Loading...
HomeMy WebLinkAboutReso 023-86 OSC Agmt Garbage RESOLUTION NO. 23- 86 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF DUBLIN ADOPTING THE AGREEMENT BETWEEN THE CITY OF DUBLIN AND OAKLAND SCAVENGER COMPANY REGARDING WASTE COLLECTION AND DISPOSAL ~tEREAS, the City of Dublin completed a Request for Proposal process to select the provider of solid waste collection and disposal; and WHEREAS, Oakland Scavenger Company (OSC) was selected as the provider most capable of providing the services in an efficient manner; and WHEREAS, the City has negotiated with OSC to develop a franchise agreement which will provide for services for the next ten (10) years; and WHEREAS, the Agreement is consistent with applicable sections of State Law. NOW, THEREFORE, BE IT RESOLVED that the City Council of the 'City of Dublin does hereby adopt and authorize the Mayor to execute the Agreement Between the City of Dublin and Oakland Scavenger Company Regarding Waste Collection and Disposal~ ~Exhibit A'~, attached hereto and by reference made a part hereof. BE IT FURTHER RESOLVED that the provisions of this Agreement shall commence beginning April 1, 1986. 1986. PASSED, APPROVED AND ADOPTED this 10th day of March, AYES: Councilmembers Hegarty~ Jeffery, Moffatt, Vonheeder and Mayor Snyder NOES: None ABSENT: None Mayor AGREEMENT BETWEEN THE CITY.OF DUBLIN AND OAKLAND SCAVENGER COMPANY REGARDING WASTE COLLECTION AND DISPOSAL THIS AGREEMENT entered into this 10thday of March , 198 6, by and between the City of Dublin, a municipal corporation of the State of California (hereinafter "the City") and Oakland Scavenger Company, a California corporation (hereinafter "the Company"). W I T N E S S E T H WHEREAS, the provision of adequate and reliable solid ~.~aste management and disposal services is essential to the preservation of the health, safety, and well-being of residents of the City; and WHEREAS, the State of California has found and declared that the rapidly increasing volume of solid waste resulting from population growth, industrial expansion and other factors compels an organized and comprehensive approach to solid waste management (Cal. Gov. Code §§ 66701 and 66702); and WHEREAS, the Company now provides solid waste hauling and disposal services in the City of Dublin, subject to a vigorous rate review process~ and WHEREAS, the regulated rate structure established in connection with Oakland Scavenger Company franchise agreements in Alameda County has been designed fairly to allocate the cost of developing, maintaining and operating a comprehensive solid waste collection and disposal system for the community, each segment of the community benefitting from the existence of these services -1- and facilities, and a loss of revenue from that rate structure injures the community as a whole and 'impairs the City's ability fairly to distribute those costs~ and WHEREAS, as an essential part of the State's comprehensive program for solid waste management and for the preservation, health, safety, and well-being of the public, the State of California has declared that it is in the public interest that local public agencies make adequate provisions for solid waste handling and, pursuant to those State policies, has expressly authorized the City to make such provisions (Cal. Gov. Code §§ 66755, 66756)~ and~ WHEREAS, the State of California has expressly recognized that the City may determine all aspects of solid waste handling which are of local concern, including, but not limited to, frequency of collection, means of collection and transportation, level of services, charges and fees, nature, location, and extent of providing solid waste handling services, and has expressly ~dectared that the City may determine whether any such services are to be provided by means of exclusive or non-exclusive franchises, contracts, licenses, permits, or other means and that the City may grant to others authority to provide solid waste handling services under such terms and conditions as the City may prescribe (Cal. Gov. Code §§ 66756, 66757)7 and -2- WHEREAS, use of an excl'usive franchise for the transpor- tation of solid waste generated in the City is an appropriate and useful means to provide for the public health, safety, and well-being, and the efficient and orderly collection and disposal of all such waste [Cal. Gov. Code § 66757(b)]. NOW, THEREFORE, in consideration of the premises set forth above and of the mutual covenants and agreements contained herein, the parties agree as follows: ARTICLE I. Definitions. For the purpose of this agreement, unless a different meaning is clearly required, the definitions contained in this Article shall govern the construction of this agreement. Section 1.1. "Collection" shall mean collection and disposal or recycling of solid waste. Section 1-2. "Coordinating Jurisdiction" (of the Refuse Rate Review Committee) shall mean the City of Oakland acting through its designated representative to the Refuse Rate Review Committee° Section 1.3. "Delivery" of solid waste shall be deemed to occur when solid waste is' deposited in a receptacle or at a location that i~ designated for collection pursuant to this chapter, or is otherwise discarded. 