Agenda packet, regular meeting — Buena Park City Council, April 14, 2026 (part 2 of 3)

CITY OF BUENA PARK

CITYWIDE TRAFFIC SIGNAL UPGRADES &

BID SUMMARY
Project No. 715 and Bid No. 2026-05
Bid Opening: 3/23/26 - 2:00 P.M.

Crosstown Electrical & Data Inc C alifornia Professional Engineering, Inc.

Bid Item Description Unit Type Units Unit Price Extended Amount Unit Price3 Extended Amou nt4 Unit Price2 Extended Amount6 Uni t Price7 Extended Amount8 Unit P rice9 Extended Amount10 Select Electric, IncEngineer's Estimate Elecnor Belco Electric

CITY OF BUENA PARK

CITYWIDE TRAFFIC SIGNAL UPGRADES &

BID SUMMARY
Project No. 715 and Bid No. 2026-05
Bid Opening: 3/23/26 - 2:00 P.M.
59 Relocate existing Emergency Vehicle Pre-emption (EVP) detecto r LS 1 2,000.00 $ 2,000.00 $ 3,482.00$ 3, 482.00$ 2, 600.00$ 2, 600.00$ 2, 555.00$ 2, 555.00$ 3, 500.00$ 3, 500.00$ 60 Relocate existing video detection camera LS 1 3,000.00 $ 3,000.00 $ 1,085.00$ 1, 085.00$ 2, 300.00$ 2, 300.00$ 3, 895.00$ 3, 895.00$ 4, 500.00$ 4, 500.00$ 61 Remove and dispose existing Type 29 standard complete. Remove foundation and restore surface LS 1 6,000.00 $ 6,000.00 $ 6,788.00$ 6, 788.00$ 5, 000.00$ 5, 000.00$ 5, 295.00$ 5, 295.00$ 1, 500.00$ 1, 500.00$ 62 Furnish and install Type 61 standard EA 1 45,000.00 $ 45,000.00 $ 56,316.00$ 56, 316.00$ 55, 210.00$ 55, 210.00$ 64, 500.00$ 64, 500.00$ 61, 500.00$ 61, 500.00$ 63 Relocate existing LED luminaire EA 1 1,000.00 $ 1,000.00 $ 416.00$ 416.00 $ 250.00$ 250.00 $ 625.00$ 625.00 $ 200.00$ 200.00 $ 64 Furnish and install new countdown pedestrian head EA 1 1,500.00 $ 1,500.00 $ 1,235.00$ 1, 235.00$ 1, 504.00$ 1, 504.00$ 1, 155.00$ 1, 155.00$ 1, 306.00$ 1, 306.00$ 65 Furnish and install 2" PVC conduit LF 30 100.00 $ 3,000.00$ 154.00$ 4, 620.00$ 41.00 $ 1, 230.00$ 245.00 $ 7, 350.00$ 90.00 $ 2, 700.00$ 66 Furnish and install 3 CSC cable LF 270 6.00 $ 1,620.00$ 2.00$ 540.00$ 3.90 $ 1, 053.00$ 5.00 $ 1, 350.00$ 4.80 $ 1,296.00$ 67 Furnish and install 12 CSC cable LF 285 9.00 $ 2,565.00$ 3.00$ 855.00$ 7.00 $ 1, 995.00$ 9.00 $ 2, 565.00$ 5.00 $ 1,425.00$ 68 Furnish and install #10 wire LF 150 3.00 $ 450.00$ 1.00$ 150.00$ 2.00 $ 300.00$ 2.00 $ 300.00$ 3.00 $ 450.00$ 69 Furnish and install No. 6 pull box EA 1 2,500.00 $ 2,500.00 $ 1,932.00$ 1, 932.00$ 1, 323.00$ 1, 323.00$ 2, 355.00$ 2, 355.00$ 1, 200.00$ 1, 200.00$ Traffic Signal at the intersection of Beach Blvd and La Palma Ave -$ - $ - $ - $ 70 Furnish and install new ATC controller unit complete EA 1 10,000 .00$ 10,000.00 $ 9,217.00$ 9, 217.00$ 9, 173.00$ 9, 173.00$ 8, 880.00$ 8, 880.00$ 9, 355.00$ 9, 355.00$ 71 Furnish and install new LED IISNS EA 1 3,000.00 $ 3,000.00 $ 7,165.00$ 7, 165.00$ 4, 890.00$ 4, 890.00$ 5, 850.00$ 5, 850.00$ 5, 102.00$ 5, 102.00$ 72 Furnish and install APS pedestrian push button system complet e LS 1 15,000.00 $ 15,000.00 $ 16,546.00$ 16, 546.00$ 19, 540.00$ 19, 540.00$ 16, 525.00$ 16, 525.00$ 18, 000.00$ 18, 000.00$ 73 Remove by wet sandblasting all conflicting striping LF 360 7.00 $ 2,520.00$ 10.00$ 3, 600.00$ 11.00 $ 3, 960.00$ 11.00 $ 3, 960.00$ 10.12 $ 3, 643.20$ 74 Furnish and install new 3-12" vehicle head and backplate with 2" retroreflective yellow tape border EA 22 2,000.00 $ 44,000.00 $ 1,331.00$ 29, 282.00$ 1, 481.00$ 32, 582.00$ 1, 570.00$ 34, 540.00$ 1, 540.00$ 33, 880.00$ 75 Furnish and install 3-12" vehicle head and backplate with 2" retroreflective yellow tape border on new signal mast-arm mount bracket EA 4 2,500.00 $ 10,000.00 $ 1,210.00$ 4, 840.00$ 1, 359.00$ 5, 436.00$ 3, 825.00$ 15, 300.00$ 1, 540.00$ 6, 160.00$ 76 Furnish and install new LED IISNS on new straight arm EA 3 3,50 0.00$ 10,500.00 $ 1,853.00$ 5, 559.00$ 7, 725.00$ 23, 175.00$ 8, 590.00$ 25, 770.00$ 9, 555.00$ 28, 665.00$ 77 Install 12” thermoplastic white crosswalk LF 360 7.00 $ 2,520.00$ 6.00$ 2, 160.00$ 5.75 $ 2, 070.00$ 6.00 $ 2, 160.00$ 5.64 $ 2,030.40$ 78 Furnish and install detector loop type E EA 12 800.00 $ 9,600.00$ 544.00$ 6, 528.00$ 493.00 $ 5, 916.00$ 640.00 $ 7, 680.00$ 448.00 $ 5, 376.00$ 79 Furnish and install detector loop type F EA 8 1,200.00 $ 9,600.00 $ 597.00$ 4, 776.00$ 522.00 $ 4, 176.00$ 535.00 $ 4, 280.00$ 448.00 $ 3, 584.00$ Traffic Signal at the intersection of Stanton Ave and Orangethorpe Ave -$ - $ - $ - $ 80 Furnish and install new LED countdown pedestrian signal face module EA 3 1,000.00 $ 3,000.00 $ 478.00$ 1, 434.00$ 746.00 $ 2, 238.00$ 275.00 $ 825.00 $ 275.00$ 825.00 $ 81 Furnish and install new LED IISNS EA 4 3,000.00 $ 12,000.00 $ 2,449.00$ 9, 796.00$ 4, 890.00$ 19, 560.00$ 5, 850.00$ 23, 400.00$ 5, 102.00$ 20, 408.00$ 82 Furnish and install APS pedestrian push button system complet e LS 1 15,000.00 $ 15,000.00 $ 16,442.00$ 16, 442.00$ 19, 437.00$ 19, 437.00$ 16, 525.00$ 16, 525.00$ 17, 400.00$ 17, 400.00$ 83 Replace existing sign(s) with new sign on signal mast-arm EA 2 8 00.00$ 1,600.00$ 444.00$ 888.00 $ 192.00$ 384.00 $ 350.00$ 700.00 $ 500.00$ 1, 000.00$ 84 Furnish and install new sign on signal mast-arm EA 1 800.00 $ 800.00 $ 242.00$ 242.00 $ 192.00$ 192.00 $ 300.00$ 300.00 $ 500.00$ 500.00 $ 85 Remove existing vehicle head EA 1 500.00 $ 500.00 $ 106.00$ 106.00 $ 192.00$ 192.00 $ 550.00$ 550.00 $ 100.00$ 100.00 $ 86 Furnish and install 3-12" vehicle head and backplate with 2” retroreflective yellow tape border EA 12 2,000.00 $ 24,000.00 $ 1,263.00$ 15, 156.00$ 1, 413.00$ 16, 956.00$ 1, 570.00$ 18, 840.00$ 1, 530.00$ 18, 360.00$ 87 Furnish and install new sign on signal standard EA 2 400.00 $ 800.00 $ 202.00$ 404.00 $ 192.00$ 384.00 $ 300.00$ 600.00 $ 500.00$ 1, 000.00$ 88 Relocate existing Emergency Vehicle Pre-emption (EVP) detecto r LS 1 2,000.00 $ 2,000.00 $ 3,482.00$ 3, 482.00$ 2, 600.00$ 2, 600.00$ 2, 555.00$ 2, 555.00$ 3, 500.00$ 3, 500.00$ 89 Relocate existing video detection camera LS 1 3,000.00 $ 3,000.00 $ 1,085.00$ 1, 085.00$ 2, 300.00$ 2, 300.00$ 3, 895.00$ 3, 895.00$ 4, 500.00$ 4, 500.00$ 90 Remove and dispose existing Type 29 standard complete. Remove foundation and restore surface EA 1 6,000.00 $ 6,000.00 $ 6,788.00$ 6, 788.00$ 5, 000.00$ 5, 000.00$ 5, 295.00$ 5, 295.00$ 1, 500.00$ 1, 500.00$ 91 Furnish and install 3-12" vehicle head and backplate with 2" retroreflective yellow tape border on new signal mast-arm mount bracket EA 1 2,500.00 $ 2,500.00 $ 1,210.00$ 1, 210.00$ 1, 359.00$ 1, 359.00$ 3, 825.00$ 3, 825.00$ 1, 530.00$ 1, 530.00$ 92 Furnish and install 5-12" vehicle head and backplate with 2" retroreflective yellow tape border EA 6 2,500.00 $ 15,000.00 $ 2,118.00$ 12, 708.00$ 2, 268.00$ 13, 608.00$ 2, 085.00$ 12, 510.00$ 2, 375.00$ 14, 250.00$ 93 Relocate existing CCTV camera LS 1 2,500.00 $ 2,500.00 $ 7,165.00$ 7, 165.00$ 2, 000.00$ 2, 000.00$ 3, 775.00$ 3, 775.00$ 3, 000.00$ 3, 000.00$ 94 Replace existing pull box lid EA 2 300.00 $ 600.00 $ 477.00$ 954.00 $ 500.00$ 1, 000.00$ 250.00 $ 500.00 $ 400.00$ 800.00 $ 95 Furnish and install Type 61 standard EA 1 45,000.00 $ 45,000.00 $ 57,304.00$ 57, 304.00$ 56, 185.00$ 56, 185.00$ 70, 500.00$ 70, 500.00$ 68, 750.00$ 68, 750.00$ 96 Relocate existing LED luminaire EA 1 1,000.00 $ 1,000.00 $ 416.00$ 416.00 $ 250.00$ 250.00 $ 625.00$ 625.00 $ 250.00$ 250.00 $ 97 Furnish and install new countdown pedestrian head EA 1 3,000.00 $ 3,000.00 $ 1,235.00$ 1, 235.00$ 1, 503.00$ 1, 503.00$ 1, 155.00$ 1, 155.00$ 1, 306.00$ 1, 306.00$ 98 Furnish and install 2" PVC conduit LF 10 100.00 $ 1,000.00$ 80.00$ 800.00 $ 50.00 $ 500.00 $ 550.00$ 5, 500.00$ 100.00 $ 1, 000.00$ 99 Furnish and install 3 CSC cable LF 150 6.00 $ 900.00$ 2.00$ 300.00$ 4.00 $ 600.00$ 5.00 $ 750.00$ 6.00 $ 900.00$ 100 Furnish and install 12 CSC cable LF 165 9.00 $ 1,485.00$ 4.00$ 660.00$ 7.00 $ 1, 155.00$ 9.00 $ 1, 485.00$ 6.00 $ 990.00$ 101 Furnish and install miscellaneous wires LF 200 3.00 $ 600.00$ 12.00$ 2, 400.00$ 6.50 $ 1, 300.00$ 10.00 $ 2, 000.00$ 5.00 $ 1,000.00$ Traffic Signal at the intersection of Beach Blvd and Crescent Ave -$ - $ - $ - $ 102 Furnish and install new ATC controller unit complete EA 1 10,00 0.00$ 10,000.00 $ 9,217.00$ 9, 217.00$ 9, 173.00$ 9, 173.00$ 8, 880.00$ 8, 880.00$ 9, 355.00$ 9, 355.00$ 103 Furnish and install new LED countdown pedestrian signal face module EA 6 1,000.00 $ 6,000.00 $ 478.00$ 2, 868.00$ 746.00 $ 4, 476.00$ 275.00 $ 1, 650.00$ 275.00 $ 1, 650.00$ 104 Furnish and install new LED IISNS EA 2 3,000.00 $ 6,000.00 $ 2,449.00$ 4, 898.00$ 4, 890.00$ 9, 780.00$ 5, 850.00$ 11, 700.00$ 5, 102.00$ 10, 204.00$ 105 Furnish and install 3-12" vehicle head complete on new signa l mast-arm bracket EA 2 2,500.00 $ 5,000.00 $ 1,189.00$ 2, 378.00$ 1, 338.00$ 2, 676.00$ 3, 825.00$ 7, 650.00$ 1, 680.00$ 3, 360.00$ 106 Replace existing sign with new sign on signal mast-arm EA 1 800 .00$ 800.00 $ 444.00$ 444.00 $ 192.00$ 192.00 $ 350.00$ 350.00 $ 500.00$ 500.00 $ 107 Furnish and install new sign on signal mast-arm EA 3 800.00 $ 2,400.00$ 444.00$ 1, 332.00$ 192.00 $ 576.00 $ 300.00$ 900.00 $ 500.00$ 1, 500.00$ 108 Remove by wet sandblasting all conflicting striping LF 650 7.00 $ 4,550.00$ 10.00$ 6, 500.00$ 10.50 $ 6, 825.00$ 11.00 $ 7, 150.00$ 10.12 $ 6, 578.00$ 109 Furnish and install new sign on signal standard EA 1 400.00 $ 400.00 $ 444.00$ 444.00 $ 192.00$ 192.00 $ 300.00$ 300.00 $ 500.00$ 500.00 $ 110 Furnish and install new LED IISNS on new straight arm EA 2 3,50 0.00$ 7,000.00 $ 3,806.00$ 7, 612.00$ 7, 725.00$ 15, 450.00$ 6, 000.00$ 12, 000.00$ 9, 555.00$ 19, 110.00$ 111 Install 12” thermoplastic white crosswalk LF 620 7.00 $ 4,340.00$ 6.00$ 3, 720.00$ 5.75 $ 3, 565.00$ 6.00 $ 3, 720.00$ 5.64 $ 3,496.80$ 112 Replace existing pull box lid EA 2 300.00 $ 600.00 $ 477.00$ 954.00 $ 500.00$ 1, 000.00$ 250.00 $ 500.00 $ 400.00$ 800.00 $ 113 Remove and dispose existing standard Type 19 complete. Remov e foundation and restore surface EA 1 5,000.00 $ 5,000.00 $ 5,784.00$ 5, 784.00$ 5, 000.00$ 5, 000.00$ 4, 200.00$ 4, 200.00$ 1, 200.00$ 1, 200.00$ 114 Install thermoplastic "arrow" legend type IV(L) SF 30 5.00 $ 150.00$ 14.00$ 420.00 $ 14.10 $ 423.00 $ 13.00 $ 390.00 $ 13.80 $ 414.00 $ 115 Reconstruct curb ramp’s wing LS 2 5,000.00 $ 10,000.00 $ 3,560.00$ 7, 120.00$ 3, 516.00$ 7, 032.00$ 3, 590.00$ 7, 180.00$ 3, 450.00$ 6, 900.00$ 116 Furnish and install weights/plates/blocks, and wiring to tem p existing pole LS 1 20,000.00 $ 20,000.00 $ 5,304.00$ 5, 304.00$ 8, 000.00$ 8, 000.00$ 8, 500.00$ 8, 500.00$ 4, 000.00$ 4, 000.00$ 117 Furnish and install Type 24 standard EA 1 24,000.00 $ 24,000.00 $ 25,919.00$ 25, 919.00$ 29, 372.00$ 29, 372.00$ 31, 500.00$ 31, 500.00$ 34, 400.00$ 34, 400.00$ 118 Furnish and install new 3-12" vehicle head complete EA 3 2,000. 00$ 6,000.00 $ 1,031.00$ 3, 093.00$ 1, 406.00$ 4, 218.00$ 1, 570.00$ 4, 710.00$ 1, 680.00$ 5, 040.00$ 119 Relocate existing LED luminaire EA 1 1,000.00 $ 1,000.00 $ 416.00$ 416.00 $ 250.00$ 250.00 $ 625.00$ 625.00 $ 250.00$ 250.00 $ 120 Furnish and install countdown pedestrian head EA 1 3,000.00 $ 3,000.00 $ 1,235.00$ 1, 235.00$ 1, 503.00$ 1, 503.00$ 1, 155.00$ 1, 155.00$ 1, 306.00$ 1, 306.00$ 121 Furnish and install pedestrian push button assembly EA 1 1,500. 00$ 1,500.00 $ 555.00$ 555.00 $ 354.00$ 354.00 $ 950.00$ 950.00 $ 250.00$ 250.00 $ Crosstown Electrical & Data Inc C alifornia Professional Engineering, Inc.

CITY OF BUENA PARK

CITYWIDE TRAFFIC SIGNAL UPGRADES &

BID SUMMARY
Project No. 715 and Bid No. 2026-05
Bid Opening: 3/23/26 - 2:00 P.M.
122 Connect new to existing 2" conduit LF 10 100.00 $ 1,000.00$ 109.00$ 1, 090.00$ 190.00 $ 1, 900.00$ 450.00 $ 4, 500.00$ 1, 000.00$ 10, 000.00$ 123 Furnish and install 3” PVC conduit LF 165 150.00 $ 24,750.00$ 68.00$ 11, 220.00$ 118.00$ 19, 470.00$ 200.00$ 33, 000.00$ 85.00 $ 14, 025.00$ 124 Furnish and install 3 CSC cable LF 200 7.00 $ 1,400.00$ 2.00$ 400.00$ 4.00 $ 800.00$ 5.00 $ 1, 000.00$ 5.00 $ 1,000.00$ 125 Furnish and install 12 CSC cable LF 210 9.00 $ 1,890.00$ 3.00$ 630.00$ 7.00 $ 1, 470.00$ 9.00 $ 1, 890.00$ 5.00 $ 1,050.00$ Traffic Signal at the intersection of Buena Park Downtown East and La Palma Ave -$ - $ - $ - $ 126 Furnish and install new ATC controller unit complete EA 1 10,00 0.00$ 10,000.00 $ 9,217.00$ 9, 217.00$ 9, 173.00$ 9, 173.00$ 8, 880.00$ 8, 880.00$ 9, 355.00$ 9, 355.00$ 127 Furnish and install new LED countdown pedestrian signal face module EA 5 1,000.00 $ 5,000.00 $ 478.00$ 2, 390.00$ 746.00 $ 3, 730.00$ 275.00 $ 1, 375.00$ 275.00 $ 1, 375.00$ 128 Furnish and install new LED IISNS EA 4 3,000.00 $ 12,000.00 $ 2,449.00$ 9, 796.00$ 4, 890.00$ 19, 560.00$ 5, 850.00$ 23, 400.00$ 5, 102.00$ 20, 408.00$ 129 Furnish and install 3-12" vehicle head complete EA 5 2,000.00 $ 10,000.00 $ 1,275.00$ 6, 375.00$ 1, 424.00$ 7, 120.00$ 1, 570.00$ 7, 850.00$ 1, 505.00$ 7, 525.00$ 130 Furnish and install new sign on signal mast arm EA 2 800.00 $ 1,600.00$ 444.00$ 888.00 $ 192.00$ 384.00 $ 350.00$ 700.00 $ 500.00$ 1, 000.00$ 131 Relocate existing Emergency Vehicle Pre-emption (EVP) detect or LS 1 2,000.00 $ 2,000.00 $ 3,482.00$ 3, 482.00$ 2, 600.00$ 2, 600.00$ 2, 555.00$ 2, 555.00$ 3, 000.00$ 3, 000.00$ 132 Reconstruct curb ramp’s wing LS 1 5,000.00 $ 5,000.00 $ 3,560.00$ 3, 560.00$ 3, 516.00$ 3, 516.00$ 3, 590.00$ 3, 590.00$ 3, 450.00$ 3, 450.00$ 133 Remove and dispose existing standard Type 26 complete. Remov e foundation and restore surface EA 1 6,000.00 $ 6,000.00 $ 6,675.00$ 6, 675.00$ 5, 000.00$ 5, 000.00$ 5, 200.00$ 5, 200.00$ 1, 500.00$ 1, 500.00$ 134 Furnish and install Type 29 standard EA 1 32,000.00 $ 32,000.00 $ 45,351.00$ 45, 351.00$ 44, 135.00$ 44, 135.00$ 44, 850.00$ 44, 850.00$ 43, 700.00$ 43, 700.00$ 135 Furnish and install pedestrian push button post EA 1 3,500.00 $ 3,500.00 $ 1,146.00$ 1, 146.00$ 2, 548.00$ 2, 548.00$ 1, 775.00$ 1, 775.00$ 2, 500.00$ 2, 500.00$ 136 Relocate existing LED luminaire EA 1 1,000.00 $ 1,000.00 $ 416.00$ 416.00 $ 250.00$ 250.00 $ 625.00$ 625.00 $ 250.00$ 250.00 $ 137 Furnish and install countdown pedestrian head EA 1 1,500.00 $ 1,500.00 $ 1,235.00$ 1, 235.00$ 1, 503.00$ 1, 503.00$ 1, 155.00$ 1, 155.00$ 1, 306.00$ 1, 306.00$ 138 Furnish and install pedestrian push button assembly EA 1 1,000. 00$ 1,000.00 $ 555.00$ 555.00 $ 354.00$ 354.00 $ 950.00$ 950.00 $ 250.00$ 250.00 $ 139 Furnish and install 2" PVC conduit LF 25 100.00 $ 2,500.00$ 86.00$ 2, 150.00$ 48.00 $ 1, 200.00$ 300.00 $ 7, 500.00$ 80.00 $ 2, 000.00$ 140 Furnish and install 3 CSC LF 135 7.00 $ 945.00$ 2.00$ 270.00$ 4.00 $ 540.00$ 5.00 $ 675.00$ 6.00 $ 810.00$ 141 Furnish and install 12 CSC LF 155 9.00 $ 1,395.00$ 4.00$ 620.00$ 7.00 $ 1, 085.00$ 9.00 $ 1, 395.00$ 6.00 $ 930.00$ 142 Furnish and install miscellaneous wires LF 270 3.00 $ 810.00$ 19.00$ 5, 130.00$ 7.00 $ 1, 890.00$ 10.00 $ 2, 700.00$ 3.50 $ 945.00$ 143 Pull back, reinstall, and reconnect existing service wires LS 1 750.00 $ 750.00 $ 3,619.00$ 3, 619.00$ 3, 500.00$ 3, 500.00$ 1, 208.00$ 1, 208.00$ 1, 000.00$ 1, 000.00$ Bid Total 1,084,290.00$ 939, 500.00$ 1, 119,720.00$ 1, 184,823.00$ 1, 094,499.65$

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CONTRACT

CITY OF BUENA PARK CONTRACT FOR

CITYWIDE TRAFFIC SIGNAL UPGRADES & SAFETY ENHANCEMENTS PROJECT HSIPSL-5310 (044)
“Project”

Project Number: 715
Bid Number: 2026-05

This CONTRACT (“Contract”) is made and entered this 14th day of April, 2026 (“Effective Date”), by and between the CITY OF BUENA PARK, a California municipal corporation (“City”) and Select Electric, Inc., a California Corporation (“Contractor”). Contr actor’s California State Contractor’s license number is 297034 The Contractor and the City are someti mes referred to herein collectively as the “Parties” and singularly as “Party.” In consideration of the mutual covenants hereinafter set forth, the parties hereto agree as follows:

1. Contract Documents. The Contract Documents consist of the f ollowing, each of which are attached hereto and incorporated herein by this reference:

A. This Contract;
B. The Notice Inviting Bids for the above-referenced project (“Project”), dated February 2026
C. The Instructions to Bidders for the Project, dated February 2026; D. Contractor’s Bid for the Project, dated March 23, 2026 (inc luding documentation accompanying the Bid and any post-Bid documentation submitted b efore the Notice of Award);
E. The Contractor’s Bonds for the Bid and the Project; F. The final working drawings, plans, and specifications for t he Project as approved by the City, and dated February 2026 (“Plans and Specifications”).

G. The City of Buena Park’s Standard Specifications for Public Works Projects, Latest Edition;
H. The City of Buena Park’s Special Provisions for Public Wor ks Projects, Latest Edition;
I. Any and all permits from regulatory agencies with jurisdi ction issued for the Project; and
J. Any addenda or change orders for the Project approved by the City subsequent to the Effective Date of this Contract.

2. Scope of Services. Contractor shall perform all Work necess ary to complete, in a good and workmanlike manner, a public works project identified in th e title of this Contract above (the “Project”), as such Project and the Work to be performed by Contractor is further are described in the Contract Documents.

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3. Compensation. In consideration for Contractor’s performance of the Work required to complete the Project hereunder, City shall pay Contractor a tot al NOT-TO-EXCEED amount of Nine Hundred and Thirty Nine Thousand, Five Hundred dollars ($939,500) in accordance with the prices as submitted in the Bid (“Compensation”). The Compensati on shall be the total and complete such payable by the City for any and all costs, direct or indirect, of the Contractor for provision of the Work and completion of the Project, including but not limited to general and supplementary conditions, performance and payment bonds, Contractor fee for construction, and Contractor overhead and profit, and any other items of costs, a ccounting, or expense relating to or arising therefrom. Compensation shall under no circumstances be increased except via a formal change order approved by the City; and only if such over runs result of additional scope from the City, as opposed to price overruns, delays, errors, or omissions.

4. Term of Contract: The Contractor agrees to complete the wor k to City’s satisfaction within SIXTY (60) WORKING DAYS from the date of written notice to proceed. The Contractor fur ther agrees to the assessment of liquidated damages in the amount of FIVE HUNDRED DOLLARS ($500) for each calendar day the work remains incomplete beyond the e xpiration of the completion date. The City may deduct the amount thereof from a ny monies due or that may become due the Contractor under this Contract.

5. Incorporation by Reference. All of the following documents are attached hereto and incorporated herein by this reference: Workers’ Compensation Certificate of Insurance, Additional Insured Endorsement (Comprehensive General Liability), Addition al Insured Endorsement (Automobile Liability), and Additional Insured Endorsement (Excess Liability).

6. Insurance: The Contractor shall not commence work under th is Contract until it has obtained all insurance required hereunder in a company or companies acceptable to City nor shall the Contractor allow any subcontractor to commence work on a su bcontract until all insurance required of its subcontractor has been obtained. The Contractor shall take out and maintain at all times during the life of this contract the following policies of insurance:

A. Compensation Insurance.

1. Before beginning work, the Contractor shall furnish to the Cit y a certificate of insurance as proof that it has taken out full compensation insu rance for all persons whom the Contractor may employ directly or through subcontracto rs in carrying out the work specified herein, in accordance with the laws of the State of California. Such insurance shall be maintained in full force and effect during the period covered by this Contract. Further such policy of insurance shall provide that the insurer waives all rights of subrogation against City and its elected officials, o fficers, employees, volunteers, and agents.

2. In accordance with the provisions of Section 3700 of the Califo rnia Labor Code, every Contractor shall secure the payment of compensation to hi s employees.

Contractor, prior to commencing work, shall sign and file with the City, a certification as follows:
“I am aware of the provisions of Section 3700 of the Labor Code which require every employer to be insured against liability for worker’s compensation or to undertake self

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insurance in accordance with the provisions of that Code, and I will comply with such provisions before commencing the performance of the work of this contract.”

B. General Insurance Requirements

1. Types of Coverage. Contractor shall maintain the following insurance coverage throughout the term of this Contract, and upon request Contract or shall show City evidence of such coverage, which may include visual inspection of all policies, copies of declarations page, endorsements signed by an authorized repr esentative of the underwriting company, or certificates of insurance. Insurance coverage shall be provided in the following form:
a. Insurance Services Office Commercial General Liability cover age occurrence form number CG 00 01 11 85 or 88.
b. Automobile Liability insurance with coverage at least as bro ad as Insurance Services Office Form Number CA 0001 06 92 covering “Any Auto” ( Symbol 1).
c. Workers Compensation insurance as required by the State of C alifornia and Employer's Liability insurance.

2. Minimum Limits of Insurance. Contractor shall maintain insur ance coverage limits no less than:
a. General Liability: $2,000,000 per occurrence for bodily inj ury, personal injury, and property damage. If Commercial General Liability Insurance or other form with a general aggregate limit is used, either the general aggregate limit shall apply separately to this project/location or the general aggregate limit shall be twice the required occurrence limit, and shall contain specifie d language creating a duty to defend against any suit seeking damages. b. Automobile Liability: $1,000,000 per accident for bodily in jury and property damage.
c. Employer's Liability: $1,000,000 per accident for bodily in jury or disease.

C. Deductibles and Self-Insured Retentions. Any deductibles an d/or self-insured retentions must be declared to and approved by the City. At the option of the City, either:
the insurer shall reduce or eliminate such deductibles or self- insured retentions as respects the City, its officers, elected officials, employees, agents, and volunteers; or, the Contractor shall provide a financial guarantee satisfactory to the City, guaranteeing payment of losses and related investigations, claim administration and defense expenses.

D. Other Insurance Provisions. The Contractor and City further agree as follows:

1. All insurance coverage and limits provided pursuant to this Contract shall apply to the full extent of the policies involved, available or applicab le. Nothing contained in this Contract or any other agreement relating to the City or its operations limits the application of such insurance coverage. Nothing contained in this Section is to be construed as affecting or altering the legal status of th e parties to this Contract.

2. Requirements of specific coverage features or limits contai ned in this Section are not intended as a limitation on coverage, limits or other requi rements, or a waiver

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of any coverage normally provided by any insurance. Specific reference to a given coverage feature is for purposes of clarification only and is n ot intended by any party to be all inclusive, or to the exclusion of other coverag e, or a waiver of any type.

3. For any claims related to this Project, the Contractor's insurance coverage shall be primary to any other similar insurance. Any insurance or self-insurance maintained by the City, its officers, employees or volunteers, shall be ex cess of the Contractor's insurance and shall not contribute with it.

4. The City, its officers, elected officials, employees, agents, and volunteers are to be covered as additional insureds with respect to liability arisin g out of automobiles owned, leased, hired or borrowed by or on behalf of the Contrac tor and with respect to liability arising out of work or operations performe d by or on behalf of the Contractor including materials, parts or equipment furnished in connection with such work or operations. General liability coverage can be provided in the form of an endorsement to the Contractor's insurance, or as a separate owner's policy.

5. For purposes of insurance coverage only, this Contract will be deemed to have been executed immediately upon any party hereto taking any step s that can be deemed to be in furtherance of or towards, performance of this Contract.

6. All general or auto liability insurance coverage provided p ursuant to this Contract, or any other agreements pertaining to the performance of this C ontract, shall not prohibit Contractor, and Contractor's employees, or agents, from waiving the right of subrogation prior to a loss. Contractor waives its right of subrogation against City.

7. In the event any policy of insurance required under this Con tract does not comply with these requirements or is canceled and not replaced, City has the right but not the duty to obtain the insurance it deems necessary and any premium paid by City will be promptly reimbursed by Contractor.

8. Contractor shall provide proof that policies of insurance r equired herein expiring during the term of this Contract have been renewed or replaced with other policies providing at least the same coverage. Such proof will be furnished within 72 hours of the expiration of the coverages.

9. Any actual or alleged failure on the part of City or any ot her additional insured under these requirements to obtain proof of insurance required under this Contract in no way waives any right or remedy of City or any additional insured, in this or any other regard.

10. All insurance coverage shall contain a provision that prohi bits cancellation, modification or lapse without thirty (30) days' prior written notice from insurer to the City. Contractor agrees to require its insurer to modify the certificates of insurance to delete any exculpatory wording stating that failure of the i nsurer to mail written notice of cancellation imposes no obligation, and to delete the word "endeavor" with regard to any notice provisions.

11 All insurance coverage shall include a severability of interests clause substantially similar to the following: "The insurance afforded by this poli cy applies separately to each insured against whom a claim or suit is made or suit is brought, except

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with respect to the limit of the insurer's liability."

12. All insurance coverage shall contain a clause substantially in the following words:
"It is hereby understood and agreed that this policy shall not be canceled nor materially changed except upon thirty (30) days' prior written notice to the City of Buena Park of such cancellation or material change as evidence by a return receipt for a registered letter."

13. All insurance coverage shall cover the operations of the Contractor pursuant to the terms of this Contract.

14. Contractor agrees to provide immediate notice to City of any claim or loss against Contractor that includes City as a defendant. City assumes no obligation or liability by such notice, but has the right (but not the duty) to monitor the handling of any such claim or claims if they are likely to involve City.

15. In the event of any loss that is not insured due to the failure of Contractor to comply with these requirements, Contractor agrees to be personally res ponsible for any and all losses, claims, suits, damages, defense obligations and liability of any kind attributed to City, or City's employees, or any of the additional insureds as a result of such failure.

16. Coverage will not be limited to the specific location or in dividual or entity designated as the address of the Project.

17. Contractor agrees not to attempt to avoid its defense and indemnity obligations to City and its employees, agents, officials and servants by using as a defense Contractor's statutory immunity under workers' compensation and similar statutes.

18. Contractor agrees to require all parties or subcontractors, including architects or others, with which it enters into contracts or hires pursuant to or related in any way with the performance of this Contract, to provide insurance covering the operations contracted for and naming as additional insureds all parties to this Contract.

Contractor agrees to monitor and review all such coverage and a ssumes all responsibility for ensuring that such coverage is provided as r equired here.

Contractor agrees that no contract, standard form or otherwise, used by any party in any way connected with this Contract, or contracts Contracto r enters into on behalf of City, will reserve the right to charge back to City t he cost of insurance required by this or any other agreement.

E. Acceptability of Insurers. Coverage shall be written by in surers with a current A.M.

Best's rating of no less than "A:VIII," and be admitted to cond uct business in the State of California by the Department of Insurance.

F. Verification of Coverage. Contractor shall furnish the City with evidence of the insurance required by this Section, satisfactory to City, consisting of original certificates of insurance and amendatory endorsements, and an additional insured endorsement at least as broad as Insurance Services Office form CG 20 10 11 85. The endorsements should be on forms provided by the City or on other than the City's fo rms or a separate owner’s policy, provided those forms or policies are approved by the City, and amended to conform to the City's requirements. All certificates and endorsements are to be received and approved by the City before work commences. The City reserves the right to require complete, certified copies of all required insurance policies, including endorsements

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effecting the coverage required by these specifications at any time. Contractor agrees to provide complete certified copies of policies to City within 10 days of City's request for said copies.

G. Subcontractors. Contractor shall include all subcontractors or any other party involved in the Project by Contractor as insured under its policies or shall require subcontractors or any other party involved in the Project by Contractor to carry the same insurance as required herein. Contractor agrees to obtain certificates evid encing such coverage and make reasonable efforts to ensure that such coverage is provide d as required here.

Contractor agrees to require that no contract used by any subco ntractor, or contracts Contractor enters into on behalf of City, will reserve the righ t to charge back to City the cost of insurance required by this Contract. Contractor agrees that upon request, all agreements with subcontractors or others with whom Contractor c ontracts with on behalf of City and all certificates of insurance obtained in complianc e with this paragraph will be submitted to City or review. Failure of City to request copies of such documents will not impose and liability on City, or its employees.

7. Indemnitifcation.

A. Contractor and City agree that City, its employees, officers, agents and elected officials should, to the extent permitted by law, be fully protected from any loss, injury, damage, claim, lawsuit, cost, expense, attorneys fees, litigation costs, defense costs, court costs or any other cost arising out of or in any way related to the perf ormance of this Contract.

Contractor acknowledges that CITY would not have entered into t his Contract in the absence of the commitment of Contractor to indemnify and protect City as set forth here.

B. To the fullest extent permitted by law, Contractor shall def end, indemnify and hold harmless City, its elected officials, employees, agents, volunt eers and officers (“Indemnitees”), from any and all liabilities, claims, suits, actions, arbitration proceedings, administrative proceedings, stop notices, regulatory proceeding s, losses, expenses or costs of any kind, actual attorneys fees incurred by City, cour t costs, interest, defense costs including expert witness fees and any other costs or expe nses of any kind whatsoever without restriction or limitation incurred in relati on to, as a consequence of, arising out of or in any way attributable actually, allegedly o r impliedly, in whole or in part to the Contractor’s performance of this Contract. All obligati ons under this provision are to be paid by Contractor as they are incurred by the City.

C. Without affecting the rights of City under any provision of this Contract or this section, Contractor shall not be required to indemnify and hold harmless City as set forth above for liability attributable to the sole fault of City, provided such fault is determined by agreement between the parties or the findings of a court of com petent jurisdiction. This exception will apply only in instances where the City is shown to have been solely at fault and not in instances where Contractor is solely or partially at fault or in instances where City 's fault accounts for only a percentage of the liability involved. In those instances, the obligation of Contractor will be all-inclusive and City will be indemnified for all liability incurred, even though a percentage of the liability is attributable to the conduct of the City.

D. Contractor acknowledges that its obligation pursuant to this section extends to liability attributable to City, if that liability is other than the sole fault of City. Contractor has no obligation under this Contract for liability proven in a court of competent jurisdiction or by written agreement between the parties to be the sole fault of City.

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E. The obligations of Contractor under this or any other provis ion of this Contract will not be limited by the provisions of any workers’ compensation act o r similar act. Contractor expressly waives its statutory immunity under such statutes or laws as to the Indemnitees.

The Contractor’s indemnity obligation set forth in this section shall not be limited by the limits of any policies of insurance required or provided by the Contractor pursuant to this Contract.

8. Antitrust Claims. In entering into this Contract, Contracto r offers and agrees to assign to City all rights, title, and interest in and to all causes of ac tion it may have under Section 4 of the Clayton Act (15 U.S.C. § 15) or under the Cartwright Act (Business and Professions Code Section 16700 et seq.) arising from purchases of goods, services, or materials purs uant to the Contract.

This assignment shall be made and become effective at the time City tenders final payment to Contractor without further acknowledgment by the parties.

9. Prevailing Wages. City and Contractor acknowledge that the Project is a public work to which prevailing wages apply.

10. Community Workforce Agreement. The City and contractor ack nowledge that the project is covered by a Community Workforce Agreement between the City and the Los Angeles/Orange Counties Building and Construction Trades Council and the Signa tory Craft Councils and Local Unions (the “CWA”). Contractor agrees to abide by the terms and conditions of the CWA.

11. Titles. The titles used in this Contract are for convenien ce only and shall in no way define, limit or describe the scope or intent of this Contract or any part of it.

12. Authority. Any person executing this Contract on behalf of Contractor warrants and represents that he or she has the power and authority to execut e this Contract on behalf of Contractor and has the power and authority to bind Contractor to the performance of its obligations hereunder.

13. Entire Agreement; Modification. This Contract, including t he Contract Documents and any other documents incorporated herein by specific reference, repr esents the entire and integrated agreement between City and Contractor. Each Party to this Cont ract acknowledges that no representations, inducements, promises, or agreements, oral or otherwise, have been made by any Party, or anyone acting on behalf of any Party, which are not embodied herein. This Contract supersedes all prior oral or written negotiations, representati ons or agreements. This Contract may not be modified or amended, nor any provision or breach waived, except in a writing signed by both parties that expressly refers to this Contract.

14. Exhibits; Precedence. All documents referenced as exhibits in this Contract are hereby incorporated into this Contract by this reference. In the even t of any inconsistency between the express provisions of this Contract and any provision of an exhibit, the provisions of this Contract, then the City’s invitation for bids, if any, shall prevail.

15. Counterparts. This Contract may be executed in counterpart originals, duplicate originals, or both, each of which is deemed to be an original for all purposes.

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IN WITNESS WHEREOF, the parties hereto have executed the Contract the day and year first above written.

CITY OF BUENA PARK

B y :

C i t y M anager

A T T E S T : APPROVED AS TO FORM:

By: B y :

C i t y C l e r k C i t y A t t o r n e y

Dated: S E L E C T E L E C T R I C , I N C
( “ C O N T R A C T O R ” )

By:

April 14, 2026

NEW BUSINESS
Item No. 5C.

City Council Agenda Report

WASTE INFRASTRUCTURE SYSTEM ENTERPRISE (WISE) AGREEMENT WITH THE COUNTY OF ORANGEFOR MUNICIPAL SOLID WASTE DISPOSAL RATES AND SERVICES

PREPARED BY PRESENTED BY
Joe Hunt, Public Works Manager Joe Hunt, Public Works Manager

DEPARTMENT HEAD APPROVAL CITY MANAGER APPROVAL
Mina Mikhael, Director of Public Works/City Engineer Aaron France, City Manager

RECOMMENDED ACTION
1) Approve the WISE Agreement with the County of Orange ("County") for municipal solid waste disposal rates and services; 2) Authorize the City Manager and City Attorney to make any necessary, non-monetary changes to the agreement; and 3) Authorize the City Manager and City Clerk to execute the agreement.

PREVIOUS CITY COUNCIL ACTION
The County, through Orange County Waste & Recycling (OCWR), operates the County-owned landfill system, including three active landfills and approximately 20 inactive sites. Since 1997, Orange County cities have participated in the Waste Disposal Agreement (WDA), which provided guaranteed landfill capacity and disposal rates of at least 10% below non-contract customers. The WDA has been amended several times, in 2004, 2009, 2015, and most recently for a one-year extension on May 13, 2025.

DISCUSSION
The WISE agreement is proposed to replace the WDA. The current WDA limits annual rate increases to the CPI and does not account for rising operational, regulatory, and environmental compliance costs. OCWR indicates that additional capital is needed to fund closure of the Brea Olinda landfill and to significantly expand the capacity of the landfill in San Juan Capistrano over the course of the 10-year term of the agreement. OCWR’s initial WISE proposal would have increased disposal rates from $43.76 per ton (FY 25-26 rate) to $82.00 in the first year and were projected to rise to nearly $107.00 by 2035.

Through negotiations, OCCMA reached an agreement on a phased rate structure for the first three years of the agreement. Starting in FY 29-30, the rate includes a CPI increase.

Fiscal Year Contract Rate
2026–27 $67.00/ton
2027–28 $74.00/ton
2028–29 $81.00/ton
2029–30 $81.00/ton + CPI

While the primary focus of the negotiations was tied to the disposal rate, OCCMA successfully negotiated the following key provisions for inclusion in the WISE Agreement:

Beginning in 2030, an annual “true-up” process that may freeze CPI adjustments depending on OCWR’s cost recovery and tonnage revenue. Cities may initiate a ‘meet and confer’ process with review by an independent consultant.

Inclusion of review and annual notification provisions to ensure continued OCCMA participation to improve transparency and oversight of OCWR’s financial status and implementation of the WISE Agreement.

Removal of language that would have made cities financially responsible for hauler non‑payment.

Adoption of a blended CPI index (60% Solid Waste, Water, and Sewer; 40% All Urban Consumers).

Removal of the requirement that all residential organic waste is sent to OCWR; the County will offer optional organic waste processing services.

