offerings listed on Exhibit D of RS Agreement have not been updated to reflect additional base services offered by Republic Services, and these matters are being reviewed in tandem.
The Garden Grove Sanitary District, not the City of Garden Grove, is the signer of the WDA and WISE Agreement.
DISCUSSION
The Discussion for this item is organized into five sections: WISE Agreement County Justification for raising rates , Rate and Impact, WISE Agreement Components, Term, and Exhibit D of the RS Agreement.
WISE AGREEMENT
County Justification for Raising Rates
The County communicated to OCCMA the reasons associated with need to adjust the disposal rates. These reasons include costs associated with compliance for legislative mandates, labor, equipment, and other operational expenses, and the needed expansion of capacity at its Frank R. Bowerman Landfill near Irvine and Pr ima Deshecha Landfill near San Juan Capistrano, as OCWR prepares for the pending closure of the Olinda Alpha Landfill near Brea.
In the report presented to the County Board of Supervisors on January 27, 2026, County staff stated “…general operating and in frastructure costs over the past 16 years significantly increased and resulted in the need to increase our rates for both contract and non -contract customers.” OCWR operates at a full cost recovery model and does not rely on the County General Fund to cover expenses.
The County Board of Supervisors approved adoption of the WISE Agreement on a three to one (3 to 1) vote with Supervisor Nguyen, who represents most of Garden Grove, voting no.
Rate and Impact
The WDA limits annual rate increases to Consumer P rice Index (CPI) All Urban Consumers, US city average, and does not account for rising operational, regulatory, and environmental compliance costs. OCWR’s original WISE proposal in 2024 would have increased disposal rates from $42.65 per ton in FY 24-25 rate to $82 in FY 25-26, rising to nearly $107 by the end of the initial 10 year term of the agreement.
Through negotiations, OCCMA reached an agreement through a phased rate implementation structure for the first three years of the WISE Agreement. These increases are in addition to any annual hauler -related service component adjustments associated with the adjustment methodology allowed for in the RS Agreement. Service component adjustments are capped at 5% per year by the RS Agreement. The landfill disposal component is considered a pass - through cost and affects every city, sanitary district, and hauler in Orange County.
The table below shows the three-year projected impact on disposal rates for the residential rate and the most common commercial service in Garden Grove, which is a three (3) cubic yard (CY) bin serviced three (3) times per week:
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Item 143/2026
Fiscal Year Contract Disposal
Rate
Impact to Residential
Disposal Rate
(Monthly)
Impact to
Commercial
Disposal 3 CY 3x WK
Rate (Monthly)
Current 2025-26 $43.76/ton
2026–27 $67/ton $2.79 $49.81
2027–28 $74/ton $0.84* $15*
2028–29 $81/ton $0.84* $15*
2029–30 $81/ton + Blended
CPI
UNKNOWN UNKNOWN
*Estimate based on available data.
Beginning in Fiscal Year (FY) 2 029–30, the per ton disposal rate will be adjusted annually based on a blended Consumer Price Index (CPI), consisting of the national Water, Sewer, and Solid Waste Index an d the Los Angeles –Long Beach–Anaheim area. Based on the average annual 12-month CPI change from 2021 through 2025, this blended index approach averaged approximately 4.3%.
Attachment 2 is the full FY 2026-27 Exhibit D Rate Sheet, showing the increased disposal and service components for all offerings under the District’s agreement with Republic.
WISE Agreement Components
While the primary focus of the negotiations was on the per ton disposal rate, OCCMA successfully included several components to stabiliz e rates and protect County rate payers from significant rate adjustments in the future.
These components include continued OCCMA participation to improve transparency and oversight of OCWR’s financial status and implementation of the WISE Agreement, along with an annual “true -up” process that begins in 2030. This process involves a review of OCWR operating costs, revenue, and tonnage, and may result in a freeze of future annual per ton rate adjustments. Fifty percent (50%) of cities may vote to initiate a meet and confer process with the County for review by an independent third -party consultant during the “true -up” process.
The WISE Agreement also continues the revenue sharing component for waste brought into the system from out of county users established under the original WDA, however, if imported waste adversely affects the County’s ability to receive and dispose of waste from County jurisdictions that have entered into WISE Agreements, the County must prioritize the waste from those jurisdictions with executed WISE Agreements.
Republic Services, along with the Sanitary District, is also required to sign the revised Franchise Hauler Acknowledgement form, Appendix 4, as the Sanitary Distri cts’ exclusive waste, recycling, and organic materials hauler.
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Item 143/2026
Terms
The agreement is for 10 years, through June 30, 2036, with one optional 10-year extension.
Jurisdictions must adopt the WISE Agreement by April 30, 2026, to avoid increased per ton disposal rates of 10% or more.
REPUBLIC SERVICES AGREEMENT EXHIBIT D AMENDMENT
Exhibit D of the 2022 Amended and Restated Agreement with Republic Services While the costs associated with disposal (outlined on Exhibit D of the RS Agreement) are adjusted annually in alignment with the RS Agreement, the service offerings have not been amended. As such, Republic Services is now able to offer split -bin service for commercial customers not originally included in Exhibit D. A split-bin is a three (3) CY dumpster that has a permanent divider that separates regular trash from recyclables. Each side has a lock on the lid that prevents the other side from being accidentally emptied during service.
Staff is also recommending the removal of a pre -existing service of fering from our prior agreements with Republic, a temporary 3 CY bin rate for construction demolition waste, which is a discontinued service as part of Republic’s CalGreen compliant construction demolition program. The changes are included on the attached update to Exhibit D (Attachment 2).
FINANCIAL IMPACT
There is no impact to the Sanitary District’s Solid Waste funding or the City’s General Fund.
RECOMMENDATION
It is recommended that the Garden Grove Sanitary District Board of Directors:
Approve the 10-year WISE Agreement with the County of Orange for municipal solid waste disposal rates and services through June 30, 2036; and
Authorize the General Manager, or designee, to execute the WISE Agreement and the Franchise Hauler Agreement on behalf of th e Sanitary District , and make minor modifications as necessary.
It is recommended that the Garden Grove Sanitary District Board of Directors and the Garden Grove City Council:
Authorize the General Manager/City Manager to update Exhibit D of the 2022 Amended and Restated Agreement with Republic Services.
By: Mark Ladney, Senior Program Specialist
ATTACHMENT(S)
1. WISE Agreement
2. Exhibit D and FY 26-27 Disposal Rates
481
WASTE INFRASTRUCTURE SYSTEM ENTERPRISE AGREEMENT
(“WISE AGREEMENT”)
Between
THE COUNTY OF ORANGE, CALIFORNIA
and
the
GARDEN GROVE SANITARY DISTRICT
Dated MARCH 24, 2026
County Authorization Date:
City Authorization Date:
March 24, 2026
County Notice Address:
Director
OC Waste & Recycling
601 N. Ross Street 5th Floor
Santa Ana, CA 92701
City Notice Address:
Lisa Kim
General Manager
Garden Grove Sanitary
District
11222 Acacia Parkway
Garden Grove, CA 92842
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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
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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
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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 485
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).
486
“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.
487
“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 488
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 489
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.
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“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.
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“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 492
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 493
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 494
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 495
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. 496
(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 497
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 498
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 499
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.
(C) Posted Disposal Rate . The Posted Disposal Rate shall at all times be at least 10% higher than the Contract Rate.
(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 500
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. 501
(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
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(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”.
(C) [RESERVED]
(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 503
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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]
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(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 505
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 506
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;
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(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 508
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 509
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;
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(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. 511
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 512
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.
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(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
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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
By
Date
Date By
Lisa Kim
General Manager
Garden Grove
Sanitary District
Date By
[NAME]
City Representative
City of XX
APPROVED AS TO FORM:
By
General Counsel, Garden Grove Sanitary District
Date
515
APPENDIX 1
ESTIMATED ANNUAL TONNAGE
516
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. 517
(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.
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APPENDIX 2
CUMULATIVE TONNAGE
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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
520
APPENDIX 3
CUMULATIVE CAPITAL COSTS
521
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
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APPENDIX 4
FRANCHISE HAULER ACKNOWLEDGMENT
523
FRANCHISE HAULER ACKNOWLEDGMENT
THIS FRANCHISE HAULER ACKNOWLEDGMENT, dated as of_______________(the “Acknowledgment”), and between the __________ (the “City”) and ______________ (the “Franchise Hauler”).
WITNESSETH
WHEREAS, the City and the Franchise Hauler have heretofore entered into an agreement entitled ______________ dated as of_____________ (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 [SUBSTITUTE “AUTHORIZATION” THROUGHOUT IF APPLICABLE]] 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______________; 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 524
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 day of , ______.
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Garden Grove Sanitary District
Signature:
Printed Name: Lisa Kim
Title: General Manager
APPROVED AS TO FORM:
By
General Council, Garden Grove Sanitary District
Date
(Franchise Hauler)
Signature:
Printed Name:
Title:
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Appendix 5
ORGANIC SERVICES AGREEMENT
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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:
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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.
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 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.
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. (See Attachment 4) 529
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.
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“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.
“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).
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“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.
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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 533
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, 534
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 535
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.
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(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.
(C) Escalation.
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.
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(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.
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Signature Page to Follow
539
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
By
Date
Date By
[NAME]
City Representative
City of XX
Date By
[NAME]
City Representative
City of XX
APPROVED AS TO FORM:
By
City Attorney
Date
540
Attachment 1
COUNTY OF ORANGE ORGANIC INFRASTRUCTURE
541
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.
542
Attachment 2
SPECIFICATIONS FOR CONTROLLABLE ORGANIC WASTE AS PROCESSED GREEN WASTE
MATERIAL (PGM) AT COUNTY ORGANIC INFRASTRUCTURE
543
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, 544
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.
545
Attachment 3
CITY ORGANIC TONNAGE LIMIT
546
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.
547
Attachment 4
ORGANIC INFRASTRUCTURE RESOLUTION
548
549
550
SUMMARY OF FRANCHISED SOLID WASTE RATE STRUCTURE - CITY OF GARDEN GROVE NEW RATES ESTABLISHED BY GARDEN GROVE DISPOSAL EFFECTIVE JULY 1, 2026
PREPARED AND SUBMITTED BY GARDEN GROVE DISPOSAL
Current GGD Adjustment to Rates Adjusted GGD
RESIDENTIAL Rate Schedule Service Fee Landfill Rate Schedule Basic Residential Rate 29.74$ 1.22$ 2.79$ 33.75$ 35, 64 or 96 Gallon Option
Extra Trash Container 7.54$ 0.11$ 2.79$ 10.44$ Extra Yard Waste Container - Above One 2.60$ 0.13$ -$ 2.73$ Extra Recycle Container - Above One 2.60$ 0.13$ -$ 2.73$ Disabled/Low Income Senior 65+ Residential 23.08$ 0.89$ 2.79$ 26.76$ 64 or 96 Gallon Option
