follows: A. Status. CITY is a municipal corporation organized under the laws of the State of California. B. Corporate Authorization. CITY has the authority to enter into and perform its obligations under this Agreement. The City Council of CITY has taken all actions required by law to authorize the execution of this Agreement. The person signing this Agreement on behalf of CITY has authority to do so. C. Agreement Will Not Cause Breach. To the best of CITY'S knowledge, neither the execution nor delivery of this Agreement nor the performance of this Agreement by CITY: 1. conflicts with, violates or results in a breach of any applicable law; or 2. conflicts with, violates or results in a breach of any term or condition of any judgment, order or decree of any court, administrative agency or other governmental authority. D. No Pending Litigation. � To the best of CITY'S knowledge, after reasonable investigation, there is no action, suit, proceeding or investigation, at law or in equity, before or by any court or governmental authority, commission, board, agency or instrumentality pending against CITY wherein an unfavorable decision, IDC Waste Disposal Contract Page 35 ruling or finding, in any single case or in the aggregate, would materially adversely affect the performance by CITY of its obligations hereunder or which, in any way, would adversely affect the validity or enforceability of this Agreement. There is existing litigation brought by Guadalupe Rubbish Disposal Company (GRDC) against the West Valley Cities challenging the method of calculating the disposal fee. GRDC has not raised in litigation any issue at this point in time that would adversely affect the validity or enforceability of this Agreement, or the West Valley Cities' ability to perform. [Santa Clara County Superior Court Case # CV752691]. However, GRDC has advised CITY that it contends its Agreement is exclusive, although this issue has not been incorporated into the litigation. XVII. RELATIONSHIP OF PARTIES The Parties intend that CONTRACTOR shall perform the services required by this Agreement as an independent CONTRACTOR engaged by CITY and not as an officer or employee of CITY nor as a partner of or joint venturer with CITY. No employee or agent of CONTRACTOR shall be or shall be deemed to bean employee or agent of CITY. Except as expressly provided herein, CONTRACTOR shall have the exclusive control over the manner and means of conducting the Solid Waste disposal services performed under this Agreement, and all persons performing such services. CONTRACTOR shall be solely responsible for the acts and omissions of its officers, employees, subcontractors, and agents. Neither CONTRACTOR nor its officers, employees, subcontractors, and agents shall obtain any rights to retirement benefits, workers's compensation benefits, or any other benefits which accrue to CITY'S employees by virtue of its employment with CITY. All references to CITY, or to CITY'S employees, agents, representatives, successors or assigns shall not be deemed to include or refer to CITY'S Designated Hauler. XVIII. SUCCESSORS AND ASSIGNS. The terms, covenants and conditions of this Agreement shall apply to and shall bind the successors and assigns of CONTRACTOR and CITY. Under no circumstances shall any proposed assignment be considered by CITY if CONTRACTOR is in default at any time during the period of consideration. IDC Waste Disposal Contract Page 36 A. Assignment by CONTRACTOR. 1. Assignment Defined. For the purpose of this Section, "assignment" shall include, but not be limited to: (a) a sale, exchange or other transfer to a third party of substantially all of CONTRACTOR'S assets dedicated to service under this -Agreement; and (b) the issuance of new stock to or the sale, exchange, or other transfer of 30% or more of the then outstanding common stock of CONTRACTOR to a person other than the shareholder owning said stock at the date of this Agreement. 2.- Permitted Assignments. CONTRACTOR shall have the right to assign this Agreement to any other company which is owned and controlled by BFI, provided that: (a) such company is qualified to do business in California; (b) such company has a net worth at least equal to that of CONTRACTOR at the time of such proposed assignment, and such company assumes in writing all of CONTRACTOR'S obligations under this Agreement prior to or concurrently with such assignment; and (c) the guaranty described in Section III.A.3 remains in full force and effect. CONTRACTOR shall not otherwise assign its rights nor delegate or otherwise transfer any obligations under this Agreement to any other person without the prior written consent of CITY. Any such assignment made without the consent of CITY shall be voidable and the attempted assignment shall constitute a breach of this Agreement. 3. Consent Requirements. Except as provided in Section XVIII.A.2 above, if CONTRACTOR requests CITY'S consideration of and consent to an assignment, such consent shall not be unreasonably withheld. No request by CONTRACTOR for consent to an assignment other than a permitted assignment pursuant to Section XVIII.A.2 need be considered by CITY unless and until CONTRACTOR or the proposed assignee have disclosed to CITY all information reasonably requested by CITY relating to the business, assets and history of the assignee, including at a minimum, and without limitation: a. Reasonable Expenses CONTRACTOR shall agree to undertake to pay CITY its reasonable expenses for attorneys' fees and investigation costs necessary to investigate the suitability of any proposed assignee, and to review and finalize any documentation required as a condition for approving any such assignment; IDC Waste Disposal Contract Page 37 b. Financial Statements. Audited financial statements of the proposed assignee's operations for the immediately preceding three (3) operating years; C. Experience. Satisfactory evidence that the proposed assignee: (1) has at least ten (10) years of Solid Waste management experience in the field of solid waste management on a scale comparable to the scale of operations conducted by CONTRACTOR; (2) has not suffered any significant citations or other censure from any federal, state or local agency having jurisdiction over its waste management operations due to any significant failure to comply with state, federal or local waste management laws and that the assignee has provided CITY with a complete list of such citations and censures; (3) has at all times conducted its operations in an environmentally safe and conscientious fashion; and (4) that the proposed assignee conducts its Solid Waste management practices in full compliance with all federal, state and local laws regulating the collection and disposal of Solid Waste, including, Hazardous Waste, as identified in Title 22 of the California Code of Regulations;. d. Other Information. Such other information as CITY shall reasonably request in order to ascertain whether the proposed assignee is capable of, and intends to, fulfill its obligations under this Agreement in a timely, safe and efficient manner. B. Assignment bCITY. CITY may assign its rights under this Agreement to any public agency; provided, however, that this Agreement will continue to govern only the disposal of Franchised Solid Waste generated within CITY. C. Assignment Not a Release. No assignment by CONTRACTOR or CITY pursuant to ections XVIII.A or B shall be construed as a release of CONTRACTOR'S or CITY'S obligations under this Agreement, unless the Party or Parties to whom such obligations extend consent in writing to release the obligor from such obligations. IDC Waste Disposal Contract XIX. REPRESENTATIVES OF THE PARTIES Page 38 A. Representatives of CITY. The person whose name appears on the signature page at the end of this Agreement as the representative of CITY shall have the authority to exercise all rights of CITY under this Agreement and. shall have authority to perform all obligations of CITY under this Agreement, unless those rights are outside the scope of the authority of the representative. The City Council of CITY may authorize such other persons who are employees of CITY to have and exercise similar rights and such authority. Any such person may, in turn, delegate such rights and such authority to subordinate officers of CITY. Alternatively, the City Council of CITY may designate an agency created under any Joint Exercise of Powers Act of which CITY is a member, as its representative under this Agreement. CONTRACTOR may rely upon actions taken by such delegates with respect to CITY'S collective rights and obligations, to the extent that such actions are authorized by the CITY Council. Immediately upon making any such authorization or delegation under this Section XIX.A, CITY shall duly notify CONTRACTOR in writing of the name(s) of such persons or agencies and the nature of such authorization or delegation. B. Representatives of CONTRACTOR. Appearing at the end of this Agreement in the space so provided is the name or names of such person(s) as CONTRACTOR has designated to serve as the representative of CONTRACTOR in all matters related to this Agreement. CONTRACTOR has placed no limitations on the authority of such persons. CONTRACTOR shall inform CITY in writing of any change in such designation(s) and of any limitations upon his or her authority to bind CONTRACTOR. CITY may rely upon action taken by such designated representatives as actions of CONTRACTOR unless they are outside the scope of the authority delegated to him/her by the CONTRACTOR as communicated to CITY. XX. NOTICES Any and all notices to be given under this Agreement, or which any Party may desire to give to another, shall be in writing. Said notices shall be deemed delivered by personal delivery to the other Party's place of business as designated below during regular business hours, or on the third day following deposit in the mail in the County of Santa Clara, California, said deposit by registered or certified mail, return receipt requested, postage prepaid, and addressed as follows: JAN -10 -97 FRI 13:21 MEYERS,NAVE,RIBACK &SILV. FAX NU. 51U 351 44th IDC Wastc Disposal Contract Page 39 A. If to CONTRACTOR: Notices required to be given by CITY to CONTRACTOR may be given to IDC, and will be deemed received by CONTRACTOR upon being deemed "delivered" to IDC according to the provisions of this Section. Notice of Breach by CITY to CONTRACTOR arising out of the alleged failure, refusal or neglect by CONTRACTOR to accept or dispose of Franchised Solid Waste, may be given to IDC orally or by telephone at the principal office of each, if confirmed in writing and delivered in person or by facsimile by noon the following day. Notice to IDC on behalf of CONTRACTOR shall be addressed to the following addresses, as indicated: with a copy to: Mr. Michael Caprio c/o Newby Island Landfill 1601 Dixon Landing Road Milpitas, CA 95035 Mr. Dennis Fenton Market Area Vice President Browning - Ferris Industries of California, Inc. 6601 Owens Drive, Suite 250 Pleasanton, California 94588 B. If to CITY: To the name and address shown in the space provided at the end of this Agreement, with a copy to the person whose name and address also so appears. A copy shall also be provided to: Solid Waste Manager West Valley Cities City of Monte Sereno 18041 Saratoga -Los Gatos Road Monte Sereno, CA 950' )0 Telefax: (408)395 -7653 Changes of address shall be promptly filed with the other Parties. IDC Waste Disposal Contract XXI. WAIVER. Page 40 The waiver by any Party of any breach or violation of any provisions of this Agreement shall not be deemed to be a waiver of any breach or violation of any other provision nor of any subsequent breach of violation of the same or any other provision. The subsequent acceptance by any Party of any monies which become due hereunder shall not be deemed to be a waiver of any pre - existing or concurrent breach or violation by the other Parry of any provision of this Agreement. Failure by any Party to give notice of default pursuant to Section XX within a reasonable time, which in no event shall exceed one year, after the date the non - defaulting Party has notice of the default, shall be deemed a waiver of such default. XXII. OVERRIDING FEDERAL AND STATE LAWS The obligations of the Parties in this Agreement are subject to any and all overriding Federal and State laws and regulations. Should any material obligation or covenant of any party in this Agreement be determined by a court of competent jurisdiction to be unenforceable by reason of any Federal or State law or regulation, then no Party shall be liable to any other Party for breach of this Agreement or for damages; however, in such event, CONTRACTOR or CITY may elect to terminate this Agreement without liability to any other Party. XXIII. CITY'S DEFAULT A. Default Defined. CITY shall be in default under this Agreement ( "CITY Default "), unless excused under Section XXV or CITY effects a cure under Section XXIII.B below, if: A representation or warranty contained in Section XVI proves to be false or misleading in a material respect as of the date such representation or warranty is made; or 2. CITY fails to substantially perform its material obligations under this Agreement. B. Cure. A default shall occur if CITY fails to cure such breach within sixty (60) days after receiving notice from CONTRACTOR specifying the breach, provided that if the nature of the breach is such that it will reasonably require more than IDC Waste Disposal Contract Page 41 sixty (60) days to cure, CITY shall not be in default so long as CITY promptly commences the cure and diligently proceeds to completion of the cure. C. Right to Terminate Upon Default. In the event of a CITY Default, CONTRACTOR shall have all remedies available under California law for breach of contract, including without limitation the right to terminate performance as a result of a CITY Default. D. CONTRACTOR'S Remedies Cumulative. CONTRACTOR'S right to terminate this Agreement under Section XXM.0 is not exclusive, and CONTRACTOR'S exercise of such right shall not constitute an election of remedies. Instead, the right to terminate shall be in the alternative and in addition to any and all other legal and equitable rights and remedies which CONTRACTOR may have. By virtue of the nature of this Agreement, the remedy of damages for a breach hereof by CITY is agreed to be inadequate and CONTRACTOR shall be entitled to injunctive relief. XXIV. DEFAULT BY CONTRACTOR A. CONTRACTOR Default. Each of the following shall constitute an event of default by CONTRACTOR ( "CONTRACTOR Default ") hereunder, unless it is excused under Section XXV or cured as provided under Section XXIV.B below if: 1. CONTRACTOR fails to substantially perform its material obligations under this Agreement; 2. There is a seizure or attachment of, or levy on, the operating equipment of CONTRACTOR used at the designated Disposal Facility which prevents CONTRACTOR from performing the work; 3. A representation or warranty contained in Section XV proves to be false or misleading in a material respect as of the date such representation or warranty is made; 4. CONTRACTOR files a voluntary petition for debt relief under any applicable bankruptcy, insolvency, debtor relief, or other similar law now or hereafter in effect, or shall consent to the appointment of or taking of possession by a receiver, liquidator, assignee, trustee, custodian, sequestrator (or similar official) of CONTRACTOR for any substantial IDC Waste Disposal Contract Page 42 part of CONTRACTOR'S operating assets or any substantial part of CONTRACTOR'S property, or shall make any general assignment for the benefit of CONTRACTOR'S debt as they become due or shall take any action in furtherance of any of the foregoing; 5. A court having jurisdiction shall enter a decree or order for relief in respect of the Agreement, in any involuntary case brought under any bankruptcy, insolvency, debtor relief, or similar law now or hereafter in effect, or CONTRACTOR shall consent to or shall fail to oppose any such proceeding, or any such court shall enter a decree or order appointing a receiver, liquidator, assignee, custodian, trustee, sequestrator (or similar official) of CONTRACTOR or for any substantial part of CONTRACTOR'S operating equipment or assets, or order the winding up or liquidation of the affairs of CONTRACTOR; 6. CONTRACTOR fails to provide reasonable assurances of performance as required under Section XIV; or 7. After the first day that any of the designated Disposal Facilities become unable to accept Franchised Solid Waste, CONTRACTOR remains unable to make alternate transfer or disposal facilities available for the receipt of Franchised Solid Waste which are reasonably acceptable to CITY, in accordance with Section V.A. B. Cure. A default shall occur unless CONTRACTOR fails to effect a cure, as follows: Failure to Accept Franchised Solid Waste. Except for Defaults described in Section XXIV.A above, which are addressed in Section XXIV.0 