Cities must adopt the WISE Agreement by April 30, 2026, to avoid disposal rates up to 10% higher. The ‘Participation Threshold’ for the WISE Agreement to become effective requires that cities that represent at least 50% of the disposal sent to the County landfills ratify the document. The agreement is for 10 years, through June 30, 2036, with one optional 10-year extension.

BUDGET IMPACT
The WISE agreement has no impact on the City's budget.

Attachments
2026-01-27 FINAL WISE Agreement JH.pdf

WASTE INFRASTRUCTURE SYSTEM ENTERPRISE AGREEMENT
(“WISE AGREEMENT”)

Between

THE COUNTY OF ORANGE, CALIFORNIA

and
the

CITY OF BUENA PARK

Dated APRIL 14, 2026

County Authorization Date:

City Authorization Date:

April 14, 2026
County Notice Address:

Director
OC Waste & Recycling
601 N. Ross Street 5th Floor
Santa Ana, CA 92701

City Notice Address:

Aaron France
City of Buena Park
6650 Beach Blvd
Buena Park, CA 90621

TABLE OF CONTENTS

Page

ARTICLE I

DEFINITIONS AND INTERPRETATION
Section 1.1 DEFINITIONS ................................................................................................................................. 2 Section 1.2 INTERPRETATION ........................................................................................................................ 7

ARTICLE II

REPRESENTATIONS AND WARRANTIES
Section 2.1 REPRESENTATIONS AND WARRANTIES OF THE CITY........................................................ 8 Section 2.2 REPRESENTATIONS AND WARRANTIES OF THE COUNTY ................................................ 9

ARTICLE III

DELIVERY AND ACCEPTANCE OF WASTE AND PROVISION OF DISPOSAL SERVICE Section 3.1 DELIVERY OF WASTE ................................................................................................................. 9 Section 3.2 PROVISION OF DISPOSAL SERVICES BY THE COUNTY. ................................................... 11 Section 3.3 COUNTY RIGHT TO REFUSE WASTE ...................................................................................... 12 Section 3.4 UNINCORPORATED AREA ACCEPTABLE WASTE............................................................... 13 Section 3.5 MISCELLANEOUS OPERATIONAL MATTERS. ...................................................................... 14 Section 3.6 OTHER USERS OF THE DISPOSAL SYSTEM. ......................................................................... 14 Section 3.7 COUNTY PROVISION OF WASTE DIVERSION SERVICES. ................................................. 15

ARTICLE IV

CONTRACT RATE
Section 4.1 CHARGING AND SECURING PAYMENT OF CONTRACT RATE ......................................... 15 Section 4.2 CONTRACT RATE ....................................................................................................................... 15 Section 4.3 RESPONSIBILITY FOR PAYMENT OF THE CONTRACT RATE ........................................... 21 Section 4.4 BILLING OF THE CONTRACT RATE ........................................................................................ 21 Section 4.5 RESTRICTED RESERVES ........................................................................................................... 21 Section 4.6 AUDITED FINANCIAL STATEMENTS ..................................................................................... 22 Section 4.7 ANNUAL UPDATE OF TEN-YEAR FINANCIAL PROJECTION ............................................ 22

ARTICLE V

BREACH, ENFORCEMENT AND TERMINATION
Section 5.1 BREACH ........................................................................................................................................ 23 Section 5.2 CITY CONVENIENCE TERMINATION ..................................................................................... 23 Section 5.3 TERMINATION. ........................................................................................................................... 23 Section 5.4 NO WAIVERS ............................................................................................................................... 24 Section 5.5 FORUM FOR DISPUTE RESOLUTION ...................................................................................... 24

ARTICLE VI
TERM
Section 6.1 EFFECTIVE DATE AND TERM. ................................................................................................. 24 Section 6.2 COMMENCEMENT DATE .......................................................................................................... 25

ARTICLE VII

GENERAL PROVISIONS
Section 7.1 OPERATION AND MAINTENANCE OF THE DISPOSAL SYSTEM ....................................... 26 Section 7.2 UNCONTROLLABLE CIRCUMSTANCES GENERALLY. ....................................................... 26 Section 7.3 INDEMNIFICATION ..................................................................................................................... 27 Section 7.4 RELATIONSHIP OF THE PARTIES ............................................................................................ 27 Section 7.5 LIMITED RECOURSE. ................................................................................................................. 27 Section 7.6 PRE-EXISTING RIGHTS AND LIABILITIES ............................................................................. 27 Section 7.7 NO VESTED RIGHTS ................................................................................................................... 28 Section 7.8 LIABILITY FOR COLLECTION, TRANSPORTATION AND PROCESSING .......................... 28 Section 7.9 NO CONSEQUENTIAL OR PUNITIVE DAMAGES .................................................................. 28 Section 7.10 AMENDMENTS ............................................................................................................................ 28 Section 7.11 NOTICE OF LITIGATION ............................................................................................................ 28 Section 7.12 FURTHER ASSURANCES............................................................................................................ 28 Section 7.13 ASSIGNMENT OF AGREEMENT ............................................................................................... 28 Section 7.14 INTEREST ON OVERDUE OBLIGATIONS ............................................................................... 28 Section 7.15 BINDING EFFECT ........................................................................................................................ 28 Section 7.16 NOTICES ........................................................................................................................................ 28

APPENDIX 1

ESTIMATED ANNUAL TONNAGE
APPENDIX 2

CUMULATIVE TONNAGE
APPENDIX 3

CUMULATIVE CAPITAL COSTS
APPENDIX 4

FRANCHISE HAULER ACKNOWLEDGEMENT

APPENDIX 5

ORGANIC SERVICES AGREEMENT

WASTE INFRASTRUCTURE SYSTEM ENTERPRISE AGREEMENT

THIS WASTE INFRASTRUCTURE SYSTEM ENTERPRISE AGREEMENT (“WISE Agreement” or “Agreement” are used interchangeably ) is made and dated as of the date indicated on the cover page hereof between the County of Orange, a political subdivision of the State of California (the “County”), and the city, special district, or sanitary district designated on the cover page of this Agreement (the “City”). County and City may hereinafter be referred to singularly as “Party” or collectively as “Parties.”.

RECITALS

The County owns, manages and operates a Waste Infrastructure System to manage municipal and solid waste generated within the County of Orange or imported from outside the County pursuant to contractual agreements. The Waste In frastructure System collectively includes a ctive Class III sanitary landfills (“County Landfills”) , resource recovery, recycling and organics programs, infrastructure and operations, closed landfills, and regional household hazardous waste collection centers and other waste management related systems as may be deemed necessary by the County.

The County is also responsible for the long-term management of twenty (20) closed landfills as required under Applicable Law.

County Landfills are used for the management of municipal solid waste pursuant to legislation including but not limited to the California Integrated Waste Management Act of 1989 (Division 30 of the California Public Resources Code) (the “Act”) and the Short-lived Climate Pollutants Reduction Act (“SB 1383”). County Landfills are also subject to other State and federal regulations designed to ensure that landfill operations minimize the impacts to public health and safety and the environment.

Pursuant to Resolution, the County established the Waste Management Enterprise Fund pursuant to Government Code §25261 to ensure that all costs associated with the operation and management of the Waste Infrastructure System are financed by charges imposed for services provided by the Department and are not funded by tax revenue or the County General Fund.

The City, in the exercise of its police power, its powers under the Act, and other Applicable Law, has entered into a franchise or other agreement with or issued permits or licenses to one or more private haulers for the collection, recycling, diversion and disposal of municipal solid waste generated within the City.

A significant portion of municipal solid waste generated within the City historically has been and currently is delivered by such hauler or haulers to the County for disposal in the Disposal System.

Since 1997, the City and the County have provided for the management of municipal solid waste through Waste Disposal Agreements (“WDAs”), wherein the County agreed to provide disposal capacity for waste generated in the City, and the City agreed to deliver or cause the delivery of waste generated in the City to the Disposal System, as more specifically set forth in, and subject to the terms and conditions of the WDAs.

Starting in approximately 2014, the Legislature of the State of California passed several pieces of legislation (“Organics Legislation”) that require significant reductions in the disposal of Organic Waste. The purpose of the Organics Legislation is to mandate organics recycling and curtail the impacts of climate change by reducing greenhouse gas emissions such as methane. In this regard, the decomposition of organic material in the State’s landfills was identified as a significant source of methane that could be reduced.

On April 23, 2019 , the Orange County Board of Supervisors passed Resolution 19 -031 to respond to the State’s increasing landfill diversion requirements and identified the need for additional organic processing infrastructure in the County and directed the Department to develop additional organics recycling infrastructure to support the region in meeting State organic recycling mandates.

The County has developed an Organics Infrastructure that is comprised of organic processing facilities to receive and process Organic Waste to support the State’s Organic Legislation goals, promote local recycling, assist local jurisdictions in meeting their organic diversion requirements and correspondingly conserve capacity in the

Disposal System and is offering interested Cities the option of participating in the County provided Organic Processing Services pursuant to a separate Organic Services Agreement (“OSA”) as provided in Appendix 5.

In their effort to continue the concepts and purposes outlined in the WDAs and respond to Organics Legislation, t he City and the County desire to enter into this Waste Infrastructure System Enterprise Agreement (“WISE Agreement” or “Agreement”), on the terms and conditions set forth herein. The County and City acknowledge that the currently operative WDA shall remain in full force and effect until its expiration or the WISE Agreement Commencement Date, whichever comes first.

The City has determined that the execution of this Agreement by the City will serve the public health, safety and welfare of the City by providing disposal rate stability, predictable and reliable long-term disposal service, and the continuation of sound environmental management.

The County has determined that the execution by the County of this Agreement will serve the public health, safety and welfare by providing a stable, predictable and reliable supply of municipal solid waste and the resulting service payment revenue to the Waste Infrastructure System, thereby enabling the County to plan, manage, operate and finance improvements to the Waste Infrastructure System on a prudent and sound long term, businesslike basis consistent with its legal and regulatory obligations to the State and Federal government.

Official action approving this Agreement and determining it to be in the public interest and authorizing its execution and delivery was duly taken by the County on the County authorization date indicated on the cover page hereof.

Official action approving this Agreement and determining it to be in the public interest and authorizing its execution and delivery was duly taken by the City on the City authorization date indicated on the cover page hereof.

It is, therefore, agreed as follows:

ARTICLE I

DEFINITIONS AND INTERPRETATION

SECTION 1.1 DEFINITIONS. As used in this Agreement, the following terms shall have the meanings set forth below.

“Acceptable Waste” means all garbage, refuse, rubbish, Organic Waste and other materials and substances discarded or rejected as being spent, useless, worthless or in excess to the owners at the time of such discard or rejection and which are normally disposed of by or collected from residential (single family and multi-family), commercial, industrial, governmental and institutional establishments and which are acceptable at Class III landfills under Applicable Law.

“Act” means AB 939 the California Integrated Waste Management Act of 1989 (Division 30 of the California Public Resources Code), as amended, supplemented, superseded and replaced from time to time.

“Agreement” means this Waste Infrastructure System Enterprise Agreement (“WISE Agreement”) between the County and the City as the same may be amended or modified from time to time in accordance herewith.

“Appendix” means an appendix to this Agreement, as the same may be amended or modified from time to time in accordance with the terms hereof

“Applicable Law” means the Act, Organics Legislation, the Orange County Code of Ordinances, CERCLA, RCRA, CEQA, any Legal Entitlement and any federal or State rule, regulation, requirement, guideline, permit, action, determination or order of any Governmental Body having jurisdiction, applicable from time to time to the siting, design, permitting, acquisition, construction, equipping, financing, ownership, possession, operation or maintenance of the Waste Infrastructure System, and the transfer, handling, transportation and disposal of Acceptable Waste, Unacceptable Waste, or any other transaction or matter contemplated hereby (including any of the foregoing which concern health, safety, fire, environmental protection, mitigation monitoring plans and building codes).

“CalRecycle” means the California Department of Resources Recycling and Recovery, which is a branch of the California Environmental Protection Agency , and any agency, department or other Governmental Body which succeeds to the duties and powers thereof. CalRecycle oversees the State’s waste management and waste reduction programs. CalRecycle was established in 2010 to replace the California Integrated Waste Management Board and is responsible for the enforcement of legislation and regulations and diversion requirements applicable to the Waste Infrastructure System.

“Capital Costs” means all costs of the Waste Infrastructure System that are classified as capital costs for purposes of the budget of the Department in accordance with procedures established by the County of Orange Auditor- Controller in compliance with the California State Controller’s Manual, including but not limited to all of the categories of costs of the Waste Infrastructure System including but not limited to “Buildings and Improvements, and Infrastructure” (Object Code 4200), “Equipment” (Object Code 4000 -4040) and “Intangible” (Object Code 4250 - 4299) in the County of Orange – Chart of Accounts, or any successor accounting or reporting system utilized by the County.

“CEQA” means the California Environmental Quality Act, codified in California Public Resources. Code Section 21000 et seq. as amended or superseded, and the regulations promulgated thereunder.

“CERCLA” means the Comprehensive Environmental Response, Compensation and Liability Act, 42 U.S.C.

Section 9601 et seq., as amended or superseded, and the regulations promulgated thereunder.

“Change in Law” means any of the following events or conditions which has a material and adverse effect on the performance by the parties of their respective obligations under this Agreement (except for payment obligations), or on the siting, design, permitting, acquisition, construction, equipping, financing, ownership, possession, operation or maintenance of the Waste Infrastructure System or other matters to which Applicable Law applies:

(1) the enactment, adoption, promulgation, issuance, material modification or written change in administrative or judicial interpretation on or after the Commencement Date of any Applicable Law (other than Applicable Law enacted by the County); or

(2) the order or judgment of any Governmental Body (other than the County), on or after the Commencement Date, to the extent such order or judgment is not the result of willful or negligent action, error or omission or lack of reasonable diligence of the County or of the City, whichever is asserting the occurrence of a Change in Law; provided, however, that the contesting in good faith or the failure in good faith to contest any such order or judgment shall not constitute or be construed as such a willful or negligent action, error or omission or lack of reasonable diligence; or

(3) the denial of an application for, delay in the review, issuance or renewal of, or suspension, termination, interruption, imposition of a new or more stringent condition in connection with the issuance, renewal or failure of issuance or renewal on or after the Commencement Date of any Legal Entitlement to the extent that such denial, delay, suspension, termination, interruption, imposition or failure materially and adversely interferes with the performance of this Agreement, if and to the extent that such denial, delay, suspension, termination, interruption, imposition or failure is not the result of willful or negligent action, error or omission or a lack of reasonable diligence of the County or of the City, whichever is asserting the occurrence of a Change in Law; provided, however that the contesting in good faith or the failure in good faith to contest any such denial, delay, suspension, termination, interruption, imposition or failure shall not be construed as such a willful or negligent action, error or omission or lack of reasonable diligence; or

(4) any new or revised requirements or fees relating to the funding or provision of Waste Infrastructure Services, including but not limited to, Integrated Waste Management Act Fees, Host Fees, regulations for disposal operations, organics processing and diversion , recycling initiatives or activities associated with the remediation, closure, funding or monitoring of closed landfills with respect to facilities comprising the Waste Infrastructure System, or facilities which the County previously utilized to provide waste disposal, transfer, recycling, processing or other waste related activities.

“City” means, as applicable, the City ( general law , charter or other ), Special District or Sanitary District designated on the cover page of this Agreement and party to this Agreement.

“City Acceptable Waste” means all Acceptable Waste which was originally discarded by the first generator thereof within the geographical limits of the City, and Residue from the foregoing wherever produced, whether within or outside the City (or Tonnage equivalencies of such Residues, as and to the extent provided in subsection 3.1(D) hereof).

“Consumer Price Index” or “CPI” means a blend of the following two indexes based on the following percentage of each: 60% of the CPI shall be comprised of the Consumer Price Index published by the Bureau of Labor Statistics for Al l Urban Consumers: Water and Sewer and Trash Collection Services in U.S. City Average (CUSR0000EHG); and, 40% of the CPI shall be comprised of the Consumer Price Index for All Urban Consumers, not seasonally adjusted, all items index (CPI-U) – All items in Los Angeles-Long Beach-Anaheim (CUURS49ASA0).

In the event either of the forgoing indexes is no longer published during the term of this Agreement, such other index identified by the Bureau of Labor Statistics as a replacement or otherwise generally accepted as a replacement shall be used for purposes of this Agreement; and, in the absence thereof, the Orange County Board of Supervisors shall select an index that it determines most closely reflects the forgoing and best implements the intent of this Agreement.

“Commencement Date” means the date on which the obligations of the parties hereto commence, established as provided in Section 6.2(B) hereof.

“Contract Date” means the first date on which this Agreement has been executed by both parties hereto. “Contract Rate” has the meaning specified in Section 4.2 hereof “Contract Year” means the fiscal year commencing on July 1 in any year and ending on June 30 of the following year.

“Controllable Waste” means all City Acceptable Waste with respect to which the City has the legal or contractual ability to determine the disposal location therefor and which is:

(1) Non-Recycled City Acceptable Waste;

(2) not generated from the operations of the Governmental Bodies which, under Applicable Law, have the independent power to arrange for the disposal of the waste they generate; and

(3) collected and hauled by Franchise Haulers.

“County” means the County of Orange, a political subdivision of the State of California and party to this Agreement.

“County Landfills” mean s all active Class III sanitary landfills located within the County of Orange and operated by the Department. At the time of execution, County Landfills consist of the Olinda Alpha Landfill located in Brea, California, the Frank R. Bowerman Landfill located in Irvine, California , and the Prima Deshecha Landfill located in San Juan Capistrano, California. (Note: The current estimated closure date for the Olinda Alpha Landfill is 2036 as specified in its Solid Waste Facility Permit. Throughout the term of this Agreement, County reserves the right to reduce, continue, expand, or cease all operation at the Olinda Alpha Landfill at its sole discretion.)

“County Plan” means the integrated waste management plan of the County approved by CalRecycle pursuant to the Act as in effect from time to time.

“County Acceptable Waste” means Acceptable Waste generated in the County.

“County-wide Recycling Services” has the meaning set forth in subsection 3.7(A) hereof.

“Cumulative Tonnage Target” for any given Contract Year means the amount specified in Appendix 2 hereto with respect to such Contract Year.

“Department” means OC Waste & Recycling, and any agency, department or other Governmental Body

which succeeds to the duties and powers thereof.

“Designated Facility” means the landfill or other County facility that the Department directs or assigns City Franchise Haulers to deliver City Acceptable Waste.

“Director” means the Director of OC Waste & Recycling.

“Disposal Services” means the solid waste disposal and other services to be provided by the County pursuant to the Service Covenant and as otherwise provided in this Agreement.

“Disposal System” means the Waste Infrastructure System which includes solid waste disposal operations at active landfills; Organics Infrastructure; regional Household Hazardous Waste Collection Centers; and other waste management related systems deemed necessary by the County , as well as services, such as post-closure maintenance and other activities, at closed landfills formerly operated by the County, as appropriate under Applicable Law.

“Environmental Fund” means the fund or funds held by the County to pay unanticipated costs of environmental mitigation, remediation or liability.

“Franchise Hauler” means any hauler or collector who provides Acceptable Waste collection services within the City pursuant to, or under authority granted by, a permit, contract, franchise or other agreement with the City. The term Franchise Hauler includes the City itself if Acceptable Waste collection and transportation services are provided directly by City operated municipal collection service.

“Full Cost Recovery” means all facets of Department costs and responsibilities including, but not limited to; operation, maintenance and management of the Waste Infrastructure System, labor and equipment, capital projects, environmental monitoring and miti gation, site closure, legal and regulatory compliance, long -term post -closure maintenance, remediation costs, planning for contingencies associated with the County’s long -term liability and maintaining adequate financial reserves.

“Governmental Body” means any federal, State, county, city or regional legislative, executive, judicial or other governmental board, agency, authority, commission, administration, court or other body, or any officer thereof acting within the scope of his or her authority.

“Hazardous Material” or “Hazardous Substance” has the meaning given such term in CERCLA, the Carpenter-Presley-Tanner Hazardous Substance Account Act (California Health and Safety Code Section §78000 et seq.), and Titles 26 and 27 of the California Code of Regulations and other regulations promulgated thereunder.

“Hazardous Waste” means (a) any waste which by reason of its quality, concentration, composition or physical, chemical or infectious characteristics may do either of the following: cause, or significantly contribute to, an increase in mortality or an increase in serious irreversible, or incapacitating reversible, illness, or pose a substantial threat or potential hazard to human health or the environment, or any waste which is defined or regulated as a hazardous waste, toxic substance, hazardous chemical substance or mixture, or asbestos under Applicable Law, as amended from time to time including, but not limited to: (1) the Resource Conservation and Recovery Act and the regulations contained in 40 CFR Parts 260-281; (2) the Toxic Substances Control Act (15 U.S.C. Sections 2601 et seq.) and the regulations contained in 40 CFR Parts 761-766; (3) the California Health and Safety Code, Section 25117 (West 1992 & Supp. 1996); (4) the California Public Resources Code, Section 40141 (West 1996); and (5) future additional or substitute Applicable Law pertaining to the identification, treatment, storage or disposal of toxic substances or hazardous wastes; or (b) radioactive materials which are source, special nuclear or by-product material as defined by the Atomic Energy Act of 1954 (42 U.S.C. Section 2011 et seq.) and the regulations contained in 10 CFR Part 40. The terms Hazardous Waste, Hazardous Material or Hazardous Substance shall be used interchangeably in this Agreement when not referring to specific Applicable Law.

“Host Fee” means the amount paid pursuant to Cooperative Agreements, referred to in Section 1.2 (I) of this Agreement, to compensate the cities identified in Section 1.2(I) (“Host Cities”) for costs or impacts incurred by Host Cities which might be associated with County Landfills due to their location within Host City boundaries, and not already substantially avoided or mitigated through the identification and adoption of Project Design Feature and Mitigation Measures.
“Imported Acceptable Waste” means Acceptable Waste that is generated outside of the geographical boundaries

of the County and delivered to the Waste Infrastructure System.

“Importation Agreement” means an agreement between the County and any public or private entity for the delivery and acceptance of Imported Acceptable Waste pursuant to contract.

“Independent Haulers” means those waste collection/hauler companies primarily engaged as a principal business in the collection and transportation of municipal solid waste generated in the County of Orange which are not obligated to deliver County Acceptable Waste to the Waste Infrastructure System pursuant to a franchise, contract, permit or other authorization with a City in the County.

“Initial Term” has the meaning specified in Section 6.1(A) hereof.

“Legal Entitlement” means all permits, licenses, approvals, authorizations, consents and entitlements of whatever kind and however described which are required under Applicable Law to be obtained or maintained by any person with respect to the Waste Infrastructure System or the performance of any obligation under this Agreement or the matters covered hereby.

“Legal Proceeding” means every action, suit, litigation, arbitration, administrative or regulatory proceeding, and other legal or equitable proceeding having a bearing upon this Agreement.

“Loss-and-Expense” means any and all loss, liability, obligation, damage, delay, penalty, judgment, deposit, cost, expense, claim, demand, charge, tax, or expense, including all fees and costs.

“MRF Fines” mean undersized or pulverized material consisting of small fractions of waste that are created during the recycling process as Material Recovery Facilities.

“Net Import Revenues” has the meaning ascribed thereto in Section 3.6(F).

“Non-Recycled City Acceptable Waste” means all City Acceptable Waste other than Recycled City Acceptable Waste.

“OC Waste & Recycling Enterprise Fund” means the waste management enterprise fund established and managed by the County pursuant to Section 25261 of the Government Code separate from its other funds and accounts for receipts and disbursements in connection with the Waste Infrastructure System.

“Organics Infrastructure” means organic processing facilities designed to receive and process Organic Waste to support the State’s Organic Legislation goals, promote local recycling, and/or assist local jurisdictions in meeting their organic diversion requirements which are utilized by interested Cities in connection with their participating in County-provided Organic Processing Services pursuant to a separate Organic Services Agreement .

“Organics Legislation” means organics recycling legislation including AB 1594, AB 1826, SB 1383 and any future legislation pertaining to the management and diversion of Organic Waste.

“Organics Processing Services” means the services provided by County to Cities that choose to enter into the Organic Services Agreement provided in Appendix 5.

“Organics Services Agreement” (“OSA”) means that separate agreement (as provided in Appendix 5) between County and interested Cities, whereby the County agrees to provide Organic Processing Services to interested Cities pursuant to the terms of the OSA.

“Organic Waste” means solid wastes containing material originated from living organisms and their metabolic waste products including, but not limited to, food, green material, landscape and pruning waste, organic textiles and carpets, lumber, wood, paper products, printing and writing paper, manure, biosolids, digestate, and sludges as defined in Title 14 of the California Code of Regulations, Section 18982(a)(46).

“Overdue Rate” means the maximum rate of interest permitted by the laws of the State, if applicable, or the prime rate established from time to time by the Bank of America, N.A. or its successors and assigns, plus 2%, whichever is lower.

“Participating City” means any City executing a WISE Agreement in accordance with Section 3.6(A) hereof and meeting all requisite conditions to the Commencement Date thereof.

“Participation Threshold” means the point at which the percentage of the County’s Acceptable Waste attributable to Participating Cities which have executed and delivered Agreements shall exceed 50% percent (using the percentage rates attributed to such Participating Cities in Appendix 1).

“Posted Disposal Rate” means the per ton tipping fee charged by the County for the disposal of solid waste at the Disposal System by parties which are not entitled to disposal service at the Contract Rate pursuant to this Agreement or other contractual arrangement.

“Prohibited Medical Waste” means any medical or infectious waste prohibited or restricted under Applicable Law from being received by or disposed at the Disposal System.

“Qualified Household Hazardous Waste” means waste materials determined by local, State, and federal regulation to be:

(1) Of a nature that they must be listed as hazardous in State statutes and regulations;

(2) Toxic/ignitable/corrosive/reactive; and

(3) Carcinogenic/mutagenic/teratogenic;

which are discarded from households as opposed to businesses. Qualified Household Hazardous Waste shall not include Unacceptable Waste.

“Recycled City Acceptable Waste” means any otherwise Controllable Waste which is separated from Acceptable Waste by the generator thereof or by processing and which is “recycled” within the meaning of Section 40180 of the Public Resources Code.

“Renewal Term” has the meaning specified in Subsection 6.1(C) hereof.

“Residue” means any material remaining from the processing, by any means and to any extent, of City Acceptable Waste or Recycled City Acceptable Waste; provided, however, that Residue shall not include minimal amounts of material remaining after such processing (which minimal amounts shall in no event exceed 10% of the amount of such City Acceptable Waste or Recycled City Acceptable Waste prior to processing).

“Resource Conservation and Recovery Act” or “RCRA” means the Resource Conservation and Recovery Act, 42 U.S.C. Section 6901 et seq., as amended and superseded.

“Restricted Reserves” has the meaning specified in Section 4.5.

“Sanitary Districts” means the sanitary districts in the County formed pursuant to the Sanitary District Act of 1923, codified in California Health & Safety Code Section 6400 et seq., as amended, supplemented, superseded and replaced from time to time.

“Self-Hauled Waste” means City Acceptable Waste and City Acceptable Organic Waste collected and hauled by Self-Haulers.

“Self-Hauler” means any person not engaged commercially in waste haulage who collects and hauls Acceptable Waste generated from residential or business activities conducted by such person.

“Service Coordinator” means the service coordinator for either party designated pursuant to subsection 3.5(C) hereof.

“Service Covenant” means the covenants and agreements of the County set forth in Sections 3.2 and 3.3 hereof.

“Special District” means public agencies created by a Governmental Body to provide one or more specific services to a community, such as but not limited to water, sewer, refuse, parks and recreation, fire protection, pest abatement, etc.

“Source-Separated Household Hazardous Waste” means Qualified Household Hazardous Waste which has been segregated from Acceptable Waste originating or generated within the geographical jurisdiction of the City at the source or location of generation.

“Source-Separated Household Hazardous Waste Disposal System” means the collection centers, facilities, contracts and other arrangements owned or administered by the County for the receipt, handling and disposal of Source-Separated Household Hazardous Waste.

“State” means the State of California.

“Term” shall mean the term of this Agreement.
“Ton” means a “short ton” of two thousand (2,000) pounds. “Transfer Station” means any materials recovery facility, composting facility, intermediate processing facility, recycling center, transfer station or other waste handling or management facility to which solid waste collected for the City is delivered for processing before receipt in the Waste Infrastructure System.

“Unacceptable Waste” means Hazardous Material; Hazardous Waste; Hazardous Substances; Prohibited Medical Waste; Qualified Household Hazardous Waste separated from Acceptable Waste; explosives, ordnance, highly flammable substances, and noxious materials and lead-acid batteries (except if delivered in minimal quantities); drums and closed containers; liquid waste, oil, human wastes; machinery and equipment from commercial or industrial sources, such as hardened gears, shafts, motor vehicles or major components thereof, agricultural equipment, trailers, marine vessels and steel cable; hot loads; and any waste which the Waste Infrastructure System is prohibited from receiving under Applicable Law.

“Uncontrollable Circumstance” means any act, event or condition affecting the Waste Infrastructure System, the County, the City, or any of their Franchise Haulers, contractors or suppliers to the extent that it materially and adversely affects the ability of either party to perform any obligation under the Agreement (except for payment obligations), if such act, event or condition is beyond the reasonable control of and is not also the result of the willful or negligent act, error or omission or failure to exercise reasonable diligence on the part of the party relying thereon as justification for not performing an obligation or complying with any condition required of such party under the Agreement; provided, however, that the contesting in good faith or the failure in good faith to contest such action or inaction shall not be construed as willful or negligent action or a lack of reasonable diligence of either party. Examples of Uncontrollable Circumstances are:

(1) an act of God, landslide, lightning, earthquake, fire, explosion, flood, sabotage or similar occurrence, acts of a public enemy, extortion, war, blockade or insurrection, riot or civil disturbance, epidemic; and

(2) a Change in Law.

“Unincorporated Area” means those portions of the County which are not contained within the jurisdictional boundaries of incorporated cities.

“Unincorporated Area Acceptable Waste” means Acceptable Waste originating from or generated within the Unincorporated Area.

“Unrestricted Reserves” means cash and other reserves of the Waste Infrastructure System which are not Restricted Reserves.

“Waste Disposal Covenant” means the covenants and agreements of the City set forth in Section 3.1 hereof. “Waste Infrastructure System” or “Disposal System” means County owned or operated waste management

related facilities, including active Class III sanitary landfills (“County Landfills”), closed landfills managed by the County, resource recovery operations, Organics Infrastructure, recycling and organics programs, infrastructure and operations, and regional household hazardous waste collection centers and other waste management related systems as may be deemed necessary by the County.

“WISE” means Waste Infrastructure System Enterprise.

“WISE Agreements” means each of the WISE agreements entered into between the County and any City within the County, Special District, Sanitary District, Jurisdiction, or operator of any Franchise Hauler located in the County in accordance with the terms herewith.

SECTION 1.2 INTERPRETATION. In this Agreement, unless the context otherwise requires:
(A) References Hereto. The terms “hereby”, “hereof”, “herein”, “hereunder”, “herewith”, and any similar terms refer to this Agreement, and the term “hereafter” means after, and the term “heretofore” means before, the Contract Date.

(B) Gender and Plurality. Words of the masculine gender mean and include correlative words of the feminine and neuter genders and words importing the singular number mean and include the plural number and vice versa.

(C) Persons. Words importing persons include firms, companies, associations, general partnerships, limited partnerships, trusts, business trusts, corporations and other legal entities, including public bodies, as well as individuals.

(D) Headings. The table of contents and any headings preceding the text of the Articles, Sections and subsections of this Agreement shall be solely for convenience of reference and shall not constitute a part of this Agreement, nor shall they affect its meaning, construction or effect.

(E) No Third Party Beneficiaries. Nothing in this Agreement is intended to confer on haulers or any other person other than the parties hereto and their respective permitted successors and assigns hereunder any rights or remedies under or by reason of this Agreement.

(F) Counterparts. This Agreement may be executed in any number of original counterparts. All such counterparts shall constitute but one and the same Agreement.

(G) Applicable Law and Venue. This Agreement has been negotiated and executed in the State of California and shall be governed by and construed under the laws of the State of California. In the event of any legal action to enforce or interpret this Agreement, the sole and exclusive venue shall be a court of competent jurisdiction located in Orange County, California, and the parties hereto agree to and do hereby submit to the jurisdiction of such court, notwithstanding Code of Civil Procedure Section 394. Furthermore, the parties specifically agree to waive any and all rights to request that an action be transferred for adjudication to another county.

(H) Severability. If any clause, provision, subsection, Section or Article of this Agreement shall be ruled invalid by any court of jurisdiction, then the parties shall: (1) promptly meet and negotiate a substitute for such clause, provision, subsection, Section or Article which shall, to the greatest extent legally permissible, effect the intent of the parties therein; (2) if necessary or desirable to accomplish item (1) above, apply to the court having declared such invalidity for a judicial construction of the invalidated portion of this Agreement; and (3) negotiate such changes in, substitutions for or additions to the remaining provisions of this Agreement as may be necessary in addition to and in conjunction with items (1) and (2) above to effect the intent of the parties in the invalid provision. The invalidity of such clause, provision, subsection, Section or Article shall not affect any of the remaining provisions hereof, and this Agreement shall be construed and enforced as if such invalid portion did not exist, unless such invalidity frustrates the underlying primary purpose of the Agreement.

(I) Integration; Preservation of Certain Agreements. This Agreement contains the entire agreement between the parties with respect to the transactions contemplated hereby. This Agreement shall completely and fully supersede all prior understandings and agreements between the Parties with respect to such transactions; provided; however, that this Agreement shall not supersede the following Cooperative Agreements as they currently

exist or as they may be amended in the future:

1) Cooperative Agreement between the City of Brea and the County of Orange regarding the Olinda Alpha Landfill.
2) Cooperative Agreement between the City of Irvine and the County of Orange regarding the Frank R. Bowerman Landfill.
3) Cooperative Agreement between the City of San Juan Capistrano and the County of Orange regarding the Prima Deshecha Landfill.

ARTICLE II

REPRESENTATIONS AND WARRANTIES

SECTION 2.1 REPRESENTATIONS AND WARRANTIES OF THE CITY. The City represents and warrants that:

(A) Existence. The City is a general law or charter city or a Special District or Sanitary District validly existing under the Constitution and laws of the State.

(B) Due Authorization. The City has duly authorized the execution and delivery of this Agreement, and this Agreement has been duly executed and delivered by the City.

SECTION 2.2 REPRESENTATIONS AND WARRANTIES OF THE COUNTY. The County represents and warrants that:

(A) Existence. The County is a political subdivision of the State of California validly existing under the Constitution and laws of the State.

(B) Due Authorization. The County has duly authorized the execution and delivery of this Agreement, and this Agreement has been duly executed and delivered by the County.

ARTICLE III

DELIVERY AND ACCEPTANCE OF WASTE

AND PROVISION OF WASTE

MANAGEMENT AND DISPOSAL SERVICE

SECTION 3.1 DELIVERY OF WASTE.

(A) Waste Management and Disposal Covenant. Subject to the occurrence of the Commencement Date and throughout the Term of this Agreement, and subject to available Waste Infrastructure System capacity, the City shall exercise all legal and contractual power and authority which it may possess from time to time to deliver or cause the delivery of all Controllable Waste to the Waste Infrastructure System in accordance herewith.

(B) Recycled City Acceptable Waste. The parties hereto acknowledge the responsibility of the City to meet its own recycling and landfill diversion goals contained in the Act and Organics Legislation. Nothing in this Agreement is intended or shall be interpreted to prohibit or impair the ability of the City to meet such responsibilities, or to restrict the right of the residents, businesses or organizations in the City to practice source separation, recycling, composting or other materials recovery activities, or to restrict the right of the City to conduct, sponsor, encourage or require such activities in any form. No reduction in the amount of Controllable Waste generated in the City and delivered to the Waste Infrastructure System by or on behalf of the City which may result from any such source separation or recycling program shall cause the City any liability hereunder (other than potential adjustment to the Contract Rate to the extent provided in Article IV hereof) and shall not constitute a breach of this Agreement.

(C) Waste Delivered to Transfer Station. All Residue from any processing of Controllable Waste by materials recovery, composting, recycling or other means, wherever performed, shall constitute Controllable Waste and be subject to the Waste Disposal Covenant. Where City Acceptable Waste is processed at a facility which concurrently processes other Acceptable Waste in a manner which produces commingled residue which cannot be traced to a geographic source, generic residues from such facility in Tonnage equal to the residues that would have

been produced had City Acceptable Waste only been processed at the facility shall constitute Controllable Waste and be subject to the Waste Disposal Covenant. Any City Acceptable Waste or material derived or segregated therefrom which is held in storage and asserted by the possessor thereof to constitute Recycled City Acceptable Waste awaiting sale or distribution to the secondary materials markets shall constitute Controllable Waste if, when and to the extent that the storage or diversion thereof can be reasonably deemed to constitute an evasion of the Waste Disposal Covenant rather than generally recognized, accepted and prevailing practice in the Southern California materials recovery and recycling industry conducted in accordance with Applicable Law. In order for the owner and/or operator of a transfer station to be entitled to deliver Acceptable Waste from a Participating City to the Waste Infrastructure System for the Contract Rate as provided in Article IV, such owner and/or operator must execute a direct agreement with the County, acknowledging and agreeing to comply with the obligation of the Participating City to cause the delivery of all Controllable Waste to the Waste Infrastructure System pursuant to this Agreement. In addition, the County shall be authorized to implement procedures to determine if Acceptable Waste delivered by the owners or operators of Transfer Stations is entitled to utilize the Waste Infrastructure System for the Contract Rate. Such procedures may include requiring Transfer Stations to certify, under penalty of perjury, the source of any such Acceptable Waste. If necessary, the County may require that, in order to qualify for use of the Waste Infrastructure System for the Contract Rate, Transfer Stations must deliver Controllable Waste in loads containing only Controllable Waste, and not commingled with Acceptable Waste from entities which are not Participating Cities or Participating Independent Haulers.

(D) Power to Obligate Waste Disposal and Comply with this Agreement. On or before the Commencement Date, (i) any City franchise, contract, lease, or other agreement which is lawfully in effect relating to or affecting Controllable Waste shall provide, or shall have been amended to provide, that the City shall have the right without material restriction on and after the Commencement Date to direct the delivery of all Controllable Waste to the County Waste Infrastructure System (whether or not such Controllable Waste is delivered to a transfer station as an intermediate step prior to landfill disposal) and otherwise to comply with its obligations under this Agreement with respect to Controllable Waste and Franchise Haulers, and (ii) the City shall designate the Waste Infrastructure System as the disposal location pursuant to such franchise, contract, lease or other agreement. On and after the Commencement Date and throughout the Term of this Agreement the City (a) shall not enter into any franchise, contract, lease, agreement or obligation, issue any permit, license or approval, or adopt any ordinance, resolution or law which is materially inconsistent with the requirements of the Waste Disposal Covenant, and (b) shall maintain non-exclusive or exclusive franchises or other contractual arrangements over any City Acceptable Waste which, as of the Contract Date, is subject to non-exclusive or exclusive franchise or other contractual arrangements. The City agrees that the County shall be a third party beneficiary of the obligation of Franchise Haulers to deliver Controllable Waste to the Waste Infrastructure System, and may directly enforce such obligation through any legal means available. The City shall notify in writing each Franchise Hauler of the County’s third party beneficiary rights.

(E) Controllable Waste Flow Enforcement.

(1) The City, in cooperation with the Department, shall establish, implement, carry out and enforce a waste flow enforcement program which is sufficient to assure the delivery of all Controllable Waste to the Waste Infrastructure System pursuant to and in accordance with the Waste Disposal Covenant for Controllable Waste disposal at the times and in the manner provided herein. The waste flow enforcement program shall consist of amending City franchises, permits or authorizations with all Franchise Haulers, to the extent required by this Section and to the extent allowed by law, and shall include in addition, to the extent necessary and appropriate in the circumstances to assure compliance with the Waste Disposal Covenant, but shall not be limited to:

(i) licensing or permitting Franchise Haulers, upon the condition of compliance with the Waste Disposal Covenant,
(ii) providing for and taking appropriate enforcement action under any such franchise, license, or permit, such as but not limited to the suspension, revocation and termination of collection rights and privileges, the imposition of fines or collection of damages, and the exercise of injunctive relief against non-complying Franchise Haulers and
(iii) causing any Transfer Station to which Controllable Waste is delivered for processing to deliver certification, under the penalty of perjury, of the amounts of Controllable Waste received and Residue remaining from processing at such Transfer Station.

(2) The City acknowledges and agrees that in the event of a breach of the Waste Disposal Covenant by the City, the City shall pay the County an amount equal to the amount that the City would have been required to pay to the County had the Waste Disposal Covenant not been breached, which shall be calculated by: (1) subtracting the

number of tons actually delivered during the month(s) of the breach from the number of tons that were delivered during the same month(s) closest in time when there was no such breach, even if such month(s) closest in time was prior to the Term, and (2) multiplying such amount by the Contract Rate in effect at the time of such breach (or any higher rate with respect to which the County has provided notice pursuant to Section 4.2). In the event that the County terminates the Agreement as a result of such breach, the damages due as a result of such termination shall be equal to the average monthly deliveries by the City for the twelve (12) months prior to the commencement of the breach multiplied by the Contract Rate in effect at the time of such breach (or any higher rate with respect to which the County has provided notice pursuant to Section 4.2), multiplied by the number of months that would have remained in the Term of the Agreement had the termination not occurred. The parties recognize that if the City fails to meet its obligations hereunder, the County will suffer damages and that it is and will be impracticable and extremely difficult to ascertain and determine the exact amount of such damages. Therefore, the parties agree that the damages specified above represent a reasonable estimate of the amount of such damages, considering all of the circumstances existing on the date hereto, including the relationship of the sums to the range of harm to the County that reasonably could be anticipated and anticipation that proof of actual damages would be costly or inconvenient. In signing this Agreement, 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.

(F) Legal Challenges to Franchise System. The City shall use its best efforts to preserve, protect and defend its right to exercise and comply with the Waste Disposal Covenant against any challenge thereto, legal or otherwise (including any lawsuits against the City or the County, whether as plaintiff or defendant), by a Franchise Hauler or any other person, based upon breach of contract, violation of law or any other legal theory. The City shall bear the cost and expense of any such Legal Proceeding or other challenge. In the event any such Legal Proceeding relating to the Waste Disposal Covenant or the City’s exercise thereof establishes in a final determination that such covenant or exercise thereof is void, unlawful or unenforceable, or if any Franchise Hauler fails to deliver Controllable Waste to the Waste Infrastructure System in breach of its franchise with the City on the grounds that a judicial determination made by any court or other Applicable Law has rendered its obligation to deliver Controllable Waste to the Disposal System void, unlawful or unenforceable on any legal grounds, with the result that actual waste deliveries to the Disposal System fall below the Cumulative Tonnage Targets, the County shall be entitled to avail itself of the remedies described in Section 4.2(B) hereof.

(G) Franchise Haulers. The City shall compile and provide the Department with the following information concerning all Franchise Haulers: name, address and phone number; identification number; area of collection and transportation; and franchise and permit terms.

(H) Waste Information System. The City shall cooperate with the Department in collecting information and otherwise monitoring Franchise Haulers in order to assure compliance with this Agreement, the Act, Organics Legislation, or other Applicable Law. Such information may include information such as, data pertaining to Controllable Waste collected, transported, stored, processed and disposed of, Recycled City Acceptable Waste collected, transported, stored, processed and marketed or disposed of, Controllable Organic Waste collected, stored, processed and marketed or disposed of, Franchise Haulers’ franchise, permit or license terms, collection areas, transportation routes and compliance with Applicable Law; and all other information which may reasonably be required by the Department in connection with this Agreement. The City agrees to include in any revised franchise, contract, license or permit or other authorization granted to Franchise Haulers an obligation of the Franchise Hauler to provide to the County information relating to the Controllable Waste collected by such Franchise Hauler, including origins from which such Controllable Waste was collected (identifying Controllable Organic Wa ste, Recycled City Acceptable Waste, or as otherwise may be required under this Agreement or under Applicable Law ), tonnage by type of load (residential, commercial, roll-off box), customer service levels, tonnage delivered by transfer station or material recovery facility utilized, and other related information.

