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2.7 Procedures For Handling Non -Containerized MSW, Recyclable Materials, Food Scraps/Green Waste and Other Materials.
Prior to the Effective Date, City allowed Residents to place MSW, Recyclable Materials and Green Waste in plastic bags, cardboard boxes, bundles and in other Customer - provided containers for Collection, and also in piles on the street, alley or curb. As of the Effective Date, the City has changed this requirement (see NBMC Title 6, Section
6.06.080) to require all MSW, Recyclable Materials and Food Scraps/Green Waste to be stored and placed for Collection in the Contractor -provided wheeled Carts with lids fully closed. Carts are more fully described in Section 1 of this Attachment B.
The only exception to this Containerization requirement is for Bulky Items that are placed out for Collection and for which the Customer has scheduled a Collection appointment with Contractor as described in Section 3 of this Attachment B.
2.7.1. Each Instance of Contractor Encountering Non -containerized Waste When Contractor's driver arrives at a Residence where Non -containerized materials are present in the street, curb area or alley, the driver shall take the following steps:
(1) Utilizing the tablet -based, on -board operational CRM system described in Article 7, photograph the non -containerized material(s) and link the Non -containerized materials with the Customer associated with the Non -containerized materials in a manner that notes the address, customer number, time, and date with the Non - containerization. Upload the photograph to both Contractor's dispatch/Customer Service and to a file to be sent to the City;
(2) Empty the Cart into the Collection vehicle, including collecting all Non - containerized materials in and around the Cart
(3) Place a hang -tag on the Cart nearest the Non -containerized materials. The hang - tag shall contain the following information:
a. Customer must place all materials in the Cart with the lid fully closed. b. Informing the Customer that they may request additional Carts from CR&R at an additional charge
c. Notifying the Customer that the City may fine the Customer if additional Non -containerization occurs
d. Notifying the Customer that on the second and subsequent instances of Non -containerization, the Customer will receive a direct -bill charge by CR&R for Non -containerization
Upon Contractor receipt of notification from the driver that a Customer has placed Non - containerized materials for collection, the Contractor's personnel shall record the instance on a digital database including the following information:
1. Date of Non -containerization
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2. Time of Non -containerization
3. Customer address where Non -containerization was encountered
4. Customer identification number (if available for the customer) for Customer associated with Non -containerization
5. Photo -documentation of non -containerization
6. Route number for the route where the Non -containerization was encountered
7. Type of material that was Non -containerized (Le. MSW, Recyclable Materials, Food Scraps/Green Waste)
During the period January 15, 2022 through February 14, 2022 (which is the planned Non -containerization Grace Period), and during any City -directed extensions of the Non - containerization Grace Period, Contractor shall, on a weekly basis, cross-reference the existing Non -containerization digital database with all driver -reported instances of Non - containerization for the service day to determine if any instances constitute a second or subsequent Non -containerization event. Contractor shall upload the results to a cloud - based file that is accessible to the City on a weekly basis.
Once the Non -containerization Grace Period ends, Contractor shall continue to, on a weekly basis, cross-reference the existing Non -containerization digital database with all driver -reported instances of Non -containerization for the service day to determine if any instances constitute a second or subsequent Non -containerization event. Contractor shall upload the results to a cloud -based file that is accessible to the City on a monthly basis.
If the Contractor identifies any Customers that have second or subsequent Non - containerization instances associated with their address, the Contractor may direct -bill these Customers the Non -containerization rate set forth in Attachment D-2.
If the Contractor does not have an existing billing relationship with any Customer that will be direct -billed a Non -containerization fee, the Contractor may request the billing information for these Customers from the City on a weekly basis. Upon request for Customer billing information from the Contractor, the City shall provide the requested information within 5 business days of receipt of Contractor's request.
On a monthly basis, Contractor shall provide the City with a digital listing, in Excel format (or similar database program approved by City), of Customers that have Non - containerized materials that shall include the information described above along with 1) the total number of Non -containerization instances associated with each customer since January 15, 2022; and 2) Customers the Contractor direct -billed for Non -containerization as of February 15, 2022 (or later if City extends the Non -containerization Grace Period).
Contractor shall also provide to City photo -documentation of each instance of Non - containerization on a monthly basis using a cloud -based file sharing service.
2.7.2. Non -containerization Fee Grace Period
The parties contemplate the provision of a Grace Period for Customers to become acclimated to the requirement for containerizing MSW, Recyclable Materials, and Food Scraps/Green Waste in their Carts. The Grace Period will begin on January 15, 2022.
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The parties agree the Grace Period is planned to end on February 14, 2022 with direct - billing of Customers by Contractor beginning February 15, 2022; however, the Grace Period may be extended in the City's sole discretion. In the event City desires to extend the Grace Period, City will notify Contractor, seven (7) calendar days prior to the planned termination of the Grace Period. Any Grace Period extensions shall be for a full thirty (30) calendar day period. During the Grace Period, Contractor shall bill the City for every instance of Non -containerized materials in Contractor's monthly invoice as described in Article 12. After the Grace Period, Contractor may direct -bill Customers for Collection of Non -containerized materials as described herein, and shall simultaneously cease billing the City for same.
During the Grace Period, if Non -containerized materials are encountered, Contractor shall follow all the steps outlined in Section 2.8.1 with the exception that Contractor shall leave the special Grace Period hang -tag on the Customer's Cart during this time. The Grace Period hang tag shall contain the following information:
a. Customer must place all materials in the Cart with the lid fully closed. b. Informing the Customer that they may request additional Carts from CR&R at an additional charge
c. Customers have a Grace Period from January 15, 2022 to February 14, 2022 during which they will not be directly -billed for the Non - containerization of MSW, Recyclable Materials, and Food Scraps/Green Waste. Beginning February 15, 2022, Customers will be billed for second and all subsequent instances of Non -containerization.
d. Beginning February 15, 2022, the Customer may also (in the City's sole discretion) receive a fine from the City if additional Non -containerization occurs.
2.7.3. Process for Direct -billing Customers for Non -containerization Additional costs for Collection of Non -containerized materials occur when the Contractor's driver must leave the Collection vehicle to gather and Collect Non -containerized materials that would otherwise be in the wheeled Cart. When all materials are Containerized, each Cart can be lifted by the truck's automated arm without the driver leaving the truck cab.
Containerization makes Collection more efficient and cost-effective. The prices for Collection of Non -containerized materials in Attachments D-1 and D-2, and the following direct -billing protocols, reflect these costs. Contractor shall direct -bill for Non - containerization as follows:
1 a) Customers receiving service from a Single -pass vehicle: Contractor may only bill the Customer once for collecting Non -containerized materials from both streams that are being Collected by that vehicle. For example, if the single -pass vehicle is collecting Food Scraps/Green Waste and Recyclable Materials and materials from both streams are Non - containerized, the Contractor may only bill the Customer for one instance of Non - containerization.
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1 b) However, if both the single -pass Food Scraps/Recyclable Materials Collection vehicle driver and the dedicated MSW Collection driver each encounter Non -containerized materials in their respective Collection streams, then Contractor may bill the Customer for 2 instances of Non -containerized materials on the same service day. 1c) Customers will be receiving Collection service either from three separate, dedicated Collection vehicles (MSW, Recyclable Materials, and Food Scraps/Green Waste) or from two separate Collection vehicles (Food Scraps/Green Waste/Recyclable Materials collected in a single -pass truck and MSW collected by a separate truck). Contractor may direct -bill Customers for each material stream that is Non -containerized at the time of Collection. For example, if a Customer's MSW Cart has 2 extra plastic bags of MSW placed on top and Customer's Recyclable Materials Cart has cardboard piled alongside, and it is not the Customer's first failure to Containerize materials, this would constitute two instances of Non -containerization and the Contractor would be permitted to direct -bill the Customer two Non -containerization fees (one fee for each of the Non -containerized materials).
1d) In the event that Customer's first instance of Non -containerization includes multiple Materials that are Non -containerized, it shall be counted as a single first instance of Non - containerization and Contractor shall not direct -bill the Customer for this first Non - containerization instance. In such an event, the driver shall leave the hang tag as described above in Section 2.7.1 of this Attachment B.
SECTION 3: SPECIAL SERVICES
3.1 Bulky Goods Collection Services.
Contractor shall provide Collection services for Bulky Items at Residential Premises in City. Customer or City may request Collection of Bulky Items a minimum of two (2) business days in advance of the desired Collection date. The Collection date may be more than two (2) business days after the Customer's or City's request, on a date mutually agreed to by Customer and Contractor. Collection shall occur on or before the Customer's next regularly scheduled MSW Collection day, unless another date is agreed upon by Customer and Contractor or City and Customer. Bulky Items at Residential Premises shall be collected at, or reasonably near, curbside or in the alley, giving due consideration to circumstances of access points, vehicular and pedestrian safety and the like, in accordance with the scheduled appointment time established by Contractor, which shall in no case be earlier than 7:00 a.m. local time.
Contractor shall provide five (5) Residential Bulky Items Collections per calendar year of up to five (5) Bulky Items per Collection at no charge to Residents. For additional Collections of Bulky Items from Residential Premises, Contractor shall direct bill the Customer for the Extra Charges set forth in Attachment D-2. As of the Effective Date the charge for Extra Bulky Item Collections (a sixth (6t") Collection and all subsequent Collections within one calendar year) is thirteen dollars and ninety-five cents $13.95 per Attachment B Scope of Work Page 20 of 38
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Collection.
Bulky Items include the following: furniture, mattresses, couches and loveseats (including sleeper sofas), chairs, water heaters, refrigerators, ranges, washers, dryers, dishwashers, and other similar items (often referred to as "white goods"), and other large, bulky or heavy objects not normally discarded on a regular basis at Residences. Bulky Items must not be more than eight (8) feet in length, or more than four (4) feet wide, and must not exceed once hundred fifty (150) pounds). Bulky Items does not include the following: automobile bodies, Construction and Demolition Debris, tires, Household Hazardous Waste, oil, antifreeze and other hazardous substances, Electronic Waste, Universal Waste, fluorescent bulbs, household batteries, or items requiring more than two (2) persons to remove.
In the event of a dispute between Contractor and a Customer as to whether an item meets the definition of a "Bulky Item" for Collection pursuant to this Section, City's Agreement Administrator shall make the final determination.
Bulky Items Collected by Contractor shall not be landfilled or Disposed until the following hierarchy of Diversion efforts has been followed by Contractor and Contractor has made reasonable, verifiable and documented efforts to Divert Bulky Items from Disposal:
1. Re -use as is or repair.
2. Disassemble for re -use, re -purposing or Recycling.
3. Recycle.
4. Dispose.
For appliances containing Freon or any other coolant that is Hazardous Waste, Contractor shall be responsible for the proper removal of the Freon from the appliances in a manner consistent with federal, state and local laws and regulations, and for Recycling the metal from said appliances, all at no additional cost to the Customer or the City. Contractor may perform this service itself, or deliver the collected appliances to a fully permitted third party for removal of the Freon and Recycling of the metal.
Contractor shall maintain records of the Customers requesting Bulky Item Collections, the number of Collections requested by each Customer, the number of Collections provided by Contractor, the number and Tons of Bulky Items delivered for repair, re -use, re- purposing and Recycling, the types of Bulky Items Contractor is able to Divert to repair, re -use, re -purposing and the Tons Disposed. The number of Collections and the Tons Collected, Diverted and Disposed each month shall be included in Contractor's Monthly Report as described in Attachment K. Contractor shall submit additional records (including but not limited to records of the number of requests per Customer, the types of Bulky Items Contractor is able to Divert and the organizations or Persons Contractor delivered Bulky Items to for Diversion) to the City upon request.
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3.2 Household Hazardous Waste Door -to Door Collection Program.
Contractor shall provide all labor, equipment, vehicles, licenses, permits and services necessary to Collect Household Hazardous Waste ("HHW") from Residential Premises in City. For purposes of this Agreement, HHW includes all types of material listed in the definition of HHW in Attachment A. A Customer or the City may request Collection of Household Hazardous Waste by scheduling an appointment with Contractor a minimum of five (5) business days in advance. Contractor shall Collect the HHW on the Customer's next regularly scheduled MSW Collection day. Contractor shall provide the Customer with instructions for properly preparing the HHW for Collection, and shall arrange with Customer for a proper, safe and secure location from which the HHW is to be Collected.
Contractor shall only Collect HHW when there is an adult present at the Residence or in the absence of an adult at the residence, when there is a safe and secure location in which the HHW can be placed (i.e. a side or back yard). Contractor shall instruct Customers not to place HHW for Collection in alleys or at curbside. Contractor shall deliver or mail any bags or other materials or containers necessary for Customer to use to properly and safely package and place the HHW for Collection. Contractor shall provide special assistance when Collecting HHW materials from Senior Citizens and Disabled Persons (as defined in Attachment A).
Eligible HHW materials for Collection include, but are not be limited to, the following:
Cleaning products: ammonia, floor stripper, oven cleaners, rug, upholstery and floor cleaners, tile and shower cleaners, furniture polish, drain cleaners, rust remover, naval jelly and solvents.
Automobile maintenance products: car waxes and polishes, starting fluids, solvent cleaners, antifreeze, repair products, vehicle batteries, brake fluid, transmission fluid, windshield washer fluid, hydraulic fluid, motor oil, oil filters and gasoline and diesel fuel. [Gasoline and diesel fuel must be placed in containers designed and sold for the containment and transportation of fuel, maximum of ten (10) gallons] Home maintenance and improvement products: oil-based stains, and paints, liquid latex paint, caulking, varnish, paint thinners, chemical strippers, spray paint, artist paint, insect repellants, insecticides, pesticides, poisons, rat poison, kerosene, lighter fluid, and pool chemicals, pool acid and chlorine (tablets or liquid), hobby glue, driveway sealer [maximum of five (5) gallons].
Personal care items: nail polish and remover, hair color.
Electronic Waste items: video display devices such as televisions, television screens, computer monitors, plasma television screens, computer-related items, printers, copiers, scanners, multi -function desktop machines (such as a combination printer/fax/copier), stereos, speakers, cables, computer CPU's, LED screens and monitors, computer keyboards, computer mouse, LED bulbs, VCR's, DVD/CD/tape players, cellular telephones, ipods, tablet computers, MP3 players, Gameboys, remote controls for Attachment B Scope of Work Page 22 of 38
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electronic devices, microwave ovens, toasters, irons, and all other corded appliances and corded devices.