Non-Schedule Collection / Call Back 48.60$ 2.43$ n/a 51.03$ Additional Requests After 3 Pick-Ups p/Year 61.60$ 3.08$ n/a 64.68$ Per Item Charge - After 10 Items 9.47$ 0.47$ n/a 9.94$ Containers Exchanged in Excess of 1 p/Year 53.05$ 2.65$ n/a 55.70$ Container Replacement - Customer Misuse Each 62.93$ 3.15$ n/a 66.08$ Steam Cleaning of Curbside Carts 31.05$ 1.55$ n/a 32.60$ Republic Kitchen Pail (Customer Pickup only) 12.69$ 0.63$ n/a 13.32$ Organic Materials/Recycling Cart Contamination fee 12.43$ 0.62$ n/a 13.05$ (4th and Subsequent event)
Current GGD Adjustment to Rates Adjusted GGD
COMMERCIAL Rate Schedule Service Fee Landfill Rate Schedule Barrel Service For Commercial (max 4 Refuse carts)
96 Gallon Refuse Cart (New Customer) 1x/week 115.25$ 5.44$ 3.38$ 124.07$ 96 Gallon Refuse Cart (Existing Customers Only) 1x/week38.32$ 1.60$ 3.38$ 43.30$ 96 Gallon Recycling Cart 1x week 86.50$ 4.33$ n/a 90.83$ 96 Gallon Recycling Cart 2x week 181.64$ 9.08$ n/a 190.72$ 96 Gallon Recycling Cart 3x week 268.15$ 13.41$ n/a 281.56$ Commercial Organic Materials Carts (35 or 64 gallon)
Serviced 1x per/week 86.50$ 4.33$ n/a 90.83$ Serviced 2x per/week 181.64$ 9.08$ n/a 190.72$ Serviced 3x per/week 268.15$ 13.41$ n/a 281.56$ Commercial Green Waste Carts (35 or 64 gallon)
Serviced 1x per/week 86.50$ 4.33$ n/a 90.83$ Serviced 2x per/week 181.64$ 9.08$ n/a 190.72$ Serviced 3x per/week 268.15$ 13.41$ n/a 281.56$ Two Yard Recycle Bins
Serviced 1x per/week 112.00$ 5.60$ n/a 117.60$ Serviced 2x per/week 200.02$ 10.00$ n/a 210.02$ Serviced 3x per/week 287.93$ 14.40$ n/a 302.33$ Two Yard Organic Commercial Bins
Serviced 1x per/week 112.00$ 5.60$ n/a 117.60$ Serviced 2x per/week 200.02$ 10.00$ n/a 210.02$ Serviced 3x per/week 287.93$ 14.40$ n/a 302.33$ Two Yard Commercial Refuse Bins
Serviced 1x per/week 226.81$ 10.30$ 11.07$ 248.18$ Serviced 2x per/week 360.73$ 15.95$ 22.14$ 398.82$ Serviced 3x per/week 494.59$ 21.60$ 33.21$ 549.40$ Serviced 4x per/week 628.52$ 27.26$ 44.28$ 700.06$ Serviced 5x per/week 762.37$ 32.91$ 55.34$ 850.62$ Serviced 6x per/week 896.27$ 38.56$ 66.42$ 1,001.25$ 1st Extra Bin Pick-up 100.73$ 4.80$ 2.55$ 108.08$ Additional Bins @ Same Time 56.17$ 2.57$ 2.55$ 61.29$ 551
Three Yard Commercial Bins
Serviced 1x per/week 238.37$ 10.36$ 16.60$ 265.33$ Serviced 2x per/week 378.91$ 15.82$ 33.21$ 427.94$ Serviced 3x per/week 519.49$ 21.29$ 49.81$ 590.59$ Serviced 4x per/week 659.96$ 26.75$ 66.42$ 753.13$ Serviced 5x per/week 800.56$ 32.21$ 83.02$ 915.79$ Serviced 6x per/week 941.11$ 37.68$ 99.63$ 1,078.42$ 1st Extra Bin Pick-up 105.95$ 4.94$ 3.83$ 114.72$ Additional Bins @ Same Time 59.03$ 2.59$ 3.83$ 65.45$
Three Yard Recycle Bins
Serviced 1x per/week 162.03$ 8.10$ n/a 170.13$ Serviced 2x per/week 300.00$ 15.00$ n/a 315.00$ Serviced 3x per/week 437.91$ 21.90$ n/a 459.81$ Serviced 4x per/week 575.80$ 28.79$ n/a 604.59$ Serviced 5x per/week 713.71$ 35.69$ n/a 749.40$ Serviced 6x per/week 911.79$ 45.59$ n/a 957.38$ Extra Pick-up -$ -$ n/a -$
Three Yard Mini-Packer Bins
Serviced 1x per/week 371.69$ 13.90$ 49.81$ 435.40$ Serviced 2x per/week 669.17$ 24.08$ 99.63$ 792.88$ Serviced 3x per/week 966.73$ 34.27$ 149.43$ 1,150.43$ Serviced 4x per/week 1,264.16$ 44.45$ 199.24$ 1,507.85$ Serviced 5x per/week 1,561.70$ 54.64$ 249.05$ 1,865.39$ Serviced 6x per/week 1,859.21$ 64.82$ 298.87$ 2,222.90$ Extra Pick-up 170.27$ 7.43$ 11.50$ 189.20$ Additional Bins @ Same Time 170.27$ 7.43$ 11.50$ 189.20$ Three Yard Split-Bins (Refuse & Recycle)
Serviced 1x per/week 200.20$ 9.23$ 8.30$ 217.73$ Serviced 2x per/week 339.46$ 15.41$ 16.60$ 371.47$ Serviced 3x per/week 478.70$ 21.59$ 24.91$ 525.20$ Serviced 4x per/week 617.88$ 27.77$ 33.21$ 678.86$ Serviced 5x per/week 757.14$ 33.95$ 41.51$ 832.60$ Serviced 6x per/week 926.45$ 41.63$ 49.81$ 1,017.89$ Extra Pick-up 88.09$ 4.22$ 1.92$ 94.23$ Additional Bins @ Same Time 49.33$ 2.29$ 1.92$ 53.54$ 552
SUMMARY OF FRANCHISED SOLID WASTE RATE STRUCTURE - CITY OF GARDEN GROVE NEW RATES ESTABLISHED BY GARDEN GROVE DISPOSAL EFFECTIVE JULY 1, 2026
PREPARED AND SUBMITTED BY GARDEN GROVE DISPOSAL
Current GGD Adjustment to Rates Adjusted GGD
COMMERCIAL Rate Schedule Service Fee Landfill Rate Schedule Four Yard Commercial Bins
Serviced 1x per/week 273.59$ 11.60$ 22.14$ 307.33$ Serviced 2x per/week 449.69$ 18.32$ 44.28$ 512.29$ Serviced 3x per/week 625.82$ 25.04$ 66.42$ 717.28$ Serviced 4x per/week 802.03$ 31.76$ 88.55$ 922.34$ Serviced 5x per/week 978.10$ 38.48$ 110.69$ 1,127.27$ Serviced 6x per/week 1,154.29$ 45.21$ 132.83$ 1,332.33$ Extra Pick-up 124.09$ 5.72$ 5.11$ 134.92$ Additional Bins @ Same Time 67.83$ 2.91$ 5.11$ 75.85$ Six Yard Commercial Bins
Serviced 1x per/week 296.98$ 11.72$ 33.21$ 341.91$ Serviced 2x per/week 471.67$ 17.33$ 66.42$ 555.42$ Serviced 3x per/week 646.43$ 22.94$ 99.63$ 769.00$ Serviced 4x per/week 821.09$ 28.55$ 132.83$ 982.47$ Serviced 5x per/week 995.79$ 34.16$ 166.04$ 1,195.99$ Serviced 6x per/week 1,170.47$ 39.77$ 199.24$ 1,409.48$ Extra Pick-up 132.18$ 5.89$ 7.67$ 145.74$ Additional Bins @ Same Time 73.63$ 2.96$ 7.67$ 84.26$ Three Yard Temp. Construction Bins
Serviced 1x per/week 263.53$ 11.61$ 16.60$ 291.74$ Serviced 2x per/week 398.94$ 16.82$ 33.21$ 448.97$ Serviced 3x per/week 534.42$ 22.03$ 49.81$ 606.26$ Serviced 4x per/week 669.80$ 27.24$ 66.42$ 763.46$ Serviced 5x per/week 805.33$ 32.45$ 83.02$ 920.80$ Serviced 6x per/week 940.73$ 37.66$ 99.63$ 1,078.02$ Extra Pick-up 141.88$ 6.73$ 3.83$ 152.44$ Pull-out service
Serviced 1x per/week 80.92$ 4.05$ n/a 84.97$ Serviced 2x per/week 161.80$ 8.09$ n/a 169.89$ Serviced 3x per/week 242.71$ 12.14$ n/a 254.85$ Serviced 4x per/week 323.65$ 16.18$ n/a 339.83$ Serviced 5x per/week 404.53$ 20.23$ n/a 424.76$ Serviced 6x per/week 485.42$ 24.27$ n/a 509.69$ Extra Pick-up 80.92$ 4.05$ n/a 84.97$ Additional Bins @ Same Time 80.92$ 4.05$ n/a 84.97$ Other Special Services
Overage Fee per Occurrence 55.33$ 2.77$ n/a 58.10$ Any Bin Size Exchange - In Excess of 1 p/Yr. 114.27$ 5.71$ n/a 119.98$ Special Access Required - Key or Code 15.23$ 0.76$ n/a 15.99$ Relocation Fee 81.43$ 4.07$ n/a 85.50$ Contamination Fees (per Occurrence)
Organic Materials/Recycling Bin Contamination fee62.10$ 3.11$ n/a 65.21$ Organic Materials/Recycling Cart Contamination fee12.43$ 0.62$ n/a 13.05$ Commercial Bulky Item Pick-Up - Two Items 69.50$ 3.48$ n/a 72.98$ Additional Item Charge - In Excess of 2 Items 9.26$ 0.46$ n/a 9.72$ Container Steam Cleaning 146.75$ 7.34$ n/a 154.09$ Locking Latch Installation 137.48$ 6.87$ n/a 144.35$ Locking Latch 1x week 3.05$ 0.15$ n/a 3.20$ Redeliver Bins 115.83$ 5.79$ n/a 121.62$ 553
SUMMARY OF FRANCHISED SOLID WASTE RATE STRUCTURE - CITY OF GARDEN GROVE NEW RATES ESTABLISHED BY GARDEN GROVE DISPOSAL EFFECTIVE JULY 1, 2026
PREPARED AND SUBMITTED BY GARDEN GROVE DISPOSAL
Current GGD Adjustment to Rates Adjusted GGD
SPECIAL SERVICES Rate Schedule Service Fee Landfill Rate Schedule Roll-Off Containers
Temporary - Three Day Service
40 CY Roll-off Box 770.88$ 28.15$ 110.39$ 909.42$ 15 CY Low Boy 769.96$ 23.73$ 156.87$ 950.56$ 40 CY Yard Waste Roll-off 773.05$ 38.65$ n/a 811.70$ 15 CY Low Boy - Clean Inert 773.05$ 38.65$ n/a 811.70$ Organic Box 1,119.71$ 26.10$ 317.44$ 1,463.25$ 3 CY Bin Standard 109.48$ 5.11$ 3.83$ 118.42$ Extra Days - 3 CY Bin 8.93$ 0.45$ n/a 9.38$ Additional Dump of Temp 3 CY Bin109.48$ 5.11$ 3.83$ 118.42$ 3 CY Bin Non-Profit Rate 103.43$ 4.81$ 3.83$ 112.07$ Permanent - Min. 4 Load per/Month
40 CY Roll-off Box 387.51$ 19.38$ n/a 406.89$ 40 CY Roll-off Compactor 465.02$ 23.25$ n/a 488.27$ Organic Box 387.51$ 19.38$ n/a 406.89$ Organics Compactor Box - 30 CY465.02$ 23.25$ n/a 488.27$ Per Ton - Refuse 94.70$ 50.29$ 144.99$ Per Ton - Organics 142.67$ 75.77$ 218.44$ Over Weight Surcharge Over 8 Tons
Overweight Refuse 94.70$ -$ 50.29$ 144.99$ Overweight Yard Waste 119.53$ -$ 63.48$ 183.01$ Overweight Clean Inert 119.53$ -$ 63.48$ 183.01$ Overweight Organics 119.53$ -$ 63.48$ 183.01$ Relocation Fee 62.10$ 3.11$ n/a 65.21$ Stand-by Hourly Rate 110.58$ 5.53$ n/a 116.11$ Trip Charge / Dead Run 87.48$ 4.37$ n/a 91.85$ Turn-A-Round Surcharge - Packer Units 14.54$ 0.73$ n/a 15.27$ Saturday Service P/Box 47.90$ 2.40$ n/a 50.30$ Heavy-duty Truck Service - p/Load 508.99$ 25.45$ n/a 534.44$ Mandatory Signature Required 7.28$ 0.36$ n/a 7.64$ Temp R/O Extra Day p/Day Charge 17.69$ 0.88$ n/a 18.57$ Steam Cleaning R/O or Packer >1 p/Yr 145.44$ 7.27$ n/a 152.71$ Storage Container Mo. Rental / Delivery 120.38$ 6.02$ n/a 126.40$ Storage Container Return ($1.00/mile) + 15.23$ 0.76$ n/a 15.99$ Non-Profit Storage Container Mo. Rental / Delivery74.72$ 3.74$ n/a 78.46$ Tilt Hopper Monthly Rental 56.72$ 2.84$ n/a 59.56$ Three (3) Yard Bin Monthly Rental 76.16$ 3.81$ n/a 79.97$ Non-Profit Three (3) Yard Bin Monthly Rental 44.86$ 2.24$ n/a 47.10$ 554
Current GGD Adjustment to Rates Adjusted GGD
LEEDS/GREEN BUILDING Rate Schedule Service Fee Landfill Rate Schedule 30 CY Mixed Refuse/C&D 65% - Haul 670.55$ 23.13$ 110.39$ 804.07$ 15 CY Mixed Inert 65% - Haul 753.79$ 22.92$ 156.87$ 933.58$ 15 CY Clean Concrete/Inert Clean - Haul 444.37$ 22.22$ -$ 466.59$ 30 CY Clean Wood - Haul 611.09$ 30.55$ -$ 641.64$ 30 CY Clean Drywall 611.09$ 30.55$ -$ 641.64$ 30 CY Metal - Haul 106.98$ 5.35$ -$ 112.33$ 30 CY Cardboard 171.15$ 8.56$ -$ 179.71$ Over Weight Surcharge Over 8 Tons
30 CY Mixed Refuse/C&D 65% 54.68$ -$ 29.04$ 83.72$ 15 CY Mixed Inert 65% 54.68$ -$ 29.04$ 83.72$ 15 CY Clean Concrete/Inert 44.81$ -$ 23.80$ 68.61$ 30 CY Clean Wood 44.81$ -$ 23.80$ 68.61$ 30 CY Clean Drywall 44.81$ -$ 23.80$ 68.61$ Current GGD Adjustment to Rates Adjusted GGD
Other City Services Rate Schedule Service Fee Rate Schedule Emergency Services Rate Per Hour 167.24$ 8.36$ 175.60$ (One Crew and One Truck)
555
Item 126/2026
Final
City of Garden Grove
INTER-DEPARTMENT MEMORANDUM
To:
Lisa L. Kim From: Samuel Kim
Dept:
City Manager Dept: Public Works
Date: 4/14/2026
Subject: Approval of Amendment No. 4 to the agreement with West Yost Associates for program management services for SCADA Implementation projects. (Cost: $605,002)(Action Item)
OBJECTIVE
To receive City Council approval for Amendment No. 4 to an agreement with West Yost Associates to provide professional engineering services for Supervisory Control and Data Acquisition (SCADA) Implementation Projects.
BACKGROUND
In September 2020, the Cit y contracted with West Yost Associates (Consultant) to provide program management services overseeing the SCADA modernization of the water system.
Services include program management, engineering and design, bidding support, construction management, inspection, programming, and system integration for all SCADA projects identified in the City’s 2020 SCADA Master Plan. The contract for the SCADA Implementation projects was awarded during the COVID-19 pandemic, a period characterized by high uncertainty and disruption in global supply chains. At the time of the award, the full extent of material shortages and procurement delays was not foreseeable. These impacts resulted in extended equipment lead times and delays in construction activities, which increased the level of effort required for project management, coordination, and construction support.
As construction progressed, additional unforeseen conditions associated with the legacy nature of the existing infrastructure were encountered. For example, existin g electrical panels, conduit routing, and control interfaces often differed from record drawings, requiring field verification and redesign to integrate new SCADA equipment. In addition, operational constraints took place with maintaining system reliabilit y for the site with PFAS treatment, meeting seasonal demand, and accommodating equipment outages through additional coordination and construction support that was not originally planned in the design phase.
These conditions necessitated additional field in vestigations, design modifications, and coordination among the City, contractor, and Consultant to resolve conflicts and ensure compatibility with existing systems. Addressing these issues to maintain proper system 556
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integration significantly increased the l evel of support for construction management, inspection, and engineering required.
Currently, the SCADA Implementation Program has completed the Foundational and Global Improvement Projects, as well as design for all High Priority Projects which consist o f five reservoir and booster pump station sites. Construction is complete at three of these sites, with the remaining two currently under construction. Additional completed work includes design of Well 19 and Well 26. Construction of the Well 19 rehabilita tion project, including PFAS treatment and SCADA upgrades, is also currently underway.
DISCUSSION
Since execution of the original agreement, the City has also incorporated additional scopes not included in the initial contract. These include the replacem ent of chemical systems and analyzers at 11 sites, which require expanded engineering design, PLC programming, SCADA configuration, Factory Acceptance Testing (FAT), startup, and commissioning services.
Furthermore, PFAS treatment facilities have been added at eight well sites as part of separate regulatory-driven projects. Integration of these treatment systems into the SCADA network was not included in the original scope and requires additional programming, system integration, development of Standard Operating Procedures (SOPs), and operator training.
These efforts have also increased the level of program management required to coordinate with multiple concurrent PFAS design and construction projects led by other consultants and contractors. Other added efforts include temporary SCADA server support to maintain the system’s functionality and reliability during implementation. Collectively, these added scope elements and unforeseen conditions have extended the program schedule from October 2024 to November 2028. Due to these factors listed above, staff is requesting additional funding in the amount of $605,002.42 for the Consultant to complete SCADA implementation for projects currently under construction. The consultant will also continue to support SCADA integration for the ongoing Well 19 construction and the upcoming Well 29 construction.
FINANCIAL IMPACT
There is no impact to the General Fund. The amendment agreement will cost $605,002.42.
This cost will be absorbed within the Water Enterprise Fund Budget Fiscal Year 2025/26.
RECOMMENDATION
It is recommended that the City Council:
Approve Amendment No. 4 to the agreement with West Yost Associates, increasing the existing Agreement amount from $3,916,105 to $4,521,107.42, a $605,002.42 increase; and
Authorize the City Manager, or designee, to execute Amendment No. 4 and make minor modifications as appropriate thereto on behalf of the City.