below, if the failure consists of a failure to accept and dispose of Franchised Solid Waste as required by Section V.A and is not cured within two (2) business days after receiving notice from CITY specifying the breach; or 2. Any Other Breach. Except for Defaults described in Section XXIV.A. above, which are addressed in Section XXIV.0 below, if the breach is of any other provision of this Agreement and is not cured within thirty (30) calendar days after receiving notice from CITY specifying the breach, provided that if the nature of the breach is such that it will reasonably require more than thirty (30) days to cure, CONTRACTOR shall not be in default so long as CONTRACTOR commences action required to cure the IDC Waste Disposal Contract Page 43 breach within ten (10) calendar days after receipt of such notice and continue such performance diligently until the cure is completed. C. CITY'S Right to Terminate Performance Upon Default. Upon any CONTRACTOR Default, including but not limited to those defaults described in Sections XIV. above, or if CONTRACTOR fails to obtain or maintain the insurance policies and' endorsements, as required by this Agreement, or fails to provide the proof of insurance as required by this Agreement CITY shall have the right to terminate this Agreement. Such termination shall be effective thirty (30) days after CITY has given notice of termination to CONTRACTOR, except that such notice shall be effective immediately if the CONTRACTOR Default is one which endangers the health, welfare, or safety of the public, including, but not limited to, failure to properly accept and dispose of Franchised Solid Waste as required by Section V.A. Notice shall be in writing and delivered to the representative of CONTRACTOR designated in or under Section XX. D. CITY'S Remedies Cumulative: Specific Performance. CITY'S rights to terminate this Agreement under Sections V.D.I.c. and V.D.2.d, and under Section XXIV.C. above, are not exclusive, and CITY'S exercise of such right shall not constitute an election of remedies. Instead, the right to terminate shall be in the alternative and in addition to any and all other legal and equitable rights and remedies which CITY may have. By virtue of the nature of this Agreement, the remedy of damages for a breach hereof by CONTRACTOR is agreed to be inadequate and CITY shall be entitled to injunctive relief. E. Dispute Resolution. The Parties agree that they will first meet and confer with each other in -an attempt to resolve the dispute. After the Parties have made reasonable efforts to satisfactorily resolve the dispute(s), the dispute shall be referred to binding arbitration. The arbitrator shall be selected and the arbitration conducted in accordance with the procedures set forth in Exhibit F. XXV. FORCE MAJEURE. No Party shall be in default of its obligations under this Agreement in the event, and for so long as, it is impossible or extremely impracticable for it to perform its obligations due to an "act of God" (including, but not limited to, flood, earthquake or other catastrophic events), war, insurrection, riot, acts of any government (including legislative, administrative or judicial action), strikes, work stoppages or slowdowns, sickouts, picketing, or other concerted job action, or other similar causes which are not the fault of, and beyond the reasonable control of, the Party claiming excuse from performance. A IDC Waste Disposal Contract Page 44 Party claiming excuse under this Section XXV must: (A) have taken reasonable precautions, if possible, to avoid being affected by the cause; and (B) notify the other Party or Parties in writing within one day after the occurrence of the event specifying the nature of the event, the expected length of time that the Party expects to be prevented from performing, and the steps which the Party intends to take to restore its ability to perform. The Party claiming excuse under this Section XXV shall use its best efforts to remedy its inability to perform as quickly as possible. XXVI. PARTIES IN INTEREST. Nothing in this Agreement, whether express or implied, is intended to confer any rights on any persons other than the Parties and its representatives, successors and permitted assigns. XXVIL DUTY OF CONTRACTOR NOT TO DISCRIMINATE. CONTRACTOR shall not discriminate in the employment of persons engaged in the performance of this Agreement on account of race, color, national origin, ancestry, religion, sex, physical handicap, or medical condition, in violation of any applicable federal or state law. XXVIII. OBLIGATIONS SURVIVING TERMINATION. Should -this Agreement be terminated pursuant to its terms, each Party shall meet its obligations hereunder accruing to the date of termination, including the continuing indemnity obligations of the Parties as set forth in Section XII. XXIX. APPLICABLE LAW. The interpretation and effect of this Agreement shall be governed by application of the laws of the State of California. XXX. JURISDICTION. Any lawsuits between the Parties arising out of this Agreement shall be brought and concluded in the courts of the State of California, which shall have exclusive jurisdiction IDC Waste Disposal Contract Page 45 over such lawsuits. With respect to venue, the Parties agree that this Agreement is made in and will be performed in Santa Clara County, California. All depositions made by CITY employees shall be made in Santa Clara County, unless another location is selected by CITY, and within the five - county area for all other persons. XXXI. TIME OF THE ESSENCE. Time is of the essence of this Agreement. XXXII. EXHIBITS. Each of the Exhibits, identified as Exhibits "A" through "F ", is attached hereto and incorporated herein and made a part hereof by this reference. XXXIII. ENTIRETY The Parties agree that this Agreement represents the full and entire agreement between the Parties with respect to matters covered herein. XXXIV. ADVICE OF COUNSELINEGOTIATED AGREEMENT. Each of the Parties has received the advice of legal counsel prior to signing this Agreement. Each Party acknowledges that no other Party or agent or attorney has made a promise, representation, or warranty whatsoever, express or implied, not contained herein concerning the subject matter herein to induce another Party to execute this Agreement. The Parties agree that no provisions or provision may be subject to any rule of construction based upon any Party being considered the Party "drafting" this Agreement. XXXV. HEADINGS The headings contained in this Agreement are for descriptive purposes only. The operative provisions of this Agreement are found only in the text of this Agreement. IDC Waste Disposal Contract Page 46 VOM. TIME PERIODS All time periods specified herein shall be deemed to begin at 8:00 a.m. on the day marking the beginning of such time period and shall end at midnight of the day marking the end of such time period. XXXVII. SEVERABILITY. If any non - material provision of this Agreement is for any reason deemed to be invalid, and unenforceable, the invalidity or unenforceability of such provision shall not affect any of the remaining provisions of this Agreement, which shall be enforced as if such invalid or unenforceable provision had not been contained herein. IDC Waste Disposal Contract Page 47 XXXVIII. AMENDMENT This Agreement may be amended or modified only by written agreement duly authorized by CONTRACTOR and CITY Council and executed by their authorized representatives. IN WITNESS WHEREOF, the Parties make this Agreement as of the Effective Date. FOR CONTRACTOR: INTERNATIONAL DISPOSAL CORPORATION OF CALIFORNIA, INC. FOR CITY: By Print Name: Its (Title) CITY OF _ By Print Name: Its (Title) APPROVED AS TO FORM: By (City Attorney) Date IDC Waste Disposal Contract MAILING ADDRESS FOR REPRESENTATIVE OF CITY: Name: Title: Address: Copy to: Name: Title: Address: Page 48 - JAN -10 -97 FRI 13 :21 MEYERS,NAVE,RIBACK &SILV. FAX N0. lU X51 44 �1 I iLi 1.; IDC Waste Disposal Contract INSURANCE, TO BE MAINTAINED Page 49 I. Workers' Comnensation,and Fm2llover's Liability. CONTRACTOR shall maintain workers' compensation insurance covering its employees in statutory amounts and otherwise in compliance with the laws of the State of California. CONTRACTOR shall maintain employer's liability insurance in an amount not less than five million dollars ($5,000,000) per accident or disease. II. Comprehensive General_ Liability (Including Automobile Liability). CONTRACTOR shall maintain comprehensive general liability insurance with a combined single limit of not less than ten million dollars ($10,000,000) per occurrence. The insurance required by this Section TT shall be at least as broad as: a. Insurance Services Office Commercial General Liability coverage ( "occurrence" form CG 0001) (Ed. 11 /88); and. b. Insurance Services Office form number CA 0001 (Ed. 6/92) covering Automobile Liability, code 1 "any auto'. The insurer shall agree to waive all rights of subrogation against CITY, its officers, officials, employees and volunteers for losses arising from work performed by CONTRACTOR for CITY. III. Environmental Impairment Liability. CONTRACTOR shall maintain environmental impairment liability insurance in the amount of Ten Million Dollars ($10,000,000) covering liability arising from the release of pollution at the Landfills. IV. Self Insuance. CONTRACTOR may fulfill its insurance obligations under this Agreement by providing the coverages described herein pursuant to a self insurance program approved by CITY. CONTRACTOR shall disclose to CITY all deductibles and self- insured retentions to CITY for its approval.. IDC Waste Disposal Contract Page 50 V. Other Insurance Provisions. The policies are to contain, or be endorsed to contain, the following provisions: A. Comprehensive General Liability. I. 71firty (30) days prior written notice by certified mail, return receipt requested, shall be given to the CITY in the event of cancellation, reduction in coverage, or non - renewal of this policy. Such notice shall be sent to:" 2. Any failure to comply.with reporting provisions of the policies shall not affect coverage provided to CITY, its officials, employees or volunteers. 3. "The CITY, its officers, employees, and agents are additional insureds on this policy." 4. "This policy shall be considered primary insurance as respects any other valid and collectible insurance maintained by the CITY, including any self - insured retention or program of self - insurance, and any other such insurance shall be considered excess insurance only." 5. "Inclusion of CITY as an additional insured shall not affect CITY'S rights as respects any claim, demand, suit or judgment brought or recovered against the CONTRACTOR. This policy shall protect CONTRACTOR and CITY in the same manner as though a separate policy had been issued to each, but this shall not operate to increase the company's liability as set forth in the policy beyond the amount shown or to which the company would have been liable if only one party had been named as an insured." B. Automobile Liability Coverages "Thirty (30) days prior written notice by certified mail, return receipt requested, shall be given to the CITY in the event of cancellation, reduction in coverage, or non - renewal of this policy. Such notice shall be sent to:" 2. Any failure to comply with reporting provisions of the policies shall not affect coverage provided to CITY, its officials, employees or volunteers. "The CITY, its officers, employees, and agents are additional insureds on this policy." IDC Waste Disposal Contract Page 51 4 "This policy shall be considered primary insurance as respects any other valid and collectible insurance maintained by the CITY, including any self - insured retention or program of self - insurance, and any other such insurance shall be considered excess insurance only." 5 "Inclusion of the CITY as an additional insured shall not affect the CITY'S rights as respects any claim, demand, suit or judgment brought or recovered against the CONTRACTOR. This policy shall protect CONTRACTOR and the CITY in the same manner as though a separate policy had been issued to each, but this shall not operate to increase the company's liability as set forth in the policy beyond the amount shown or to which the company would have been liable if only one party had been named as an insured." C. Verification of Coverage. A minimum of 30 days before the Effective Date, CONTRACTOR shall furnish CITY with certificates of each policy of insurance required hereunder, with original endorsements affecting coverage and disclosure of all self - insurance programs, in form and substance satisfactory to CITY. Such certificates shall show the name of the insurance company, type and amount of coverage, effective dates, and dates of expiration of policies. The certificates and endorsements for each policy are to be signed by a person authorized by that insurer to bind coverage on its behalf. CONTRACTOR shall furnish CITY with a new certificate of insurance and endorsements upon each renewal of coverage or change of insurers renewal certificates to demonstrate maintenance of the required coverages throughout the Term. Each insurance policy required by this Agreement shall be endorsed to state that coverage shall not be suspended, voided, canceled, or reduced in limits except after thirty (30) days' prior written notice has been given to CITY. D. Other Insurance Requirements In the event any services are delegated to a subcontractor, CONTRACTOR shall require such subcontractor to provide statutory workers's compensation insurance and employer's liability insurance for all of the subcontractor's employees engaged in the work. The liability insurance required by Section II of this Exhibit shall cover all subcontractor or the subcontractor must furnish evidence of insurance provided by it meeting all of the requirements of this Exhibit. IDC Waste Disposal Contract Page 52 2. CONTRACTOR shall comply with all requirements of the insurers issuing policies. The carrying of insurance shall not relieve CONTRACTOR from any obligation under the Agreement, including those imposed by Section XII of the Agreement. If any claim is made by any third Person against CONTRACTOR or any subcontractor on account of any occurrence related to this Agreement, CONTRACTOR shall promptly report the facts in writing to the insurance carrier and to the CITY. 6 IDC Waste Disposal Contract EXHIBIT B GUARANTY Page 53 THIS GUARANTY (the "Guaranty ") is given as of the day of , 1996, by Browning -Ferris Industries, Inc., a Delaware corporation, and Browning -Ferris Industries of California, Inc., a California corporation, (hereafter "Guarantors "), to the CITY of , a municipal corporation organized under the laws of the State of California (hereafter "CITY "). THIS GUARANTY is made with reference to the following facts and circumstances: A. International Disposal Corporation, a California corporation ( "IDC "), is a corporation organized under the laws of the State of California. and is a wholly owned subsidiary of Browning - Ferris Industries, Inc., a Delaware corporation. B. IDC and CITY have negotiated a Waste Disposal Agreement dated as of , (the "Agreement "); under which CITY has the right to dispose of Solid Waste at the Newby Island Landfill located in the County of Santa Clara, State of California. C. It is a requirement of the Agreement, and a condition to CITY entering into the Agreement, that Guarantor guaranty IDC'S performance of the Agreement. D. Guarantor is providing this Guaranty to induce CITY to enter into the Agreement. NOW, THEREFORE, in consideration of the foregoing, Guarantor agrees as follows: 1. Guaranty of the Agreement. Guarantor hereby irrevocably and unconditionally guarantees to CITY the complete and timely performance, satisfaction and observation by IDC of each and every term and condition of the Agreement, as it now exists or as it may hereafter be amended in accordance with its terms, which IDC is required to perform, satisfy or observe. Should IDC default in performing, satisfying or observing any of the terms and conditions of the Agreement, and fail to timely cure such default, Guarantor will promptly and fully perform, satisfy or observe them in the place of IDC. Guarantor hereby guarantees payment to CITY of any damages, costs or expenses which might become recoverable by CITY from IDC due to its breach of the Agreement or under an indemnity provided in the Agreement. 2. Guarantor's Obligations Are Absolute. The obligations of the Guarantor hereunder are direct, immediate, absolute, continuing, unconditional and unlimited, and with respect to any payment obligation of CONTRACTOR under this Agreement, shall constitute a IDC Waste Disposal Contract Page 54 guarantee of payment and not of collection, and are not conditional upon the genuineness, validity, regularity or enforceability of the Agreement. 