Universal Waste items: AA, AAA, C Cell and D Cell batteries; fluorescent tubes and bulbs and other mercury containing lamps (including high intensity discharge [HID], metal halide, sodium and neon bulbs); mercury containing devices such as thermostats, switches, thermometers, and relays (including those found in pre -1972 washing machines, sump pumps, electric space heaters, clothing irons, and silent light switches); pilot light sensors from gas appliances; mercury gauges from barometers, manometers, blood pressure and vacuum gauges; mercury -added novelty items such as greeting cards that play music when opened, athletic shoes with flashing lights in the soles, and mercury maze games; emptied aerosol cans.
Sharps, such as needles, lancets and syringes. [Sharps must be placed into a rigid sealed, puncture resistant container for Collection.]
Pharmaceutical wastes shall be included if and when state law has been revised to permit Collection of these materials under this type of collection program.
Ineligible materials for the HHW Door -to -Door program include, but are not limited to, the following: biological waste, ammunition and explosives, appliances, asbestos, commercial chemicals, construction related materials, containers over five (5) gallons (with the exception of fuel described above), fire extinguishers, Food Scraps, cooking oil and grease, gas cylinders/pressurized cylinder, liquid mercury/elemental mercury and broken items that contain mercury, materials improperly packaged for Collection and transportation, materials in leaking containers, radioactive materials, tires, MSW, Bulky Items, unknown or unlabeled materials.
In the event of a dispute between Contractor and a Customer as to whether a material is eligible for Collection by the Door -to -Door HHW program, the decision of the City shall be final.
Contractor shall provide an unlimited number of HHW Collections from Residences per calendar year at no charge to Residents. Contractor shall invoice the City for the cost of the HHW Door -to -Door program as set forth in Attachment D-1. As of the Effective Date the monthly charge to the City for the HHW Door -to -Door program is eleven thousand, four hundred thirty-one dollars ($11,431) per month.
Contractor shall Divert a minimum of eighty percent (80%) of all Collected HHW from Disposal by use of in-house resources (if Contractor is fully licensed and holds all required permits to do so) and/or use of third parties that are properly licensed and possess all required permits under local, state and federal law and regulations for Recycling, treating, and otherwise handling HHW to Divert it from Disposal. Contractor shall Dispose of any non-Divertible HHW in accordance with all local, state and federal regulations and only at properly permitted HHW Disposal facilities operating in accordance with all applicable local, state and federal laws and regulations.
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Contractor shall maintain records of the Customers requesting HHW Collections, the number of Collections requested by each Customer, the number of Collections provided by Contractor, addresses of each Collection, the number, types, and quantities of HHW delivered for Diversion, the third party Persons or organizations where HHW was delivered for Diversion, and the quantities and types of HHW Disposed, including the licensed and permitted Disposal sites where HHW was Disposed. The number of Collections, types of HHW, quantity of each type of HHW and the total quantity of HHW Collected, Diverted and Disposed each month shall be included in Contractor's Monthly Report as described in Attachment K. Contractor shall submit additional records to the City upon request. Contractor shall create and maintain all transportation manifests, records, lists and all other documentation for HHW Collection, transportation and Disposal that are required by local, federal and state laws and regulations. Contractor shall provide pollution control insurance as described in Section 10 of the Agreement.
3.3 Holiday Greenery Collection and Recycling.
Contractor shall collect, at curbside or in alley locations, Christmas trees and other holiday greenery for three (3) full weeks from December 26 through January 15 of each year of the Term. (After this period trees shall be Collected as Bulky Items.) Trees up to six feet (6') in length shall be Collected and Diverted without Customers being required to cut them. Contractor may request that Customers with larger trees cut the trees into pieces no longer than six feet (6') by placing such information in the postcard or brochure advertising the program and/or by tagging the tree stating it must be cut into smaller length(s). Contractor shall prepare a brochure or postcard informing residents of such Collection service. Contractor shall submit a draft of the brochure or postcard to City for review and approval by October 1 of each year of the Term. The brochure or postcard shall be prepared and mailed first-class postage, and shall be professionally designed and mailed so that residents receive the brochure or postcard not later than December
10. Residents shall be instructed on how to prepare Holiday Greenery for Recycling including removing all ornaments, lights and tinsel. Holiday Greenery which complies with these instructions shall be delivered by Contractor to the City designated Compost Facility or other City -designated Processing Facility.
Contractor is prohibited from delivering Holiday Greenery Collected in City and any Compost or mulch created from Holiday Greenery Collected in City, to any landfill for use as ADC.
Trees and greenery that have been flocked or are Contaminated by ornaments, lights and/or tinsel shall be delivered to the City designated Disposal Facility for Disposal.
Contractor shall provide City a written report by February 15 of each year of the Term, listing the Tons of Christmas trees and holiday greenery collected, the Tons delivered to the Compost Facility or other City -designated Processing Facility and the Tons delivered to the Disposal Facility. Contractor shall provide City with copies of weight tickets from the Compost Facility or other City -designated Processing Facility and from the Disposal Facility as documentation of the Tons Diverted and Disposed.
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3.4 Sharps Collection.
Contractor shall provide Customers with pre -paid, postage -paid mail -back Sharps containers to safely store used Sharps and send Sharps for proper disposal. Customers shall be provided with a toll-free number to call to arrange to receive the pre -paid, postage -paid mail -back Sharps container mailed to their Residence. Contractor shall also make Sharps pre -paid postage -paid mail -back Sharps containers available at a pick-up location in the City (such as the Senior Center) as an alternative for the Customer.
Contractor shall ensure that all Sharps are being properly disposed by the Persons or organizations that Contractor has subcontracted with to provide the Sharps collection and disposal service and that such disposal methods meet all applicable local, state and federal laws and regulations regarding Sharps handling and disposal.
At Contractor's option, and if Contractor holds all required state, local and federal permits and licenses to do so, Contractor may also Collect Sharps that are properly containerized as part of the Door -to -Door HHW Collection program described in Section 3.2. of this Attachment B.
Contractor's public education materials shall annually inform Customers about the availability of the Sharps collection program and shall emphasize the importance of keeping Sharps out of the MSW, Recyclable Materials and Food Scrap/Green Waste Carts. Contractor shall also advertise the program on its web site.
Contractor shall provide a monthly and annual report to the City on the number of Sharps pre -paid mailer kits provided to Customers both through home delivery of kits and by Customer pick-up at the in -City pick-up location. The report shall also list the number of Sharps containers mailed back for proper Disposal and the number (if any) Collected by Contractor as part of the Door -to -Door HHW Collection program. Contractor shall be compensated for the Sharps program as shown in Attachment D-1.
3.5 Community Shredding Events.
Contractor shall advertise and conduct two (2) shred events each calendar year during the Term. The first shred event shall be held during the first six (6) months of calendar year 2022 and the second event shall be held during the second six (6) months of calendar year 2022. During each shredding event, Residents of City may bring an unlimited quantity of paper for shredding. Contractor shall arrange the in -City location(s) for such events and shall provide all required labor, equipment, traffic control and other needed elements for such events. At Contractor's discretion, or if so directed by City, Contractor may require participants to show evidence of residence within the City (for example by providing a driver's license, utility bill or other documentation that the Customer resides within Newport Beach). Event dates shall be mutually agreed to by the City and the Contractor. Contractor shall advertise the events through its website and through mailings and other public outreach methods described in Section 4 of this Attachment B. If Contractor or City chooses to require proof of City residency at the events, Contractor shall include this requirement in all public education materials prior to each community shredding event.
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Contractor shall ensure that all paper delivered by Customers to the community shredding events is properly shredded and Recycled. Contractor shall provide a report to the City within thirty (30) days after each event listing the number of participants and the quantity of paper received, shredded, and Recycled as well as the name of the subcontractor used for the shredding/secured destruction and recycling of the paper. Contractor shall provide the community shredding events at no additional cost to the City or to Customers.
3.6 Annual Compost Giveaway Event.
Each calendar year during the Term, Contractor shall provide one (1) free Compost distribution event within the City for Residential Customers. The Compost product shall be bagged. The Compost shall be laboratory tested and shall meet the U.S. Composting Council's Seal of Testing Assurance standards. Laboratory test results of the product(s) to be distributed shall be submitted to City a minimum of fifteen (15) days prior to each distribution event. City shall notify Contractor at least sixty (60) days in advance of the Compost giveaway event. The parties shall coordinate regarding the location and timing for the delivery of the Compost. Contractor shall provide two (2) loads consisting of a total of forty-eight (48) pallets of bagged compost per event. [One (1) load contains twenty- four (24) pallets and each pallet contains approximately forty-eight (48) bags of Compost.] It is planned that a maximum of two (2) bags of Compost shall be provided to each Resident.
If desired, City may purchase additional pallets of bagged Compost from Contractor at the prices listed in Attachment D-1.
If possible, Contractor shall provide Compost made from Food Scraps and Green Waste Collected and processed in California and/or Compost produced at Contractor's Compost Facility described in Attachment P and shall report the origin of the mulch or Compost to the City for use as part of City's SB 1383 procurement requirements in CCR Chapter 12, Article 12, Section 18993.1.
Contractor shall promote the event through its website and through mailings and other public outreach materials described in Section 4 of this Attachment B. Contractor shall provide City with a report within thirty (30) days following each event listing the number of participants, the quantity of Compost delivered, and the origin of the Compost.
Contractor shall provide the Compost described herein for the giveaway events at no additional cost to the City or Residents.
3.7 Summer Saturday Collection Service.
In addition to the one (1) time weekly Collection of MSW provided as described in Section 2 of this Attachment B, Contractor shall provide a second weekly Collection of MSW on Saturday during the period from two Saturdays prior to July 4 of each year through the Saturday prior to Labor Day. The areas of the City that shall receive such Summer Saturday MSW Collection service are shown in Attachment S, and also include City -designated Residences on Balboa Island. City will periodically provide Contractor with updated lists/maps of the City -designated Residences on Balboa Island that shall receive Summer Saturday service. For all Customers receiving Summer Saturday Attachment B Scope of Work Page 26 of 38
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Collection service, the regular year -around weekly Collection day shall not change during the Summer Saturday Collection period.
The cost for providing Summer Saturday MSW Collection service described herein is included in Contractor's compensation shown in Attachment D-1.
In the event that state enforcement of SB 1383 regulations regarding Diversion of Residential Recyclable Materials and/or Food Scraps and/or Green Waste requires the addition of either the Collection of Recyclable Materials and/or Food Scraps/Green Waste to the Summer Saturday Collection service, or if the City, in its sole discretion, would like to add Summer Saturday Collection of these materials at the Residences described herein, the parties agree that the procedures in Section 4.13 ("City's Right to Change Scope of Work") and Section 12.06 ("Adjustments to Contractor Compensation Based on City -Directed Changes in Scope of Work") of the Agreement shall be followed. The adjustment to Contractor's compensation shall be calculated based upon the additional incremental cost of adding Summer Saturday Collection of Recyclable Materials and/or Food Scraps/Green Waste to the Residences described in this Section
3.7. 3.8 City Services.
Contractor shall provide all of the following services during the Term of the Agreement.
3.8.1 City Sponsored Special Events.
Contractor shall provide suitable containers (bins and/or roll off boxes) for MSW and Recyclable Materials at two (2) City -sponsored Special Events each year. These events are likely to be the City's Fourth of July celebration and the Corona Del Mar 5K run, however, City may, in it's sole discretion, change the events at which the service shall be provided. Contractor shall Collect the MSW and Recyclable Materials containers in a timely manner and shall process all Recyclable Materials and shall Dispose of all MSW. Contractor shall provide a report to the City within thirty (30) days after each Special Event listing the Tons of Recyclable Materials Collected and Diverted and the Tons of MSW Collected and Disposed from the event.
The cost for providing the Collection services described in this Section 3.8.1 is included in Contractor's monthly compensation in Attachment D-1.
If City desires Contractor to provide such services at additional Special Events, and/or to provide Food Scrap Collection services at the two (2) City -sponsored Special Events described herein, the parties agree the additional compensation to Contractor shall be determined using the procedures in Section 4.13 ("City's Right to Change Scope of Work") and Section 12.06 ("Adjustments to Contractor Compensation Based on City - Directed Changes in Scope of Work") of the Agreement.
3.8.2 Abandoned Item Collection, Alley Sweeps and City Litter Containers.
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City crews collect abandoned items from public rights-of-way and place the items at the City's Transfer Station and/or at the City yard. Third party City vendors collect MSW from City and park litter containers and deliver it to either the City's transfer station or the City yard, as directed by the City. Contractor shall Collect, Divert (where feasible) and Dispose of all abandoned items and City/park litter container MSW placed for Collection at both the City Transfer Station and the City yard. Contractor shall coordinate with City to ensure timely Collection of such materials from the Transfer Station and the City yard. The cost for providing the Collection services described in this Section 3.8.2 is included in Contractor's monthly compensation in Attachment D-1.
3.8.3 Emergency Collection and Disposal Service.
In the event of a natural disaster or other unforeseen emergency situation (e.g. earthquake, riot, or flood) Contractor shall, to the best of Contractor's ability, provide emergency services to City within four (4) hours of notification by the City. Emergency services may include, but are not limited to, loading, collecting and hauling MSW, Construction and Demolition Debris (including but not limited to flood and earthquake debris), and large items to processing facilities, landfills or stockpiles as directed by City.
Contractor shall provide, at a minimum, Collection vehicles, drivers and other personnel regularly assigned to the City, and shall also provide additional equipment, vehicles and personnel if available. Contractor shall be compensated directly by City for these services at the emergency service costs set forth in Attachment D-1. Emergency services costs reflect the hourly rate for one Collection vehicle and a two (2) person crew.
In the event that Contractor is unable to provide emergency services or is unable to provide sufficient or timely emergency services to City, City reserves the right to contract with another solid waste enterprise or any other Person on a temporary basis to collect, transport, stockpile, Divert and/or Dispose of MSW, Construction and Demolition Debris and all other materials as needed for City to protect the public health, safety and welfare.
3.8.4 Compost and Wood Chips for City.
Contractor shall, at no additional cost, provide the City with Compost for City's use in municipal open areas, landscaped medians, parks and other similar areas. Contractor shall provide up to six (6) loads (each load consisting of one (1) forty cubic yard container full of Compost) at no additional cost to City each calendar year. Contractor shall, if additional Compost is available, provide additional Compost for purchase by City at the cost listed in Attachment D-1.
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SECTION 4: PUBLIC INFORMATION AND CONSUMER EDUCATION.
General. The parties agree that comprehensive, accurate information and consumer education are critical requirements of the Act and are, therefore, essential for City's compliance with the Act, especially given implementation of the new Food Scraps/Green Waste Diversion Program for all Residents in City.