By: Rebecca Li, P.E., Senior Civil Engineer
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Item 126/2026
ATTACHMENT(S)
1. Amendment No. 4
2. Proposal
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AMENDMENT 4 TO
WEST YOST ASSOCIATES
PROFESSIONAL SERVICES AGREEMENT FOR SCADA IMPLEMENTATION
PROJECTS
THIS AMENDMENT TO THE PROFESSIONAL SERVICES AGREEMENT between the CITY OF GARDEN GROVE and WEST YOST ASSOCIATES , is made and entered into, to be effective the 14th day of April, 2026, as follows:
RECITALS
WHEREAS, the City of Garden Grove (“City”) has employed West Yost Associates (“Consultant”) to provide program management for the SCADA Implementation Projects pursuant to that agreement dated September 24, 2020 (the “Agreement”); and
WHEREAS, the Agreement provided for the program management of the SCADA Implementation Projects; and
WHEREAS, Amendment 1 provided the additional Engineering Services for the design of Sanitation SCADA Upgrade; and
WHEREAS, Amendment 2 provided the additional Engineering Services for the design of the SCADA-related PFAS modifications for Well 19; and
WHEREAS, Amendment 3 provided the additional Engineering Services for the design of the SCADA upgrade for the remaining reservoir sites and the additional construction management support for the sewer lift stations SCADA upgrade construction project; and
WHEREAS, the City has requested that Consultant to perform additional services identified in the attached proposal ( additional Engineering Services for program management, design, and construction management for the SCADA upgrades at the reservoir sites and all the well sites with PFAS integration); and
WHEREAS, the City and Consultant have agreed to the proposal and to increase compensation to cover the additional services.
AMENDMENT
NOW, THEREFORE, in consideration of the promises and mutual covenants contained herein, the Scope of Work is hereby amended pursuant to Attachment 1, incorporated herein by reference. Based on the amended Scope of Work, the total compensation amount of the Agreement is increased to a not to exceed amount of $4,521,107.42, which reflects an increase in compensation of $ 605,002.42 for Amendment 4 to cover the additional services to be provided by Consultant.
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All provisions of the Agreement not affected herein shall remain in full force and effect.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, the parties hereto have executed this Amendment to the Professional Services for the Repair and R ehabilitation of Four Buried Water Storage Reservoirs – Phase I Project Agreement at Garden Grove, California.
CITY of GARDEN GROVE ATTEST:
By: By:
Lisa Kim, City Manager Lizabeth Vasquez, City Clerk
Date: Date:
Approved as to form:
City Attorney
“CONSULTNAT”
West Yost Associates
By: Date:
Title:
If CONTRACTOR is a corporation, a
Corporate Resolution and/or
Corporate Seal is required. If a
Partnership, Statement of Partnership
must be submitted to CITY.
561
25 Edelman
Suite 120
Irvine CA 92618
949.420.3030 phone
530.756.5991 fax
westyost.com
April 1, 2026 SENT VIA: EMAIL
Rebecca Li, PE
Senior Civil Engineer
City of Garden Grove
13802 Newhope Street
Garden Grove, CA 92843
SUBJECT: Amendment Request 4 – City of Garden Grove – SCADA Program Manager Services
Dear Rebecca:
The purpose of this letter is to request an amendment to the Scope of Services, Budget and Schedule for the SCADA Program Manager Services. This amendment is necessary to address significant unforeseen conditions and additional scope that have arisen during program implementation.
BACKGROUND AND PREVIOUS AMENDMENTS
In February 2020, West Yost finaliz ed the SCADA Master Plan for the City of Garden Grove (the City). The overall SCADA Program consisted of 22 projects with a budget of $7.8M to be implemented over a 5-year period. Through a competitive process, the City of Garden Grove selected West Yost to execute the SCADA Program Manager Services contract on September 24, 2020, with a planned Program completion of October 1, 2024. Since that time, the City has executed three amendments to adapt to evolving program needs.
Since program initiation, the SCADA Program has been impacted by conditions that were not foreseeable at the time of contract execution, including pandemic -related supply chain disruptions, legacy infrastructure constraints, and evolving regulatory require ments. These factors have significantly increased the level of effort required to successfully deliver the program.
SCOPE MODIFICATION # 4
This scope modification request is developed to a ddress key overall Program changes , including additional or enhanced services provided to the City during the execution of the Program. This modification also extends the schedule of the Program and increases the budget to accommodate these additional services.
The updated scope of services is presented in Attachment A with additional task details to provide clarity based on the key changes to the Program. The following sections summarize the additional services provided to date and continuing through completion. The updated schedule and detailed cost estimate is provided in Attachment B.
Unforeseen Conditions
The following unforeseen conditions increased the level of effort required to execute the SCADA Implementation plan.
COVID-19 Supply Chain Impacts: The SCADA Implementation Program was initiated during the COVID-19 pandemic, which introduced significant uncertainty related to material availability, procurement delays, and contractor 562
Rebecca Li
April 1, 2026
X-X-XXX-XXX-XXX
performance. These impacts resulted in extended equipment lead times and prolonged construction durations, requiring additional program management, coordination, and construction support efforts.
Lack of As -Built Documentation: Th e l e g a c y n a t u r e o f t h e C i t y’ s e x i s ti n g f a c i l i ti e s a n d t h e l a c k o f c o m p l e t e a n d accurate as-built documentation resulted in numerous unforeseen field conditions. As an example, the lack of as - built documentation required additional field investigations, engineering analysis, and design modifications to resolve conflicts and support compatibility with existing systems. The absence of reliable as -builts also resul ted in additional Requests for Information (RFIs), submittal reviews, and design changes throughout construction.
Contractor Performance: Contractor-related challenges further compounded these impacts. Issues with contractor performance, including delayed procurement, incomplete or low-quality submittals, and coordination gaps, resulted in significantly more submittal iterations and RFIs than originally anticipated. For example, certain submittals required u p t o f o u r ti m e s t h e p l a n n e d l e v e l o f r e v i e w e ff o r t , a n d c o n t r a c t o r i s s u e s l e d t o e x t e nd e d d e l a y s a n d i n c r e a s e d coordination demands.
Additional unforeseen construction issues included:
• Replacement of electrical equipment (i.e. Transformers, panel boards, etc. at Westhaven). • Equipment failures and vendor performance issues requiring additional engineering and field support. • Extended construction durations at multiple sites, significantly exceeding the originally planned construction durations.
These unforeseen conditions collectively increased the level of effort required across program management, design, construction management, and system integration activities.
Additional Scope
In addition to the unforeseen conditions listed above, several scope additions have been included in the SCADA Implementation Plan that were not included as part of the original scope of services.
Chemical and Mechanical Systems Enhancements : Chemical dosing skids and associated controls, chemical analyzers, and ancillary components were replaced at multiple sites. This work required additional engineering design, specification development, PLC programming, SCADA configuration, factory testing, and commissioning.
Mechanical design efforts were also expanded to accommodate new analyzers, solenoid control schemes, and associated infrastructure.
PFAS Treatment Integration: Since 2020, PFAS treatment systems have been added at multiple well sites. Integration of these systems into the SCADA network requires additional programming, system integration, development of Standard Operating Procedures (SOPs), operator training, and coordination with parallel PFAS design and construction projects.
SCADA Maintenance Support: To maintain system functionality during implementation, West Yost provided ongoing maintenance and support for core SCADA servers , hardware, software, patches and updates . T his e ff o r t w a s no t included in the original scope and required periodic technical support and system maintenance.
Increased Contractor and Submittal Support : West Yost has provided significantly increased support for submittal reviews, RFIs, coordination meetings, and construction issue resolution. The volume and complexity of submittals significantly exceeded original assumptions, requiring substantially more engineering review effort , coordination, and meetings.
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Rebecca Li
April 1, 2026
X-X-XXX-XXX-XXX
Expanded Program Management Scope and Duration: The program management scope has significantly expanded since the original scope of services was contracted in 2020. This includes additional Program Management effort to coordinate for operational consistency with separate ongoing projects at the city , including a new wastewater systems upgrade project, coordination with multiple PFAS design and construction projects led by other design and construction firms, that directly impacted the SCADA Program. We estimate a 1 0% increase in effort above and beyond the original Program Management effort. This coordination made sure that these other projects were well aligned with the SCADA Program and adapting the Program to the changing system condition triggered by these projects.
The original program was scheduled for completion in 2024. The overall Program schedule has been extended through June 2029, requiring an additional 4 years and 8 months of Program Management support for the City.
Program Management is inclusive of efforts to coordinate the work within this Program, plus the interrelationships with multiple ongoing related projects that are being executed outside this Program.
AMENDMENT REQUEST
Our additional budget request is based on our estimated level of effort to complete the current Program, minus the remaining budget we expect at the anticipated time of acceptance of this amendment request. We request that the City authorize the additional budget and contract time extension required to complete this important Program.
The total requested additional budget amount is $605,002.42, as presented in Attachment B. West Yost will continue to perform the scope of services described above on a time-and-expenses basis at West Yost’s standard billing rates.
Our current Billing Rate Schedule is attached (Attachment C). Additional services not included in this scope of services will be performed only after receiving written authorization and a corresponding budget adjustment.
Schedule
Please see the detailed schedule attached (Attachment B). Thank you for providing West Yost the opportunity to be of continued service to the City of Garden Grove . We look forward to working with you on this important project.
Please call if you have any questions or require additional information.
Sincerely,
WEST YOST
Michael Gruenbaum Daniel Groves
Area Market Lead, Southern California Business Sector Lead, OTCR
Attachment(s):
Attachment A – Amended Scope of Services
Attachment B – Program Schedule and Budget
Attachment C – West Yost’s 2026 Billing Rate Schedule
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Amended Scope of Services
Attachment A
565
25 Edelman
Suite 120
Irvine CA 92618
949.420.3030 phone
530.756.5991 fax
westyost.com
AMENDED SCOPE OF SERVICES
The following scope of services replaces the Scope of Services outlined in the original contract dated September 24, 2020, other than work completed through April 2026. This scope of services represents the work remaining to finish the Program based on activities occurring from April 2026 through February 2028.
Task 101.1 Program Management
The implementation of the SCADA Master Plan is a complex engagement that requires technical and project management capabilities. West Yost staff will manage the Program, including:
• Project Re-Kickoff Meeting- West Yost will prepare for and coordinate a project re-kickoff meeting. The project team will review the project approach, scope, and updated project schedule. • Monthly invoices will be prepared, including a monthly progress report • Quality Control – In accordance with our internal quality assurance/quality control (QA/QC) policy, quality assurance and quality control will be performed for each of the project deliverables prior to final submission to the City.
• Project Closeout – In accordance with our internal policy, we will conduct final project closeout activities, including final document delivery and final invoice.
Task 101.1 Assumptions
• The list of activities provides a summary of the types of services West Yost anticipates the City will require during the contract period.
• Additional Program Management services will be provided as requested by the Client within the approved budget.
• Technical Project Meetings will be held at the project level with the Project Manager assigned to each specific project.
Task 101.1 Deliverables
• West Yost will provide deliverables as listed above, including, but not limited to, Monthly Progress Reports, Quarterly Program Progress Summary Reports, Project Description updates, and RASCI charts.
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Task 102. High Priority Startup, Commissioning, and Project Closeout This task will provide factory acceptance testing (FAT), engineering services during construction (ESDC), startup and commissioning services, and project closeout activities for sites where the design and construction are finished for the following HP2 sites: Well 27, Magnolia, West Garden Grove, and Lampson.
Task 102.1 Engineering Services During Construction
The objective of this task is to provide ESDC services needed for the HP2 project through project completion, including RFIs, submittals, and development of as-builts. o Requests for Information (RFI) – West Yost will respond to RFIs generated by the Contractor. o Submittals – West Yost will review remaining submittals. Since most submittals have already been reviewed, we are assuming there will be loop drawing submittals for West Garden Grove and Lampson, and up to two miscellaneous submittals.
o DEICs – West Yost will develop up to four Design Engineer Initiated Changes. o Closeout Submittals – West Yost will review closeout submittals provided by the Contractor: O&M manuals, shop drawings, red-lined as-builts, etc.
o As-Builts – West Yost will update contract documents to include Design Engineer Initiated Changes (DEIC) and red-lines from the contractor.
Task 102.2 Programming, Testing, and Commissioning Support The objective of this task is to finalize PLC programming, configuration of SCADA screens, attend Factory Acceptance Testing, and provide commissioning support for each site. o PLC programming/SCADA configuration – West Yost will develop PLC programming and SCADA screen updates for the remaining sites to align with programming from sites that have already been commissioned.
o Factory Acceptance Testing (FAT) – West Yost will attend one FAT for the Lampson control panel. o Commissioning Support – West Yost will provide loop checks, startup, and commissioning support for West Garden Grove and Lampson.
Task 102.3 Construction Inspection, Management, and Administration The objective of this task is to provide construction management, inspection, and administration support through the remainder of the HP2 project.
o CM/Inspection – West Yost will provide CM/inspection and administration support for West Garden Grove and Lampson sites.
o CM Admin – West Yost will receive and process RFIs (and responses), submittals (and responses), DEICs, pay applications, etc. West Yost will coordinate with the Contractor, host weekly progress meetings, review the Contractor’s certified payrolls for labor compliance, and work with the City to close out the construction contract.
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Overall Task 102 Assumptions
o The scope of work for this task begins concurrently with the project re-kickoff meeting as part of Task 101 and ends on 10/21/2026 (the contract completion date for the HP2 project with LEED Electric). o Michael Gruenbaum will serve as Project Manager for Task 102. o City Project Manager will attend meetings associated with this task. o Meetings associated with this task will be conducted virtually via Microsoft Teams, unless otherwise specified through coordination between the City and West Yost.
o The construction contract for Trask and Westhaven (HP1) will be closed out prior to the amendment commencement date. No support for HP1 is included as part of this task. o West Yost will respond to a maximum of 15 RFIs (as of the date of the project re-kickoff meeting as part of Task 101).
o West Yost will review a maximum of 14 submittals, each assumed to have one resubmittal (as of the date of the project re-kickoff meeting as part of Task 101).
o West Yost will provide up to four DEICs (as of the date of the project re-kickoff meeting as part of Task 101). o West Yost will provide one construction inspector for two weeks of on-site commissioning support for West Garden Grove and three weeks of on-site commissioning support for Lampson. o Record drawings will be based solely on red-line markups provided by the contractor. o West Yost will provide four weeks of inspection support per site (West Garden Grove and Lampson).
Task 102 Deliverables
o West Yost will provide RFI responses via Procore.
o West Yost will provide submittal responses via Procore. o West Yost will provide DEICs via Procore.
o West Yost will provide final record drawings.
o West Yost will provide PLC and SCADA backup files in native format to the City. o West Yost will provide Procore daily inspection reports via email (weekly). o West Yost will provide reviewed copies of Contractor’s Certified Payroll Reports. o West Yost will provide Weekly Statements of Working Days.
Task 103. Medium Priority Flow Monitoring and Controls Design, Construction and Implementation – Core Sites
This task will develop a single design package, providing programming, configuration , and startup services for 29.
Also included are programming and Configuration Services for Well 19.
Task 103.1 Engineering/Design
This task includes attending up to eight (8) client-facing meetings to review electrical, instrumentation, or networking engineering concepts, issues to be resolved, and action items. West Yost will lead this meeting and provide meeting notes to the client.
West Yost will host virtual design review workshops at 60% and 90% design stages.