3. Waivers. The Guarantor shall have no right to terminate this Guaranty or to be released, relieved, exonerated or discharged from its obligations under it for any reasons whatsoever, including, without limitation: (a) the insolvency, bankruptcy, reorganization or cessation of existence of the CONTRACTOR; (b) any waiver of any provision of the Agreement; (c) the actual or purported rejection by a trustee in bankruptcy of the Agreement, or any limitation on any claim in bankruptcy of the Agreement, or any limitation on any claim in bankruptcy resulting from the actual or purported termination of the Agreement; (d) any waiver, any extension, or release with respect to any of the obligations of the Agreement guaranteed hereunder or the impairment or suspension of any of CITY'S rights or remedies against CONTRACTOR; or (e) any merger or consolidation of CONTRACTOR with any other corporation, or any sale, lease or transfer of any or all the assets of CONTRACTOR. Without limiting the generality of the foregoing, Guarantor hereby waives the rights and benefits under California Civil Code Section 2819. The Guarantor hereby waives any and all benefits and defenses under California Civil Code Sections 2845, 2849 and 2850, including, without limitation, the right to require City to (a) proceed against CONTRACTOR, (b) proceed against or exhaust any security or collateral CITY may hold now or hereafter hold, or (c) pursue any other right or remedy for Guarantor's benefit, and agrees that CITY may proceed against Guarantor for the obligations guaranteed herein without proceeding against or exhausting any security or collateral CITY may hold now or hereafter hold. Guarantor agrees that CITY may unqualifiedly exercise in its sole discretion any or all rights and remedies available to it against CONTRACTOR or any other guarantor or pledgor without impairing CITY'S rights and remedies in enforcing this Guarantee. The Guarantor hereby waives and agrees to waive at any future time at the request of CITY, to the extent now or then permitted by applicable law, any and all rights which the Guarantor may have or which at any time hereafter may be conferred upon it, by statute, regulation or otherwise, to avoid any of its obligations under, or to terminate, cancel, quit or surrender this Guaranty. Without limiting the generality of the foregoing, it is agreed that the occurrence of any one or more of the following shall not affect the liability of the Guarantor hereunder: (a) at any time or from time to time, without notice to the Guarantor, the time for CONTRACTOR'S performance of or compliance with any of its obligations under the Agreement is extended, or such performance or compliance is waived; (b) any other indemnification with respect to CONTRACTOR'S obligations under the Agreement or any security therefor is released or exchanged in whole or in part or otherwise dealt with; or (c) any assignment of the Agreement is effected which does not require CITY'S approval. IDC Waste Disposal Contract Page 55 The Guarantor hereby expressly waives diligence, presentment, demand for payment or performance, protest and all notices whatsoever, including, but not limited to, notices of non- payment or non - performance, notices of protest, notices of any breach or default, and notices of acceptance of this Guaranty. If all or any portion of the obligations guaranteed hereunder are paid or performed, Guarantor's obligations hereunder are paid or performed, Guarantor's obligations hereunder shall continue and remain in full force and effect in the event that all or any part of such payment or performance is avoided or recovered directly or indirectly from City as a preference, fraudulent transfer or otherwise, irrespective of (a) any notice of revocation given by Guarantor or CONTRACTOR prior to such avoidance or recovery, and (b) payment in full of any obligations then outstanding. Notwithstanding any of the foregoing, any amendment or modification of the Agreement approved by CITY and CONTRACTOR shall correspondingly enlarge or limit the scope of CONTRACTOR'S obligations which are the subject of this Guaranty. 4. Term. This Guaranty is not limited to any period of time, but shall continue in full force and effect until all of the terms and conditions of the Agreement have been fully performed by IDC, and Guarantor shall remain fully responsible under this Guaranty without regard to the acceptance by CITY of any collateral to assure the performance of IDC'S obligations under the Agreement. Guarantor shall not be released of its obligations hereunder, including indemnification provisions, pursuant to Section XII of this Agreement, so long as there is any claim by CITY or a third party against IDC arising out of the Agreement based on IDC'S failure to perform which has not been settled or discharged. 5. No Waivers. No delay on the part of CITY in exercising any rights under this Guaranty or failure to exercise such rights shall operate as a waiver of such rights. No notice to or demand on Guarantor shall be a waiver of any obligations of Guarantor or right of CITY to take other or further action without notice or demand. No modification or waiver of any of the provision of this Guaranty shall be effective unless it is in writing and signed by CITY and by Guarantor, nor shall any waiver be effective except in the specific instance or matter for which it is given. 6. Attorney's Fees. In any action or proceeding arising out of or relating to this Guaranty, including any action instituted to determine the respective rights and obligations of the parties hereunder, the prevailing party shall be entitled to recover its actual attorney's fees and all other costs and expenses incurred in the action or proceeding. 7. Governing Law: Jurisdiction. This Guaranty is and shall be deemed to be a contract entered into in and pursuant to the laws of the State of California and shall be governed and construed in accordance with the laws of California without regard to its conflicts of laws rules for all purposes, including, but not limited to, matters of construction, validity and IDC Waste Disposal Contract Page 56 performance. Guarantor agrees that any action brought by CITY to enforce this Guaranty may be brought in any court of the State of California and Guarantor consents to personal jurisdiction over it by such courts. Guarantors appoint the following persons as their agents for service of process in California: with a copy to: Mr. Michael Caprio c/o Newby Island Landfill 1601 Dixon Landing Road Milpitas, California 95035 Mr. Dennis Fenton Regional Vice President Browning -Ferris Industries of California, Inc. 6601 Owens Drive, Suite 250 Pleasanton, California 94588 8. Severabili1y. If any portion of this Guaranty is held to be invalid or unenforceable, such invalidity shall have no effect upon the remaining portions of this Guaranty, which shall be severable and continue in full force and effect. 9. Binding on Successors. This Guaranty shall inure to the benefit of CITY and its successors and shall be binding upon Guarantor and its successors, including transferee(s) of substantially all of its assets and its shareholder(s) in the event of its dissolution or insolvency. 10. Authori . Guarantor represents and warrants that it has the corporate power and authority to give this Guaranty, that its execution of this Guaranty has been authorized by all necessary action under its Articles of Incorporation and By -Laws, and that the person signing this Guaranty on its behalf has the authority to do so. 11. Subordination. Any claims Guarantor may have against IDC are hereby subordinated to any and all claims of CITY against such entity until such time as the obligations of that entity to CITY are fully satisfied and discharged. 12. Notices. Notice shall be given in writing, deposited in the U.S. mail, registered or certified, first class postage prepaid, addressed as follows: I IDC Waste Disposal Contract Page 57 To CITY: [NAMES TO BE INSERTED IN FINAL COPIES (1 FOR EACH JURISDICTION] with a copy to the City Attorney, at the same address, and a copy to the City Representative: Solid Waste Manager West Valley Cities City of Monte Sereno 18041 Saratoga -Los Gatos Road Monte Sereno, CA 95030 Telefax: (408)395 -7653 To Guarantor: Hugh Dillingham Senior Vice President Browning - Ferris Industries, Inc. P. O. Box 3151 Houston, Texas 77253 IN WITNESS WHEREOF, Guarantor has executed this Guaranty on the day and year first above written. BROWNING- FERRIS INDUSTRIES, INC. HUGH DILLINGHAM Senior Vice - President, Disposal Operation BROWNING - FERRIS INDUSTRIES OF CALIFORNIA, INC. DENNIS FENTON Area Vice - President IDC Waste Disposal Contract Exhibit C CITY Household Hazardous Waste Exclusion Programs and Policies A. CITY Municipal Code Title - Health and Sanitation [Reference Section number(s) and provisions.] B. Solid Waste Collection Franchise Agreement Page 58 The franchise agreement is for a 20 -year period, from March 1, 1983, through February 28, 2003. The franchise is held by Green Valley Disposal Company, Inc. Section 4(K) of the agreement states that: "... the City Manager of CITY shall have the power to establish rules and regulations respecting the accumulation, collection, transportation and/or disposal of solid waste matter not inconsistent with the provisions of this Agreement or with the provisions of any applicable ordinances or laws, providing such 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; and the COMPANY shall comply with any and all such rules and regulations of the City Manager." C. Household Hazardous Waste Element As required by the California Integrated Waste Management Act and subsequent legislation, City Council of CITY adopted on , by Resolution No. , its Household Hazardous Waste Element (HHWE). The HHWE describes CITY'S current efforts to exclude the introduction of household hazardous wastes into the ordinary waste stream. CITY currently offers households weekly curbside collection of used oil. CITY participates in a countywide household hazardous waste program, which currently includes nine drop -off events where residents and businesses (small quantity generators) may, by prior appointment, deliver their household hazardous waste to a designated location(s). IDC Waste Disposal Contract Page 59 EXHIBIT D FEES AND TAXES IN FEE COMPONENT AS OF THE EFFECTIVE DATE State AB 1220 Fee Santa Clara County AB 939 Fee Santa Clara County Solid Waste Planning Fee City of San Jose Business Tax City of San Jose Solid Waste Enforcement Fee $ 1.34 /ton $ 1.30 /ton $ 0.42 /ton $13.00 /ton 0.58 /ton TOTAL $16.64 /ton JAN -10 -97 FRI 13:22 MEYERS,NAVE,RIBACK &SILV. FAX NU olu �5i 44th IDC Waste Disposal Contract EXHIBIT E Disposal Fee Costs Responsibility of Contractor The Disposal Fee will not be increased, as a result of, any of the following: r. ice. iJ Page 60 Costs of compliance with the "Calderon Legislation" (former California Government Code, Sections 66796.53 and 66796.54, now California Public Resources Code Sections 45300 -04, 45700, California Health & Safety Code Sections 40511, 41805.5, and 42311.5, and California Water Code Section 13273); "Proposition 65" (California Health & Safety Code, Section 25249.5 et. seta., and Health & Safety Code Section 25192); the Federal Clean Air Act (42 U.S.C. Sections 7401 -7642) and the California Clean Air Act (Health and Safety Code Sections 39000 - 44384); the Federal Clean Water Act (33 U.S.C. Sections 1251 eta.); the Portcr- Cologne Water Quality Act (California Water Code, Division 7, Section 13000 et tea-); the California Integrated Waste Management Act of 1989 (California Public Resources Code, Divisions 30 and 31, Section 40000 gt�c_e .); the Federal Resource Conservation and Recovery Act (42 U.S.C., Section 6901 et sea, ; the California Hazardous Waste Control Act (California Health and Safety Code, Division 20, Chapter 6.5, Section 25100 a ce .); the Federal Emergency Planning and Community Right to Know Act of 1986 (42 U.S.C. Sections 11001- 11050); the California Hazardous Materials Release Response Plan and Inventory Act (California Health and Safety Code, Division 20, Chapter 6.95, Section 25500 et sea.); the California Underground Storage Tank Act (California Health and Safety Code, Division 20, Chapter 6.7, Section 25280 gj =); the California Occupational Safety and Health Act (California Labor Cude, Division 5, Parts 1 -10, Section 6300 et sea.); the Federal Occupational Safety and Health Act (29 U.S.C. Section 651 et seq.), and the regulations adopted thereunder, including but not limited to "EPA Subtitle D" (40 C.F.R., Parts 257 and 258); Bay Area Air Quality Management District Regulation 8, Rule 34; Title 14 California Code of Regulations; Title 22 California Code of Regulations; and "Chapter 15" (Title 23 California Code of Regulations, Sections 2510 - 2601), as they are in effect as of the date of this Agreement, except that "EPA Subtitle D" encompasses both the regulations in effect as of the date of this Agreement and the proposed regulations published on August 30, 1988, at pages 33314 -33422 of the Federal Rccister. 2. Costs, based on regulations existing as of the Effective Date, of closure of the Disposal Facility and for maintenance of the Disposal Facility after it has bccn closed. 3. Costs of work or monitoring due to CONTRACTOR'S negligence, active or passive, or intentional misconduct, or fines or penalties for violations of law. IDC Waste Disposal Contract Page 61 4. Costs for CONTRACTOR'S performance of work for which it is responsible under other provisions of this Agreement. 5. Costs of remedial or additional work attributable solely to Franchised Solid Waste already in place at the Disposal Facility prior to the Effective Date. 6) Costs attributable to changing'the classification of the Disposal Facility to allow it to accept waste other than Municipal Solid Waste. Nor would CITY benefit from such change in classification. IDC Waste Disposal Contract EXHIBIT F Arbitration Procedures for Dispute Resolution A. Demand for Arbitration Page 62 All disputes concerning this Agreement are subject to arbitration. If a dispute should arise, CITY or CONTRACTOR may commence arbitration proceedings by service of a written Demand for Arbitration setting forth the issues to be arbitrated and the general contentions relating to those issues of the party serving the Demand. If a Demand is made by CONTRACTOR, it shall be served by personal delivery or certified mail to CITY at the address noted in this Agreement. If a Demand is made by CITY, it shall be served by personal delivery or certified mail to CONTRACTOR at the address noted in this Agreement. If a Demand is served by CONTRACTOR, CITY may within 45 days after service of the Demand, serve a Notice of Election to become a party to arbitration and a Response to the Demand, setting forth its position and general contentions with respect to the issues set forth in the Demand. If CITY does not serve a timely Notice of Election and Response, CONTRACTOR shall be entitled to the relief sought in its Demand without the necessity of further proceedings. Service shall be by certified mail, return receipt required. If a Demand is served by CITY, CONTRACTOR may within 45 days after service of the Demand, serve a Notice of Election to become a party to the arbitration and a Response to the Demand setting forth its position and general contentions with respect to the issues set forth in the Demand. If CONTRACTOR does not serve a timely Notice of Election and Response, CITY shall be entitled to the relief sought in its Demand without the necessity of further proceedings. Service shall be by certified mail, return receipt required. B. Limitations Period All Demands for Arbitration regarding CONTRACTOR - incurred expenses relating to compliance with governmental regulations, the inclusion of the cost of which in the Disposal Fee is at issue, shall be served within two years after CONTRACTOR has incurred such expenses. All Demands for Arbitration under other sections (i.e., Sections VI.E, F, G and H) shall be served within one year after delivery of the bill as to which the dispute exists or, if the dispute does not relate to a bill, then all Demands for Arbitration IDC Waste Disposal Contract Page 63 shall be served within one year from the occurrence of the event which gave rise to the dispute. C. Number and Appointment of Arbitrators All arbitration proceedings shall be conducted by a single arbitrator selected by CONTRACTOR and a designated representative of CITY. The arbitrator shall be selected within 75 days after the service of the Demand for Arbitration. If the parties to the arbitration cannot agree on an arbitrator within 75 days, either party may petition the California Superior Court in and for Santa Clara County for the appointment of an arbitrator. D. Guidelines for Qualifications of Arbitrators CONTRACTOR and CITY acknowledge that the arbitrator should have experience in one or more of the following fields: solid waste, disposal engineering, sanitary landfill operation and management, utility accounting methods and practices. CONTRACTOR and CITY shall use their best efforts to agree in advance upon the qualifications of any arbitrator to be appointed by the Superior Court. E. Powers of Arbitrator, Conduct of Proceedings Except as hereinafter provided, arbitrations shall be conducted under and be governed by the provisions of California Civil Procedure, Sections 1282.2 through 1284.2 (hereinafter, collectively "Code section "), and arbitrators appointed hereunder shall have the powers and duties specified in the Code sections. 