(I) City Actions Affecting County. The City agrees to carry out and fulfill its responsibilities under this Agreement and Applicable Law so as to permit full and timely compliance by the County with its covenants and agreements with the State. In particular, the City agrees not to conduct, authorize or permit any disposal services for Controllable Waste to be provided in competition with the Disposal Services provided by the County hereunder, and not to take or omit to take any action with respect to Controllable Waste, its collection, transportation, transfer, storage, treatment, processing, or disposal that may materially and adversely affect the County’s ability to achieve such timely compliance. Notwithstanding the foregoing, the City shall not be required to deny any permit or license or refuse to grant any approval while exercising its police powers.

(J) No Right of Waste Substitution. Nothing in this Agreement shall authorize or entitle the City to deliver or cause the delivery to the Waste Infrastructure System of Acceptable Waste or Acceptable Organic Waste originating from or generated outside the jurisdiction of the City, nor obligate the County to receive or dispose of any such Acceptable Waste or Acceptable Organic Waste. The City shall not assign in whole or in part its right to deliver or cause to be delivered Controllable Waste or Controllable Organic Waste to the County hereunder, and shall not permit any Acceptable Waste or Acceptable Organic Waste originating from or generated outside the jurisdiction of the City to be substituted for Controllable Waste or Controllable Organic Waste for any purpose hereunder.

(K) Annexations and Restructuring. It is the intention of the parties that this Agreement and the obligations and rights of the City hereunder, including particularly the Waste Disposal Covenant and the Contract Rate, shall, to the extent permitted by Applicable Law, extend to any territory annexed by the City (or any territory with respect to which the City assumes solid waste management responsibility from a Sanitary District or other public entity) and shall bind any successor or restructured Governmental Body which shall assume or succeed to the rights of the City under Applicable Law.

SECTION 3.2 PROVISION OF WASTE INFRASTRUCTURE SERVICES BY THE COUNTY.

(A) Service Covenant. Commencing on the Commencement Date, and subject to available Waste Infrastructure System capacity , the County shall provide or cause the provision of the service of receiving and disposing of all Controllable Waste at the Waste Infrastructure System, and, in accordance with subsection 3.3(C) hereof, disposing of Unacceptable Waste inadvertently accepted at the Disposal System. The County, to the maximum extent permitted under Applicable Law, shall use its best efforts to increas e source reduction, materials recovery, recycling, organic processing or other waste diversion in the region as may be required by law or which result in the long-term preservation of landfill disposal capacity and to keep the Waste Infrastructure System open for the receipt of Acceptable Waste for disposal or transfer of Controllable Waste pursuant to this Agreement. The County shall do and perform all acts and things which may be reasonably necessary or desirable in connection with its covenants in this subsection, including without limitation all planning, development, administration, implementation, construction, operation, maintenance, management, financing and contract work related thereto or undertaken in connection therewith. The County shall exercise all reasonable efforts to minimize the costs incurred in complying with the Service Covenant consistent with its responsibilities hereunder and under this Agreement, Applicable Law and prudent solid waste management practice and environmental considerations.

(B) Source-Separated Household Hazardous Waste. The County shall maintain, as part of the Waste Infrastructure System, a Source-Separated Household Hazardous Waste Disposal System for the disposal of Source-Separated Household Hazardous Waste. The disposal service provided by such system shall constitute part of the Disposal Services, and shall be available to Participating Cities as part of the Contract Rate. The County may impose additional fees and charges for new services relating to Source-Separated Household Hazardous Waste or with respect to cities which are not parties to an Agreement. The County may provide for the expansion, contraction or modification of the Source-Separated Household Hazardous Waste Disposal System and its services to the extent necessary to ensure the Waste Infrastructure System’s viability.

(C) Designated Facilities. County and City will coordinate in determining the pr imary landfill used for disposal and processing of Controllable Waste. The Department shall immediately advise the City by telephone of any situation, event or circumstance which results in the partial or complete inability of the County to receive Controllable Waste at any particular landfill within the Waste Infrastructure System, its effect on the County’s ability to perform its obligations hereunder, and the County’s best estimate of the probable duration. The Department shall confirm such advice in writing within twenty four (24) hours of the occurrence of any such inability. The County shall use its best efforts to resume normal operation of the landfill used by the City as soon as possible. In the event a situation, event or circumstance results in the partial or complete inability of the County to receive Controllable Waste at any particular landfill within the Waste Infrastructure System the County shall have the right to redirect Controllable Waste to another landfill within the Waste Infrastructure System for the duration of the situation, event or circumstance; provided, however, that in such circumstances the County shall utilize reasonable efforts to first redirect waste which is not Controllable Waste. In no event shall the County be required to accept Controllable Waste if it does not have sufficient permitted disposal capacity within the Waste Infrastructure System.

(D) Compliance with Service Covenant Not Excused for any Reason. Commencing on the

Commencement Date, and subject to the terms of this Agreement , the obligations of the County to duly observe and comply with the Service Covenant, in accordance with Applicable Law, shall apply continuously and without interruption for the Term of this Agreement. In the event that any Change in Law, situation, event or other Uncontrollable Circumstance impairs or precludes compliance with the Service Covenant by the means or methods then being employed by the County, the County shall use best efforts to implement alternative or substitute means and methods to enable it to satisfy the terms and conditions of the Service Covenant. In the event that a Change in Law precludes the County from complying with such covenants with the means or methods then being employed and from utilizing any alternate or substitute means or methods of compliance, the County shall continuously use all reasonable efforts to effectuate executive, legislative or judicial change in or relief from the applicability of such law so as to enable the County lawfully to resume compliance with such covenants as soon as possible following the Change in Law.

County failure to duly observe and comply with the Service Covenant due to its efforts to comply with Applicable Law, shall not constitute a breach under this Agreement, and shall excuse County performance to the extent necessary to comply with Applicable Law.

If the alternative or substitute means and methods proposed for the County to observe and comply with the Service Covenant are more costly tha n the previously used mean s and methods, County shall be entitled to a corresponding Contract Rate increase to cover any associated additional costs pursuant to the provisions of Section 4.2 of this Agreement.

SECTION 3.3 COUNTY RIGHT TO REFUSE WASTE.

(A) Right of Refusal. Notwithstanding any other provision hereof, the County may refuse delivery of:

(1) Hazardous Waste;

(2) Controllable Waste delivered at hours other than those provided in Section 3.5 hereof;

(3) Waste that does not constitute Acceptable Waste;

(4) Acceptable Waste delivered by City but originating from or generated outside the jurisdiction of the City;

(5) Controllable Waste consisting primarily of construction and demolition debris or inert material which may cause a particular facility’s daily tonnage limit to be exceeded;

(6) Acceptable Waste in excess of permitted limits; and

(7) Acceptable Waste that would result in County violating Applicable Law .

(B) Identification of Unacceptable Waste. The Department shall have the right (but not the duty or the obligation) to inspect the vehicles of all Franchise Haulers delivering material to the Waste Infrastructure System, and may require that the Franchise Hauler remove any Unacceptable Waste from such vehicle before it is unloaded. If the Department determines that it is impractical to separate Controllable Waste from Unacceptable Waste in any vehicle, or if the Franchise Hauler delivering such waste is unwilling to make such separation, or if any vehicle is carrying waste which may spill or leak, then the Department may reject the entire vehicle, and the City shall forthwith remove or cause the removal of the entire delivery from the Waste Infrastructure System. The Department may take all reasonable measures to prevent waste from being blown or scattered before and during unloading. The City shall cause the Franchise Haulers to observe and comply with Applicable Law, the operating rules and regulations of the Department, and the provisions of this Agreement prohibiting the delivery of Unacceptable Waste to the Waste Infrastructure System.

(C) Hazardous Waste and Hazardous Substances . The parties acknowledge that the Waste Infrastructure System has not been designed or permitted to accept Hazardous Waste or Hazardous Substances, and is

not intended to be used in any manner or to any extent, for the handling, transportation, storage or disposal of Hazardous Waste, Hazardous Material or Hazardous Substances. Neither the County nor the City shall countenance or knowingly permit the delivery of Hazardous Waste or Hazardous Substances to the Waste Infrastructure System.

City shall be responsible for the costs of removal , and any regulatory fines , associated with the knowing deliver y of any Hazardous Substances to the Waste Infrastructure System by the City or its Franchise Hauler.

(D) Disposal of Unacceptable Waste and Hazardous Waste. If Unacceptable Waste or Hazardous Waste is discovered in a vehicle at any facility within the Waste Infrastructure System, the driver of the vehicle will not be permitted to discharge the load. If a vehicle is observed unloading Unacceptable Waste or Hazardous Waste in the tipping area of a facility within the Waste Infrastructure System Department personnel will use reasonable efforts to assure that such material has been characterized, properly secured and its disposition resolved. The return or reloading onto the delivery vehicle of any Hazardous Waste, Prohibited Medical Waste or other waste requiring handling or transportation shall be conducted in accordance with Applicable Law. Whenever Hazardous Waste is detected at any facility within the Waste Infrastructure System, the Department shall take immediate action in accordance with Applicable Law.

SECTION 3.4 UNINCORPORATED AREA ACCEPTABLE WASTE.

Commencing on the Commencement Date, the County in accordance with Applicable Law shall provide or cause to be provided the service of disposing of non-recycled Acceptable Waste originating or generated within the Unincorporated Area and, with respect to such material, shall comply with the Waste Disposal Covenant as if the County constituted a City subject to the Waste Disposal Covenant hereunder. Rates charged by the County for the disposal of each class of non-recycled Acceptable Waste generated in the Unincorporated Area shall be the same as the Contract Fee charged for the disposal of each class of Controllable Waste. The County shall use its best efforts to preserve, protect and defend its right to exercise and comply with the Waste Disposal Covenant (with respect to non-recycled Acceptable Waste generated in the Unincorporated Area) against any challenge thereto, legal or otherwise, by a Franchise Hauler or any other person, based upon breach of contract, violation of law or any other legal theory. The County shall bear the cost and expense of any such Legal Proceeding or other challenge (with respect to non-recycled Acceptable Waste generated in the Unincorporated Area).

SECTION 3.5 MISCELLANEOUS OPERATIONAL MATTERS.

(A) Operating Hours. The County shall keep the Waste Infrastructure System open for the receiving of Acceptable Waste during such regular operating hours as may be established by the Department in the operating rules and regulations applicable to the Waste Infrastructure System. The County reserves the right to modify the operating days and hours to comply with Applicable law or as otherwise may be deemed necessary by the County.

(B) Scales and Weighing. The Department shall operate and maintain permanent scales at the Waste Infrastructure System as required by Applicable Law. The Department shall weigh all vehicles delivering waste by or on behalf of the City (whether or not the County accepts such waste) and prepare a daily weight record with regard to such delivery.

(C) Service Coordinator. The County and the City each shall designate in writing thirty (30) days prior to the expected Commencement Date a person to transmit instructions, receive information and otherwise coordinate service matters arising pursuant to this Agreement (each a “Service Coordinator”). Either Party may designate a successor or substitute Service Coordinator at any time by notice to the other Party.

(D) Review of Records. Each Party may review the other Party’s books and records with respect to matters relevant to the performance by either Party under this Agreement or otherwise related to the operation of the Waste Infrastructure System to the extent allowed under the California Public Records Act (interpreted as if the Parties to this Agreement were natural persons for purposes of the Public Records Act).

SECTION 3.6 OTHER USERS OF THE DISPOSAL SYSTEM.

(A) On or Before April 30, 2026, the County shall have the right to enter into WISE Agreements with Orange County entities with respect to Acceptable Waste which was originally discarded by the first generator thereof within the geographical limits of the County, including other cities in the County, Special Districts, Sanitary Districts, Franchise Haulers and Independent Haulers. Agreements entered into during this period shall have terms

and provisions substantially identical to the terms and provisions of this Agreement; provided, however, that in no event shall such agreements have terms and provisions more favorable than the terms and provisions of this Agreement (including but not limited to the Contract Rate and availability of disposal capacity).

(B) After April 30, 2026, the County shall have the right to enter into WISE Agreements with Orange County entities, including any city, Special Districts, Sanitary Districts, Franchise Haulers and Independent Haulers, or otherwise accept Acceptable Waste from such parties, but only within the limitations contained in this Section. Any such agreement or waste acceptance agreement must provide that the party delivering waste shall pay a Disposal Rate at least 10% higher than the Contract Rate unless the County determines it is in the best interest of the Waste Infrastructure System to establish a Disposal Rate less than 10% higher than the Contract Rate. In no event shall the Disposal Rate be less than the Contract Rate. In addition, the County shall reserve the right in any such agreement to at any time, to the extent permitted by Applicable Law, refuse to receive and dispose of Acceptable Waste from any city, Special District, Sanitary District, Franchise Hauler and Independent Hauler if and to the extent that such receipt and disposal might materially and adversely affect the ability of the County to comply with its obligations to the Participating Cities under the WISE Agreements to which each is a party.

(D) Self-Haulers. The City and the County acknowledge that Self-Haulers shall be entitled to deliver Self-Hauled Waste to the Waste Infrastructure System, on a non-contract basis, at the Posted Disposal Rate.

Such Self-Haulers shall not be entitled to dispose of Acceptable Waste for the Contract Rate.

(E) Receipt of Imported Acceptable Waste on a Contract Basis. The County shall have the right to enter into Importation Agreement(s) with any public or private entity for the delivery of Imported Acceptable Waste on terms and conditions that the County determines to be necessary to ensure and enhance the viability of the Waste Infrastructure System and to generate Net Import Revenues. In no event shall such Importation Agreements , entered into after the Commencement Date, include a per ton tipping fee or Disposal Rate for Imported Acceptable Waste that is less than the Contract Rate. The County certifies that in its good faith judgment the contract or other agreement for the delivery of such waste will not materially and adversely affect the ability of the County to receive and dispose of Acceptable Waste from the Participating Cities in accordance with the applicable WISE Agreements throughout the Term thereof; and, should the delivery of waste subject to Importation Agreements adversely affect the County’s ability to receive and dispose of Controllable Waste from Participating Cities the County will prioritize receipt and disposal of Controllable Waste delivered pursuant to applicable WISE Agreements.

(F) Application and Use of Revenues From Other Users.

(1) County Acceptable Waste: Throughout the Term hereof, a ll revenues received by the County from the disposal or processing of County Acceptable Waste into the Waste Infrastructure System (including Surcharges, and any and all fine, penalty, liquidated damages or other damages , grants, awards or revenue received by the County in connection with the Waste Infrastructure System ), shall be deposited by the County in the County OC Waste & Recycling Enterprise Fund and shall constitute revenues of the Waste Infrastructure System.

(2) Imported Acceptable Waste: Throughout the Term hereof, all revenues received by the County, pursuant to an Importation Agreement , for the disposal or processing of Imported Acceptable Waste into the Waste Infrastructure System (including Surcharges, and any and all fine, penalty, liquidated damages or other damages or revenue received by the County in connection with the Waste Infrastructure System ), shall first be applied toward all of the costs attributable to the acceptance and management of such Imported Acceptable Waste into the Waste Infrastructure System. Costs attributable to the disposal of Imported Acceptable Waste include, but are not limited to, deposits to the Environmental Fund, deposits to closure and post-closure reserves, Host Fees (if applicable), incremental operating costs (such as manpower expenditures, equipment, services and supplies expenditures), State surcharges, regulatory fees, charges or penalties, and a pro rata share of capital project costs. Revenue remaining after costs attributable to the disposal and management of Imported Acceptable Waste shall be considered “Net Import Revenues” and shall be calculated and distributed as follows:

(i) Calculation: Net Import Revenues are estimated to be 30% of the revenues received

by the County from the disposal of Imported Acceptable Waste (excluding any newly established per-ton fees or increases to existing per-ton fees with respect to Imported Acceptable Waste payable to the State, other regulatory agencies or cities in which facilities in the Waste Infrastructure System are located.)

(ii) Distribution: Net Import Revenues shall be distributed as follows;

a. 50% of any Net Import Revenues shall be paid to the County General Fund.

b. 50% of such Net Import Revenues shall be paid to the Participating Cities (and to the County, with respect to the unincorporated area) listed in Appendix 1 for use for any purpose by the Participating City, including but not limited to State mandated solid waste programs. Payments of such amount to the County General Fund and the Participating Cities shall be made by the County within ninety (90) days after the end of each fiscal year. The portion of Net Import Revenues specified above payable to the Participating Cities shall be apportioned in the percentages set forth in Appendix 1.

c. The percentages set forth in Appendix 1 with respect to each Participating City shall be annually reviewed and adjusted every five (5) years by the County to reflect the percentage of deliveries of Acceptable Waste from each Participating City averaged over the last five (5) years. The County shall notify Participating Cities of the revised percentages in Appendix 1 within one hundred and twenty (120) days of the end of each fiscal year.

SECTION 3.7 COUNTY PROVISION OF WASTE DIVERSION SERVICES.

(A) County-Wide Recycling and Diversion Services. Unless otherwise specifically provided in this Agreement, County is not required to provide for any source reduction, materials recovery, recycling, organic processing or other waste diversion services under this Agreement. However, County may choose to provide County- Wide Recycling Services funded through the County OC Waste & Recycling Enterprise Fund at its sole discretion on the condition that provision of said services shall be funded in a manner that does not impact the Contract Rate without first going through the process outlined in Section 4.2 and expressly agreed to by 50% of Participating Cities.

(B) Organic Processing and Diversion Services. The County has developed Organics Infrastructure and programs available to interested Cities intended to assist Cities in meeting their diversion and Organic Legislative Recycled Organic Waste Procurement goals and to promote the processing and diversion of Organic Waste into compost or other material that qualifies as diversion under Applicable Law. Cities interested in receiving County provided Organic Processing Services may enter into the separate Organic Serv ices Agreement (“OSA”) provided in Appendix 5 of this Agreement.

(C) Food Waste Processing and Diversion . County is in the process of evaluating the options and feasibility of development of a Commercial Food Waste Processing Infrastructure. If developed, Cities will be provided an opportunity to participate in this service on terms which shall be separately agreed upon by the Parties.

(D) Edible Food Recovery Programs. County is in the process of evaluating the options and feasibility of development of regional County -wide edible food recovery programs to assist Cities in meeting State mandated goals. The intent of Edible Food Recovery to address the food hierarchy and wasted food scale on a regional level through collaboration of all jurisdictions, key local, State and federal stakeholders, the non -profit sector and business sector. City agrees to reasonably cooperate with County efforts and collaborate on data analysis and reporting to provide jurisdictions reports for compliance under SB 1383. If developed, Cities will be provided an opportunity to participate in this service on terms which shall be separately agreed upon by the Parties.

(E) Recycling Market Development Zone (“RMDZ”) Program. The RMDZ program, administered by the California Department of Resource Recycling and Recovery (CalRecycle), combines recycling with economic development to support business that use materials from the waste stream to manufacture their products.

The program offers loans, technical assistance and product marketing to eligible businesses located within designates zones. City agrees to reasonably cooperate and collaborate with County in support of the RMDZ program.

(F) Separate City-County Diversion Service Agreements. Nothing in this Agreement is intended to limit the right of the County to enter into a separate agreement with the City or any other person to provide source reduction, materials recovery, recycling, composting or other waste diversion services. Any such program conducted by the County, whether in participation with the City, any other of the Participating Cities, other Cities, Special Districts, Sanitary Districts, Franchise Haulers , Independent Haulers, Unincorporated Area or non-County entity, shall be operated, managed and accounted for as a program separate and distinct from the Disposal Services program contemplated by the WISE Agreements and shall not be funded through the general revenues of the Disposal System.

ARTICLE IV

CONTRACT RATE

SECTION 4.1 CHARGING AND SECURING PAYMENT OF CONTRACT RATE. The City acknowledges that the County shall have the right to charge and collect a Contract Rate for the acceptance, disposal, and processing of Controllable Waste delivered to the Waste Infrastructure System by City or its Franchise Hauler. The Contract Rate shall be calculated and established, and may be modified, as provided in Section 4.2 hereof. In addition, the City acknowledges that the County shall have the right to establish as part of the operating rules and regulations reasonable measures to secure the payment of all Contract Rates.

SECTION 4.2 CONTRACT RATE.

(A) Establishment of Contract Rate. The Contract Rate payable by each City or Franchise Hauler shall be a three (3) year progressive Contract Rate of $67/ton (July 1 2026 through June 30, 2027), $74/ton (July 1, 2027 through June 30, 2028), and $81/ton (July 1, 2028 through June 30, 2029) and contingent on the delivery to the Waste Infrastructure System of an amount of City Acceptable Waste at least equal to the Cumulative Tonnage Targets identified in Appendix 2, and subject to adjustment necessary to reflect the circumstances set forth in this Section 4.2 including but not limited to:

(i) increased costs incurred by the County (in excess of available insurance proceeds) due to the occurrence of one or more Uncontrollable Circumstances, other than Changes in Law;

(ii) costs incurred by the County (in excess of available insurance proceeds and amounts available in the Environmental Fund for such purposes) remediating environmental conditions at the Disposal System or inactive or closed disposal sites in the County, which, if uncorrected, could give rise to potential claims under CERCLA or related federal or State statutes, including costs incurred providing indemnification to any Participating City pursuant to subsection 7.3;

(iii) tonnage shortfalls to the extent permitted by Sections 4.2(B);

(iv) County determination that the Department revenue is insufficient to meet Full Cost Recovery requirements.

(v) increased costs incurred by the County due to the occurrence of one or more Changes in Law;

(vi) Capital Costs in excess of the Capital Costs at any point in time during the term hereof exceeding the Cumulative Capital Costs set forth in Appendix 3;

(vii) Provision of new or expanded services , provided on terms as agreed to by the Parties.

Prior to adjusting the Contract Rate as a result of any of the circumstances described in clauses (i), (ii), (iii) (iv) or (vi) above, the County shall utilize the following remedies in the following order of priority:

(1) reduce the costs of operating the Disposal System to the extent practicable; and

(2) at the sole discretion of the County, utilize Unrestricted Reserves to pay costs of the Waste Infrastructure System.

The County will not be required to utilize such remedies prior to adjusting the Contract Rate as a result of any of the circumstances described in clauses (v) or (vii) above.

Any adjustments to the Contract Rate permitted by this Section shall be calculated by the County to reflect the actual costs or expenses of addressing the circumstance or circumstances pursuant to which the adjustment is authorized. The County agrees that, where appropriate, it will evaluate the feasibility of long-term financing for significant capital costs. Notwithstanding the forgoing, no adjustment to the Contract Rate shall occur as a result of costs associated with the programs identified in Section 3.7, without first going through the process outlined in Section 4.2 and expressly agreed to by 50% of Participating Cities.

(B) County Acceptable Waste Shortfall. In the event that the actual amount of County Acceptable Waste delivered to the Disposal System at the end of any Contract Year is less than the Cumulative Tonnage Target for such Contract Year for County Acceptable Waste, as specified in Appendix 2, the County shall utilize the following options, in the following order of priority, in order to remedy any adverse effects of such tonnage shortfall:

(i) reduce the costs of operating the Waste Infrastructure System to the extent practicable;

(ii) at the sole discretion of County, utilize Restricted Reserves described in clause (iii) of Section 4.5 to pay costs of the Waste Infrastructure System;

(iii) at the sole discretion of County, utilize Unrestricted Reserves to pay costs of the Waste Infrastructure System; and

(iv) adjust the Contract Rate.

In the event that implementation of the steps described above does not result in sufficient revenues to satisfactorily address the shortfall in tonnage, the County shall have the right to terminate the Agreement on one-hundred eighty (180) days written notice to the City. In addition, in the event that Waste Infrastructure expenses are lower than estimated or actual deliveries to the Disposal System exceed the Cumulative Tonnage Target as of the end of any Contract Year, the City acknowledges the County shall have the right to establish reserves intended to reflect the potential for lower than expected annual waste deliveries in subsequent years, and that any such reserves shall constitute “Restricted Reserves”.

(D) Interim Use of Remedies. In the event that, during any Contract Year, waste deliveries to the Disposal System are 25% or more below delivery projections for such Contract Year with the result that the County determines it is unlikely that the Cumulative Tonnage Target will be achieved as of the end of such Contract Year, the County may utilize the remedies described in Section 4.2(B) prior to the end of such Contract Year; provided, however, that if at the end of such Contract Year, the Cumulative Tonnage Target is actually met, the County shall reimburse any adjustments to the Contract Rate made pursuant to this Section to Participating Cities. Such reimbursement shall occur in a manner as agreed between the parties, and may be given as a credit or adjustment to the Contract Rate for future deliveries, rather than a lump sum payment.

(E) Special Charges. Notwithstanding Section 4.2(A), the County shall have the right to establish special charges for the provision of new or expanded services or the receipt of hard to handle materials, such as bulky materials, construction and demolition debris, tree stumps and sludge. Should the County wish to provide new or expanded services to Cities , it may charge for such services upon agreement of City. S pecial charges shall be calculated to reflect the reasonable incremental costs to the County of providing the new or expanded services or accepting such hard to handle materials.

Adjustments pursuant to this Section 4.2(E) shall not require compliance with the provisions of Section 4.2(I)

(F) Annual CPI Escalation. Subject to the application of the Contract Rate True-up (provided

[ ]
below), the Contract Rate shall be adjusted each July 1, beginning 2029, in an amount equal to the percentage change in the CPI (as defined above) as measured from the October twenty one (21) months prior to the rate adjustment to the October immediately preceding the rate adjustment (the “Annual CPI Adjustment”) . For example: The July 1, 2029 Annual CPI Adjustment to the Contract R ate shall be based upon the change in CPI from October 2027, to October 2028, referred to as year 1 and year 2 respectively in the following example.

Formula to calculate percentage change in the Contract Rate based on Annual CPI Adjustment :

Step 1:

October Year 2 CPI - 1 = % increase in Contract Rate October Year 1 CPI
Step 2: Current Contract Rate x (1+ % increase in Contract Rate) = Contract Rate as of July 1 Year 2

On each April 1, commencing April 1, 2029, the County shall provide the City with notice of the Annual CPI Adjustment to the Contract Rate to be effective the following July 1. Such notice shall contain the calculation of the adjustment set forth above. The County shall calculate the new Contract Rate each year.

In the event that the change in CPI as described above is negative rather than positive, no rate adjustment will be made for that year. No adjustment under this Section 4.2(F) will take place until the October CPI index surpasses the index level as of the October immediately preceding the last annual rate adjustment pursuant to this Section 4.1(F), which will be considered “year 1” in calculating the change in the Contract Rate.

For example, if the change in CPI is measured as follows: October 2027 = 205, October 2028 = 204, October 2029 = 201, October 2030 = 208, then there would be no adjustment in July 2029, or July 2030, and an adjustment equal to the change from 205 to 208 would be implemented on July 1, 2031.

Contract Rate True-up: On an annual basis, no later than each April 30 , beginning April 30, 2030, the County shall conduct an annual review of factors pertaining to the most recently completed fiscal year(s) including but not limited to, tonnage received throughout the Waste Infrastructure System, Cumulative Tonnage Targets identified in Appendix 2, revenue received from all sources , Department expenditures , and other factors that make up Department’s total costs.

County shall notify City prior to April 30, 2030 (and every April 30 thereafter) and advise whether the Annual CPI Adjustment to the Contract Rate should be frozen for a period of time (in circumstances where Department revenues exceed Department Full Cost Recovery needs) or to determine whether the Contract Rate should be increased beyond the Annual CPI Adjustment as defined above (in circumstances where Department costs exceed CPI) to ensure that Department revenues meet Full Cost Recovery.

Within thirty (30) days of finalizing each annual review, the County shall transmit its findings and the bases thereof to Participating Cities at the next regularly scheduled OCCMA meeting or other forum mutually agreed to by the County and OCCMA. If requested by the City or OCCMA, the County shall reasonably respond to requests from the City and/or OCCMA for additional information including, but not limited to, requests to meet and discuss reviews, findings, and bases of findings. At the request of 50% of Participating Cities, County agrees to meet and confer in good faith with OCCMA, within sixty (60) days to discuss retention of a consultant acceptable to both the County and OCCMA to conduct an independent review of the County’s annual review findings.

Nothing in this section shall be interpreted as limiting the County’s rights under Section 4.2(A).

(G) Adjustment Resulting from Increased Fees. In addition to the other adjustments specified herein, the Contract Rate shall be adjusted to reflect the imposition of new fees or increase in existing fees relating to the disposal of Controllable Waste imposed by State, federal or other agencies (e.g., the State’s Integrated Waste Management fee, which is currently $1.40 per ton, but is expected in increase during the term of this Agreement). The adjustment shall be equal to the amount of any new or increased fee, and the adjustment shall take effect so as to coincide with the imposition of the new or increased fee. The County shall provide notice of any increase pursuant to this Section 4.2(G) as soon as practicable after becoming aware of the imposition of any fees described above.

Adjustments pursuant to this Section 4.2(G) shall not require compliance with the provisions of Section 4.2(I).

(H) [RESERVED]

(I) Procedure for Rate Adjustments. In the event the County determines that it is entitled to an adjustment of the Contract Rate pursuant to Section 4.2(A) (other than 4.2(A)(iv)) or Section 4.2(B), it shall utilize the procedures described in this Section 4.2(I). The County shall be required to provide the City with at least ninety (90) days prior written notice of the adjustment, which notice shall identify the specific event(s) or circumstances which require the adjustment. The notice shall also specify the earliest date on which the County Board of Supervisors shall consider the proposed adjustment. At least forty five (45) days prior to such meeting of the Board of Supervisors, the County shall provide the City with a report which shall contain the following information: a description of the specific event(s) or circumstances which require the adjustment; a description (including cost estimates) of any activities (which may include, but not be limited to capital improvements to the Waste Infrastructure System) required in order to remedy such event or circumstance; certification by the County that it has implemented the remedies described in Section 4.2(A) or (B) prior to requiring the rate adjustment; and a description of the methodology used by the County to calculate the adjustment to the Contract Rate (hereinafter the “County Report”). In the event the City disputes the adjustment, it shall provide the County with a written description of the reason for the dispute at least ten (10) days prior to the meeting of the Board of Supervisors identified in the initial notice of the County (hereinafter the “City Report”). The City Report shall be provided to the Board of Supervisors for consideration at such meeting in connection with the proposed rate adjustment. At any time from and after the date that the County provides the City with the County Report, upon the request of either party, the City and County shall meet and confer in good faith to resolve any dispute that may arise regarding the proposed adjustment to the Contract Rate. In any such meeting, the County shall be represented by the Director of the Department or his or her designee. In the event the Board of Supervisors approves all or a portion of the proposed rate adjustment, such rate adjustment shall become effective on the date identified in the initial notice sent by the County regardless of whether or not the procedures in Section 4.2(J) are utilized, but subject to potential reimbursement pursuant to clause (11) of Section 4.2(J).

(J) Procedure for Expedited Judicial Review of Contested Rate Adjustment. In the event that, within thirty ( 30) days after the effective date of any Contract Rate adjustment made pursuant to Section 4.2(I), Participating Cities which, in the aggregate, accounted for more than 50% of the County Acceptable Waste delivered to the County System in the twelve (12) months preceding the Contract Rate adjustment, provide notice to the County of their election to utilize the procedures described in this Section 4.2(J), then the provisions of this Section 4.2(J) shall be utilized by such Participating Cities and the County to resolve the dispute over the Contract Rate Adjustment. In the event that Participating Cities which have delivered the amount of waste contemplated in the preceding sentence do not provide notice to the County of such election, the County shall have no obligation to participate in or cooperate in the implementation of the procedures described below in this Section 4.2(J).

(1) In order to pursue the expedited judicial determination described in this Section (the “Expedited Rate Determination”), the Participating Cities which have made the election described in the paragraph above (the “Challenging Cities”) must commence a civil action for breach of contract (the “Action”) in the Orange County Superior Court within forty five ( 45) days of the date on which the Board of Supervisors approves the challenged adjustment to the Contract Rate.

(2) Within two (2) Court days of filing the Action, the Challenging Cities shall personally serve on the County Counsel, with copy provided to the Clerk of the Board both the summons and complaint, and a stipulation and request for the entering of an order incorporating all of the procedural provisions relating to the Expedited Rate Determination as set forth in this Section 4.2(J) (such stipulation and request for order is hereinafter referred to as the “Expedited Rate Determination Stipulation”). The Expedited Rate Determination Stipulation shall be signed by each of the Challenging Cities, or on behalf of them by their legal counsel.

(3) Within fifteen (15) days of the date of service upon the County of the summons and complaint, and Expedited Rate Determination Stipulation, County Counsel shall execute the Expedited Rate Determination Stipulation and deliver it as well as the County’s answer to the complaint in the Action, by electronic means, to the Challenging Cities through their counsel of record. The Stipulation shall also include a waiver by each of the parties of their right to a jury trial of the issues raised in the Action. The Parties agree that the duty to execute the Expedited Rate Determination Stipulation and comply with the procedures set forth for Expedited Rate Determination in this Section 4.2(J) shall be, and are hereby deemed to be, ministerial duties which the law specifically enjoins upon each of them, and shall be subject to enforcement by the parties herein pursuant to Code of Civil Procedure Section 1085, et seq., or by means of a complaint for specific performance.

(4) Within three (3) days of the date of service by the County upon the Challenging Cities of the fully signed Expedited Rate Determination Stipulation, the County and the Challenging Cities shall jointly

make ex parte application to the Orange County Superior Court in the Action for the issuance of an order reflecting the procedural requirements and timelines contained in the Expedited Rate Determination Stipulation, provided however, the timelines may be adjusted by the Court as it deems may be needed for its convenience . As part of such ex parte application, the County and the Challenging Cities shall expressly seek to confirm with the Orange County Superior Court the briefing schedule, and request a hearing date (effectively a trial date) in accordance with the procedures set forth in this Section 4.2(J).

(5) Within ten (10) days of the date of service by the County upon the Challenging Cities of the answer in the Expedited Rate Determination, the Challenging Cities shall file with the Court and electronically serve upon County Counsel the Challenging Cities’ opening brief and the Record in the Expedited Rate Determination. The opening brief shall not exceed 15 pages in length. The Record shall consist of, and be limited to, the record of the proceedings before the Board of Supervisors with respect to the adjustment of the Contract Rate, including but not limited to the County Report and the City Report prepared by each or any of the Challenging Cities pursuant to Section 4.2(I), any materials filed or lodged with the Board of Supervisors and the Orange County Waste Management Commission in connection with its decision, the transcript of the proceedings of the Board of Supervisors meeting(s), and the Orange County Waste Management Commission, the minutes of the Board of Supervisors and the Orange County Waste Management Commission meeting, and the resolution and/or other documentation evidencing the action by the Board of Supervisors and the Orange County Waste Commission to adjust the Contract Rate pursuant to Section 4.2(A) or (B). The record shall also include the most recent reports prepared pursuant to Sections 4.6 and

4.7. The Expedited Rate Determination shall be decided solely on the evidence in the Record, and no extrinsic evidence shall be submitted to or considered by the Court.

(6) Within ten (10) days of service by the Challenging Cities of their opening brief and the Record, the County shall file and electronically serve upon the Challenging Cities’ Counsel the County’s opposition brief. The opposition brief shall not exceed 15 pages in length.

(7) Within five (5) days of service by the County upon the Challenging Cities of the opposition brief, the Challenging Cities may file and electronically serve upon County Counsel a reply rebuttal brief, which shall not exceed 10 pages in length.

(8) The trial of the Expedited Rate Determination shall be conducted as a law and motion hearing, similar to a hearing on a writ, which shall be conducted at the date set by the Court in connection with the ex parte application conducted pursuant to Section 4.2(J)(4), or such other date and time ordered by the Court. If the Court requests the parties to prepare supplemental briefs in response to any question or issue raised by the Court, the parties may do so.

(9) The standard of review for the Expedited Rate Determination shall be the preponderance of the evidence based upon the Record. The burden of proof shall be borne by the Challenging Cities, and the burden of proof shall be the same as with respect to a plaintiff in a damages action for breach of contract. Both parties have participated in the drafting of this Agreement. Accordingly, nothing set forth in this Agreement shall be interpreted or construed for or against either of the parties as a consequence of their participation in the drafting of this Agreement.

(10) The Court shall be advised that the Parties request that it issue a written statement of decision and enter judgment within thirty (30) days of the date of the hearing in the Expedited Rate Determination, although the Parties recognize that the Court has discretion to act as it deems appropriate in accord with applicable laws in connection with the timing thereof.

(11) If the Court determines that any portion of the County’s adjusted Contract Rate which is the subject of the Expedited Rate Determination was improperly imposed, the County shall, within thirty (30) days of the date of the statement of decision, reimburse to the City the amount improperly imposed, together with interest calculated at the Overdue Rate. If agreed by the Parties, as an alternative such reimbursement may be made in the form of a reduction in the Contract Rate for a future period (not to exceed twelve (12) months), applied in a manner such that it provides full reimbursement of the amounts described above (including the Overdue Rate , to be applied consistent with provisions of Section 7.14 hereof.)

(12) In the event that the Court does not sign the order contained in the Expedited Rate Determination Stipulation and set the matter for disposition as contemplated herein, the County and the Challenging

Cities shall, within twenty (20) days following the issuance of the Court’s order or decision not to do so and thereby honor the parties’ stipulation, make application to the Orange County Superior Court for an expedited hearing or trial date. The Challenging Cities and the County shall be bound by all of the requirements and restrictions set forth in Section 4.2(J) that are not in conflict with this paragraph (12). In this regard, and without limiting the foregoing, the only evidence to be presented at the hearing or trial shall be the Record, no testimony shall be presented at the hearing or trial; and both the County and the Challenging Cities waive all rights to a jury trial, to any reconsideration of the decision of the Court, to a new trial after the Court renders a decision, and to any appeal or review of the decision of the Court.

SECTION 4.3 RESPONSIBILITY FOR PAYMENT OF THE CONTRACT RATE, AND OTHER AMOUNTS DUE.

(A) Payment by City. In the event and to the extent (1) the City uses municipal collection forces directly for the haulage of Controllable Waste to the Waste Infrastructure System or (2) the City uses non-municipal Franchise Haulers for collection but nonetheless elects to pay the Contract Rate and other amounts due from City revenues, the City, as its own Franchise Hauler, shall have direct responsibility for payment of the Contract Rate and other amounts due, and shall take all such budgetary, appropriation and other action as may be necessary to provide for the timely payment of the Contract Rate and other amounts due . Such action may include, depending upon the means authorized by the City to provide for such payment, the levy and collection of general or special taxes, the imposition of benefit assessments, or the collection of user fees, generator charges or other similar impositions for municipal solid waste disposal. The City shall use best efforts in accordance with Applicable Law to levy and impose all such taxes, assessments, fees or charges, and will take all steps, actions and proceedings for the enforcement, collection and payment of all such amounts which shall become delinquent, to the full extent permitted by Applicable Law.

(B) Payment by Franchise Haulers. With respect to Controllable Waste delivered by Franchise Haulers on behalf of City other than City municipal collection forces, the obligation to pay the Contract Rate and other amounts due shall rest with such Franchise Haulers. Franchise Hauler shall pay the Contract Rate or other amounts due or any portion thereof when due. In the event of any such failure by Hauler, the County and the City shall cooperate with each other and use their best efforts to obtain timely payment from Franchise Hauler. Such efforts by the County may include, as appropriate, requiring cash payments for disposal rights from such Franchise Hauler and bringing a legal proceeding for payment and damages. Such efforts by the City may include, as appropriate, legal proceedings to suspend, revoke or terminate the Franchise Hauler’s franchise, permit or license rights.

(C) Disputes. If the City or the Franchise Hauler disputes any amount billed by the County in any Billing Statement, the City or the Franchise Hauler shall nonetheless pay the billed amount and shall provide the County with written objection within thirty (30) days of the receipt of such Billing Statement indicating the amount that is being disputed and providing all reasons then known to the City or the Franchise Hauler for any objection to or disagreement with such amount. If the City or the Franchise Hauler and the County are not able to resolve such dispute within thirty (30) days after the City’s or the Franchise Hauler’s objection, either party may pursue appropriate legal remedies.

SECTION 4.4 BILLING OF THE CONTRACT RATE OR OTHER AMOUNTS DUE . The County shall continue to bill Contract Rates and other amounts due after the Commencement Date, in the same manner as it has customarily billed tipping fees. Subject to the other provisions of this Agreement, the County shall have the right to modify or amend such manner of billing on reasonable notice to affected parties.

SECTION 4.5 RESTRICTED RESERVES. For purposes of this Agreement, “Restricted Reserves” means cash and other reserves of the Waste Infrastructure System which are restricted to specific uses or are otherwise being reserved by the County to meet its obligations hereunder throughout the term of the Agreement with respect to the Waste Infrastructure System pursuant to any Applicable Law, contract, adopted budget, budgetary policy of the County with respect to the Waste Infrastructure System, or other arrangement. Such cash and other reserves are not required to be deposited in separate accounts or funds in order to constitute “Restricted Reserves” hereunder, and may be commingled with Unrestricted Reserves or other funds of the County attributable to the Waste Infrastructure System. “Restricted Reserves” shall include, but not be limited to, the following:

(i) reserves for closure of components of the Waste Infrastructure System to the extent required by Applicable Law;

(ii) amounts reserved by the County for funding of post closure maintenance and monitoring with respect to components of the Waste Infrastructure System;

(iii) reserves established to protect the Waste Infrastructure System against the adverse financial impact of potential decreases in waste deliveries pursuant to Section 4.2(B);

(iv) amounts reserved to pay the costs of capital improvements with respect to the Waste Infrastructure System;

(v) amounts funded from revenues during the early years of the term of the Agreement reserved to enable the County to provide disposal services for the Contract Rate during the later years of the Agreement;

(vi) amounts temporarily held by the County prior to payment to the State or other Governmental Bodies pursuant to Applicable Law (including any fees or charges payable to CalRecycle);

(vii) reserves required to meet bond covenants pursuant to financing agreements for Waste Infrastructure System assets to the extent such amounts must be legally separate and distinct from other reserves identified in this Section;

(viii) security deposits from landfill deferred payment program users;

(ix) amounts held by the County in the Environmental Fund (provided, however, that such amounts in the Environmental Fund will be made available and used by the County if required to pay costs relating to environmental remediation or other related costs);

(x) AB 939 surcharges;

(xi) amounts held by the County in the Corrective Action Fund held pursuant to CCR Title 27 to demonstrate financial assurance to pay for potential groundwater contamination; and

(xii) an amount equal to three (3) months of budgeted expenses for the Disposal System for the current fiscal year, representing working capital of the Disposal System.

SECTION 4.6 AUDITED FINANCIAL STATEMENTS. The County shall annually, on or before January 1 each year, prepare or cause to be prepared and have on file for inspection an annual report for the preceding Contract Year, accompanied by a certificate of an independent public accountant or of the County Auditor and Controller as to the examination of the financial statements therein (describing such statements as fairly presenting the information therein in conformity with generally accepted accounting principles) relating to the Waste Infrastructure System, services, and the fiscal activities of the OC Waste Disposal Enterprise Fund, and including statements in reasonable detail of the financial condition of the OC Waste Disposal Enterprise Fund as of the end of the Contract Year and revenue and expenses for the Contract Year.

SECTION 4.7 ANNUAL UPDATE OF TEN-YEAR FINANCIAL PROJECTION. The County shall annually, on or before May 1 of each year, prepare or cause to be prepared, an updated Ten-Year Financial Projection for the Waste Infrastructure System. Said Financial Projection shall include at least two full years of prior actual data and ten years of future projections including the following elements:

1. County Acceptable Waste, in tons;

2. Imported Acceptable Waste, in tons;

3. Revenues and expenditures;

4. Cash fund balances, including all monies in the County Solid Waste Enterprise Fund, with specific delineation of monies in the Environmental Fund, Restricted Reserves, Unrestricted Reserves, and all other funds of the System; and

5. Projected liabilities for closure and post closure as well as reasonable reserves for

other environmental costs.