3 Section 1.4. "Demolition Debris" shall mean ~sed construction materials removed from a site during the razing or renovation of a structure as part of a total service offered by a duly licensed demolition contractor (C-21 license). Section 1.5. "Designated Waste" 'shall mean waste not permitted for disposal at the Company's landfill under discharge requirements or other rules or orders of the Regional Water Quality Control Board. Section 1.6. "Establishment" shall mean any place of waste generation other than a residential dwelling. Section 1.7. "Hazardous Waste" shall mean any waste now or hereafter classified as hazardous pursuant to applicable federal, state or local law. Ail substances defined as Hazardous Wastes by the United States Environmental Protection Agency, pursuant to the Resource Conservation and Recovery Act, or defined as hazardous or extremely Hazardous Wastes by the California Department of Health Services under the California Administration Code~ Title 22, Division 4, Chapter 30 ("Minimum standards for hazardous and extremely Hazardous Wastes") shall be considered "Hazardous Waste" in this agreement. -4- Section 1.8. "Joint Refuse Rate Study" shall mean that refuse rate study report, dated May 23, 1972, which was prepared by Price Waterhouse & Co. pursuant to the Agencies' Agreement for Joint Refuse Rate Study Section 1.9. "Joint Solid Waste Committee'" or "Refuse Rate Review Committee" shall mean that Committee comprised of members designated as representatives of thirteen (13) public agencies which executed or have adopted an agreement entitled "Agreement Establishing Joint Solid Waste Committee" dated January, 1972. Section 1.t0. "Junk Dealer" shall mean a person or business which law- fully, and in accordance with all local ordinances, collects without charge to the Waste Generator or purchases used articles for purposes of restoration and/or resale, including antique dealers, used building supply dealers, and automobile salvagers,~ This definition does not include a person or business which collects or accepts waste for recycling after source separation. Section !.11. "Legislation" shall mean any formal enactment of the governing body of the City which now exists or which may here- after be adopted which governs the operation of the Company within or about the political boundaries of the City. -5- Section 1.12. "Person" means any individual, corporation, partnership, joint venture, association, joint-stock company or .unincorporated organization or any governmental unit or aaency or political subdivision. Section 1.13. "Recycling" shall mean the process of coll~cting, treating and reconstituting solid waste without charge to the Waste Generator for the purpose of using the altered form. The Collection, handling, transfer or disposal of wastes not Source Separated or not intended for, or ~apable of, recycling is not "Recycling" within the meaning of this Agreement. Putrescible solid waste is rebuttabiy presumed to be not capable of being recycled. "Recycling" also does not include the Processing or use of Solid Waste for conversion to energy. Section !.14. "Solid Waste" shall mean all putrescib!e and non-putrescibie solid, semi-solid and liquid waste accumulating or placed for collection and disposal within the City, whether combustible or non-combustible. "Solid Waste" includes garbage, trash, refuse, paper, rubbish, ashes, industrial or commercial waste, discarded home and industrial appliances, animal wastes or remains other than fecal matter, vegetable wastes, and other discarded solid and semi-solid waste, but does not include sewage, abandoned -6- automobiles and Hazardous Waste. "Solid Waste" also inclddes waste offered for recycling, unless o~herwise specifically excepted herein. Section 1.15. "Source Separation" shall mean the segregation into separate containers by the Waste Generator, prior to Delivery, of indivi- dual components of Solid Waste, such as glass bottles, cans, newspapers and corrugated containers, for the sole purpose of Recycling, as defined herein. Section 1.16. "Waste Generator" shall mean the property owner, resident~ occupant or business in the City which produced the waste in the first instance. This definition excludes any person or business which collects from or accepts shipments of waste from another person for the purpose of separating, Recycling or otherwise disposing of waste. ARTICLE II. The Contract. Section 2.1. Exclusive franchise. The City hereby gives and grants to the Company for a period of ten (!0) years from the tst day of April, 1986, the exclusive franchise, right-and privilege to collect, remove, and dispose of all Solid Waste accumulating in the City. The Company agrees to' collect and dispose of all Solid Waste delivered according to this agreement, as provided by local ordinance. The City shall monitor waste collection and disposal within its jurisdiction -7- and, by ordinance, ensure that Solid Waste is delivered to and collected by the Company. Solid Waste which is not required to be accumulated and offered