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Design deliverables will be developed as 60%, 90%, and 100% design submittals to the City. A design workshop will be held with the City to discuss 60% and 90% review comments. The following drawings will be prepared for the design submittal:
1. Cover Sheet
2. Electrical Legend 1
3. Electrical Legend 2
4. Electrical Details
5. Well 29 Electrical Plan
6. Instrumentation Legend 1
7. Instrumentation Legend 2
8. Typical Well 29 P&ID
9. Well 29 Control Panel Exterior Elevation
10. Well 29 Control Panel Interior Elevation
11. Well 29 Control Panel - Power Distribution Diagram
12. Well 29 Control Panel - Control Schematic Diagram
Task 103.2 Programming and Configuration
Task 103.2.7 Well 29 (Typical for 103.2.6 Well 19)
Task 103.2.7.1 Control Strategy Modifications
T he o b j e c t i v e o f t h i s t a s k i s t o modify the control strategy for Well 29. This control strategy will serve as the primary reference for PLC programming, SCADA configuration, and alarm configuration. Control Strategy Modifications activities include the following:
o Modify Control Strategy – West Yost will review the existing control strategy and make modifications as needed for review by the City.
o City Review – Once the control strategy is modified, West Yost will send it to the City for review. o Develop Final Control Strategy – After City Review, West Yost will develop the final control strategy for review by the City.
Task 103.3.7.1 Assumptions
o The City will provide West Yost with existing control strategies for Well 29 prior to control strategy modifications.
o The City will provide West Yost with existing Well 29 PLC, SCADA, and OIT backup files prior to control strategy modifications.
o The City will provide West Yost with access to the Well 29 facility for assessment, as needed, to facilitate modifications to the control strategy.
o City comments will be consolidated by the City into one comment set, and there will be only one round of comment response for each submission.
Task 103.3.7.1 Deliverables
o West Yost will provide draft and final control strategies to the City.
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Task 103.3.7.2 PLC Programming
The objective of this task is to develop PLC logic for Well 29 that aligns to the final control strategy. PLC Programming activities include the following:
• PLC Programming – Once approval of the final control strategy is received from the City, West Yost will develop PLC logic for the automation and control of Well 29. • PLC Program Testing – Once PLC logic has been developed, West Yost will test the logic in a West Yost lab environment prior to deploying to the Well 29 PLC.
Task 103.3.7.2 Assumptions
o Programming prior to Site Acceptance Testing and Commissioning activities will be done in a West Yost lab environment.
o The City will provide approval of the final control strategy prior to the start of PLC programming activities. o PLC programming of Well 29 will be implemented based on the final control strategy and will match existing controls; no new functionality will be provided.
o Well 29 consists of a constant speed well pump, flushing valve, system check valve, level transmitter, flow meter, PFAS treatment system, sodium hypochlorite system, and two (2) booster pumps that operate in duty/standby.
o The City will provide direction to West Yost regarding which Well 29 PLC firmware is required prior to the start of PLC Programming activities.
o The City will provide West Yost with the latest Well 29 Input/Output (I/O) list that shows the mappings of each I/O point to their respective I/O card and channel prior to the start of PLC Programming activities. o The City will provide West Yost with the latest Well 29 PLC backup file(s) prior to the start of PLC Programming activities.
o The City will provide West Yost with the latest City SCADA Standards prior to the start of PLC Programming activities.
o Hardware, software, and licenses associated with this task will be procured by the City. o Costs for hardware and software are not included in this scope.
Task 103.3.7.2 Deliverables
o West Yost will provide the City with a final Well 29 PLC backup file.
Task 103.3.7.3 SCADA Configuration
The objective of this task is to update Supervisory Control and Data Acquisition (SCADA) Human Machine Interface (HMI) screens for Well 29. SCADA Configuration activities include the following:
• HMI Screens Modifications – West Yost will modify existing SCADA HMI screens to use the updated tag names/mappings developed as part of PLC programming activities. • Configuration of Alarms, Trends, and Historian Tags – West Yost will perform the final configuration of alarms, trends, and historian tags based on the new tag names/mappings developed as part of PLC programming activities.
• HMI Screen Testing – Once SCADA HMI screen modifications are completed, West Yost will perform testing of the screens in a West Yost lab environment.
• HMI Screens Deployment – Once the SCADA screens are tested, they will be deployed to the City SCADA production environment.
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Task 103.3.7.3 Assumptions
o SCADA screens currently exist for Well 29 in the Ignition SCADA application and will be modified by West Yost to use the newer PLC tag names/mappings developed as part of PLC programming activities. o The OIT will run the same Ignition SCADA application as the central SCADA system, so screens developed for the central SCADA system will be restored to the OIT (i.e., there will be no need to recreate SCADA screens specifically for use on the OIT).
o The City will provide approval of the final control strategy prior to the start of SCADA Configuration activities. o Modifications to SCADA screens will be based on the final control strategy and will match existing functionality; no new functionality will be provided.
o HMI screen development prior to Site Acceptance Testing and Commissioning activities will be done in a West Yost lab environment.
o The City will provide West Yost with the latest SCADA backup file(s) prior to the start of SCADA Configuration activities.
o The City will provide West Yost with the latest City SCADA Standards prior to the start of SCADA Configuration activities.
o Hardware, software, and licenses associated with this task will be procured by the City. o Required SCADA reports will be developed by the City. o Costs for hardware and software are not included in this scope.
Task 103.3.7.3 Deliverables
o West Yost will provide the City with a final SCADA backup file.
Task 103.3.7.4 Factory Acceptance Testing
The objective of this task is to coordinate with the panel builder to participate in and witness a Factory Acceptance Test (FAT) on the new Well 29 control panel. FAT activities include the following:
• Assess Control Panel – West Yost will perform an assessment of the control panel to check for damages, holes, loose wires, and other poor qualities that could negatively impact the SCADA system. • Test Network Functionality – West Yost will connect to the network equipment inside the control panel to test basic network functionality and to observe traffic flow between SCADA components. • Test PLC and Input/Output (I/O) Functionality – West Yost will go online with the PLC using a blank PLC program (consisting of SCADA tags but no logic) to perform basic tests on the processor and I/O cards. This includes having the panel builder send test signals to the inputs. • Test OIT Functionality – West Yost will configure the new OIT. West Yost will also import the latest HMI screens to the OIT to test functionality and communication with the PLC.
Task 103.3.7.4 Assumptions
o The FAT will be conducted within 100 miles of the City of Garden Grove. o The FAT will be conducted and led by the panel builder; West Yost will provide testing support to the panel builder.
o The panel builder will provide a test plan/checklist to participants and witnesses of the FAT prior to the start of FAT activities.
o The panel builder will flash the PLC with the required firmware prior to the start of FAT activities. o The panel builder will power the panel and associated equipment. o The panel builder will conduct required tests involving wires and electrical components. o West Yost will download to the PLC and conduct I/O checks with assistance from the panel builder. o A City representative will be present to witness the FAT. o FAT activities will last up to two (2) days.
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Task 103.3.7.4 Deliverables
o The panel builder will provide a sign-off sheet of tested and completed items associated with the FAT.
Task 103.3.7.5 Site Acceptance Testing and Commissioning The objective of this task is to perform site acceptance testing and system commissioning for Well 29. Site Acceptance Testing and Commissioning Activities include the following:
• Assess Control Panel – West Yost will perform a visual assessment of the control panel to check for damages, holes, loose wires, and other poor qualities that could negatively impact the SCADA system. • Test Network Functionality – West Yost will connect to the network equipment inside the control panel to test basic network functionality and to observe traffic flow between SCADA components. • PLC Program Download – West Yost will configure the PLC with the required Internet Protocol (IP) address and download the final developed program to the PLC.
• OIT Screens Deployment – West Yost will import the final HMI screens to the Well 29 OIT. West Yost will also configure the OIT with the required Internet Protocol (IP) address. • SCADA Screens Deployment – West Yost will import the final HMI screens to the City of Garden Grove SCADA production environment.
• Field I/O Checkout – West Yost will work with the panel builder/electrician to perform I/O checks in the PLC program for equipment and instrumentation wired to the PLC. • System Testing and Startup – West Yost will conduct system tests in Remote Manual and Remote Auto to observe that system performance aligns with the final control strategy. • Equipment PID Tuning – West Yost will perform Proportional-Integral-Derivative (PID) tuning for required control valves and Variable Frequency Drives (VFDs) to align equipment performance to the final control strategy.
Task 103.3.7.5 Assumptions
o City representatives will be present and will assist West Yost with the requested troubleshooting of field equipment, instrumentation, network equipment, wiring, and the control panel. o Jumpering of connections, electrical current readings, and simulation, and wiring of panel components to support testing and I/O checkouts will be performed by the panel builder/electrician. o Site Acceptance Testing and Commissioning activities will last up to ten (10) days.
Task 103.3.7.5 Deliverables
o No deliverables will be provided as part of this task.
Task 103.3.7.6 SOP Development
T h e o b j e c t i v e o f t h i s t a s k i s t o d e v e l o p a d o c u m e n t e d standard operating procedure (SOP) for Well 29. This SOP will describe how to use the SCADA system to monitor and control the site. SOP Development activities include the following:
o Develop Draft SOP – West Yost will develop a draft SOP for review by the City. o City Review – Once the draft SOP is developed, West Yost will send it to the City for review. o Develop Final SOP – After City review, West Yost will develop the final SOP for review by the City.
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Task 103.3.7.6 Assumptions
o No SCADA SOP for Well 29 currently exists.
o The City will provide West Yost with existing Well 29 PLC, SCADA, and OIT backup files prior to SOP development.
o The City will provide West Yost with access to the Well 29 facility for assessment, as needed, to facilitate development of the SOP .
o City comments will be consolidated by the City into one comment set, and there will be only one round of comment response for each submission.
Task 103.3.7.6 Deliverables
o West Yost will provide draft and final SOPs to the City.
Task 103.3 Bidding Services
West Yost will assist the City as requested with the bid documents, the bid openings, and evaluation of the bids for completeness, responsiveness, and price, including alternate prices and unit prices (as applicable). A summary will be issued to the City regarding the potential award of the contracts, and we will receive and review the bids, prepare a bid evaluation, and provide recommendations for the selection of bidders. West Yost will assemble and organize the contracts in accordance with the grant funding requirements to perform the work according to the plans and specifications for the project.
West Yost will review up to 10 bidder questions and requests for clarification (RFCs) submitted by the Contractor (assumes 2 hours per question or RFC response). The City’s CM will log bidder questions, RFCs , and their responses, and will be the primary point of contact for the Contractor and Engineer. Responses will be checked for accuracy and readability via a quality assurance/quality control (QA/QC) review process.
West Yost will prepare up to one addendum. It is assumed that the addendum could take up to 40 hours.
Task 103.4 Engineering Services During Construction
West Yost will provide limited engineering services during construction (ESDC) by attending construction progress meetings, attending team coordination meetings, answering questions from the contractor, providing design clarifications, reviewing submittals, and evaluating project change orders.
This task includes attend ing up to twelve (12) client-facing meetings during construction to review electrical, instrumentation, or networking engineering concepts, issues to be resolved, and action items. West Yost will lead this meeting and provide meeting notes to the client.
West Yost will review shop drawings, product data, certifications, work plans, schedules, operation & maintenance manuals, etc., that are provided to us by the Construction Manager (CM). We will prepare a review letter and send the review letter to the City’s CM. Assumes 40 submittals, 2 hours per submittal, and a maximum of 2 reviews per submittal. Submittal reviews will be checked for accuracy and readability via the QA/QC review process. Task 103.6 will maintain the Submittal Log, tracking submittals, an d will be the primary point of contact for the Contractor and Engineer.
West Yost will review up to 20 RFIs generated and issued by the Contractor (assumes 2 hours per RFI response). The City’s CM (Task 103.6) will log RFIs and their responses and will be the primary point of contact for the Contractor and the Engineer. RFI responses will be checked for accuracy and readability via the QA/QC review process.
West Yost will review up to four (4) change orders from the Contractor (16 hours assumed for this task).
573
West Yost will issue design clarifications when required to clarify the intent of the Contract Drawings and Specifications or to communicate a change to the Contract drawings and Specifications initiated by the Engineer or Owner. Design clarifications may include narrative descriptions, revised Contract Specifications , or Contractor Drawings. West Yost will prepare up to two design clarifications. It is assumed that each clarification could take up to 20 hours.
At project closeout, the Contractor will transmit their as -built dr awings to W est Y ost. W est Y ost will review these updated plans and compare them with our version of the as -built conditions. Using the Contractor’s as -built drawings, West Yost will create Record Drawings (PDF format; DWG format).
Task 103 Assumptions
o Zane Wilsterman will be the Project Manager for Task 103.1 and Task 103.4. o West Yost will work with the City to pre-qualify Contractors prior to issuing for bid. o Greg Smith will be the Project Manager for Tasks 103.3. o It is assumed that West Yost will not obtain permits for the project. o It is assumed that progress meetings during design or construction with the City will be virtual, attended by up to 2 West Yost team members. It is also assumed that the duration of these meetings will be 1 hour. o It is assumed that each design workshop (typically 2) will be held virtually with a 2-hour duration. o It is assumed that record drawing information will be included in the construction contractor’s redline markups without the need for separate instructions, interpretations, or separate sheets that are attached to the drawings or provided separately from the drawing set.
o Record Drawings will not be sealed or signed.
o Record Drawings will be delivered electronically in PDF and DWG format. o It is assumed that 12 months is the anticipated duration for construction phase services.
Task 103 Deliverables
o Meeting notes.
o 60% Drawings and Specifications (PDF format).
o 90% Drawings and Specifications (PDF format).
o 100% Drawings and Specifications will be signed electronically (PDF and DWG format). o One (1) electronic response per submittal reviewed.
o One (1) electronic response per RFI.
o Design Clarification(s).
o Record Drawings (PDF and DWG format).