The purpose of the Ten-Year Financial Projection is to keep the City fully informed about the future financial condition of the Waste Infrastructure System. The County shall cause a copy of the Ten-Year Financial Projection to be delivered to the City Manager/General Manager of the City no later than May 1 of each year. Upon request, the County shall make available to the Cities supporting information related to the ten-year financial projection

Within thirty (30) calendar days of finalizing each annual update of the Ten-Year Projection, County shall transmit the Ten-Year Projection via email to the City and OCCMA . If requested by the City or OCCMA, the County shall reasonably respond to requests from the City and/or OCCMA for additional information including, but not limited to, requests to meet and discuss the updated Ten -Year Projections at the next regularly scheduled OCCMA meeting or other forum mutually agreed to by the County and OCCMA.

ARTICLE V

BREACH, ENFORCEMENT AND TERMINATION

SECTION 5.1 BREACH. The Parties agree that in the event either Party breaches any obligation under this Agreement or any representation made by either Party hereunder is untrue in any material respect, the other Party shall have the right to take any action at law or in equity (including actions for injunctive relief, mandamus and specific performance) it may have to enforce the payment of any amounts due or the performance of any obligations to be performed hereunder. Neither Party shall have the right to terminate this Agreement except as provided in Section 5.2 and Section 5.3 hereof or as otherwise provided in this Agreement.

SECTION 5.2 CITY CONVENIENCE TERMINATION. The City shall have the right to terminate this Agreement in its sole discretion, for its convenience and without cause at any time during the Term hereof upon ninety (90) days’ written notice to the County. If the City exercises its rights to terminate the Agreement pursuant to this Section, the City shall pay the County a termination fee equal to the Contract Rate in effect at the time of such termination (or any higher rate with respect to which the County has provided notice pursuant to Section 4.2) multiplied by the number of tons of City Acceptable Waste delivered to the Disposal System during the preceding twelve (12) months (or, if the City had been in breach of the Waste Disposal Covenant during such prior months, such amount as would have been delivered if the City had complied with the Waste Disposal Covenant), multiplied by the number of years remaining in the Term of the Agreement.

SECTION 5.3 TERMINATION.

(A) By City. Except as expressly provided herein, the City shall have no right to terminate this Agreement for cause except in the event of the failure or refusal by the County substantially to perform any material obligation under this Agreement unless such failure or refusal is excused by an Uncontrollable Circumstance; except that no such failure or refusal shall give the City the right to terminate this Agreement for cause under this subsection unless:

(1) The City has given prior written notice to the County stating that a specified failure or refusal to perform exists which will, unless corrected, constitute a material breach of this Agreement on the part of the County and which will, in its opinion, give the City the right to terminate this Agreement for cause under this subsection unless such breach is corrected within a reasonable period of time, and

(2) The County has neither challenged in an appropriate forum (in accordance with Section 5.5) the City’s conclusion that such failure or refusal to perform has occurred or constitutes a material breach of this Agreement nor corrected or diligently taken steps to correct such breach within a reasonable period of time not more than ninety (90) days from the date of the notice given pursuant to clause (1) of this subsection (but if the County shall have diligently taken steps to correct such breach within such reasonable period of time, the same shall not constitute a breach giving rise to the right of termination for as long as the County is continuing to take such steps to correct such breach).

(B) By County. Except as expressly provided herein, the County shall have no right to terminate this Agreement for cause except in the event of the failure or refusal by the City or its Franchise Hauler to substantially perform any material obligation under this Agreement unless such failure or refusal is excused by an Uncontrollable Circumstance; except that no such failure or refusal shall give the County the right to terminate this Agreement for

cause under this subsection unless:

(1) The County has given prior written notice to the City stating that a specified failure or refusal to perform exists which will, unless corrected, constitute a material breach of this Agreement on the part of the City and which will, in its opinion, give the County right to terminate this Agreement for cause under this subsection unless such breach is corrected within a reasonable period of time, and

(2) The City has neither challenged in an appropriate forum (in accordance with Section 5.5) the County’s conclusion that such failure or refusal to perform has occurred or constitutes a material breach of this Agreement nor corrected or diligently taken steps to correct such breach within a reasonable period of time not more than ninety (90) days from the date of the notice given pursuant to clause (1) of this subsection (but if the City shall have diligently taken steps to correct such breach within such reasonable period of time, the same shall not constitute a breach giving rise to the right of termination for as long as the City is continuing to take such steps to correct such breach).

SECTION 5.4 NO WAIVERS. No action of the County or the City pursuant to this Agreement (including, but not limited to, any investigation or payment), and no failure to act, shall constitute a waiver by either Party of the other Party’s compliance with any term or provision of this Agreement. No course of dealing or delay by the County or the City in exercising any right, power or remedy under this Agreement shall operate as a waiver thereof or otherwise prejudice such Party’s rights, powers and remedies. No single or partial exercise of (or failure to exercise) any right, power or remedy of the County or the City under this Agreement shall preclude any other or further exercise thereof of the exercise of any other right, power or remedy.

ARTICLE VI
TERM

SECTION 6.1 EFFECTIVE DATE AND TERM.

(A) Initial Term. This Agreement shall become effective, shall be in full force and effect and shall be legally binding upon the City and the County from the Contract Date and shall continue in full force and effect until June 30, 2036, unless earlier terminated in accordance with its terms, in which event the Term shall be deemed to have expired as of the date of such termination.

(B) Option to Renew. This Agreement shall be subject to renewal by mutual agreement of the Parties, on or before June 30, 2036 for an additional term of ten (10) years (the “Renewal Term”) on the same terms and conditions as are applicable during the Initial Term hereof or on amended terms as may be mutually agreed to by the Parties. The City shall give the County written notice of its election to renew this Agreement on or before June 30, 2035. If the parties do not execute a renewal of this Agreement prior to June 30, 2036 it shall expire.

(C) Contract Rate During Renewal Term. In connection with the parties’ right to renew this Agreement for an additional ten-year term pursuant to Section 6.1(C), the parties shall, on or before January 31, 2036 negotiate an applicable change in the Contract Rate for such renewal term. In determining any revisions to the Contract Rate to be applicable during any renewal period, in addition to the circumstances described in Section 4.2(A), the parties may take into consideration the following parameters, including but not limited to:

(i) actual cost of operations;

(ii) population growth;

(iii) increase or decrease in available tonnage;

(iv) economic and disposal market conditions in the Southern California region;

(v) new regulatory requirements;

(vi) Changes in Law;

(vii) changes in transportation and technology;

(viii) closure and expansion of nearby landfills;

(ix) capacity of the Disposal System;

(x) provision of new and/or expanded services; and

(xi) available reserves which are in excess of the amount reasonably required as reserves.

(D) Survival; Accrued Rights. The rights and obligations of the parties hereto pursuant to Sections 3.1(E)(2), 5.1, 5.3, 7.2, 7.3, 7.6, 7.7, 7.8, and 7.9 hereof shall survive the termination or expiration of this Agreement, and no such termination or expiration shall limit or otherwise affect the respective rights and obligations of the parties hereto accrued prior to the date of such termination or expiration. At the end of the Term of this Agreement, all other obligations of the parties shall terminate.

SECTION 6.2 COMMENCEMENT DATE.

(A) Obligations of the Parties Prior to the Commencement Date. The Parties acknowledge that the Agreements may be executed and delivered on different dates and that, except as provided in this subsection, neither the County nor the City shall be obligated to perform its obligations hereunder until the Participation Threshold provided herein has been met and the other conditions to the occurrence of the Commencement Date have occurred.

Prior to the Commencement Date, each Party hereto shall at its own expense exercise good faith and due diligence and take all steps within its reasonable control in seeking to satisfy the conditions to the Commencement Date set forth herein as soon as reasonably practicable. The County and the City, each at its own expense, shall cooperate fully with each other and the other Participating Cities in connection with the foregoing undertaking. Until the Commencement Date occurs, the Original WDAs shall remain in full force and effect until they expire or are terminated.

(B) Condition to the Commencement Date. The Commencement Date for the Agreement shall be the date on which Participating Cities reach the Participation Threshold. Unincorporated County is assumed to be a Participating City for the purposes of determining the Commencement Date in accordance with this Section 6.2(b) and Appendix 1 of this Agreement.

(C) Satisfaction of Condition and Commencement Date. Upon the satisfaction or waiver of the condition to the Commencement Date, the County shall give written notice thereof to the Cities which have theretofore executed Agreements. The parties shall thereupon hold a formal closing acknowledging the satisfaction or waiver of the condition to the Commencement Date, certifying that the Commencement Date has occurred and designating the Participating Cities. Copies of all of the documents or instruments constituting or evidencing satisfaction of the Commencement Date conditions shall be furnished to each party prior to or on the Commencement Date. (D) Newly Incorporated Cities. Any city within Orange County which becomes incorporated after the Commencement Date shall upon request be offered the opportunity by the County to become a Participating City on substantially the same terms and conditions as this Agreement.

(E) Failure of Condition. If by June 30, 2026, or such later date as the County may agree, the condition to the Commencement Date specified in this Section is not satisfied, either party hereto may, by notice in writing to the other party, terminate this Agreement. Neither party shall be liable to the other for the termination of this Agreement pursuant to this subsection, and each of the parties shall bear its respective costs and expenses incurred in seeking to satisfy the condition to the Commencement Date.

ARTICLE VII

GENERAL PROVISIONS

SECTION 7.1 OPERATION AND MAINTENANCE OF THE WASTE INFRASTRUCTURE SYSTEM.

The County, at its cost and expense through the County Solid Waste Enterprise Fund, shall at all times operate, or caused to be operated, the Waste Infrastructure System in accordance with Applicable Law and the operating rules and regulations of the Department and other applicable regulatory agencies.

SECTION 7.2 UNCONTROLLABLE CIRCUMSTANCES GENERALLY.

(A) Performance Excused. Except as otherwise specifically provided in this Agreement, neither the County nor the City shall be liable to the other for any failure or delay in the performance of any obligation under this Agreement (other than any payment at the time due and owing) to the extent such failure or delay is due to the occurrence of an Uncontrollable Circumstance.

(B) Notice, Mitigation. The Party experiencing an Uncontrollable Circumstance shall notify the other Party by telecommunication or telephone and in writing, on or promptly after the date the Party experiencing such Uncontrollable Circumstance first knew of the commencement thereof, followed within fifteen (15) days by a written description of (1) the Uncontrollable Circumstance and the cause thereof (to the extent known), (2) the date the Uncontrollable Circumstance began and the cause thereof, its estimated duration, the estimated time during which the performance of such Party’s obligations hereunder will be delayed, (3) the estimated amount, if any, by which the Contract Rate may need to be adjusted as a result of such Uncontrollable Circumstance, (4) its estimated impact on the other obligations of such Party under this Agreement and (5) potential mitigating actions which might be taken by the County or City and any areas where costs might be reduced and the approximate amount of such cost reductions. Each Party shall provide prompt written notice of the cessation of such Uncontrollable Circumstance. Whenever such act, event or condition shall occur, the Party claiming to be adversely affected thereby shall, as promptly as reasonably possible, use its best efforts to eliminate the cause therefor, reduce costs and resume performance under this Agreement. In addition, with respect to Changes in Law, the County shall diligently contest any such changes the imposition of which would have a material adverse impact on the Waste Infrastructure System. While the delay continues, the County or City shall give notice to the other Party, before the first day of each succeeding month, updating the information previously submitted.

(C) Impact on Contract Rate. If and to the extent that Uncontrollable Circumstances interfere with, delay or increase the cost to the County of meeting its obligations hereunder and providing Waste Infrastructure Services to the Participating Cities in accordance herewith, the County shall be entitled to an increase in the Contract Rate as provided in Section 4.2 herein or an extension in the schedule for performance equal to the amount of the increased cost or the time lost as a result thereof. The proceeds of any insurance available to meet any such increased cost shall be applied to such purpose prior to any determination of cost increases payable under this subsection. Any cost reductions achieved through the mitigating measures undertaken by the County pursuant to subsection 7.2(B) hereof upon the occurrence of an Uncontrollable Circumstance shall be reflected in a reduction of the amount by which the Contract Rate would have otherwise been increased or shall serve to reduce the Contract Rate to reflect such mitigation measures, as applicable.

SECTION 7.3 INDEMNIFICATION. To the extent permitted by law, the County agrees that, it will protect, indemnify, defend (with counsel selected by County) and hold harmless the City from and against all Loss-and- Expense arising from the City’s activity as an “arranger” (for purposes of and as such term is defined under CERCLA or comparable State statutes) of municipal solid waste disposal pursuant to this Agreement. In the event the City shall determine for any reason, other than a disabling conflict of interest, that it wishes to be defended by legal counsel other than the legal counsel provided by the County, the cost of providing such legal counsel shall be the City’s sole responsibility. Any costs incurred by the County pursuant to this Section shall be considered an Uncontrollable Circumstance cost and the County shall be entitled to adjust the Contract Rate as provided in subsection 4.2(A) herein.

The County shall not, however, be required to indemnify or defend the City from and against all Loss-and-Expense arising from any willful, knowing, illegal or negligent disposal of hazardous waste (other than incidental amounts of Household Hazardous Waste commonly found in municipal solid waste and permitted to be disposed in Class III landfills under RCRA) which violates the County’s landfill permits or Applicable Law. The parties agree that this provision constitutes an indemnity under CERCLA (to the extent of the specific provisions of this Section). The parties acknowledge that this subsection is not intended to and does not create any obligation on the part of the County to provide any indemnification or defense to any Franchise Hauler, whether franchised or not, or any Independent Hauler or Transfer Station, under any circumstances. The City acknowledges the County’s legitimate interest in actively participating in any defense, litigation or settlement, whether the County or the City provides legal counsel and shall, as a condition to County’s provision of this indemnity, coordinate and cooperate fully with the County in the defense of any claims to which this Section applies.

SECTION 7.4 RELATIONSHIP OF THE PARTIES. Neither party to this Agreement shall have any responsibility whatsoever with respect to services provided or contractual obligations or liabilities assumed by the

other party hereto, whether accrued, absolute, contingent or otherwise, or whether due or to become due. The County is an independent contractor of the City and nothing in this Agreement shall be deemed to constitute either party a partner, agent or legal representative of the other party or to create any fiduciary relationship between the parties.

SECTION 7.5 LIMITED RECOURSE.

(A) To the City. No recourse shall be had to the general funds or general credit of the City for the payment of any amount due the County hereunder, or the performance of any obligation incurred hereunder, including any Loss-and-Expense of any nature arising from the performance or non-performance of the City’s obligations hereunder. If the City maintains a City Solid Waste Enterprise Fund with at least one year’s anticipated costs for disposal and processing of City Acceptable Waste the sole recourse of the County for all such amounts shall be to the funds held in any such City Solid Waste Enterprise Fund. All amounts held in any City Solid Waste Enterprise Fund shall be held for the uses permitted and required thereby, and no such amounts shall constitute property of the County. The City shall make adequate provision in the administration of any City Solid Waste Enterprise Fund for the payment of any amount or the performance of any obligation which may be due hereunder.

(B) To the County. No recourse shall be had to the general funds or general credit of the County for the payment of any amount due the City hereunder, or the performance of any obligation incurred hereunder, including any Loss-and-Expense of any nature arising from the performance or non-performance of the County’s obligations hereunder. The sole recourse of the City for all such amounts shall be to the funds held in the County Solid Waste Enterprise Fund in accordance with the terms of this Agreement. All amounts held in the County Solid Waste Enterprise Fund shall be held for the uses permitted and required thereby, and no such amounts shall constitute property of the City. The County shall make adequate provision in the administration of the County Solid Waste Enterprise Fund for the payment of any amount or the performance of any obligation which may be due hereunder.

SECTION 7.6 PRE-EXISTING RIGHTS AND LIABILITIES. Nothing in this Agreement is intended to affect, release, waive or modify any rights, obligations or liabilities which any Party hereto may have to or against the other Party as of the Contract Date relating to the receipt of Acceptable Waste in the Waste Infrastructure System or any other related matter.

SECTION 7.7 NO VESTED RIGHTS. The City shall not acquire any vested property, license or other rights in the Waste Infrastructure System by reason of this Agreement.

SECTION 7.8 LIABILITY FOR COLLECTION, TRANSPORTATION AND PROCESSING. Any liability incurred by the City as a result of collecting, transporting or processing of Acceptable Waste, or as a result of causing, franchising, permitting, licensing, authorizing or arranging any of the foregoing, shall be the sole liability of City, except as expressly otherwise provided herein.

SECTION 7.9 NO CONSEQUENTIAL OR PUNITIVE DAMAGES. In no event shall either Party hereto be liable to the other or obligated in any manner to pay to the other any special, incidental, consequential, punitive or similar damages based upon claims arising out of or in connection with the performance or non- performance of its obligations or otherwise under this Agreement, or the material inaccuracy of any representation made in this Agreement, whether such claims are based upon contract, tort, negligence, warranty or other legal theory.

SECTION 7.10 AMENDMENTS. Neither this Agreement nor any provision hereof may be changed, modified, amended or waived except by written agreement duly authorized and executed by both Parties.

SECTION 7.11 NOTICE OF LITIGATION. Each Party shall deliver written notice to the other of any Legal Proceeding to which it is a party and which questions the validity or enforceability of this Agreement executed by the City or the County or any Legal Entitlement issued in connection herewith.

SECTION 7.12 FURTHER ASSURANCES. At any and all times the City and the County so far as may be authorized by law shall pass, make, do, execute, acknowledge and deliver any and every such further resolutions, acts, deeds, conveyances, instruments, assignments, transfers and assurances as may be necessary or reasonably requested by the other in order to give full effect to this Agreement.

SECTION 7.13 ASSIGNMENT OF AGREEMENT.

(A) Assignment. Neither this Agreement nor any of the rights or obligations hereunder may be assigned by either Party hereto without the prior written consent of the other Party, which may be withheld in the other Party’s sole discretion. Notwithstanding the foregoing, either Party may assign this Agreement to another public entity, subject to the reasonable consent of the other party. In such circumstances the Party not requesting the assignment shall have the right to demand assurances of the financial, technical and legal ability of the proposed assignee to undertake the responsibilities and obligations of the assigning Party.

(B) Sale. The County shall not enter into any agreement for the sale of the Waste Infrastructure System which provides for an effective date for such sale prior to the termination of this Agreement.

SECTION 7.14 INTEREST ON OVERDUE OBLIGATIONS. Except as otherwise provided herein, all amounts due hereunder, whether as damages, credits, revenue or reimbursements, that are not paid when due shall bear interest at the Overdue Rate on the amount outstanding from time to time, on the basis of a 365-day year, counting the actual number of days elapsed, and all such interest accrued at any time shall, to the extent permitted by Applicable Law, be deemed added to the amount due, as accrued.

SECTION 7.15 BINDING EFFECT. This Agreement shall bind and inure to the benefit of the Parties hereto and any successor or assignee acquiring an interest hereunder consistent with the provisions of Section 7.13 hereof.

SECTION 7.16 NOTICES. Any notice or communication required or permitted hereunder shall be in writing and sufficiently given if delivered in person or sent by certified or registered mail, postage prepaid, to the notice address of the respective Parties set forth on the cover page of this Agreement. Changes in the respective addresses to which such notices may be directed may be made from time to time by any Party by notice to the other Party.

Section 7.17 ATTORNEYS FEES. In any action or proceeding to enforce or interpret any provision of this Agreement, each Party shall bear their own attorney’s fees, costs and expenses.

Signature Page to Follow

IN WITNESS WHEREOF, COUNTY and CITY have caused this Agreement to be executed by their duly authorized officers or representatives as of the day and year first above written.

COUNTY OF ORANGE

Date By
Director, OC Waste & Recycling

APPROVED AS TO FORM:

COUNTY COUNSEL

ORANGE COUNTY, CALIFORNIA

Date

Date By
Aaron France
City Manager
City of Buena Park

Date By
Adria M. Vicuna
City Clerk
City of Buena Park

APPROVED AS TO FORM:

By
City Attorney

Date

APPENDIX 1

ESTIMATED ANNUAL TONNAGE

APPENDIX 1

PERCENTAGE OF COUNTY ACCEPTABLE WASTE ATTRIBUTABLE TO PARTICIPATING CITIES FOR PURPOSE OF SECTIONS 3.6(F) AND 6.2(b)

Jurisdiction

Percentage of County
Acceptable Waste

Aliso Viejo 0.82%
Anaheim 14.78%
Brea 2.62%
Buena Park 1.02%
Costa Mesa/Costa Mesa Sanitary District (2) 3.41%
Cypress 0.85%
Dana Point 1.33%
Fountain Valley 1.63%
Fullerton 4.08%
Garden Grove Sanitary District (Garden Grove) 4.74%
Huntington Beach 5.91%
Irvine 9.64%
La Habra 1.72%
La Palma 1.27%
Laguna Beach 1.18%
Laguna Hills 0.89%
Laguna Niguel 1.44%
Laguna Woods 0.28%
Lake Forest 2.14%
Los Alamitos 0.33%
Midway City Sanitary District (Westminster) 2.47%
Mission Viejo 2.33%
Newport Beach 3.58%
Orange 5.25%
Placentia 1.39%
Rancho Santa Margarita 1.03%
San Clemente 2.43%
San Juan Capistrano 2.93%
Santa Ana 9.45%
Seal Beach 0.52%
Stanton 1.47%
Tustin 2.04%
Unincorporated Orange County (1) 3.19%
Villa Park 0.16%
Yorba Linda 1.68%
Total 100%

(1) Unincorporated County Area is assumed to be a Participating City for the purposes of determining the Commencement Date in accordance with Section 6.2(b) of this Agreement. For the distribution of Net Import Revenues, the County of Orange shall receive 50% of any Net Import Revenues received in accordance with Section 3.6(F)(2)(i) of this Agreement. The County of Orange shall also receive the Unincorporated Area distribution set forth in this Appendix 1, as periodically modified in accordance with Section 3.6(F)(2)(ii) of this Agreement. (2) The City of Costa Mesa and the Costa Mesa Sanitation District have separate WISE Agreements. Costa Mesa Sanitation District Acceptable Waste tonnage is based on City of Costa Mesa Acceptable Wate tonnage and Importation Revenue is calculated based on City of Costa Mesa Acceptable Waste tonnage delivered to the Waste Infrastructure System.

(3) NOTE: A participating City will only be included for purposes of determining the Commencement Date upon (i) execution of a WISE Agreement by that Participating City and (ii) execution of a Hauler Acknowledgement(s) by the Franchise Hauler(s) operating with in such Participating City.

APPENDIX 2

CUMULATIVE TONNAGE

APPENDIX 2
Cumulative County Acceptable Waste Tonnage Target to be Used for Purposes of Section 4.2(B)

Fiscal Year
(Ending June 30)
County Acceptable Waste
Tonnage
Cumulative County Acceptable
Waste Tonnage
2026 3,343,282 3,343,282
2027 3,278,595 6,621,877
2028 3,029,924 9,651,801
2029 2,982,454 12,634,255
2030 2,411,983 15,046,238
2031 2,261,201 17,307,439
2032 2,225,152 19,532,591
2033 2,181,838 21,714,429
2034 2,187,041 23,901,470
2035 2,219,362 26,120,832
2036 2,224,792 28,345,624

APPENDIX 3

CUMULATIVE CAPITAL COSTS

APPENDIX 3

CUMULATIVE CAPITAL COSTS
to be Used
for Purposes of Section 4.2(A)vi

Fiscal Year
(Ending June 30) Annual Capital Costs Cumulative Capital Costs 2026 $72,599,664 $72,599,664
2027 $79,950,000 $152,549,664
2028 $155,135,000 $307,684,664
2029 $136,185,000 $443,869,664
2030 $41,171,500 $485,041,164
2031 $16,745,000 $501,786,164
2032 $18,165,000 $519,951,164
2033 $36,605,000 $556,556,164
2034 $30,100,000 $586,656,164
2035 $1,510,000 $588,166,164
2036 $25,000,000 $613,166,164

APPENDIX 4

FRANCHISE HAULER ACKNOWLEDGMENT

THIS FRANCHISE HAULER ACKNOWLEDGMENT, dated as of April 14, 2026 (the “Acknowledgment”), and between the City of Buena Park (the “City”) and EDCO (the “Franchise Hauler”).

WITNESSETH

WHEREAS, the City and the Franchise Hauler have heretofore entered into an agreement entitled Agreement for the Collection and Disposal of Refuse, Rubbish, Garbage and Waste Materials dated as of June 1, 1984; and Amendment No. 1 dated April 10, 1989; and Amendment No. 2 dated February 5, 1991 (the “Franchise”); and

WHEREAS, the City has issued to the Franchise Hauler a permit, license, approval or other authorization the “Authorization”) which allows the Franchise Hauler to provide solid waste collection services within the City; and

WHEREAS, the Franchise provides for the collection and disposal of certain municipal solid waste as described therein (“Franchise Waste”) generated within the City; and

WHEREAS, the County of Orange (the “County”) owns, manages and operates a Waste Infrastructure System that is permitted to accept or process Acceptable Waste for disposal or diversion; and

WHEREAS, the City and the County have heretofore entered into a Waste Infrastructure System Enterprise Agreement (the “WISE Agreement”), dated as of April 14, 2026; and

WHEREAS, the WISE Agreem ent details responsibilities for disposal of municipal solid waste and may include processing of identified Organic Waste for diversion, generated within the boundaries of the City, and determine that the execution of the WISE Agreement will serve the publi c health, safety and welfare of the residents of the City and County, by maintaining public ownership and stewardship over the Waste Infrastructure System and providing disposal rate stability, predictable and reliable long -term disposal service, enhanced organics proce ssing to assist the City in meeting its organics diversion requirements, and the continuation of sound environmental man agement; and

WHEREAS, under the WISE Agreement, the County has agreed to provide long-term disposal of all municipal solid waste generated within the City and may also provide for Organic Waste processing under an OSA and the City has agreed to exercise all legal, and contractual power which it possesses from time to time to deliver or cause the delivery of such waste to the Waste Infrastructure System; and

WHEREAS, the provisions of the WISE Agreement guarantee capacity for the long term disposal and processing of waste at specified rates generated in the City provide significant benefits to the Franchise Hauler;

WHEREAS, notwithstanding any Franchise provisions to the contrary, the Franchise Hauler explicitly acknowledges the aforementioned benefits to the City, the County and the Franchise Hauler in providing for the disposal of all Franchise Waste to the Waste Infrastructure System; and

WHEREAS, the City and the Franchise Hauler desire to enter into this Acknowledgment to assure that the City and the Franchise Hauler will be entitled to the benefits of the WISE Agreement and to assure conformity with the waste delivery obligations which have been agreed to by the City under the WISE Agreement through the delivery of waste by the Franchise Hauler to the Waste Infrastructure System; and

WHEREAS, the Franchise Hauler’s agreement to deliver Franchise Waste to the Disposal System under this Acknowledgment is given in consideration of the Franchise Hauler’s right to receive the Contract Rate for such disposal and processing as provided in the WISE Agreement.

NOW, THEREFORE, in consideration of the premises and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties hereto, intending to be legally bound hereby, agree as follows:

1. Capitalized terms used and not otherwise defined herein are used as defined in the WISE Agreement.

2. The Franchise Hauler hereby waives any right which it may possess under applicable law to contest

on any ground, constitutional, statutory, case law, administrative or otherwise, (a) the right, power or authority of the County or the City to enter into or perform their respective obligations under the WISE Agreement, (b) the enforceability against the County or the City of the WISE Agreement, or (c) the right, power or authority of the City to deliver or cause the delivery of all Controllable Waste to the Disposal System in accordance with this Acknowledgment.

3. The City and the Franchise Hauler each hereby represent that this Acknowledgment has been duly authorized by all necessary action of their respective governing bodies.

4. The Franchise Hauler shall deliver or cause to be delivered all Controllable Waste (including all Residue from the processing by any means, wherever conducted, of Controllable Waste), to the Designated Facility in the Waste Infrastructure System/Disposal System, and shall otherwise assist the City in complying with its obligations under the Waste Disposal Covenant in Section 3.1 of the WISE Agreement.

5. Unless expressly authorized by the Department, t he Franchise Hauler shall only haul Controllable Waste to the Designated Facility.

6. The Franchise Hauler shall not haul Controllable Waste to any materials recovery facility, composting facility, intermediate processing facility, recycling center, transfer station or other waste handling or management facility unless the contract or other agreement or arrangement between the Franchise Hauler and the operator of such facility is sufficient in the opinion of the County to assure that the Residue from such facility constituting City Acceptable Waste (or Tonnage equivalencies) and the City Acceptable Waste transferred by such facility shall be delivered to the Disposal System in compliance with the Waste Disposal Covenant.

7. The Franchise Hauler shall pay the Contract Rate imposed by the County for the disposal of all Controllable Waste, which rate shall be subject to potential adjustment necessary to reflect the circumstances set forth in the Agreement.

8. Nothing in this Acknowledgment is intended to restrict any right or responsibility explicitly given the Franchise Hauler in any City Franchise Agreement to recycle City Acceptable Waste, except as provided in paragraph 5 above with respect to Residue from any such recycling operations.

9. The obligations of the Franchise Hauler under this Acknowledgment shall apply notwithstanding any provision of the Franchise which may conflict herewith.

10. This Acknowledgment may be enforced by the City by any available legal means. In any enforcement action by the City, the burden of proof shall be on the Franchise Hauler to demonstrate compliance herewith.

11. This Acknowledgment shall be in full force and effect and shall be legally binding upon the City and Franchise Hauler from the date hereof and shall continue in full force and effect until the earlier of (i) the end of the term of the Franchise or (ii) the end of the Term of the WISE Agreement.

12. The City and Franchise Hauler agree that the County shall be an express third-party beneficiary of this Acknowledgment, and shall be entitled to independently enforce the obligations of the Franchise Hauler hereunder.

There shall be no additional third party beneficiaries under this Acknowledgement.

13. The Franchise Hauler agrees to assist the County in verifying tonnage collected by the Franchise Hauler and providing information required by the County. The Franchise Hauler will provide upon request refuse tonnage collected within the County, and outside the County (if relevant to confirming tonnage origination), separated by jurisdiction, by load type (residential, commercial, roll-off box, etc.), and by facility to which it was delivered (specify which landfill or transfer station). Hauler will provide customer service levels and route lists. The Franchise Hauler will cooperate with County audits to verify reported origin of tonnage by making records and personnel available to the County and/or its auditors.

IN WITNESS WHEREOF, the parties have caused this Acknowledgment to be executed by their duly authorized officers or representatives as of 14th day of April, 2026.

“CITY”

Signature:

Printed Name:

Title:

APPROVED AS TO FORM:

By
City Attorney

Date

(Franchise Hauler)

Signature:

Printed Name:

Title:

Appendix 5

ORGANIC SERVICES AGREEMENT

Appendix 5

ORGANIC SERVICES AGREEMENT

Between

THE COUNTY OF ORANGE, CALIFORNIA

and

__________________________

Dated , 2025

County Authorization Date:

City Authorization Date:

County Notice Address:

Director
OC Waste & Recycling
601 N. Ross Street 5th Floor
Santa Ana, CA 92701

City Notice Address:

ORGANIC SERVICES AGREEMENT

THIS ORGANIC SERVICES AGREEMENT (“Organics Agreement” or “OSA”) is made and dated as of the date indicated on the cover page hereof between the County of Orange, a political subdivision of the State of California (the “County”), and the City designated on the cover page of this Agreement (the “City”). County and City may hereinafter be referred to singularly as “Party” or collectively as “Parties.”.

RECITALS

The County owns, manages and operates a Waste Infrastructure System to manage municipal and solid waste generated within the County of Orange or imported from outside the County pursuant to contractual agreements. The Waste Infrastructure System collectively includes active Class III sanitary landfills (“County Landfills”), resource recovery, recycling and organics programs, infrastructure and operations, and regional household hazardous waste collection centers and other waste management related systems as may be deemed necessary by the County.

A significant portion of municipal solid waste generated within the City historically has been and currently is delivered by such hauler or haulers to the County for disposal in the Disposal System.

Starting in approximately 2014, the Legislature of the State of California passed several pieces of legislation (“Organics Legislation”) that require significant reductions in the disposal of Organic Waste. The purpose of the Organics Legislation is to mandate organics recycling and cu rtail the impacts of climate change by reducing greenhouse gas emissions such as methane. In this regard, the decomposition of organic material in the State’s landfills was identified as a significant source of methane that could be reduced.

Prior to the passage of Organics Legislation, Processed Green Material (“PGM”) could be utilized as Alternative Daily Cover (“ADC”) for landfill operations and qualified for diversion credit. However, passage of Assembly Bill 1594 resulted in PGM used as ADC no longer being eligible for diversion credit starting on January 1, 2020.

In addition to the loss of diversion eligibility for PGM used as ADC, SB 1383 requires a 50% reduction in the disposal of Organic Waste by January 1, 2020 and a 75% reduction of Organic Waste by January 1, 2025. In addition, the law requires 20% of edible food waste be recovered by 2025.

To respond to Organics Legislation requirements, the County has developed an Organics Infrastructure that is comprised of organic processing facilities to receive and process Organic Waste to support the State’s Organic Legislation goals, promote local recycling, assist local jurisdictions in meeting their organic diversion requirements and correspondingly conserve capacity in the Disposal System.

In their effort to continue the concepts and purposes outlined in the WDAs and respond to Organics Legislation, the City and the County desire to enter into this Organics Agreement, on the terms and conditions set forth herein.

With the exception of the terms and organic specific provisions found in this Organics Agreement, the Parties intend that the provisions of the currently operative WDA and the replacement WISE Agreement that is being negotiated between the County and City are anticipated to become operative on July 1, 2026, be applied to this OSA.

The City has determined that the execution of this Organics Agreement by the City will serve the public health, safety and welfare of the City by providing enhanced organics processing to assist in the City in meeting its Organics Legislation diversion requirements, and the continuation of sound environmental management.

The County has determined that the execution by the County of this Organics Agreement will serve the public health, safety and welfare by providing a stable, predictable and reliable supply of organic material and the resulting service payment revenue to the Organics Infrastructure , thereby enabling the County to plan, manage, operate and finance improvements to the Organics Infrastructure System on a prudent and sound long term, businesslike basis consistent with its legal and regulatory obligations to the State and Federal government.

Official action approving this Organics Agreement and determining it to be in the public interest and authorizing its execution and delivery was duly taken by the County on the County authorization date indicated on the cover page hereof.

Official action approving this Organics Agreement and determining it to be in the public interest and authorizing its execution and delivery was duly taken by the City on the City authorization date indicated on the cover page hereof.

It is, therefore, agreed as follows:

ARTICLE I

DEFINITIONS AND INTERPRETATION

SECTION 1.1 DEFINITIONS. The definitions provided in the WDA and yet to be executed WISE Agreement shall be incorporated into this Agreement. The following terms shall be added and have the meanings set forth below.

“Acceptable Organic Waste” means Residential Organic Waste that consists of Green Material/Wood Waste, Agricultural Material, Manure, Vegetative Food Material, Food Waste and other organic material as may be authorized under the County’s Compostable Material Handling Permits.

“Attachment” means an attachment to this OSA, as the same may be amended or modified from time to time in accordance with the terms hereof.

“CalRecycle” means the California Department of Resources Recycling and Recovery, which is a branch of the California Environmental Protection Agency. CalRecycle oversees the State’s waste management and waste reduction programs. CalRecycle was established in 2010 to replace the California Integrated Waste Management Board and is responsible for the enforcement of legislation and regulations and diversion requirements applicable to the Waste Infrastructure System.

”City Acceptable Organic Waste” means all Acceptable Organic Waste which was originally discarded by the first generator thereof within the geographical limits of the City and Residue Waste from the foregoing wherever produced, whether withing or outside the City.

“City Organic Tonnage Limit” the maximum amount of Controllable Organic Waste that County is committed to accept under the Organic Service Covenant as provided in Attachment 3.

“Commencement Date” means the date on which the obligations of the parties hereto commence.

“Contract Date” means the first date on which this OSA has been executed by both parties hereto. “Controllable Organic Waste” means all City Acceptable Organic Waste with respect to which the City has the legal or contractual ability to determine the processing location and procurement requirements as they relate to the City’s Organics Legislation compliance requirements.

“Consumer Price Index” or “CPI” means the Consumer Price Index published by the Bureau of Labor Statistics for Al Urban Consumers: Water and Sewer and Trash Collection Services in U.S. City Average (CUSR0000EHG). In the event the forgoing index is no longer published during the term of this Agreement, such other index identified by the Bureau of Labor Statistics as a replacement or otherwise generally accepted as a replacement shall be used for purposes of this Agreement; and, in the absence thereof, the County Board of Supervisors shall select an index that it determines most closely reflects the forgoing and best implements the intent of this Agreement.

“Initial Term” has the meaning specified in Section 5.1(A) hereof.

“Manure/Stable Bedding Program” means the programs used by the County to mix source separated uncontaminated horse manure and stable bedding into its Organic Infrastructure to create organic product. Current permit requirements set a maximum percentage of 20% manure/stable bedding (“Material”) by weight of total incoming feedstock. County agreement to accept Material is subject to payment of the Organic Contract Rate, available capacity, and compliance with the terms found in Attachment 2.

“Organic Contract Rate” has the meaning specified in Section 4.2 hereof. “Organic Diversion Credit” means credit provided to a local jurisdiction or entity for implementing the diversion of Organic Waste from landfilling through specific activities recognized by the Department of Resources Recycling and Recovery (CalRecycle) including composting, anaerobic digestion, or other methods to meet the State’s waste diversion goals and statutes such as A ssembly Bill 939, Assembly Bill 341, Assembly Bill 1594, Assembly Bill 1826, and SB 1383 through waste prevention, reuse, and recycling.

“Organic Infrastructure” means the County’s organics processing facilities and programs used to recycle and promote the processing and diversion of Organic Waste into compost or other material that qualifies as diversion under Applicable Law as described in more detail in Attachment 1.

“Organics Legislation” means organics recycling legislation including Assembly Bill 1594, Assembly Bill 1826, SB1383 and any future legislation pertaining to the management and diversion of Organic Waste.

“Organic ROWP Procurement Credit” means credit provided to a jurisdiction to meet their Recovered Organic Waste Procurement Target under SB 1383 by procuring Recovered Organic Waste Products as permitted by CalRecycle.

“Organics Agreement” means this Organic Services Agreement (“OSA”) between the County and the City as the same may be amended or modified from time to time in accordance herewith.

“Organic Take -Back Goal” means the programs that City and County will work toward to create City programs that have the goal of City taking back its Proportional Share of finished compost or other Recovered Organic Waste Product for local application.

“Processed Green Material” (“PGM”) as defined in Title 27, California Code of Regulations §20690(b)(3) means any plant material that is either separated at the point of generation, or separated at a centralized facility that employs methods to minimize contamination. Green material includes, but is not limited to, yard trimmings, untreated wood wastes, paper products, and natural fiber products. Green material does not include treated wood waste, mixed demolition or mixed construction debris, manure, or pla nt waste from the food processing industry, alone or blended with soil. Processed green material may include varying proportions of wood waste from urban and other sources and shall be ground, shredded, screened, source separated for grain size, or otherwi se processed. This PGM standard is the standard that Controllable Organic Waste must meet in order to be accepted at County’s Organic Infrastructure under the OSA.

“Proportional Share” means 60% of the weight of Controllable Organic Waste City delivered by City to County’s Organics Infrastructure.

“Recovered Organic Waste Product” or “ROWP” means compost, mulch, renewable energy (transportation fuel, electricity, and gas for heating) from anaerobic digestion, and electricity from biomass conversion.

“Recycled City Organic Waste” means any otherwise Controllable Organic Waste which is separated from Acceptable Organic Waste by the generator thereof and composted by generator at home, community gardens or other processing and which is not placed in Franchise Hauler bin for collection.

“Renewal Term” has the meaning specified in Subsection 5.1(C) hereof.

“Residential Organic Waste” means Acceptable Organic Waste normally disposed of by or collected from residential (single family and multi-family) residences.

"Residual Waste” means any contaminants, inert materials, overs, or Acceptable Organic Waste that could not be processed at the Department’s Organic Infrastructure that required to be dispose within the Disposal System.

“Waste Disposal Agreement” (“WDA”) means the currently operative agreement between the Parties for the disposal of municipal solid waste that is currently set to expire on June 30, 2026. With the exception of specific or conflicting provisions provided in this Organics Agreement, the Parties agree that the terms found in the WDA shall be applied to the interpretation of this OSA. For the purpose of interpretation of this OSA, the Parties also intend that the WDA be read to include terms such as Controllable Organic Waste, where appropriate.

“Waste Infrastructure System ” or “Disposal System ” means active Class III sanitary landfills (“County Landfills”), closed landfills managed by the County, resource recovery operations, Organics Infrastructure, recycling and organics programs, infrastructure and operations, and regional household hazardous waste collection centers and other waste management related systems as may be deemed necessary by the County.

“Waste Infrastructure System Enterprise Agreement” or “WISE Agreement” means each of the agreement between the parties that is expected to replace the current WDA that is set to expire on June 30, 2026.

SECTION 1.2 INTERPRETATION. In this Agreement, unless the context otherwise requires:

References Hereto. The terms “hereby”, “hereof”, “herein”, “hereunder”, “herewith”, and any similar terms refer to this Agreement, and the term “hereafter” means after, and the term “heretofore” means before, the Contract Date.

Gender and Plurality. Words of the masculine gender mean and include correlative words of the feminine and neuter genders and words importing the singular number mean and include the plural number and vice versa.

Persons. Words importing persons include firms, companies, associations, general partnerships, limited partnerships, trusts, business trusts, corporations and other legal entities, including public bodies, as well as individuals.

Headings. The table of contents and any headings preceding the text of the Articles, Sections and subsections of this Agreement shall be solely for convenience of reference and shall not constitute a part of this Agreement, nor shall they affect its meaning, construction or effect.

No Third Party Beneficiaries. Nothing in this Agreement is intended to confer on haulers or any other person other than the parties hereto and their respective permitted successors and assigns hereunder any rights or remedies under or by reason of this Agreement.

Counterparts. This Agreement may be executed in any number of original counterparts. All such counterparts shall constitute but one and the same Agreement.

Applicable Law and Venue. This Agreement has been negotiated and executed in the State of California and shall be governed by and construed under the laws of the State of California. In the event of any legal action to enforce or interpret this Agreement, the sole and exclusive venue shall be a court of competent jurisdiction located in Orange County, California, and the parties hereto agree to and do hereby submit to the jurisdiction of such court, notwithstanding Code of Civil Procedure Section 394. Furthermore, the parties specifically agree to waive any and all rights to request that an action be transferred for adjudication to another county.

Severability. If any clause, provision, subsection, Section or Article of this Agreement shall be ruled invalid by any court of jurisdiction, then the parties shall: (1) promptly meet and negotiate a substitute for such clause, provision, subsection, Section or Article which shall, to the greatest extent legally permissible, effect the intent of the parties therein; (2) if necessary or desirable to accomplish item (1) above, apply to the court having declared such invalidity for a judicial construction of the invalidated portion of this Agreement; and (3) negotiate such changes in, substitutions for or additions to the remaining provisions of this Agreement as may be necessary in addition to and in conjunction with items (1) and (2) above to effect the intent of the parties in the invalid provision. The invalidity of such clause, provision, subsection, Section or Article shall not affect any of the remaining provisions hereof, and this Agreement shall be construed and enforced as if such invalid portion did not exist, unless such invalidity frustrates the underlying primary purpose of the Agreement.

ARTICLE II

REPRESENTATIONS AND WARRANTIES

SECTION 2.1 REPRESENTATIONS AND WARRANTIES OF THE CITY. The City represents and warrants that:

(A) Existence. The City is a general law or charter city or a Special District or Sanitary District validly existing under the Constitution and laws of the State.