for Collection includes: a. Materials source-separated for Recyc!ing~ and b. Lawn and garden trimmings and dead leaves removed from a site by a gardening, landscaping or tree trimming contractor, as an incidental part of a total service offered by that con- tractor, rather than as a hauling servicer c. Demolition debris as defined herein which is removed in accordance with such definition. d. Nonputrescible Solid Waste separated by the Waste Generator for collection and transportation by a Junk Dealer, but not as a hauling service~ and e. Animal waste and remains from slaughterhouses or butcher shops fo~ use as tallow. f. Solid waste transported by the owner or occupant of any residence to a fully licensed public disposal facility, provided that such person may not transport solid waste from more than one residential unit. Special handling or preparation may be required of the Waste Generator for animal wastes, liquid wastes, construction mate- rials, industrial appliances, waste which cannot be collected by normal waste collection vehicles in standard use by the Company~ and any other wastes to the extent recuired by law. -8- Section 2.2. Extension of Agreement. Not fewer than nine months prior to the termination date of this agreement, either party to the agreement may give notice of its intention to extend the agreement for the further period of ten (10) years upon the same terms and conditions as set forth in this agreement. Unless said notice 'is given and accepted within 90 days of the date of notice, the agreement shall expire upon the expiration date set forth in Section 2 of this Article. Section 2.3. Conditional Extension of Agreement. If, for new facilities substantially different in location, size or kind from those existing at commencement of this agreement, major investments are required in order to provide the services specified for in this agreement, the Company may request and the City shall consider an extension to the term of this' agreement on the basis of written, detai-led physical plans and related financial projections. Section 2.4. Removal of Hazardous Waste. If the Company determines that waste placed in any container for Collection or delivered to any facility of the Company is Hazardous Waste, Designated Waste, or other waste which is not acceptable for incorporation into the Company's landfill or for Processing at the Facility, the Company shall have the right to refuse to accept such waste. If the owner cannot be identified or fails to remove the waste, the Company shall arrange for proper disposal, the cost of which shall be an appropriate operating expense under Article !II. The Company shall make a -9- good faith effort to recover'the cost from the Waste Generator, and the cost of that effort shall als~ be an appropriate operating expense. ARTICLE iii. Collection Rates and Review. Section 3.1. Service Rates. In connection with the exclusive rights'~and privileges granted in Section 2.1, the Company shall have the right to charge and collect the Collection Rates authorized by the City from tenants, occupants and owners of each dwelling unit and Establishment served. The Collection Rates shall be no less than the Company's fully allocated costs of providing the collection and disposal services and facilities required by this agreement, plus a reasonable return on investment. Section 3.2. Rate review. The Company shall submit an application for rate review under this Article III, once each three years, commencing September 30, 1988- The complete application shall be submitted not later than September 30 for the three-year period starting January ! of the next calendar year. The Company shall submit any and all data reasonably requested by the City in the format prescribed by the City. The application's format will be generally that set forth in the Joint Refuse Rate Study, as may be more particularly delineated and prescribed by the City. Generally, the application shall: (1) set forth the actual revenues and expenses of the Company for the most recently -10- completed annual operating period preceding the September 30 application date based on an unqualified opinion audit of annual statements in accordance with Section 4.4; (2) contain projected operating costs for each of the three 12-month fiscal periods based on actual costs experienced, as modified by fully docu- mented changes in price levels, operations, or experience as between the actual operating period and projected period~ of operation. In the event the Company shall fail to meet the aforementioned September 30 date, a revision of rates for the three-year period starting January 1 shall not be authorized until the first day of the first calendar month following a 90-day period from the date that the complete application is submit ted. Section 3.3. Special interim rate review. (a) The Company may apply to the City for consideration of a special, interim rate review based on the occurence of an event or circumstance which jeopardizes the economic operation of the Company. The City may initiate a special, interim rate rev. iew at its option. (b) A special application