574
Attachment B
Program Schedule and Budget
575
ID Task Name Duration Start Finish Work Cost
1 City of Garden Grove - SCADA Program Management 485 days Mon 4/20/26 Fri 2/25/28 2,416.55 hrs $605,002.42 2 Budget Remaining 0 days Mon 4/20/26 Mon 4/20/26 0 hrs ($50,000.00) 3 Key Milestones 0 days Mon 4/20/26 Mon 4/20/26 0 hrs $0.00 4 Amendment 1 Approved 0 days Mon 4/20/26 Mon 4/20/26 0 hrs $0.00 5 Task 101.1 Program Management 485 days Mon 4/20/26 Fri 2/25/28 306.87 hrs $96,286.32 10 Task 102. High Priority Projects 155 days Mon 4/20/26 Fri 11/20/26 974 hrs $270,076.00 11 Task 102.1 Engineering Services During Construction 155 days Mon 4/20/26 Fri 11/20/26 196 hrs $62,664.00 17 Task 102.2 Programming, Testing, and Commissioning Support 155 days Mon 4/20/26 Fri 11/20/26 248 hrs $64,968.00 21 Task 102.3 Construction Inspection, Management, and Administration 155 days Mon 4/20/26 Fri 11/20/26 530 hrs $142,444.00 25 Task 103. Medium Priority Projects 197 days Wed 7/1/26 Thu 4/1/27 1,135.68 hrs $288,640.10 26 Task 103.2 Programming and Configuration 197 days Wed 7/1/26 Thu 4/1/27 1,135.68 hrs $288,640.10 27 Task 103.2.7 Well 29 44 days Mon 2/1/27 Thu 4/1/27 545.28 hrs $143,252.50 33 Task 103.2.6 Well 19 52 days Wed 7/1/26 Thu 9/10/26 590.4 hrs $145,387.60 4/20
4/20
4/20
J M M J S N J M M J S N J M
Half 1, 2026 Half 2, 2026 Half 1, 2027 Half 2, 2027 Half 1, 2028 Task
Split
Milestone
Summary
Project Summary
Inactive Task
Inactive Milestone
Inactive Summary
Manual Task
Duration-only
Manual Summary Rollup
Manual Summary
Start-only
Finish-only
External Tasks
External Milestone
Deadline
Progress
Manual Progress
Project: City of Garden Grove -
Date: Wed 3/25/26
576
Attachment C
West Yost’s 2026 Billing Rate Schedule
577
(Effective January 1, 2026, through December 31, 2026)*
POSITIONS
ENGINEERING
Principal/Vice President
$392
Engineer/Scientist/Geologist Manager I / II
$370
/
$387
Principal Engineer/Scientist/Geologist I / II
$333
/
$355
Senior Engineer/Scientist/Geologist I / II
$297
/
$312
Associate Engineer/Scientist/Geologist I / II
$246
/
$265
Engineer/Scientist/Geologist I / II / III
$191
/
$221
/
$231
Engineering Aide
$117
Field Monitoring Services
$145
Administrative I / II / III / IV
$107
/
$133
/
$160
/
$176
ENGINEERING TECHNOLOGY
Engineering Tech Manager I / II
$384
/
$387
Principal Tech Specialist I / II
$353
/
$365
Senior Tech Specialist I / II
$320
/
$334
Senior GIS Analyst
$292
GIS Analyst
$277
Technical Specialist I / II / III / IV
$206
/
$231
/
$261
/
$291
Technical Analyst I / II
$148
/
$176
Technical Analyst Intern
$119
Cross-Connection Control Specialist I / II / III / IV
$154
/
$167
/
$188
/
$208
CAD Manager
$233
CAD Designer I / II
$181
/
$204
CONSTRUCTION MANAGEMENT
Senior Construction Manager
$373
Construction Manager I / II / III / IV
$222
/
$237
/
$251
/
$318
Resident Inspector (Prevailing Wage Groups 4 / 3 / 2 / 1) $200
/
$222
/
$247
/
$256
Apprentice Inspector
$181
CM Administrative I / II
$96
/
$130
Field Services
$256
2026 Billing Rate Schedule
LABOR CHARGES (DOLLARS PER HOUR)
■
Hourly rates include charges for technology and communication, such as general and CAD computer software, telephone calls, routine in-house copies/prints, postage, miscellaneous supplies, and other incidental project expenses. ■
Outside services, such as vendor reproductions, prints, and shipping; major West Yost reproduction efforts; as well as engineering supplies, etc., will be billed at the actual cost plus 15%. ■
The Federal Mileage Rate will be used for mileage charges and will be based on the Federal Mileage Rate applicable to when the mileage costs were incurred. Travel other than mileage will be billed at cost. ■
Subconsultants will be billed at actual cost plus 10%.
■
Expert witness services, research, technical review, analysis, preparation, and meetings will be billed at 150% of standard hourly rates. Expert witness testimony and depositions will be billed at 200% of standard hourly rates. ■
A finance charge of 1.5% per month (an annual rate of 18%) on the unpaid balance will be added to invoice amounts if not paid within 45 days from the date of the invoice. * This schedule is updated annually
578
(Effective January 1, 2026, through December 31, 2026)* Equipment Charges
EQUIPMENT
2" Purge Pump & Control Box
$300
/
day
Aquacalc / Pygmy or AA Flow Meter
$28
/
day
Emergency SCADA System
$35
/
day
Field Vehicles (Groundwater)
$200
/
day
Gas Detector
$80
/
day
Generator
$60
/
day
Hydrant Pressure Gauge
$10
/
day
Hydrant Pressure Recorder, Impulse (Transient)
$55
/
day
Hydrant Pressure Recorder, Standard
$40
/
day
Low Flow Pump Back Pack
$135
/
day
Low Flow Pump Controller
$200
/
day
Powers Water Level Meter
$32
/
day
Precision Water Level Meter 300ft
$30
/
day
Precision Water Level Meter 500ft
$40
/
day
Precision Water Level Meter 700ft
$45
/
day
QED Sample Pro Bladder Pump
$65
/
day
Skydio 2+ Drone (2 hour minimum)
$100
/
hour
Storage Tank
$20
/
day
Sump Pump
$24
/
day
Transducer Communications Cable
$10
/
day
Transducer Components (per installation)
$23
/
day
Trimble GPS – Geo 7x
$220
/
day
Tube Length Counter
$22
/
day
Turbidity Meter
$30
/
day
Turbidity Meter (2100Q Portable)
$35
/
day
Vehicle (Construction Management)
$18.75
/
hour
Water Flow Probe Meter
$20
/
day
Water Quality Meter
$50
/
day
Water Quality Multimeter
$185
/
day
Well Sounder
$30
/
day
BILLING RATES
2026 Billing Rate Schedule
* This schedule is updated annually
579
Item 118/2026
Final
City of Garden Grove
INTER-DEPARTMENT MEMORANDUM
To:
Lisa L. Kim From: Chief El-Farra
Dept:
City Manager Dept: Police
Date: 4/14/2026
Subject: Approval of an Agreement with the County Of Orange to provide forensic services for the Garden Grove Police Department. (Action Item)
OBJECTIVE
To secure City Council approval of an agreement with the County of Orange to provide forensic services for the Garden Grove Police Department.
BACKGROUND
Since 1996, the City of Garden Grove has contracted with the County of Orange for crime scene forensic services. The Orange County Crime Lab continues to be the only local forensic laboratory with the capabilities and infrastructure necessary to provide the full range of services required by the Department.
Historically, the Department has entered into five-year agreements with the County for these services. The current agreement is set to expire on June 30, 2026.
During the current term, the Orange County Crime Lab has provided enhanced services and the following personnel:
Two (2) Lead Forensic Specialists
One (1) Forensic Scientist III
DISCUSSION
The proposed agreement with the County of Orange will c over the period of July 1, 2026 through June 30, 2031.
As recommended by the Police Department, and pursuant to Garden Grove Municipal Code Section 2.50.060(d), competitive bidding is not required as the County of Orange remains the only provider capable of delivering comprehensive crime scene investigation and forensic services at the level required by the Department.
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Item 118/2026
The new agreement will continue to provide enhanced forensic services and maintain the current staffing model:
Two (2) Lead Forensic Specialists
One (1) Forensic Scientist III
This staffing configuration has proven effective in improving scene management, prioritizing DNA casework, and aligning with Orange County Crime Lab standards and best practices.
DNA analysis continues to be a critical c omponent in solving crimes. The assignment of a dedicated Forensic Scientist to the Garden Grove Police Department has significantly improved turnaround times and efficiency in processing forensic evidence for the Detective Bureau.
The Department remains highly satisfied with the quality, professionalism, and level of service provided by the Orange County Crime Lab.
FINANCIAL IMPACT
The estimated cost of providing forensic services for F iscal Year 2026–2027 is $764,623 representing a $41,688 increase from the Fiscal Year 2025–2026 cost of $722,935.
Any cost adjustments are attributed to factors including salary and benefit increases, equipment and supply costs, and operational expenses associated with maintaining enhanced forensic services.
The County will reimburse the City for unused overtime, and all supplies and processing related to forensic services will be provided under the terms of the agreement.
Funding for forensic services is incl uded in the Police Department’s F iscal Year 2026-27 operating budget; there will be no impact to the General Fund.
RECOMMENDATION
It is recommended that the City Council:
Approve the Agreement with the County of Orange to provide forensic services to the Police Department for Fiscal Year 2026–2027 in the amount of $764,623; Authorize the Mayor to execute the agreement on behalf of the City, including minor modifications as appropriate; and
Authorize the City Manager, or designee, to execute future amendments for the remainder terms of the five-year agreement, through June 30, 2031.
By: Kelly Huynh, Public Safety Fiscal Analyst
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Item 118/2026
ATTACHMENT(S)
1. FY 2026-31 County of Orange Forensics Agreement
582
583
584
585
586
587
588
589
590
Item 120/2026
Final
City of Garden Grove
INTER-DEPARTMENT MEMORANDUM
To:
Lisa L. Kim From: Samuel K. Kim
Dept:
City Manager Dept: Public Works
Date: 4/14/2026
Subject: Award a contract to ILB Electric, Inc. for Project No. CP-1381000, Traffic Signal Modifications at Various Locations Fiscal Year 2025-26. (Cost $1,265,280) (Action Item)
OBJECTIVE
For City Council to award a contract to ILB Electric, Inc. , for construction of Project No. CP- 1381000, Traffic Signal Modifications at Various Locations FY 25-26.
BACKGROUND
Project No. CP -1381000 consists of traffic signal modifications at Lampson Avenue/Euclid Street and Lampson Avenue/Western Avenue, and a street light relocation at Acacia Parkway/Nelson Street. The project involves installing new signal equipment, poles, cabinets, pull boxes, conduits, cables, CCTV cameras, vehicle video detection, and curb ramps. As part of the improvements, the southerly cross gutter at Lampson Avenue/Western Avenue will be reconstructed.
DISCUSSION
Staff solicited bids for this pro ject pursuant to Municipal Code Section 2.50.100. Three (3) qualified bids were received by the City Clerk's office. The bids were opened at 11:00 a.m. on March 25, 2026. The lowest qualified bidder is ILB Electric, with a total bid of $1,265,280.
This bid is within the current project budget. The licenses, references and all other documentation of the contractor have been reviewed and verified by staff, and found to be in order. This contract will comply with the City’s Community Workforce Agreement (CWA).
The anticipated contract schedule is as follows:
Award contract - April 14, 2026
Begin construction (estimated) - May 11, 2026 Complete construction (estimated) - November 9, 2026
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Item 120/2026
FINANCIAL IMPACT
The total cost of the contract for Project No. CP -1381000, Traffic Signal Modifications at Various Locations is $1,265,280 . Funding is included in the FY2025 -26 adopted capital improvement program budget from the Traffic Mitigation funds.
RECOMMENDATION
It is recommended that the City Council:
Award a contract to ILB Electric, Inc., in the amount of $1,265,280, for construction of Project No. CP-1381000, Traffic Signal Modifications at Various Locations FY 25-26; and
Authorize the City Manager, or designee, to execute the agreement and make minor modifications as appropriate thereto, on behalf of the City.
By: Madeleine Ortiz, Associate Engineer
ATTACHMENT(S)
1. Attachment 1 - Bid Summary
2. Attachment 2- Agreement
592
ATTACHMENT 1
CITY OF GARDEN GROVE
PUBLIC WORKS DEPARTMENT
Engineering Division
BID SUMMARY SHEET
FOR
TRAFFIC SIGNAL MODIFICATIONS
AT VARIOUS LOCATIONS FY 25-26
PROJECT NO. CP-1381000
BID OPENING: DATE: March 25, 2026 TIME: 11:00 A.M.
ENGINEER’S ESTIMATE: $ 1,350,000.00
Bidder’s Name
Total Bid
%
Under/Over
Engrs. Est
1 ILB Electric, Inc., Corona CA $1,256,280.00 6.94% under 2 Belco Elecnor, Inc., Chino CA $1,280,738.00 5.13% under 3 Comet Electric, Chatsworth CA $1,400,000.00 3.70% over
593
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C O N S T R U C T I O N A G R E E M E N T
ILB ELECTRIC, INC.
THIS AGREEMENT is made this 14th day of April, 2026 by the CITY OF GARDEN GROVE, a municipal corporation, ("CITY"), and ILB Electric, Inc., hereinafter referred to as ("CONTRACTOR").
RECITALS:
The following recitals are a substantive part of this Agreement:
1. This Agreement is entered into pursuant to Garden Grove City Council Authorization dated April 14, 2026.
2. CITY desires to utilize the services of CONTRACTOR to furnish material, equipment, and labor for the PROJECT NO. CP -1381000, TRAFFIC SIGNAL MODIFICATIONS AT VARIOUS LOCATIONS FY 25-26.
3. CONTRACTOR is qualified by virtue of experience, training, education, and expertise to accomplish services.
AGREEMENT
THE PARTIES MUTUALLY AGREE AS FOLLOWS:
5.1 General Conditions. CONTRACTOR certifies and agrees that all the terms, conditions and obligations of the Contract Documents as hereinafter defined, the location of the job site, and the conditions under which the work is to be performed have been thoroughly reviewed, and enters into this Contract based upon CONTRACTOR'S investigation of all such matters and is in no way relying upon any opinions or representations of CITY. It is agreed that this Contract represent s the entire agreement. It is further agreed that the Contract Documents including the Notice Inviting Bids, Special Instructions to Bidders, if any, Plans, Specifications, and CONTRACTOR's Proposal, are incorporated in this Contract by reference, with the same force and effect as if the same were set forth at length herein, and that CONTRACTOR and its subcontractors, if any, will be and are bound by any and all of said Contract Documents insofar as they relate in any part or in any way, directly or indirectly, to the work covered by this Contract.
"Project" as used herein defines the entire scope of the work covered by all the Contract Documents. Anything mentioned in the Specifications and not indicated in the Plans, or indicated in the Plans and not me ntioned in the Specifications, shall be of like effect as if indicated and mentioned in both. In case of discrepancy in the Plans or Specifications, the matter shall be immediately submitted to CITY’S Engineer, without whose decision CONTRACTOR shall not adjust said discrepancy save only at CONTRACTOR'S own risk and expense. The decision of the Engineer shall be final.
594
SECTION 5 - AGREEMENT (Continued)
-36-
5.2 Materials and Labor. CONTRACTOR shall furnish, under the conditions expressed in the Plans and Specifications, at CONTRACTOR'S own e xpense, all labor and materials necessary, except such as are mentioned in the Specifications to be furnished by the CITY, to construct and complete the project, in good workmanlike and substantial order. If CONTRACTOR fails to pay for labor or materials when due, CITY may settle such claims by making demand upon the surety to this Agreement. In the event of the failure or refusal of the surety to satisfy said claims, CITY may settle them directly and deduct the amount of payments from the Contract price and any amounts due to CONTRACTOR. In the event CITY receives a stop notice from any laborer or material supplier alleging non -payment by CONTRACTOR, CITY shall be entitled to deduct all of its costs and expenses incurred relating thereto, including but not limited to administrative and legal fees.
5.3 Project. The PROJECT is described as: PROJECT NO. CP-1381000, TRAFFIC SIGNAL MODIFICATIONS AT VARIOUS LOCATIONS FY 25-26
5.4 Plans and Specifications. The work to be done is shown in a set of detailed Plan s and Specifications entitled: PROJECT NO. CP-1381000, TRAFFIC SIGNAL MODIFICATIONS AT VARIOUS LOCATIONS FY 25 -26. Said Plans and Specifications and any revision, amendments or addenda thereto are attached hereto and incorporated herein as part of this Co ntract and referred to by reference. The work to be done must also be in accordance with the General Provisions, Standard Specifications and Standard Plans of the CITY, which are also incorporated herein and referred to by, reference.
5.5 Time of Commencement and Completion. CONTRACTOR shall have ten (10) working days from the award of the Contract to execute the Contract and supply the CITY with all the documents and information required by the Instructions to Bidders and the other Contract Documents, includ ing but not limited to, the necessary bonds and insurance certificates and endorsements. Once the CITY receives the executed contract and all of the other properly drafted and executed documents and information, it may issue a Notice to Proceed to the CONTRACTOR. If CONTRACTOR refuses or fails to provide the required documents and information within the ten (10) city working days, the CITY may then rescind the award of the Contract and then award the Contract to the next lowest responsive and responsible bidder.