(B) Due Authorization. The City has duly authorized the execution and delivery of this Organics Agreement, and this Organics Agreement has been duly executed and delivered by the City.

SECTION 2.2 REPRESENTATIONS AND WARRANTIES OF THE COUNTY. The County represents and warrants that:

(A) Existence. The County is a political subdivision of the State of California validly existing under the Constitution and laws of the State.

(B) Due Authorization. The County has duly authorized the execution and delivery of this OSA, and this OSA has been duly executed and delivered by the County.

ARTICLE III

DELIVERY AND ACCEPTANCE OF

ORGANIC WASTE AND PROVISION OF

ORGANIC PROCESSING SERVICES

SECTION 3.1 DELIVERY OF ORGANIC WASTE.

(A) Organic Waste Covenant. Subject to the occurrence of the Commencement Date and throughout the Term of this OSA, and subject to available Organic Infrastructure capacity, the City shall exercise all legal and contractual power and authority which it may possess from time to time to deliver or cause the delivery of all Controllable Organic Waste (up to City’s Organic Tonnage Limit as provided in Attachment 3) to the Waste

Infrastructure System in accordance with the terms of this OSA.

(B) Recycled City Organic Waste.

1. Non-Mandatory Organic Waste City Programs: The parties hereto acknowledge the responsibility of the City to meet its own recycling and landfill diversion goals contained in the Act and Organics Legislation.

Nothing in this Agreement is intended or shall be interpreted to prohibit or impair the ability of the City to meet such responsibilities, or to restrict the right of the residents, businesses or organizations in the City to practice source separation, recycling, composting or other materials recovery activities, or to restrict the right of the City to conduct, sponsor, encourage or require such activities in any form. No reduction in the amount of Controllable Organic Waste generated in the City and delivered to the Organic Infrastructure by or on behalf of the City which may result from any such source separation or recycling program shall cause the City any liability hereunder (other than potential adjustment to the Organic Contract Rate as may be negotiated by the Parties as authorized under this OSA, and shall not constitute a breach of this Agreement.)

2. Mandatory Organic Waste City Collection Programs: City shall provide data and information to County regarding City’s mandatory Organic Waste collection programs including but not limited to the tonnage of organics collected by the City for diversion under this OSA. The information will be used to provide education and outreach for participation with the goal of minimizing contamination and increasing diversion.

(C) Organic Diversion Credit. City shall receive Organic Diversion Credit for City’s Controllable Organic Waste minus any Residual Waste delivered by City and accepted by County and processed into Recovered Organic Waste Product at the County’s Organic Infrastructure.

(D) Organic ROWP Procurement Credit. City shall receive Organic ROWP reports for finished recovered organics waste products procured from County that meets the procurement requirements of Title 14 of the California Code of Regulations, Section 18993.1 et seq. City shall receive Organic ROWP Procurement Credit as follows:

1. County will assist City in developing local City programs and opportunities designed to enable the City to meet its own ROWP requirements.

2. City shall be entitled to “take back” its Proportional Share of SB 1383 compliant, STA Certified compost, mulch or other ROWP products from County Organics Infrastructure and used as ROWP Procurement Credit.

3. County will provide reports and allocate credit associated with City resident ROWP pickup as well as commercial landscapers from City that collect ROWP from County Organic Infrastructure.

4. City will be eligible to receive ROWP Procurement Credit for excess Acceptable Recovered Organic Waste Product that County is able to market beyond that needed for the County unincorporated areas or that is not otherwise committed. (*County makes no guarantees that it will provide City with 100% ROWP Procurement Credit.)

(E) Organic Take-Back Goal. City is not required to “take back” its Proportional Share of STA Certified finished compost, mulch, or other ROWP from the County’s Organic Infrastructure, however City and County will work toward creating City programs that have the goal of City taking back its Proportional Share of finished compost or other Recovered Organic Waste Product for local application (“Organic Take-Back Goal”) to meet City’s ROWP procurement requirements.

(F) Procurement of Additional ROWP. Pursuant to terms agreeable to both Parties, City may request to procure Recovered Organic Waste Product in addition to its Proportional Share within the same Contract Year.

(G) OSA Conditions. As a condition of participating in the County’s Organics Infrastructure,

City agrees to the following terms:

1. All Controllable Organic Waste delivered to the County’s Organics Infrastructure shall meet the standards as set forth in Attachment 2;

2. City or its Franchise Hauler shall pay the Organics Contract Rate for all Organic Waste delivered to the County’s Organic Infrastructure for processing into Recovered Organic Waste Product;

3. City shall provide information to County on a quarterly basis that identifies where Controllable Organic Waste being delivered to the County’s Organic Infrastructure originated and shall ensure that the organic material being delivered meets the definition of City Acceptable Organic Waste.

4. Bulk ROWP: City shall be entitled to arrange for the Take Back (at City cost) from County Organic Infrastructure compost, mulch and other Recovered Organic Waste Product in bulk form free of charge.

5. Non-Bulk ROWP: County may establish separate fees for provision of non -bulk material including but not limited to bagged material or compost wattles. City shall be entitled to arrange for the Take Back of Non-Bulk ROWP at City cost.

6. City’s Proportional Share shall be calculated as 60% of the weight of Controllable Organic Waste City delivers to County’s Organics Infrastructure by City.

(H) No Right of Organic Waste Substitution. Nothing in this Agreement shall authorize or entitle the City to deliver, or cause the delivery to the County’s Organic Infrastructure, Acceptable Organic Waste originating from or generated outside the jurisdiction of the City, nor obligate the County to receive or dispose of any such Acceptable Organic Waste into the Waste Infrastructure System. The City shall not assign in whole or in part its right to deliver or cause to be delivered Controllable Organic Waste to the County hereunder, and shall not permit any Acceptable Organic Waste originating from or generated outside the jurisdiction of the City to be substituted for Controllable Organic Waste for any purpose hereunder.

SECTION 3.2 PROVISION OF ORGANIC PROCESSING SERVICES BY THE COUNTY.

(A) Organic Service Covenant . Commencing on the Commencement Date, the County shall provide or cause the provision of the service of receiving and processing of City’s Controllable Organic Waste (up to the City Organic Tonnage Limit provided in Attachment 3) at the County’s Organics Infrastructure as described in more detail in Attachment 1. The County shall exercise all reasonable efforts to minimize the costs incurred in complying with the Organic Service Covenant consistent with prudent solid waste management practice and environmental considerations and under Applicable Law.

(B) Receipt of Controllable Organic Waste. Upon acceptance of the Controllable Organic Waste that meets the PGM standards provided in Attachment 2, County shall process the Organic Waste into compost, mulch or other ROWP as specified in Title 14 of the California Code of Regulations Section 18993.1

(C) Education and Outreach. The Department will assist the City and its hauler in their efforts on Organic education and outreach with the goal of the City meeting its organic diversion and ROWP procurement requirements.
(D) Designated Facilities. County and City will coordinate in determining the primary organic processing facilities and tonnages (as reflected in Attachment 1) used for receiving and processing of Controllable Organic Waste. The Department shall immediately advise the City by telephone of any situation, event or circumstance which results in the partial or complete inability of the County to receive Controllable Organic Waste at any particular County Organics Infrastructure within the Waste Infrastructure System, its effect on the County’s ability to perform its obligations hereunder, and the County’s best estimate of the probable duration. The Department shall confirm such advice in writing within twenty four (24) hours of the occurrence of any such inability. The County shall use its best efforts to resume normal operation of the Organics Infrastructure primarily used by the City as soon as possible. In the event a situation, event or circumstance results in the partial or complete inability of the County to receive Controllable Organic Waste at any particular County Organics Infrastructure within the Waste Infrastructure System the County shall have the right to redirect Controllable Organic Waste to another landfill or County Organics Infrastructure within the Waste Infrastructure System for the duration of the situation, event or circumstance ; In no event shall the County be required to accept Controlled Organic Waste if it does not have sufficient permitted organic processing capacity

within the Waste Infrastructure System.

(E) Compliance with Service Covenant Not Excused for any Reason. Commencing on the Commencement Date, and subject to the terms of this Agreement, the obligations of the County to duly observe and comply with the Organic Service Covenant, in accordance with Applicable Law, shall apply continuously and without interruption for the Term of this OSA. In the event that any Change in Law, situation, event or other Uncontrollable Circumstance impairs or precludes compliance with the Organic Service Covenant by the means or methods then being employed by the County, the County shall use best effo rts to implement alternative or substitute means and methods to enable it to satisfy the terms and conditions of the Service Covenant. In the event that a Change in Law precludes the County from complying with such covenants with the means or methods then being employed and from utilizing any alternate or substitute means or methods of compliance, the County shall continuously use all reasonable efforts to effectuate executive, legislative or judicial change in or relief from the applicability of such law s o as to enable the County lawfully to resume compliance with such covenants as soon as possible following the Change in Law.

County failure to duly observe and comply with the Organic Service Covenant due to its efforts to comply with Applicable Law, shall not constitute a breach under this Organics Agreement, and shall excuse County performance to the extent necessary to comply with Applicable Law.

If the alternative or substitute means and methods proposed for the County to observe and comply with the Organic Service Covenant are more costly than the previously used means and methods, the Parties shall negotiate a mutually agreeable new Organic Cont ract Rate. If the Parties are unable to agree on a new Organic Contract Rate, the Parties may terminate this agreement without penalty with ninety (90) days notice.

SECTION 3.3 COUNTY RIGHT TO REFUSE ORGANIC WASTE.

(A) Right of Refusal. Notwithstanding any other provision hereof, the County may refuse delivery of:

(1) Hazardous Waste;

(2) Acceptable Organic Waste delivered by City but originating from or generated outside the jurisdiction of the City;

(3) Acceptable Organic Waste delivered in excess of the City Organic Tonnage Limit listed in the Attachment 3;

(4) Acceptable Organic Waste in excess of permitted limits;

(5) Acceptable Organic Waste that would result in County violating Applicable Law;

(6) Controllable Organic Waste that does not meet the requirements found in Attachment 2;

SECTION 3.4 COUNTY PROVISION OF OTHER ORGANIC WASTE DIVERSION SERVICES.

(A) Food Waste Processing and Diversion . County is in the process of evaluating the options and feasibility of development of a Commercial Food Waste Processing Infrastructure. If developed, City will be provided an opportunity to participate in this service on terms separately agreed to by the Parties.

(B) Edible Food Recovery Programs. County is in the process of evaluating the options and feasibility of development of regional County -wide edible food recovery programs to assist Cities in meeting State mandated goals. The intent of Edible Food Recovery to address the food hierarchy and wasted food scale on a regional level through collaboration of all jurisdictions, key local, State and federal stakeholders, the non -profit sector and business sector. City agrees to cooperate with County efforts and collaborate on data analysis and reporting to provide jurisdictions reports for compliance under SB1383.

(C) Separate City -County Diversion Service Agreements. Nothing in this Agreement is intended to limit the right of the County to enter into a separate agreement with the City or any other person, jurisdiction, or entity to provide source reduction, materials recovery, recycling, composting or other waste diversion services.

ARTICLE IV

ORGANIC CONTRACT RATE

SECTION 4.1 CHARGING AND SECURING PAYMENT OF ORGANIC CONTRACT RATE.

The City acknowledges that the County shall have the right to charge and collect an Organic Contract Rate for the acceptance and processing of Controllable Organic Waste delivered to the Organic Infrastructure by City or its Franchise Hauler. City acknowledges that the County shall have the right to establish as part of the operating rules and regulations reasonable measures to secure the payment of all Organic Contract Rates.

SECTION 4.2 ORGANIC CONTRACT RATE.

(A) Establishment of Contract Rate. The Organic Contract Rate payable by each City or Franchise Hauler shall be $67/Ton up to the City Organic Tonnage Limit.

(B) Special Charges. Notwithstanding Section 4.2(A), the County shall have the right to impose special charges for items such as bagged material or compost wattles; new or expanded services; or receipt of hard to handle materials, such as bulky materials, construction and demolition debris, tree stumps, biosolids and sludge. Such special charges shall be calculated to reflect the reasonable incremental costs to the County of providing the new or expanded services or accepting such hard to handle materials.

1. Annual CPI Adjustment: The Organics Contract Rate shall be adjusted each July 1, beginning 2027. The change will be equal to the percentage change in the Consumer Price Index - Consumer Price Index for Al Urban Consumers: Water and Sewer and Trash Collection Services in U.S. City Average (CUSR0000EHG) as measured from the October twenty one (21) months prior to the rate adjustment to the October immediately preceding the rate adjustment. In the event that the change in the change in CPI as described above is negative rather than positive, no rate adjustment will be made for that year.

Organic Contract Rate True-up: County will notify City prior to April 30, 2029 (and every three (3) years thereafter) and advise whether actual inflation rate since execution should be frozen for a period of time (in circumstances where Department revenues exceed Department Full Cost Recovery needs) or to determine whether the Organic Contract Rate should be increased beyond CPI as described above (in circumstances where Department costs exceed CPI) to ensure that Department revenues meet Full Cost Recovery.

2. Adjustment Resulting from Increased Fees: In addition to the other adjustments specified herein, the Organic Contract Rate shall be automatically adjusted to reflect the imposition of new fees or increases in existing fees relating to the County’s processing of Controllable Organic Waste imposed by State, federal or other agencies. The County shall provide notice of any increase pursuant to this Section as soon as practicable after becoming aware of the imposition of any fees described above.

ARTICLE V
TERM

SECTION 5.1 EFFECTIVE DATE AND TERM.

(A) Initial Term. This Organic Services Agreement shall become effective, shall be in full force and effect and shall be legally binding upon the City and the County from the Contract Date and shall continue in full force and effect until June 30, 2036, unless earlier terminated in accordance with its terms, in which event the Term shall be deemed to have expired as of the date of such termination.

(B) Bi-Annual Opener. In light of the significant changes in law by the California Legislature to address climate change, the Parties agree to meet at least bi -annually or earlier at the request of County to review the Organic Contract Rate and discuss the need for additional investment into the Organic Infrastructure to respond to existing or new legislative requirements, diversion requirements, provision of new services, or other matters of mutual concern to the Parties.

(C) Option to Renew. This Agreement shall be subject to renewal by mutual agreement of the Parties, on or before June 30, 2036 for an additional term of 10 years (the “Renewal Term”) on the same terms and conditions as are applicable during the Initial Term hereof or on amended terms as may be mutually agreed to by the Parties. The City shall give the County written notice of its election to renew this Agreement on or before June 30, 2034. If the parties do not execute a renewal of this Agreement prior to June 30, 2036 it shall expire.

ARTICLE VI

GENERAL PROVISIONS

SECTION 6.1 NOTICES. Any notice or communication required or permitted hereunder shall be in writing and sufficiently given if delivered in person or sent by certified or registered mail, postage prepaid, to the notice address of the respective Parties set forth on the cover page of this Agreement. Changes in the respective addresses to which such notices may be directed may be made from time to time by any Party by notice to the other Party.

SECTION 6.2 ATTORNEYS FEES. In any action or proceeding to enforce or interpret any provision of this Agreement, each Party shall bear their own attorney’s fees, costs and expenses.

SECTION 6.3 RELATIONSHIP OF THE PARTIES. Neither party to this Agreement shall have any responsibility whatsoever with respect to services provided or contractual obligations or liabilities assumed by the other party hereto, whether accrued, absolute, contingent or otherwise, or whether due or to become due. The County is an independent contractor of the City and nothing in this Agreement shall be deemed to constitute either party a partner, agent or legal representative of the other party or to create any fiduciary relationship between the parties.

SECTION 6.4 NO CONSEQUENTIAL OR PUNITIVE DAMAGES. In no event shall either Party hereto be liable to the other or obligated in any manner to pay to the other any special, incidental, consequential, punitive or similar damages based upon claims arising out of or in connection with the performance or non- performance of its obligations or otherwise under this Agreement, or the material inaccuracy of any representation made in this Agreement, whether such claims are based upon contract, tort, negligence, warranty or other legal theory.

SECTION 6.5 AMENDMENTS. Neither this Agreement nor any provision hereof may be changed, modified, amended or waived except by written agreement duly authorized and executed by both Parties.

SECTION 6.7 NOTICE OF LITIGATION. Each Party shall deliver written notice to the other of any Legal Proceeding to which it is a party and which questions the validity or enforceability of this Agreement executed by the City or the County or any Legal Entitlement issued in connection herewith.

SECTION 6.8 FURTHER ASSURANCES. At any and all times the City and the County so far as may be authorized by law shall pass, make, do, execute, acknowledge and deliver any and every such further resolutions, acts, deeds, conveyances, instruments, assignments, transfers and assurances as may be necessary or reasonably requested by the other in order to give full effect to this Agreement.

SECTION 6.9 ASSIGNMENT OF AGREEMENT. Neither this Agreement nor any of the rights or obligations hereunder may be assigned by either Party hereto without the prior written consent of the other Party, which may be withheld in the other Party’s sole discretion. Notwithstanding the foregoing, either Party may assign this Agreement to another public entity, subject to the reasonable consent of the other party. In such circumstances the Party not requesting the assignment shall have the right to demand assurances of the financial, technical and legal ability of the proposed assignee to undertake the responsibilities and obligations of the assigning Party.

SECTION 6.10 BINDING EFFECT. This Agreement shall bind and inure to the benefit of the Parties hereto and any successor or assignee acquiring an interest hereunder consistent with the provisions of Section 6.9 hereof.

Signature Page to Follow

IN WITNESS WHEREOF, COUNTY and CITY have caused this Agreement to be executed by their duly authorized officers or representatives as of the day and year first above written.

COUNTY OF ORANGE

Date By
Director, OC Waste & Recycling

APPROVED AS TO FORM:

COUNTY COUNSEL

ORANGE COUNTY, CALIFORNIA

Date

Date By
[NAME]
City Representative
City of XX

APPROVED AS TO FORM:

By
City Attorney

Date

Attachment 1

COUNTY OF ORANGE ORGANIC INFRASTRUCTURE

Attachment 1

COUNTY OF ORANGE ORGANIC INFRASTRUCTURE

The County of Orange owns and operates a network of three commercial organic processing facilities co -located at each of the active landfills. Each of the organic processing facilities have the ability to receive organic material and to produce organic products for cities to meet their Take-Back requirements specified within this agreement. Products produced at the organic processing facilities meet CalRecycle’s SB 1383 procurement requirement and are certified under the US Composting Council’s Standard of Testing Assurance (STA) Program. Product offerings include compost and composted mulch. Additional products may be offered as determined by the County.

A summary of each of the organic processing facilities is listed below:

Valencia Greenery (Co-Located at Olinda Alpha Landfill) 1942 N. Valencia Avenue
Brea, CA 92823
Permitted Maximum Tonnage (Open Windrow): 94 tons per day Proposed Permitted Maximum Tonnage (Covered Aerated Static Pile): 228 tons per day Permitted Hours of Operation: Monday through Saturday 6:00 am to 4:00 pm Ancillary Operation Hours: 24 hours per day/7 days a week

Bee Canyon Greenery (Co-Located at Frank R. Bowerman Landfill) 11002 Bee Canyon Access Road
Irvine, CA 92602
Permitted Maximum Tonnage (Open Windrow): 210 tons per day Proposed Permitted Maximum Tonnage (Covered Aerated Static Pile): 876 tons per day Permitted Hours of Operation: Monday through Saturday 7:00 am to 5:00 pm Ancillary Operation Hours: 24 hours per day/7 days a week

Capistrano Greenery (Co-Located at Prima Deshecha Landfill) 32250 Avenida La Pata
San Juan Capistrano, CA 92675
Permitted Maximum Tonnage (Open Windrow): 204 tons per day Proposed Permitted Maximum Tonnage (Covered Aerated Static Pile): 536 tons per day Permitted Hours of Operation: Monday through Saturday 7:00 am to 5:00 pm Ancillary Operation Hours: 24 hours per day/7 days a week

This list may be modified/expanded at the discretion of the County.

Attachment 2

SPECIFICATIONS FOR CONTROLLABLE ORGANIC WASTE AS PROCESSED GREEN WASTE

MATERIAL (PGM) AT COUNTY ORGANIC INFRASTRUCTURE

Attachment 2

SPECIFICATIONS FOR CONTROLLABLE ORGANICE WASTE AS PROCESSED GREEN WASTE

MATERIAL (PGM) AT COUNTY ORGANIC INFRASTRUCTURE

DESCRIPTION
Processed Green Material (PGM) consists of yard waste, grass clippings, leaves, tree trimmings and plant -based materials which have been sorted to remove contamination and processed by shredding or grinding. PGM should not contain manure, stable waste or pet waste, which can create odors.

Processed Green Material is defined as following (California Code of Regulations, Title 27, Division 2, Subdivision 1, Chapter 3, Subchapter 4, Section 20690 [b] [3]):

• Processed Green Material – means any plant material that is either separated at the point of generation or separated at a centralized facility that employs methods to minimize contamination. Green material includes, but is not limited to, yard trimmings, untreated wood wastes, paper products, and natural fiber products. Green material does not include treated wood waste, mixed demolition or mixed construction debris, manure, or plant waste from the food processing industry, alone or blended with soil. Processed green material may include varying proportions of wood waste from urban and other sources and shall be ground, shredded, screened, source separated for grain size, or otherwise processed.

CONTAMINANT DEBRIS

The PGM should be free from all contaminant debris (glass, plastic, film plastic, metals, etc.) as well as salt and deleterious material such as clods, coarse objects, rocks, inert debris, and Material Recovery Facility (“MRF”) fines.

County personnel visually inspect the PGM loads as they come in, making sure that the specifications are met and to determine if the loads are contaminated (i.e., mixed with paper, plastics and other trash.) If the loads appear to have unacceptable contamination in excess of 0.5% either by weight or volume, the PGM loads will not be allowed into the Organic Infrastructure and the City and/or hauler will be notified that contaminated PGM loads are unacceptable. The PGM will be deemed as municipal solid waste and the City and/or hauler will have the option to take the material to the landfill for disposal or be returned to the hauler’s facility for additional processing. For material that is physically dumped at the unloading area and is deemed unacceptable by OC Waste & Recycling staff, the material will be re- loaded into the transfer vehicle for reprocessing at hauler’s processing facility or sent to the landfill for disposal.

Hauler will be charged the current “Hard-to-Handle” fee for re-loading services and disposal of unacceptable material.

SIZE

The particle size of the PGM acceptable is between ½-inch and 3 inches in length between ½-inch and 1 inch in width and between ½-inch and 1 inch in thickness. No particle should exceed 3 inches in any dimension.

MOISTURE CONTENT

The moisture content of the PGM should be in the range of 50-60 percent. If the PGM’s moisture content is unacceptable and cannot be received for processing at the County’s Organic Infrastructure Facilities, the material will be re-loaded into the transfer vehicle for reprocessing at hauler’s processing facility or sent to the landfill for disposal.

The hauler will be charged the current “Hard-to-Handle” fee for re-loading services and disposal of unacceptable material.

FOOD WASTE

Residential food waste mixed with PGM as part of a city organic collection program is acceptable provided that the food waste is free of contaminant debris (glass, plastic, food packaging, non -compostable silverware, soiled napkins,

etc.). No commercial or source-separated food waste will be accepted except for cases where the County has entered into an agreement with a City to accept specific source separated organic material as Additional Feedstock as described below.

SOURCE SEPARATED MANURE

Subject to available capacity, City and/or Hauler may bring non-residential, source separated manure and stable bedding pursuant to the following Manure/Stable Bedding Program requirements:

1. Material Quantity: manure/stable bedding must be uncontaminated which means free of any hazardous materials, food waste packaging, plastics, glass, and any large bulky items and inert materials that need to be further sized or removed for composting. (“Material”)

2. Material Volume: County and City/Hauler will determine the anticipated volume of Material to ensure that the County’s Organic Infrastructure has sufficient capacity to manage the proposed amount of Material.

3. Material will be load checked to determine if it meets the established quality standards. If contaminants exceed

0.5% (by weight or volume), the load is deemed contaminated and not meeting quality standard for use in the Manure/Stable Bedding Program.

4. Material that is deemed unacceptable will be subject to the fees established by OCWR for this material type.

Material that does not meet the established quality standards will be charged as follows:
a. If determined not to meet quality standards before Material is unloaded, standard disposal rates will apply.
b. If determined not to meet quality standards after Material is unloaded (or partially unloaded), hard-to-handle disposal rates will apply.

5. Material Delivery:
a. All Material deliveries will be scheduled and coordinated with OCWR prior to delivery. Any changes to material delivery quantities or days will be coordinated with OCWR prior to making the change.
b. While OCWR will remain as flexible as possible on timing of deliveries, material deliveries will be limited to Monday through Friday between 8:00 am and 2:00 pm and subject to holiday schedules. Should the delivery times change, then OCWR shall give two (2) days prior notice of the delivery time change.
c. Upon delivery, OCWR staff will record exact tonnage, name of hauler/transporter provider , and note distinguishing characteristics of feedstock and other pertinent information. d. Deliveries made without OCWR prior approval may be refused or charged at the established rate.
e. OCWR reserves the right to deny a request to deliver for any reason. (i.e., OCWR does not guarantee that it will accept manure/stable bedding under this program. Instead, OCWR will accept Material based on its operational need and will make every effort to accommodate City’s/hauler Material except when a reduction or stoppage is needed.)

ADDITIONAL FEEDSTOCK

The County at its discretion may accept additional material types such as food waste and manure based on availability and permitting conditions at each of the County’s organic processing facilities. The County will work with City to identify the specifications for accepting the material types including scheduling of deliveries and quantities.

CHANGES TO SPECIFICATIONS

County reserves the right to modify the Specifications found in this Appendix due to a change in law or regulation or in consideration of operational or Organic Processing Infrastructure needs. County shall provide 90 days notice regarding changes to this Appendix.

Attachment 3

CITY ORGANIC TONNAGE LIMIT

Attachment 3

CITY ORGANIC TONNAGE LIMIT

The City Organic Tonnage Limit listed in the Attachment is the maximum amount of Controllable Organic Waste that County is committed to accept under the Organic Service Agreement.

Jurisdiction Designated Greenery City Organic Tonnage Limit Daily Limit1 Monthly Limit2 Annual
Limit
TBD ________tons _________ tons _______ tons
TBD
TBD
TBD

1. Daily Limit includes up to 20% by weight of source separated manure and stable bedding.

2. In the event City delivers less than their monthly limit, County may allocate unused City capacity at its discretion.

Attachment 4

ORGANIC INFRASTRUCTURE RESOLUTION

April 14, 2026

NEW BUSINESS
Item No. 5D.

City Council Agenda Report

GUARANTEED MAXIMUM PRICE (GMP) CONSTRUCTION CONTRACT WITH NORESCO FOR ENERGYCONSERVATION AND EFFICIENCY PROJECT UNDER AN ENERGY SERVICES COMPANY (ESCO)AGREEMENT

PREPARED BY PRESENTED BY
Deepthi Arabolu, Assistant City EngineerMina Mikhael, Director of Public Works/City Engineer

DEPARTMENT HEAD APPROVAL CITY MANAGER APPROVAL
Mina Mikhael, Director of Public Works/City Engineer Aaron France, City Manager

RECOMMENDED ACTION
1) Approve the Guaranteed Maximum Price (GMP) Construction Contract with NORESCO, LLC in the amount of $6,875,016 for implementation of the Energy Conservation and Efficiency Project; 2) Authorize a purchase order for the Solis Group in the amount of $36,800 for administration of the Community Workforce Agreement (CWA); 3) Authorize the City Manager and City Attorney to make any necessary, non-monetary changes to the contract; 4) Authorize the City Manager and City Clerk to execute the contract; and 5) Authorize a budget allocation in the amount of $6,911,816 from the undesignated Measure R Fund balance for full project implementation.

PREVIOUS CITY COUNCIL ACTION
In November 2025, the City Council directed staff to proceed with the Investment Grade Audit (IGA) conducted by Noresco, LLC, covering four major Energy Conservation Measures (ECMs). These included designs focused around lighting, EV chargers, and solar panels to reduce energy consumption, lower long-term operating costs, and advance the City’s Climate Action Plan goals.

DISCUSSION
Following City Council direction, staff finalized the Investment Grade Audit, negotiated a Guaranteed Maximum Price (GMP), and completed contract documents including:

Measurement & Verification Agreement (20-year term)
Savings Guarantee
Maintenance Agreement
Community Workforce Agreement compliance
Potential Incentive and Investment Tax Credit estimates This project will:

Upgrade lighting at nine (9) City facilities to high-efficiency LED systems Install window film at City facilities
Install seven (7) EV charging stations (six dual-port Level 2 and one DC Fast Charger) Install a 189 kW-DC solar photovoltaic (PV) system with with 125 kW/516 kWh Battery Energy Storage System (BESS) at Ehlers Event Center
APPROVED ENERGY CONSERVATION MEASURES:

1. Interior & Exterior LED Lighting Upgrades: Improvements will reduce electricity consumption, maintenance costs, and improve lighting quality and safety.

Lighting upgrades will occur at:

City Hall
Police Department
Community Center
Ehlers Event Center
City Yard
William Peak Park
Boisseranc Park
Brenner Park
San Antonio Park
The project will replace or retrofit approximately 3,100+ fixtures with high-efficiency LED systems, including flat panel and Type C linear retrofits, downlights, exterior wall packs and flood lighting, parking and canopy fixtures, and wireless Bluetooth mesh lighting controls (no cloud connection).

2. Window Film Installation: This improvement reduces solar heat gain, improves indoor comfort, and lowers HVAC load and peak demand. Window film will be installed at the City Yard, City Hall, Community Center, and Ehlers Event Center.

3. Electric Vehicle (EV) Charging Infrastructure: Supports fleet electrification and long-term fuel and maintenance savings, contingent on procuring and operating EVs. The City would need 13 EVs (approx. $760,000 total), with potential funding from the vehicle replacement fund and FY 2026–27 budget.

Installation includes:

Five (5) dual-port Level 2 EV chargers at the Police Department One (1) dual-port Level 2 charger at City Hall
One (1) Level 3 DC Fast charger at City Hall

4. Solar Photovoltaic (PV) + Battery Energy Storage System: The system will offset on-site electricity use, reduce peak demand charges, provide resiliency benefits, and generate federal Investment Tax Credit (ITC) revenue under the Inflation Reduction Act. Installation includes a 189 kW-DC solar PV system with 125 kW/516 kWh Battery Energy Storage System (BESS) at Ehlers Event Center.

TOTAL PROJECT COST:

The total project cost identified in the Investment Grade Audit (IGA) is $6,875,016. This represents the total cost of the contract based on the 100% Investment Grade Audit. This does not include a contingency for any unexpected incidentals encountered in the field.

The full cost of implementing all four Energy Conservation Measures, inclusive of equipment, labor, design, commissioning, and construction:

ECM Description Cost
ECM 1 Interior & Exterior LED Lighting $1,776,137
ECM 2 EV Charging Stations $898,907
ECM 3 Solar PV + Battery Energy Storage
System (BESS) $3,829,386
ECM 4 Window Film Installation $370,586
Total (IGA Construction Cost) $6,875,016

INCENTIVES & FEDERAL INVESTMENT TAX CREDIT:

1. Utility Incentives (Not Guaranteed)
Through Southern California Edison (SCE) and SoCalREN (NMEC pathway):

LED Lighting Incentive: $121,500
Window Film Incentive: $30,109
Total Estimated Utility Incentives: $151,609

2. Federal Investment Tax Credit (Direct Pay – IRA §48E) Estimated Investment Tax Credit for Solar PV + BESS is $1,401,366. This is available through the Inflation Reduction Act direct pay mechanism.

Total Estimated Incentives & Credits is $1,552,975
These funds will be returned to the City upon receipt and reduce the net project cost.

SAFE HARBOR COMPLIANCE:

To preserve eligibility for the federal Investment Tax Credit, major solar equipment must be procured by July 2026 to meet IRS Safe Harbor rules, with initial payments structured to allow early procurement of solar modules and key equipment; failure to meet these deadlines could reduce available federal incentives. Thus, the payment schedule provides an initial larger payment to procure solar equipment in time to meet federal Safe Harbor requirements, followed by approximately equal monthly construction payments through completion.

PROJECT TIMELINE (Per Preliminary Construction Schedule):

Contract Execution: April 2026
Notice to Proceed: April 15, 2026
Construction begins: July 2026
Construction Duration: 231 days
Substantial Completion: March 1, 2027
Savings Guarantee Commencement: Following Final Acceptance Total project duration: approximately 302 days
20-YEAR SAVINGS GUARANTEE:

NORESCO provides a 20-year guaranteed savings commitment totaling $7,738,256.

Year 1 Guaranteed Savings: $285,154; Year 20 Guaranteed Savings: $510,167 The guarantee escalates annually and includes utility cost savings, and operation & maintenance savings. If verified savings fall below the guaranteed amount in any year, NORESCO is contractually obligated to reimburse the City for the shortfall.

CLIMATE ACTION AND ADAPTATION PLAN (CAAP) ALIGNMENT:

The ESCO project supports multiple actions identified in the City’s Climate Action and Adaptation Plan (CAAP). A cross-reference between the ESCO project scope and CAAP measures identifies six key areas of alignment, primarily related to municipal energy efficiency, electrification, and renewable energy deployment.

Specifically, the project advances CAAP strategies through installation of electric vehicle (EV) charging infrastructure, implementation of energy efficiency retrofits, completion of a comprehensive energy audit, and deployment of on-site solar photovoltaic (PV), and battery energy storage systems (BESS).

While the CAAP includes an action (M4c) related to replacing diesel or natural gas backup generators with zero- emission alternatives, this project’s BESS is not intended to function as a backup power source. Rather, as identified in the Investment Grade Audit (IGA), the BESS is designed to reduce peak electricity demand and associated utility costs.

BUDGET IMPACT
Total project costs are shown below with the following breakdown:

Construction Contract: $6,875,016 CWA Administration Services: $36,800
Total Project Cost: $6,911,816 Funding Source: Measure R
Estimated Incentives & Federal ITC: $1,513,889
The EV Charging Station energy-savings are dependent upon the City acquiring 13 electric vehicles to utilize the chargers. Five hybrid vehicles proposed to be replaced in the FY 2026-27 budget could be swapped with electric models for an additional $40,000. The remaining eight vehicles are not currently budgeted for replacement and currently have a combined MSRP of approximately $515,000 plus tax and up-fitting costs. Limited funds may be available in the vehicle replacement fund for this purpose.

The 20-year guaranteed savings exceed total project cost and provide long-term fiscal and environmental benefits to the City upon receipt.

Attachments
Final Contract Noresco - 68 pages.pdf
Att 2 of 2 CWA Energy Conservation & Performance Contract.pdf 1 CITY OF BUENA PARK

CONSTRUCTION CONTRACT FOR DESIGN-BUILD SERVICES
Energy Conservation and Performance Contract

This Construction Contract for Design-Build Services (“Contract”) is dated April 15, 2026 (“Effective Date”), and is entered into between the City of Buena Park, a California municipal corporation (“City”) and NORESCO, LLC, a Delaware limited liability company (“Contractor”), with reference to the following facts:

RECITALS

A. U nder authority of Public Contracts Code sections 22185 et seq. (or “Senate Bill 706”), City and Contractor (jointly at times hereinafter the “ Parties”) have previously entered into that certain Agreement for Progressive Design-Build Services dated as of August 14, 2024 (the “ Preconstruction Agreement”), pursuant to which City retained Contractor to complete a comprehensive investment grade audit, preliminary design, and preconstruction services (the “ Preconstruction Services,” as are more specifically defined in the Preconstruction Agreement) in connection with City exploring the feasibility of completing certain energy and water conservation, energy efficiency, energy generation and capital improvements projects at various facilities owned by the City.

B. Contractor has completed the Preconstruction Services to the satisfaction of City, including preparing and presenting to City a final investment grade audit report (the “ Final IGA Report, ” as more specifically defined below ) and preliminary design for the energy -related upgrades, improvements, and conservations measures that are described in the Final IGA Report (the “ Project,” as more specifically defined below), and the Parties have negotiated and in good faith and reached an agreement on a guaranteed maximum price for Contractor’s completion of the Project.

C. City now desires to amend the Preconstruction Agreement to authorize Contractor to complete the Project, and Contractor desires to provide and perform such work, subject to and on the terms and conditions specified in this Contract.

NOW THEREFORE, the Parties agree as follows:

AGREEMENT

1. DEFINITIONS

“Affiliate” means, with respect to any Person, any other Person (other than an individual) that, directly or indirectly, through one or more intermediaries, controls, or is controlled by, or is under common control with, such Person. For this purpose, “control” means the direct or indirect ownership of fifty percent (50%) or more of the outstanding capital stock or other equity interests having ordinary voting power.

“Preconstruction Agreement” means that certain A greement for Progressive Design Build Services between the Parties and dated August 14, 2024 (PSA 24-09).

“Applicable Law” means, with respect to any Governmental Authority, any constitutional provision, law, statute, rule, regulation, ordinance, treaty, order, decree, judgment, decision, certificate, injunction, registration, license, permit, authorization, guideline, governmental approval, act, code, ruling, proclamation, resolution, declaration, requirement or interpretive or advisory opinion or letter of such Governmental Authority, as construed from time to time by any Governmental Authority, in each case, applicable to the Work, the Sites , the Project, the Parties or any other matter bearing on interpretation or performance of this Contract, as applicable.

“Assessment” means the Final IGA Report and all investigations, feasibility and configuration assessments conducted by the Contractor to fulfill its obligations under this Contract.

2 “Beneficial Use” means when major new equipment and systems included in the Work are properly installed, inspected, operational, and are capable of being used for their intended purpose.

“Change Order” means a written instrument prepared by City and Contractor pursuant to Section 8 stating their agreement upon: (a) a change in the Work or Equipment; (b) the amount of the adjustment in the Contract Price, if any; and (c) an adjustment in the Project Schedule, if any.

“City Indemnitees” is defined in Section 11(a).

“Claim” has the meaning set forth in Section 7.6.

“Community Workforce Agreement” is defined in Section 2.3(i) and set forth in Attachment 8.

“Completion Date” means the date set forth in the Project Schedule by which Contractor is guaranteeing Substantial Completion of the Project will be achieved, except as may be adjusted by a Change Order.

“Consultant” means any Person performing or providing expert or professional advice in connection with the Work.

“Contract” means this Contract.

“Contract Documents” means this Contract and all final Drawings, Specifications, Change Orders, Warranties, surveys, plans, models, reports and designs, and addenda thereto (whether or not attached due to their size), Engineering Documents, Non- Collusion Declaration, and other documents referred to in the Contract, and authorized written modifications issued after execution of this CWO.

“Contract Price” means the amount set forth in Section 2.1(a), which is the total payable by City in consideration for Contractor’s providing of Equipment, performance of the Work , and delivery of the Project under this Contract, and inclusive of any Compensation that is due under Section 4 of the Agreement, except as may be adjusted by a Change Order.

“Contractor Event of Default” has the meaning set forth in Section 7.1.

“Drawings” mean graphic and pictorial portions of the Contract Documents prepared for the Project and approved changes thereto, wherever located and whenever issued, showing the design, location, and the Work, generally including plans, elevations, sections, details, schedules, and diagrams as drawn by Contractor, or Contractor’s Subcontractor or Consultants.

“Equipment” means all materials, supplies, apparatus, machinery, equipment, parts, tools, components, instruments, appliances, spare parts and appurtenances thereto that are required or included in the Work and comprise part of the Project by the terms of the Contract Documents and all Legal Requirements.

“Equipment Documentation” shall mean copies or originals of (i) all operating specifications, warranties and other similar information obtained by Contractor from Equipment vendors or Subcontractors or prepared by Contractor or Subcontractors as part of the Work, (ii) a complete inventory list of all Equipment comprising the Project, and (iii) all documentation and identification information with respect to all Equipment comprising part of the Project, including reference or serial numbers for all photovolt aic panels, inverters and other equipment included in the Work.

“Equipment Warranties” shall mean the product warranty from any Supplier for the Equipment incorporated into the Project.

3 “Energy Conservation Measures” or “ECMs” shall mean those renewable energy generation and energy efficiency improvements to be constructed or installed as part of the Work and utilized as part of the System.

“Engineering Documents” shall mean all documents including Drawings, diagrams, plans, Equipment Documentation, Equipment Warranties, Shop Drawings, Assessments, addenda, reports calculations, performance models and other models, designs schedules, and other documents prepared or furnished by Contractor pursuant to this Contract in respect of the design, engineering and construction of the Project.

“Environmental Law” means all Applicable Laws related to health, safety, the protection of the environment or regulation or prohibition of the environmental pollution or contamination, including laws relating to land use, emission and pollution, discharges into or pollution of water, and Hazardous Materials.

“Equipment Deposits” shall have the meaning set forth in Section 4(a)(ii).

“Excusable Event ” means any reasonably unforeseeable act, event, occurrence, condition or cause beyond the control of Contractor, or against which Contractor could not have reasonably anticipated before the Effective Date or mitigated upon discovery, and so long as the act, event, occurrence, condition or cause was not attributable to errors or omissions of Contractor, or Contractor’s Subcontractors or Consultants. Subject to the foregoing, Excusable Events may include the following: (i) any wrongful act or wrongful failure to act of, or other unreasonable delay caused by City; (ii) the failure to obtain, or delay in obtaining, any Interconnection Agreement or Governmental Approval; (iii) changes in the design, scope or schedule of the Work required by any Governmental Authority, City, and any delays caused thereby; (iv) undisclosed or unforeseen conditions encountered at the Sites; (v) changes in Applicable Laws having a material impact on the Project or this Contract , but excluding impacts to Contractor’s c ost to perform; (vi) Force Majeure Events; (vii) work or requirement by Utility affecting the Work; (viii) labor, equipment or material shortages or delays beyond existing known conditions and/or circumstances present as of the Effective Date of this Contract ; (ix) abnormally severe weather conditions, which shall mean weather conditions resulting documented delays or stoppage of Work for more than 21 cumulative days during the Performance Schedule, or causes damage or destruction to the Project prior to Final Completion); (x) City’s delay in issuing, or failure to issue the Notice to Proceed.

“Final Completion Date” shall mean the actual date on which the Final Completion of the Project has been achieved, as set forth in the Notice of Completion issued by City.

“Final IGA Report” means the final investment grade audit of City facilities and potential emergency conservation improvements, upgrades, and conservation measures prepared by Contractor and approved by City, and set forth in Attachment 7.

“Force Majeure Event” shall mean, when used in connection with the performance of a Party’s obligations under this Contract, any act or event (to the extent not caused by the fault or negligence of such Party or its agents or employees) which is unforeseeable, or being foreseeable, reasonably unavoidable (including by completing industry standard inspections or taking prudent commercially reasonable protective and preventative measures) and outside the reasonable control of the Party which invokes it, and which renders said Par ty unable to comply totally or partially with its material obligations under this Contract including natural disasters, acts of God, drought, flood, earthquake, storm, fire, explosion, lightening, epidemic, pandemic, war, riot, civil disturbance, sabotage, terrorism or threat of terrorism, and strikes, lockouts or other labor disturbances or di sputes of a national or regional scope. Notwithstanding the foregoing to the contrary, Force Majeure Events shall not include any of the following:

(a) mechanical or equipment failures (except to the extent any failure is itself caused by a Force Majeure Event);

(b) any condition of the Site for which the affected Party is responsible under this Contract;

4 (c) strikes, walkouts, lockouts or other labor disturbances or disputes specific to the Project or such Party claiming a Force Majeure Event; or

(d) Economic hardship of either Party.

“Governmental Approval” shall mean each and every national, autonomic, regional and local license, approval, authorization, certification, registration, exemption, filing, recording, permit or other approval with or of any Governmental Authority, including each and every constru ction or operating permit and any agreement, consent or approval from or with any other Person that is required by any Applicable Law or that is otherwise necessary for the performance of the Work and completion of the Project.