4.1 Joint Public Outreach Plan. City and Contractor have jointly developed a public outreach plan for rollout of the new Food Scrap/Green Waste program as shown in Attachment C. City and Contractor have also developed a on-going public outreach plan for the remainder of the Term of the Agreement as shown in Attachment X.
As shown in Attachments C and X, the parties have divided the public outreach effort between themselves, with each party preparing and distributing specified public outreach items (e.g. brochures, video, social media content, pop up events, etc.) Contractor shall prepare and distribute all public outreach items that Contractor is responsible for in Attachments C and X within the timeframes specified in said Attachments. In the event Contractor fails to prepare and distribute the public outreach items it is responsible for in the timeframes listed in Attachments C and X, the liquidated damages in Section 13.09 of the Agreement shall apply.
4.2 Professionally Designed and Produced Public Outreach Materials. In creating the public education materials listed in Attachments C and X, Contractor shall professionally design, print and/or produce said materials such that they are attractive, easy to read, and evidence a professional design and layout. Materials shall be a minimum of 4 -colors unless a more simple color scheme is more appropriate. The content, design and layout of all public education materials prepared by Contractor shall be submitted to the City for review and approval a minimum of thirty (30) days prior to printing/production. In cases where the initial program rollout schedule requires a shorter review period for the City, City will make reasonable efforts to reduce the time for its review. Examples of such instances include the brochures and other written materials plus the video for the Food Scrap/Green Waste program, Containerization rules, change of Collection day, information on new Carts, Extra Carts, Valet service, "right -sizing" the number of Carts and other changes taking place from the Effective Date through April 2022.
4.3 Specific Outreach Campaigns.
4.3.1 Route Optimization Outreach
As described in Section 1.3 of this Attachment B, Contractor shall implement new optimized Collection Routes on January 31, 2022. Contractor sent a direct-mail piece to all Residents that will experience a Collection day change. This notification, sent on approximately January 7, 2022, included the following components:
Reasons why the route change is occurring.
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Attachment B Scope of Work
Current service day for the Customer.
New service day for the Customer.
Effective date of route changes.
Link to online service day map showing current and proposed service days.
A brief summary of the new Food Scrap/Green Waste program Note that there will be more information coming regarding the new Food Scrap/Green Waste Collection program.
During the week of January 24, 2022, Contractor shall "robo-call" all Residents who will experience a Collection day change with a pre-recorded telephone message telling them of the change in service day. Contractor will also "robo-call" all Residents who will experience a Collection day change, with an additional reminder using a pre-recorded telephone message, during the week of January 31, 2022.
4.3.2 Outreach For New Co -Collected Food Scrap/Green Waste Program As described in Section 2 of this Attachment B, Contractor shall implement a Co - Collected Food Scrap/Green Waste Diversion program for all Residents beginning January 31, 2022. The delivery of the Food Scrap/Green Waste Carts shall commence on January 31, 2022.
4.3.2.1. Food Scraps and Yard Trimmings Recycling Guide. Attached to all Food Scrap/Green Waste Carts shall be a Food Scrap and Green Waste Recycling guide prepared by the Contractor. The Food Scrap and Green Waste Recycling guide, shall, at a minimum, include:
o Acceptable materials to include in Food Scrap/Green Waste Cart and materials to keep out of the Food Scrap/Green Waste cart (including a chart or graphic that the Resident can keep and refer to). o Compostable bag guidelines for kitchen pail and what materials not to use (e.g. lining the pail with a compostable bag or newspaper is acceptable, lining it with a plastic bag is not)
o Direction encouraging Customers to use the kitchen pail and Cart immediately
o How to contact Contractor with questions (including via telephone, e-mail and website).
o QR code for instructional video on how to use the kitchen pail and Food Scrap/Green Waste Cart.
o Links to City and CR&R website and FAQs.
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Attachment B Scope of Work
A draft of the Food Scrap/Green Waste Recycling guide that will be attached to each Food Scrap/Green Waste Cart shall be provided to the City no later than January 1, 2022 for review.
4.3.2.2 Food Scraps and Green Waste Toolkit for Inclusion in Kitchen Pail As described in Section 2 of this Attachment B, Contractor shall also distribute kitchen pails to all households. To accompany the kitchen pails, Contractor shall prepare a printed toolkit that includes an explanation and/or diagram showing how Residents will store Food Scraps in the "Sure Close TM" Containers and then empty the contents into the wheeled Food Scrap/Green Waste Cart. The materials will also clearly describe what Food Scrap and Green Waste materials are accepted in the program and what should be excluded.
This guide shall be placed inside the kitchen pails when distributed to Customers. Kitchen Pail Toolkit shall include a QR code for instructional video on how to use the kitchen pail and Food Scrap/Green Waste Cart. Contractor shall provide answers to residents' questions and shall also provide a method for residents to ask and receive prompt answers to follow-up questions about the program via telephone, e-mail or text, and Contractor's web site.
A draft of the Food Scrap/Green Waste Recycling toolkit that will be included in each Kitchen Pail shall be provided to the City no later than January 15, 2022 for review.
4.3.2.3 Food ScrapsNard Trimming Recycling Program `How-to' Film. On or before January 31, 2022, CR&R shall professionally produce a 3-5 minute `how-to' video to educate residents about the curbside Food Scraps/Green Waste Collection program. The video shall include the following components and should adhere to the City's style -guide and branding:
• Food Scrap Collection
o Which items are acceptable in the program, with an emphasis on the acceptance of food -soiled paper, meat, diary, fish, eggs, and compostable plastics.
o Which items cannot be included in the program
o How to line the kitchen pail and what types of materials can be used as a liner
o Where the kitchen pail can be emptied
o Helpful hints and reminders to remove packaging from food items deposited in the kitchen pail/Cart, to use the kitchen pail while cooking, to use the kitchen pail when cleaning out the refrigerator
o How the Food Scraps are ultimately processed and the environmental benefits of Composting as opposed to landfilling Food Scraps o Footage of the Composting facility, Collection vehicles, kitchen pails being deposited into the Food Scraps/Green Waste Cart, Food Scrap/Green Waste Cart being collected by Contractor's collection vehicles, including the split body rear -loader
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Attachment B Scope of Work
o How to mitigate odors
o How to wash the kitchen pail
o How to wash the Food Scraps/Green Waste Cart without dumping dirty water into the storm drain/gutter
• Green Waste recycling
o What materials are acceptable/not acceptable
o Guidelines for use, including maximum acceptable diameter for branches • Include other SB 1383 -required content, including:
o Information on the methods of prevention of Food Scraps and Green Waste generation, Composting Food Scraps and/or Green Waste onsite • Recyclable Materials Collection Program
o How to use the program
o What's acceptable and what is Contamination
o How to properly dispose of HHW, sharps, and E -waste
On or before the Effective Date, the City shall provide Contractor a shooting script for the `how-to' film. The completed film shall be hosted on the Contractor's website, the City's website, and shall be distributed through the City's social media channels. The completed film shall be accessible to residents via a `Quick Read Code' (QR Code) that will be included in the Recycling guide, the kitchen pail toolkit, and other print materials pertaining to Food Scraps and Green Waste Recycling education.
The City, in its sole discretion, may fund the production of the training film described herein. If the City determines that it will take production of the training film `in house', Contractor shall reimburse the City for up to $6,000 of production costs. Production costs that shall be reimbursed to the City by the Contractor shall include filming costs, editing costs, consulting costs to develop the script, City staff time to assist with script development and production, licenses for stock footage, filming costs for b -roll footage, etc. City shall submit an itemized invoice to the Contractor for all production costs associated with the development of the training film described herein. If the City takes the production of the training video `in house', the City shall notify the Contractor, in writing, on or before the Effective Date of the Agreement.
4.3.2.4 Food ScrapsNard Trimming Program Social Media Posts. Contractor shall professionally produce social media posts promoting the Food Scraps/Yard Trimmings Cart for distribution via the City's social media channels, including Facebook, Instagram, Twitter, NextDoor, and other channels used by the City. The Contractor shall make use of graphics and imagery for the social media posts to engage with social media users and to make content interactive with a specific `call to action' such as clicking a link to the `how to' video or visiting the City's Recycling webpage. Contractor shall provide video postings that include segments of the `how to' video for social media consumption that focus on helpful tips for use of the Food Scraps/Green Waste Cart and/or kitchen pail (i.e. how to mitigate odors, how to line your kitchen pail, how to wash your kitchen pail, how to wash your Food Scraps/Green Waste Cart, etc.). Contractor shall engage a third -party firm to Attachment B Scope of Work Page 32 of 38
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Attachment B Scope of Work
create the social media. Contractor shall include targeted advertisements, as needed, in order to use all the funds allocated to this social media campaign ($6,000). On or before March 1, 2022, Contractor shall provide the City with its proposed social media calendar, including 12 posts to distribute during the first six months of the Food Scraps/Green Waste Cart roll-out (March 15 — September 15, 2022). The posts shall be formatted appropriately for all social media platforms described herein. City shall provide feedback to Contractor within 5 calendar days of the posts being presented. Contractor shall incorporate the City's edits into the posts and present the revised posts to the City by March 10, 2022.
4.3.2.5. Food Scraps/Green Waste Program Follow-up Mailer Contractor shall professionally produce an outreach item for direct-mail distribution to all Customers on by July 1, 2022. The brochure shall use attractive and engaging images and graphics and shall include images of Food Scrap/Green Waste Carts and kitchen pails, acceptable materials in the program, extra service information, how to use and store the Cart, how to use and store the kitchen pail, how to use compostable bags, a link to both the City and Contractor's website, toll-free number, link or QR code to how-to video, Extra Cart charge information, Containerization requirements, frequently asked questions, how to participate in special services such as Bulky Items, sharps, E -waste, U -waste, different Cart sizes that are available, legislative requirements, and other content as directed by the City or as appropriate. On or before March 31, 2022, Contractor shall provide a draft of the follow up brochure to the City. The City shall provide edits and written feedback on the draft brochure no later than April 14, 2022. Contractor shall incorporate the edits and send the final version to the City no later than May 2, 2022. City shall approve the final brochure by May 16, 2022. Contractor shall print and distribute the brochure to all Customers in the City on or before July 1 st, 2022.
4.3.3. Extra Services Outreach
Contractor will begin direct -billing Customers that subscribe to Extra Services on April 1, 2022, unless the City directs Contractor to implement the Extra Service Charge Delay Period described in Section 2.7 of this Attachment B. Prior to charging Customers for Extra Services, Contractor will notify all residents who have Extra Services by January 31, 2022 to allow time for Residents to request removal of Extra, unwanted Carts prior to be charged for them on April 1, 2022. This notification shall include the following components:
• Notification that Extra Carts, and standard and premium valet service will be provided only at an additional charge.
• Extra Service charges become effective April 1, 2022. • Include pricing for these services.
• How many Carts are included at no charge and the price(s) for Extra Carts • Process for requesting removal of Extra Carts
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Attachment B Scope of Work
• Notification that if the Customer takes no action, Extra Carts will remain in place and the Customer will be billed for them
• Information on Containerization requirements
4.4 Ongoing Public Outreach to Be Conducted by Contractor.
Contractor shall, at every reasonable opportunity, work to: familiarize Residents with essential waste prevention and Recycling concepts and activities; explain benefits of Recycling, waste prevention, Food Scrap/Green Waste Diversion, Composting and other forms of diverting MSW; provide data on historic and current diversion activities in City when coordinated or provided by Contractor; fully and clearly explain services and programs available to Residents; publicize materials to be collected for Diversion and diligently pursue expanding markets such that new items, formerly disposed at landfills, become Recyclable Materials and/or Divertible Materials, and; respond to questions or requests for more information from Residents. Contractor shall provide and distribute outreach material in the form of online resources, fliers, cards, magnets or other methods acceptable to City. All public education materials shall be approved in advance by City.
All printed materials shall be printed on recycled paper. The content of all written materials to be distributed shall be subject to review and approval of City in advance of dissemination.
4.4.1 Contractor Mailing Procedures
With the exception of items in Attachments C and X that City is responsible for, Contractor is responsible for costs associated with developing and distributing public outreach materials. As Contractor does not bill Customers, City will provide Contractor with mailing lists for Contractor's use in distributing mailings
4.4.2 On-going Public Education Requirements
Contractor shall provide, at a minimum, the following ongoing public education items and events:
• City Council Presentations — Upon the written request of City, Contractor shall provide, at no additional cost to City, at least two (2) presentations to the City Council regarding new programs, the status of the rollout and implementation of new Diversion programs required by the Agreement, and other Municipal Solid Waste and Diversion matters on an annual basis.
• Annual Updated Recycling Guide - Contractor shall professionally update the Recycling guide which provides Residents with information on all Collection programs provided by Contractor, for direct-mail distribution to all Customers on April 1 of each year of the Term. The guide shall use attractive and engaging images and graphics and shall include images of carts and kitchen pails, Attachment B Scope of Work Page 34 of 38
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Attachment B Scope of Work
acceptable materials in the program, Extra Service information, how to use kitchen pail, how to use compostable bags, a link to both the City and Contractor's websites, toll-free number, link or QR code to how-to video, Extra Cart charge information, Containerization requirements, how to participate in special services such as Bulky Items, sharps, E -waste, U -waste and other HHW Collection via the Door -to -Door HHW program, different Cart size options, legislative requirements, and other content as directed by the City or as appropriate. On or before Feb 1 of each year, Contractor shall provide a draft of the updated guide to the City. The City shall provide edits and written feedback on the draft updated guide no later than February 15 of each year. Contractor shall incorporate the edits and send the final version to the City no later than March 1 of each year. City shall approve the final updated guide for print and distribution by March 10. Contractor shall print and distribute the guide to all Customers in the City on or before April 1, 2023 and each year thereafter.
• Semi -Annual Notice/Newsletter — Contractor shall prepare and distribute two (2) mailings each calendar year updating Customers on (a) holiday Collection schedules, (b) holiday tree Collection, (c) Bulky Item Collection, (d) what materials, such as syringes and other Household Hazardous Wastes (HHW), should not be placed in MSW Carts, (e information on the Door -to -Door HHW Collection program, (f) requirements for Containerization of all MSW and Divertible Materials, (g) availability of Extra Carts and Valet Services, (h) environmental -related events, and (i) other timely Solid Waste and materials Diversion information.
• Quarterly Notice/ Newsletter — Contractor prepares a quarterly Orange County newsletter to support Diversion activities. Contractor shall provide copies of this newsletter to the City as an insert in City mailings, and/or utility bills, if requested by City.
• Corrective Action Notice —Contractor shall develop a corrective action notification form for use in instances where a Customer sets out inappropriate materials for Collection that explains the appropriate manner for Disposal and/or Diversion of such items. (For example HHW, Bulky Items.) • Classroom Education Curriculum —Contractor will provide curriculum to schools in the City, offering the curriculum to the School District.