2. Within the meaning of the Code sections, the term "neutral arbitrator" shall mean the single arbitrator selected by the parties to the arbitration. Unless waived in writing by the parties to the arbitration, the notice of hearing served by the arbitration shall not be less than 90 days. 4. The lists of witnesses (including expert witnesses), and the lists of documents (including the reports of expert witnesses) referred to in Code of Civil Procedure Section 1282.2 shall be mutually exchanged, without necessity of demand therefore, no later than 60 days prior to the date of the hearing, unless otherwise agreed in writing by the parties to the arbitration. r m IDC Waste Disposal Contract Page 64 5. The time for making the award shall be no later than 18 months after service of the initial Demand for Arbitration, provided that such time may be* waived or extended as provided in Code of Civil Procedure Section 1283.8. 6. The arbitrator shall not base his or her award on information not obtained at the hearing. 7. The provisions for discovery set forth in Code of Civil Procedure Section 128' ).05 are incorporated into and made part of this Agreement, except that: (a) leave of the arbitrator need not be obtained for the taking of depositions, including the depositions of expert witnesses; (b) the provisions of Code of Civil Procedure Section 2037 et seq., relating to discovery of expert witnesses, shall also be applicable to arbitration proceedings arising under this Agreement, except that the time period set forth in Section 2037(a) shall be deemed to be not later than 60 days prior to the date for the hearing; and (c) all reports, documents, and other materials prepared or reviewed by any expert designated to testify at the arbitration shall be discoverable. 8. The arbitrator shall have the power to issue orders mandating compliance with the terms of this Agreement or enjoining violations of this Agreement. 9. All awards of the arbitrator shall be binding on CONTRACTOR and CITY regardless of the participation, or lack thereof, by CITY or CONTRACTOR as a party to the arbitration proceeding, provided that the arbitrator's decision can be vacated by a court of competent jurisdiction if it is based on an error of law or not supported by substantial evidence. Service shall be by certified mail, return receipt required. 01 -15 -1997 04::S8PM F-kUVI UUHDHLUHt LRNDF1LL 4-hp*G I U boolLVC.+ r . 6r. A PE RUBBISH DISPOSAL COMPANY P.O. BOX 20957 • SAN JOSE, CALIFORNIA 95160 • PHONE 268 -1670 I January 15, 1997 Saratoga City Youncil City of Saratoga;; 13777 Fruitvale Avenue Saratoga, CA j 5b70 i i RE: Alternative Disposal Proposal Dear Council M�mbers, i After review of the staff report and proposed contract for Alternative Disposal Site Agreement witf Newby Island Landfill (IDC) we (feel that several comments are in order. These comments are necessary so that the Council can compare the proposal made by IDC t¢ the joint proposal made by Green Valley Disposal and Guadalupe Landfill. A table has beon, prepared and attached that summarizes the key cost issues and shows the savings that can be achieved by impllementing each proposal. The key elements are savings over current landfill rates, jresidential collection savings, and freezing rates ior:, four years. i Fir st, the staff 'enort incorrectly notes the savings in the IDC proposal over the innovative Green Valley /Guadalupe proposal. The comparison made by staff is for the current Guadalupe Landfill: rate versus the IDC proposal. Per staff report Saratoga's saving would b e $130,000 per year saving using the IDC proposal but the Green Valley / Guadalupe ;landfill ralte proposal would result in an $80,000 per year savings. But when this I tter savings is added to the other elements of the proposal as noted below, the over ll'savings using the Green Valley /Guadalupe proposal will be $219,000 the first year, escalating to $379,000 after year• four, well more than that achieved by the IDC proposal. Based on an evaluation provided by Green Valley, annual savings for Saratoga includes the following elements: i • Reduced residential rates saving Saratoga $88,000 per year • No residential Lost of living increases for 4 dears, saving Saratoga $51,000 the first year and $211,000 the fourth year to the end of the contract 01- 15-1997 04 :38PM FROM GURDRLUPE LRNDFiLL iu 000lcoc; u� i I I This gives an ioveralf annual savings to Sarato ja of $89,000 the first year that will increase to $29;000 per year during the fourt year using the Green Valley/ . uadal pe proposal over the IDC proposal. Also, this does not place value on items such as (reduced truck traffic, convenien of having a wheeled cart, a commercial materials recovery facility at Guadalupe Landfill, and the ending of current lawsuits. ii I Regarding the flarndfilf portion of the IDC proposal, the key items listed in the contract . terms section 6f the staff report, (e.g. cost of living increases, indemnification, insurance) would iall be included in a Guadalupe contract revision. There would be no advantage to 06g the IDC proposal. i I i Another issue hat has not been raised is the impact on Guadalupe Landfill if the West Valley Cities waste is no longer brought to the site. The reduced tonnage puts the site below what is considered the threshold necessary to operate, forcing closure. The IDC proposal is for a maximum of 16 year, and after this time the Newby Island site will reach Capacity based on numbers prodded by the California Integrated. Waste Management hoard. i The only site tf�en open would be Kirby Canyon iwhich would increase hauling cost to the West Valley Cities and require a transfer station to use. Additionally, that site would have not restrictions on what it could charge for disposal. Guadalupe Laddfill's proposal would guarantee Icapacity for 31 years, clearly a better choice. i I f R f f h 1 I1� If there are am questions regarding this inform IAtion please let us know. Sincerely yours; Guadalupe Rubbish Disposal Co., Inc. I i i 1 I Qom, I I 1 J mes H. Lord, P.E. eneral Manager i cc: Harry Peacock I .+ j 01 -15 -1997 04 :.Sdef l fKUN UUHI)HLUPE LHNllr 1LL I U 6061:bu r. 64 t Green Valley / Guadalupe Iroposal vs. IDC Proposal city of Saratoga Council Meeting Presentation GVD/GRD Proposal I i 1115/97 i TOTAL P.04 Base Rate Saratoga Current Proposed Savings $ /ton ($/,,to n Newby Island_ Proposal (IDC) Savings over Current Landfill Rates I $27.25 $17.85 i $130,000 i Green Valley-/Gbadal.dge Proposal Savings over Current Landfill Rates $27.25 $22.83 i $80,000 Residential Rate Savings ($1.50 - $1.75 /month) $88,000 I Residential Post of Living Waiver (estimated at i2.5% per year) year 1 i $51,000 hear 2 1 $103,000 Year, 3 i $157,000 Year 4 and every year thereafter Ito end of contract $211,000 Carts in Y* :2003 ($700,000, expenditure not (included in evaluation) I Commerciale Recycling Facility (no monitary valu6 assigned) • i Discontinue] Lawsuit (no monitary value assigned) ` Annual Sa�ings with Green Valley / Guadalupe Proposal Year 1 j $219,000 i From year 4 on i $379,000 Annual Savings aver 100 Proposal i i Yeas 1 I $89,000 From year 4 on i j $249,000 GVD/GRD Proposal I i 1115/97 i TOTAL P.04 . -. SARATOGA CITY COUNCIL EXECUTIVE SUMMARY NO. Z e25 MEETING DATE: FEBRUARY 5, 1997 ORIGINATING DEPT.: PUBLIC WORKS AGENDA ITEM 5: P S CITY MGR.: J!4%e� DEPT. HEAD: SUBJECT: Resolution accepting Offer of Water Line Easement for Hakone Gardens water system Recommended Motion(s): Move to adopt the Resolution accepting the Offer of Dedication. Report Summary: Attached is a Resolution which, if adopted, would accept an Offer to Dedicate a Water Line Easement on the property owned by Mr. & Mrs. Craik at 20959 Hidden View Lane adjacent to Hakone Gardens. Several years ago, the Craik's generously allowed the City to install a water line across their property to serve the new Hakone Gardens water system. By allowing this, the Craik's saved the City close to $50, 000 in reduced construction costs for the water system which also resulted in a "loop" water system to be built that significantly enhances water supply and fire protection for the Hidden View Lane properties as well as Hakone Gardens. For various reasons, a Water Line Easement across the Craik's property has never been secured. At long last however, an Offer to Dedicate such an easement was prepared by the City and signed by the Craik's. This Offer is attached to the Resolution which staff recommends the Council adopt so the existence of both the easement and the water line on the Craik's property can be recorded. Fiscal Impacts• None. The Offer was made by the Craik's at no cost to the City and will be recorded at no cost to the City. Advertising, Noticing and Public Contact: Nothing additional. Consequences of Not Acting on the Recommended Motions: The Offer will not be accepted and the easement will not technically exist. This could pose problems in the future if the existence of the water line on the property were challenged. In any event, the Offer would be recorded. Follow Up Actions: The Resolution with Offer attached will be recorded. Attachments: 1. Resolution with attached Offer. I SARATOGA CITY COUNCIL EXECUTIVE SUMMARY NO. 20 2,9 AGENDA ITE MEETING DATE: FEBRUARY 5, 1997 CITY MGR ORIGINATING DEPT.: PUBLIC WORKS DEPT. HEAE SUBJECT: Resolution rescinding Resolution No. 95 -44 (Summary Vacation of a portion of Esterlee Avenue) Move to adopt the Resolution rescindinq Resolution No. 95 -44. Report, Summary: On October 4, 1995, the City Council adopted Resolution No. 95 -44, a Resolution which summarily vacated the public street designation of a portion of Esterlee Avenue off Canyon View Drive which provides access to two residential lots. Section 4 of the Resolution specifies that the vacation would become effective upon recordation of the Resolution by the City Clerk. As of yet, the Resolution has not been recorded. Subsequent to the adoption of the Resolution, information surfaced which raised questions about the appropriateness of the summary vacation proceeding. Specifically, there are doubts as to whether all of the parties who have ownership interest in the two lots served by Esterlee Ave. were aware of, let alone in favor of, the vacation action. Further, there is disagreement over the reversion interests resulting from the vacation as determined by the City, and yet no one seems willing to pay the cost to perform the research which would be necessary to prove the City wrong. As one of the two lots is now being sold, and the purchaser has expressed an interest in retaining Esterlee Ave. as a public street, it now seems best to simply rescind the vacation action especially in light of the circumstances described above. This can be accomplished by adopting the attached Resolution since the original Resolution was never recorded and as such, has never become effective. The net result will be to maintain the status - quo, i.e. Esterlee Avenue will continue to be a dedicated, although not yet improved, public street. Fiscal Tmpacts: None. Advertising, Noticing and Pudic Contact: Nothing additional. Consequences of Not Acting on the Recommended Motions: The Resolution would not be adopted and Resolution No. 95-44 would not be rescinded. However, Resolution No. 95 -44 will still not be recorded meaning the vacation action will remain in limbo unless the Council reconfirms that it should be recorded, or takes some other course of action. Follow Up Actions: None necessary. 1. Resolution No. 95 -44. 11-: RECORDING REQUESTED BY, AND WHEN RECORDED MAIL TO: City Clerk City of Saratoga Civic Center, 13777 Fruitvale Avenue Saratoga, CA 95070 RES0IUTION 95 -44 RESOLUTION OF SUMMARY VACATION OF A PORTION OF A STREET (ESTERLEE AVENUE - FORMERLY SAGE DRIVE) Affecting portions of the following properties: . APN 503 -28 -073 ( Esterlee Avenue) APN 503 -28 -072 (21020 Canyon View Drive) APN 503 -26 -040 (14440 Esterlee Avenue) APN 503 -26 -002 (14436 Esterlee Avenue) Recitals WHEREAS, application has been made to City on behalf of the owner of property generally known as 14440 Esterlee Avenue (formerly Sage Drive)(APN 503 -26 -040) for summary vacation of a portion of Esterlee Avenue adjacent to said property as a public street; and WHEREAS, Streets and Highways Code §8330, et seq. authorizes summary vacation of a street or highway if certain criteria are met; and WHEREAS, the Director of Public Works has determined that the portion of Esterlee Avenue requested to be abandoned meets these statutory criteria for summary vacation, to wit: For a period of five consecutive years, the street has been impassable for vehicular travel and no money has been expended for maintenance on the street during such period; NOW, THEREFORE, Be It Resolved By The City Council of The City of Saratoga as follows: 1. The portion of street known as " Esterlee Avenue" (formerly Sage Drive), shown on that map attached hereto as Exhibit A and described in Exhibit B incorporated herein by reference is hereby summarily vacated. 1 2. The summary vacation of the subject portion of Esterlee Avenue (formerly Sage Drive) is made pursuant to Streets and Highways Code §8330 et seq. 3. The facts under which the summary vacation is made are: (a) The street has been impassable for vehicular travel for a period of five years, during which period no public money has been expended for maintenance on the street. 4. From and after the date of recordation of this resolution in the office of the Santa Clara County Recorder, the subject portion of Esterlee Avenue (formerly Sage Drive) as shown on Exhibit A and described in Exhibit B, vacated by this resolution, shall no longer constitute a public street. 5. The reversion interests resulting from this summary vacation are described in Exhibit C attached hereto. Passed and adopted by the City Council of the City of Saratoga, California, at a meeting thereof held on the 4th day of October , 1995, by the following vote of the members thereof: Attest: AYES: Councilmembers Burger. Moran, Tucker, Wolfe and Mayor Jacobs NOES: None ABSENT: None ayor City Clerk October 3, 1995 0: \CORY\44V 2 EXHIBIT 'A' z� ti O ?' :.co`° � o vti � 0 c? O CV i �,QOO N01 ° W o R7 y. m 30' I 30' �• 20' 20 JN ~ w io Tract No. 1318 -Z- 4z `" cv =Lr) h� Nildwood Heights 4� O9 IT C AO IT 3 _ a C" Ln �, z 68 Maps 16 & 17 cu • ° 0- °nj2 April 17, 1956 Locco o a ti'��ti° m cn o cu Z ti� CgNY cn rn c 8W , ON rn o N032 co 71.74' Vj r� �slu'— PARCEL 4 127.30' — O N19 10 2p 1c.� . 69 0 9q \ PARCEL 2 PCL 3 102.96 ' 3 49.20 ' 25.80 ti °2 S03 °28' N 177.96 m O Cn GREDASSOFF o APN:503 -26 -040 JACKLIN / - APN:503 -26 -002 Or1j 0 Map No.2 of the Mary Springer Tract K Maps 33 * May 4, 1905 ESTERLEE AVENUE This Plat prepared by me. STREET VACATION LAND S� L Mao''•; GINARREN E. McDOWELL * i3 Ho Sat +o�'j * — License Expires 06 -30 -96 % f� DATE: 10-03-95. 7974 PUMPKIN DRIVE l9r •..,,w,,,.