“Governmental Authority” shall mean any national, autonomic, regional, provincial, town, city, local or municipal government, authority, body, agency, ministry, court, judicial or administrative body, taxing authority or other governmental organization having jurisdiction over the Work, the Site, the Project, the Parties or any other matter in question (as applicable).

“Hazardous Material” shall mean oil or petroleum and petroleum products, asbestos and any asbestos containing materials, radon, polychlorinated biphenyls (“PCBs”), urea formaldehyde insulation, lead paints and coatings, any chemicals, substances, materials, controlled substances, objects, conditions and waste or combinations thereof which are now or become in the future listed, defined or regulated in any manner by any Applicable Law.

“Incentive Funds” shall have the meaning set forth in Section 2.9.

“Incentive(s)” means subsidies, rebates, credits, reductions, allowances or other financial incentives which the Contractor shall apply for on behalf of the City.

“Industry Standards” means those standards of care and diligence generally practiced or accepted by reasonably prudent contractors of the energy services industry in engineering, designing, constructing, installing and operating energy efficiency and/or renewable energy genera tion projects of substantially similar scope, equipment, and geographic region to the Project and in accordance with good engineering and design practices, sound construction procedures, Governmental Approvals, the Contract Documents and other generally accepted standards established for such Work. Industry Standards are not intended to be limited to optimum practice, methods, equipment specifications or acts to the exclusion of all others, but rather to be a spectrum of reasonable and prudent practices and methods generally accepted within the energy services industry to accomplish the desired results and must take into consideration the conditions specific to any given facility, including to the extent such conditions would require a person to (a) perform its duties in good faith, (b) perform its duties in compliance with the Contract Documents, (c) use sufficient and properly trained and skilled personnel, and (d) use parts and supplies that meet the specifications set forth in the Contract Documents, in all cases with respect to (a) through (d) herein, taking into account all of the costs, expenses and benefits of operation of the System.

“Instruments of Service” has the meaning set forth in Section 12(h)(iii).

“Interconnection Agreement” means an agreement entered into by and between City and the Utility for the System.

“LD Rate” has the meaning set forth in Section 5.7(e).

“Legal Requirement” means the requirement of any Applicable Law.

“Lien Release Forms” is defined in Section 4.9 and are listed in Attachment 6.

“Liquidated Damages” has the meaning set forth in Section 5.7(e).

“Maintenance Agreement” is defined in Section 2.1(c)(1) and set forth in Attachment 9. 5 “Measurement and Maintenance Agreement” is defined in Section 2.1(c)(2) and set forth in Attachment 10.

“Mobilization Payment” has the meaning set forth in Section 4(a)(ii).

“Notice to Proceed” means a written notice issued by City authorizing and directing Contractor to commence Work on the Project as described herein, the anticipated date of such issuance being set forth in the Project Schedule.

“Payment Application” has the meaning set forth in Section 4.4.

“Person” shall mean any individual, corporation, partnership, company, joint venture, association, trust, unincorporated organization or Governmental Authority or other entity recognized by Applicable Law.

“Progress Payment” means a payment made by City to Contractor in accordance with the provisions of Section 4.7.

“Progress Payment Milestone(s)” is defined and described in Section 4.7.

“Project” shall mean the engineering, design, procurement, installation, and construction of the System as further described in Attachment 1, and completion of the Work in accordance with the Contract Documents.

“Project Manual” shall mean the volume assembled for the Work which shall include, without limitation, to the extent within Contractor’s possession, Contract Documents, Governmental Approvals, Equipment Documentation, Equipment Warranties, results of start -up, operational , and other test conducted under the Testing and Commissioning Plan, Engineering Documents including as-built drawings, an operations & maintenance manual, and all other documents that are reasonably applicable to the Work, as required, wi th reasonably specific instructions and in reasonably sufficient scope and detail to permit City to safely operate, monitor and maintain the System at its tested output level in the ordinary course of business. The Project Manual shall include a table of contents in a format agreed upon by the Contractor and City, which agreement will not be unreasonably withheld, conditioned or delayed.

“Project Schedule” shall mean the schedule for prosecution of the Work, including all development, engineering, permitting, mobilization, construction, equipment procurement, testing and commissioning of the Project, that is set forth in Attachment 3 of this Contract.

“Punchlist” or “Punchlist Work” shall mean the list of Work uncompleted upon the achievement of Substantial Completion of the Project, but the lack of which or the failure of which to complete (considered individually or in the aggregate) does not or will not, in the reasonable opinion of City, impair the ability of City to safely operate, monitor and maintain the System in the ordinary course of business. The Punchlist must be agreed upon by City, which agreement will not be unreasonably withheld.

“Recovery Plan” means a plan prepared by Contractor, and submitted to the City, demonstrating to the City’s reasonable satisfaction, the measures that Contractor has taken or will take in order to (i) remedy a delay in completing a portion of the Work by the scheduled dates for such Work as provided in the Project Schedule including achievement of Substantial Completion by the Completion Date.

“Request for Information” means a written request prepared by the Contractor asking the City to provide additional information above and beyond that which is available in the Contract Documents and all reference standards, regarding fulfilling the obligations under the Contract , and the form of which is on file with City.

“RFI Priority Schedule” is defined in Section 8(e).

6 “Safety Plan” is defined in Section 2.2(a).

“Savings Guarantee” is defined in Section 2.2 and set forth in Attachment 11.

“Schedule of Values” has the meaning set forth in Section 4.7(a)(i) and is set forth in Attachment

2. “Shop Drawings” shall mean drawings, diagrams, schedules, and other data, which are prepared by Contractor, or by Contractor’s Subcontractors, Consultants, manufacturers, Suppliers, or distributors illustrating any portion of the Work. The Contractor shall obtain and submit with the Shop Drawings all seismic and other calculations and all product data from Equipment manufacturers. Shop Drawings shall:
establish the actual detail of all manufactured or fabricated items, indicate proper relation to adjoining work, amplify design detail s of mechanical and electrical systems and equipment in proper relation to physical spaces in the structure, and incorporate minor changes of design or construction to suit actual conditions.

“Site” or “Sites” means the location or locations that are owned or controlled by City where Contractor is to perform the Work and complete construction of the Project set forth in the Contract Documents.

“Specifications” mean that portion of the Contract Documents consisting of the written requirements for material, equipment, construction systems, instructions, quality assurance standards, workmanship, and performance of related services.

“Subcontract” means any contract, subcontract, purchase order, or other agreement whereby a Subcontractor undertakes either to: (a) perform or provide any portion of the Work; or (b) to provide all or a portion of the Equipment required by any Person performing or providing any portion of the Work.

“Subcontractor” means: (a) any Person, other than Contractor, performing or providing any portion of the Work, whether retained by Contractor, any Affiliate of Contractor, or any Person hired by Contractor or any of its Affiliates, and including every tier of Subcontract or, Sub-Subcontractors, and so forth; and (b) any Supplier.

“Substantial Completion” means, in the reasonable discretion of City, Beneficial Use of the Project with the exception of the Punchlist.

“Superintendent” has the meaning set forth in Section 2.3(b).

“Supplemental Instruction” or “SI” means a written instrument prepared by City and submitted to Contractor requesting a minor change to the Work that does not impact the Contract Price or Project Schedule that is mutually agreeable to both parties.

“Suppliers” means any Person providing or supplying all or a portion of the Equipment that is included in the Project, or is required by any Person to perform or provide any portion of the Work, whether or not incorporated into the System, including any materialman, vendor or supplier.

“System” means the energy efficiency and renewable energy generation components of the ECMs that are necessary to provide a fully integrated and operational Project, at each Site as applicable, in accordance with the Contract Documents and as described in the Work.

“Target Annual Energy Production” means the target number of kWh that the renewable energy generation components of the System shall produce in the first year following the Final Completion Date as detailed in the Final IGA.

“Testing and Commissioning Plan means a plan prepared by Contractor that includes the elements required to implement start -up and operational tests, and otherwise includes all matters relating to testing and commissioning the Project as required by the Contract Documents. 7 “City Indemnities” has the meaning set forth in Section 2.3(m).

“Utility” means the utility providing electrical services to the Site(s).

“Warranties” means, collectively, the warranties provided by Contractor to the City hereunder, as described in Section 2.17.

“Warranty Period” has the meaning set forth in Section 2.17(d).

“Work” means: (a) complete engineering and design of the System including as -built drawings; (b) the procurement, installation, construction and erection, commissioning, start -up and testing, and all other services, including all labor, materials’ storage, services, demolition, disposal, Site preparation, equipping, verification, training, manuals and other things and actions in connection therewith, as necessary for Contractor to fulfill all of its obligations pursuant to this Contract , the Contract Documents, any Change Orders; and the requirements of Utility and the Interconnection Agreement, the Governmental Approvals, and any other Legal Requirement; (c) the provision of Equipment; (d) transportation and storage of the Equipment; and (e) all of the foregoing that Contractor performs through any Subcontractor or Cons ultant.

2. SCOPE OF WORK.

2.1 Work.
(a) Subject to and in accordance with the terms and conditions of this Contract, and conditioned on City’s issuance of a Notice to Proceed, City hires Contractor to provide and Contractor agrees to provide all Work and Equipment necessary to delivery to City the Project described in this Contract for the total fixed, guaranteed not-to-exceed price of $6,875,016.00 (the “Contract Price”).

(b) Contractor agrees that the Work and its obligations under this Contract include, without limitation: (1) furnishing all engineering, system designs, supervision, labor, equipment and materials, tools, utilities, communications, implements, appliances , and transportation, to procure or to assist the City in procuring, as applicable, all Governmental Approvals; (2) where applicable, preparing on behalf of City and assistance with submitting all Incentive applications, the Interconnection Agreement , and all related applications and documents; (3) coordinate with Utility for any and all requirements to allow the Project to be placed in operation; (4) erect, install, start-up, test and commission the Project; (5) perform all obligations set forth in th is Contract; (6) perform all reasonably necessary and related activities for the successful completion of the Work and the delivery of the Project in compliance with this Contract; (7) perform all Work free and clear from any and all liens and claims (other than liens and claims created by the or through acts or omissions of City) from mechanics, material suppliers, Subcontractors, artisans, machinists, teamsters, freight carriers, and laborers for the Project; and (8) perform all Work in a good and workmanlike manner, all in compliance with the Contract, Industry Standards, Legal Requirements, and that the Project satisfies each of the following: (i) meets or exceeds the Legal Requirements manufacturer’s Specifications or by methods otherwise approved by the manufacturer; (ii) complies with all requirements of Utility and the Interconnection Agreement; (iii) meets or exceeds the Warranties and guarantees provided for in this Contract; (iv) is safe and adequate for the purpose and conditions intended by the Work; (v) is free from defects in materials and workmanship; and (vi) is comprised of Equipment which is new (unless otherwise mutually agreed) and of the specified quality and type when installed, designed and manufactured, and of a grade at least equal to generally accepted national standards for the design, manufacture and quality of such Equipment.

(c) The Work is further described in the final Specifications for the Project included in Attachment “1” to this Contract, and includes the work and services described in Section 1.1(b)(1) -(3), below. Contractor is solely responsible for and has control over construction means, methods, techniques, sequences, procedures, and coordinating all portions of the Work under the Contract except as specifically instructed otherwise herein. The Work shall not exceed that set forth in th is Contract except pursuant to a Change Order.
8 (1) Maintenance . Contractor is responsible for stor ing, servi ng and maintain ing the Equipment prior to the Final Completion Date. Upon and following the Final Completion Date, Contractor shall service and maintain the Equipment at the City’s cost pursuant to the terms of a “Maintenance Services Agreement” to be entered into by the Parties as of the Final Completion Date, the form and terms of which are set forth in Attachment 9 to this Contract (“Maintenance Agreement ”). Except as specified in the Maintenance Agreement, after the Final Completion Date, City shall be responsible for servicing and maintaining the Project at its own cost.

(2) Measurement & Verification. Commencing on the Final Completion Date, Contractor shall provide to City, at City’s cost, those ongoing measurement and v erification services that are more specifically described in a “Measurement & Verification Agreement” to be entered into by the Parties as of the Final Completion Date, and form and terms of which are set forth in Attachment 10 to this Contract.

(3) Project Commissioning. Before the Project is accepted as complete by the City , Contractor shall conduct a thorough and systematic performance test of each item of Equipment, system element, and total Project functionality in accordance with the procedures specified in the Testing and Commissioning Plan. Contractor shall design and perform testing to determine if the E quipment is functioning in accordance with both the manufacturing specifications and parameters of the Final IGA Report, and to determine if modified building systems, sub- systems or components are functioning within the new integrated environment. Contractor shall provide notice to City of the scheduled test(s) and City, and/or its designees , shall have the right to be present at any or all such tests conducted by Contractor and/or manufacturers of the E quipment. Contractor shall be responsible for correcting and/or adjusting all deficiencies in systems and Equipment or Project operations that may be identified during implementation of the Testing and Commissioning Plan. As a condition to City’s accepting the Project as complete, Contractor shall provide document ation evidencing to City’s reasonable satisfaction that each item of Equipment and the aggregate Project are operating as specified in this Contract.

(4) Standards of Comfort. Contractor will design and implement the Project in a manner consistent with the standards of heating, cooling, ventilation, hot water supply, lighting quality and levels , and similar environmental considerations defined in the IGA Report. After the Final Completion Date and for the duration of the Maintenance and Verification Agreement, Contractor and/or City, as applicable, will maintain and operate the Project in a manner that provides the standards of comfort and levels of operation as described in the Final IGA Report.

(5) Fluorescent Lamp and Ballast Disposal. Contractor will provide for the appropriate management and disposal of any PCB ballasts removed in connection with the Project . Contractor will subcontract with an approved PCB ballast disposal company to provide an informational packet, packing receptacles and instructions, labels and shipping materials, transportation, and recycling or incineration services for PCB ballasts in accordance with EPA and any other applicable requirements. All capacitors and asphalt potting compound materials removed from PCB ballasts will be incinerated in an approved facility. After proper disposal, a Certificate of Destruction will be provided by the approved facility to City.

(c) Project Training. Prior to and as a condition of City’s acceptance of the Project as complete, Contractor will conduct a training program for designated City employees concerning the maintenance and operation of the Equipment that is consistent with that described in the IGA Report and at the very least includes, without limitation, training in the operation, emergency shut -down procedures, and recommended operation and maintenance of each item of Equipment and the Project generally.

(d) Performance of Work. Contractor shall provide, perform or procure all Work necessary to complete the Project. To the extent that any portion of the Work is provided with the Contractor’s own forces, any reference to Subcontractors or Consultants shall be equally applicable to the Contractor. Work will be performed in such a manner so as not to harm the structural integrity of the buildings or their existing operating systems, and to the extent reasonably feasible, avoiding interrupting the day-to-day operations of City. Contractor shall repair and restore to its original condition damage to City buildings or property caused by Contractor 's performance under this Contract . City reserves the right to review the Work 9 performed by Contractor and to direct certain corrective action if, in the opinion of City, the structural integrity of buildings or operating systems is or will be harmed. All costs associated with such corrective action to damage caused by Contractor 's performance of the Work shall be borne by Contractor. Contractor is responsible for all Work performed, whether self-performed by Contractor, completed by S ubcontractors, or others on its behalf.

2.2 Guarantee of Energy Savings. From and after the Final Completion Date, Contractor shall guarantee to City the amount of energy cost savings generated by the Project pursuant to and in accordance with the terms of that certain Guaranty of Energy Cost Savings Agreement in Attachment 11 to this Contract (“Savings Guarantee”).

2.3 Contractor Personnel and Labor

(a) Competency. Contractor agrees to use, and agrees that it shall require each Subcontractor to use, only personnel who are qualified and properly trained and who possess every license, permit, registration, certificate or other approval required by Applicable Law or any Governmental Authority to perform the Work. Contractor and each Subcontractor shall: (i) furnish a competent and adequate staff as necessary for the proper administration, coordination, supervision, and superintendence of its portion of the Work; (ii) organize the procurement of all materials and equipment so that the materials and equipment will be available at the time they are needed for the Work; and (iii) keep an adequate force of skilled workers on the job to complete the Work in accordance with all requirements of the Contract Documents. City shall have the right, but not the obligation, to require the removal from the Project of any Superintendent, staff member, agent, or employee of any Contractor, Subcontractor, material or equipment supplier, etc., for cause.

(b) Superintendent. Contractor shall provide a competent superintendent and assistants as necessary given the nature and scope of the Work, all of whom shall be in attendance at the Project Site(s) during performance of the Work (the “Superintendent”). The Superintendent shall represent the Contractor, and communications given to the Superintendent shall be as binding as if given to the Contractor.

(c) Prevailing Wages . Contractor acknowledges the Project is a “public work” as defined in California Labor Code Section 1720 et seq., and that the Project is subject to: (i) Section 1720, including without limitation Labor Code Section 1771, and (i) the rules and regulations established by the Director of Industrial Relations implementing such statutes. Contractor shall perform all Work on the Project as a public work. Contractor shall comply with and be bound by all the terms, rules and regulations described in (i) and (ii) as though set forth in full herein. Pursuant to Labor Code Section 1773.2, copies of the prevailing rate of per diem wages for each craft, classification, or type of worker needed to perform the Project are on file at City of Commerce City Hall (Department of Public Works) and will be made available to any interested party on request. By initiating any Work on the Project Contractor acknowledges receipt of a copy of the Department of Industrial Relations determination of such prevailing rate of per diem wages, and the Contractor shall post such rates at each Site. Contractor shall comply with and be bound by the provisions of Labor Code Sections 1771, 1774 and 1775 concerning the payment of prevailing rates of wages to workers and the penalties for failure to pay prevailing wages. Contractor shall, as a penalty paid to the City, forfeit five hundred dollars ($200) for each calendar day, or portion thereof, for each worker paid less than the prevailing rates as determined by the Department of Industrial Relations for the work or craft in which the worker is employed for any public work done pursuant to these Contract Documents by the Contractor or by any Subcontractor.

(f) Compliance Monitoring and Posting Job Sites . The Project is subject to compliance monitoring and enforcement by the Department of Industrial Relations. Contractor shall post job site notices, as prescribed by Applicable Law.

(g) Employment List. Contractor and each Subcontractor shall keep or cause to be kept an accurate record for Work on this Project showing the names, addresses, social security numbers, work classification, straight time and overtime hours worked and occupations of all laborers, workers and mechanics employed by them in connection with the performance of this Contract or any s ubcontract 10 thereunder, and showing also the actual per diem wage paid to each of such workers, which records shall be open at all reasonable hours to inspection by the City, its officers and agents and to the representatives of the Department of Industrial Relations.

(i) Community Workforce Agreement. Contractor acknowledges the Project is subject to and governed by that certain Community Workforce Agreement between the City and the Los Angeles/Orange Counties Building and Construction Trades Council and the Signatory Craft Councils and Local Unions that is set forth in Attachment 8 to this Contract (“Community Workforce Agreement”). Contractor and each Subcontractor must submit a Letter of Assent in the form attached to the Community Workforce Agreement agreeing to be bound to the terms and conditions thereof in completing the Work.

(j) Apprentices. Contractor shall comply with and be bound by the provisions of Article 12.2 of the Community Workforce Agreement , California Labor Code Sections 1777.5, 1777.6 and 1777.7 and California Code of Regulations Title 8, Section 200 et seq. concerning the employment of apprentices on public works projects for all apprenticeable occupations used in completing the Work. CONTRACTOR shall ensure that all apprentices performing Work under the direct supervision of a journey worker from the trade in which the apprentice is indentured. Before commencing Work, Contractor shall provide City with a copy of the information submitted to any applicable apprenticeship program. Within sixty (60) d ays after concluding Work, Contractor and each of its Subcontractors shall submit to City a verified statement of the journeyman and apprentice hours performed.

(j) Debarment or Suspension. Contractor shall not perform Work with any Subcontractor that has been debarred or suspended pursuant to California Labor Code Section 1777.1 or any other federal or State law providing for the debarment of contractors from public works. Contractor and any Subcontractors shall not be debarred or suspended throughout the duration of this Contract pursuant to Labor Code Section 1777.1 or any other federal or State law providing for the debarment of contractors from public works. If Contractor or any Subcontractor becomes debarred or suspended during the duration of the Work, Contractor shall immediately notify City.

(k) Registration with the DIR. Pursuant to California Labor Code sections 1725.5 and 1771.1,
all contractors and subcontractors that wish to bid on, be listed in a bid proposal, or enter into a contract to perform public work must be registered with the Department of Industrial Relations. No bid will be accepted nor any contract entered into without proof of C ontractor’s or Subcontractor’s current registration with the Department of Industrial Relations to perform the public work. Notwithstanding the foregoing, the contractor registration requirements mandated by Labor Code Sections 1725.5 and 1771.1 shall not apply to work performed on a public works project that is exempt pursuant to the small project exemption specified in Labor Code Sections 1725.5 and 1771.1

(l) Payroll Records. Contractor shall comply with and be bound by the provisions of California Labor Code Section 1776, which requires Contractor and each Subcontractor to (1) keep accurate payroll records and verify such records in writing under penalty of perjury, as specified in Section 1776, (2) submit certified payroll to CITY; (3) certify and make such payroll records available for inspection as provided by Section 1776, and (4) inform City of the location of the records. Contractor shall have ten (10) days in which to comply subsequent to receipt of a written notice requesting these records or as a penalty to City, Contractor shall forfeit one hundred dollars ($100) for each day, or portion thereof, for each worker, until strict compliance is effectuated. Upon the request of the Division of Labor Standards Enforcement, these penalties shall be withheld from progress payments then due. Section 5.2 of the Community Workforce Agreement also requires Contractor and all Subcontractors to pay fringe benefit contributions to the appropriate union trust fund on a monthly basis.

(m) Hours of Labor . Contractor acknowledges that eight (8) hours labor constitutes a legal day’s work. Contractor shall comply with and be bound by Labor Code Section 1810. Contractor shall comply with and be bound by the provisions of California Labor Code Section 1813 concerning penalties for workers who work excess hours. Contractor shall, as a penalty paid to City, forfeit twenty-five dollars ($25) for each worker employed in the performance of this Project by Contractor or by any Subcontractor for each calendar day during which such worker is required or permitted to work more than eight (8) hours 11 in any one (1) calendar day and forty (40) hours in any one calendar week in violation of the provisions of Division 2, Part 7, Chapter 1, Article 3 of the Labor Code. Pursuant to Labor Code Section 1815, work performed by employees of Contractor in excess of eight (8) hours per day, and forty (40) hours during any one week shall be permitted upon public work upon compensation for all hours worked in excess of eight (8) hours per day at not less than one and one-half (1-1/2) times the basic rate of pay.

(n) Prevailing Wage Indemnity . To the maximum extent permitted by law, Contractor shall indemnify, hold harmless and defend (at Contractor’s expense with counsel reasonably acceptable to City) City, its officials, officers, employees, agents and independent contractors serving in the role of City officials, and volunteers from and against any demand or claim for damages, compensation, fines, penalties or other amounts arising out of any failure to comply with the requirements of this Section by any person (including Contractor, its Subcontractors, and each of their officials, officers, employees and agents) in connection with any Work undertaken or in connection with the Contract, including without limitation the payment of attorneys’ fees, and other related costs and expenses. All duties of Contractor under Section 2.3 of this Contract shall survive its expiration or termination.

(o) Subcontractors. For every Subcontractor performing Work, Contractor shall be responsible for such Subcontractor’s compliance with California Labor Code Section s 1720, 1860, and 3700, and Contractor shall include in the written contract between it and each Subcontractor a copy of the provisions of this Section 2.3 and a requirement that each Subcontractor shall comply with these provisions. Contractor shall be required to take all actions necessary to enforce such contractual provisions and ensure Subcontractor’s compliance, including without limitation, conducting a periodic review of the certified payroll records of the Subcontractor and upon becoming aware of the failure of the Subcontractor to pay its workers the specified prevailing rate of wages. Contractor shall diligently take corrective action to halt or rectify any failure.

2.4 Contractor Responsibility. Contractor shall be responsible for acts and omissions of Contractor’s employees, Subcontractors, material and Equipment suppliers, and their agents, employees, invitees, and other persons performing portions of the Work under contract with Contractor or any of its Subcontractors.

Contractor shall not be relieved of obligations to perform the Work in accordance with this Contract by tests, inspections, or approvals required or performed by persons other than Contractor . Contractor shall be responsible for inspection of Work already performed under this Contract to determine that such portions are in proper condition to receive subsequent work.

2.5 Subcontractors and Other Contracts for Portions of the Work

(a) Subcontractors have been selected by Contractor and presented to for consideration City pursuant to the following procedures:

(i) All Subcontractors have been designated, together with the scope and cost of the Work to be performed by each Subcontractor, as well as that portion of the scope and Cost of the Work to be self-performed by Contractor, in the Schedule of Values in Attachment 2.

(ii) Contractor has clearly designated the Equipment and ECM’s that will be provided directly by Contractor (or Affiliated entities), and the Equipment and ECM’s that will be procured by Contractor from all Suppliers or Subcontractors, in the Schedule of Values.

(iii) City has the right, without cause or justification, to reject any proposed Subcontractor or Supplier. Any substitutions of Subcontractors or Supplies required by City may result in an increase in the Contract Price (except to the extent City requires a substitution for reasonable safety or performance concerns) and/or the granting of an extension of time for the Project Schedule. Substitutions of Subcontractors made at the election of Contractor shall not result in any increase in the Contract Price.

Contractor shall enter into written agreement with each Subcontractor performing any portion of the Work and shall require each Subcontractor, to the extent of the Work to be performed by the Subcontractor, to abide by the terms of the Contract Documents and to assume toward the Contractor all obligations and responsibilities which Contractor, by the Contract Documents, assumes toward City. Contractor and 12 Subcontractors may not perform work on a public works project with subcontractor who is ineligible to perform work on a public project pursuant to California Labor Code section 1777.1 or 1777.7. Any contract on a public works project entered into between a contractor and a debarred subcontractor is void as a matter of law. A debarred subcontractor may not receive any public money for performing work as a subcontractor on a public works contract. Any public money that is paid, or may have been paid to a debarred subcontractor by a contractor on the project shall be returned to City. Contractor shall be responsible for the payment of wages to workers of a debarred subcontractor who has been allowed to perform Work.

(b) Each Subcontract for a portion of the Work shall be assigned by Contractor to City only under the following circumstances:

(i) Assignment is effective only after termination of this Contract with Contractor by City for cause pursuant to Section 7.1 and only for those Subcontract agreements which City accepts by notifying the Subcontractor in writing; and

(ii) Assignment is subject to the prior rights of the surety, if any, obligated under any bond relating to this Contract.

2.6 Supply and Procurement of Equipment

(a) Except as expressly provided to the contrary in the Work, Contractor, at its expense, shall purchase all Equipment, and transport and deliver all Equipment and shall inspect, unload, store, construct and install all Equipment required to complete the Project. Contractor shall maintain all Equipment Warranties, obtain required extended warranties when available, and, upon the expiration of the Warranty Period, cause any such remaining Equipment Warranties to be assigned and passed- through to City .

Contractor shall at all times perform the Work in a manner consistent with all such Equipment Warranties and will not perform any actions that may violate such warranties.

(b) Contractor agrees that all materials and Equipment to be supplied or used by Contractor or any Subcontractor in the performance of its obligations under this Contract shall be new, unless otherwise specified or mutually agreed (if being incorporated into the System) or in good operating condition (if not being incorporated into the System). Such materials and Equipment shall at all times be maintained, inspected and operated by Contractor pursuant to Industry Standards and as required by Applicable Law until Beneficial Use. Contractor further agrees that all licenses, permits, regis trations and certificates or other approvals required by Applicable Law or any Governmental Authority will be procured and maintained for such materials and Equipment at all times during the use of the same by Contractor or any Subcontractor in the performance of any of Contractor’s or such Subcontractor’s obligations under this Contract.

(c) Contractor shall maintain an active inventory list in respect of the Project and, upon completion of any Work with respect to the Equipment (including in respect of any claim under the Warranties), Contractor shall update the active inventory list to reflect the serial numbers and all other information reasonably required by City with respect to any new Equipment installed as part of such Work.

2.7 Utilities. Contractor shall supply temporary power (this shall not apply to any power required by City as a result of any temporary shutdown by Contractor required in connection with the performance of the Work), telecommunications, water, waste disposal, and other utilities and services to temporary construction trailers required for performance of the Work.

2.8 Utility Rate Changes. If applicable, and subject to City’s prior authorization, Contractor shall be responsible for coordinating the desired rate schedule changes with Utility for the Project. Contractor will be responsible for ensuring the Project meets the requirements for inclusion in the desired rate schedules and will promptly inform City if there is any discrepancy between such requirements and the Specifications for any System or Work. It is preferred that the switching to these rate schedules happen after the Project has been operational continuously for a thirty (30) day period as required for Final Completion. If Utility only 13 allows the rate schedule to be changed at the time of System interconnection, then the rate schedule change should occur at the time of System interconnection with Utility.

2.9 Incentives. Contractor shall secure on behalf of and for the benefit of, or otherwise payable to City, any subsidies, rebates or other incentives, specifically including providing technical assistance to the City in applying for the Solar Investment Tax Credit Direct Pay, that may be available to City from any Governmental Authority or Utility in connection with or relating to the financing, installation, or operation of the Project or otherwise, including but not limited to those identified in advance by Contractor in Attachment 4 (“Incentive Funds ”) i n a timely manner and within the Incentive availability period . Contractor acknowledges that it shall have no right or interest in any such subsidies, rebates or other I ncentives. City acknowledges that Contractor has no control over final payment or availability of such Incentive Funds, but Contractor shall exercise good faith and sound professional judgement in identifying, applying for, and otherwise obtaining the Inventive Funds on City ’s behalf . City acknowledges and agrees that unless Contractor breaches the foregoing Contractor will have no liability for any failure to receive all or any portion of the Incentive Funds. Procurement, or lack thereof, of the Incentive Funds will not alter the Contract Price or the payment timeline associated with payment of the Contract Price.

2.10 Testing and Inspection. Contractor shall at its own expense conduct start -up and operational tests, and such other tests described in the Work or Specifications, and shall be responsible for all testing and inspection fees for and coordination with any Governmental Authority for the approval of the Project.

Contractor will notify City no less than five (5) days prior to the commencement of testing and City will have the right to observe all such tests. Tests, inspections, and approvals of portions of the Work required by the Contract Documents will comply with all Legal Requirements. The following shall apply to the testing and inspection of the Project:

(a) Rejection of Work . City’s selected representative may, acting reasonably, recommend to the
City that the City reject Work which does not conform to the Contract Documents.

(b) Testing Off-Site. If applicable, any material shipped by Contractor from the source of supply
shall not be incorporated in the Project until having satisfactorily passed testing and inspection requirements pursuant to applicable Equipment Specifications, Applicable Law or the requirements of any Governmental Authority.

In the event that any portion of the Work performed by
Contractor is determined to not comply with the Contract Documents, if after providing ten (10) days written notice to Contractor to cure or to commence and diligently pursue to cure completion of the requirements under the Contract Documents, City through no fault of its own, is required to provide or secure additional professional services (other than those professional services already within City ’s scope) Contractor shall be invoiced by City for any reasonable actual costs incurred for any such additional services, which costs may, among other remedies, be withheld from the progress payments and/or retention until corrected; or deducted from the Contract Price if City incurs actual costs of correction.

(d) Additional Testing or Inspection, and Costs Related Thereto

(i) If City or Governmental Authority determines that any portion of the Work requires additional testing, inspection, or approval, Contractor will, upon City’s written authorization, arrange for such additional testing, inspection, or approval. City shall bear such costs except as set forth in paragraph (ii), below.

(ii) If the testing or inspection of Work on the Project reveals that Work does not comply with Contract Documents or Legal Requirements , Contractor shall bear all costs arising from such failure, including those of re- testing, re- inspection, approval, or re- approval, including, but not limited to, compensation for services and expenses of the testing laboratory and any other professionals or entities retained by City. Any such costs shall be paid for by City, and City shall then invoice to Contractor and Contractor shall make payment thereof within 30 days after Contractor receives the invoice; if Contractor fails to do so, City shall have the right to withhold the amount from any payment due or to be due to Contractor under this Contract.
14 (e) Costs for Premature Test . If Contractor requests any test or inspection for any portion of the Project and that portion is not ready for the inspection, City shall have the right to invoice Contractor for all costs and expenses relating to the testing or inspection, including, but not limited to, compensation for services and expenses of the testing laboratory, and any other professionals or entities retained by City.

Any such costs shall be paid for by City, and City shall then invoice to Contractor and Contractor shall make payment thereof within thirty (30) days after Contractor receives the invoice; if Contractor fails to do so, City shall have the right to withhold the amount from any payment due or to be due to Contractor under th is Contract.

(f) Covered Work. If a portion of the Work is covered or enclosed contrary to the request of any Governmental Authority, City’s request, or requirements specifically expressed in the Contract Documents, it must, if required by the Governmental Authority or City, be uncovered for the Governmental Authority ’s or City’s observation and be replaced at Contractor’s expense without change in the Contract Price or Project Schedule.

(g) Tests and Inspections Not to Delay Work . Tests and inspections conducted pursuant to the Contract Documents shall be made promptly to avoid unreasonable delay in the Work on the Project.

Contractor shall provide City a minimum of five (5) working days’ notice prior to commencement of tests and inspections.

(h) Independent Testing Laboratory. City will select and pay for an independent testing laboratory to conduct tests and inspections and, except as included in the scope of work or specifically provided otherwise in the Contract Documents, City shall pay for all associated costs. Selection of the materials required to be tested shall be made by the laboratory or City and not by Contractor.

2.11 Local and General Conditions

(a) Contractor has conducted a visual examination of the Sites and acknowledges and agrees that it has satisfied itself as to the general and local conditions and circumstances affecting the Work that could be reasonably ascertained from a visual inspection to ensure that the Project can be built according to all Applicable Laws and Industry Standards in place as of the Effective Date of this Contract . Contractor acknowledges and agrees that where Assessments were conducted, the results have been provided to the City within five (5) days of having been received by the Contractor if requested and all costs associated with the results have been accounted for in the Contract Price.

(b) Contractor acknowledges and agrees that it has taken into account all Assessments in any preliminary Engineering Documents that it has provided for use by the Parties in developing the terms and conditions of this Contract. All preliminary engineering and installation Drawings provided by Contractor were completed to be consistent with Applicable Law in place as of the Effective Date of this Contract, all prevailing construction standards and codes in place as of the Effective Date of this Contract, and the ECMs that City has approved to be incorporated into the Project.

(c) When required by the Work or otherwise required to satisfy this Section 2.11, Contractor will furnish, at its expense, the services of geotechnical engineers or Consultants when reasonably required or as required by Applicable Laws. Such services with reports and appropriate professional recommendations shall include, if applicable, test boring, test pits, soil bearing values, percolation tests, air and water pollution tests, and ground corrosion and resistivity tests, including necessary operations for determining subsoil, air, and water conditions. At City’s request, Contractor shall make available to City the results of any Site investigation, test borings, analyses, studies or other tests conducted by or in the possession of the Contractor or any of its agents. Nothing herein contained shall be deemed a waiver by Contractor to pursue any available legal right or remedy it may have at any time against any third party who may have prepared any report and/or test relied upon by Contractor.

(d) Unless specifically stated in writing by City , Contractor may not rely upon the accuracy of any utility services or site survey information related to private utilities that the City may provide. 15 (e) Certain pre-existing conditions may be present within the Sites that: (i) are non-compliant with applicable codes, (ii) may become non- compliant with applicable codes upon completion of Contractor’s Work, (iii) may cause Contractor’s completed Work to be noncompliant with applicable codes, (iv) may prevent City from realizing the full benefits of Contractor’s Work, (v) may present a safety or equipment hazard, or (vi) are otherwise outside the scope of Contractor’s Work. Regardless of whether or not suc h conditions may have been readily identifiable prior to the commencement of Work, Contractor will not be responsible for repairing such pre-existing conditions unless such responsibility is expressly provided for in the Work or an approved Change Order. Contractor, in its sole discretion, may determine whether it will bring said pre-existing conditions into compliance by agreeing to execute a Change Order with City for additional compensation and, if appropriate, an extension of time.

2.12 Safety Precautions and Programs

(a) Contractor shall have responsibility for initiating, maintaining, and supervising all safety precautions and programs in connection with the performance of this Contract . Subcontractors shall have the responsibility for participating in, and enforcing, the safety and loss prevention programs established by the Contractor for the Project including a Contractor Safety Plan (“Safety Plan”), which shall cover all Work performed by Contractor and its Subcontractors. Subcontractors shall promptly report in writing and by phone to Contractor all accidents whatsoever arising out of, or in connection with, the performance of the Work, whether on or off the site of Work, which caused death, personal injury, or property damage, giving full details and statements of witnesses. Contractor will provide and maintain first -aid supplies for minor injuries.

(b) Prior to beginning the Work , Contractor shall provide City with a copy of the Safety Plan, as well as, if requested, an evaluation and appropriate documentation of the safety record of any first -tier Subcontractor that will be performing Work on the Project. The Safety Plan shall include the location of emergency utility shutoffs (both manual and electronic shutoffs, if applicable). Contractor shall review the emergency shut off and evacuation plan with City prior to start of construction.

(c) Contractor shall take reasonable precautions for the safety of, and shall provide reasonable protection to prevent damage, injury, or loss to: (A) employees on the Work and other persons who may be affected thereby; (B) the Work, material, and Equipment to be incorporated therein, whether in storage on or off the site of the Work, under the care, custody, or control of Contractor or Contractor’s Subcontractors; and (C) other property at any Site or adjacent thereto such as trees, shrubs, lawns, walks, pavem ent, roadways, structures, and utilities not designated for removal, relocation, or replacement in the course of construction. Contractor shall give notices and comply with Legal Requirements, ordinances, rules, regulations, and lawful orders of Governmental Authorities bearing on the safety of persons or property or their protection from damage, injury, or loss.

(d) Contractor shall erect and maintain, as required by existing conditions and performance of the contract, reasonable safeguards for safety and protection, including posting danger signs and other warnings against hazards, promulgating safety regulations, and notifying City and users of adjacent sites and utilities as identified by City in the preconstruction meeting.

(e) Contractor shall have mandatory pre- job safety briefing for all employees and Subcontractor employees on their first day of on-site construction for their company. Hard hat stickers shall be issued as a proof of briefing attendance.

(f) Safety meetings will be held once a week during construction with all Contractor employees and Subcontractors employees attending. Printed names will be taken of those attending the meeting. No individual will start work on the Site without having attended a safety briefing on the dangers and protocols of the Site. Records of this training will be kept and provided to City upon request. No individual will operate a piece of equipment on which they have not had certification training. Certification shall be made readily available at the Project Site.

16 (g) When use or storage of explosives, other hazardous materials or equipment, or unusual methods are necessary for execution of the work, the Contractor shall exercise utmost care and carry on such activities under supervision of properly qualified personnel. Contractor shall notify City any time that explosives or hazardous materials are expected to be stored on Site. Location of storage shall be coordinated with the City and local fire authorities.

(h) Pursuant to California Labor Code section 6705, to the extent any portion of the Work involves the excavation of any trench or trenches five (5) feet or more in depth, Contractor shall, in advance of excavation, submit to City or a registered civil or structural engineer employed by City a detailed plan showing the design of shoring for protection from the hazard of caving ground during the excavation of such trench or trenches. If such plan varies from the shoring system standards established by the Safety Plan, the plan shall be prepared by a registered civil or structural engineer, but in no case shall such plan be less effective than that required by the Safety Plan or Applicable Law. Pursuant to California Labor Code section 6705, nothing in this Article shall impose tort liability upon City or any of its employees.

2.13 Protection of Work and Property . During such times as Contractor or Subcontractors are performing any portion of the Work, they shall protect and secure such Work, materials and Equipment, City’s property, and the Site where the Work is being performed from damage or loss arising in connection with operations under the Contract Documents. Contractor and Subcontractors shall repair damage or loss to Equipment or City’s property caused by them. Contractor will provide reasonable protection to prevent damage, injury, or loss to employees of Contractor and Subcontractors performing Work under this Contract. Contractor will not be responsible for City ’s employees’ safety unless Contractor’s negligence in the performance of its Work is the proximate cause of the City employee’s injury. The following shall apply to the protection of Work and property:

(a) Contractor shall at all times comply with the requirements of Applicable Laws and the Safety Plan with respect to the use, occupancy and condition of the Sites, including the location and maintenance of storage and laydown areas used by Contractor.

(b) Contractor will be responsible for all storage and receiving of all Equipment or other freight at the Site(s) or other approved location(s) in a secure manner. Contractor shall obtain City approval, for each Site, the location and size of any requested “lay down”, storage, and/or work area. Such approval not to be unreasonably withheld or delayed.

(c) If Equipment or other materials are requested to be stored on- site, prior to construction activities at the Sites, Contractor shall obtain City approval, for each Site, the location and size of any requested storage area. Such approval not to be unreasonably withheld or delayed.

(d) Contractor shall be solely responsible to timely notify all public and private utilities serving the affected Sites before commencing work on the Sites. Contractor shall notify and receive clearance from any cooperative agency, such as Underground Service Alert, in accordance with California Government Code section 4216, et seq. Contractor shall promptly provide a copy of all such notifications to City or its designated representative, upon request.

(e) Contractor and Subcontractors shall use only those ingress and egress routes designated by City, observe the boundaries of the Sites designated by City, park only in those areas designated by City , which areas may be on or off the Sites, and comply with any parking control program established by City such as furnishing license plate information and placing identifying stickers on vehicles.

(f) Contractor shall keep the Sites and surrounding area free from accumulation of waste material or rubbish caused by operations under this Contract . The Sites shall be maintained in a safe, reasonably neat (as may be expected during active construction or work), and orderly condition. If Contractor fails to reasonably clean up as provided in the Contract Documents, upon providing prior written notice to Contractor and if Contractor fails to respond within five (5) days, City may do so and the actual, direct and reasonable cost thereof shall be invoiced to Contractor and withheld from Progress Payments and/or retention. Upon completion of the Project, Contractor and Subcontractor shall dismantle temporary 17 structures, if any, and remove from the Sites all construction and installation equipment, fences, scaffolding, surplus materials, rubbish, and supplies belonging to Contractor or Subcontractor.

2.14 Emergencies. In an emergency affecting the safety of persons or property, Contractor shall take any action necessary, at Contractor’s discretion, to prevent threatened damage, injury, or loss. Additional compensation or extension of time claimed by the Contractor on account of an emergency shall be determined as provided in and requested in accordance with the relevant provisions of this Contract .

Contractor shall promptly report in writing to City all accidents arising out of or in connection with the Work, which caused death, personal injury, or property damage, giving full details, and statements of any witnesses. In addition, if death, serious personal injuries, or serious property damages are caused, the accident shall be reported immediately by telephone or messenger to City.

2.15 Hazardous Materials. In the event the Contractor encounters or suspects the presence on or in any Site of Hazardous Materials, which have not been rendered harmless, Contractor shall immediately stop Work in the area affected and report the condition to City in writing, whether or not such material was generated by Contractor or City.

(b) Contractor will comply with all Applicable Laws with respect to the identification, and if applicable as part of the Work, removal and proper disposal of any Hazardous Materials known or discovered at or around the Sites, and in connection there with will execute all generator manifests with respect thereto. Contractor and Subcontractors will comply with all Applicable Laws in connection with the use, handling, and disposal of any Hazardous Substances in the performance of its Work.

(c) To the extent City is aware of the presence of any Hazardous Materials at any Site, City shall be responsible for informing Contractor in writing of the location of such Hazardous Materials and shall bear responsibility for reasonable damages for personal injury or property damage caused by its failure to disclose the presence of such Hazardous Materials to Contractor. Notwithstanding the foregoing, City shall have no affirmative duty or obligation to investigate for Hazardous Materials on any of the Sites.

