RECOVERED ORGANIC WASTE PRODUCT
PROCUREMENT AGREEMENT
This RECOVERED ORGANIC WASTE PRODUCT PROCUREMENT AGREEMENT (this “Agreement”) is made and entered into this ___ day of ________, 2025 (the “Effective Date”) by and between USA Waste of California, Inc. (“Contractor”), and the City of Menifee (the “City”).
The parties are collectiv ely referred to as th e “Parties” and individually as a “Party”, unless specifically identified otherwise.
1. P
URPOSE OF AGREEMENT . City and Contractor have entered that certain Agreement for Solid Waste Handling Services effective as of April 1, 2020 entitled “AMENDED AND
RESTATED FRANCHISE AGREEMENT BETWEEN CITY OF MENIFEE AND USA WASTE OF CALIFORNIA, INC., dba WASTE MANAGEMENT OF THE INLAND EMPIRE FOR SOLID WASTE HANDLING SERVICES,” as amended on July 1, 2023 (the “ Franchise Agreement”), under which the Parties agreed to negotiate an agreement that is cost neutral to both parties to assist the City in complying with its obligations under 14 CCR §18993.1. Sec tion 18993.1(a) of the California Code of Regulations (“ CCR”) requires municipalities to “annually procure a quantity of recovered organic waste products that meets or exceeds its current annual recovered organic waste product procurement target as determined by this article” (the “Procurement Target”). Section 18993.1(e) provides that municipalities may satisfy their required Procurement Target by, among other things, “[r]equiring, through a written contract or agreement, that a direct service provider to the jurisdiction procure recovered organic waste products and provide written documentation of such procurement to the jurisdiction.” By entering this Agreement, Contractor will assist City in achieving some, or all, of its required Procurement Target, as more fully set forth herein.
2. DE
FINITIONS. Capitalized terms used in this Agreement but not defined herein, shall have the meanings ascribed to them in the Franchise Agreement.
3. TER
M; TERMINATION. This term of this Agreement shall be for a period of five (5) years commencing on December 1, 2024, and expiring on December 1, 2029 (the “Term”) and shall automatically terminate upon: (a) the expiration or earlier termination of the Franchise Agreement in accordance with its terms; or (b) upon written mutual agreement of the Parties.
4. P
ROCUREMENT OF RECOVERED ORGANIC WASTE PRODUCT.
a. W
hile Contractor has agreed to assist City in meeting its annual Procurement Target, the Parties acknowledge this annual Procurement Target could vary depending on a number of factors, including changing laws and regulations; and, further, that the amount of recovered organic waste products City needs to procure with Contractor’s assistance may vary depending upon its ability to meet its Procurement Target by other means. Accordingly, the Parties shall meet before June 30 of each year of the Term to agree upon the type(s) and quantity of compost or mulch
Contractor may procure for the City including an allocation of the tonnage that will be procured at no cost to the City and the tonnage that will be charged a per ton fee (“Compost/Mulch Price”), as well as the delivery location for such material, if applicable. The
Compost/Mulch Price shall be $12/ton commencing in 2024 and shall be adjusted every year during the Term on July 1 by the percentage increase (if any) in the Consumer Price Index CUSROOOOSEHG02 CPI-U Garbage and Trash Collection, US City Average, not seasonally adjusted, as published by the United States Department of Labor, Bureau of Labor Statistics, for the January to December period immediately preceding the adjustment date . In addition, the Compost/Mulch Price shall be adjusted for extraordinary increases based on any one more of the following causes:
i. Material changes resulting from a force majeure event as defined in Section 5 of this Agreement;
ii. Fees or taxes imposed specifically on Solid Waste Handling Services or upon the processing or marketing of Compost or Mulch by any governmental agency having jurisdiction;
iii. Any change in Applicable Law after the Effective Date, including any change in orders, judgments, decrees, permits, approvals, interpretations, determinations, guidance or other requirements of any governmental agency having jurisdiction over an aspect of this Agreement or the Franchise Agreement;
iv. Any extraordinary increase in costs or decrease in revenues for disposal, processing or marketing of Solid Waste, Recyclable Materials, Green Waste, Organic Waste, Compost or Mulch;
v. An extraordinary increase in the cost of fuel and/or transportation; or
vi. Any other extraordinary circumstances or causes or reasons that are not within the reasonable control of Contractor.
In the event Contractor believes an extraordinary increase in the Compost/Mulch Price is warranted hereunder, it shall prepare a written request to the City including the reason the increase is permitted pursuant to this Agreement, and any related, supporting calculation s.
Contractor shall provide City with such information as City deems necessary in its reasonable judgment to evaluate any request for an extraordinary adjustment to the Compost/Mulch Price, and failure by Contractor to do so shall be a sufficient reason for City to deny such a request.
The City shall take reasonable steps, consistent with applicable law, to protect the confidential or proprietary nature of any data or information supplied by Contractor. City shall respond to Contractor within fifteen (15) days’ of receipt of Contractor’s request and supporting documentation and City shall not unreasonably withhold its consent to Contractor’s request.