•''�Q� SCALE: 1 "— 50' CUPERTINO CA 95014 FOFFj1 F (408) 257 -8210 EXMIT "B" A 40 foot wide street Vacation of a portion of Esterlee Avenue and a 103.62 foot street 40 foot wide appendage from and extending Westerly from Esterlee Avenue, within the City of Saratoga. All that certain real property situate within the City of Saratoga, County of Santa Clara, State of California, being public streets to be vacated consisting of that portion of Esterlee Street, 40 foot wide, lying between Canyon View Drive, on the North, Sage Avenue as Vacated by County of Santa Clara by Resolution dated November 19, 1951, on the South, and that certain 40 foot street appendage extending from that certain monument designated as R6 Westerly to terminate at that certain monument designated as R7, on the West, as said monuments are shown on the Map No. 2 of the Mary Springer Tract filed May 4, 1905 in Book K of Maps at page 33 in the office of the Recorder of the County of Santa Clara, State of California, said streets to be Vacated being more particularly described as follows: BEGINNING at a monument designated as R7 on Map No. 2 of the Mary Springer Tract filed May 4, 1905 in Book K of Maps at page 33 in the office of the Recorder of the County of Santa Clara, State of California, said monument R7 being also shown on the map of Tract No. 1318, Wildwood Heights, filed April 17, 1956 in Book 68 of Maps at pages 16 & 17 in the office of the Recorder of the County of Santa Clara, State of California; THENCE Northerly, from the Point of Beginning, North 01 °48'00 "West for a distance of 20.00 feet; THENCE Easterly, North 88 ° 12'00 "East for a distance of 68.58 feet to the Westerly line of Esterlee Avenue; THENCE Northerly, along the Westerly sideline of Esterlee Avenue as said Avenue is shown on said Tract No. 1318, North 03 °28'00 "West for a distance of 71.74 feet to a non - tangent curve on the Southerly sideline of Canyon View Drive, 60 foot wide; THENCE Northeasterly, along the arc of a curve to the left from a tangent bearing North 36 °52'50 "East having a Radius of 105.00 feet, a central angle of 17 °32'50" and an arc length of 32.16 feet to a point of tangency; THENCE Northerly, North 19 °20'00 "East for a distance of 59.94 feet to a point on the Easterly sideline of said Esterlee Avenue, 40 feet wide, said point being South 03 °28'00 "East a distance of 25.80 feet from the North corner of Lot 93 as said Lot is shown on said Map No.2 of the Mary Springer Tract; THENCE Southerly, along the Easterly sideline of Esterlee Avenue, 40 feet wide, South 03 °28'00 "East for a distance of 152.16 feet to the South corner of said Lot 93 as shown on Map No. 2 of the Mary Springer Tract; THENCE Southwesterly, along the Southwesterly prolongation of the Southeasterly line of said Lot 93 South 30 °06'00 "West for a distance of 20.41 feet to a point that is on the Northwesterly prolongation of the centerline of former Sage Avenue being distant thereon North 48 028'00 "West a distance of 8.71 feet from a monument designated as R6 as said monument is shown on said Map No. 2 of the Mary Springer Tract; THENCE Southeasterly, South 48 °28'00 "East for a distance of 8.71 feet to said monument R6; THENCE Westerly, South 88 012'00 "West for a distance of 10.06 feet to a point on the Southwesterly prolongation of the Southeasterly line of said Lot 93; THENCE Southwesterly, along said Southwesterly prolongation of the Southeasterly line of Lot 93, South 30 °06'00 "West for a distance of 13.36 feet to a point on the Northwesterly prolongation of the Southwesterly sideline of former Sage Avenue, 40 feet wide; THENCE Southeasterly, along the said Northerly prolongation of the Southwesterly sideline of former Sage Avenue, 40 feet wide, South 48 °28'00 "East for a distance of 12.61 feet to point that is point of intersection of the said Southwesterly sideline of former Sage Avenue and the Southerly sideline of the 103.62 feet street, 40 feet wide; THENCE Westerly, along the said Southerly sideline of the 103.62 feet street, 40 feet wide, South 88 °12'00 "West for a distance of 96.11 feet; THENCE Northerly, North 01 °48'00 "West for a distance of 20.00 feet to R7, the Point of Beginning. Containing therein 8220.649 square feet of land, more or less. This description prepared by me. WOO— Warren E. McDowell Land Surveyor No. 3414 License Expires: 06 -30 -96 S coo t 3 No. 3414 r F, ��l •�ti frl� OF CAI�F�Q EXHIBIT "C" The reversionary interests of the four adjoining property owners have been provided here in Parcel 1, 2, 3 , and 4, the effective date of reversion shall be the date upon which the street vacation is filed for record in the office of the Recorder of the County of Santa Clara. PARCEL 1 All that certain real property situate within the City of Saratoga, County of Santa Clara, State of California, being a public easement for street purposes which is being herewith vacated by the City of Saratoga the subject lands described as Parcel 1 shall revert to that certain parcel of land -' designated as APN: 503- 28 -073, now or formerly owned by Saratoga Oaks Homeowners Association, Inc., the reversion is in accord with the original property lines which have controlled the neighborhood, and being more particularly described as follows: BEGINNING at a monument designated as R7 on Map No. 2 of the Mary Springer Tract filed May 4, 1905 in Book K of Maps at page 33 in the office of the Recorder of the County of Santa Clara, State of California, said monument R7 being also shown on the map of Tract No. 1318, Wildwood Heights, filed April 17, 1956 in Book 68 of Maps at pages 16 & 17 in the office of the Recorder of the County of Santa Clara, State of California; THENCE Easterly, from the Point of Beginning, along the centerline of the 103.62 feet street, North 88 °12'00 "East for a distance of 94.00 feet to a point on the Southwesterly prolongation of the Southeasterly line of said Lot 93; THENCE Southwesterly, along said Southwesterly prolongation of the Southeasterly line of Lot 93, South 30 °06'00 "West for a distance of 13.36 feet to a point on the Northwesterly prolongation of the Southwesterly sideline of former Sage Avenue, 40 feet wide; THENCE Southeasterly, along the said Northerly prolongation of the Southwesterly sideline of former Sage Avenue, 40 feet wide, South 48 °28'00 "East for a distance of 12.61 feet to point that is point of intersection of the said Southwesterly sideline of former Sage Avenue and the Southerly sideline of the 103.62 feet street, 40 feet wide; THENCE Westerly, along the said Southerly sideline of the 103.62 feet street, 40 feet wide, South 88 °12'00 "West for a distance of 96.11 feet; THENCE Northerly, North 01 048'00 "West for a distance of 20.00 feet to R7, the Point of Beginning. Containing therein 1818.425 square feet of land, more or less. PARCEL 2 All that certain real property situate within the City of Saratoga, County of Santa Clara, State of California, being a public easement for street purposes which is being herewith vacated by the City of Saratoga the subject lands described as Parcel 2 shall revert to that certain parcel of land designated as APN: 503 -26 -040, now or formerly owned by Nadejda Gredassoff, the reversion is in accord with the original property lines which have controlled the neighborhood, and being more par- ticularly described as follows: BEGINNING at a point that is the South comer of Lot 93 as shown on Map No. 2 of the Mary Springer Tract filed May 4, 1905 in the office of the Recorder of the County of Santa Clara, State of California; THENCE Southwesterly, from the Point of Beginning, along the Southwesterly prolongation of the Southeasterly line of said Lot 93 South 30 °06'00 "West for a distance of 20.41 feet to a point that is on the Northwesterly prolongation of the centerline of former Sage Avenue being distant thereon North 48 028'00 "West a distance of 8.71 feet from a monument designated as R6 as said monument is shown on said Map No. 2 of the Mary Springer Tract; THENCE Southeasterly, South 48 °28'00 "East for a distance of 8.71 feet to said monument R6; THENCE Westerly, South 88 °12'00 "West for a distance of 14.88 feet to a point that is the intersection point on the line between the monuments designated as R6 and R7 as shown on said Map No. 2 of the Mary Springer Tract and the Southerly prolongation of the centerline of Esterlee Avenue; THENCE Northerly, along the said centerline of Esterlee Avenue North 03 °28'00 "West for a distance of 125.69 feet; THENCE Easterly, North 86 °32'00 "East for a distance of 20.00 feet to a point that is distant South 03 °28'00 "East a distance of 75.00 feet from the North comer of said Lot 93 as shown on Map No. 2 of the Mary Springer Tract; THENCE Southerly, along the Easterly sideline of Esterlee Avenue, 40 feet wide, South 03 °28'00 "East for a distance of 102.96 feet to the South corner of said Lot 93, said also being the Point of Beginning. Containing therein 2372.765 square feet of land, more or less. PARCEL 3 All that certain real property situate within the City of Saratoga, County of Santa Clara, State of California, being a public easement for street purposes which is being herewith vacated by the City of Saratoga the subject lands described as Parcel 3 shall revert to that certain parcel of land designated as APN: 503 -26 -002, now or formerly owned by Phillip D. Jacklin, the reversion is in accord with the original property lines which have controlled the neighborhood, and being more par- ticularly described as follows: BEGINNING at a point on the Easterly sideline of Esterlee Avenue, 40 feet wide, said said point being distant thereon South 03 °28'00 "East a distance of 75.00 feet from the North comer of Lot 93 as said Lot is shown on Map No. 2 of the Mary Springer Tract filed May 4, 1905 in Book K of Maps at page 33 in the office of the Recorder of the County of Santa Clara, State of California; THENCE Westerly, South 86 °32'00 "West for a distance of 20.00 feet to a point on the centerline of Esterlee Avenue as shown on said Map No. 2 of the Mary Springer Tract; THENCE Northerly, along said centerline of Esterlee Avenue, North 03 °28'00 "West for a 1.62 feet to the intersection of said centerline and the Southeasterly sideline of Canyon View Drive, 60.00 feet wide, as Canyon View Drive is shown on the map Tract No. 1318 filed in April 17 1956 in Book 68 of Maps at pages 16 &17 in the office of the Recorder of the County of Santa Clara, State of California; THENCE Northerly, North 19 °20'00 "East for a distance of 51.61 feet to a point on the Easterly sideline of said Esterlee Avenue, 40 feet wide, said point being South 03 °28'00 "East a distance of 25.80 feet from the North corner of Lot 93 as said Lot is shown on said Map No.2 of the Mary Springer Tract; THENCE Southerly, along the Easterly sideline of Esterlee Avenue, 40 feet wide, South 03 028'00 "East for a distancE of 49.20 feet to the Point of Beginning. Containing therein 508.123 square feet of land, more or less. PARCEL 4 All that certain real property situate within the City of Saratoga, County of Santa Clara, State of California, being a public easement for street purposes which is being herewith vacated by the City of Saratoga the subject lands described as Parcel 4 shall revert to that certain parcel of land designated as APN: 503- 28 -072, now or formerly owned by James N. & Louise A. Wholey, the reversion is in accord with the original property lines which have controlled the neighborhood, and being more particularly described as follows: BEGINNING at a monument designated as R7 on Map No. 2 of the Mary Springer Tract filed May 4, 1905 in Book K of Maps at page 33 itp the office of the Recorder of the County of Santa Clara, State of California, said monument RT being also shown on the map of Tract No. 1318, Wildwood Heights, filed April 17, 1956 in Book 68 of Maps at pages 16 & 17 in the.office of the Recorder of the County of Santa Clara, State of California; THENCE Northerly, from the Point of Beginning, North 01 °48'00 "West for a distance of 20.00 feet; THENCE Easterly, North 88 ° 12'00 "East for a distance of 68.58 feet to the Westerly line of Esterlee Avenue; THENCE Northerly, along the Westerly sideline of Esterlee Avenue as said Avenue is shown on said Tract No. 1318, North 03 °28'00 "West for a distance of 71.74 feet to a non - tangent curve on the Southerly sideline of Canyon View Drive, 60 foot wide; THENCE Northeasterly, along the arc of a curve to the left from a tangent bearing North 36 °52'50 "East having a Radius of 105.00 feet, a central angle of 17 °32'50" and an arc length of 32.16 feet to a point of tangency; THENCE Northerly, North 19 020'00 "East for a distance of 8.33 feet to a point that is the intersection of the Southeasterly line .gf_ said -Canyon View Drive and the centerline _of of Esterlee Avenue, 40 feet wide, as shown on Map No. 2 of the Mary Springer Tract; THENCE Southerly, along the centerline of Esterlee Avenue, 40 feet wide, South 03 °28'00 "East for a distance of 127.30 feet to a point that is the intersection of the centerline and its prolongation of said Esterlee Avenue and the centerline of the 103.62 feet street; THENCE Westerly, along the centerline of the 103.62 feet street, 40 feet wide, South 88 ° 12'00 "West for a distance of 89.17 feet to the Point of Beginning. Containing therein 3521.301 square feet of land, more or less. These d sgiptions prepared by me. arren E. Mc ow Land Surveyor No. 3414 License Expires: 06 -30 -96 t3 No. 3414 CI► . I SARATOGA CITY COUNCIL EXECUTIVE SUMMARY NO. MEETING DATE: February 5, 1997 ORIGINATING DEPT. City Clerk SUBJECT: SCHEDULED RECORDS DESTRUCTION Recommended Motion: Adopt resolution. Report Summary: AGENDA ITEM CITY MGR Any organization produces records which have only a limited period of usefulness. These records must be retained for an appropriate time, then properly destroyed. Some records such as minutes and agreements are never destroyed, but most records are ephemeral. Saratoga's records management policy includes a records retention schedule which specifies the time period each type of record is to be retained by State, local and federal law. In accordance with this policy, the Deputy City Clerk from time to time review records retention schedules to determine which are eligible for destruction. The list of eligible records is submitted to the department heads, the City Attorney and the City Manager for approval. After all have approved destruction, the list is submitted to the City Council for final approval. Fiscal Impacts: None. Follow Up Actions: Records will be destroyed. Consequences of Not Acting on the Recommended Motions: Records will accumulate indefinitely until entire basement, and eventually the entire City Hall, is filled with records. Attachments: Resolution. 053c Encroachment permits 1982 -82 Eng 065c Bay area Metropolitan Transportation Comm.; Water District 1983-85 Eng 1987-88 Eng 085d Cash receipts (yellow copies) 004a Po's, Comupter problems, class fms, deposit wkshts, theater calendar DOW Budg. reserv., class deposits, schedules, etc. 005a Softball, releases, corrrespondence, calendar, receipts, etc. 005d Class information - Stats, payroll, deposits, brochure, etc. 007d Disbursments, vouchers, payroll, class stets, etc. 008a Reg. forms, over 35 basketball, softball 008d Dept. records: PO's, bldg. res., petty cash, etc. 009a Theater, classes, stets, receipts 009d Class rosters, statistics; disbursements; deposits. 034d Class,trip rec., PO's, darkroom, computer rec, Youth Comm., Health Permits 035d Class records 8 financials 036d Class, trip records 8 financials 037d Class trip records and financials 038b class payroll, refunds, stets, brochure info., deposit info., 038d Class, bldg. records and financials & correspondence 040c Calendars, corres.,po's,warrant list, rentals,refunds,payroll,deposit slips,receipts,birth cert 041c Revenue summary reports, 8/92-6/93 045b Reservations, vouchers, P.O.'s, memos, reports, registration 045d Class deposits, reservations, schedules, registration 049b PO's, bldg. sup.rep., disbursmts, refunds, contracts, sched, etc 049c Bldg. sup. rpts, warrant list, youth comm., trips, class, etc. ,remodel info,salary survey 1983-87 1985 -87 1987 -88 1988-88 1986 -86 1987 -89 1985 -85 1984 -90 1985 -85 1991 -91 1990-90 1990 -90 1990 -90 1987 -87 1991 -91 1981 -94 1992-93 1986-88 1993 -93 1987 -87 1985 -89 D69d Budget, Financial Projects, Quarterly Financial Reports 073d Financial statement, audit trails 198[ -8e rin 074d Fin. Stmts /audit trails /timeshts, petty cash cks, bank dIP 1988 -88 Fin 075d Financial statements /audit trails July - December 1987 rec. 1981 -88 Fin 1987 -87 Fin I Argow corres.; CSO corresp, reports, clippings, files, descr CSO chron file; false alarm 1981'90 Corns receipts Citations, holds, false alarm, court, CSO materials 1989 91 C orns Incident Reports, 11/85 -2/86 1987 -90 Corms CSO Monthly Reports, 1/91 -10/91 1985 -86 Corms Incident Reports, 7/85 -10/85 1991-91 Corns Party ord., dance hall, x- gaurds;tel lmc,p.saf cam 1985 -85 Corns Incident Reports 1/85- 6/85o�' 1987 -90 Cams Water Mgmt. Complaints; CSO Reports (Jan - Sep 1989) 1985 -85 Cams Correspondence, PSC Correspondence, pondence Agendas, Ref. Materiel 989 -89 Comets CSO Reports 11- 12/91; Complaints 551 -750 (Complt. Mgr.) 1985.86 Corns CSO index cards, 1/86 -12/87 1991 -91 Corns CSO index cards, 1/84 -12/87 198687 Cant Business licenses and affidavits 1984-87 Corns CSO Reports, logs; Crossing Guard Correspondence 1988 -89 Corns False'Alarm invoices; solicitor perm; park. cit; DMV holds; receipts 1988 -90 Ca^S Complaint Manager System Complaints 1 -750, 10/90 -8/91 1980 -89 ComS CSO reports, GE Radio info packet; parking citations 1990-91 Corns False alarm bills /invoices /cards 1985 -90 Corns CSO Monthly Reports 1990.91 Corns Public Safety commission: corr, roofing; party letters 1990-90 ComS copana Reports (Sheriff) 1987.89 Corns Paid parking citations, 1 -87 to 12 -88 1989 -90 ComS Monthly revenue reports for false alarms 1987 -88 Corns CSO Chron, Pk. Cit. materials, false alarm billing listing 1987-87 Cams 1991 -91 Cams )27d Personnel: Planning Dir Recruit, Asst Eng Recruitment 1991 -91 001a 1990 Recruitments - Applications - not interviewed 1990-90 005b Pot. Dev. Conf, Leg.bult.,VillageNoiseComm.,Open Space TF,Sister City Baden- Baden,Village TF,(cont'd) 1984-94 005b Village Host Assoc.,IGC Corres.,Leg. advocacy, Prop. Ins., PERS Bull. 1984-94 OD6a Cable TV, Health Insurance, P.O.'s, Pavement, Water Cons. 1983-90 010a Corres., ABAG, SHARP, Annual Camp. Survey, Budget 1988 -92 0118 CDBG files, Library funding (Library 1985 -87) 1985-89 012a Cities Group, CDBG files 1986-91 012d Personnel files: not interviewed; terminated