by the Company shall be considered by the City if: (1) An event or circumstance occurs which was not reasonably foreseeable, and is extraordinary and not a usual business risk of the Company, or (2) An event or circumstance occurs whch is beyond the control of the Company, or -11- (3) It is necessary for the Company to make a substantial change in its operation, or substantial capital investment in order to perform its obligations under this agreement, or (4) Changes to operations are mandated as provided for under Section 5.4 of this agreement. (c) Any rate review, whether initiated by the City or the Company, will follow the format specified for a regular rate review. If initiated by the Company, the complete application must be submitted at least ninety (90) days prior to the date it may become effective. If initiated by the City, the Company shall submit'requested data within sixty (60) days of the date that notice is provided to the Company. Section 3.4. Publication of rates. The Company-shall provide written notice 'to subscribers of rate changes. The notice may be provided with, or as part of, a regular billing. In the case of interim rate changes, the Company shall file the intended notice cf change with the City Clerk or other official of the City not fewer than 7 days prior to the effective date of the rate change. Section 3-5° Issuance of receipts. The Company.shall either prepare and issue formal billings for services rendered or issue receipts for services rendered on a cash basis. The Company shall maintain copies of said billings and receipts, each in chronological order, for a period of 3 years after the date of service for inspection and verification -12- by the City. The Company may, at its option, maintain those records in c_omputer form~ on microfiche, or in any other manner~ provided that the records can be preserved and retrieved for inspection and verification. Section 3.6. Franchise fee. In consideration of the exclusive franchise provided for in Section t of Article II of this agreement, the Company shall pay to the City ~.Spercent (/'.8) of the gross revenue derived by the Company from Collection services provided in the City under this agreement. The franchise payment amount shall be computed and paid based on Service Rate billings issued each calendar month, plus receipts for services transacted on a cash basis. Gate collections at any landfill or transfer station and revenue from rental of compactors, balers and similar special handling equipment .shall' not be included in the computation base. The Company shall prepare and mail its remittance eac~h month not later than 20 calendar days after the end of each month. The remittance will be accompanied by a report setting ~orth the basis and calculations used for computing the amount paid. The figures used shall coincide with revenues recorded on the general books of account of the Company. Section 3.7. Ex61usions for bad debts. The full gross revenues for Collection services shall be subject to the franchise payment except as specifically exempted in Section 3.7 and as follows: Bad debt write-offs, less bad debt recoveries. -13- ARTICLE IV. Records, Reports and Audit. Section 4.1. Right to prescribe records. The Company shall maintain such accounting and statistical records as may be necessary to develop the financial statements and reports prescribed by the City of Dublin in accordance with t'he principles of the Joint Refuse Rate Study and/or modifying or additional requirements specified by the Refuse Rate Review Committee under its authority hereinafter delineated. Section 4.2. Right to require annual reports. The Company shall submit to t~e City annual franchised operations financial statements consisting of a balance sheet, related consolidated statement of operations, reports of opera- tions prescribed by the Joint Refuse Rate Study, and such additional financial or st-atistical data as may be prescribed by the City and reasonably related to these franchised operations. All such statements and reports shall be submitted not later than four (4) months following the end of the Company's annual accounting period. Section 4.3. Right to inspect records. The City shall have a right to inspect or review the income tax returns, payroll tax reports, specific documents or records required pursuant to this agreement, or any other such records or reports of the Company as may be reasonably necessary to evaluate the annual reports and rate review applications provided for in this agreement. -14- Section 4.4. Right to have Consultant .review of annual audit. Annual financial statements and reports prepared for the Company and audited and certified by an independent certified public accounting firm mutually approved by the City and the Company shall be made available for review to the independent consultant appointed by the Refuse Rate Review Committee, or by the City if th~ City is not a member of the Refuse Rate Review Committee. The Company will bear the expense of said audit, but audit fees will be allowed as an operating expense for rate setting purposes. If the Company and City fail mutually to agree on the selection of a certified public accounting firm within five (5) months prior to the end of the annual accounting period to be audited, the City shall submit the names of five certified public accounting firms from which the Company shall select one. The Company shall notify the City of its choice not later than fifteen (15) days from date of receipt of that list. ARTICLE V. Standards Section 5.1. Performance. The Company shall perform its services in the City in accordance with the terms of this agreement and with continuing liaison with the~representative designated by the City. Section 5.2. Inspection of 6perations.