4.5 City Right to Participate in Regional or Joint -Jurisdictional Public Education and Consumer Information Campaigns.
City reserves the right, in its sole discretion, to participate with other jurisdictions in a Attachment B Scope of Work Page 35 of 38
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Attachment B Scope of Work
coordinated effort to provide public information and consumer education in order to produce a more effective result, whether these jurisdictions are or are not provided MSW, Recyclable Materials and/or Food Scrap/Green Waste Collection and Diversion services by Contractor. To this end, Contractor shall cooperate with such efforts and shall not impede City's efforts.
4.6 Website.
Contractor shall create and maintain a website with information on all of the City's solid waste and Diversion programs and all services provided by Contractor as described in Section 8.04G of the Agreement.
4.7 Seminars, Workshops, Presentations, Meetings.
Contractor shall ensure the attendance of qualified and knowledgeable employees of Contractor, on an as -requested basis, at local seminars, workshops, presentations, meetings and the like, to provide information or discuss matters related to Municipal Solid Waste and Divertible Materials management.
SECTION 5: DIVERSION PROGRAM MATERIAL STREAMS AND
CONTAMINANTS.
The following table lists the Diversion program material streams to be Collected. This list includes items to be accepted in each Diversion program and items that are considered Contamination in each Diversion program. The City may modify this list at any time during the Term of the Agreement.
Diversion Program Material Streams and Contaminants
Diversion Program
Material Stream
Acceptable Materials
Unacceptable Materials
(Contamination)
Single Stream
Newspaper, phone books,
Paper tissues, paper towels,
Recyclable
catalogs, magazines, brown
paper with plastic coating (i.e.
Materials
paper bags, packaging, egg
photographs, label paper),
cartons, white paper, colored
paper with food, waxed paper,
paper, envelopes (windows
waxed cardboard, foil lined
are not Contamination), junk
paper, Tyvex (non -tearing)
mail, glossy paper, shredded
envelopes, non -paper bags,
paper, carbonless paper,
plastic liners (i.e. cereal bags),
chipboard/boxboard,
windows, mirrors, dishware,
cardboard, wrapping paper,
ceramics, light bulbs,
empty aluminum cans,
fluorescent tubes, wood
empty tin cans, juice
furniture, Styrofoam, MSW,
containers, beer containers,
Hazardous Waste, hard cover
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Wood
Co -Collected Food
Scraps/Green Waste
Attachment B Scope of Work
Attachment B Scope of Work
sauce containers, soda cans,
tuna cans, soup cans, loose
jar lids, empty aerosol, empty
glass beverage containers,
empty glass food containers,
all glass colors, empty CRV
and non-CRV plastic
containers, trays and bottles
#1 through #7, soft cover
books/manuals, milk/juice
cartons, plastic toys, plastic
irrigation or PVC pipe, rigid
plastic sheets or panels,
empty plastic buckets and
baskets, empty plastic flower
pots, plastic crates and carts
Non -treated wood, stained
wood, wood with nails, wood
with small metal items, tree
trunks/stumps/branches
(free from leaf and brush
material)
All food, fruits, vegetables,
meat and bones, poultry,
seafood, shellfish, dairy
products, cheese, eggs and
eggshells, rice, beans,
bread, pasta, coffee
grounds, and plate scrapings
of these materials. In the
event City directs that food -
soiled paper products be
included, add: food soiled
paper towels, tissue
products, paper napkins,
paper plates and cups,
coffee filters, tea bags,
waxed paper, butcher paper,
BPI -certified compostable
utensils, single use PLA
cups, single serve coffee
brewing cups and other
plant -based utensils; paper
take-out boxes and
containers, greasy pizza
books/manuals, pyrex
materials, fiberglass materials,
bubble wrap, tarps, textiles,
clothes, shoes, E -Waste, U -
Waste and small manufactured
goods (e.g. purses, handbags
and backpacks)
Painted wood, lacquered wood,
creosote treated wood, railroad
ties, telephone poles,
excessive nails, large metal
items, Hazardous Waste
Glass, plastics, metal, plastic
wrap, silverware, plates, cups,
glasses, diapers, MSW, Single
Stream Recyclable Materials,
food processing liquids,
Hazardous Waste (including
chlorine, bleaches, ammonia,
other cleaning products) rocks,
dirt, pet waste. Food soiled
paper does not include
polystyrene, plastic -backed
paper, blue -line paper or
blueprints, kitty litter, any paper
containing plastics aluminum
foil or foil -lined food wrap,
"biodegradable plastics" if
considered "Contamination" or
" non-com postable" by
Contractor's Composting
Facility.
Rocks, dirt, sand, plastic bags,
MSW, Single -Stream
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Attachment B Scope of Work
Attachment B Scope of Work
boxes, paper bags and
cardboard and wax -coated
cardboard produce boxes;
Loose green material from
the yard, grass clippings,
leaves, weeds, tree
prunings, bush pruning's,
plant material, tree
trunks/stumps/branches 3"
or less in diameter
Recyclables, pet waste,
Hazardous Waste, tree
trunks/stumps/branches
greater than 3" in diameter
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Attachment C Implementation Plan and Schedule
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Attachment C Implementation Plan and Schedule
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Attachment D-1
Compensation Schedule
Compensation applicable from January 15, 2022 through June 30, 2022 Basic Service
Monthly Compensation Amount
Customer collection in "2013 Contract Area" in Attachment Q $333,846.00
Customer collection in "Newport Coast" Area in Attachment Q $63,416.05
Enhanced SB 1383 -mandated programs (for entire City)
$239,556.68
Bulky item collection
$549.00
Sharps collection program
$2,285.00
HHW door-to-door collection program
$11,431.00
Container pull-out for disabled customers
No charge
Two (2) annual shred days
No charge
One (1) annual compost/mulch giveaway
No charge
Total
$651,083.73
Other Compensation Paid to Contractor on an As -needed Basis Compensation Amount
Emergency Collection Services - one 2 -person crew and truck (disposal charge to $138 per hour
be added at actual cost per ton)
Additional Bulk Compost provided by Contractor (if and when available) for $175 per load
purchase by City. Cost is per forty cubic yard load
Additional Bagged Compost provided by Contractor (if and when available) for $98.05 per pallet
purchase by City. Cost is per pallet of 48 bags.
Additional Load of Bagged Compost provided by Contractor (if and when available) for purchase by City. Cost is per load of 24 pallets each consisting of $2353.26 per load
48 bags of compost.
Hourly Cost Per Additional Temporary Customer Service Representative $35 per hour
Collection of Non -Containerized Materials During "Grace Period" (See $2.47 per home/incident
Attachment B Section 2.8 for details on how to bill City for Non -containerization) Extra MSW Cart Charge paid by City during Extra Service Charge Delay Period (See Attachment B for details on how to bill City for Extra Cart Charges during $6.09 per MSW Cart per month
Extra Service Charge Delay Period)
Extra Recycling Cart Charge paid by City during Extra Service Charge Delay $3.41 per Recycling Cart per
Period (See Attachment B for details on how to bill City for Extra Cart Charges month
during Extra Service Charge Delay Period)
Extra Food Scrap/Green Waste Cart Charge paid by City during Extra Service $4.11 per Food Scrap/Green
Charge Delay Period (See Attachment B for details on how to bill City for Extra Waste Cart per month
Cart Charges during Extra Service Charge Delay Period)
Standard Valet Cart Service Charge paid by City during Extra Service Charge Delay Period (See Attachment B for details on how to bill City for Extra Service $8.30 per household per month
Charges during Extra Service Charge Delay Period)
Premium Valet Cart Service Charge paid by City during Extra Service Charge Delay Period (See Attachment B for details on how to bill City for Extra Service $27.68 per household per month
Charges during Extra Service Charge Delay Period)
Transfer Station Operating Agreement Payment Payment to City Monthly payment to City by Contractor - See Attachment W $39,400 20-229
Attachment D-2
Prices Direct -Billed by Contractor to Customers for Extra Services The following prices are effective from January 15, 2022 through June 30, 2022. Prices are adjusted annually each July 1 of the Term of the Agreement per Section 12.03 and Attachment J.
Extra Service
Monthly Price
Notes
Extra MSW Cart
$6.09
Customer receives one (1) MSW Cart as part of
basic service. This price is for the second and all
additional MSW Carts.
Extra Recycling Cart
$3.41
Customer receives up to two (2) Recycling Carts
as part of basic service. This price is for the
third and all additional, Recycling Carts.
Extra Food Scrap/Green Waste
$4.11
Customer receives one (1) Food Scrap/Green
Cart
Waste Cart as part of basic service. This price is
for the second and all additional Food
Scrap/Green Waste Carts.
Standard Valet Cart Service
$8,30
Driver/helper will move Carts up to fifteen feet
(15') from where the truck is stationed.
Includes all Carts at the residence.
Premium Valet Service
$27,68
Driver/helper will move Carts over fifteen feet
(15') from where the truck is stationed.
Includes retrieving and returning Carts from
backyard or side yard. Includes all Carts at the
residence.
Cart Retrieval Service for
No charge
See Attachment B, Section 1.4.6 for Customer
Disabled Customers
eligibility requirements.
Replacement Sure Close'"
$9.95
Each residence receives one (1) kitchen food
Kitchen Food Scrap Pail
scrap pail upon Food Scrap/Green Waste
program startup. Price is for any additional
pail(s).
Removal of Non -containerized
$2.47
Contractor may direct bill residents for the
MSW, Green Waste, and/or
second and subsequent instance of non -
containerization. Contractor must Collect non -
Recyclable Materials
containerized materials encountered by drivers
during collection routes. See Attachment B,
Section 2.8 for details on how Customers are to
be charged.)
Extra Bulky Item Pickup
$13.95
Customers receive five (5) Bulky Item pickups
per calendar year consisting of up to five (5)
Bulky Items in each pickup. Price is for the
sixth and all subsequent Bulky Item pickups in a
calendar year. Price includes up to five (5) Bulky
Items in the pickup.
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ATTACHMENT E
Specifications for Wheeled Carts to be Supplied by Contractor Cart Design Requirements - The Carts shall be manufactured by injection or rotational molding and meet the Cart design requirements as specified below
1.1. Cart Manufacturer - Contractor shall provide Toter® brand Carts for Recyclable Materials to Customers without such carts, as described in Attachment B, Section
1.4.1 and shall provide Toter® brand Carts for Food Scraps/Green Waste to all Residences as described in Section 2.4.1 of Attachment B. Carts shall have single - piece product design with no seams and consistent wall thickness. Contractor shall endeavor to provide Toter® brand Carts for MSW, Recyclable Materials and Food Scraps/Green Waste throughout the Term, in order to create a uniform appearance of Cart aesthetics, shape and colors throughout the City. If, after making reasonable and timely efforts to obtain replacement Toter® brand Carts during the Term (and only after the initial purchase and distribution of Toter® brand Carts described herein has been accomplished by Contractor) Contractor may request City approval to provide replacement Carts from another manufacturer. City shall determine, in its sole discretion, whether the quality, features, sizes, Cart and lid colors and other characteristics of such Carts are equal to those of the Toter® Carts and whether the proposed Carts meet the specifications in this Attachment E.
1.2. Capacity — Contractor shall provide Carts in three sizes for residential MSW, Recyclable Materials, and Yar Food Scraps/Yard Trimmings Collection. The Carts shall be uniform in appearance and Contractor shall provide the following sizes:
• 32 -gallons
• 64 -gallons
• 96 -gallons
1.3. Cart Handles — The Cart handles and handle mounts may be an integrally molded part of the Cart body or molded as part of the lid. Bolt -on handles are acceptable for all Carts except for those that will accept Food Scraps. The Cart handles will provide comfortable gripping area for pulling or pushing the Cart or lifting the lid.
Pinch points are unacceptable.
1.4. Cart Lid — Each Cart shall be provided with a lid that continuously overlaps and comes in contact with the Cart body or otherwise causes an interface with the Cart body that simultaneously:
• Prevents the intrusion of rainwater, rodents, birds, and flies; • Prevents the emission of odors;
• Enables the free and complete flow of MSW, Recyclable Materials and Food Scraps/Green Waste from the container during the dump cycle without interference with the material already deposited in the truck body or the truck body itself and its lifting mechanism;
• The lid handle shall be an integrally molded part of the lid; • Permits users of the Cart to conveniently and easily open and shut the lid throughout the serviceable life of the Cart;
• The lid (and body) must be of such design and weight that would prevent an empty Cart from tilting backward when flipping the lid open; Attachment E Page 1 of 5
20-231
ATTACHMENT E
Specifications for Wheeled Carts to be Supplied by Contractor • The lid shall be hinged to the Cart body in such a manner so as to enable the lid to be fully opened, free of tension, to a position whereby it may rest against the backside of the Cart body; and
• The lid shall be designed to be easily removed in the event of damage or failure. The hinge assembly shall not be capable of being readily removed by the public by hand or with ordinary tools.
1.5. Foot -Hold — Each Cart shall have a foot -hold area on the back of the Cart to allow for foot placement so as to assist in tilting back the Cart prior to rolling it. If Food Scraps are being placed in the Cart, the foot hold holes shall be sealed so that Food Scrap liquids do not leak through the holes.
1.6. Stop bar — Each Food Scrap/Green Waste Cart shall have a molded, sealed stop bar that prevents leakage.
1.7. Cart Colors — All carts shall be Toter® with granite -colored bodies. The MSW, Recyclable Materials, Food Scraps/Green Waste Carts will be differentiated by lid color. MSW carts shall have a black lid, Recyclable Materials carts shall have a light -blue lid, and Food Scraps/Green Waste Carts shall have a green lid. The colors shall be colorfast and resistant to fading as a result of weathering or ultraviolet degradation. Carts shall comply with this CalRecycle color -scheme on or before the dates in Attachment B, Section 1.
1.7.1. Phase-out of Existing Carts by Attrition - As of the Effective Date, residents in the areas of the City labeled "2013 Contract Area" in the Map in Attachment Q have Carts of the following colors and style: MSW Carts manufactured by Toter® with a granite color body and a black lid; Recycling Carts manufactured by Toter® with a granite body and a dark blue lid.
Residents in the areas of the City in Attachment Q labeled "Newport Coast Area" have MSW Carts manufactured by Roto with black bodies and lids.