employees 1988 -91 013d Sheriff Contract, PubSafCortm, Massage, cable TV, Hakone, PO's,health paymt 1985 -92 014b Budget, Goals, Atty, corres, Sheriff Contract 1986 -92 016a Interviews 1989 -90 017b City Atty PO's, UUT exempt, Transpt ,EIR consult,Traffic movement, street closures ( cont'd) 1978-94 017b Pre -sale insp.prog,Beautification TF, vector control, sheriff, Cox project (cont'd) 1978 -94 017b Individual Sites, Traffic movement, street closures, haz.abatement dist.,hist.pres.,Vis Regina water 1978 -94 025d Rt 85, Traffic Authority 1982 -90 0264 Leg Butleti-th, Budget, County Comm., Corres. (King, Argow) MTC 1980 -91 027b Grants, CDBG 1989 -92 )27d Personnel: Planning Dir Recruit, Asst Eng Recruitment 1991 -91 Mgr )28d Comm. Gdn., Gift Catalog, Benefit Payout, Unemplymt, County Comm, Rev. Shar, State Grants (cont'd) 1961 -91 Mgr )28d Gen.PLan Rev,Transp,Storm Damage,Hwy 85,Bus Stops ,Lesse,Comm.Gp.,Vill.Spec.Pl. 1961 -91 Mgr )30d Health Pin, Right to Work, Proj Match, ABAG, Surplus Prop, UtilityTax, Library, Landfills /dumps 1984-92 Mgr )31b Personnel: Terminated; Utility User Tax Forms, Mgr. Correspondence 1978 -92 Mgr )31d Regional Govt, Def. Comp, NPC, Equipment, Haz. Mat., Green Valley, SDN4, Fire Dist, Nuisance 1978 -91 Mgr )33d Workers Comp., ABAG Health, Transp, Cable TV, Budget, Trailer Lease 1985-93 Mgr )50c Eisner, Toppel, Personnel, PO's, Disability insurance, Pollut, Arch. Barriers,Grand Jury,CATV 1983-93 Mgr )69c Proc., Leg. Bull., Utility User Tax Correa., Rt. 85 doc., Recycle Ctr. 1977 -90 Mgr )70c To -Do, Prop. Ins. Fees, SASCC, Traff. Auth., Recycling 1980 -92 Mgr )70d Term Employees; Interviews 1982-89 Mgr )78d P.O.'s, Mgr. corresp., RFP responses; right to work (employee forms 1988-90 Mgr 1985 -89 Mgr 1985 -89 Mgr 026b Interviews, Recruitment 057b volunteer Asst. Recruit, Planner Recruit, Quito Park Access 1991 -92 Pers 1989 -92 Pers SA QRATOGA CITY COUNCIL V 7 1 AGENDA ITEM: r MEETING DATE: February 5, 1997 CITY MGR ORIGINATING DEPT.: City Manager's Office Jennifer Britton, Assistant to the City Manager Paula Reeve, Public Services Assistant SUBJECT: Consideration of Additional Allocation of Community Development Block Grant funds from FY 1996/97 to the Project Match Agency for FY 1996/97 Recommended Motion(s): That Council approve a funding subsidy to Project Match under emergency conditions, and that Council make it a future policy that funding requests that are off -cycle not be considered. Report Summary: In March 1991, the City Council agreed to provide rent subsidies using HCDA Community Development Block Grant funds to assist Project Match in operating a group home in Saratoga. Project Match is a non - profit organization which works to match low income seniors in shared housing. A suitable residence was located on Blauer Drive in the Argonaut area and a lease was signed for a five year period from July 1, 1991 through June 30, 1996. The total cost of the $69,876 rent subsidy was reimbursed to the City from CDBG funds. Over the five years, Project Match established a track record for providing low income seniors an opportunity to live independently in a supportive and affordable environment in Saratoga. Project Match is currently requesting $14,700 to cover its ongoing rental obligation for July 1, 1996 through June 30, 1997. In the middle of the program year 1996/97, Project Match realized that the lease agreement for the Blauer Dr. residence expired June 30, 1996. Language in that agreement stipulates that extensions to the lease are possible through mutual agreement of the parties involved and with that the agency sought and secured an extended lease for the period July 1, 1996 to June 30, 2001. This put the agency in a continued position to receive rental subsidy income from the City and also meet the County's requirements for such subsidies. Due to an oversight occurring in the course of a management staff change, the agency neglected to apply for continued rental subsidy funding from the City of Saratoga during the City's normal FY 1996 -97 CDBG application cycle last February. They are requesting that Council make an exception to that cycle and provide the $14,700 funding at this time. Analysis: In consideration of this issue, staff researched past funding practices and Council policy decisions in this area and could not identify an identical situation whereby an agency sought funding both 1) after the funding process was completed, and 2) due to an internal organizational oversight. In May of 1996, Council was approached by the Mid Peninsula Housing Coalition (MPHC) who requested $49,246 for a rehabilitation project at Saratoga Courts. This occurred after MPHC was denied rehab funding from the Community Development Block Grant Urban County Competitive Pool on the basis that the organization should first seek 0 support from the City of Saratoga. They learned this after the City's competitive cycle had already been completed. In addition to not knowing the County would request that the agency seek monetary support from the City of Saratoga, MPHC staff had inadvertently overlooked filing an application for funds from the City of Saratoga for the 1996/1997 funding cycle. Council did take action to award funding to MPHC at that time. Alternatives: Council has several policy alternatives with respect to this request. The basic question at hand is whether or not to fund an agency that requests funding out of synch with the established City process designed specifically for the granting of CDBG funds. Should Council elect to fund any group out of cycle, they would be setting a new policy precedent that it is possible to receive CDBG funds from the City outside of the established funding cycle when there has solely been an internal organizational oversight. Council will note that the City does have a fund balance of $53,159 in the Low Income Senior Housing fund which could be drawn down for this purpose. In the past, Council has attempted to build up a balance in this fund so as to leverage larger housing projects and /or acquisitions that meet the Council's goal of providing a diversified housing stock which includes some low- income senior housing units. Drawing down on this fund would impact how soon the City would have the leveraging capability to secure such housing. If this alternative is selected, it would also imply that additional staff resources will be available to handle the analysis and reporting necessary to process any application(s) off - cycle. With future staff resources not likely to hold steady or increase, this could present an added challenge. A second alternative would be for Council to deny the funding request to Project Match by clarifying that it is the City's policy not to make funding exceptions outside of the established cycle and encourage the applicants to seek funding within the established cycle at par with other agencies who have managed to do so. This would cost the City nothing and would certainly negatively impact the agency's ability to meet the monthly rental obligation at the Blauer Dr. site. A third alternative would be for Council to take action to provide funding to Project Match on an emergency, one -time only basis, and further, take policy action to establish that future requests for funding that occur off -cycle not be considered by the City. This would recognize the emergency situation faced by Project Match, preserve the established relationship between the Project Match agency and the City of Saratoga, and put the City in a proactive position in the future should off -cycle funding requests occur. With respect to these alternatives, staff recommends the third alternative. Staff recognizes the long- standing relationship with the Project Match organization and the emergency needs of the agency. We also see an opportunity to establish clearer policy direction for future situations such as these. Fiscal Impacts• Approving the $14,700 grant would reduce Saratoga's Low Income Senior Housing Fund (CDBG) from $53,159 to $38,459. ., Project Match Funding Request Page 3 Advertising, Noticing and Public Contact: Posting of Agenda. A copy of this report is also being provided to Project Match. Conseauences of Not Acting on the Recommended Motions: Project Match's ability to meet it's monthly rental obligation would be jeopardized; the agency is currently running at a deficit and drawing down on cash flow. If funding is denied, they would have to seek funding from other sources and, further, the City Council would not have a policy in place should future off -cycle requests for funding occur. Follow Up Actions: Staff will notify the Project Match Executive Director and the County of Santa Clara, and will develop and execute an addendum to the last agreement with Project Match for the Blauer Dr. residence, and will memorialize the Council's policy on off -cycle funding for CDBG applicants as part of the City's overall CDBG program guidelines. Attachments: 1. 12/11/96 Letter from Project Match Executive Director 3 ffigatch JECT 1 nC. 555 -C Meridian Avenue San Jose, CA 95126 -3423 (408) 287 -7121 FAX (408) 287 -3764 Shared Housing - Senior Group Residence - Homelessness Prevention - Bridges to Independence December 11, 1996 Ms. Paula Reeve Public Services Assistant Office of the City Manager City of Sartatoga 13777 Fruitvale Avenue Saratoga, CA 95070 Dear Ms. Reeve, C� I am writing to request $14,700 from the City of Saratoga CDBG funds so that Project Match can continue to provide affordable housing opportunities for seniors in Saratoga. Project Match has been a recipient of this funding since 1991 for our senior group residence services located at 20218 Blauer Drive. Due to an oversight on our part, Project Match did not apply for this funding during the regular FY 96 -97 application cycle last January. The $14,700 requested is for our ongoing rent subsidy contract and will be expended by June 30, 1997. Our current lease is for a term of five years and began in May, 1996. I hope the City can grant this request. We understand that this causes your department and the Council a bit of extra work and we do apologize for missing the application deadline. In the future we will be certain'that our application complies with your timelines. Very tnily vniirc 10 Funded in part by the cities of San Jose, Santa Clara, Saratoga, Milpitas, Campbell, and Los Altos; the County of Santa Clara; and the Community Development Block Grant programs of Sunnyvale, Mountain View, and the Urban County of A United Way Agency Santa Clara including the unicorporated areas and participating cities. 11 1 SARATOGA CITY COUNCIL EXECUTIVE SUMMARY NO. 3 ZC AGENDA ITEM 5. MEETING DATE: February 5, 1997 CITY MGR. ORIGINATING DEPT. Finance SUBJECT: Award of contract for computer hardware and software to HTE -SMI ,Inc. Recommended Motion(s): Approve contract as recommended by Finance Advisory Committee at their January 27, 1997 meeting. Report Summary• Background - In December 1995, to address problems associated with an aging, inadequate and unreliable information system, City Council commissioned preparation of a Technology Master Plan (TMP). The TMP was based upon an exhaustive needs assessment study and included a short and long range (5 year) plan, recommendations for procurement of necessary additional hardware /software and implementation plans and schedules. More specifically, the TMP recommended selection and implementation of a comprehensive municipal information system to gain productivity improvements and replace the current ad hoc system which is no longer supported. City Council adopted the TMP and funded the first two program years in its Budget. In carrying out TMP recommendations, staff, with assistance from WISE Consulting, embarked on a process of identifying potential solution providers. Based on several recent publications and references, the field of qualified vendors was quickly narrowed to five candidates. In April and May, staff representing all City department's attended an in -house demonstration of the various vendors product line. Staff rated the vendors using a point system. From that exercise, two finalists, HTE -SMI, Inc. and Eden Systems, were selected for further consideration. In August, staff visited two HTE clients and two Eden clients. The purpose of the visits was to objectively evaluate the software in operation. Staff also performed background investigations on the vendors, determined the degree of difficulty in converting to the vendor's software/hardware and assessed the extent of ongoing support provided. In September, armed with information obtained from our site visits, staff prepared and distributed a detailed (100+ page) Request For Proposal that spelled out our application software, hardware, installation, training and support requirements. HTE and Eden responded to the RFP. Last November, staff prepared a report recommending the award of contract. The matter was tabled as a result of the loss of utility users tax, pending further consideration of the budget. Subsequently, City Council determined that no budget reduction would occur in FY 96197, where the majority of computer acquisition costs were budgeted. Staff was also advised to revisit the hardware and software costs and reduce the size and scope of the project recognizing the balance between the "new fiscal realities " of the City and the need to provide staff with appropriate tools to be productive. Staff worked with the HTE -SMI, Inc. to accomplish this objective and a revised proposal has been submitted. Discussion- Following the site visits and review of proposals provided by HTE and Eden, staff concluded that both firms could perform most of the requested work. However, the similarities in firms ends there. HTE and Eden follow two distinctly different approaches in addressing solutions for cities information needs (you may recall your October 22, 1996 Quarterly Review Meeting, when staff presented an Executive Summary highlighting the firms differences - see Exhibit 1). The HTE Solution: HTE's approach is turn key. They provide a vast array of software, hardware, training and project management services as a basic package for all new installations. Their support is intensive and extends to both software and hardware. They are committed to ongoing product improvements based upon input from their national and regional user groups. HTE has roughly $17 million in assets, several hundred employees, 800+ clients and has been in business since 1981. Their approach emphasizes a total solution, provided by a single vendor, in a stable processing environment. HTE is proposing a software/hardware package consisting of their applications running on an IBM AS /400 (central computer) with IBM's proprietary operating system. The AS /400 is recognized for its reliability and minimal manpower requirements. However, due to its proprietary nature, HTE and the City will, to some degree, be dependent upon IBM's future. The computer and software are transparent to the end user. The central computer is connected directly to the network interface. HTE's software applications are intuitive (easy to learn and use), comprehensive (meets our requirements), integrated (eliminates duplication of effort), written (available for immediate use) and enjoy a good reputation from other end users. HTE's product line up is extensive and this provides the City with the option to implement additional modules, should it be warranted and funding available. An example of this is in the area of CNG /petroleum fuel usage control/billing system. Consistent with the TMP, HTE's proposal envisions a file server running office automation applications such as Microsoft Windows NT, sharing data between end users, and connecting the IBM AS /400 to the rest of the computers. This combination of software and hardware allows full use of the IBM AS /400's capabilities and ensures end users are productive in the event the central computer has to go down for any reason. As for training and installation services, HTE's proposal is very complete with double the hours of their competitor. An active user group is in place for discussing problems, identifying solutions and working closely with company representatives on future product enhancements. Staff was favorably impressed by HTE after the site visits and reference checks with existing customers were positive. The Eden Solution: Eden follows a different approach. They focus on their software line and leave the hardware solution, and whatever operating software is required to run the hardware, up to the customer. At the customer's request, they will sell hardware, however, they do not support it after the sale. This approach requires coordination and cooperation amongst several vendors. They too are committed to ongoing product improvements, but their direction appears to be driven primarily by their marketing department. Eden did not disclose their financial information. They have under 50 employees, 200+ clients and have been in business since 1981. Their approach emphasizes