- The designated representative of-the City shall have the right to observe and review Company operations and enter Company premises for the purposes of such observation and review at all reasonable hours with reasonable notice. Section 5.3. Compliance with law and regulations. Company shall comply with all requirements of all applicable local, state, and federal authorities now in force or which hereafner may be enacted,and with any applicable Legislation of the City existing at the time of this agreement. Section 5.4. Mandated changes. The City may require changes in Collection or disposal methods and the Company shall comply, provided that if such changes result in increased costs to the Company, the Company shall have a right to-apply for a rate review and adjustment pursuant to Section 3.3. Also, the Company will have the right to apply for rate review and adjustment for changes in disposal methods or site operations mandated by any political body which may now or in the future have legal jurisdiction- Section 5.5. Container size and weight limit. The standard size container for residential and commercial services shall no-t exceed 32 gallons and the combined weight of the container and contents shall not exceed 75 pounds. The provisions of this section shall not prohibit the Company from providing front loader, drop box or other mechanized container -16- service- The Company may also provide automated or semi- automated residential curb service using wheeled containers where authorized by the City. Section 5.6. Transfer of loads on public streets. The Company is prohibited from transferring loads from one vehicle to another on any public thoroughfare unless it is necessary to do so because of mechanical failure or accidental damage to a vehicle, or when required by law or public authority. Section 5.7. Identification and lettering of vehicles. The Company shall letter each vehicls and each Company-owned Collection container used in Colledtion activities to include a vehicle identification number, the name of the Company~ and the local business telephone number of the Company. The lettering size shall be not less than 2-1/2" high except on the Collection containers. Section 5.8. Packer equipment. The Company shall use, in the Collection of Solid Waste, modern garbage Collection motor vehicles having water-tight bodies designed to prevent spillage or overflow therefrom. The Company shall maintain the outside of the bodies in a clean and sound mechanical condition and shall clean and wash the inside of the bodies frequently enough to keep them reasonably odor free° The Company shall also operate the vehicles in a manner so as to ensure that the contents thereof do not spill or overflow onto city streets or highways. -17- Section 5.9. Service interval. The Company shall provide residential and commercial pickup service not less than once per week. Commercial establishments may request service up to five days per week. ARTICLE VI. Joint Solid Waste Committee Section 6.1. Delegation of rights and authority. The Company shall support an application by the City to become a member of the Refuse Rate Review Committee. The City, subject to acceptance as such member, designates the Committee to exercise certain rights and authority on behalf of the City, and the Refuse Rate Review Committee or Coordinating Jurisdiction may be appropriately substituted where the City is designated with respect to certain provisions of this agreement hereafter delineated. Section 6.2. Authority of Joint Solid Waste Committee. The Refuse Rate Review Committee shall function as an advisory body to the City for purposes of evaluating Company operations and for rate setting purposes. The Committee, in the person of the officials of the Coordinating Jurisdiction or designated representatives of the Committee, shall exercise all those rights given to the City under this agreement with respect to the following sections of this agreement: Art. III, Sec. 3.2 - Art. III, Sec. 3.3 - Art. IV, Sec- 4.! - Rate review Special interim rate review Right to prescribe records -18- Art. IV, Sec. 4.2 - Art. IV, Sec 4.3 - Art. IV, Sec. 4.4 - Right to require annual reports Right' to inspect records Right to require annual audit Also, the Committee may exercise any rights of the City under any other section of this agreement which the City chooses to delegate to the Committee. ARTICLE VII. Miscellaneous Provisions. Section 7.1. Enforcement. Each party agrees to do any