Recycling Carts have brown bodies and lids. Contractor shall phase in replacement Carts by attrition, such that when existing Roto carts require replacement, a new Toter® Cart (either granite with a black lid for MSW or granite with a light blue lid for Recyclable Materials) will be provided to the Customer, and the old Roto Cart will be Collected by Contractor and either Recycled or Disposed. When existing Toter® Carts with granite bodies and dark blue lids require replacement, Contractor will provide the Customer with a new Toter® Cart that is granite in color with a light blue lid and a Recycling decal. Granite colored Toter® Carts with green lids and decals for storage of Food Scraps and Green Waste, will be provided to Customers as described in Attachment B, Section 1. The ultimate goal of the City is to achieve a uniform color scheme for all Carts with granite colored Toter® Carts for each material; black lids for MSW, light blue lids with Recycling decals for Recyclable Materials, and green lids with Food Scrap/Green Waste decals for those materials.
Attachment E Page 2 of 5
20-232
1.8. Wheel Design and Axle Assembly — Each Cart shall be equipped with an axle and two wheels, positioned on the bottom of the Cart to facilitate it being pushed or pulled with little effort with load weights up to its maximum load capacity as set forth in Section 2.2 of this Attachment E. If Food Scraps are being placed in the Cart, the axel holes shall be sealed so that Food Scrap liquids do not leak through the holes.
1.9. Identification Markings — For all new Carts distributed during the Term of the Agreement, the following markings shall be permanently marked on the exterior lid of each container in character size of no less than one (1) inch, the phrases:
In character size in the range of 1/4 to 314 inch, the following phrases:
DO NOT PLACE FLAMMABLE PRODUCTS
OR HOT ASHES IN THIS CONTAINER
DO NOT DISPOSE OR HAZARDOUS MATERIALS
IN THIS CONTAINER
NO PONGA PRODUCTOS INFLAMABLES O CENIZAS EN ESTE NO PONGA
MATERIALS PELIGROSOS EN ESTE RECIPIENTE
In character size in the range of 1/4 to 3/4 inch, the following item:
IDENTIFICATION CODE
The following markings shall be on the backside of the Cart.
In character size of no less than 1/4 inch, the phrase:
DO NOT TILT OR ROLL CONTAINER WITH LID OPEN
NO RUEDE EL RECIPIENTE CON LA TAPA ABIERTA
An arrow (at least 3 inches by 5 inches) shall be placed on the lid, indicating the direction of Cart placement.
In character size of no less than 3116 inch, the phrase:
PLACE CONTAINER WITH ARROW FACING STREET FOR COLLECTION
COLOQUE EL RECIPIENTE CON LAS FLECHAS HACIA LA CALLE
10. Sticker Attachment Area - Cart lids shall have a molded depression no less than 5 inches tall and 11 inches wide where the Contractor shall attach a color, weather- proof adhesive label indicating the materials accepted in each of the Carts. Decals shall comply with the specifications set forth in Attachment B, Section 1.
Attachment E Page 3 of 5
20-233
11. Additional Parts — All parts necessary for the Cart to be complete and ready for operation and use by the residents of the City shall be furnished by the Contractor.
12. Replacement Parts — All replacement and repair parts and components shall be of the same or better quality as the original parts provided to the City and must meet the same requirements as set forth in Section 2 of this Attachment E — Cart Performance Requirements.
2. Cart Performance Requirements — All Carts shall be designed and manufactured to meet the minimum performance requirements described below.
2.1 Minimum Service Life — Carts shall have the capability for continual, uninterrupted use as MSW, Recyclable Materials and Food Scrap/Green Waste Carts in Residential applications as set forth in the Agreement for a minimum period of ten (10) years, herein referred to as the "Minimum Service Life." The Minimum Service Life shall be measured from the date of delivery or distribution.
2.2 Cart Load Capacity — Depending on the capacity, the Carts shall have a minimum load capacity as noted below without Cart distortion, damage, or reduction in maneuverability or any other functions as required herein.
Cart Size (Gallons)
Minimum Load
Capacity (LBS)
96 200
64 130
32 70
2.3 Cart Durability — Carts shall remain durable, and at a minimum, shall meet the follow durability requirements to satisfy its intended use and performance, for a period of ten (10) years:
• Maintain its original shape and appearance;
• Be resistant to kicks and blows;
• Require no routine maintenance and essentially be maintenance free; • Not warp, crack, rust, discolor, or otherwise deteriorate over time in a manner that will interfere with its intended use;
• Resist degradation from ultraviolet radiation;
• Be incapable of penetration by biting or clawing of household pets (i.e., dogs and cats);
• The bottoms of Cart bodies must remain impervious to any damage, that would interfere with the Cart's intended use after repeated contact with gravel, concrete, asphalt or any other rough and abrasive surface; Attachment E Page 4 of 5
20-234
• All wheel and axle assemblies are to provide continuous maneuverability and mobility as originally designed and intended; and,
• Resist degradation by other airborne gases or particulate matter currently present in the ambient air of the City.
2.4 Chemical Resistant — Carts shall resist damage from common household or residential products and chemicals. Carts, also, shall resist damage from human and animal urine and feces.
2.5 Stability and Maneuverability — The Carts shall be stable and self -balancing in the upright position, when either empty or loaded to its maximum design capacity with an evenly distributed load, and with the lid in either a closed or open position.
All Carts shall be capable of maintaining the upright position in sustained or gusting winds of up to 25 miles per hour as applied from any direction.
The Carts shall be capable of being easily moved and maneuvered, with an evenly distributed load equal in weight to its maximum design capacity on a level, sloped or stepped surface.
2.6 Lid Performance — Cart lid assemblies shall meet the following minimum requirements:
• Prevent damage to the Cart body, the lid itself, and to any component parts through repeated opening and closing of the lid by Residents or in the dumping process as intended;
• Remain closed in winds up to 25 miles per hour from any direction. All lid hinges must remain fully functional and continually hold the lid in the original designed and intended positions when either opened or closed; and, • Lids shall be designed and constructed such that it prevents physical injury to the user while opening and closing the Cart.
2.7 Reparability — Minor cracks, holes, and other damages to hinges, wheels, axle, hardware, and other component parts shall be readily repairable by the Contractor's personnel with minimum training and supervision. All repairs shall be capable of being performed by one person in the field. All repairs must restore the container to its full functionality to meet the design and performance requirements as set for herein.
3. Cart Ownership and Maintenance Responsibilities — The Company shall be responsible for Cart repair and maintenance, graffiti removal, and replacing lost, stolen or damaged Carts at no additional charge to the Customer or to the City. Contractor shall own the Carts during the Term. The City reserves the right to have the Contractor remove the carts at the end of the Term at no charge to the City.
Attachment E Page 5 of 5
20-235
ATTACHMENT F
List of Vehicles to be Provided by Contractor
Note: The costs (including, but not limited to, capital cost, repair and maintenance) for all listed vehicles and replacements are included in the Contractor compensation shown in Attachment D-1 pursuant to the negotiations conducted between the parties for this Agreement. Vehicle identification numbers marked as "TBD" shall be provided to CITY by Contractor on or before the Effective Date of the Agreement.
Residential Collection Vehicles as of the Effective Date and Planned Replacement Dates Vehicle
Type
Vehicle
ID
Number
Manufacturer
Truck/Body
Model
Year
Route
Type of Fuel
(e.g., CNG,
biodiesel,
LNG, etc.)
Planned
Replacement
Year
Truck
Body
Split Body
TBD
Peterbilt
Kann
1 2021
RCY/Organic
RNG
2029
Split Body
TBD
Peterbilt
Kann
2021
RCY/Organic
RNG
2029
Split Body
TBD
Peterbilt
Kann
2021
RCY/Organic
RNG
2029
Split Body
TBD
Peterbilt
Kann
2021
RCY/Organic
RNG
2029
Rear -loader
67-67
Ford
McNeilus
2016
MSW
RNG
2024
Rear -loader
67-68
Ford
McNeilus
2016
MSW
RNG
2024
Rear -loader
67-65
Ford
McNeilus
2016
MSW
RNG
2024
Side -loader
57-347
Peterbilt
Amrep
2015
MSW
RNG
2023
Side -loader
57-350
Peterbilt
Amrep
2015
MSW
RNG
2023
Side -loader
57-351
Peterbilt
Amrep
2015
MSW
RNG
2023
Side -loader
57-337
Peterbilt
Amrep
2014
MSW
RNG
2022
Side -loader
57-338
Peterbilt
Amrep
2014
MSW
RNG
2022
Side -loader
TBD
Peterbilt
Amrep
2021
Recycling
RNG
2029
Side -loader
57-338
Peterbilt
Amrep
2014
Recycling
RNG
2022
Side -loader
57-339
Peterbilt
Amrep
2014
Recycling
RNG
2022
Side -loader
57-340
Peterbilt
Amrep
2014
Recycling
RNG
2022
Side -loader
TBD
Peterbilt
Amrep
2021
Organics
RNG
2029
Side -loader
TBD
Peterbilt
Amrep
2021
Organics
RNG
2029
Side -loader
TBD
Peterbilt
Amrep
2021
Organics
RNG
2029
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ATTACHMENT F
List of Vehicles to be Provided by Contractor
Shop, Maintenance and Administrative Vehicles
Vehicle Type
Vehicle Number
Application
Make
Model Year
Type of Fuel
Truck
1148
Route
Manager
Toyota
2017
Gasoline
Truck
1148
Maintenance
Toyota
2017
Gasoline
Door-to-door HHW and Bulky Item Collection Vehicles
Vehicle Type
Vehicle
Manufacturer
Model
Route
Type of Fuel (e.g.
(note split
ID
Truc ody
Year
CNG, biodiesel,
body if
Number
LNG, etc.)
Truck
Body
applicable
Flatbed
53361
PETER
Front
2016
Bulky
RNG
BUILT
loader
Flatbed
6240
FORD
650
2013
HHW
RNG
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ATTACHMENT G
LIST OF CONTRACTOR -FURNISHED PERSONNEL
Contractor shall provide fully qualified and experienced management personnel as listed herein and shall not substitute those indicated by a star, (*) without the prior written consent of City.
Office and Management Headcount (Number of FTE)
Position Description
Number of FTE
Operations Manager
0.18 Recycling Coordinators (7.05.H)
2 ( 18 months) 1 (Remainder of term)
Operations and Customer Liaison to the
City (7.05.1)*
0.5 Senior Manager(s) Responsible For
Marketing of Compost from Food
Scraps/Green Waste (7.05.M)*
0.02 Dedicated Route Supervisor (7.05.N)*
1 Customer Service Representatives
1.50 Dispatchers
0.36 General Manager
0.05 Senior Manager(s) Responsible for
Marketing of Food Scraps/Green
Waste/Compost Products
0.02 Attachment G
20-238
Collection and Transportation Headcount (leave blank if the position is not proposed):
Labor Category
Number of FTE
Number of FTE:
Residential Collection
MSW Driver
8 Recycling Driver
6 Food Scraps/Green Waste Driver
4 Residential Route Manager
1 Other Residential Driver:
Other Residential Driver:
TOTAL RESIDENTIAL DRIVERS
18 Miscellaneous Drivers and Support
1 Relief Drivers & Spares
1 Cart Delivery and Exchange Driver
0.5 Bulky Route Drivers
0.07 Door -to -Door HHW Route Drivers
Mechanics
1 Mechanics Helpers
Other Misc. and Support:
TOTAL MISC AND SUPPORT
3.57 TOTAL PROPOSED COLLECTION/TRANSPORTATION HEADCOUNT
22.57 Attachment G
20-239
NAMES OF KEY PERSONNEL
Indicate the names of the key personnel that will be responsible for collection operations and the areas of the management, operations, and line personnel listed below. The key project personnel marked with star (*) below shall not be substituted without prior written permission from the City.
General Manager
Royden Fujimori
Operations Manager*
Norma Zarate
Contractor's Representative/Contract Liaison
(14.07.B)
Chip Monaco
Manager of Recycling Coordinators*
Hashem Shokair
Senior Manager(s) Responsible For Marketing
of Compost from Food Scraps/Green Waste
(7.05.M)*
Michael Silva
Dedicated Route Supervisor (7.05.N)*
Frank Campos
Operations and Customer Liaison to the City
(7.05.1)*
Mike Carey
Customer Service Manager
Elisa Bene
Maintenance Supervisor
Frank Alavarez
Billing Specialist
Vanita Salhotra
Reporting and Compliance Supervisor
Chrystal Denning
Attachment G
20-240
C)
Attachment I - Waste Disposal Agreement
AMENDMENT TO WASTE DISPOSAL AGREEMENT
Between
THE COUNTY OF ORANGE, CALIFORNIA
and the
CITY OF NEWPORT BEACH
County Amendment Authorization Date:
J, 2016
County Notice Address:
Director
OC Waste and Recycling
300 N. Flower, Suite 400
Santa Ana, CA 92703
2016 Amendment to Waste Disposal Agreement
City Amendment Authorization Date:
February 9, 2016
City Notice Address:
Dave Kiff, City Manager
City of Newport Beach
100 Civic Center Drive
P.O. Box 1768
Newport Beach, CA 92658
20-241
AMENDMENT TO WASTE DISPOSAL AGREEMENT
THIS AMENDMENT TO WASTE DISPOSAL AGREEMENT (the "Amendment") 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 Amendment, a general law or charter city and political subdivision of the State of California (the "City").
RECITALS
The County owns, manages and operates a sanitary landfill system for the disposal of municipal solid waste generated by the cities and the unincorporated area within the County (the "Disposal System"). The Disposal System includes three active landfills and four regional household hazardous waste collection centers.
The Disposal System is used for the disposal of municipal solid waste which is not reused, recycled or otherwise diverted from landfill disposal, pursuant to the California Integrated Waste Management Act of 1989 (Division 30 of the California Public Resources Code) (the "Act").
The County has entered into waste disposal agreements in 2009 (the "Original Waste Disposal Agreements") with all of the cities in the County, including the City, as well as certain sanitary districts located in the County (the "Participating Cities"), pursuant to which the County agreed to provide disposal capacity for waste generated in or under the control of the Participating Cities, and the Participating Cities agreed to deliver or cause the delivery of waste generated in or under the control of the Participating Cities to the Disposal System, as more specifically set forth in, and subject to the terms and conditions of, the Original Waste Disposal Agreements.
The City has determined that the execution of this Amendment by the City is in the best interest of the City and will serve the public health, safety and welfare by providing greater disposal rate stability, more predictable and reliable long-term disposal service, and sound environmental management.
The County has determined that the execution by the County of this Amendment will serve the public health, safety and welfare by providing a more stable, predictable and reliable supply of municipal solid waste and the resulting service payment revenue to the Disposal System, thereby enabling the County to plan, manage, operate and finance improvements to the Disposal System on a more prudent and sound long term, businesslike basis consistent with its obligations to the State and the holders of obligations secured by its Disposal System.