The Contract time shall commence on the fifteenth (15 th) calendar day following the Notice to Proceed issued by the City and the CONTRACTOR agrees to submit shop drawings within fourteen (14) calendar days . Further, upon receipt of the Notice to Proceed, the CONTRACTOR shall diligently prosecute the work within eighty (80) working days to completion as required per the plans and specifications excluding delays caused or authorized by the CITY as set forth in Sections 5.7, 5.8 and 5.9 hereof.
5.6 Time is of the Essence. Time is of the essence of this Contract.
Contractor shall have fourteen (14) calendar days from the award of the Contract to execute the Contract and supply CITY with all of the documents and information required by the Instruction to Bidders and the other Contract Documents, including but not limited to, the necessary bonds and insurance certificates and endorsements. Once the CITY receives the executed Contract and all of the other properly drafted and executed documents and information, it may issue a Notice to Proceed to the CONTRACTOR. If CONTRACTOR refuses or fails to execute the Contract or refuses or fails to provide the required documents and information within the fourteen (14) calendar days, the CITY may then rescind the award of the Contract and then award the Contract to the next lowest responsible and responsive bidder.
595
SECTION 5 - AGREEMENT (Continued)
-37-
As required by the Contract Documents, CONTRACTOR shall prepare and obtain approval of all shop drawings, details and samples, and do all other things necessary and incidental to the prosecution of CONTRACTOR'S work in conformance with an approved construction progress schedule. CONTRACTOR shall coordinate the work covered by this Contract with that of all other CONTRACTORs, subcontractors and of the CITY, i n a manner that will facilitate the efficient completion of the entire work in accordance with Section 5.5 herein.
CITY shall have complete control of the premises on which the work is to be performed and shall have the right to decide the time or order in which the various portions of the work shall be installed or the priority of the work of other subcontractors, and, in general, all matters representing the timely and orderly conduct of the work of CONTRACTOR on the premises.
5.7 Excusable Delays. CONTRACTOR shall be excused for any delay in the prosecution or completion of the Project caused by acts of God; inclement weather; damages caused by fire or other casualty for which CONTRACTOR is not responsible; any act of negligence or default of CITY; failure of CITY to make timely payments to CONTRACTOR; late delivery of materials required by this CONTRACT to be furnished by CITY; combined action of the workers in no way caused by or resulting from default or collusion on the part of CONTRACTOR; a lockout by CITY; or any other delays unforeseen by CONTRACTOR and beyond CONTRACTOR'S reasonable control.
CITY shall extend the time fixed in Section 5.5 herein for completion of the Project by the number of days CONTRACTOR has thus been delayed, provided that CONTRA CTOR presents a written request to CITY for such time extension within fifteen (15) days of the commencement of such delay and CITY finds that the delay is justified. CITY'S decision will be conclusive on the parties to this Contract. Failure to file suc h request within the time allowed shall be deemed a waiver of the claim by CONTRACTOR.
No claims by CONTRACTOR for additional compensation or damages for delays will be allowed unless CONTRACTOR satisfies CITY that such delays were unavoidable and not the result of any action or inaction of CONTRACTOR and that CONTRACTOR took all available measures to mitigate such damages. Extensions of time and extra compensation as a result of incurring undisclosed utilities would be determined in accordance with SPECIAL PROVISIONS and Section 7-4 of the Standard Specifications fo r Public Works Construction 2024 Edition (GREEN BOOK). The CITY’S decision will be conclusive on all parties to this Contract.
5.8 Extra Work . The Contract price includes compensation for all work performed by CONTRACTOR, unless CONTRACTOR obtains a written change order signed by a designated representative of CITY specifying the exact nature of the extra work and the amount of extra compensation to be paid all as more particularly set fort h in Section 5.9 hereof.
CITY shall extend the time fixed in Section 5.5 for completion of the Project by the number of days reasonably required for CONTRACTOR to perform the extra work, as determined by CITY’S Engineer. The decision of the Engineer shall be final.
5.9 Changes in Project.
5.9.1 CITY may at any time, without notice to any surety, by written order designated or indicated to be a change order, make any change in the work within the general scope of the Contract, including but not limited to changes:
596
SECTION 5 - AGREEMENT (Continued)
-38-
a. In the Specifications (including drawings and designs); b. In the time, method or manner of performance of the work; c. In the CITY -furnished facilities, equipment, materials, services or site; or d. Directing acceleration in the performance of the work.
If CONTRACTOR believes that the written order issued as part of this Section 5.9.1 has caused an increase in costs or time, the CONTRACTOR shall submit a written request for equitable adjustment to the CITY that includes a detailed cost breakdown and time impact analysis in sufficient detail to allow the CITY to analyze the request.
Said notice shall be submitted via certified mail within twenty (20) days of the CONTRACTOR’S receipt of the written order. CONTRACTOR’S failure to submit the written request for equitable adjustment within the required twenty (20) days shall constitute a waiver of any potential change order or claim for said alleged change.
The CITY shall review CONTRACTOR’S request and shall provide a written response within thirty (30) days of receipt of the request either approving or denying the request.
5.9.2 A change may also be any other conflict, difficulty or issue which the CONTRACTOR believes caused any change to the CONTRACTOR’S costs or project schedule, provided CONTR ACTOR gives the CITY written notice and a request for equitable adjustment that includes a detailed cost breakdown and time impact analysis in sufficient detail to allow the CITY to analyze the request. The notice shall also state the date the CONTRACTOR b ecame aware of the issue, circumstances and source of the issue and that CONTRACTOR regards the issue as a change order. Said written notice shall be delivered to the CITY via certified mail within twenty (20) days of CONTRACTOR’S first notice of the issu e.
CONTRACTOR’S failure to submit the notice, which includes the written request for equitable adjustment within the required twenty (20) days shall constitute a waiver of ant potential change order or claim for said alleged change. The CITY shall review CONTRACTOR’S request and shall provide a written response within thirty (30) days of receipt of the request either approving or denying the request.
5.9.3 Except as provided in this Section 5.9, no order, statement or conduct of the CITY or its representatives shall be treated as a change under this Section 5.9 or entitle CONTRACTOR to an equitable adjustment.
5.9.4 Except for claims based on defective specifications, no claim for any change under paragraph 5.9.1 or 5.9.2 above shall be allowed for any work performed more than 20 days before the CONTRACTOR gives written notice as required in paragraphs
5.9.1 and 5.9.2. In the case of defective specifications for which the CITY is responsible, the equitable adjustment shall include any increased direct co st CONTRACTOR reasonably incurred in attempting to comply with those defective specifications.
5.9.5 If CONTRACTOR intends to assert a claim for an equitable adjustment under this Section 5.9, it must, within thirty (30) days after receipt of a denial of a request for equitable adjustment under paragraphs 5.9.1 and 5.9.2, submit a written statement to the CITY setting forth the general nature and monetary extent of such claim.
The CITY may extend the 30-day period. CONTRACTOR’S failure to submit the notice of a claim, within the required thirty (30) days shall constitute a waiver of the claim by the CONTRACTOR.
597
SECTION 5 - AGREEMENT (Continued)
-39-
5.9.6 No claim by CONTRACTOR for an equitable adjustment shall be allowed if made after final payment under this Agreement.
5.9.7 CONTRACTOR hereby agrees to make any and all changes, furnish the materials and perform the work that CITY may require without nullifying this Contract.
CONTRACTOR shall adhere strictly to the Plans and Specifications unless a change there from is authorized in writin g by the CITY. Under no condition shall CONTRACTOR make any changes to the Project, either in additions or deductions, without the written order of the CITY and the CITY shall not pay for any extra charges made by CONTRACTOR that have not been agreed upon in advance in writing by the CITY. CONTRACTOR shall submit immediately to the CITY written copies of its firm's cost or credit proposal for change in the work.
Disputed work shall be performed as ordered in writing by the CITY and the proper cost or cred it breakdowns therefor shall be submitted without delay by CONTRACTOR to CITY.
5.10 Liquidated Damages for Delay. The parties agree that if the total work called for under this Contract, in all parts and requirements, is not completed within the time spec ified in Section 5.5 herein, plus the allowance made for delays or extensions authorized under Sections 5.7, 5.8 and 5.9 herein, the CITY will sustain damage which would be extremely difficult and impractical to ascertain. The parties therefor agree that CONTRACTOR will pay to CITY the sum of One Thousand Three Hundred Dollars ($1,300.00) per day for each and every calendar day during which completion of the project has not been completed within eighty (80) working day period . CONTRACTOR agrees to pay such liquidated damages and further agrees that CITY may offset the amount of liquidated damages from any monies due or that may become due CONTRACTOR under the Contract.
5.11 Contract Price and Method of Payment . CITY agrees to pay and the CONTRACTOR agrees to accept as full consideration for the faithful performance of this Contract, subject to any subsequent additions or deductions as provided in approved change orders, the sum of One Million, Two H undred Sixty Five Thousand, Two H undred Eighty Dollars and Zero Cents ($1,265,280.00) as itemized in the bid proposal.
Progress payments shall be made to the CONTRACTOR on a monthly basis for each successive month as the work progresses. The CONTRACTOR shall be paid such sum as will bring the total payments received since the commencement of the work up to ninety-five percent (95%) of the value of the work completed, less all previous payments, provided that the CONTRACTOR submits the request for payment prior to the end of the day required to meet the payment schedule. The CITY will retain five percent (5%) of the amount of each such progress estimate and material cost until 30 days after the recordation of the Notice of Completion.
Payments shall be made on demands drawn in the manner required by law, accompan ied by a certificate signed by the CITY’S Engineer, stating that the work for which payment is demanded has been performed in accordance with the terms of the Contract. Partial payments of the Contract price shall not be considered as an acceptance of any part of the work.
5.12 Substitution of Securities in Lieu of Retention of Funds. Pursuant to California Public Works Contract Code § 22300, the CONTRACTOR will be entitled to post approved securities with the CITY or an approved financial institution in order to have the CITY release funds retained by the CITY to ensure performance of the Contract. CONTRACTOR 598
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shall be required to execute an addendum to this Contract together with escrow instructions and any other documents in order to effect this substitution.
5.13 Completion. Within 10 days after the contract completion date of the Project, CONTRACTOR shall file with the CITY’S Engineer its affidavit stating that all workers and persons employed, all firms supplying materials, and all subcontractors upon the Proj ect have been paid in full, and that there are no claims outstanding against the Project for either labor or material, except those certain items, if any, to be set forth in an affidavit covering disputed claims, or items in connection with Stop Notices wh ich have been filed under the provisions of the statutes of the State of California. CITY may require affidavits or certificates of payment and/or releases from any subcontractor, laborer or material supplier.
5.14 CONTRACTOR 's Employees Compensation
5.14.1 General Prevailing Rate . CITY has ascertained CONTRACTOR shall comply with all applicable requirements of Division 2, Part 7, Chapter 1 of the California Labor Code and all applicable federal requirements respecting the payment of prevailing wages. If there is a difference between the minimum wage rates predetermined by the Secretary of Labor and the prevailing wage rates determined by the Director of the Department of Industrial Relations (DIR) for similar classifications of labor, the CONTRACTOR and its S ubcontractors shall pay not less than the higher wage rate. The DIR will not accept lower State wage rates not specifically included in the Federal minimum wage determinations. This includes "helper" (or other classifications based on hours of experience) or any other classification not appearing in the Federal Wage determinations. Where Federal wage determinations do not contain the State wage rate determination otherwise available for use by the CONTRACTOR and Subcontractors, the CONTRACTOR and its Subcon tractors shall pay not less than the Federal Minimum wage rate which most closely approximates the duties of the employees in question."
5.14.2 Forfeiture for Violation. CONTRACTOR shall, as a penalty to the CITY, forfeit one hundred dollars ($100.00) for each calendar day or portion thereof for each worker paid (either by the CONTRACTOR or any subcontractor under it) less than the prevailing rate of per diem wages as set by the Director of Industrial Relations, in accordance with Sections 1770-1780 of the California Labor Code for the work provided for in this Contract, all in accordance with Section 1775 of the Labor Code of the State of California.
5.14.3 Apprentices. Section 1777.5, 1777.6 and 1777.7 of the Labor Code of the State of California, regarding the employment of apprentices is applicable to this Contract and the CONTRACTOR shall comply therewith; provided, however, that this requirement shall not apply if and/or to the extent that the Contract of the general CONTRACTOR, or the contracts of sp ecialty contractors not bidding for work through a general or prime contractor involve less than thirty thousand dollars ($30,000.00).
5.14.4 Workday. In the performance of this Contract, not more than eight (8) hours shall constitute a day's work, and CO NTRACTOR shall not require more than eight (8) hours of labor in a day from any person employed by him hereunder except as provided in paragraph (5.14.2) above. CONTRACTOR shall conform to Article 3, Chapter 1, Part 7 (Sections 1810 et seq.) of the Labor Code of the State 599
SECTION 5 - AGREEMENT (Continued)
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of California and shall forfeit to the CITY as a penalty, the sum of twenty -five Dollars ($25.00) for each worker employed in the execution of this Contract by CONTRACTOR or any subcontractor for each calendar day during which any worker is required or permitted to labor more than eight (8) hours in any one calendar day and forty (40) hours in any one week in violation of said Article.
CONTRACTOR shall keep an accurate record showing the name and actual hours worked each calendar day and each calendar week by each worker employed by CONTRACTOR in connection with the Project.
5.14.5 Record of Wages: Inspection . CONTRACTOR agrees to maintain accurate payroll records showing the name, address, social security number, work classification, straight-time and overtime hours worked each day and week, and the actual per diem wages paid to each journeyman, apprentice, worker or other employee employed by it in connection with the Project and agrees to require that each of its subcontractors does the same. The applicable CONTRACTOR or subcontractor or its agent having authority over such matters shall certify all payroll records as accurate. CONTRACTOR further agrees that its payroll records and those of its subcontractors shall be available to the employee or employee's representative, the Division of Labor Standards Enforcement, and the Division of Apprenticeship Standards and shall comply with all of the provisions of Labor Code Section 1776, in general. CONTRACTOR shall comply with all of the provisions of Labor Code Section 1776, and shall submit payroll records to the Labor Commissioner pursuant to Labor Code section 1771.4(a)(3). The CONTRACTOR shall submit copies of certified payroll reports and cancelled checks for labors, every two weeks to the Engineer. Certified payroll and cancelled checks submittals are due one month after start of construction and every two weeks thereafter. If the certified payroll and cancelled checks are not submitted, the CONTRACTOR will be notified that compliance is required within five (5) working days or contract work must cease. The CITY will not be responsible for any delay or acceleration charges or any incurred costs or damages as a result of the work stoppage due to CONTRACTOR’s failure to comply. Work shall be ceased in an orderly, safe fashion with all vehicle access restored. Should this not occur, CITY will correct the deficiencies and deduct the cost from funds due to the CONTRACTOR. In addition, no progress payment shall be made until the copies of certified payroll reports and cancelled checks are submitted.
5.14.6 Contractor Registration. CONTRACTOR and its subcontractors must be registered with the California Department of Industrial Relations pursuant to Labor Code Section 1725.5. This Agreement shall not be effective until CONTRACTOR provides proof of registration to the CITY.