(d) Any Hazardous Material disposal responsibility of Contractor is explicitly stated in this Contract or Contract Documents, and otherwise the cost thereof shall be borne by City .

(e) City will indemnify, defend, and hold Contractor harmless from and against any and all actions, claims, demands, damages, disabilities, fines, penalties, losses, costs, expenses (including consultants’ and attorneys’ fees and other defense expenses) and liabilities of any nature that in any way result from, or arise under, such City owned or generated Hazardous Materials, except for liabilities to the extent arising from: (1) the negligence or willful misconduct of Contractor, or its Subcontractors, agents or representatives, in the handling, disturbance or release of preexisting Hazardous Materials; (2) Hazardous Materials transported onto the Sites by Contractor, or its Subcontractors, agents or representatives; or (3) as otherwise set forth in this Contract. This indemnification will survive any termination of this Contract.

2.16 System Manuals and Drawings

(a) Submittal. Contractor shall obtain and shall submit to City all required Engineering Documents in accordance with the Project Schedule and as required in the Contract Documents with such promptness as to cause no delay in the Work. City shall have the right, but not the obligation, to review all Engineering Documents and may direct Contractor to make such changes to the design and engineering of the Project as City reasonably believes are necessary and as are requested within a reasonable time after the Engineering Documents are submitted, so long as any such changes are within the scope of Work (or, if not, a Change Order has been executed with respect to such changes); provided however, that no such review or requested change shall impose any liability on City (other than to make payment in accordance with any applicable Change Order) or relieve Contractor of any of its responsibility for the design, engineering and performance of the Project as provided in this Contract. Any submission, which in City’s opinion is in complete, contains numerous errors, or has been checked only superficially by Contractor, will be returned unviewed by City for resubmission by Contractor. Contractor shall not 18 commence any portion of the Work requiring an Engineering Document or sample submission until City has approved the submission.

(b) Sample. Where samples or mockups are requested by City , and Work is approved based on the samples or mockups, all Work shall be in accordance with the approved samples and mockups.

(c) Extent of Review. In reviewing Engineering Documents, City will not verify dimensions and field conditions. City will review and approve Engineering Documents, product data, and samples for aesthetics and for conformance with the design concept of the Work and the information given in the Contract Documents. City’s review shall not relieve the Contractor from responsibility for any deviations from the requirements of the Contract Documents unless City has given specific written approval.

Contractor and Subcontractors shall be solely responsible for determining any quantities, whether or not shown on the Engineering Documents. Contractor shall submit structural/civil plans and supporting calculations for solar panels system and other applicable improvements for City’s review and approval.

(d) Substitution Unless the Contract Documents state that no substitution is permitted, whenever in the Contract Documents any specific brand or trade name is specified such specification shall be deemed to be followed by the words “or equal.” City may consider an untimely substitution request if the product specified is no longer commercially available or in City’s best interest.

(e) Project Manual. A Project Manual shall be assembled by Contractor and provided to City as a requirement for achieving Final Completion.

(f) Documents and Samples at the Site. Contractor shall maintain at the Project for the City one record copy of the Drawings, Specifications, Change Orders, and other modifications, in good order and marked currently to record changes and selections made during construction. In addition, Contractor shall maintain at the Sites approved Shop Drawings, Engineering Documents, samples, and similar required submittals.

2.17 Warranties

(a) Contractor Warranties . Contractor warrants that, throughout and until the end of the Warranty Period:

(i) The Project will be engineered, designed, and constructed to satisfy all applicable Legal Requirements, the requirements of Utility, the requirements of the Contract Documents, and all descriptions set forth herein, applicable construction codes and standards and all other requirements of this Contract, and to produce a fully functional Project that is capable of operating free of major defects, assuming customary operation and maintenance, and provided Contractor is provided with notice and a reasonable opportunity to cure any such defects that may arise during the Warranty Period.

(ii) All Equipment installed as part of the agreed upon ECMs shall conform in all respects to the requirements of the Contract Documents, Legal Requirements, the requirements of the City, the Utility and all other requirements of this Contract and shall be new and undamaged at the time it is put into service, and will be installed in accordance with the Equipment Documentation (including all requirements necessary to preserve and maintain in effect any and all Equipment Warranties) and all Equipment Warranties are in effect.

(iii) The Work, including all workmanship and materials incorporated therein will be free from defects in design, engineering, materials, construction, and workmanship, and shall conform in all respects with all Legal Requirements, the requirements of Utility, City, and the Contract Documents.

(b) Subcontractor and Supplier Warranties. Contractor shall, for the protection of City, use commercially reasonable efforts to obtain from all Suppliers and Subcontractors from which Contractor procures machinery, equipment or materials or services, warranties and guarantees with respect to such machinery, equipment, materials or services, which shall be made available to City to the full extent of the 19 terms thereof. At all times during performance of Work under the Contract Documents , Contractor shall perform the Work in a manner consistent with all such warranties and shall not perform any actions that may violate or void such warranties. Contractor shall assign all remaining Equipment Warranties to City upon expiration of the Warranty Period. Contractor shall deliver to City promptly following execution or receipt of the applicable agreement copies of all warranties and guarantees received from any Subcontractor or Suppliers, together with copies of such agreements (redacting confidential information as required thereunder).

(c) Independent Warranties. Contractor’s Warranties under this Section are separate and independent of one another. Contractor’s failure to meet any of the foregoing warranties shall be deemed a breach of the Warranties.

(d) Warranty Period. Contractor shall remedy any breach of the Warranties set forth in this Section occurring during the period commencing on the date of Beneficial Use of each ECM and ending on the date that is that later of one (1 ) year after the Beneficial Use of the entire Project, or the date upon which any applicable manufacturer’s warranty for any item of Equipment put into Beneficial Use expires (the “Warranty Period”).

(e) Remedies.

(i) If any Warranty set forth in this section is breached or a defect or deficiency is discovered during the Warranty Period, Contractor shall, upon written notice from City of a Warranty claim prior to the expiration of the Warranty Period, at Contractor’s sole option, re-perform, repair, replace and/or correct the applicable Work and resulting damage to the System caused by such defective Work on a reasonably expedited basis while making reasonable attempts to minimize any impact of the failure on the availability, output and functionality of the System. Contractor shall have reasonable access to the System as necessary to perform its Warranty obligations hereunder. All costs of or incidental to Contractor’s performance of its Warranty obligations shall be borne by Contractor, including, where required, revising or re-engineering any deficient systems, the removal, replacement and reinstallation of all equipment necessary to gain access to defective Work, the repair of any and all damage to any part of the System or the Sites, and the cost of conducting all tests to confirm that all necessary corrective action has occurred.

If the Project Warranties failure has the effect of voiding any Equipment Warranty, then Contractor will at its own expense correct the condition as required in order to ensure that the Equipment Warranty is reinstated by the manufacturer on such item, or that a replacement item with full Equipment Warranty is provided and installed.

(ii) Should Contractor fail to begin to perform such necessary repairs, replacement, or correction within ten (10) days’ notice of a Warranty claim or such shorter period as necessary in the event of an emergency (but not less than twenty-four (24) hours) and thereafter diligently pursue such correction, City shall have the right to perform such repair, replacement or correction, and Contractor shall be liable for all reasonable, direct costs, charges and expenses incurred by City in connection with such repair or replacement and shall forthwith pay to City an amount equal to such costs, charges and expenses upon receipt of invoices certified by City. City’s action in correcting defects in accordance with this Section shall not void Contractor’s Warranty obligations hereunder, except in the case of City’s or its agent’s (other than Contractor or any Subcontractor) negligence or willful misconduct.

(f) Warranty Exclusions. Notwithstanding any provision herein to the contrary, the Warranty obligations of Contractor do not extend to (i) Work that is damaged by the negligence or willful misconduct of City or other third party not under the control of Contractor, (ii) the failure of City to maintain and operate the Equipment materially in accordance with all manufacturer’s recommendations and any instructions, practices and procedures of which City has been advised in writing by Contractor (except if suc h failure is caused by Contractor or any Subcontractor), (iii) normal wear and tear, (iv) Force Majeure Events, (v) any alteration, repair or replacement made by a Person other than Contractor or any Subcontractor without the prior written approval of Contractor (excluding alterations, repairs or replacements made pursuant to this Contract), ; and (vi) corrosion, erosion, deterioration and abuse.

20 (g) Waivers. EXCEPT FOR THE WARRANTIES PROVIDED IN THIS SECTION, CONTRACTOR

MAKES NO WARRANTIES IN CONNECTION WITH THE WORK PROVIDED UNDER THIS CONTRACT,

WHETHER EXPRESS OR IMPLIED IN LAW, INCLUDING ANY IMPLIED WARRANTIES OF

MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE AND ANY IMPLIED WARRANTIES AGAINST INTELLECTUAL PROPERTY INFRINGEMENT. CITY WILL HAVE NO REMEDIES AGAINST EITHER CONTRACTOR OR ANY CONTRACTOR’S SUBCONTRACTORS OR SUPPLIERS FOR ANY

DEFECTIVE MATERIALS OR EQUIPMENT INSTALLED, EXCEPT FOR THE REPAIR OR

REPLACEMENT OF SUCH MATERIALS OR EQUIPMENT IN ACCORDANCE WITH THE WARRANTY INDICATED ABOVE. SPECIFICALLY, NEITHER CONTRACTOR, NOR CONTRACT OR’S

SUBCONTRACTORS OR SUPPLIERS, WILL BE LIABLE TO CITY FOR LOSS OF PROFITS OR FOR

ANY SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY.

2.18 City’s Right to Stop the Work . If, after being provided written notice as required under the Contract Documents, Contractor fails to correct Work which is not in accordance with the requirements of the Contract Documents, or persistently fails to carry out Work in accordance with the Contract Documents or fails to follow safety requirements, the City, by written order signed personally or by an agent specifically so empowered by the City in writing, may order the Contractor to stop the Work or any portion thereof, until the cause for such order has been eliminated.

2.19 City’s Right to Carry Out The Work . If Contractor defaults or neglects to carry out the Work in accordance with the Contract Documents and fails (within a sixty (60) day period after receipt of written notice or an alternative reasonable time period expressly stated in the written notice from the City ) to commence and continue correction of such default or neglect with diligence and promptness, City may correct such deficiencies by whatever reasonable method City may deem expedient without prejudice t o other remedies City may have, and may withhold the cost of such correction from any sums due Contractor under this Contract.

2.20 City’s Obligations.

(a) Registration, Permits and Approvals.

(i) Prior to issuing the Notice to Proceed to Contractor, City must register the Project with the Department of Industrial Relations, using Form PWC-100.

(ii) City will cooperate fully with and assist Contractor in obtaining all Governmental Approvals required under this Contract. Contractor is responsible for obtaining and paying for (but including the cost therefor in the Contract Price) any and all permits required by any Governmental Authority in connection with the Project; except those permits, inspections, certifications, permits or approvals that may be required for ongoing operation of the Project after the Completion Date shall be the responsibility of City except as set forth in the Maintenance and Verification Agreement.

(b) Coordination. The Parties will work together in good faith to coordinate the activities of Contractor and Contractor’s Subcontractors and Suppliers with those of City to allow Contractor to timely complete the Work.

(c) Access. City hereby grants to Contractor, without cost to Contractor, all rights of ingress and egress at the Sites, necessary for Contractor to timely perform the Work contemplated by this Contract, including without limitation and at no extra cost to Contractor, access to perform Work on Saturdays, Sundays, legal holidays, and non-regular working hours when reasonably required to minimize interruptions to City’s normal activities at the Sites. Contractor shall provide City access to the Work in preparation and progress wherever located.

(d) Consents; Cooperation. Whenever a Party’s consent, approval, satisfaction, or determination will be required or permitted under this Contract, and this Contract does not expressly state that the Party may act in its sole discretion, such consent, approval, satisfaction, or determination will not 21 be unreasonably withheld, qualified, conditioned, or delayed, whether or not such a “reasonableness” standard is expressly stated in this Contract. Whenever a Party’s cooperation is required for the other Party to carry out its obligations hereunder, each Party agrees that it will act in good faith and reasonably in so cooperating with the other Party or its designated representatives or assignees or subcontractors. Each Party will furnish decisions, information, and approvals required by this Contract in a timely manner so as not to delay the other Party’s performance under this Contract.

(e) City’s Obligations.

(i) City will coordinate with Contractor to provide a temporary staging area for Contractor, or its subcontractors, to use during the construction phase to store and assemble equipment for completion of the Work, if needed. City will provide sufficient space at the Sites for the performance of the Work and the storage, installation, and operation of any equipment and materials . City will not unreasonably restrict Contractor’s access to Sites to make emergency repairs or corrections as Contractor may determine are needed.

(ii) City will maintain the portion of each Site that is not directly affected by Contractor’s Work. City will keep the designated Site and staging area for the Project free of obstructions, waste, and materials within the reasonable control of City.

(iii) City will obtain any required environmental clearance from, and any inspections, including special inspections, or permits required by, any federal, state, and local jurisdictions, including but not limited to any clearances required under CEQA, prior to scheduled construction start date.

(iv) Subsurface conditions and obstacles (buried pipe, utilities, etc.) that were not reasonably ascertainable by Contractor or are not otherwise previously and accurately documented by City and such documentation made available to and reasonably relied upon by Contractor are the responsibility of City.

(v) City will remove any Hazardous Materials either known to City prior to the commencement of the Work or encountered by Contractor during the construction of the Project, if necessary, in order for the Work to progress safely, unless otherwise specifically stated in the Work.

Contractor will respond to the discovery of Hazardous Materials at or around the Sites during the course of Contractor’s construction.

(vi) City will coordinate the Work to be performed by Contractor with its own operations and with any other construction project that is ongoing at or around the Sites, with the exception that Contractor will coordinate the interconnection Sites work, if any, which will be performed by the Utility.

(f) Appropriation. City warrants and represents that City has obtained complete funding to compensate Contractor for the Work before issuing a Notice to Proceed to commence Work.

3. TERM AND TERMINATION. The term of this Contract shall commence upon the Effective Date and shall expire upon Contractor’s completion of the Work and acceptance by the City, as described in Section 4.13. In addition, all of the covenants, representations and warranties set forth in the Contract Documents, including indemnification obligations, that are intended to bind the Parties after the completion of the Project or termination of the Contract Documents, will survive such completion or termination for the periods provided for in the Contract Documents or otherwise allowed by law. The City or Contractor may terminate the Contract Documents only as provided in the Contract Documents.

4. PRICE AND PAYMENT.

4.1 Contract Price. As full and complete compensation for Contractor’s obligations under the Contract Documents, City shall pay to Contractor in installments in accordance with the Progress Payment Milestones as specified in this Section 4, and Contractor shall accept as payment in full by City for the delivery of the Project and its other obligations under the Contract Documents, the Contract Price, except 22 as may only be adjusted by Change Orders in accordance with the provisions of this Contract . Except as otherwise provided herein, Contractor shall assume the risk of all costs in excess of the Contract Price in the performance the Work and to provide a fully completed and successfully operational Project, complete in every detail according to the provisions of the Contract Documents and shall not be entitled to additional payments because of such excess costs. Should Contractor believe that it is entitled t o additional compensation or time, it must request such compensation pursuant to the provisions governing Change Orders (Section 8) and/or provisions governing Claims (Section 7.6).

4.2 Retention. City shall retain an amount equal to 5% of each Progress Payment made for the Project.

4.3 Payment Schedule. The Progress Payment Milestones defined in this Section shall be used as the basis for preparation of progress invoices. Subject to Section 4.9 and except as provided in the Agreement, City shall pay to Contractor the applicable Progress Payment set forth in the Progress Payment Milestones when:

(a) Contractor has completed the Work associated with such payment in accordance with the Progress Payment Milestones;

(b) Following submittal of the supporting documentation required for the respective Progress Payment Milestones to the satisfaction of the City;

(d) Subject to Retention as provided in Section 4.2.

4.4 Application for Payment. Contractor shall submit to City an invoice (a “Payment Application”) in the standard form on file with City . Each monthly progress report shall be certified by Contractor as being true and correct as of the date of such Payment Application. Contractor warrants that title to all Work covered by a Payment Application will pass to the City no later than the time of payment.

4.5 Review of Progress Payment. City will, within seven (7) days after receipt of Contractor’s Payment Application, either approve such payment or notify Contractor in writing of City ’s reasons for withholding approval in whole or in part. The review of Contractor’s Payment Application by City is based on City’s observations at the Site and the data comprising the Payment Application whether the Work has progressed to the point indicated and whether, to the best of City’s knowledge, information, and belief, the quality of the Work is in accordance with the Contract Documents. City will pay Contractor the amount City approves pursuant to Section 4.7 within 30 days after the Payment Application was properly submitted.

4.6 Decisions to Withhold Payment. City may withhold payment, in whole, or in part, to such extent as may be reasonably necessary to protect the City from loss because of any acts or omissions by Contractor, including any rights to withhold mentioned in the Contract Documents.

4.7 Progress Payment Milestones. Progress Payments shall be made in accordance with California Public Contract Code section 20104.50. City shall pay the Contract Price to Contractor on percent completion basis in accordance with the Schedule of Values in Attachment 2 , and after Contractor has complied with the requirements of this Section 4.7 and the Contract Documents (each, a “ Progress Payment Milestone”):

(a) General Provision for Progress Payment Milestones.

(i) Progress Payments: As the Work progresses, Contractor will submit to City its Payment Applications based on the progress made on the Project through the date on which Contractor submits such application for payment. Only one Payment Application shall be submitted per calendar month. Each line item contained in the Schedule of Values will be assigned a value such that the total of all items equals the Contract Price, and Payment Applications will be in accordance with the Schedule of Values.

23 (ii) Mobilization and Equipment Deposits: Notwithstanding paragraph (i) above, a “Mobilization Payment” equal to five (5) percent of the Contract Price, and an “Equipment Deposits” equal to five (5) percent of the Contract Price, shall be paid by City to Contractor upon City ’s issuance of a Notice to Proceed. Such amounts shall be deducted from the ensuing Progress Payment made by City to Contractor such that all future Progress Payments shall correspond with Progress Completion Milestones.

(iii) Final Payment: Five (5) percent of the Contract Price upon filing of the project Notice of Completion, less any amounts properly withheld by City in accordance with the Contract Documents, until such time, if any, that such amount or amounts may be or are required to be released in accordance with the Contract Documents.

4.8 Payments and Information to Subcontractors . No later than seven (7) d ays after Contractor receives payment from City , pursuant to California Business and Professions Code section 7108.5, Contractor shall pay to each Subcontractor, out of the amount paid to Contractor on account of such Subcontractor's portion of the Work, the amount to which said Subcontractor is entitled under the parties ’ Subcontract and payment terms, reflecting percentages actually retained from payments to Contractor on account of such Subcontractor's portion of the Work. Contractor shall, by appropriate Subcontract with each Subcontractor, require each Subcontractor to make payments to sub- subcontractors in a similar manner.

City has no obligation to pay, or to see to the payment of, money to a Subcontractor except as may otherwise be required by Applicable Law.

4.9 Waivers and Releases. Within thirty (30) days after receipt of each progress payment and the Final Payment, Contractor shall provide (and shall cause its first-tier Suppliers and Subcontractors to provide) to City a conditional lien waiver and release (related to the Progress Payment as applicable) in a form substantially similar to the forms attached hereto as Attachment 6 (“Lien Release Forms”).

4.10 Progress Payment Terms . The obligation of the City to pay Progress Payments hereunder shall constitute a current expense of City and shall not in any way be construed to be a debt of the City in contravention of any applicable constitutional or statutory limitations or requirements concerning the creation of indebtedness by City, nor shall anything contained herein constitute a pledge of the general tax revenues, funds, or moneys of City.

4.11 Completion of Work. Upon receipt of the Contractor’s signed Final Completion Certificate, City will make an inspection to determine whether the Work, or designated portion thereof, is complete. If City’s inspection discloses any item which is not completed in accordance with the requirements of the Contract Documents, Contractor shall, before City ’s issuance of the Notice of Completion and Final Payment, diligently complete or correct such item.

4.12 Partial Occupancy or Use. To the extent reasonably practicable based on the particular portion of the scope of Work, City may occupy or use any completed or partially completed portion of the Work at any stage without accepting that Work and without waiving rights to claim damages as to that Work (to the extent expressly permitted herein). City and Contractor shall agree in writing to the responsibilities assigned to each of them for payments, security, maintenance, heat, utilities, damage to the Work, insurance, the period for correction of the Work, and the commencement of warranties required by the Contract Documents.

4.13 Acceptance, Final Completion Certificate and Final Payment. If City’s representatives find the Work fully performed under the Contract Documents, they shall so notify Contractor, who shall then submit to City its final Application for Payment. After City’s representatives find the Work fully performed, City’s governing body should accept the Work as fully complete. After completion, City shall record a Final Completion Certificate with the County Recorder in accordance with California Civil Code sectio n 3093.

Contractor shall, upon receipt of Final Payment from City , pay the amounts due Subcontractors. City shall pay the retainage pursuant to California Public Contract Code section 7107. Any application for Final Payment shall be accompanied by the same details required for regular progress payments. Acceptance of the Final Payment shall constitute a waiver and release of any lien, stop payment notice, and payment bond rights any claimant may have for labor and service provided, and equipment and material delivered, 24 to City for the Project , except for those previously identified in writing and identified by that payee as unsettled at the time of final payment.

4.14 Taxes. Contractor will pay all applicable Federal, State, and local taxes on all materials, labor, or services furnished by it, and all taxes arising out of its operations under the Contract Documents.

4.15 Limitations on Compensation. The “Contract Price” includes the total, not to exceed guaranteed maximum compensation that will be paid to Contractor in connection with the Work and Project called for by this Contract, including: (a) all costs for all labor, materials, work or equipment needed to deliver a “turnkey” Project in compliance with the Contract Documents; and (b) any and all construction management fees, overhead, administrative charges, profit, or compensation of any other kind or nature to be paid Contractor in consideration for the Work.

5. COMMENCEMENT AND SCHEDULE

5.1 Project Schedule. Time is of the essence in this Contract (subject to any notice requirements and cure periods set forth herein), and, subject to the terms of the Contract Documents, the date for Substantial Completion of the Project shall be the Completion Date set forth i n the Project Schedule in Attachment 2, and Contractor shall develop, design, install and commission the Project and perform all Work hereunder in accordance with the Project Schedule.

5.2 Project Phases and Notice to Proceed. The Effective Date shall not be postponed by the failure to act of Contractor or of persons or entities for which Contractor is responsible. The Work on the Project shall be performed in accordance with the following phased approach:

(a) Final Design Phase. Contractor shall prepare and deliver all Engineering Documents to City for review and approval, which approval shall not be unreasonably withheld. City shall diligently review and respond to each submission by Contractor within twenty (20) days. Contractor shall incorporate City’s comments and requested changes unless Contractor can demonstrate that such requested changes would materially impact the Contract Price, the Project Schedule, or any other material requirement of the Contract Documents in which case Contractor shall submit a Change Order. Upon resolution of the provision hereinabove set forth, Contractor shall complete and submit revised Engineering Documents as early as is practical but in all cases within 20 days.

(b) Governmental Approval Phase. Upon City’s written approval of Engineering Documents, Contractor shall seek all such approvals of all required Engineering Documents and the Project as may be required by any Governmental Authority. Contractor shall exercise all reasonable diligence to ensure that all necessary Governmental Approvals are received by the date specified in the Project Schedule. City shall not unreasonably withhold its consent to any modifications to the Engineering Documents that may be requested by any Governmental Authority or quasi- governmental agency with jurisdiction over the Project or the Work, excepting any changes that materially affect the Contract Price, the Savings Guarantee , the Target Annual Energy Production, or that materially affect the siting of the Project and its impact on City ’s operations. The Engineering Documents with all changes as necessitated by any Governmental Authority and as approved by City shall constitute the 100% Engineering Documents and serve as the basis for construction. The receipt and approval of the one hundred percent (100%) Engineering Documents and copies of all Governmental Approvals by the City shall constitute the completion of the Governmental Approval Phase.

(c) Construction Phase. Following completion of the Governmental Approval Phase, Contractor shall facilitate, or cooperate with City in its efforts to facilitate, a kick -off meeting with City , Contractor, Subcontractors, and any other third -parties deemed necessary by the Parties. Following the kick -off meeting, Contractor shall commence the construction of the Project in accordance with the one hundred percent (100%) Engineering Documents and all other Contract Documents.

(d) Substantial Completion. When Contractor believes it has achieved Substantial Completion, Contractor shall notify City of the same and the City shall expeditiously work to inspect and confirm. Within 25 ten (10) business days after Contractor’s submission City shall either (i) acknowledge and agree in a writing delivered to Contractor that the Project has been satisfactorily completed, or (ii) advise Contractor by written notice that Substantial Completion has not been achieved and identify any missing items or defects or deficiencies in the Work for which Contractor is responsible or any other reason why the requirements of Substantial Completion have not been met. Substantial Completion shall be achieved when, and completion of the Construction Phase requires that:

(1) The Project has been built in conformance with the terms and conditions of the Contract Documents, and with the requirements of the Utility if applicable;

(2) The Project complies with all applicable Legal Requirements and has passed all required inspections by any applicable Governmental Authority and all applicable Governmental Approvals have been received and copies thereof have been delivered to City;

(3) If applicable, submission of a written request to schedule the Utility permission to operate inspection and a copy thereof provided to City.

(4) Contractor shall have delivered a true, correct, and complete certification of Substantial Completion signed by Contractor.

(e) Commissioning Phase. During the construction phase of the work on the Project and before the Completion Date, Contractor shall conduct all commissioning tests in accordance with the Contractor’s Testing and Commissioning Plan which shall include but is not limited to start up and operational tests.

Contractor shall provide notice to City of any scheduled test(s) of installed equipment or the System, and City or its designees shall be present, at their option (and should City not attend, waive their rights to the same), at any or all such tests conducted by Contractor, any Subcontractor, or manufacturers of the Equipment. Contractor shall be responsible for correcting or adjusting all deficiencies in the System, Work and Equipment operations that Contractor provided and installed that may be observed during Equipment commissioning procedures. Completion of the commissioning phase requires that:

(1) If applicable, all requirements of Utility for testing and interconnection of the renewable energy generation systems installed as part of the System have been satisfied, the System is fully interconnected and operating normally to produce electricity and Contractor has obtained written permission to operate from Utility for each Site;

(2) The start up and operational tests and all other related tests have been completed to the City’s satisfaction and the results provided to the City;

(3) All Work has been completed other than the Work solely required for Final Completion (including the Work set forth in the Punchlist);

(f) Final Completion. When Contractor believes it has achieved Final Completion, Contractor shall deliver to City the written Final Completion Certificate which shall certify the Final Completion Date and the Contractors achievement of Final Completion. Within ten (10) business days after Contractor’s submission or City’s independent receipt of all items required for Final Completion, City shall deliver such certificate to Contractor, acknowledged and agreed by City , and confirming the Final Completion Date (the “Fi nal Completion Certificate”). The Project may only be accepted as complete by action of the City . Final Completion requires that:

(1) Contractor has received all local, state and federal Governmental Approvals and other approvals as may be required by Applicable Law for the operation and maintenance of the Project, including approvals, if any, required under the CEQA for the Project;

(2) The Project has completed 30 days of continuous operation and is able to conserve, produce and deliver energy to City achieve the Target Annual Energy Production and Savings Guarantee pursuant to the terms of this Contract;
26 (3) City has received from Contractor the final m anuals for all Equipment and the System (electronic and hardcopy format) including two (2) sets of full size as-built drawings approved and stamped by the engineer of record (as built drawings shall also be provided to City in PDF and native file format);

(4) Contractor has provided all training to the City in the operation, emergency shut -down procedures, and recommended operation and maintenance of the System and has provided City with two (2) sets of keys to all locks, equipment, and boxes that are part of the System;

(5) All Contractor’s materials and wastes have been removed from the Site and properly disposed;

(6) All Punchlist Work with respect to the Project and the Site has been completed to the City’s reasonable satisfaction;

(7) A final walkthrough of the Project and Sites has been conducted with Contractor and City to determine completion of the terms of the Contract; and

(8) Contractor shall have delivered a true, correct, and complete Final Completion Certificate signed by Contractor.

5.3 Hours of Work

(a) Sufficient Forces. Contractors and Subcontractors shall furnish sufficient forces to ensure the prosecution of the Work in accordance with the Project Schedule.

(b) Performance During Work Hours. Work shall be performed during regular working hours except that in the event of an emergency or when required to complete the Work in accordance with job progress, Work may be performed outside of regular working hours with the advance written consent of the City.

Subject to City’s advance written approval, Work may also be performed outside of regular working hours to minimize disruption to City operations.

5.4 Progress and Completion. Time limits stated in the Contract Documents are of the essence of the Contract. By executing the Contract, Contractor confirms that the Project Schedule is a reasonable period for performing the Work. Contractor shall not knowingly, except by agreement or instruction of City , in writing, commence operations on the Site or elsewhere prior to the effective date of insurance required by this Contract to be furnished by Contractor. The date of commencement of the Work shall not be changed by the effective date of such insurance. Contractor shall proceed expeditiously with adequate forces and shall achieve Completion within the Project Schedule, subject to any extension rights set forth in this Contract. Upon request, Contractor shall submit its daily logs for the monthly period with the updated schedule. Float is not for the exclusive use or benefit of either Party but it is a jointly owned expiring Project resource available to both Parties as needed to meet the Project Schedule.

5.5 Progress Meetings. Unless otherwise stated in the Contract Documents and subject to change by City, the Parties shall meet at least biweekly during performance of Work to, among other things, review Work performed to date and to be performed. Contractor shall organize the meeting, prepare, and distribute meeting minutes. Meeting minutes shall be taken in satisfactory written form and include a three (3) week look-ahead schedule, Request for Information log, and Change Order log, as applicable. Meeting minutes shall be updated during the meeting and distributed within three (3) Business Days of the meeting and City shall have 5 business days after City ’s receipt of such minutes to object to them in writing and provide corrections in writing. A quorum of meeting attendees will be named at the first meeting. The named quorum shall be in attendance in all Project meetings.

5.6 Conformity with Project Schedule. Contractor shall prosecute the Work, and shall cause each Subcontractor to prosecute the Work, so that the portion of the Work completed at any point in time shall be not less than as is required by the Project Schedule (subject to any extension rights set forth in this 27 Contract). If the rate of progress is such that the total amount of Work and/or the degree of completion of the Work accomplished by Contractor within any time period required by the Project Schedule and/or the Contract Documents is less than the amount therein specified to be completed within such time, and it reasonably appears that Contractor will be unable to complete the Work by the Completion Date, Contractor shall so notify City within ten (10) Days of Contractor’s knowledge of the delay, or City may notify Contractor of the same. Contractor shall, within ten (10) Business Days of Contractor’s knowledge of such delay or receipt of any such notice from City, submit a Recovery Plan to City allowing for completion of the Work on the Project by the Completion Date. If City directs Contractor in writing to implement the Recovery Plan, then Contractor shall do so within ten (10) Business Days or such request. If City, acting reasonably, does not agree that Contractor has demonstrated in the proposed Recovery Plan its ability to recapture lost time, meet interim milestones and complete the relevant portion of the Work by the applicable scheduled date or deadline, and the reasons therefor are not an Excusable Delay as outlined in this Contract, City may, without prejudice to any other right or remedies it may have, take one or more of the following actions: (a) require Contractor to employ such extraordinary measures as are necessary to bring the Work into conformity with the Project Schedule, including, without limitation, requiring Contractor to increase its work force, work overtime, and/or extra shifts (at Contractor’s sole cost and expense); and/or (b) withhold Progress Payments or portions thereof until such time as the Work is in conformity with the Project Schedule. If the cause for Contractor’s inability to meet the Completion Date are as a result of an Excusable Delay , then the terms of Section 5.7 shall dictate.

5.7 Extensions of Time – Liquidated Damages

(a) Extensions of Time. Unless otherwise agreed in writing, an adjustment to the Project Schedule by reason of a Change Order shall be agreed to at the time the Change Order is issued and accepted by Contractor. If the Change Order does not reserve the right of the parties, or either of them, to seek an adjustment to the Project Schedule, then the parties forever relinquish and waive such right and there shall be no further adjustments to the Project Schedule. In the event it is deemed appropriate by the City to extend the time for completion of the Work, any such extension shall not release any guarantee for the Project, nor shall any such extension of time relieve or release the Sureties on the Bonds executed. In executing such Bonds, the Sureties shall be deemed to have expressly agreed to any such extensions of time. The amount of time allowed by an extension of time shall be limited to the period of the delay giving rise to the same as determined by the City. Notwithstanding any dispute which may arise in connection with a claim for adjustment of the Contract time, the Contractor shall promptly proceed with the Work.

(b) Payment for Delays . Notwithstanding any other terms and conditions of the Contract Documents, the City shall have no obligation whatsoever to increase the Contract Price or extend the time for delays. Unless compensation and/or markup is agreed upon by the City, the Contractor agrees that no payment of compensation of any kind shall be made to the Contractor for damages or increased overhead costs caused by any delays in the progress of the Contract, whether such delays are avoidable or unavoidable or caused by any act or omission of the City or its agents. Any accepted delay claim shall be fully compensated for by an extension of time to complete the performance of the Work. This Section shall not apply to compensable delays caused solely by the City. If a compensable delay is caused solely by the City, the Contractor may be entitled to a Change Order that:(1) extends the time for completion of the Contract by the amount of delay caused by the City; and (2) provides equitable adjustment, as determined by the City, to the Contractor.

(c) Notice by Contractor Required. Contractor shall within 10 days of knowledge of any delay notify City in writing thereof. The Parties will then meet and confer in good faith to determine the reasonableness of Contractor’s claimed delay , the facts and extent thereof , and whether any extension of time for completing the Work is reasonably appropriate. Extensions of time shall apply only to that portion of the Work affected by the delay and shall not apply to other portions of the Work not so affected.

(d) Early Completion. If Contractor submits a revised schedule showing an earlier completion date for the Project, City’s acceptance of this revised schedule shall not entitle Contractor to any additional compensation or Claim due to any such revised schedule (nor shall it subject Contractor to Liquidated Damages based on such earlier completion date). Regardless of the cause therefore, the Contractor may 28 not maintain any Claim or cause of action against City for damages incurred as a result of its failure or inability to complete the Work or the Project in a shorter period than established in the Contract Documents.

(e) Liquidated Damages. Subject to the limitation of liability specified below, if Contractor fails to cause Substantial Completion to occur on or prior to the Completion Date, as may be extended in accordance with the terms of this Contract , Contractor shall pay City as its sole and exclusive remedy therefor, as liquidated damages and not as a penalty, in an amount equal to the liquidated damages specified in this subsection (e) (the “Liquidated Damages”). The actual occurrence of damages and the actual amount of the damages which the City would suffer if the Work were not completed within the specified times set forth are dependent upon many circumstances and conditions which could prevail in various combinations, and it is impracticable and extremely difficult to fix the actual damages. Damages that City would suffer in the event of delay include, but are not limited to, loss of the use of the Project and each individual Site, and the energy savings afforded by the Project and each individual Site, disruption of activities, costs of administration, supervision and the loss suffered by the public. Accordingly, the Parties agree that an amount not to exceed $500 for each day by which the Work, or portion thereof, is delayed beyond the Completion Date shall be the amount of damages which the City shall directly incur upon failure of the Contractor to cause Substantial Completion of the entire Project to occur on or prior to the Completion Date (the “LD Rate”). If Contractor becomes liable under this Section, City, in addition to all other remedies provided by law, shall have the right to withhold any and all retained percentages of payments, and to collect the interest thereon, which would otherwise be or become due the Contractor until the liability of the Contractor under this Section has been finally determined. If the retained percentage is not sufficient to discharge all liabilities of Contractor incurred under this Section, Contractor and its sureties shall continue to remain liable to City for such liabilities until all such liabilities are satisfied in full. If City accepts any Work or makes any Progress Payment under this Contract after a default by reason of delays, the payment or payments shall not constitute a waiver or modification of any Contract provisions regarding time of completion and Liquidated Damages.

5.9 Delays Due to Project Site Activities. City shall not be liable for any damages or compensation to Contractor resulting from, arising out of, or related to any delays caused by scheduled activities at Sites where Contractor was notified in writing of such scheduled activities prior to signing this Contract, including City’s construction projects and other events which would require access to Site(s). Where City did not inform Contractor in writing of such scheduled activities, or required activities arise during the Project that were not scheduled prior to Contract signing and that impact the Project Schedule, Contractor shall be entitled to reasonable additional time for the Project Schedule and an adjustment to Contract Price in accordance with a Change Order. If any part of Contractor’s Work depends on proper execution or results upon work of any other contractor (“Other Contractor Work”), the Contractor shall inspect and promptly report to City in writing any defects in such work that render it unsuitable for such proper execution and results.

(a) Contractor will be held liable for damages to City for that Other Contractor Work (as defined above and as used in this section only) which it failed to inspect or should have inspected. Contractor’s failure to inspect and report shall constitute its acceptance of Other Contractor Work as fit and proper for reception of its work, except as to defects which may develop in other contractors’ work after execution of Contractor’s work. To ensure proper execution of its subsequent work, Contractor shall measure and inspect Other Contractor Work already in place and shall at once report to the City in writing any discrepancy between completed Other Contractor Work and Contract Documents.

(b) It is the obligation of Contractor to ascertain to its own satisfaction the scope of the Project and nature of any other contracts that have been or may be awarded by City in prosecution of the Project, if any.

(c) Nothing herein contained shall be interpreted as granting to Contractor exclusive occupancy of the Project. Contractor shall not cause any unnecessary hindrance or delay to any other contractor working on the Project. If simultaneous execution of any contract for the Project is likely to cause interference with performance of some other contract or contracts, City shall decide which contractor shall cease work temporarily and which contractor shall continue or whether work can be coordinated so that 29 contractors may proceed simultaneously. If City directs Contractor to cease Work temporarily for more than 48 hours due to the work of another contractor, Contractor may request a Change Order upon documentation of actual, reasonable costs incurred by virtue of the delay.

(d) If the Project is split into phases and/or separate contracts, then Contractor has made allowances for any delays or damages which may arise from coordination with contractors for other phases or contracts. If any delays should arise from a contractor working on a different phase or contract, Contractor’s sole remedy for damages, including delay damages, shall be against the contractor who caused such damage and not the City . Contractor shall provide access to contractors for other phases or contracts as necessary to prevent delays and damages to contractors working on other phases or contracts.

6. REPRESENTATIONS AND WARRANTIES. The Parties represent and warrant (to the extent set forth below) that:

(a) Contractor represents that it is duly organized, validly existing and in good standing as a contractor and licensed contractor under the laws of the State of California;

(b) Each Party represents that it has full power, authority and legal right to enter into and perform its obligations under this Contract, and the execution, delivery and performance of this Contract have been duly authorized by all necessary corporate actions on the part of Contractor, and all governmental actions on the part of City, and do not require any further approvals or consents;

(c) Each Party represents that the execution, delivery, and performance of this Contract does not and will not result in any breach of or constitute a default under any indenture, mortgage, contract, agreement, or instrument to which it is a party by which it or its property is bound;

(d) Each Party represents that there is no pending or, to its knowledge, threatened action, or proceeding before any court or administrative agency that will materially adversely affect its ability to perform its obligations under this Contract.

(e) Should a change in law occur subsequent to the date of execution of the Contract that increases Contractor’s costs, the parties shall, to the extent allowed by law, negotiate an equitable resolution.

7. BREACH AND TERMINATION

7.1 Termination by the City for Cause.

(a) Contractor agrees that City shall be entitled to terminate this Contract upon the occurrence of any of the following circumstances, each of which shall constitute an event of default hereunder (each, a “Contractor Event of Default”):

(i) Contractor refuses or fails to supply personnel or materials in accordance with this Contract;

(ii) Contractor fails to make payment to Subcontractors for materials or labor in accordance with California Public Contract Code section 10262 or California Business and Professions Code section 7108.5, as applicable;

(iii) Contractor disregards Applicable laws, ordinances, rules, regulations, or orders of a Governmental Authority; or

(iv) Contractor otherwise is in substantial and material breach of a provision of the Contract Documents.

30 (b) City’s authority to terminate this Contract for cause shall be contingent upon providing written notice to Contractor of the Contractor Event of Default. Where the Contractor Event of Default can be cured, Contractor shall take action and cure the Contractor Event of Default within thirty (30) Days after the date of City’s written notice. In the event the Contractor Event of Default cannot be cured within thirty (30) Days, Contractor shall provide written notice to City of the requirement of a longer cure period with a timeline for cure and shall commence within thirty (30) Days actions necessary to cure the Contractor Event of Default and diligently and timely proceed to complete the cure.

(c) When any Contractor Event of Default exists and Contractor fails to cure the same pursuant to the procedure set forth above, the City may, without prejudice to any other rights or remedies of the City and after giving the Contractor and the Contractor’s surety, if any, written notice of seven (7) days, terminate the Contract and may, subject to any prior rights of the surety, ( i) take possession of the Site and of all material or Equipment thereon owned by the Contractor, ( ii) accept assignment of contracts with Subcontractors, and (iii) complete the Work by whatever reasonable method the City may deem expedient.

(d) In the event of termination for cause, if the unpaid balance of the Contract Price exceeds the reasonable, actual and direct costs of completing the Work, including compensation for professional services and expenses made necessary thereby, such excess shall be paid to the Contractor. If such costs exceed the unpaid balance, the Contractor shall pay the difference to City. This payment obligation shall survive completion of the Project and termination or expiration of this Contract .

7.2 Suspension or Termination by the City for Convenience.

(a) The City may, without cause, order the Contractor in writing to suspend, delay, or interrupt the Work in whole or in part for such period of time as the City may determine. Contractor shall be entitled to an extension of time and an adjustment shall be made for increases in the cost of performance of the Contract. No adjustment shall be made to the extent: (i) performance is, was, or would have been so suspended, delayed, or interrupted by another cause for which the Contractor is responsible; or (ii) that an equitable adjustment is made or denied under another provision of this Contract. Adjustments made in the cost of performance shall have a mutually agreed fixed fee. If City suspends, delays or interrupts the Work for 60 or more consecutive days, Contractor may terminate this Contract.

(b) Prior to City’s issuance of a Notice to Proceed (which is conditional upon City’s approving and obtaining financing for the Project), City may terminate this Contract, in whole or in part and without payment, consideration, or liability to Contractor of any kind under this Contract ; provided, however, that any Compensation payable by C ity under Section 4.4 of the Preconstruction Agreement is expressly excluded from this provision, and nothing in this Agreement shall relieve City’s obligation to provide payment pursuant to the terms of the Preconstruction Agreement.

7.3 Termination by the Contractor. Contractor may not terminate for convenience. Contractor may only terminate for cause if: (A) City fails to make payment when due and such failure is not made within 30 days of City’s receipt of written notice from Contractor specifying same; (B) the Work is stopped by others for a period of 90 consecutive days through no act or fault of Contractor, a Subcontractor of any tier, their agents or employees, or any other persons performing portions of the Work for whom Contractor is contractually responsible, and the Work was stopped by others for one of the following reasons: (i) issuance of an order of a court or other public authority having jurisdiction which requires City to stop all Work; or (ii) an act of government, such as a declaration of national emergency, making material unavailable which requires City to stop all Work; or (iii) City is in material breach of a provision of the Contract Documents and such breach is not cured within 30 days of City’s receipt of written notice from Contractor specifying same, however, in the event such City event of default cannot be cured within 30 days, City shall provide written notice to Contractor of the requirement of a longer cure period with a timeline for cure and shall commence actions necessary to cure City event of default within 30 days and diligently and timely proceed to complete the cure. If such grounds for termination by Contractor exist, Contractor may serve written notice of such belief on City and demand a meet -and-confer conference to negotiate a resolution in good faith within 7 days of receipt of such notice. If such conference does not lead to resolution, or does not occur within 7 days of Contractor’s notice, and Contractor believes the grounds for termination still exist, Contractor may 31 terminate this Contract and recover from City : (1) compensation for Work wholly or partially executed; (2) actual, direct out -of-pocket losses incurred by reason of such termination; (3) any payment or delivery required to have been made on or before the date of termination and not made, including interest on any sums due; and (4) costs and expenses reasonably incurred in exercising the foregoing remedies, if any .