act, including taking any administrative or legal action, as is reasonable and necessary for the continued enjoyment by all parties of the benefits of this agreement during its full term, or any extension thereof, regardless of any change in available methods or processes for the Collection, handling, disposal or resource recovery of Solid Waste or the manner in which these acts are performed. The City agrees to take such actions as necessary to ensure the continued exclusivity of the franchise. Each party agrees to execute and deliver any instruments and to perform any acts that may be necessary or reasonably requested in order to give full effect to this agreement provided such instruments or acts are not inconsistent with, or create obligations in addition to those obligations created by the terms of this agreement. -19- Section 7.2. No added taxes.~ No special licenses, taxes or other burdens shall be levied against the Company in addition to the franchise fee. This provision shall not operate in any way to prohibit the City and the Company from adjusting the franchise fee rate set herein, or to prohibit the City from adopting Legislation implementing new types of taxes or licenses or adjusting existing rates or schedules which are generally applicable to all businesses. Any such new types of general taxes or licenses or adjustments to existing rates or schedules shall be allowed as operating expenses for rate setting purposes, and if such changes result in increased costs to the Company, the Company shall have the right to apply for a rate review pursuant to Section 3.3 of this agreement. Section 7.3. Surety' Bond. The Company hereby agrees to furnish simultaneously with the execution of this agreement a surety company bond in the sum of Fifty thousand dollars ($50,000), in a form to be approved by the City. Said surety company bond is to be payable to the City and conditioned and guaranteed for the faithful performance by the Company, its employees and agents. Section 7.4. Hold harmless. The Company is an independent contractor for all purposes contemplated by this agreement and the Company shall at all times protect, defend, indemnify and save harmless the City, its officers, agents and employees, past, present and future, from and against all liabilities, obligations, claims, damages, penalties, causes of action, costs and expenses (including, without limitation, reasonable counsel fees and expenses) imposed upon or incurred by or asserted against the City of such officers~ agents or employees on account of (a) any failure of the Company to comply with any of the terms of this Agreement or (b) any loss or damage to property or any injury to or death of any person that may be occasioned by the Company's operations under the franchise granted herein. Section 7.5. Liability Insurance. The Company ahall carry automobile, public liability and property damage insurance covering the operation of all vehicles of the Company, and blanket, all risks, liability insurance including excess limits on the automobile coverage° The basic auto policy shall have minimum limits of $t00,000 for injur'y to one person, $300,000 for injury to more than one person, and $25,000 property damage- The blanket policy shall have a minimum limit of $3,000,000. The policies shall name the City of Dublin, its officials, agents, and employees as additional insured parties and a copy of insuring agreements shall be furnished to the City of Dublin for approval by the City Attorney. Section 7.6. Services to jurisdiction. The Company shall provide to the City, without fee, those services described in Schedule 1 to this Agreement and such services as shall henceforth be established or altered by -21- agreement of-the parties. The cost of providing those services shall be allowed as an operating expense for rate-setting purposes. Section 7.7. Nctices. Any notice which either party is required to give or which either party may choose to give to the other party shall be in writing- Such ~otice shall be served either by personal delivery to a managing officer of the other party, by personal delivery to the principal office of the other party as set forth below, or by deposit in the United States mail as registered or certified mail enclosed in a sealed envelope with postage fully prepaid addressed to other party at its address as follows: City: Richard Ambrose, City Manager City of Dublin 6500 Dublin Boulevard P. O. Box 2340 Dublin, CA 94568 Company: Peter Borghero, President Oakland Scavenger Company 2601 Peratta Street Oakland, California 94607 Such address may be changed from time to time by either party by giving, notice as herein provided. Section 7.8. Rates. The rates shall be established by Resolution of the City Council pursuant to this agreement and the Ordinance Regulating Sol id Waste Management. -22- Section 7.9. Ownership of refuse. It is expressly understood that all Solid Waste that is collected or received for disposal by the Company shall be the property of the Company. Section 7.10. Distribution of proceeds of city enforcement efforts. If the City, or any legal representative of