Official action approving this Amendment 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 Amendment 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:
2016 Amendment to Waste Disposal Agreement
20-242
Section 1. Amendment to Original Waste Disposal Agreement. (a) Sections 3.6(C) and 3.6(E) of the Original Waste Disposal Agreement are deleted and replaced in their entirety, as set forth below:
"(C) Receipt of Imported Acceptable Waste on a Contract Basis. Throughout the Term hereof, the County shall have the right to enter into a contract or other agreement with any municipal or private non -County 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 Disposal System for the benefit of the County and the Participating Cities and to generate Net Import Revenues. 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 Disposal Agreements throughout the Term thereof. " "(E) Application and Use of Revenues From Other Users. (1) Throughout the term hereof, all revenues received by the County from the disposal of County Acceptable Waste by the Disposal System, and all revenues received by the County from the disposal of Imported Acceptable Waste by the Disposal System (including amounts received by the County as a result of the failure of contract counterparties to deliver minimum required amounts of Imported Acceptable Waste) , shall be deposited by the County in the County OC Waste & Recycling Enterprise Fund and shall constitute revenues of the Disposal System. Pursuant to the County's Plan of Adjustment, the County is entitled to receive net revenues (after payment of all costs attributable to the acceptance of such Imported Acceptable Waste at the Disposal System) ("Net Import Revenues") from the disposal of Imported Acceptable Waste by the Disposal System. Costs attributable to the disposal of Imported Acceptable Waste include deposits to the Environmental Fund, deposits to closure and postelosure reserves, City host fees (if applicable), operating costs (such as manpower expenditures, equipment, services and supplies expenditures), state surcharges, and a pro rata share of capital project costs. Net Import Revenues shall be used for the payment of bankruptcy related obligations until payment in full of such bankruptcy related obligations required to be paid from such Net Import Revenues pursuant to the Plan of Adjustment. It is estimated that payment in full of such bankruptcy related obligations required to be paid from such Net Import Revenues pursuant to the Plan of Adjustment will occur by the end of Fiscal Year 2017-18. (2) Until the County's obligation to apply Net Import Revenues for the payment of bankruptcy related obligations in accordance with the Plan of Adjustment has been satisfied in full, Net Import Revenues shall be calculated as provided in Section (3.6)(E)(1). For any period after the County's obligation to apply Net Import Revenues for the payment of bankruptcy related obligations in accordance with the Plan of Adjustment has been satisfied in full, Net Import Revenues shall be calculated as follows:
(i) in Fiscal Year 2017-18, Net Import Revenues for each ton of Imported Acceptable Waste received shall be equal to the revenues received for the disposal of such ton 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 Disposal System are located) in excess of $17.57 per ton;
(ii) in Fiscal Year 2018-19, Net Import Revenues for each ton of Imported Acceptable Waste received shall be equal to the revenues received for the disposal of such ton of Imported 2016 Amendment to Waste Disposal Agreement
20-243
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 Disposal System are located) in excess of $18.01 per ton;
(iii) in Fiscal Year 2019-20, Net Import Revenues for each ton of Imported Acceptable Waste received shall be equal to the revenues received for the disposal of such ton 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 Disposal System are located) in excess in excess of $18.46 per ton; and
(iv) thereafter, Net Import Revenues shall be equal to 30% of the revenues received by the County from the disposal of Imported Acceptable Waste (excluding any newly established per -ton fees or increases to existing per -ton fees with respect to Imported Acceptable Waste payable to the State, other regulatory agencies or cities in which facilities in the Disposal System are located).
(3) After the County's obligation to apply Net Import Revenues for the payment of bankruptcy related obligations in accordance with the Plan of Adjustment has been satisfied in full (i) 50% of any Net Import Revenues (as calculated pursuant to Section 3.6(E)(2)) shall be paid to the County General Fund; and (ii) 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 5 for use for any purpose by the Participating City, including but not limited to state mandated solid waste programs. Payments of such amounts to the County General Fund and the Participating Cities shall be made by the County within 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 5. (4) The percentages set forth in Appendix 5 with respect to each Participating City will be adjusted at the end of Fiscal Year 2019-20 to reflect the percentage of actual deliveries of Acceptable Waste from each Participating City as compared to the total amount of actual deliveries from all of the Participating Cities during Fiscal Years 2017-18, 2018-19, and 2019-20. The County shall notify each Participating City of the revised percentages in Appendix 5 within 120 days after the end of Fiscal Year 2019-20. The revised percentages will be used for the allocation of Net Import Revenues generated during Fiscal Year 2020-21 and thereafter.
(b) Section 4.2(A)(z) is added to the Original Waste Disposal Agreement (immediately following Section 4.2(A)(y)) as follows:
"(z) decrease the amount of Net Import Revenues otherwise payable to the County General Fund and the Participating Cities pursuant to Section 3.6(E)(2) and Section 3.6(E)(3) and use the amount of such decrease to pay costs of the Disposal System." (c) Section 6.1(A) and Section 6,1(B) of the Original Waste Disposal Agreement are deleted and replaced in their entirety with the following:
2016 Amendment to Waste Disposal Agreement
20-244
"SECTION 6.1 EFFECTIVE DATE AND TERM.
(A) Initial Term. This Agreement shall continue in full force and effect until June 30, 2025, 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, 2023, for an additional term of ten years (the "Renewal Term") on the same terms and conditions as are applicable during the Initial Term hereof. The City shall give the County written notice of its irrevocable election to renew this Agreement on or before June 30, 2022. If the parties do not renew this Agreement by June 30, 2023, the Agreement shall expire on June 30, 2025."
(d) The first sentence of Section 6.1(C) of the Original Waste Disposal Agreement is deleted in its entirety and replaced with the following:
"In connection with the parties' right to renew this Agreement for an additional ten-year term pursuant to Section 6.1(B), the parties shall, on or before June 30, 2023, negotiate an applicable change in the Contract Rate for such renewal term."
(e) Appendix 2 of the Original Waste Disposal Agreement is deleted in its entirety and replaced with the form attached hereto.
(f) Appendix 5 shall be added to the Original Waste Disposal Agreement as a new appendix, in the form attached hereto.
(g) All other terms and conditions of the Original Waste Disposal Agreement shall remain in full force and effect.
Section 2. Initial Payment. As consideration for the execution of this Amendment by all of the Participating Cities, and subject to the occurrence of the Amendment Effective Date pursuant to Section 3, the County agrees to pay, from the County OC Waste & Recycling Enterprise Fund, the Amendment Payment to the Participating Cities listed in Appendix 5. The aggregate Amendment Payment shall be $5,400,000, and shall be distributed to the individual Participating Cities (including the City) in the percentages set forth in Appendix 5 by September 30, 2016.
Section 3. Effectiveness of Amendment. The provisions of this Amendment shall not become effective unless and until the Amendment has been executed by the County and all of the Participating Cities. The date on which the County and all of the Participating Cities have executed the Amendment shall be the "Amendment Effective Date." The County shall give written notice of the Amendment Effective Date to the City. In the event that the Amendment Effective Date does not occur by June 30, 2016, this Amendment shall be automatically terminated and the County shall have no obligation to make the Amendment Payment.
Section 4. REPRESENTATIONS AND WARRANTIES OF THE PARTIES. Each of the parties to this Amendment represent and warrant that it is a political subdivision of the State of California validly existing under the Constitution and laws of the State and (ii) it has duly authorized the execution and delivery of this Amendment, and has duly executed and delivered the Amendment.
2016 Amendment to Waste Disposal Agreement
20-245
All other terms and conditions of the 2009 Original Waste Disposal Agreement not specifically changed by this Amendment, shall remain in full force and effect.
IN WITNESS WHEREOF, COUNTY and CITY have caused this Amendment to be executed by their duly authorized officers or representatives as of the day and year first above written.
Date
APPROVED AS TO FORM:
CITY ATTORNEY'S OFFICE
Date: 2 I2 1 l Co'
By:
Aaron C. Harp
City Attorney
ATTEST: ] (
Date: A. ( I. /&
By:
—A M ' ,
Leilani 1. Brown
City Clerk
APPROVED AS TO FORM:
COUNTY COUNSEL
ORANGE COUNTY, CALIFORNIA
By
ames Steinmann, Deputy
2016 Amendment to Waste Disposal Agreement
COUNTY OF ORANGE
By
Dire r, OC W e & ecycling
CITY OF NEWPORT BEACH,
a California munici al corporation
Date: Al IV 1
By: Nf
Diane B. Dixon
Mayor
20-246
APPENDIX 2
County Acceptable Waste Tonnage Target to be Used
for Purposes of Section 4.2(b)
Fiscal Year
FY 2015-16
FY 2016-17
FY 2.017-18
FY 2018-19
FY 2019-20
FY 2020-21
FY 2021-22
FY 2022-23
FY 2023-24
FY 2024-25
2016 Amendment to Waste Disposal Agreement
Tonnage
Cumulative
2,724,250
2,724,250
2,681,153
5,405,403
2,638,746
8,044,149
2,597,017
10,641,166
2,558,522
13,199,688
2,520,605
15,720,293
2,483,256
18,203,549
2,483,256
20,686,805
2,483,256
23,170,061
2,483,256
25,653,317
20-247
APPENDIX 5
PARTICIPATING CITY ALLOCATION PURSUANT TO SECTION 3.6
city
Allocation Percentage for
Allocation of
Purposes of Section 3.6
Initial Payment
Anaheim
13.18%
$711,509
Aliso Viejo
0.67 36,416
Buena Park
2.34 126,275
Brea
2.28 123,085
Costa Mesa
2.18 117,936
Costa Mesa Sanitary District
1.48 79,976
Cypress
2.56 138,115
Dana Point
0.99 53,278
Fullerton
4.10 221,271
Fountain Valley
1.76 95,217
Garden Grove/
GG Sanitary District
7.17 387,197
Huntington Beach
6.13 330,807
Irvine
8.22 444,036
Laguna Beach
1.14 61,796
Laguna Hills
0.74 40,098
Laguna Niguel
1.36 73,341
Laguna Woods
0.41 22,274
La Habra
1.69 91,431
Lake Forest
2.45 132,214
La Palma
0.32 17,325
Los Alamitos
0.58 31,362
Mission Viejo
2.42 130,902
Newport Beach
3.68 198,946
Orange
490
264,468
Placentia
1.58 85,116
Rancho Santa Margarita
1.11 60,009
Santa Ana
10.60 572,184
San Clemente
1.40 75,728
San Juan Capistrano
1.23 66,420
Seal Beach
0.82 44,292
Stanton
1.62 87,287
Tustin
1.42 76,648
Villa Park
0.21 11,081
Midway City Sanitary
District (Westminster)
2.13 114,893
Yorba Linda
1.78 96,344
County Unincorporated
3.35 180,723
Totals
100%
$5,400,000
2016 Amendment to Waste Disposal Agreement
20-248
SEW PORT CITY OF
NEWPORT BEACH
<,FoaNP City Council Staff Report
February 9, 2016
Agenda Item No. 9
TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL
FROM: Dave Kiff — City Manager
949-644-3001; [email protected]
PREPARED BY: Rob Houston — Assistant to the City Manager 949-644-3033; [email protected]
TITLE: Revised Effective Date to an Amendment of the Waste Disposal Agreement
ABSTRACT:
On April 14, 2015, the City Council approved an Amendment to the 2009 Waste Disposal Agreement (WDA Amendment). A revision to the effective date to the WDA Amendment is requested to allow additional time for the County to secure all city approvals. This WDA Amendment will maintain stable disposal rates and continuity of service for residents and businesses while ensuring continued partnership between all 34 cities and the County.
RECOMMENDATION:
Adopt Resolution No. 2016-27, A Resolution of the City Council of the City of Newport Beach, California, Approving the Revised Effective Date to an Amendment to the 2009 Waste Disposal Agreement with the County of Orange, to allow for the continued importation of waste at the County's three landfills and to extend the terms of the Waste Disposal Agreement through June 30, 2025.
FUNDING REQUIREMENTS:
There is no expenditure of funds related to this item.
In April 2015, the City Council approved the WDA Amendment with the County to provide for continuation of waste importation at the County's three landfills and to extend the terms of the WDA through June 30, 2025. This agreement provides low, stable disposal rates to member agencies. The WDA Amendment established an 9-1
20-249
Revised Effective Date to an Amendment of the Waste Disposal Agreement February 9, 2016
effective date of September 30, 2015. Not all cities were able to approve WDA Amendments by the September 30, 2015 date. However, as the outstanding issues have been resolved, the County is requesting all cities approve an updated amendment.
This updated amendment requires approval by all 34 cities.
The revision to the WDA Amendment updates the Effective Date from June 30, 2016 to June 30, 2025 to allow the County to import waste from outside the County and provides for a revenue sharing to the member agencies. All other terms and conditions that were negotiated in the April 2015 WDA Amendment remain in full force and effect.
It is recommended that the City Council adopt Resolution No. 2016-27 to approve the revised effective date to June 30, 2016. The County Board of Supervisors approved this effective date modification at their September 22, 2015 meeting.
ENVIRONMENTAL REVIEW:
Staff recommends the City council find this action not subject to the California Environmental Quality Act ("CEQA") pursuant to Sections 1506(c)(2) (the activity will not result in a direct or reasonably foreseeable indirect physical change in the environment) and 15060(c)(3) (the activity is not a project as defined in Section 15378) of the CEQA Guidelines, California Code of Regulations, Title 14, Chapter 3, because it has no potential for resulting in physical change to the environment, directly or indirectly.
NOTICING:
The agenda item has been noticed according to the Brown Act (72 hours in advance of the meeting at which the City Council considers the item).
ATTACHMENTS:
Attachment A — Resolution No. 2016-27
Attachment B — Amendment to Waste Disposal Agreement
9-2
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Attachment A
RESOLUTION NO. 2016 -
A RESOLUTION OF THE CITY COUNCIL OF THE
CITY OF NEWPORT BEACH APPROVING THE
REVISED EFFECTIVE DATE TO AN
AMENDMENT TO THE 2009 WASTE DISPOSAL
AGREEMENT WITH THE COUNTY OF ORANGE.