5.14.7 Posting of Job Site Notices. CONTRACTOR shall comply with the job site notices posting requirements established by the Labor Commissioner pursuant to Title 8, Ca lifornia Code of Regulations Section 16461(e) or other regulation promulgated pursuant to Labor Code Section 1771.4(a) (2).
5.14.8 Notice of DIR Compliance Monitoring and Enforcement. Pursuant to Labor Code Section 1771.4, this Project is subject to compli ance monitoring and enforcement by the California Department of Industrial Relations.
5.15 Surety Bonds . CONTRACTOR shall, prior to entering into performance of this Agreement, furnish a performance bond, on the CITY's bond form in the amount of one hundred percent (100%) of the Contract price, to guarantee the faithful performance of the 600
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work, and a payment bond, on the CITY's form in the amount of one hundred percent (100%) of the Contract price, to guarantee payment of all claims for labor and material s furnished. Bonds submitted on any form other than the CITY's form will be rejected. The required bonds shall be from a surety licensed to do business in the State of California and with a current A.M. Best's rating of A -, VII. This Contract shall not become effective until such bonds are supplied and approved by the CITY."
5.16 Insurance.
5.16.1 COMMENCEMENT OF WORK . CONTRACTOR shall not commence work under this Agreement until all certificates and endorsements have been received and approved by the CITY. All insurance required by this Agreement shall contain a statement of obligation on the part of the carrier to notify the city of any material change, cancellation, or termination at least thirty (30) days in advance. A waiver of subrogation shall be provided by the insurer for each policy waiving subrogation against CITY, its officers, officials, employees, agents, and volunteers for this contract and all public agencies from whom permits will be obtained and their directors, officers, agents, and employees, as determined by the CITY, Claims made and modified occurrence policies shall not be accepted for any policy. All Subcontractors shall be required to provide and maintain the same insurances as required of CONTRACTOR under this contract. CONT RACTOR shall be required to collect and maintain all required insurances from all Subcontractors.
5.16.2 CONTRACTOR is aware of the provisions of Section 3700 of the Labor Code, which requires every employer to be insured against liability for Workers’ Compensation or undertake self -insurance in accordance with the provisions of that Code, and will comply with such provisions before commencing the performance of the work of this Contract.
5.16.3 CONTRACTOR and all Subcontractors shall carry workers' compensation insurance for the protection of its employees during the progress of the work. The insurer shall waive its rights of subrogation against the CITY, its officers, officials, employees, agents, and volunteers for this contract and all public agencies from whom p ermits will be obtained and their directors, officers, agents, and employees, as determined by the CITY, and shall issue a waiver of subrogation.
5.16.4 Before CONTRACTOR performs any work at, or prepares or delivers materials to, the site of construction, CONTRACTOR shall furnish:
Additional Insured Endorsements, ongoing and products -completed operations, for the Commercial General Liability policy , including mobile equipment and not excluding XCU. Endorsements shall designate CITY, its officers, officials, em ployees, agents, and volunteers for this contract and all public agencies from whom permits will be obtained and their directors, officers, agents, and employees, as determined by the CITY, as additional insureds for liability arising out of work or operat ions performed by or on behalf of the CONTRACTOR. CONTRACTOR shall provide to CITY proof of insurance and endorsement forms that conform to CITY’s requirements, as approved by the CITY. ( Form CG 20 26 07 04 & Form CG 20 37 07 04 or equivalent) (Claims made and modified occurrence policies are not acceptable; Insurance 601
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companies must be acceptable to CITY and have a minimum A.M. Best Guide rating of A-, class VII or better, as approved by CITY).
An Additional Insured Endorsement for an Automobile Liability policy and shall designate CITY, its officers, officials, employees, agents, and volunteers for this contract and all public agencies from whom permits will be obtained and their directors, officers, agents, and employees, as determined by the CITY, as additional insureds for automobiles owned, leased, hired, or borrowed by the CONTRACTOR. CONTRACTOR shall provide to CITY proof of insurance and endorsement forms that conform to CITY’s requirements, as approved by the CITY. ( Form CA 20 48 02 99 or equiv alent) ( Claims made and modified occurrence policies are not acceptable; Insurance companies must be acceptable to CITY and have a minimum A.M. Best Guide rating of A -, class VII or better, as approved by CITY).
In the event any of CONTRACTOR’S underlyin g policies do not meet policy limits as required here in, CONTRACTOR shall provide the schedule of underlying polices for a follows form excess liability policy, state that the excess policy follows form on the insurance certificate, and an additional insu red endorsement for the excess liability policy designating CITY, its officers, officials, employees, agents, and volunteers for this contract and all public agencies from whom permits will be obtained and their directors, officers, agents, and employees, as determined by the CITY, as additional insureds. ( Claims made and modified occurrence policies are not acceptable; Insurance companies must be acceptable to CITY and have a minimum A.M. Best Guide rating of A -, class VII or better, as approved by CITY).
For any claims related to this Project, the CONTRACTOR’s insurance coverage shall be primary insurance as respects CITY, its officers, officials, employees, agents, and volunteers for this contract and all public agencies from whom permits will be obtain ed and their directors, officers, agents, and employees, as determined by the CITY. Any insurance or self-insurance maintained by the CITY, its officers, officials, employees, agents, and volunteers for this contract and all public agencies from whom perm its will be obtained and their directors, officers, agents, and employees, as determined by the CITY, shall be excess of the CONTRACTOR’s insurance and not contribute with it.
5.16.5 Before CONTRACTOR performs any work at, or prepares or delivers materials to, the site of construction, CONTRACTOR shall furnish:
CONTRACTOR shall maintain all of the foregoing insurance coverage in force until the work under this Contract is fully completed. The requirement for carrying the foregoing insurance shall not derogate from the provisions for indemnification of CITY by CONTRACTOR under Section 5.17 of this Contract. Notwithstanding nor diminishing the obligations of CONTRACTOR with respect to the foregoing, CONTRACTOR shall subscribe for and maintain in full force and effect during the life of this Contract, the following insurance in amounts not less than the amounts specified and issued by a company admitted and licensed in California and having a Best's Guide Rating of A -Class VII or better (claims made and m odified occurrence policies are not acceptable):
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Workers’ Compensation As required by the State of
California.
Employer’s Liability
Not less than $1,000,000 per
accident for bodily injury or disease.
Commercial General Liability
(including on-going operations, products
- completed operations, and mobile
equipment, and not excluding XCU)
Not less than $5,000,000 per
occurrence for bodily injury,
personal injury and property
damage.
Automobile Liability, for all automobiles
including non-owned and hired vehicles
Not less than $2,000,000 combined
single limit for bodily injury and
property damage.
Follows Form Excess Liability
Required for any underlying policy
that does not meet the underlying
policy limits required herein.
If contractor ma intains higher insurance limits than the minimums shown above, CONTRACTOR shall provide coverage for the higher limits otherwise maintained by the CONTRACTOR.
CITY or its representatives shall at all times have the right to inspect and receive a certified copy of all said policies of insurance, including certificates and endorsements at CONTRACTORS sole cost and expense. CONTRACTOR shall pay the premiums on the insurance hereinabove required.
5.17 Risk and Indemnification. All work covered by this Contract done at the site of construction or in preparing or delivering materials to the site shall be at the risk of CONTRACTOR alone.
CONTRACTOR agrees to save, indemnify and keep the CITY, its Officers, Agents, Employees, Engineers, and Consultants for this Contract, and all public agencies from whom permits will be obtained and their directors, Officers, Agents and Employees harmless against any and all liability, claims, judgments, costs and demands, including demands arising from injuries or death of persons (C ONTRACTOR'S employees included) and damage to property, arising directly or indirectly out of the obligations herein undertaken or out of the operations conducted by CONTRACTOR, save and except claims or litigation arising through the sole negligence or sole willful misconduct of CITY and will make good to reimburse CITY for any expenditures, including reasonable attorneys' fees CITY may incur by reason of such matters, and if requested by CITY, will defend any such suits at the sole cost and expense of CONTRACTOR.
5.18 Termination.
This Contract may be terminated in whole or in part in writing by the CITY in the event of substantial failure by the CONTRACTOR to fulfill its obligations under this Agreement, or it may be terminated by the CITY for its conven ience in the manner provided for in subsections A and B below. If termination for default or convenience is effected by the CITY, an equitable adjustment in the price provided for in this Contract shall be made, but (1) no amount shall be allowed for 603
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anticipated profit on unperformed services or other work, and (2) any payment due to the CONTRACTOR at the time of termination may be adjusted to cover any additional costs to the CITY because of the CONTRACTOR'S default. Upon receipt of a termination action, the CONTRACTOR shall (1) promptly discontinue all affected work (unless the notice directs otherwise), and (2) deliver or otherwise make available to the CITY all data, drawings, specifications, reports, estimates, summaries and such other information and materials as may have been accumulated by the CONTRACTOR in performing this Contract whether completed or in process. Upon termination, the CITY may take over the work and may award another party an agreement to complete the work under this Contract.
A. Termination for Default.
If the CONTRACTOR refuses or fails to prosecute the work or any separable part thereof with such diligence as will ensure its completion within the time specified herein, or any authorized extension thereof, or fails to perform the work in a manner required by the Contract Documents and/or industry standards, or fails to complete such work within such time as required under the Contract Documents or, if the CONTRACTOR should be adjudged as bankrupt, or is otherwise deemed insolvent by CITY based on good cause and is unable to proceed with the work, or if the CONTRACTOR should make a general assignment for the benefit of creditors, or if a receiver should be appointed on account of insolvency, or if the CONTRACTOR files a petition to take advantage of any debtor’s act, or should any subcontractor violate any of the provisions of the Contract Documents, or if the CONTRACTOR should persistently or repeatedly refuse or fail, except in cases for which an authorized extension of time is provided, to supply enough properly skilled workers or proper materials to complete the work in the time specified, or if the CONTRACTOR should fail to make prompt payment to subcontractors for material or labor, or if the CONTRACTOR should persistently disregard laws, or instructions given by CITY, or if the CONTRACTOR otherwise substantially fails to fulfill its obligations under the Contract Documents, CITY may, without prejudice to any other right or remedy, serve written notice upon the CONTRACTOR and Sureties of CITY’s intention to terminate the CONTRACTOR’s performance under the contract. Said notice shall contain the reasons for such intention to terminate the CONTRACTOR’s performance under the contract, and unless, within ten (10) days after the se rvice of such notice, such violations cease and/or satisfactory arrangements for the corrections thereof have been made, the CITY may terminate CONTRACTOR’s performance under the contract and the CONTRACTOR shall not be entitled to receive any further payment until the work is completed.
In the event of any such termination, CITY shall serve written notice thereof upon the Surety and CONTRACTOR, and the Surety shall have the right to take over and perform the contract. However, if the Surety, within five (5) days after the service of a notice of termination, does not give CITY written notice of its intention to take over and perform the contract, and if it serves such notice of its intent to take over and perform the contract and does not begin performance thereof within fifteen (15) days from the date of serving said notice, CITY may take over the work and prosecute the same to completion by contract or by any other method it may deem advisable for the account and at the expense of the CONTRACTOR, and the S ureties and/or CONTRACTOR shall be liable to CITY for any excess cost or other damage incurred by CITY thereby. If the Surety assumes the CONTRACTOR’s terminated work, it shall take the CONTRACTOR’s place in all respects for that part and shall be paid by CITY for all work performed by it in accordance with the terms of the Contract Documents. If the Surety assumes the entire contract, all money due the CONTRACTOR at the time of its default shall be payable to the Surety as the work progresses, subject to the terms of the contract.
CONTRACTOR hereby consents to assigning to CITY and/or CITY’s replacement contractor all subcontracts and other agreements of any and all subcontractors and/or suppliers that 604
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may be on the worksite and/or may be necessary to comp lete the work in the event of Termination for Default or Termination for Convenience, as set forth below. CONTRACTOR agrees to obtain, by way of a subcontract provision, the consent of each and every subcontractor and/or supplier for such assignment prior to the commencement of each such subcontractor’s and/or supplier’s work on the PROJECT.
In the event of such termination, the CONTRACTOR will be paid the actual amount due based on unit prices or lump sums Bid and the quantity of work completed at the tim e of termination, less damages caused to CITY by acts of the CONTRACTOR causing the termination, including but not limited to, all costs to CITY arising from professional services and attorneys' fees and all costs generated to insure or bond the work of su bstituted CONTRACTORS or subcontractors utilized to complete the work, such excess shall be paid to the CONTRACTOR. If such costs exceed the unpaid balance, the CONTRACTOR shall pay the difference to CITY promptly upon demand. On failure of the CONTRACTOR to pay, the Surety shall pay on demand by CITY. Any portion of such difference not paid by the CONTRACTOR or Surety within thirty (30) days following the mailing of a demand for such costs shall earn interest at the maximum rate authorized by California law.
The CONTRACTOR and CITY agree that nothing in this section is intended to be or is a prevailing party clause as it pertains to attorney’s fees.
The foregoing provisions are in addition to and not in limitation of any other rights or remedies under law or in equity available to CITY.
If it is later determined by CITY that the CONTRACTOR had an excusable reason for not performing, such as a fire, flood, or other event which was not the fault of or was beyond the control of the CONTRACTOR, CITY, after se tting up a new performance schedule, may allow the CONTRACTOR to continue work, or treat the termination as a termination for convenience, and the rights and obligations of the parties shall be the same as if the termination had been issued for the convenience of CITY.
B. Termination for Convenience.
CITY may terminate the CONTRACTOR’s performance under the contract, either in whole or in part, at its own discretion or when conditions encountered during the work make it impossible or impracticable to pr oceed, or when CITY is prevented from proceeding with the contract by act of God, by law, or by official action of a public authority, or upon a determination that such termination is in the best interest and convenience of CITY, or whenever CITY is prohib ited from completing the work for any reason. CITY shall provide no less than ten (10) days written notice of its intent to terminate the Contract for convenience and shall provide the CONTRACTOR with consultation with CITY prior to termination.
1. Upon receipt of such written notice of termination, the CONTRACTOR shall:
a. Stop Work as specified in the written notice;
b. Terminate all orders and Subcontractors except as necessary to complete Work which is not terminated;
c. If directed in writing by C ITY to do so, assign all right, title and interest in subcontracts and materials in progress, in which case 605
SECTION 5 - AGREEMENT (Continued)
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CITY will have the right at its discretion to settle, or pay any or all claims arising out of the termination of such Subcontractors, but in no event shall recovery by any CONTRACTOR include lost profits for uncompleted portions of Work;
d. Deliver or otherwise make available to CITY all data, Drawings, Specifications, reports, estimates, summaries and such other information and material as may have been accumulated by the CONTRACTOR in performing this Contract whether completed or in process;
e. Settle outstanding liabilities and claims with the approval of CITY;
f. Complete performance of such part of the work as has not been terminated; and
g. T ake such other actions as may be necessary, or as may be directed by CITY for the protection and preservation of the Project and/or property related to the contract.