independence from hardware. Eden is also proposing a comprehensive software/hardware package consisting of their developed and in- development software running on a Compaq Quad 200MHz Intel Pentium Pro (file server /central computer) with SCO UNIXWARE and INFORMIX open software. The computer and software are semi - transparent to the end user because UNIX can be tricky to operate. This software/hardware configuration will more likely result in finger pointing amongst the vendors if a piece fails to function as intended. Since the central computer and the file server are one in the same machine, integration with the City's local area network is straight forward. However, this configuration may require an additional file server for the following reasons: ensure end users are productive in the event the central computer goes down; reduce competition for system resources on the central computer; and eliminate complex setup and maintenance operations. It is important to point out that this is a fairly new design configuration and that some debugging and refining is expected. Like HTE, Eden's software applications are intuitive and run well. As was the case with most of the vendors the City reviewed, Eden's product line did not match all our needed requirements. Regrettably, many applications are still on the drawing board, in the process of being written or require special programming (paid at our expense) to interface with one another. With respect to file server and end user operations, Eden's proposal is also consistent with the TMP. As for training and installation services, Eden proposes roughly half the hours of their competitor. No project management services are envisioned, leaving this responsibility up to the City. Staff was informed of a user group, but inquiries with existing clients could not confirm the active presence of such group. Reference checks with existing customers were favorable. The Point Comparison: Both firms were evaluated using an objective point system developed by the Western Governmental Audit Forum. The evaluation has four sections: mandatory criteria; product, service and cost criteria; site visit and reference checks; and additional services. Out of a possible 100 points, 90 points are awarded based on product, service and cost and 10 points are awarded based on site visit and reference checks. Staff awarded HTE 82 points; Eden 59. A summary of the results follows (see Exhibit 2 for details): Criteria HTE Eden • Mandatory Elements Yes Yes • Product, Service and Cost 1. Financial Applications 1. Software 44 33 2. Hardware 10 10 3. Annual Support 15 7 4. Active/Local End User Network 4 2 • Site Visit and Reference Checks 5. Site Visit 5 3 6. Reference Checks 4 4 • Additional Services Not Included Total Software and Hardware 7. Programming Yes Yes 8. Project Management Yes No Total Points 82 59 The Cost Comparison: HTE software and hardware, exclusive of annual maintenance fees, are $236,537.92 (18% under budget) versus $297,852.96 (3% over budget) for Eden. The City's budget was $290,000.00. HTE's annual maintenance fees are $25,126.00 (43% under budget) versus $29,177.00 (33% under budget) for Eden. The City's budget was $44,000.00. The allocation of costs was significant between the two firms. The summary below highlights those differences (see Exhibit 2 for details): Component Budget HTE Eden • Software 1. Financial Applications $125,000.00 $50,592.00 $104,500.00 2. Other Applications 90,000.00 46,971.00 45,185.00 3. Installation and Training Included 67,400.00 115,899.00 • Hardware 4. Equipment 75,000.00 62,574.92 32,268.96 5. Installation and Training Included 9,000.00 Not Included Total Software and Hardware 290,000.00 236,537.92 297,852.96 • Support 6. Software 36,000.00 21,500.00 29,177.00 7. Hardware 8,000.00 3,626.00 Not Included • Additional Services 8. Programming No Budget 125.00/hr I00.00/hr Total Cost $334,000.00 $261,663.92 $327,029.96 A complete cost breakdown is provided by each vendor (see Exhibits 3 and 4). Staff independently rebid the hardware pricing offered by HTE. Using government contract pricing, IBM quoted the City a price of $63,924.00 versus HTE at $62,574.92. HTE's lower price is not unusual given their business partner relationship with IBM and the quantity discount HTE obtains (see Exhibit 5 for IBM pricing). The Technology Steering Committee Decision: After completion of the site visits, reference checks, review of the proposals and costs, the Technology Steering Committee unanimously voted in favor of HTE as the preferred municipal information system solution vendor. Their solution addresses staffs immediate concern of replacing the 10+ year old, unsupported financial and community development software which has recently failed and is in jeopardy of crashing permanently, thereby precluding staff from performing essential duties. The Committee believes HTE's turn key approach is superior to Eden because it is balanced, comprehensive and most likely to succeed in Saratoga's limited resource environment. Copies of both proposals are available for review in the Technology Coordinator's office. The Finance Advisory Committee (FAQ Recommendation: At their 01127197 meeting, the FAC unanimously recommended City Council approve the agreement with HTE -SMI, Inc. for the software and hardware. The recommendation was based on the following reasons: 1. The revised proposal reflected a downsized or "de-scope." approach to upgrading the City's information processing capabilities. 2. HTE -SMI, Inc. proposal represented an 18% or $22, 000 reduction in software costs and a 7% or $18, 000 overall reduction in capital outlays from the prior proposal. 3. Contract terms allow the City to guarantee software prices on non - financial /community development related software in future years without committing the City to buy them now. 4. Recognition of the immediate need to upgrade the City's computer software and hardware capabilities since they are no longer supported or reliable and frequent hardware failures plague the current system. S. Funds are budgeted in the current fiscal year and no additional appropriations are required. The Other Related Projects: Staff is working on two other technology related projects. The first project involves replacing the cabling and routersibridges that provide the "backbone" to our local area network and the file server itself This project is critical to the overall success of our technology program. The City has experienced repeated failures with our network due to faulty cabling and hubs. The result has been frequent and complete breakdowns in our ability to transact information. Staff is currently in the process of completing the design phase of this project. Total project cost is budgeted at $75,000.00. The second project involves replacing our aging PC fleet. Council awarded this contract earlier and the project is well under way. Staff anticipates phasing out the oldest of the City's PC inventory by the end of the second quarter. Total project cost is $60,000.00, $30,000 in FY 1996/97 and FY 1997/98, respectively. Staff reductions may lower FY 1997/98 expenditures. Fiscal Impacts: The cost of executing the agreement with HTE is $236,537.92, which is $53 thousand less than budget. Favorable contract payment terms were requested and agreed to by HTE on the software: 25% on contract execution, 25% on installation completion, 25% on training/conversion completion, and 25% on final system acceptance. This funding scenario works within the parameters of the TMP. Sufficient funds are available within the existing Management Information Systems budget (Program 8085) to cover the expenditure. No additional appropriation is required at this time. Follow Up Actions: Execute contract with HTE. Coordinate implementation schedule. Consequences of Not Acting on the Recommended Motion: TMP can not be implemented as planned. Significant risk of total financial and community development system failure left unresolved. Immediate productivity opportunities will be forfeited. Compliance with current and proposed state and federal rules, regulations, legislation and mandates may not be meet. Exhibits 1. Municipal Information System Executive Summary 2. Municipal Information System Proposal Evaluation Worksheet 3. HTE Detail Cost Proposal (Revised 1/27/97) 4. Eden Detail Cost Proposal 5. IBM AS /400 Pricing Exibit 1 Munnicipal, i s 3�'33p�j�311113)31 "13. `j Executive Summary I J' : ®® I III• : .�.•' rr. o no '.I 1. • nr TR I �°J " ®.II •'1 ®:• II :® I III � .II •'1 � :� II .1 ' _ Budgotl$29& Piioe �1.8%� = Btatc ,����ul�.�' 3 %Over i 3� 13 _ $53kFFavcble $ *kUnfavarable .... sk —er,m commifbee No Remmmendpd Exhibit 2 CITY OF SARATOGA MUNICIPAL INFORMATION SYSTEMS Proposal Evaluation Worksheet I. MANDATORY CRITERIA $67,400.00;: a. Software (Note 1) a. Provide required software Yes Yes b. Previously installed products at similar entities Yes Yes c. Provide onsite training and installation services Yes Yes d. Provide comprehensive support for products sold Yes Yes e. Provide ongoing maintenance and updates for products sold Yes Yes f. Financially stable with proven track record Yes Yes g. All elements requested are included in proposal Yes Yes II. PRODUCT, SERVICE AND COST CRITERIA $67,400.00;: a. Software (Note 1) $115,899.00 1. Financial applications 0 -2 General Ledger/Building 1. Software support Job/Project Accounting 10: Purchasing /Accounts Payable /Cash Disbursement 67, 400.00 Accounts Receivable 28, 400.00 Cash Receipts Asset Management .: Cash /Investment Management $75,000.00 Extended Reporting $62,574.92: Payroll /Human Resources $32,268.96 Public Employee's Retirement System (PERS) .... ..::: Applicant Tracking ;';:;:::::: Business Licenses 2. Other Applications 0 -21 Parcel Management/Planning Not included Building Permit 5 Code Enforcement 0: Service Request System Included Engineering/Public Works Systems 9,000.00 Maintenance Management/Work Order System Not included Parts /Supplies Inventory System ..... Fleet Management '; : <::;: Parks and Recreation System Toll free technical support line Planning and Zoning Citations/Parking Tickets ':` ::> General Application Software Requirements Other Applications 3. Software installation and training 0 -5 Installation Not included Training d. Active /Local end —user network b. Hardware (Note 2) 4 1. Hardware equipment 0 -1( Central processor and operating system Printer and peripherals 0 -90 2. Hardware installation and training 0-5 Installation $327,029.96 Training III. SITE VISIT R REFERENCE CHECKS 6,324 00 3,74000 Included Not available 10,472.00 Included »:'> 10,472.00 3,995.00 4,48800 7,480.00 Included Included Master Plan Amount Estimate $265,584.00 $215,000.00 11,500.00 Included Included 10,000.00 10,5X.00 Not available Included 30, 0X.00 Included Not included 7,500.00 $45,185.00 8,00000 Included Included Included Not available 17,000.00 Included Not included 4,750.00 Included Not available Included 5 $67,400.00;: >':.3 $115,899.00 Included $29,177.00 Included 1. Software support 87,499.00 10: $21,500.00 67, 400.00 $29,177.00 28, 400.00 Annual $71,574.92 .: $32,268.96 $75,000.00 5. $62,574.92: `; z >10: $32,268.96 $75,000.00 .... ..::: 51,641.64 ;';:;:::::: 32,266.96 10,933.28 Not included 5 $9,000.00 0: Not included Included Not included 9,000.00 i:::1:i;:i:: Not included ..... Included '; : <::;: Not included Toll free technical support line c. Annual support $25,126.00 $29,177.00 $44,000.00 1. Software support 0 -10 :. 10: $21,500.00 - Z $29,177.00 $36,000.00 Annual 21,5X.00 . 29,177.00 Toll free technical support line Included .... ..::: Included 24 hour telephone support Included Not included 2. Hardware support 0-5 5' $3,626.00 Not included $8,000.00 Annual 362600 :::: Not included Toll free technical support line Included ':` ::> Not included 24 hour telephone support Included Not included d. Active /Local end —user network 0 -5 4 Available :2 Not active TOTAL PRODUCT, SERVICE AND COST POINTS 0 -90 7.3. $261,663.92 52 $327,029.96 $334,000.00 III. SITE VISIT R REFERENCE CHECKS a. Site visit points awarded 0 -5 b. Reference checkpoints awarded 0 -5 4: 4'. TOTAL SITE VISIT & REFERENCE POINTS 0 -10 IV. ADDITIONAL SERVICES a. Programming services None 0' $12500 /hr 0: $100.00 1hr b. Project management None x 0 Included Not available TOTAL POINTS 0 -100. 82 59 NOTES: 1. HTE provides unlimited user access to software. Eden has several limitations on user access. Points are based on weighted average cost of similar applications. 2. HTE hardware costs include printer, modem and power backup supply valued at $10,933.28. This amount plus annual maintenance costs were excluded in calculating the weighted average cost comparison for determining points. c:\sam\miseval Exhibit 3 -1 leadquarters: 390 N. Orange Ave., Suite 2000, Orlando, FL 32801 -1693 ♦ (407) 841 -3235 Application Solutions for Government January 28, 1997 Thomas Fil City of Saratoga 13777 Fruitvale Avenue Saratoga, CA 95070 Dear Thomas, Enclosed you will find a revised RFP pricing worksheet. This worksheet supersedes any and all pricing quotes that you have received to date. What we have essentially done is included the 30 user client/server Graphical User Interface (GUI) offering as part of the license fees. We are pleased to say that this amounts to over a $25,000 savings to the City of Saratoga (The City) and an additional $4,200 savings in the annual maintenance costs. Over a five year period this savings amounts to over $45,000. In addition to the GUI discount and the 15% license fee discount, your past working relationship with HTE, Inc. has provided us with incentive to offer special terms and conditions to help you meet the special needs of The City. Therefore, we would like to extend the following option: The City may opt to purchase our software and services in phases as long as the phase I part of the contract exceeds $100,000 for software and services. We then will "lock -in" the remaining software and services pricing until June 30, 1998 allowing The City the option to buy or not buy. Essentially, you are protected from monetary obligation on future phases should The City be unable to proceed. We are willing to discuss any other terms, conditions or ideas that will help The City move forward with this project as soon as possible. Our goal is to make this the proverbial "Win -Win" solution and we recognize that The City, HTE Inc. and HTE -SMI, Inc. have all spent a great deal of time on this project and all of us would like to see this project begin as soon as possible. Please feel free to call and discuss anything with myself or Tom Mele. We look forward to a long lasting, successful business relationship. Sincerely, ,_/Jack Harward Executive Vice President A W. City of Saratoga - RFP Pricing Revision APPLICATIONS/ SERVICE DESCRIPTION LICENSE FEES TRAINING HOURS TRAE41NG COSTS ANNUAL SUPPORT TRAINING TRIPS DAYS PER TRIP COMMENTS Building Permits/GUI - BP 7,440 64 4,800 1,100 3 3,3,2 Code Enforcement/GUI - CE 4,400 48 3,600 620 2 3,3 Add 4 hours if using MR to bill fees. Cash Receipts/GUI - CR 3,920 ,/ 16 1,200 620 I 2 Trip usuafly hooked to PR or PI training. Citations/GUI - PT 8,800 48 1 3,600 1,340 2 3,3 Fixed Assets/GUI - FA II 3,920 ✓ 16 1,200 620 1 2 Trip usually hooked to PI second visit. Fleet Management/GUI - FM 12,320 v 56 4,200 1,820 3 2,3,2 GMBA/GUI - GM 12,720 ", 72 5,400 1,820 3 3,4,2 See Note 2 - GMBA. Extended Reporting/GUI - ER 5,680 16 1,200 860 1 2 Recommended after GMBA live. Land Mana ement - LX 0 16 1,200 0 0 0 See Note 7 - LX. Trip usually tied to another visit. Land File Conversion 3,000 0 0 0 0 0 Land Management module included with BP. Accounts Receivable/GUI - MR 5,680 56 4,200 860 3 2,3,2 Occupational Ilcense/GUI - OL 3,920 32 2,400 620 2 2,2 Trips usually hooked to BP 2nd and 3rd visit. Purchasing/Inventory/Bids/GUI - PI 9,200 88 6,600 1,340 3 3,3,5 See Note 3 - Purchasing. Ps o11/PersonnetlGUI - PR 9,200 V 88 6,600 1,340 3 4,4,3 See Note 4 - Payroll. Applicant Tracking/GUI -AT 5,280 16 1,200 860 1 2 Planning & Zonis /GUI - PZ 5,280 44 1 3,300 860 3 2,2,1 One day live will be hooked to another trip. Facility Management/GUI - WF 12,320 " 48 3,600 1,820 2 3,3 See Note 6 - WF. Query/400 Trabdrig 0 16 1,200 0 I 2 See Note 5 - Recommended after Financial "live ". Menu Driver Training 0 16 1,200 0 0 2 See Note 5 - Recommended along with Query/400.