WHEREAS, the City has an existing Waste Disposal Agreement (the Waste Disposal Agreement) with the County of Orange (the "County") which requires the City to dispose of all specified solid waste generated within the City to County landfills and for the County to accept all such waste at a price agreed upon by the City and County; and WHEREAS, the Waste Disposal Agreement became effective on or about July 23, 2009, and by its term is set to expire on June 30, 2020; and WHEREAS, the Waste Disposal Agreement provides that the County will not accept waste imported from outside the County at County landfills after June 30, 2016; and
WHEREAS, an Amendment to the Waste Disposal Agreement (the "Amendment") has been negotiated between the County and various cities throughout Orange County to provide for continuation of importation of waste from outside the County at County landfills in exchange for allocation to the cities of a portion of future importation revenues and to extend the terms of this activity within the Waste Disposal Agreement to June 30, 2025; and
WHEREAS, the City Council desires to ensure that solid waste generated within the City can be disposed of in an environmentally safe manner and at a reasonable cost for the near future; and
WHEREAS, the proposed Amendment furthers these goals by, among other things, ensuring that solid waste generated within the City can be disposed of at County landfills through June 30, 2025; that the landfills will be operated in an environmentally safe and reliable manner; and that the cost of disposing of solid waste at County landfills will be reasonable; and
WHEREAS, on April 14, 2015, by Resolution No. 2015-26, the City of Newport Beach approved the Amendment in which the effective date to be no later than September 30, 2015; and
WHEREAS, the County has requested a revision to the effective date of the Amendment from September 30, 2015 to June 30, 2016 ("Revised Effective Date").
NOW, THEREFORE, the City Council of the City of Newport Beach resolves, finds and determines, on the basis of the facts set forth in the agenda report presented to it 9-3
20-251
and any testimony received at the meeting at which this matter was considered, as follows:
Section 1. The foregoing recitals are true and correct.
Section 2. The City Council hereby finds and determines that the Revised Effective Date to the Amendment to the Waste Disposal Agreement between the County of Orange and the City of Newport Beach ("Amendment") furthers the public health, safety and welfare.
Section 3. The City Council hereby finds and determines that the Revised Effective Date shall be amended into the terms and provisions of the Amendment, in the form as submitted by the City Manager, are approved and that the Mayor is authorized to execute, and the City Clerk to attest, the Amendment on behalf of the City.
Section 4. The officers and employees of the City are authorized and directed, jointly and severally, to do any and all things necessary or advisable in order to effectuate the purposes of this Resolution and to administer the City's obligations, responsibilities and duties to be performed.
ADOPTED this day of 2016.
Diane B. Dixon
Mayor
ATTEST:
Leilani I. Brown
City Clerk
20-252
Attachment B
AMENDMENT TO WASTE DISPOSAL AGREEMENT
Between
THE COUNTY OF ORANGE, CALIFORNIA
and the
CITY OF NEWPORT BEACH
County Amendment Authorization Date
'2016
County Notice Address:
Director
OC Waste and Recycling
300 N. Flower, Suite 400
Santa Ana, CA 92703
2016 Amendment to Waste Disposal Agreement
February 9, 2016
City Amendment Authorization Date:
February 9, 2016
City Notice Address:
Dave Kiff, City Manager
City of Newport Beach
100 Civic Center Drive
P.O. Box 1768
Newport Beach, CA 92658
OR
20-253
Attachment B
AMENDMENT TO WASTE DISPOSAL AGREEMENT
THIS AMENDMENT TO WASTE DISPOSAL AGREEMENT (the "Amendment") 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 Amendment, a general law or charter city and political subdivision of the State of California (the "City").
RECITALS
The County owns, manages and operates a sanitary landfill system for the disposal of municipal solid waste generated by the cities and the unincorporated area within the County (the "Disposal System"). The Disposal System includes three active landfills and four regional household hazardous waste collection centers.
The Disposal System is used for the disposal of municipal solid waste which is not reused, recycled or otherwise diverted from landfill disposal, pursuant to the California Integrated Waste Management Act of 1989 (Division 30 of the California Public Resources Code) (the "Act").
The County has entered into waste disposal agreements in 2009 (the "Original Waste Disposal Agreements") with all of the cities in the County, including the City, as well as certain sanitary districts located in the County (the "Participating Cities"), pursuant to which the County agreed to provide disposal capacity for waste generated in or under the control of the Participating Cities, and the Participating Cities agreed to deliver or cause the delivery of waste generated in or under the control of the Participating Cities to the Disposal System, as more specifically set forth in, and subject to the terms and conditions of, the Original Waste Disposal Agreements.
The City has determined that the execution of this Amendment by the City is in the best interest of the City and will serve the public health, safety and welfare by providing greater disposal rate stability, more predictable and reliable long-term disposal service, and sound environmental management.
The County has determined that the execution by the County of this Amendment will serve the public health, safety and welfare by providing a more stable, predictable and reliable supply of municipal solid waste and the resulting service payment revenue to the Disposal System, thereby enabling the County to plan, manage, operate and finance improvements to the Disposal System on a more prudent and sound long term, businesslike basis consistent with its obligations to the State and the holders of obligations secured by its Disposal System.
Official action approving this Amendment 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 Amendment 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:
2016 Amendment to Waste Disposal Agreement
M
20-254
Attachment B
Section 1. Amendment to Original Waste Disposal Agreement. (a) Sections 3.6(C) and 3.6(E) of the Original Waste Disposal Agreement are deleted and replaced in their entirety, as set forth below:
"(C) Receipt of Imported Acceptable Waste on a Contract Basis. Throughout the Term hereof, the County shall have the right to enter into a contract or other agreement with any municipal or private non -County 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 Disposal System for the benefit of the County and the Participating Cities and to generate Net Import Revenues. 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 Disposal Agreements throughout the Term thereof. " "(E) Application and Use of Revenues From Other Users. (1) Throughout the term hereof, all revenues received by the County from the disposal of County Acceptable Waste by the Disposal System, and all revenues received by the County from the disposal of Imported Acceptable Waste by the Disposal System (including amounts received by the County as a result of the failure of contract counterparties to deliver minimum required amounts of Imported Acceptable Waste) , shall be deposited by the County in the County OC Waste & Recycling Enterprise Fund and shall constitute revenues of the Disposal System. Pursuant to the County's Plan of Adjustment, the County is entitled to receive net revenues (after payment of all costs attributable to the acceptance of such Imported Acceptable Waste at the Disposal System) ("Net Import Revenues") from the disposal of Imported Acceptable Waste by the Disposal System. Costs attributable to the disposal of Imported Acceptable Waste include deposits to the Environmental Fund, deposits to closure and postclosure reserves, City host fees (if applicable), operating costs (such as manpower expenditures, equipment, services and supplies expenditures), state surcharges, and a pro rata share of capital project costs. Net Import Revenues shall be used for the payment of bankruptcy related obligations until payment in full of such bankruptcy related obligations required to be paid from such Net Import Revenues pursuant to the Plan of Adjustment. It is estimated that payment in full of such bankruptcy related obligations required to be paid from such Net Import Revenues pursuant to the Plan of Adjustment will occur by the end of Fiscal Year 2017-18. (2) Until the County's obligation to apply Net Import Revenues for the payment of bankruptcy related obligations in accordance with the Plan of Adjustment has been satisfied in full, Net Import Revenues shall be calculated as provided in Section (3.6)(E)(1). For any period after the County's obligation to apply Net Import Revenues for the payment of bankruptcy related obligations in accordance with the Plan of Adjustment has been satisfied in full, Net Import Revenues shall be calculated as follows:
(i) in Fiscal Year 2017-18, Net Import Revenues for each ton of Imported Acceptable Waste received shall be equal to the revenues received for the disposal of such ton 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 Disposal System are located) in excess of $17.57 per ton;
(ii) in Fiscal Year 2018-19, Net Import Revenues for each ton of Imported Acceptable Waste received shall be equal to the revenues received for the disposal of such ton of Imported 2016 Amendment to Waste Disposal Agreement
9-7
20-255
Attachment B
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 Disposal System are located) in excess of $18.01 per ton;
(iii) in Fiscal Year 2019-20, Net Import Revenues for each ton of Imported Acceptable Waste received shall be equal to the revenues received for the disposal of such ton 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 Disposal System are located) in excess in excess of $18.46 per ton; and
(iv) thereafter, Net Import Revenues shall be equal to 30% of the revenues received by the County from the disposal of Imported Acceptable Waste (excluding any newly established per -ton fees or increases to existing per -ton fees with respect to Imported Acceptable Waste payable to the State, other regulatory agencies or cities in which facilities in the Disposal System are located).
(3) After the County's obligation to apply Net Import Revenues for the payment of bankruptcy related obligations in accordance with the Plan of Adjustment has been satisfied in full (i) 50% of any Net Import Revenues (as calculated pursuant to Section 3.6(E)(2)) shall be paid to the County General Fund; and (ii) 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 5 for use for any purpose by the Participating City, including but not limited to state mandated solid waste programs. Payments of such amounts to the County General Fund and the Participating Cities shall be made by the County within 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 5. (4) The percentages set forth in Appendix 5 with respect to each Participating City will be adjusted at the end of Fiscal Year 2019-20 to reflect the percentage of actual deliveries of Acceptable Waste from each Participating City as compared to the total amount of actual deliveries from all of the Participating Cities during Fiscal Years 2017-18, 2018-19, and 2019-20. The County shall notify each Participating City of the revised percentages in Appendix 5 within 120 days after the end of Fiscal Year 2019-20. The revised percentages will be used for the allocation of Net Import Revenues generated during Fiscal Year 2020-21 and thereafter.
(b) Section 4.2(A)(z) is added to the Original Waste Disposal Agreement (immediately following Section 4.2(A)(y)) as follows:
"(z) decrease the amount of Net Import Revenues otherwise payable to the County General Fund and the Participating Cities pursuant to Section 3.6(E)(2) and Section 3.6(E)(3) and use the amount of such decrease to pay costs of the Disposal System." (c) Section 6.1(A) and Section 6.1(B) of the Original Waste Disposal Agreement are deleted and replaced in their entirety with the following:
2016 Amendment to Waste Disposal Agreement
.A
20-256
Attachment B
"SECTION 6.1 EFFECTIVE DATE AND TERM
(A) Initial Term. This Agreement shall continue in full force and effect until June 30, 2025, 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, 2023, for an additional term of ten years (the "Renewal Term") on the same terms and conditions as are applicable during the Initial Term hereof. The City shall give the County written notice of its irrevocable election to renew this Agreement on or before June 30, 2022. If the parties do not renew this Agreement by June 30, 2023, the Agreement shall expire on June 30, 2025."
(d) The first sentence of Section 6.1(C) of the Original Waste Disposal Agreement is deleted in its entirety and replaced with the following:
"In connection with the parties' right to renew this Agreement for an additional ten-year term pursuant to Section 6. l (B), the parties shall, on or before June 30, 2023, negotiate an applicable change in the Contract Rate for such renewal term."
(e) Appendix 2 of the Original Waste Disposal Agreement is deleted in its entirety and replaced with the form attached hereto.
(f) Appendix 5 shall be added to the Original Waste Disposal Agreement as a new appendix, in the form attached hereto.
(g) All other terms and conditions of the Original Waste Disposal Agreement shall remain in full force and effect.
Section 2. Initial Payment. As consideration for the execution of this Amendment by all of the Participating Cities, and subject to the occurrence of the Amendment Effective Date pursuant to Section 3, the County agrees to pay, from the County OC Waste & Recycling Enterprise Fund, the Amendment Payment to the Participating Cities listed in Appendix 5. The aggregate Amendment Payment shall be $5,400,000, and shall be distributed to the individual Participating Cities (including the City) in the percentages set forth in Appendix 5 by September 30, 2016.
Section 3. Effectiveness of Amendment. The provisions of this Amendment shall not become effective unless and until the Amendment has been executed by the County and all of the Participating Cities. The date on which the County and all of the Participating Cities have executed the Amendment shall be the "Amendment Effective Date." The County shall give written notice of the Amendment Effective Date to the City. In the event that the Amendment Effective Date does not occur by June 30, 2016, this Amendment shall be automatically terminated and the County shall have no obligation to make the Amendment Payment.
Section 4. REPRESENTATIONS AND WARRANTIES OF THE PARTIES. Each of the parties to this Amendment represent and warrant that it is a political subdivision of the State of California validly existing under the Constitution and laws of the State and (ii) it has duly authorized the execution and delivery of this Amendment, and has duly executed and delivered the Amendment.
2016 Amendment to Waste Disposal Agreement
20-257
Attachment B
All other terms and conditions of the 2009 Original Waste Disposal Agreement not specifically changed by this Amendment, shall remain in full force and effect.
IN WITNESS WHEREOF, COUNTY and CITY have caused this Amendment to be executed by their duly authorized officers or representatives as of the day and year first above written.