In the event that City is unable by operation of Applicable Law to approve or implement an adjustment to the Compost/Mulch Price or the adjustment is disallowed by operation of Applicable Law, City shall deny such request. In the event that City denies Contractor's request for an adjustment to Compost/Mulch Price based on City's review of the documentation
submitted by Contractor, Contractor may, within fifteen (15) days after receipt of City's denial, request in writing that the Parties negotiate in good faith regarding Contractor's request for an adjustment to the Compost/Mulch Price. If the Parties have not reached agreement within ninety (90) days following the date City receives Contractor's written request for an extraordinary adjustment, Contractor may terminate this Agreement with thirty (30) days’ written notice of termination to City.
b. For calendar year 2024, City was required to procure 5,183.67 tons of Compost/Mulch, which Contractor has procured on behalf of City in a manner that complies with the provisions hereof (including specifically those related to reporting.) Notwithstanding any provision hereof to the contrary, the Parties agree that City shall pay Contractor the fixed amount of Twenty Four Thousand Five Hundred Dollars ($24,500.00) as compensation for all Compost/Mulch procured on behalf of City for calendar year 2024, and City shall pay such sum to Contractor after receiving an invoice from Contractor therefore in accordance with Section 4.c. of this Agreement.
c. After determining type(s) and quantity of compost or mulch for each calendar year, upon written request by the City, Contractor shall provide compost or mulch that meet s the requirements of 14 CCR Section 18993.1(f)(1) and 14 CCR Section 18993.1(f)(4) respectively. For the tonnage of compost or mulch that is charged the Compost/Mulch Price, Contractor shall , on or before delivery of such compost or mulch, submit an invoice for Contractor’s costs in procuring, transporting (including, without limitation, fuel costs), and/or delivering such compost or mulch on the City’s behalf. The City shall pay all such invoice s within thirty (30) days of receipt thereof. Any payment made by the City after the date such payment is due shall bear interest at a rate of one and one-half percent (1.5%) per month as of the day such payment was due and shall accrue until paid in full.
d. Upon the City’s reasonable request, Contractor shall provide the City with orders, receipts or other records documenting the purchase and/or delivery of compost or mulch to the City that are necessary for the City to comply with its obligations under 14 CCR Section 18994.2(j).
Contractor shall maintain such records for a period of five (5) years after the creation of such records. Nothing herein shall require Contractor to disclose business proprietary, trade secret, or confidential information to the City.
5. FORCE MAJEURE. If a Party is prevented from or delayed in performing its duties under this Agreement by circumstances beyond its control, whether or not foreseeable, including, without limitation, fires, typhoons, hurricanes, severe weather, floods, volcanic eruptions, pandemics, epidemics, quarantines, war, civil disturbances, acts of terrorism, labor disputes, acts of God, or threats of such circumstances, or any future laws, rules, regulations, orders, or acts of any local, state, federal, or provincial government (“ Force Majeure ”), then the affected Party shall be excused from performance hereunder during the period of such disability. The Party claiming Force Majeure shall promptly notify the other Party in writing when it learns of the existence of a Force Majeure condition and when the Force Majeure condition has terminated.
6. INDEPENDENT CONTRACTOR. Contractor is an independent contractor and not an officer, agent, servant, or employee of the City. Contractor is solely responsible for the acts and omissions of its officers, agents, employees, and subcontractors, if any. Nothing in this Agreement shall be construed as creating a partnership or joint venture between City and Contractor. Neither Contractor nor its officers, employees, agents, or subcontractors shall obtain any rights to retirement or other benefits which accrue to City employees.
7. FURT
HER ASSURANCE; PARTIES TO ACT IN A REASONABLE MANNER. Each Party agrees to execute and deliver any instruments and to perform any acts as may be necessary or reasonably requested by the other in order to give full effect to this Agreement. The Parties agree to act reasonably in exercising any action, discretion, judgment, approval or extension of time that may be required to affect the purpose and intent of this Agreement. Whenever the approval or consent of a Party is required under this Agreement such consent shall not be unreasonably withheld or delayed.
8. MI
SCELLANEOUS. (a) This Agreement shall be construed in accordance with the law of the State of California without reference to its conflicts of laws principles; (b) In the event any legal action is taken by a Party against the other Party to enforce any of the terms and conditions of this Agreement, it is agreed that the unsuccessful Party to such action shall pay to the prevailing Party therein all court costs, reasonable attorneys’ fees and expenses incurred by the prevailing Party; (c) If any provision of this Agreement is declared invalid or unenforceable, then such provision shall be severed from and shall not affect the remainder of this Agreement; however, the Parties shall negotiate in good faith to amend this Agreement to give effect, to the maximum extent allowed, to the intent and meaning of the severed provision; (d) The waiver by a Party of any failure on the part of another Party to perform any of its obligations under this Agreement shall not be construed as a waiver of any future or continuing failure or failures, whether similar or dissimilar thereto; (e) Any notice, request, report or other document required under this Agreement shall be in writing and sent by registered or certified mail, return receipt requested, postage prepaid or by overnight confirmed delivery and addressed to the Party at the addresses provided in Section
30.7 of the Franchise Agreement (or other address the Party may hereafter designate by written notice) and shall be effective upon receipt; (f) This Agreement constit utes the entire agreement and understanding of the Parties with respect to the subject matter hereof, and supersedes all prior and contemporaneous agreements and understandings, oral or written, relative to said subject matter, and no course of performance, purchase orders or agreements purporting to amend, supplement or explain this Agreement shall be effective unless in writing and signed by authorized representatives of both Parties; and (g) The rights and remedies provided in this Agreement shall not be exclusive, but shall be cumulative and in addition to all other rights and remedies provided by applicable law, including, but not limited to, statutory or common law indemnity, contribution, or other remedy at law or equity.
IN W
ITNESS WHEREOF, the Parties hereto have executed this Agreement to be effective as of the date and year written above.
CI
TY OF MENIFEE:
By:
__________________________________
Armando G. Villa, City Manager
ATTES
T:
By: __________________________________
APPROVED AS TO FORM:
By: __________________________________
Jeffrey T. Melching, City Attorney
USA W
ASTE OF CALIFORNIA, INC.:
By:
_________________________________
___________________________________
[N
AME], [TITLE]
Stephanie Roseen, City Clerk