the City~ recovers, by an. actual or potential civil action, through settlement, judgment or otherwise, any proceeds intended to replace any loss of revenues to the City's Solid Waste management and disposal system, the City shall pay such proceeds, less the reasonable costs' of collection, to the Company within 15 days of their receipt. Such proceeds shall then be treated as revenues under Article III. ARTICLE VIII. Construction of Agreement. Section 8.1. Amendments. This agreement constitutes the entire understanding between the Company and the City with regard to the subject matter contained herein. No amendment to this agreement shall become effective unless it is set forth in writing and duly authorized and executed by 'the Company and by the City. Section 8.2. State Law. This agreement shall be governed by and construed in accordance with the laws of the State of California. -23- Section 8.3. Waiver. Neither the Company nor the City shall be deemed to have waived any terms, condition, or pledge of this agreement unless such waiver is in writing and signed by the waiving party. A failure by the Company or the City to insist upon strict performance of any term, condition, or pledge in this agreement sha~l not be construed as a waiver or relinquishment of such term, condition, or pledge, unless such waiver is in writing and signed by the waiving party. Any such written waiver shall be confined to the terms specifically contained therein. Section 8.4. Execution in counterpart. This Agreement may be executed in counterparts, either of which shall be regarded for all purposes as a duplicate original. Section 8.5. severabitity. In the event that any provision of this agreement shall, for any reason, be determined to be invalid, illegal and unenforce- able in any respect, the parties hereto shall negotiate in good faith and attempt to agree to such amendments, modifications or supplements to this agreement that, to the maximum extent practicable in light of such determination, shall implement and give effect to the intentions of the parties as reflected herein~ and the other provisions of this agreement shall, as so amended, modified or supplemented, or otherwise affected by such action, remain in full force and effect. -24- ARTICLE IX. Termination. Section 9.1. Assiqnment of aqr~eement rig.hts. The Company may assign and transfer all or any part of its rights and obligations under this agreement, subject to written consent by the City, which consent shall not be withheld unreasonably. No consent shall be required for any assignment to a person directly or indirectly controlling, controlled by or under common control with the Company, provided that the assignee is financially capable of carrying out all obligations of the Company under this Agreement. Section 9.2 Effect of breach. a. If the Company fails or neglects to comply with any of the terms or provisions of this agreement or any laws, ordinances or regulations above referred to for a period of thirty (30) days after having been notified in writing to do so on the order of the governing body of the City, then after a hearing upon ten (t0) days written notice to the Company, the City shall be entitled to terminate this agreement, which remedy shall not be deemed an election and shall be in addition to any and all rights and remedies against the Company which the City may have by law under this agreement. b. Each party specifically recognizes that damages is an ina'dequate remedy for default of this agreement and agrees that the other is entitled to bring suit for injunctive relief, mandamus, or specific performance or to exercise other legal or equitable remedies to enforce the obligations and covenants of -25- this agreement. For purposes of this section, all cities participating on the Refuse Rate Review Committee and having exclusive franchiae agreements with the Company for solid waste collection and disposal shall be deemed third-party beneficiaries of all such agreements. Section 9.3. Attorneys Fees. tn the event that either party brings any legal action against the other for enforcement of this agreement, the prevailing party shall be entitled to recover its reasonable attorneys fees and expenses of litigation. IN WITNESS WHEREOF, the parties hereto have caused this contract to be executed on the day and year first above written° City Clerk City Attorney Oakland Scavenger Company President -26- SCHEDULE i Services to Re provided to the City of Dublin at no charge pursuant to Section 7.6. Services to jurisdiction. The City shall reserve the right to request the elimination of free services at any of the locations through a written request by the Director. The following are all locations where governmental activities are taking place: Quantity Type of Service-Weekly Location ! 3 yard bin i 6 yard bin i 3 yard bin 1 2 yard bin i 2 yard bin 2 4 yard bins 7494 Donahue (Fire Station No. !) Dublin Sports Grounds 7051 Dublin Blvd (DSRSD Offices) 8151 Village Parkway (Valley Swim Ctr) 11600 Shannon Avenue(Shannon Park & Community Center) 4 yard bin (on wheels) Scarlett Court Terminus (City Corporation Yard)