2. Upon receipt of CITY’s written notice of termination for convenience, and within a period of 30 to 60 days, as determined by the Engineer at the time of termination, the CONTRACTOR shall submit to the Engineer a Termination Proposal which shall include, but is not limited to, the CONTRACTOR’s estimated costs to be incurred by the CONTRACTOR as a result of the termination for convenience, and as allowed by the Contract Documents, including all documentation to support such costs; the status of the Work at time of termination; the status of termination of the CONTRACTOR’s subcontractor(s) and supplier(s) agreement(s) including the amount of each said agreement, amount paid under each agreement up to the date of termination, and the amount that currently remains due and owing under each agreement for work completed as of the date of termination , if any; a list, certified as to quantity and quality, of termination inventory not previously disposed of, excluding items authorized for disposition by the Engineer; and any other information and/or documentation as required by the CITY.
Upon receipt of the CITY’s written notice of termination for convenience, the CONTRACTOR shall submit to the Engineer a request for final payment, pursuant to the requirements set forth in the contract. Such request shall be submitted promptly, but no later than sixty (60) days from the effective date of termination.
3. The final payment to the CONTRACTOR after termination for convenience shall be limited to amounts due and owing under the contract at time of termination, including the following:
a. Any actual costs in curred by the CONTRACTOR for restocking charges;
b. The agreed upon price of protecting the work in any manner, if any, as directed by CITY;
606
SECTION 5 - AGREEMENT (Continued)
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c. The cost of settling and paying claims arising out of the termination of the work under subcontract agreements or orders with CITY’s approval, as specified above, exclusive of the of the amounts paid or payable on account of goods delivered or work furnished by subcontractor prior to the effective date of the termination; and
d. The contract price allocable to th e portion of the work properly performed or goods supplied by the CONTRACTOR as of the date of termination, as determined in accordance with the Contract Documents, reduced by any sums previously paid to the
CONTRACTOR.
4. CITY shall have the right to wi thhold any portion or the whole of the final payment under this provision in the event there are any outstanding claims for compensation asserted by CITY against the CONTRACTOR, or by any third party against CITY which arises out of the CONTRACTOR’s work.
5.18.1 This Contract may be terminated in whole or in part in writing by the CITY for its convenience, provided that the CONTRACTOR is given (1) not less than ten (10) calendar days written notice (delivered by certified mail, return receipt requested) of intent to terminate, and (2) an opportunity for consultation with the terminating party prior to termination.
5.18.2 If termination for default or convenience is effected by the CITY, an equitable adjustment in the price provided for in this Contract shall be made, but (1) no amount shall be allowed for anticipated profit on unperformed services or other work, and (2) any payment due to the CONTRACTOR at the time of termination may be adjusted to cover any additional costs to the CITY because of the CONTRACTOR'S default.
5.18.3 Upon receipt of a termination action under paragraph (5.18.1) or (5.18.2) above, the CONTRACTOR shall (1) promptly discontinue all affected work (unless the notice directs otherwise), and (2) deliver or otherwise make available to the CITY all data, drawings, specifications, reports, estimates, summaries and such other information and materials as may have been accumulated by the CONTRACTOR in performing this Contract whether completed or in process.
5.18.4 Upon termination under paragraphs (5.18.1) and (5.18.2) above, the CITY may take over the work and may award another party an agreement to complete the work under this Contract.
5.19 Warranty. The CONTRACTOR agrees to perform all work under this Contract in accordance with the CITY’s designs, drawings and specifications.
The CONTRACTOR guarantees for a period of one (1) year from the date of the notice of completion of the work that the completed work is free from all defects due to faulty materials, equipment or workmanship and t hat he shall promptly make whatever adjustments or corrections which may be necessary to cure any defects, including repairs or any damage to other parts of the system resulting from such defects. The CITY shall promptly give notice to the CONTRACTOR of o bserved defects. In the event that the 607
SECTION 5 - AGREEMENT (Continued)
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CONTRACTOR fails to make adjustments, repairs, corrections or other work made necessary by such defects, the CITY may do so and charge the CONTRACTOR the cost incurred. The performance bond shall remain in full force and effect through the guarantee period.
The CONTRACTOR'S obligations under this clause are in addition to the CONTRACTOR'S other express or implied assurances of this Contract or state law and in no way diminish any other rights that the CITY may have against the CONTRACTOR for faulty materials, equipment or work.
5.20 Attorneys' Fees. If any action at law or in equity is necessary to enforce or interpret the terms of this Contract, each shall bear its own attorneys' fees, costs and necessary disbursements. Notwithstanding the foregoing, if any action is brought against the CONTRACTOR or any subcontractor to enforce a Stop Notice or Notice to Withhold, which named the CITY as a party to said action, the CITY shall be entitled to reasonable attorneys' fees, costs and necessary disbursements arising out of the defense of such action by the CITY. The CITY shall be entitled to deduct its costs for any Stop Notice filed, whether court action is involved or not.
5.21 Notices. Any notice required or permitte d under this Contract may be given by ordinary mail at the address set forth below. Any party whose address changes shall notify the other party in writing.
TO CITY: TO CONTRACTOR:
City of Garden Grove. ILB Electric, Inc.
Public Works Department Attention: Matthew Edwards
Attention: Juan Navarro 3955 Temescal Canyon Road
11222 Acacia Parkway Corona, CA 92883
Garden Grove, CA 92842 (951) 682-2982
(714) 741-5186
(714) 741-5578 Fax
[SIGNATURES ON NEXT PAGE]
608
SECTION 5 - AGREEMENT (Continued)
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IN WITNESS THEREOF, these parties have executed this Construction Agreement on the day and year shown below.
Date: "CITY"
CITY OF GARDEN GROVE
By:
Lisa L. Kim
City Manager
ATTEST:
City Clerk
Date:
"CONTRACTOR"
ILB Electric, Inc.
CONTRACTOR'S State License No. 782515
(Expiration Date: 08/31/2026
CONTRACTOR'S DIR No.1000007032
Attached Copy of your DIR Certificate.
By:
Title: Matthew Edwards, Vice President
Date:
APPROVED AS TO FORM:
______________________________
Garden Grove City Attorney
If CONTRACTOR is a corporation, a Corporate
Resolution and/or Corporate Seal is required.
Date___________________________
609
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FAITHFUL PERFORMANCE BOND
Bond No.
Premium
NOTICE: TO WHOM IT MAY CONCERN: those we, ,
,
as Principal, and
as Surety, are held and firmly bound unto the City of Garden Grove, (CITY) in the sum of
Lawful money of the United States, f or the payment of which we bind heirs, our executors, administrators, successors, and ourselves jointly and severally.
That the Surety's office is located at ,
telephone no. ; the Surety is licensed to do business in the State of California; and the California Insurance Agent's License No., address, and telephone no. are as follows:
License No.:
Address:
Telephone No.:
That the following clause must be completed if, in fact, a non-resident agent for the Surety is a party to the transaction:
Name of non-resident agent:
Non-resident agent's office address:
Telephone No.:
THE CONDITION OF THIS OBLIGATION IS SUCH, that:
1. The Principal has agreed entered into a contract attached hereto, dated the day of , 20 , with the CITY OF GARDEN GROVE for PROJECT NO. CP-1381000, TRAFFIC SIGNAL MODIFICATIONS AT VARIOUS LOCATIONS FY 25-26.
2. If the Principal shall well and truly perform, or cause to be performed, each and all of the requirements and obligations of the contract to be performed by the Principal, as set forth in the contract, then this bond shall be null and void; otherwise, it shall remain in full force and effect.
In the event that suit is instituted to recover on this bond, th e Surety will pay reasonable attorneys' fees.
3. Further, the Surety, for value received, hereby stipulates and agrees that no change, extension of time, alteration, or modification of the contract documents or of work performed shall in any way affect its obligation on this bond, and it does hereby waive notice of any change, extension of time, alteration, or modification of the contract documents, or of work to be performed. 610
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FAITHFUL PERFORMANCE BOND (Continues)
Executed this day of , 20___
Principal Principal
By:
Surety
By:
Attorney-in-Fact
California Resident Agent
By:
Non-resident Agent - Attorney-in-Fact
STATE OF CALIFORNIA )
)
COUNTY OF ) ss.
On this day of , 20 , before me, a Notary Public in and for said County, residing therein, duly commissioned and sworn, personally appeared known to me to be the Attorney-in-Fact of the , of (Corporation)
, and acknowledged that it executed the attached bond to the (State)
City of Garden Grove as such Attorney -in-Fact and as the free act and deed of the corporat ion, and that the bond was executed on behalf of the corporation by authority of its Board of Directors.
IN WITNESS WHEREOF, I have herewith set my hand and affixed my Official Seal, the day and year in this certificate first above written.
(Acknowledgment by Non -
resident Agent as Attorney -
in-Fact must be attached.)
Notary Public in and for said County and State
My Commission expires:
611
-53-
LABOR AND MATERIAL BOND
Bond No.
Premium
NOTICE: TO WHOM IT MAY CONCERN: those we,
,
as Principal, and , as Surety,
are held and firmly bound unto the City of Garden Grove, California ("CITY") in the sum of ____ Dollars ($ ), lawful money of the United States, for the payment of the sum, we bind heirs, our executors, administrators, successors, and ourselves jointly and severally.
That the Surety's office is located at ,
telephone no. ; the Surety is licensed to do business in the State of California; and the California Insurance Agent's License No., address, and telephone no. are as follows:
License No.:
Address:
Telephone No.:
That the following clause must be completed if, in fact, a non-resident agent for the Surety is a party to the transaction:
Name of non-resident agent:
Non-resident agent's office address:
Telephone No.:
THE CONDITION OF THIS OBLIGATION IS SUCH, that:
1. The Principal has entered into a contract attached hereto, dated day of ________________, 20 , with the CITY OF GARDEN GROVE PROJECT NO. CP-1381000, TRAFFIC SIGNAL MODIFICATIONS AT VARIOUS LOCATIONS FY 25-26.
2. If the Principal, its heirs, executo rs, administrators, successors, or assigns, or subcontractors, shall fail to pay for any materials, provisions, provender, or other supplies or teams, implements, or machinery used in, upon, for, or about, the performance of the improvement, or for any work or labor thereon of any kind, or for amounts due under the Unemployment Insurance Code with respect to work or labor, and provided that the claimant shall have complied with the provision of the code, the Surety or Sureties will pay for same in the amoun t not exceeding the sum specified in this bond; otherwise, the above obligation shall be void. In case suit is brought upon this bond, the Surety will pay reasonable attorneys' fees.
3. The Surety, for value received, hereby stipulates and agrees that no change, extension of time, alteration, or modification of the contract documents, or of work performed, shall in any way affect its obligation on this bond, and it does hereby waive notice of any change, extension of time, alteration, or modification of the contract documents, or of work to be performed. 612
-54-
LABOR AND MATERIAL BOND (Continues)
4. This bond shall inure to the benefit of any and all persons, companies, and corporations entitled to the claims under Civil Code 3181 et seq., so as to give a righ t of action to them or their assignees in any suit brought upon this bond.
Executed this day of , 20 .
Principal Principal
By:
Surety
By:
Attorney-in-Fact
California Resident Agent
By:
Non-resident Agent - Attorney-in-Fact
STATE OF CALIFORNIA )
)
COUNTY OF ) ss.
On this day of , 20 , before me, a Notary Public in and for said County and State, personally appeared
known to me to be the Attorney-in-Fact of
the , of (Corporation)
, and acknowledged that it executed the attached bond to the (State)
City of Garden Grove as such Attorney -in-Fact and as the free act and deed of the corporation, and that the bond was executed on behalf of the corporation by authority of its Board of Directors.
IN WITNESS WHEREOF, I have herewith set my hand and affixed my Official Seal, the day and year in this certificate first above written.
(Acknowledgment by Non -
resident Agent as Attorney -
in-Fact must be attached.)
Notary Public in and for said County and State
My Commission expires:
613
ESCROW AGREEMENT FOR SECURITY DEPOSITS IN LIEU OF RETENTION This Escrow Agreement is made and entered into by and between whose address is ,
hereinafter called "owner", ,
whose address is ,
hereinafter called "contractor", ,
and , whose address
is ,
hereinafter called "escrow agent."
For the consideration hereinafter set forth, the owner, contractor, and escrow agent agree as follows:
(1) Pursuant to Section 22300 of the Public Contract Code of the State of California, the contractor has the option to deposit securities with the escrow agent as a substitute for retention earnings required to be withheld by the owner pursuant to the construction contract entered into between the owner and contractor for in the amount of _ dated (hereafter referred to as the "contract"). Alternatively, on written request of the contractor, the owner shall make payments of the retention earnings directly t o the escrow agent. When the contractor deposits the securities as a substitute for the contract earnings, the escrow agent shall notify the owner within ten days of the deposit. The market value of the securities at the time of the substitution shall be at least equal to the cash amount then required to be withheld as retention under the terms of the contract between the owner and contractor.
Securities shall be held in the name of the, and shall designate the contractor as the beneficial owner.
(2) The owner shall make progress payments to the contractor for those funds which otherwise would be withheld from progress payments pursuant to the contract provision, provided that the escrow agent holds securities in the form and amount specified above. (3) When the owner makes payment of retentions earned directly to the escrow agent, the escrow agent shall hold them for the benefit of the contractor until such time as the escrow created under this contract is terminated. The contractor may direct the investment of the payments into securities. All terms and conditions of this agreement and the rights and responsibilities of the parties shall be equally applicable and binding when the owner pays the escrow agent directly. (4) The contractor shall be responsible for paying all fees for the expenses incurred by the escrow agent in administering the escrow account. These expenses and payment terms shall be determined by the contractor and escrow agent.
(5) The interest earned on the securities or the money market accounts held in escrow and all interest on the interest shall be the sole account of contractor and shall be subject to withdrawal by contractor at any time and from time to time without notice to the owner. (6) The contractor shall have the right to withdraw all or a ny part of the principal in the escrow account only by written notice to the escrow agent accompanied by written authorization from the owner to the escrow agent that the owner consents to the withdrawal of the amount sought to be withdrawn by contractor.
(7) The owner shall have a right to draw upon the securities in the event of default by the contractor. Upon two days' written notice to the escrow agent from the owner of the default, the 614
escrow agent shall immediately convert the securities to cash and shal l distribute the cash as instructed by the owner.
(8) Upon receipt of written notification from the owner certifying that the contract is final and complete, and that the contractor has complied with all requirements and procedures applicable to the contract, the escrow agent shall release to the contractor all securities and interest on deposit less escrow fees and charges of the escrow account. The escrow shall be closed immediately upon disbursement of all moneys and securities on deposit and payment of fees and charges. (9) The escrow agent shall rely on the written notifications from the owner and the contractor pursuant to Sections (1) to (8), inclusive, of this agreement and the owner and contractor shall hold the escrow agent harmless from the escrow agent' s release, conversion, and disbursement of the securities and interest as set forth above. (10) The names of the persons who are authorized to give written notice or to receive written notice on behalf of the owner and on behalf of the contractor in connection with the foregoing, and exemplars of their respective signatures are as follows:
On behalf of the owner: On behalf of the contractor:
On behalf of the owner: On behalf of the contractor:
Title Title
Name Name
Signature Signature
Address Address
615
On behalf of the escrow agent:
Title Title
Name Name
Signature Signature
Address Address
At the time the escrow account is opened, the owner and contractor shall deliver to the escrow agent a fully executed counterpart of this Agreement.
IN WITNESS WHEREOF, the parties have executed this Agreement by their proper officers on the date first set forth above.
Owner/Contractor Dated:
Title/Title
Approved as to Form
City Attorney
616