- AS /400 Su outline 0 0 0 3,500 0 0 See Note 8 - 24 hour AS /400 System Supportline. Network Supportline 0 0 0 1,500 0 0 Note 9 - Network Supportline. Office Vision Training 0 16 2,000 0 1 2 ffigldy Recommended, possibly can combine trip. GUI Trabag 0 0 1,000 0 1 I Trip may not be required, possibly done at Install. System Trabdng/Install/Setup 0 0 5,000 0 1 5 See Note 1. SUB - TOTALS 113,080 772 64,700 1 21,500 37 Less Vohane Discount (15 %) 16,962 772 647700 1 21,500 37 TOTALS 96,118 1/20/97 Supersedes previous RFP pricing Page 1 SARA4.XLS City of Saratoga - RFP Pricing Revision Notes : Installation - Application Software, System Hardware & Software, Application Software. Note 1 : Installation/Training/Setup : HTE -SMI Technical Services group provides AS /400 installation assistance for new system installations. HTE -SMI will order, track, schedule delivery for the proposed AS /400 system,. In addition, HTE -SMI will bill and invoice the customer for the proposed AS /400 system and associated peripherals. An AS /400 consultant / System Engineer will assist with: • Project Planning / Management to ensure timely and accurate implementation of deliverables. • Provide pre -site planning review. • Perform on -site services such as installation of IBM Cumulative system software and maintenance tapes, installation of HTE -SMI applications software (including base menu set -up and security setup). ch * Install proposed non -IBM and IBM customer set -up equipment. - * Define system parameters and devices to the AS /400. .Q * And, provide system operations / administration training for up to 3 users. x Note 2: GMBA - An additional 2 day visit is recommended during first quarter of use. Note 3 : Purchasing - A separate 2 day visit for Bids training is more beneficial after Purchasing has been live for 30 days. The Bids system makes heavy use of history and Commodity /Sub - Commodity files. If end user departments are to be trained by HTE -SMI for requisition entry, a 4 hour class per department is recommended. Maximum recommended class size is 12 students. Note 4 : Payroll - A 2 day follow up visit for Payroll is recommended. Specific issues; Month -end, Budgeting, integration to general ledger. If user departments are to be trained for "time- entry" a 4 hour class is recommended for each department to be trained. Up to 12 students per 4 hour session. Note 5 : Query/400 and Menu Driver Training - Both of these training classes are recommended after or along with the GM, PR, & PI "live" visits for maximum benefit. Recommend discussions with the City to determine the best time during installation to receive maximum benefit. Note 6 : WF - An additional visit of 2 days per department, over 4 departments is recommended. Note 7: LX - While LX training is substantially included in the associated application, a customer is urged to opt for LX training. This is typically desirable if one department or area will be responsible for the maintenance of the LX systems. This is priced above. 1/20/97 Supersedes previous RFP pricing Page 2 SARA4.XLS City of Saratoga - RFP Pricing Revision Notes : HTE Technical Support Services (AS /400 and PC /Network). Note 8 : HTE AS /400 Supportline services augments your annual application support and is required. HTE AS /400 Technical Support Line is an HTE service to help enhance the productivity of AS /400 users and support staff. It is designed to provide customers a single focal point . for AS /400 system - related issues. HTE Support Line is available 5 days a week, 8 hours a day. HTE Support is accessible either electronically or by telephone. The HTE AS /400 (Technical) Supportline provides assistance with: * Usage questions for system software such as Office Vision/400, Query/400, Rumba/400. * Usage questions for system software integration with HTE applications. * System operator and system software integration with HTE applications. * Device set -up and connectivity issues. * System software and hardware upgrade planning. !� * Assistance with hardware problem notification and management to 3rd party vendors. -P * System software problem handling and resolution. .H Note 9: Optional Network Technical Supportline (highly recommended) XThe HTE Technical Suppodhne for PC's and Networks provides assistance with: r * General LAN/WAN questions. * Device set -up and connectivity issues. * System operator and system administrator usage questions such as responding to messages, t security, profiles. * Usage questions for system software integration with HTE applications. * Assistance with hardware problem notification and management to 3rd party vendors. * Network Operating System assistance configurations and tuning. * Bulletin Board assistance for fixes. 1/20/97 Supersedes previous RFP pricing Page 3 SARA4.XLS Ln t M 1-t .,.4 I -ITE System Hardware / Software Investment Summary City of Saratoga, California 9/23/96 Description Extended Discount Net Maintenance' Cost Cost Annual AS /400 System Hardware $55,001.00 $4,400.08 $50,600.92 $3,126.00 AS /400 System Software $12,902.00 $928.08 $11,974.00 $500.00 Workstations $40,855.20 $0.00 $40,855.20 $1,303.00 Network $120.00 $0.00 $120.00 N/A Installation and Training $13,800.00 $0.00 $13,800.00 N/A HTE AS /400 Support Line Services $3,500.00 HTE Network Support Line Services $1,500.00 ►5 9t e m T. ... . Y... ...... .?........• ...............• ...... .........$122,678.............: 5,328.16..:....5... .......... ..... 12.... . .. ..... .:54,929,OD Options H.T.E. DirectTalk/2 System $30,088.00 $0.00 $30,088.00 $4,797.60 Cash Receipt Stations $6,140.00 $0.00 $6,140.00 $0.00 MicroSlate Pen Based Unit $8,185.00 $654.80 $7,530.20 $769.86 Pen Based Software $2,000.00 $0.00 $2,000.00 $400.00 • Nofe 1: System configurations and sizing are based on information contained in the RPP. I ITE reserves the right to make changes to the fmal configuration based on further discussion and/or an on -site analysis. Prices stated are valid for 90 days from the proposal submission dale. If applicable, the prices for IBM products and services are subject to change and are submitted for your information only. The terms and policies of the II3M Corporation govern any portion of this proposal relating to IBM products and services. Time 5:45 PM SARATOGA.XLS II.T.E., Inc. CONFIDENTIAL SUMMARY A J-t •rt f jrFE System Hardware / Software Investment Summary City of Saratoga, California 9/23/96 Installation and/or training prices do not include travel and living expenses. Actual travel and living expenses for installation and/or training trips will he re- hilled to the customer. • • Note 2: The Maintenance Fees shown are for informational purposes only. Maintenance fees are payable directly to the Manufacturer or other party providing the maintenance services. Please do not include these maintenance fees in any purchase orders or payments sent to IITE. SARATOGA.XLS II.T.E., Inc. CONFIDENTIAL Time 5:45 PM SUMMARY Sep-27-95 12 ::S 3P Exhibit 4 -1 City of Saratoga, California- inForum Bid Quotation 1321 Concurrent Users Products, Services and Equipment Publiabed installation, Training~ Total Llccnae Fee Setup, (Support Basis) Configuration Products: Pba.+e One Applications $2400.00 $6000.00 5277084.00 FinancialslGt,,ar.Akrwch. gwJRaqui.ainmon, DAeg4 hV-u -u Job L-ting) S350W.00 514400.00 SS(XX).W S57400.00 Pjyroll/Benefits/Position Control 530000.00 S 10500.00 S96(X).00 54000.00 543600.00 $ 12100.00 Fircd Asscts - S 1600.00 Busincss Liccnsing 55500.00 IQ Report Writer (Entcrprisc Liccnsc, 5695 per seat) 2 Seats IQ �rt Writer (Personal Licensc, 5250 per scat) 5 Seats 51600.00 $7100.00 Cash Rrccipting (singlc station) S10000.00 57500.00 included 51600.00 S1W00.00 Business Liccnsing Ph&" 2 Applicatioo_s $9100.00 $19400.(X) 513900.00 $17000.00 $11500.00 Work Orders. Inventory/Maintcnancc Management. Complaints $900.00 51600.00 Capital Project Accounting 5800.00 $1600.00 Permits and laspections/Parccl Managcr (Code Enforccmcnt. 3 uscrs cstimated) S8uciu.0o 5:1200.00 UM0.00 S15200.00 Parks and Rorrcation Managemcnt 54750.00 S1600.00 56350.00 Services: Data Filc Convcrsion Scrviccs -EsL $15000.00 S I5W0.00 Equipment, Third Party Applications, Database Software, Tools: Systan Admin. Sctup, $2400.00 $6000.00 5277084.00 Informix, tools 5146185.00 ^521733.00 $50299.00 _ S1(00.00 _S24W.00 551899.00 Acucobol Rumiauc (rcquircd for Business Licensing and Parks application only, 8 user) S13W.W laformix/Tools Annual Support 51300.00 IQ Rcpori Writcr (I Administrator License, $995 per scat) 1 Seat _. _ S995.00 $1390.00 $400.00 5400.00 $400.00 51395.00 IQ Report Writer (Entcrprisc Liccnsc, 5695 per seat) 2 Seats IQ �rt Writer (Personal Licensc, 5250 per scat) 5 Seats $1790.00 $ 1650.00 $1500.00 $1250.00 $1500.00 IQ Data Dictionaries Other: Trawl, Expcnscs-Est._- $6000,W 5102499.00 $6000.00 5277084.00 Total 5146185.00 ^521733.00 S28400.00 Edcn SystcrosAnnual Support @ 15% - laformix/Tools Annual Support 1 $6469.001 ot d Annual Support (Approx) I S28202.00 N 4 4j a r� N r4 �D Ot x n N a a In Ix Informix Onime Dynamic Server Dev. Informix 4GL RT Irrformtx 4GL-C: Dev. Informix 4GL RDS Dev Informix 4GL- Debugger Devstopnend Informix -Nut 15% Discount TOTAL Reflection Suite (25 Users @ $280 per user) ODBC Drtvem (25 Users Q $1D0pw user) Informs Pricing Edon Systems, Ire Prepared for the City of Saratoga, CNltornis 27 1,12500 30,375.00 5 1,500.00 7,500.00 29 300.00 8.700.00 3 2,70D.00 8,100.00 3 900.00 2,700.00 1 300.00 300.00 15 10000 1,500.00 1 99.00 88,175.00 Informix -Net 15 8,876 150.00 $30,299 $8,500 Annual Support $975(15%) 12,500 Informix Software Products Informix Onbm Dynamic Server RT 27 135.00 3,645.00 Inforrnbx Online Dynamic Server Dev. 5 180.00 900.00 Inlorrnix 4GL RT 29 35.00 1,01500 Inlonni x 4GL-C Oev. 3 110.00 330.00 Informix 4GL RD6 Dev 3 110.00 33000 Informix 4GL- Debugger Developmwd 1 99.00 99.00 Informix -Net 15 10.00 150.00 6.461.00 Al prices are approximate and may vary due to specl6c hardware configuration and mbx of components. When final hardware configuratlgn is selected, I vAll be happy to provide you vAth Ikm costs. Pape 1 Hdw & OS Exhibit 4 -3 ■ Operating System SCO Unixware 2.1 Application Server 1 671.76 671.76 185911 -001 SCO Open Server Development Kit 1 205.00 205.00 185911 -010 SCO Unixware 2.1 25 -user license 2 516.00 1,032.00 185911 -003 SCO Unixware SMP Upgrade (3rd CPU) 1 516.00 516.00 185911 -007 SCO Unixware SMP Upgrade (4th CPU) 1 516.00 516.00 185911 -008 76 Hardware Compaq 5000 Model 6/200 -1 S 200MHz Pentium Pro CPU, 64Mb RAM, 10/100 - Ethernet, CD -ROM, 256K cache, SmartArray Controller /P,etc. 1 13,046.00 13,046.00 219200 -004 64 -MB Memory Expansion Kit 1 1,663.20 1,663.20 219282 -001 128-MB Memory Expansion Kit 1 3,537.00 3,537.00 219283 -001 Pentium Pro 200/256K kit 3 1,053.00 3,159.00 228411 -001 Dual Pentium Pro Processor Board 1 864.00 864.00 219420 -001 Compaq 4.3Gb pluggable F/W SCSI -2 disk 4 1,306.00 5,224.00 146742 -006 Compaq 171 FS Color Monitor LE, ES 1 787.00 787.00 190901 -601 4 /16- Gigabyte TurboDAT Drive 1 1,048.00 1,048.00 142181 -001 Grand Total 32,268.96 Page 1 OCT I, 1996 19:03 CITY OF SARATOGA - 7918049 PAGE 1 UNIT MOL /FC DESCRIPTION QTY MONTHLY RENTAL PURCHASE MAINT. 9402 -400 'LIC' SYSTEM UNIT 1 H/O 9000.001, MONTHLY 95.00 2130 MODEL 400 PROCESSOR (32 118) 1 NC NC Nc 2609 EIA 232/V.24.TWO -LINE ADPT 1 N/0 978.00P N/0 2617 2664 ETHERNET /IEEE 802.3 ADP /HP INTEGRATED FAX ADAPTER 1 H/O 2500.001, N/0 2960 120 VOLT POWER CORD 1 1 N/0 NC 3200.001, N/0 3110 5000 64MO MAIN STORAGE TSP SPECIFY 2 N/0 NO 8320.00P` Nc N/0 5135 5514 FEATURE POWER SUPPLY ALT IPL SPECIFY FOR 7208 1 ; NO NNC NC 700.00P NC N/0 F520 OOMPI FTE SYSTEM SPECIFY ! NC NO NC NO 6390 6606 7.OGB 8MM CART TAPE UNIT 1.96GB DISK UNIT /A 1 N/0 6200.00P 110 N/0 7000 PANEL KEYLOCK FEATURE 3 1 N/0 N/0 6600.00P 150.00P N/O 7108 EXPANSION GATE 1 N/O 250.00P N/0 N10 9023 EIA 232/V.24 ENHANCED CABLE 3 NC NC NC 9172 STD MFIOP /TWINAX 14 -WS 1 NO NO NC 9319 STANDARD DASD PACKAGE 1 NO NC NC 9520 BASE CD -ROM I NO NO 9606 BASE DISK UNIT (1.9608) 1 NO NC 9612 STD RS232 ONE -LINE I NC NC NC HC --" 37898.00+► 95.00" 9910 -867 BEST FORTRESS EXT 750 LV I N/0 1094.001, MONTHLY N/0 5000 6610 TSP SPECIFY BATTERY PACK B63/064/867/B68 I 1 NC N/0 NC NC 496.00P N/O --" 1590.00" 7852 -40Z 5000 7852 -400 (AS /400 TSP MODEL) AS /400 TSP SPECIFY 1 N10 446.00P MULTIPLE 1 NO NC NO --" 446.00" I------------------------------------ UNIT MOL /FC MAINTENANCE PLANS IOR CHARGE IOE CHARGE COE CHARGE CCE CHARGE OCR CHARGEI 17852 40Z N/A 46.00A N/A N/A N/A I I I---------------------------------------------------------------------- - -* 46.00" - -+ - -+ - - +I - - - - -I OCT 1. 1996 19:03 CITY OF SARATOGA - 7918049 PAGE 2 MONTHLY UNIT MOL /FC DESCRIPTION QTY RENTAL PURCHASE MAINT. 3487 -HA3 AMBER -GOLD 3 -YR WARRANTY 1 N/0 1150.001, MULTIPLE N 9101 122 -KEY QUIET TYPWRTR KOO I NC NC NC ,n 9201 TILT /SWIVEL STAND 1 NC NC MULTIPLE ------------------------------------ --• 1150.000 - -" --------------------------- I T MDL /fC MAINTENANCE PLANS IOR CHARGE IOE CHARGE COE CHARGE CCE CHARGE CCR CHARGEI Itl�wi u.> 7 °.OQ1! VA f! A Il;q ;,A I I 9201 NC N/A N/A N/A N/A I 7800 I------------- - - - -------------------------------- - - - - -- " - - -� 6400 -OSZ TSP 6400 -008 AS /400 MATRIX PRT 1 N/0 7196.00P MONTHLY 109.00 4830 COAX /TWINAX ATTACHMENT 1 N/0 1449.001, N10 4860 IPDS - TWINAX ONLY 5000 AS /400 TSP SPECIFY 1 1 N/0 995.00P N/O 5900 AS /400 TWINAXIAL ATT CABLE 1 NC NC NC NC NC NC --" 9640.00" 109.000 HARDWARE TOTALS - -" 50724.000 --------------------------------------------------------- TOTALS-------------------------------------------------------------- - - - - -- HARDWARE PURCHASE TOTAL 50724.00" MONTHLY MAINTENANCE CHARGE TOTAL 204.00" IOR MAINTENANCE CHARGE TOTAL 78.00" IOE MAINTENANCE CHARGE TOTAL 46.00« OCT I, 1996 19:03 CITY OF SARATOGA - 7918049 PACE 4 PROGRAM FEAT DESCRIPTION qTY ONE TIME CHARGE INITIAL MONTHLY PLC ANNUAL /ALC CHARGE CHARGE CHARGE CHARGE 5716 -661 OPERATING SYSTEM /400 (R) V3 1 r� 2278 NC ENTITLED USERS IN BASE 1 2279 2299 OTC U -8 (PER USER) TO 250 BASIC OTC 4 1600.00 2300 PSF FAX FEAT ONLY PO P05 BASIC OTC 1 495.00 'q 3100 3455 BASIC OTC PSF FEAT 1 -19 IPM 1 1 400.00 1995.00 3560 ISMS SERIAL NO ASCN ROC SHIP SHIP V3116 1 5000 ROCH MFO TSP PRELOAD 1 1 5011 NATIVE EXECUTION ENVIRONMENT 1 9001 BASIC ASSET REGISTRATION 1 ** *PROGRAM TOTAL * ** 4490.00* 5799 -XCR P84270 PREINSTL PLANNC MANUAL 1 3440 EARLY PUBLICATIONS 1 4001 BASIC OTC 1 7504 PUBLICATION KIT 1 7569 SHIP RTF DOC SPMEM0689U 1 9001 ASSET REGISTRATION 1 ** *PROGRAM TOTAL *"* 5798 -TAY FACSIMILE SUPPORT OS /400 V3 1 1633 2924 PO P05 BASIC OTC PRIMARY ENGLISH U/L SBCS 1 1 630.00 3560 SHIP VERSION 3 RELEASE 6 .1 5809 CD -ROM 9001 BASIC ASSET REGISTRATION 1 ** *PROGRAM TOTAL * ** 630.00" 5716 -XA1 CLIENT ACCESS FOR OS /400 V3 1 2630 BASIC BASE OTC 300.00 2636 NC ENTITLED USERS IN BASE 2637 2642 OTC (PER USER) P05 MACHINE CROUP 4 1200.00 9001 BASIC ASSET REGISTRATION 1 1 ** "PROGRAM TOTAL * ** 1500.00* 5716 -PWI APP DEV TOOLSET OS /400 V3 1 1920 9001 PO P05 BASIC OTC BASIC ASSET REGISTRATION 1 995.00 1 "* "PROGRAM TOTAL * ** 995.00" OCT 1, 1996 19.03 CITY OF SARATOGA - 7918049 PAGE 5 PROGRAM FEAT DESCRIPTION QTY ONE TIME CHARGE INITIAL CHARGE MONTHLY CHARGE 5716 -DCT LANG DICTIONARIES OS /400 V3 1 0720 PO P05 BASIC OTC 1 495.00 9001 ASSET REGISTRATION 1 Ln *" *PROGRAM TOTAL * "* 495.00* 16 -MP1 OFFICEVISION(TM) FOR OS /400 V3 1 2521 NC ENTITLED USERS IN BASE 1 2522 OTC U -B (PER USER) 4 1200.00 2540 PO P05 BASIC OTC 1 1295.00 9001 BASIC ASSET REGISTRATION 1 ** "PROGRAM TOTAL * ** 2495.00" 5716 -QU1 QUERY FOR OS /400 V3 1 2140 PG P05 BASIC OTC 1 800.00 9001 BASIC ASSET REGISTRATION 1 " **PROGRAM TOTAL * ** 800.00* 5716 -ST1 D82 (R) QURY MGR SQL DEV KT V3 1 2380 PO P05 BASIC OTC 1 800.00 9001 BASIC ASSET REGISTRATION 1 ** *PROGRAM TOTAL " ** 800.00* 5716 -RO1 INT LANG ENV (R) RPG OS /400 V3 1 2200 PG P05 BASIC OTC 9001 BASIC ASSET REGISTRATION I 995.00 *" *PROGRAM TOTAL * "* 995.00* PLC ANNUAL /ALC CHARGE CHARGE t 0 D D I OCT 1, 1996 19:03 CITY of SARATOGA - 7918049 PROGRAM FEAT DESCRIPTION ONE TIME QTY CHARGE PACE 6 INITIAL MONTHLY CHARGE CHARCE PLC ANNUAL /ALC CHARGE CHARGE - -N - -N ---------------------------------------------------- - - - - -- SOFTWARE TOTALS---------------------------------------------------- - - - - -- SOFTWARE TOTALS 13200.00* MONTHLY SOFTWARE MAINTENANCE (SUPPORT LINE) TOTAL] 105.00 - AS /400 Support Line (Voice /Electronic, Monthly Charge, Prime Shirt) 5755-AS4 SYSTEM PROGRAM ORDER U-) 2101 2104 OPERATING SYSTEM /400 (SSI) u� 2105 OFFICEVISION FOR OS /400(WP1) LANG DICTNRIES OS /400 (DCT) 2108 082RQM &SQLODV4KT OS /400(STI) 2112 ILE RPG FOR OS /400 (Roll 2126 APP DEV TOOLST OS /400 (PW1) 2129 TCP /IP UTILITIES (SSI) 2156 PERF MANAGER FOR 03/400(361) 2180 CLNT ACC FOR OS /400 (XA1) 031 2182 ��� �i �YT YC61 (XA1 ) OS /2 1.3 (XA1) 2183 006 (XA 1) 2184 WINDOWS 3.1 (XA1) 2186 OPTIMIZED FOR OS /2 (XA1) 2196 WINDOWS 95 CLIENT (XA1) 2291 PSF /400 Al (SSI) 2924 PRIMARY ENGLISH U/L SBCS 3410 CD -ROM 3455 ISMS SIN ASGND; ROCH MFG SHP 3560 SHIP VERSION 3 RELEASE 6 5000 ROCH MFO TSP PRELOAD 5011 NATIVE EXECUTION ENVIRONMENT 7501 INST PUB DOS W /EXT MEM (XA1) 7502 INST PUB OS /2 1.3 5716 -XA1 7504 INST PUB WINDOWS 3.1 (XA1) 7507 INST PUB OPTIMZO OS /2 (XA1) 7523 INSTL PUB WIN95 (XA1) 9001 ASSET REGISTRATION **"PROGRAM TOTAL""* PACE 6 INITIAL MONTHLY CHARGE CHARCE PLC ANNUAL /ALC CHARGE CHARGE - -N - -N ---------------------------------------------------- - - - - -- SOFTWARE TOTALS---------------------------------------------------- - - - - -- SOFTWARE TOTALS 13200.00* MONTHLY SOFTWARE MAINTENANCE (SUPPORT LINE) TOTAL] 105.00 - AS /400 Support Line (Voice /Electronic, Monthly Charge, Prime Shirt)