7.4 Not a Waiver Any suspension or termination under this Section 7 shall not act as a waiver of any claims by City against Contractor (or vice versa) or others for damages based on breach of contract, negligence or other grounds.

7.5 Indemnification. In addition to the Parties’ indemnification obligations set forth in Section 11, the Parties agree as follows:

(a) Subject to the exclusions set forth in this Contract , to the extent applicable to the Sites, Contractor shall make all necessary efforts to ensure the finished Project complies with all applicable standards imposed by the Americans with Disabilities Act, section 504 of the Rehabilitation Act of 1973, disability access requirements of the State Building Code and any other laws applicable to disability access.

If a court, administrative agency or other trier of fact later determines that Contractor has violated any of the above-referenced laws, Contractor shall remedy the violation at its own cost. Contractor shall indemnify, defend and hold the City harmless pursuant to this Section of this Contract against claims brought by a party other than the City due to any breach of these provisions to the extent due to Contractor’s negligence, recklessness or willful misconduct. In the event that either Party is or becomes aware of possible non- compliance with the foregoing standards, such Party shall have a duty to promptly notify the other Party in writing of the possible non-compliance.

(b) Contractor represents and warrants that Contractor has the legal right to license any and all copyrights, designs and other intellectual property embodied in plans, Specifications, studies, Drawings, estimates or other documents that Contractor or its Subcontractors or Consultants prepares or causes to be prepared pursuant to this Contract . Contractor shall indemnify, defend and hold the City harmless against third-party claims brought by a party other than the City pursuant to this Section to the extent due to any breach of this representation due to Contractor’s negligence, recklessness or willfu l misconduct.

7.6 Claims and Dispute Resolution.

(a) A claim is a demand or assertion by Contractor seeking, as a matter of right, adjustment, or interpretation of contract terms, payment of money, extension of time, or other relief with respect to the terms of this Contract (a “Claim”). In the event of any Claim, dispute or controversy with the City over any matter whatsoever, the Contractor shall not cause any delay or cessation in or of Work, but shall proceed with the performance of the Work in dispute. Contractor shall retain any and all rights provided that pertains to the resolution of disputes and protests between the parties. The disputed Work will be categorized as an “unresolved dispute” and payment, if any, shall be as later determined by mutual agreement or a court of law. The Contractor shall keep accurate, detailed records of all Disputed Work, claims and other disputed matters.

(b) All Claims arising out of or related or arising from this Project, and the consideration and payment of such Claims, are subject to the Government Claims Act (Government Code Section 810 et seq.) with regard to filing claims, and to Public Contract Code Section 20104 et seq. (Article 1.5) regarding the resolution of public works claims of three hundred seventy-five thousand dollars ($375,000) or less. All such Claims are also subject to the dispute procedures set forth in Public Contract Code Section 9204 and Public Contract Code Section 20104, et seq. (Article 1.5), to the extent each is applicable. This Contract hereby incorporates those provisions as through fully set forth herein. Thus, Contractor or any Subcontractor must file a claim in accordance with the Government Claims Act as a prerequisite to filing a construction claim in compliance with Section 9204 and Section 20104 et seq. (if applicable), and must then adhere to Section 20104, et seq. and Section 9204, as applicable, pursuant to the definition of “claim” as individually defined therein.

(c) Claims for Concealed or Unknown Conditions
32 (i) Trenches or Excavations Less Than Four Feet Below the Surface. If Contractor encounters conditions at the Site which are subsurface or otherwise concealed physical conditions, which differ materially from those indicated in the Contract Documents, or unknown physical conditions of an unusual nature, which differ materially from those ordinarily found to exist and generally recognized as inherent in construction activities of the character provided for in the Contract Documents, then notice by Contractor shall be given to City promptly before conditions are disturbed and in no event later than ten (10) days after first observance of the conditions. City will promptly investigate such conditions, and if they differ materially and cause an increase or decrease in Contractor’s cost of, time required for, or performance of any part of the Work, will recommend an equitable adjustment in the Contract Price, Project Schedule, or both. If City determines that the conditions at the Site are not materially different from those indicated in the Contract Documents and that no change in the terms of this Contract is justified, City shall so notify the Contractor in writing, stating the reasons. In the event a dispute arises between City and Contractor regarding whether the conditions materially differ, or cause a decrease or increase in the Contractor’s cost of, or time required for, performance of any part of the Work, Contractor shall not be excused from any scheduled completion date provided for by the Contract Documents, but shall proceed with all the work to be performed under the Contract Documents. Contractor shall retain any and all rights provided either by contract or by law which pertain to the resolution of disputes and protests between the contracting parties.

(ii) Trenches or Excavations Greater Than Four Feet Below the Surface. Pursuant to California Public Contract Code section 7104, when any excavation or trenching extends greater than four feet below the surface:

(1) Contractor shall promptly, and before the following conditions are disturbed, notify the public entity, in writing, of any:

(A) Material that the Contractor believes may be material that is hazardous waste, as defined in Section 25117 of the California Health and Safety Code, which is required to be removed to a Class I, Class II, or Class III disposal site in accordance with the provisions of existing law.

(B) Subsurface or latent physical conditions at the Site differing from those indicated by information about the Site made available to Contractor prior to the Effective Date.

(C) Unknown physical conditions at the Site of any unusual nature, different materially from those ordinarily encountered and generally recognized as inherent in work of the character provided for in this Contract.

(2) City shall promptly investigate the conditions, and if it finds that the conditions do materially so differ, or do involve hazardous waste, and cause a decrease or increase in the Contractor’s cost of, or the time required for, performance of any part of the Work, City shall issue a Change Order under the procedures described in this Contract.

(3) In the event that a dispute arises between City and Contractor related to Contractor’s cost of, or time required for, performance of any part of the work, Contractor shall not be excused from any scheduled completion date provided for by the Contract but shall proceed with all Work.

Contractor shall retain any and all rights provided either by Contract or by law which pertain to the resolution of disputes and protests between the contracting parties.

7.7 Reserved.

8. Changes and Extra Work

(a) Based upon the services Contractor will have provided in designing the Project, and Contractor’s duties and responsibilities regarding the engineering and design of the Project, Contractor and City intend and expect that Contractor will not submit any Change Order requests during the construction of the Project based upon alleged errors or omissions in the Engineering Documents prepared by 33 Contractor for the Project. Rather, the Parties intend and expect that Change Order requests will only be submitted for City-requested changes in the Work of the Project, or for changes in the work of the Project due to Excusable Events, all in accordance with this Contract and the Contract Documents of the Project.

When possible, under the circumstances, Contractor will make reasonable efforts to mitigate any schedule or cost impact arising from an Excusable Event.

(b) Notwithstanding any other provision of this Contract or the Contract Documents, in the event a Change Order is caused by, or necessitated as a result of wrongful acts or omissions on the part of Contractor, or as a result of any errors or omissions in the Engineering Documents for the Project – excluding those prepared and provided by City and/or City’s Consultants, or City otherwise incurs costs or damages as a result of wrongful acts or omissions on the part of Contractor, or as a result of any Contractor errors or omissions in the plans, specifications, Drawings, or designs for the Project, City shall issue a written notice to Contractor identifying the errors, omissions, wrongful act(s) and resulting costs or damages claimed and provide Contractor with ten (10) days to cure and/or respond to the notice. If the Contractor fails to take action to cure the basis for the notice within the ten (10) day period, Contractor shall be responsible for the cost of the following:

(i) The direct costs of all engineering, design, labor, and materials necessary to fully correct the wrongful acts or omissions on the part of Contractor, or the error or omission in the Engineering Documents for the Project;

(ii) Any other direct costs or damages which the City incurs as a result of wrongful acts or omissions on the part of Contractor, or of errors or omissions in the Engineering Documents for the Project; and

(iii) The reasonable costs of any third- party engineer, contractor or consultant that City , in City’s sole reasonable discretion, must retain or consult with to ensure the proper rectification of wrongful acts or omissions on the part of Contractor, or of errors or omissions in the Engineering Documents for the Project.

(iv) City may backcharge, and withhold payment from, Contractor for these costs and damages outlined above, and may seek reimbursement for any amount which exceeds any retention of the Contract Price at the time of collection. When City so backcharges and withholds, upon Contractor’s request , City’s and Contractor’s senior project representatives shall meet and confer in good faith in an effort to reach agreement on (a) whether a wrongful act or omission occurred or whether there was an error or omission in the Engineering Documents for the Project, (b) whether it caused the Change Order expense, (c) what damages have been incurred by City, and (d) what portion of the damages are attributable to Contractor as described above. If Contractor’s and City ’s project representatives fail to meet, or if they are unable to resolve the dispute, senior executives for Contractor and for City, neither of whom have had day -to-day management responsibilities for the Project, will meet, within thirty (30) calendar days after noti ce of the dispute, in an attempt to resolve the dispute and any other identified disputes or any unresolved issues. If City and Contractor do not reach agreement when meeting and conferring, then either City or Contractor can pursue Claims pursuant to Section 7.6, above.

(c) City reserves the right to request Contractor make such alterations, deviations, additions to, or deletions from the Engineering Documents, as may be deemed by the City to be necessary or advisable for the proper completion or construction of the Work contemplated. There shall be no change whatsoever in the Engineering Documents, or in the Work without an executed Change Order or Supplemental Instruction by the City for a change in the Work as herein provided. City shall not be liable for the cost of any extra work or any substitutions, changes, additions, omissions, or deviations from the Engineering Documents, and Contractor shall not be required to perform such work, unless the same shall have been authorized by and the cost thereof approved in writing by Change Order. No extension of time for performance of the Work shall be allowed hereunder unless adjusted in writing in the Change Order.

(d) All Requests for Information should be substantially on the City’s standard form and shall, to the extent reasonably necessary, reference all the applicable Contract Documents including specification 34 section, detail, page numbers, drawing numbers, and sheet numbers, etc. Contractor shall make suggestions and/or interpretations of the issue raised by the RFI. An RFI cannot modify the Contract Price, Project Schedule, or the Contract Documents. Prior to issuing an RFI Contractor, Subcontractor, material suppliers and the like shall thoroughly review the Contract Documents and refer to all reference standards for the information sought. City and Contractor agree that an adequate time period for City to respond to an RFI is generally fourteen (14) days after City’s receipt of a non-priority RFI, or seven (7) days after City’s receipt of a priority RFI, unless City and Contractor agree otherwise in writing. However, in all cases, City shall take such time, whether more or less than fourteen ( 14) or seven ( 7) days, as applicable, as is necessary in the professional judgment of City and City’s representatives to permit adequate review and evaluation of the RFI. Contractor shall make efforts to coordinate the wor k in a timely fashion, so as to alleviate priority RFIs. If the RFI is considered a priority, Contractor shall state the word “Priority” on the document, and Contractor shall provide weekly RFI Priority Schedules.

(e) The “ RFI Priority Schedule ” shall be prepared and include a listing of pending requests, including the most current request, and rank the RFIs in order of priority. City shall endeavor to respect Contractor’s requested order of priorities and requested response dates. If the RFI response alters the Contract Price and/or Project Schedule, a Change Order shall be issued for the changed condition(s).

(f) City will have authority to order minor changes in the Work provided that there is: (i) no adjustment in the Contract Price, (ii) no extension of the Project Schedule, or (iii) any other change which is inconsistent with the intent of the Contract Documents. Such changes shall be effected by written Change Order and shall be binding once fully executed by City and Contractor. Contractor shall carry out such written orders promptly. To request a Change Order, City or Contractor shall prepare and submit a draft Change Order in the City’s standard form for review by the other Party.

(g) Each Change Order request, whether proposed by Contractor or City , shall include: (i) a detailed statement of the reason for and a description of the change; (ii) the estimated price of the proposed change, including the proposed change in the Contract Price and any costs or savings for carrying out the change including an itemized cost breakdown of labor and material showing actual quantities, hours, unit prices or wage rates required for the change; (ii) the projected effect of such proposed change on the Project Schedule including the relevant scheduled completion dates and deadlines; (iii) the projected effect of such proposed change on Contractor’s ability to comply with any of its obligations hereunder, including the Warranties, Savings Guarantee; and (iv) shall be accompanied by supporting documentation necessary to evidence the costs or savings and schedule adjustments requested therein.

(h) When Contractor is requesting a Change Order, notice thereof must be provided to City within fourteen (14) days after Contractor’s knowledge of the occurrence of the event giving rise to the claim. This notice shall be given by Contractor before proceeding to execute the Work, except in an emergency endangering life or property. No notice shall be considered u nless made in accordance with this Section; however, the mere presentation of such claim shall not establish the validity of the cause giving rise to such claim, or of the extension of the Project Schedule, and/or the increase in the Contract Price. Any change in the Contract Price or extension of the Project Schedule resulting from such claim shall be authorized by a Change Order.

(i) Within twenty -one (21) days after receipt of a Change Order request from Contractor or City, the receiving Party shall either (i) accept such Change Order request by execution thereof and deliver an executed copy to the initiating Party or (ii) reject such Change Order request and provide appropriate written explanation of the reasons therefor (which may include a request for additional information, documentation or cost detail).

(j) The amount of the increase or decrease in the Contract Price resulting from a Change Order, if any, shall be determined in one or more of the following ways as applicable to a specific situation: (A) mutual acceptance of a lump sum properly itemized and supported by sufficient substantiating data to permit evaluation; (B) unit prices stated in Contractor’s original bid, the Contract Documents, or subsequently agreed upon between City and Contractor; (C) cost to be determined in a manner agreed upon by the Parties and a mutually acceptable fixed or percentage fee; or (D) by cost of material and labor 35 and percentage of overhead and profit in accordance with the compensation provisions of this Contract. It is expressly understood that the value of such extra work or changes, as determined by any of the aforementioned methods, expressly includes any and all of Contractor's costs and expenses, both direct and indirect, resulting from additional time required on the Project or resulting from delay to the Project.

Any costs or expenses not included are deemed waived. For purposes of determining the cost, if any, of any change, addition, or omission to the Project, all trade discounts, rebates, refunds, and all returns from the sale of surplus materials and equipment shall accrue and be credited to Contractor, and Contractor shall make provisions so that such discounts, rebates, refunds, and returns may be secured, and the amount thereof shall be allowed as a reduction of Contractor's cost in determining the actual cost of construction for purposes of any change, addition, or omissions in the Project as provided herein.

(k) With respect to portions of the Work performed by Changer Orders on a time - and-materials, unit-cost, or similar basis, Contractor shall keep and maintain cost -accounting records satisfactory to the City, which shall be available to City on the same terms as any other books and records Contractor is required to maintain under the Contract Documents.

9. INSURANCE.

(a) Required Coverage At all times commencing no later than commencement of the Work and to remain in effect for the entire term of this Contract including any extensions of time, Contractor shall, at its expense, obtain and maintain, and shall cause its Subcontractors (commensurate to their work) to obtain and maintain, insurance policies issued by an insurance company currently authorized by the I nsurance Commissioner to transact business of insurance or is on the List of Approved Surplus Line Insurers in the State of California, with an assigned policyholders’ Rating of A - (or higher) and Financial Size Category Class VII (or larger) in accordance with the latest edition of Best’s Key Rating Guide, unless otherwise approved by City. The insurance policies shall include the types, coverages and limits set forth below:

(i) Commercial General Liability Insurance.

a. Contractor. Contractor agrees to obtain and maintain commercial general liability: CGL Insurance Services Office (ISO) Form CG 00 01 (or its equivalent) covering CGL on an “occurrence” basis, including products and completed operations, property damage, bodily injury and personal & advertising injury with limits of at least$5,000,000 per occurrence, $10,000,000 general aggregate, for bodily injury, personal injury, and property damage, and a $5,000,000 completed operations aggregate. Either the general aggregate limit shall apply separately to this project/location (ISO CG 25 03 or 25 04 or their equivalent) or the general aggregate limit shall be twice the required occurrence limit. Contractor may use umbrella or excess insurance with limits excess of the CGL policy to satisfy this requirement.

b. Subcontractors. Subcontractors in areas of higher risk, such as electric, roofing, or plumbing work, shall have commercial general liability limits of $2,000,000. Such insurance shall protect the Contractor and City against loss from liability imposed for damages (1) on account of bodily or personal injuries, including death, disease and sickness, accidentally suffered or alleged to have been suffered by any person or persons that may be caused directly or indirectly by the performance of this Contract, and (2) on account of injury to or destruction of property, including the resultant loss of use of the Project or other City facilities or equipment, resulting from acts of commission or omission by the Contractor, or otherwise resulting directly or indirectly from the Contractor’s operations in the performance of this Contract.

This insurance shall be subject to the approval of City, and City ’s approval shall not be unreasonably withheld. The comprehensive or commercial general liability policy shall also include a severability of interest clause and cross liability if the policy has multiple insureds. The aggregate limit shall apply on a “per project” basis. The policy shall stipulate that the insurance afforded the additional insureds shall apply as primary insurance and that any other insurance carried by City identified in this Contract will be excess only and will not contribute with this insurance;

(ii) Automobile Liability . Contractor agrees to obtain and maintain automobile liability insurance: Insurance Services Office (ISO) Form CA 0001 (or its equivalent) covering Code 1 (any auto), 36 with limits of $5,000,000 per accident for bodily injury and property damage. Contractor may use umbrella or excess insurance with limits excess of the automobile liability policy to satisfy this requirement.

(iii) Worker’s Compensation Insurance. All engineers, experts, Consultants and Subcontractors the Contractor intends to employ shall have taken out workers’ compensation insurance with an insurance carrier satisfactory to the City for all persons whom they may employ in carrying out the work contemplated under this Contract in accordance with the Workers’ Compensation Laws of the State of California. If Contractor employs any engineer, expert, Consultant or Subcontractor which it did not intend to employ prior to commencement of services, it must furnish such proof of workers’ compensation insurance to the City immediately upon employment. If the Contractor is self -insured, the Contractor shall furnish a Certificate of Permission to Self-Insure and a Certificate of Self- Insurance satisfactory to the City.

(iv) Employer’s Liability Insurance. All engineers, experts, Consultants and Subcontractors the Contractor intends to employ shall have taken out employer’s liability insurance. with an insurance carrier reasonably satisfactory to the City. During the course of Contractor’s services, if Contractor ever intends to employ additional or different Engineers, experts, Consultants or Subcontractors, before so employing them Contractor shall furnish such reasonably satisfactory proof of insurance to the City. If the Contractor is self - insured, the Contractor shall furnish a Certificate of Permission to Self -Insure and a Certificate of Self-Insurance reasonably satisfactory to the City.

(v) Professional Liability Insurance. Contractor agrees to obtain and maintain professional liability insurance on a claims made basis with limits of Two Million Dollars ($2,000,000) per claim and in aggregate with a deductible in an amount not to exceed the sum of One Million Dollars ($1,000,000), and Contractor will maintain such coverage for a period of five (5) years three (3) years following the Final Completion Date.

(vi) Builder’s All Risk. . Contractor agrees to obtain and maintain Builder’s Risk / Installation Floater insurance, issued on a completed value basis on all insurable Work included under the Contract Documents. This insurance shall be subject to the approval of City, and City ’s approval shall not be unreasonably withheld. This insurance shall insure against all risks, including but not limited to the following perils: vandalism, theft, malicious mischief, fire, sprinkler leakage, civil authority, sonic boom, explosion, collapse, flood, wind, hail, lightning, smoke, riot or civil commotion, debris removal (including demolition) and reasonable compensation for the City ’s costs and expenses required as a result of such insured loss.

This insurance shall provide coverage in an amount equal to the full cost to repair, replace, or reconstruct the Work. Such insurance shall include City, City’s designated representative, and any other person or entity with an insurable interest in the Work as Loss Payees.

(vii) Contractor’s Pollution Legal Liability and/or Asbestos Legal Liability and/or Errors and Omissions. Contractor shall require subcontractors performing the applicable work to obtain and maintain contractor’s pollution legal liability and/or asbestos legal liability and/or errors and omissions with limits of $1,000,000 per occurrence or claim, and $2,000,000 policy aggregate.

(ix) Other Insurance. Contractor shall provide all other insurance required to be maintained under Applicable Laws, ordinances, rules, and regulations. Such insurance shall be subject to the approval of City, and City’s approval shall not be unreasonably withheld.

(b) Consultants. If not covered by Contractor’s coverage, each of Contractor’s Consultants shall carry coverage and limits proportionate to each such Consultant’s scope of work, and Contractor shall include such provisions in its contracts with them.

(c) Occupancy. City may partially or fully occupy and/or use the Project before acceptance of the entire Project by the City. All of Contractor’s required insurance must allow such occupancy and/or use without prior consent from insurer.

37 (d) Additional Insured; Primary and Non- Contributory; Waiver of Subrogation. Contractor shall name City and as additional insured on Contractor’s commercial general liability (using ISO CG 20 10 and CG 20 37 or equivalents). The additional insured endorsement(s) included on such insurance policy shall state that coverage is afforded the additional insured with respect to claims arising out of operations performed by or on behalf of the insured. If the additional insureds have other insurance which is applicable to the loss, such other insurance shall be on an excess or contingent basis. The amount of the insurer’s liability shall not be reduced by the existence of such other insurance. The coverage provided the additional insureds on Contractor’s commercial general liability policy shall apply on a primary and non- contributory basis. Contractor’s commercial general liability, automobile liability, excess/umbrella, and workers’ compensation/employer’s liability policies shall be endorsed to include a waiver of subrogation in favor of City. Any excess/umbrella policies provided by Contractor shall provide limits that are in excess of any policies set forth herein, which Contractor intends the excess/umbrella policy to supplement.

(e) Proof of Carriage of Insurance. Contractor shall not commence Work nor shall it allow any Subcontractor or Consultant to commence Work under this Contract until all required proof of insurance including certificates of insurance, applicable endorsements, and all required amendatory endorsements (or copies of applicable policy language effecting coverage required by this clause) have been obtained for the period covered by this Contract and delivered to the City for approval, and such approval shall not be unreasonably withheld.

(f) Notice of Cancellation or Non- Renewal. Contractor shall provide for thirty (30) days written notice to City of cancellation or shall obligate its insurance carriers or brokers/representatives to issue endorsements to the required insurance policies that provide for thirty (30) days written notice to the City of cancellation.

(g) Self-Insured Retentions. Self-insured retentions must be declared to and approved by the City.

City may require the Contractor to purchase coverage with a lower self -insured retention or provide proof of ability to pay losses and related investigations, claim administration and defense expenses within the self-insured retention. The policy language shall provide or be endorsed to provide that the self -insured retention may be satisfied by either the named insured or City. If there is a self -insured retention, City will need to know what the triggering events are for coverage.

(h) Compliance. If Contractor fails to maintain such insurance or fails to cure any defects in coverage required herein within five (5) d ays of receiving written notice of the defect(s), the City may, but shall not be required to, take out such insurance to cover any damages accrued for which City might be held liable on account of Contractor’s failure to pay such damages, and deduct and retain the amount of the premiums from any sums due Contractor under this Contract.

(i) Subcontractors and Consultant Obligations. Each of Contractor’s Consultants and Subcontractors shall comply with all applicable (commensurate with their respective scope of work) insurance obligations under this Section, and Contractor shall include such provisions in its contracts with them.

10. PAYMENT AND PERFORMANCE BONDS. Contractor shall apply for and furnish City a Payment Bond and Performance Bond on the forms included in Attachment 5, which shall cover one hundred percent (100%) faithful performance of all obligations under this Contract arising under the Contract Documents and guaranteeing the payment in full of all costs for labor performed and materials supplied for the Work. Only bonds executed by admitted Surety insurers as defined in California Code of Civil Procedure section 995.120 shall be accepted. The surety insurers must, unless otherwise agreed to by City in writing, at the time of issuance of the bonds, have a rating not lower than “A” as rated by A.M. Best Company, Inc. or the equivalent if rated by other independent rating companies. Notwithstanding anything to the contrary in the Contract Documents, the liability of the surety on the performance bond will cease one (1) year after the Final Completion Date, and shall not apply or secure any energy savings or measurement and verification obligations which may be guaranteed by Contractor described in the Savings Guarantee or Maintenance and Verification Agreement. Any warranty or guarantee required of Contractor by the Contract 38 Documents shall be the sole obligation of Contractor after termination of the surety's performance bond liability. The liability of the surety on the payment bond shall continue only so long as required by law.

11. INDEMNITY.

(a) Contractor and City agree that City, its employees, agents and officials (cumulatively the “City Indemnitees”) should, to the fullest extent permitted by law, be fully protected from any loss, injury, damage, claim, liability, lawsuit, cost, expense, attorneys’ fees, litigation costs, defense costs, court costs or any other cost arising out of or in any way related to performance of this Contract or any Work hereunder.

The indemnity provisions of this Section are intended by the Parties to be interpreted and construed to provide the fullest protection possible under the law to City Indemnitees. Contractor acknowledges that City would not have entered into this Contract in the absence of the commitment of Contractor to indemnify and protect City and City Indemnitees, as set forth in this Contract.

(b) Consistent with California Civil Code Section 2782.8, to the extent the Work includes design professional services to be performed by a design professional, as that term is defined under said Section 2782.8, Contractor shall, to the fullest extent permitted by law, indemnify, protect, defend, and hold the City Indemnitees harmless for all claims, demands, costs, or liability that arise out of, pertain, or relate to the negligence, recklessness, or willful misconduct of Contractor, its officers, employees, or agents in said performance of the Work , excepting only liability arising from the sole negligence, active negligence, or intentional misconduct of City.

(c) Other than in the performance of design professional services by a design professional, as covered by subsection (b) above, to the fullest extent permitted by law Contractor shall, at its sole cost and expense, protect, defend, hold harmless and indemnify the City Indemnitees from and against any and all damages, costs, taxes, fees, expenses, liabilities, claims, demands, causes of action, proceedings, judgments, penalties, liens and/or losses of any nature whatsoever, including fees of accountants, attorneys and other professionals, and all costs associated therewith, and the payment of all consequential damages (collectively “Claims” for purposes of this subdivision alone), in law or equity, whether actual, alleged or threatened, which arise out of, pertain to, or relate to the acts or omissions, or willful misconduct, of Contractor, or its officers, agents, servants, employees, subcontractors, materialmen, suppliers, or contractors, or their officers, agents, servants or employees (or any entity or individual that Contractor shall bear the legal liability thereof) in the performance of this Agreement, including Contractor active or passive negligence, except for Claims arising from the sole negligence or willful misconduct of City , as determined by final arbitration or court decision or by the agreement of the Parties. Contractor shall defend the City Indemnitees in any action or actions filed in connection with any Claims with counsel of City’s choice, and shall pay all costs and expenses, including all attorneys’ fees and experts’ costs actually incurred in connection with such defense. Contractor shall reimburse the Indemnitees for any and all reasonable legal expenses and costs incurred by City Indemnitees in connection therewith .

(e) PERS Eligibility Indemnification. In the event Contractor or any employee, agent, or subcontractor of Contractor claims or is determined by a court of competent jurisdiction or the California Public Employees Retirement System (PERS) to be eligible for enrollment in PERS as an employee of City, Contractor shall indemnify, defend, and hold harmless City for the payment of any employee and/or employer contributions for PERS benefits on behalf of Contractor or its employees, agents, or subcontracts, as well as for the payment of any penalties and interest on such contributions, which would otherwise by the responsibility of City . Notwithstanding any other agency, state or federal policy, rule, regulation, law or ordinance to the contrary, Contractor and any of its employees, agents, and subcontractors providing Work under this Contract shall not qualify for or become entitled to, and herby agree to waive any claims to, any compensation, benefit, or any incident or employment by City , including but not limited to eligibility to enroll in PERS as an employee of City and entitlement to any contribution to be paid by City for employer contribution and/or employee contributions for PERS benefits.

(f) Obligations Not Limited by Insurance. The obligations of Contractor under this or any other provision of this Contract shall not be limited by the provisions of any workers’ compensation act or similar act. Contractor expressly waives any statutory immunity under such statutes or laws as to the 39 Indemnitees. Contractor’s indemnity obligation set forth in this section shall not be limited by the limits of any policies of insurance required or provided by Contractor pursuant to this Contract .

12. LIMITATION OF LIABILITY

Notwithstanding anything else in this Contract, in no event shall either City or Contractor be liable to the other party for special, indirect, incidental or consequential damages, including commercial loss, loss of use, or lost profits, even if either party has been advised of the possibility of such damages.

13. MISCELLANEOUS

(a) Representatives. City shall provide administration of the Contract as described in the Contract Documents and may designate one or several agents, representatives, or Consultants to provide administration upon written notice of such to Contractor. When such written notice is provided, except as otherwise provided in the Contract Documents or when direct communications are warranted by special circumstances, City and Contractor shall communicate through the City’s selected representative.

(b) Independent Contractor. Contractor is retained by City only to the extent set forth in this Contract, and Contractor 's relationship to City is that of an independent contractor. Contractor shall be free to dispose of all portions of Contractor 's time and activities that Contractor is not obligated to devote to City in such a manner, and to such persons, firms or corporations, as Contractor sees fit except as expressly provided in this Contract. Neither City nor any of its agents shall have control over the conduct of Contractor or any of Contractor 's employees, except as set forth in this Contract . Contractor shall have no power to incur any debt, obligation or liability on behalf of City or otherwise act on behalf of City as an agent. Contractor shall not, at any time, or in any manner, represent that it or any of its agents or employees are in any manner agents or employees of City. Contractor shall pay all required taxes on amounts paid to Contractor under this Contract and indemnify and hold City harmless from any and all taxes, assessments, penalties and interest asserted against City by reason of the independent contractor relationship created by this Contract . Contractor shall fully comply with applicable workers’ compensation laws regarding Contractor and Contractor’s employees. Contractor shall indemnify and hold City harmless from any failure of Contractor to comply with applicable workers’ compensation laws. City may offset against the amount of any compensation due to Contractor under this Contract any amount due to City from Contractor as a result of Contractor’s failure to promptly pay to City any reimbursement or indemnification arising under this section.

(c) Necessary Licenses. Contractor warrants and represents that it has secured all necessary licenses, consents or approvals necessary to the production of the Work. Contractor shall defend, indemnify and hold City, and its elected officials, officers, employees, servants, attorneys, designated volunteers and agents serving as independent contractors in the role of officials, harmless from any loss, claim or liability in any way related to a claim that any of the Work is violating federal, state or local laws, or any contractual provisions, or any rights or laws relating to trade names, licenses, franchises, copyrights, patents or other means of protecting intellectual property rights or interests in products, ideas or inventions. Contractor shall bear all costs arising from the use of patented, copyrighted, trade secret or trademarked documents, materials, equipment, devices or processes in connection with its provision of the Work under this Contract.

In the event any the Work hereunder is held to constitute an infringement an d the use of any of the same is enjoined, Contractor, at its expense, shall: (a) secure the right to continue using the Work and other deliverables by suspension of any injunction, or by procuring a license or licenses; or (b) modify the Work and other deliverables so that they become non- infringing while remaining in compliance with the requirements of this Contract . Contractor’s covenants under this Section shall survive the expiration or termination of this Contract.
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d) Records. Contractor shall maintain complete and accurate records with respect to sales, costs, expenses, receipts and other such information relating to the Work, as required by City . Contractor shall maintain adequate records on services provided in sufficient detail to permit an evaluation of the Work.

All such records shall be maintained in accordance with generally accepted accounting principles and shall be clearly identified and readily accessible. At all times during regular business hours, Contractor shal l 40 provide access to such books and records to City , and shall give City the right to examine and audit such books and records, and shall allow inspection of all work, data, documents, proceedings and activities related to this Contract upon reasonable written notice. (e) Conflicts of Interest. Contractor shall comply with all applicable federal, state and local conflict of Interest laws, including the Political Reform Act (Cal ifornia Gov. Code, § 81000 et seq.) and California Government Code Section 1090, in connection with entering into and performing the Work contemplated by this Contract. Contractor shall not be financially interested in any contract or subcontract entered into by Contractor with any third- party in connection with completing any portion of the Work or performing this Contract. During the term of this Contract, Contractor may perform similar services for other clients, but Contractor and its officers, employees, associates and subconsultants shall not, without the City Manager’s prior written approval, perform work for another person or entity for whom Contractor is not currently performing work that would require Contractor, or one of its officers, employees, associates or subconsultants, to abstain from a decision under this Contract pursuant to a conflict of interest statute. In compliance with the Levine Act ( California Government Code section 84308), Contractor represents and warrants that: (a) neither Contractor nor any agent on behalf of Contractor has made any campaign contributions of more than $250 to any member of the City Council between January 1, 2023 and the Effective Date of this Contract ; and (b) neither Contractor nor any agent on behalf of Contractor will make any campaign contribution of more than $250 to any member of the City Council within twelve (12) months after the date this Contract is approved by the City Council. (
f) Non-Discrimination. In performing this Contract , Contractor shall not engage in, nor shall it permit its agents to engage in, discrimination in employment of persons because of their race, religion, color, national origin, ancestry, age, physical handicap, medical condition, marital status, sexual gender or sexual orientation, except as permitted pursuant to Section 12940 of the California Government Code.

(g) Occupational Safety and Health. The parties hereto agree to notify each other immediately upon becoming aware of any alleged violation of, the Occupational Safety and Health Act (OSHA) relating in any way to the project or project site.

(h) Ownership and Use of Drawings, Data, Reports and Other Documents

(i) Except as expressly provided in this Contract, City will not acquire, by virtue of this Contract, any rights or interest in any formulas, patterns, devices, software, inventions or processes, copyrights, patents, trade secrets, other intellectual property rights, or similar items of property which are or may be used in connection with the Work. Contractor will own all inventions, improvements, technical data, models, processes, methods, and information and all other work products developed or used in connection with the Work, including all intellectual property rights therein.

(ii) Solely in connection with the Project, Contractor grants to City a limited, perpetual, royalty-free, non-transferrable license for any Contractor intellectual property rights necessary for City to operate, maintain, and repair any modifications or additions to Project, or equipment delivered, as a part of the Work.

(iii) All data, reports, proposals, plans, specifications, flow sheets, drawings, and other products of the Work (the “Instruments of Service”) furnished directly or indirectly, in writing or otherwise, to City by Contractor under this Contract will remain Contractor’s property and may be used by City only for the Work. Contractor will be deemed the author and City of such Instruments of Service and will retain all common law, statutory and other reserved rights, including copyrights. The Instruments of Service may not be used by City or any City Person for future additions or alterations to the Project or for other projects, without the prior written agreement of Contractor . Any unauthorized use of the Instruments of Service will be at City ’s sole risk and without liability to Contractor . If City uses the Instruments of Service for implementation purposes, including additions to or completion of the Project, without the written permission of Contractor, City agrees to waive and release, defend, and indemnify and hold harmless, Contractor, its subcontractors, and their directors, employees, subcontractors, and agents from any and all claims or losses associated with or resulting from such use.
41 (iv) If any materials or information provided by Contractor to City under this Contract are designated by Contractor as a “trade secret” or otherwise exempt from disclosure under the Public Records Act (California Government Code §6250 et seq., the “Act”) and if a third party makes a request for disclosure of the materials under the Act, as soon as practical (but not later than ten (10) calendar days) after receipt of such request, City will notify Contractor of such request and advise Contractor whether City believes that there is a reasonable possibility that the materials may not be exempt from disclosure. Contractor may seek to enjoin City from disclosing the information requested through a court of competent of jurisdiction.

(i) Royalties and Patents. The Contractor shall pay all royalties and license fees incurred by Contractor in performing the Work of this Contract . Contractor shall defend suits or claims of infringement of patent rights brought by a party other than City and shall hold the City harmless and indemnify them from loss on account thereof.

(j) Assignment of Antitrust Claims. Pursuant to California Government Code section 4552, in entering into a public works contract or a subcontract to supply goods, services, or materials pursuant to a public works contract, the Contractor or Subcontractor offers and agrees to assign to the City all rights, title, and interest in and to all causes of action it may have under Section 4 of the Clayton Act, (15 U.S.C. § 15) or under the Cartwright Act (Chapter 2 [commencing with § 16700] of Part 2 of Division 7 of the Bus. & Prof.

Code), arising from the purchase of goods, services, or materials pursuant to the public works contract or the subcontract. This assignment shall be made and become effective at the time the awarding body tenders final payment to the Contractor, without further acknowledgment by the Parties.

(k) Audit. Contractor’s agreements, contracts, subcontracts, books, records, and files associated with the Project shall be subject to audit and examination under California Government Code section 8546.7 and any amendments thereto for a period of four (4) years following Final Completion and will exclude information that is proprietary and confidential unless required to be disclosed as a condition of funding, by law or by court order.

( l) Waiver. No delay or omission to exercise any right, power or remedy accruing to City or Contractor under this Contract shall impair any right, power or remedy, nor shall it be construed as a waiver of, or consent to, any breach or default. No waiver by City or Contractor of any breach, any failure of a condition, or any right or remedy under this Contract shall be: (1) effective unless it is in writing and signed by the Party making the waiver; (2) deemed to be a waiver of, or consent to, any other breach, failure of a condition, or right or remedy; or (3) deemed to constitute a continuing waiver unless the writing expressly so states.
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m) Accomplishment of Work . Contractor shall commence, carry on and complete its assignments with all practicable dispatch, in a sound, economical, and efficient manner in accordance with all applicable laws and generally accepted industry and applicable professional standards. (n) C
ompliance With Laws . Contractor shall comply with all applicable federal, state, and local laws, rules, regulations, and ordinances that are applicable to Contractor, this Contract , or the Work.

(o) Third Party Beneficiaries. The Parties hereto do not intend to create any rights for, or grant any remedies to, any third-party beneficiary of this Contract.

(p) Governing Law. The terms and conditions of this Contract shall be governed by the laws of the State of California without regard to conflicts of law principles.

(q) Cost of Litigation. If any legal action is necessary to interpret or enforce any provision of this Contract or for damages by reason of an alleged breach or failure to perform any provisions of this Contract, each Party shall pay for and bear the cost of its own attorneys’ fees, costs, and expenses.

42 (r) Severability. If a court of competent jurisdiction shall hold any provision of the Contract Documents invalid or unenforceable, such holding shall not invalidate or render unenforceable any other provision hereof.

(s) Notices and Filings. Any notices or filings required to be given or made under this Contract shall be served, given, or made in writing upon the City or Contractor, as the case may be, by personal delivery or commercial overnight courier (with a copy sent via email) to the respective addresses given below, or at such address as such Party may provide in writing from time to time.

City:City of Buena Park, 6650 Beach Blvd, PO Box 5009, Buena Park, CA 90622- 5009

with a copy to: Christopher G. Cardinale, Alvarez -Glasman & Colvin, 13181 Crossroads Pkwy North, Suite 400 – West Tower, City of Industry, CA 97146

Contractor:NORESCO, LLC, 1 Research Drive, Suite 400C, Westborough, MA 01581

with a copy to: Jamie Vanaria, 1 Research Drive, Suite 400C, Westborough, MA 01581

(t) Binding Effect. Contractor, by execution of this Contract, acknowledges that Contractor has read this Contract and the other Contract Documents, understands them, and agrees to be bound by their terms and conditions. The Contract Documents shall inure to the benefit of and shall be binding upon the Contractor and the City and their respective successors and assign.

(u) Amendments. The terms of the Contract Documents shall not be waived, altered, modified, supplemented, or amended in any manner whatsoever except by written agreement signed by the parties and approved or ratified by the City’s governing body.

(v) Headings. The captions or headings in this Contract are for convenience only and in no way define, limit or describe the scope or intent of any provisions or Sections of this Contract

(w) Execution in Counterparts. This Contract may be executed in counterparts such that the signatures may appear on separate signature pages. A copy, or an original, with all signatures appended together, shall be deemed a fully executed Contract.

(x) Attachments Incorporated All Recitals , Contract Documents, and Attachments to this Contract are hereby incorporated into the Contract by this reference as if set forth in full. The Attachments to this Contract are as follows:

Attachment 1 - Final Project Plans and Specifications
Attachment 2 - Schedule of Values
Attachment 3 - Project Schedule
Attachment 4 – Incentive Funds
Attachment 5 – Form of Payment Bond and Performance Bond Attachment 6 - Contractor Lien Release Forms
Attachment 7 – Final IGA Report
Attachment 8 - Community Workforce Agreement
Attachment 9 - Maintenance Agreement
Attachment 10 - Measurement and Verification Agreement
Attachment 11 - Savings Guarantee

(y) Entire Agreement . This Contract, and all incorporated Attachments, recitals and documents, including, but not limited to the Contract Documents, constitute the entire agreement between the Parties, and supersedes any prior or contemporaneous agreement between the Parties, oral or written, including the City ’s award of the Project to Contractor, unless such agreement is expressly incorporated herein. The City makes no representations or warranties, express or implied, not specified in the Contract 43 Documents. The Contract Documents are intended as the complete and exclusive statement of the parties’ agreement pursuant to California Code of Civil Procedure section 1856.

(z) Execution, Correlation, and Intent. The Contract Documents are complementary and are intended to include all items required for the proper execution and completion of the Work. Any item of Work mentioned in the Specifications and not shown on the Drawings, or shown on the Drawings and not mentioned in the Specifications, shall be provided by Contractor as if shown or mentioned in both.

(aa) Conflict in Terms. The several instruments forming part of this Contract are to be taken as mutually explanatory of one another. Each and every provision of law required by law to be inserted in this Contract shall be deemed to be inserted herein, and the Contract shall be read and enforced as though it were included herein, and if through mistake or otherwise any such provision is not inserted, or is not correctly inserted, then upon application of either Party the Contract shall be amended in writing to make such insertion or correction.

(bb) Successors And Assigns. The City and the Contractor respectively bind themselves, their partners, successors, assigns, and legal representatives to the other Party hereto and to partners, successors, assigns, and legal representatives of such other Party in respect to covenants, agreemen ts, and obligations contained in the Contract Documents. Consistent with subsection (dd) below, neither Party to the Contract shall assign the Contract as a whole or in part without written consent of the other. If ei ther Party attempts to make such an assignment without such consent, that Party shall nevertheless remain legally responsible for all obligations under this Contract. Notwithstanding the foregoing, Contractor may, without City’s consent, but with written notice to City, assign this Contract to any Affiliate of Contractor.

(cc) Rights and Remedies. Except as otherwise provided for in this Contract, Duties and obligations imposed by the Contract Documents and rights and remedies available thereunder shall be in addition to and not a limitation of duties, obligations, rights, and remedies otherwise imposed or available by law.

(dd) Prohibition Against Assignment. The experience, knowledge, capability and reputation of Contractor, its principals and employees were a substantial inducement for City to enter into this Contract.

Except with consent as provided for in subsection (bb) above, neither this Contract nor any interest herein may be transferred, assigned, conveyed, hypothecated or encumbered voluntarily or by operation of law, whether for the benefit of creditors or otherwise, without the prior written approval of City, which may be approved or denied by the City, whose approval is not to be unreasonably withheld. Transfers restricted hereunder shall include the transfer to any person or group of persons acting in concert of more than twenty five percent (25%) of the present ownership and/or control of Contractor, taking all transfers into account on a cumulative basis. In the event of any such unapproved transfer, including any bankruptcy proceeding, this Contract shall be void. No approved transfer shall release the Contractor or any surety of Contractor of any liability hereunder without the express consent of City.

(ee) Execution of Other Documents. The parties to this Contract shall cooperate fully in the execution of any and all other documents and in the completion of any additional actions that may be necessary or appropriate to give full force and effect to the terms and intent of the Contract Documents.

IN WITNESS WHEREOF, the parties have caused their duly authorized officers to execute this Contract effective as of the date first above written.

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Buena Park City CouncilApril 14, 2026

Buena Park City Council
April 14, 2026