Date
APPROVED AS TO FORM:
CITY ATTORNEY'S OFFICE
Date: 212 It G -
COUNTY OF ORANGE
:A
Director, OC Waste & Recycling
CITY OF NEWPORT BEACH,
a California municipal corporation
Date:
By: By:
Aaron C. Harp Diane B. Dixon
City Attorney Mayor
ATTEST:
Date:
LIN
Leilani I. Brown
City Clerk
APPROVED AS TO FORM:
COUNTY COUNSEL
ORANGE COUNTY, CALIFORNIA
James Steinmann, Deputy
2016 Amendment to Waste Disposal Agreement
9-10
20-258
APPENDIX 2
County Acceptable Waste Tonnage Target to be Used
for Purposes of Section 4.2(b)
Fiscal Year
FY 2015-16
FY 2016-17
FY 2017-18
FY 2018-19
FY 2019-20
FY 2020-21
FY 2021-22
FY 2022-23
FY 2023-24
FY 2024-25
2016 Amendment to Waste Disposal Agreement
Tonnage
Cumulative
2,724,250
2,724,250
2,681,153
5,405,403
2,638,746
8,044,149
2,597,017
10,641,166
2,558,522
13,199,688
2,520,605
15,720,293
2,483,256
18,203,549
2,483,256
20,686,805
2,483,256
23,170,061
2,483,256
25,653,317
Attachment B
9-11
20-259
Attachment B
APPENDIX 5
PARTICIPATING CITY ALLOCATION PURSUANT TO SECTION 3.6
City
Allocation Percentage for
Allocation of
Purposes of Section 3.6
Initial Payment
Anaheim
13.18%
$711,509
Aliso Viejo
0.67 36,416
Buena Park
2.34 126,275
Brea
2.28 123,085
Costa Mesa
2.18 117,936
Costa Mesa Sanitary District
1.48 79,976
Cypress
2.56 138,115
Dana Point
0.99 53,278
Fullerton
4.10 221,271
Fountain Valley
1.76 95,217
Garden Grove/
GG Sanitary District
7.17 387,197
Huntington Beach
6.13 330,807
Irvine
8.22 444,036
Laguna Beach
1.14 61,796
Laguna Hills
0.74 40,098
Laguna Niguel
1.36 73,341
Laguna Woods
0.41 22,274
La Habra
1.69 91,431
Lake Forest
2.45 132,214
La Palma
0.32 17,325
Los Alamitos
0.58 31,362
Mission Viejo
2.42 130,902
Newport Beach
3.68 198,946
Orange
4.90 264,468
Placentia
1.58 85,116
Rancho Santa Margarita
1.11 60,009
Santa Ana
10.60 572,184
San Clemente
1.40 75,728
San Juan Capistrano
1.23 66,420
Seal Beach
0.82 44,292
Stanton
1.62 87,287
Tustin
1.42 76,648
Villa Park
0.21 11,081
Midway City Sanitary
District (Westminster)
2.13 114,893
Yorba Linda
1.78 96,344
County Unincorporated
3.35 180,723
Totals
100%
$5,400,000
2016 Amendment to Waste Disposal Agreement
9-12
20-260
•
WASTE DISPOSAL AGREEMENT
Between
TETE COUNTY OF ORANGE, CALIFORNIA
and
the
CITY OF NEWPORT BEACH
Dated 4 / 2'8 2009
County Authorization Date:
City Authorization Date:
March 24, 009
- Ajril - 28 ; - 2009
County Notice Address:
City Notice Address:
Director
General Services Director
OC Waste & Recycling
3300 'ffewpoxt Boulevard
300 N. Flower Street, Suite 400
Newport Beach, CA 92663
Santa Ana, CA 92703
Execution Copy
20-261
0 TABLE OF CONTENTS
ARTICLE I
DEFINITIONS AND INTERPRE"T"ATION
Page
Section1.1 DEFINITIONS, ............. ............... ............................. ......... .................................... __ ................... 2 Section1.2 . DTIERPRETATION.........................................................................................................................7 ARTICLE 11
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 ............ ..... ..... I .......... I ........... ........ I I 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 Section4.2
CONTRACT RATE........................................................................................................................15 .....................................................................................23 Section 4.3
RESPONSIBILITY FOR PAYMENT OF THE CONTRACT RATE...........................................21 __...... ......................................................................... 23 Section 4.4
BILLING OF THE CONTRACT RATE....... ............. ...................... _ ......................................... .21 Section 4.5
RESTRICTED RESERVES............................................................................................................21 Section4.6
AUDITED FINANCIAL STATEMENTS......................................................................................22 Section 4.7
ANNUAL UPDATE OF TEN-YEAR. FINANCIAL PROJECTION.............................................22
ARTICLE V
BREACH, ENFORCEMENT AND TERMINATION
Section5.1
BREACH.........................................................................................................................................23 Section 5.2
CITY CONVENIENCE TERIVIINATION
.....................................................................................23 Section5.3
TERMINATION ................ .........................
__...... ......................................................................... 23 Section5.4
NO WAIVERS................................................................................................................................24 Section 53
FORUM FOR DISPUTE RESOLUTION.........................•............................................................24
ARTICLE VI
TERM
Section 6.1 EFFECTIVE DATE AND TERM..................................................................................................24 Section 6.2 COMMENCEMENT DATE...........................................................................................................25 Exmution Copy
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0 0
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 Section7.7
NO VESTED. 1RJQHTS ....................................... - ......... ................. - .......... w...................,...... 28 Section 7.8
LIABILITY FOR COLLECTION, TRANSPORTATION AND PROCESSING ..........................28 Section 7.9
NO CONSEQUENTIAL OR PUNITIVE DAMAGES .... -- .............................. ......... ................. 2s
Section 7.10
AMENDMENTS...................................................................................... ..................................... 28 Section 7.11
NOTICE OF LITIGATION ............... .................................................. I .... ... I-- ......... ...' ....... 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 Section7.16
NOTICES ........................................................................................................... -.— ....................... 28 APPENDIX I
ESTIMATED ANNUAL TONNAGE
F4392MV01m
CUMULATIVE TONNAGE TARGETS
APPENDIX 3
CUMULATIVE CAPITAL OOSTS
APPENDIX 4
FORM OF HAULER ACKNOWLEDGEMENT
EXWabDD C�DPY
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0 0
WASTE DISPOSAL AGREEMENT
THIS WASTE DISPOSAL AGREEMENT 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, a general law or chatter city and political subdivision of the State of California (the "City").
RECITALS
The County owns, manages and operates a sanitary landfill system for the disposal of municipal solid waste generated by the cities and the unincorporated area within the County (the "Disposal System"). The Disposal System includes three active landfills and four regional household hazardous waste collection centers.
The Disposal System is used for the disposal of municipal solid waste which is not reused, recycled or otherwise diverted frorn landfill disposal, pursuant to the California Integrated Waste Management Act of 1989 (Division 30 of the California Public Resources Code) (the "Act").
The City, in the exercise of its police power and its powers under the Act, has entered into a franchise or other agreement with or issued permits or licenses to one or more private haulers for the collection 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.
In 1997, the City and the County entered in a waste disposal agreement (the "Original WDA'), pursuant to which 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 tate City to the Disposal System, as more specifically set forth in, and subject to the terms and conditions of, the Original WDA.
The Original WDA, as amended, will expire by its terms on June 30, 2010, unless the City and the County agree to renew the Original WDA.
The City and the County desire to enter into this agreement to extend, amend and restate the Original WDA, on the terms and conditions set forth herein. The County and City acknowledge that the Original WDA shall remain in full force and effect until the Commencement Date.
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 greater disposal rate stability, more 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 more stable, predictable and reliable supply of municipal solid waste and the resulting service payment revenue to the Disposal System, thereby enabling the County to plan, manage, operate and finance improvements to the Disposal System on a more prudent and sound long term, businesslike basis consistent with its obligations to the State and the holders of obligations secured by its Disposal System.
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:
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0 ARTICLE I
DEFINITIONS AND INTERPRETATION
0 SUCTION 1. I DEF1N TIONS. As used in this Agreement, the following terms shall have the meanings set forth below.
"Acceptable Waste" means all garbage, refuse, rubbish 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 "w.
"Act" means 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 Disposal 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, the Orange County Code, CERCLA, RC1ZA, CEQA, any Legal Entitlement and any federal or state rule, regulation, requirement, guideline, permit, action, determination or order of any Governmwtal Body having jurisdiction, applicable from time to time to the siting, design, permitting, acquisition, construction, equipping, financing, ownership, possession, operation or maintenance of the Disposal System, 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). "Board" means the California Integrated Waste Management Board. "Capital Costs" means all costs of the Disposal 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 Disposal System reported as `Buildings and Improvements, and Infrastructure" (Object Code 4200) or "Equipment" (Object Code 4000) 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 at Cal. Pub. Res. Code Seotion 21000 el seg, as amended or superseded, and the regulations promulgated thereunder. "CERCLA" means the Comprehensive Environmental Response, Compensation and Liability Act, 42 U.S.C.A. Section 9601 etseq., 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 Disposal 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);
(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 Execution Copy
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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, intemtptioN imposition or failure materially and adversely interferes with the performance of this Agreement, if and to the extent that such denial, delay, suspension, termination, intemiption, imposition or failure is not the result of willful or negligent action, error or omission or a tack 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.
A "Change in Law" shall include but not be limited to any new or revised requirements relating to the funding or provision of disposal services, including but not limited to any regulations for disposal operations or activities associated with the remediation, closure, funding or monitoring of closed sites with respect to facilities comprising the Disposal 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 or Sanitary District designated on the cover page of this Agreement and party to this Agreement.
"City Acceptable Waste" means all Acceptable Waste which was originally discarded by the first generator thereof within the geographical limits of the City, and Residue from the foregoing wherever produced, whether within or outside the City (or Tonnage equivalencies of such Residues, as and to the extent provided in subsection 3.1(C) hereof). '
"Commencement Date" means the date on which the obligations of the parties hereto commence, established as provided in Section 6.2(5) 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 .Tune 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 Plan" means the irttegrated waste management plan of the County approved by the Board pursuant to the Act as in effect from time to time.
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"County Acceptable Waste" means Acceptable Waste generated in the County, "County 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 Disposal System. "County -wide Recycling Services" has the meaning set forth in subsection 3.7(A) hereof. "Cumulative Tonnage Target" for any given Contract Year means the amount specified in Appendix 2 hereto with respect to such Contract Year.
"Department" means OC Waste & Recycling, and any agency, department or other Governmental Body which succeeds to the duties and powers thereof.
"Disposal Agreements" means each of the waste disposal agreements entered into between the County and any city within the County, Sanitary District or operator of any Transfer Station located in the County in accordance herewith.
"Disposal Services" means the solid waste disposal services to be provided by the County pursuant to the Service Covenant and otherwise hereunder.
"Disposal System" means the Orange County Waste Disposal System which includes solid waste disposal operations at three active landfills (Olinda Alpha, Frank R. Bowerman and Prima Deshecha); four regional Household Hazardous Waste Collection Centers; as well as services, such as monitoring and other activities, at closed refuse stations formerly operated by the County, as appropriate under Applicable Law. "Environmental Fund" means the fined 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. "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 Substance" has the meaning given such term in CERCLA, the Carpenter -Presley -Tanner Hazardous Substance Account Act (Califomia Health and Safety Code Section 25300 et seq.), and Titles 22 and 26 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.
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0 "Imported Acceptable Waste' means Acceptable Waste that is generated outside of the geographical boundaries of the County and delivered to the Disposal System. "Independent Haulers" means those waste coil ection/hau let companies primarily engaged as a principal business in the collection and transportation of municipal solid waste generated in the County of ()range Which are not obligated to deliver County Acceptable Waste to the Disposal 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 Disposal System or the performance of any obligation under this Agreement or the matters covered hereby.
"Legal Proceeding" means every action, suit, litigation, arbitration, administrative 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. "Net Import Revenues" has the meaning ascribed thereto in Section 3.6(E). "Non -Recycled City Acceptable Waste" means all City Acceptable Waste other than Recycled City Acceptable Waste.
"overdue Rate" means the maadmum rate of interest permitted by the laws of the State, if applicable, or the prime rate established from time to time by the Bank of America, N.A. or its successors and assigns, plus 2%, whichever is lower.
"Participating City" means any city or Sanitary District executing a Disposal Agreement in accordance with Section 3.6(A) hereof and meeting all requisite conditions to the Commencement Date thereof "Plan of Adjustment" means the County's Modified Second Amended Plan of Adjustment, confirmed by the United States Banlauptcy Court Central District of California in that Conformed Order Confirming Modified Second Amended Plan of Adjustment, filed May 17, 1995.
"Posted Disposal hate" 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.
"Prohibited Medical Waste" means any medical or infectious waste prohibited or restricted under Applicable Law from being received by or diVosed at the Disposal System. "Qualified Household Hazardous Waste" means waste materials determined by the Board, the Department of Health Services, the State Water Resources Control Board, or the Air Resources Board to be:
(1) Of a nature that they must be listed as hazardous in State statutes and regulations; (2) Toxic/ignitable/corrosivelreactive; and
(3) Carcinogenic/tnutagenicJteratogenic;
which are discarded from households as opposed to businesses. Qualified Household Hazardous Waste shall not include Unacceptable Waste.
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"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.](B) 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 Reeovety Act, 42 U.S.C.A. Section 6901 etseg., 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 at Cal. Ann. Health & Safety Code Section 6400 et seq., as amended, supplemented, superseded and replaced from time to time.
"Self -Hauled Waste" means City Acceptable 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.
"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 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 disposal in the Disposal System. "Unacceptable Waste" means Hazardous Waste; Hazardous Substances; Prohibited Medical Waste; Qualified Household Hazardous Waste separated from Acceptable Waste; explosives, ordnanee, 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 Execution Copy
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vessels and steel cable; hot loads; and any waste which the Disposal System is prohibited from receiving under Applicable Law.
"Uncontrollable Circumstance" means any act, event or condition affecting the Disposal 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:
(l) 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; and (2) a Change in Law.
1 "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 Disposal System which are not Restricted Reserves.
"Waste Disposal Covenant" means the covenants and agreements of the City set forth in Section 3.1 hereof.
SECTION 1.2 IN IE 2PRETATION. In this Agreement, unless the context otherwise requires. (A) References Hereto. The terms "hereby,', "hereof', "herein', "hereunder" 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) Headinzs. 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, not shall tbey 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.
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(G) A h- vs� -cable Law_ This Agreement shall be governed by and construed in accordance with the Applicable Laws of the State of California.
(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. (1) ante rt? ation; Preservation of Certain Aereemarrts. 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 agreements:
I) MOU, dated March 10, 1992, between the City of Brea and the County of Orange regarding the Olinda Alpha Landfill as amended on April 6, 1993 and November 29,1994; 2) MOU, dated May 11, 1995, between the City of Brea and the County of Orange regarding importation of out -of -County waste to the Olinda Alpha Landfill; 3) Settlement Agreement, dated August 1, 1984, between the City of Irvine and the County of Orange regarding the Bee Canyon Landfill (currently tailed Frank R. Bowerman Landfill); 4) MOLT, dated May 16, 1995, between the City of Irvine and the County of Orange regarding importation of out-of-Cotmty waste to the Frank R Bowerman Landfill; 5) MOU, dated September 12, 1995, and amended November 21, 1995, between the City of San Juan Capistrano and the County of Orange regarding importation of out -of -County waste to the Prima Deshecha Landfill;
6) MOU, dated July 1, 1997, between the City of San Ciemente[, the Orange County Flood Control District] and the County of Orange regarding the Prima Deshecha Landfill; and 7) Cooperative Agreement, dated August 15, 2006, between the County and the City of Irvine.
(J) Recitals. The recitals to this Agreement are not intended to bind the parties hereto. In the event of a conflict between the recitals and the operative provisions of this Agreement, the operative provisions shall prevail. The recitals shall not be used to interpret the provisions of the Agreement.
ARTICLE II
REPRESENTATIONS AND WARRANTIES
SECTION 2.1 (REPRESENTATIONS AND WARRAMIES OF THE CITY. The City represents and warrants that:
(A) Exi�ce. The City is a general law or charter city validly existing under the Constitution and laws of the State.
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(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 REPUSENTATION ND WARRANTIES OF THE CO UN1 `l. 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 Autharization. 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 DISPOSAL SERVICE
SECTION 3.1 DELIVERY OF WASTE.
(A) Waste Disposal . Covenant. Subject to the occurrence of the Commencement Date and throughout the Term of this Agreement, 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 Disposal System in accordance herewith.
(B) Recxcled City Acceptable Waste. The parties hereto acknowledge the responsibility of the City to meet the recycling and landfill diversion goals contained in the Act. Nothing in this Agreement is intended or shall be interpreted to prohibit or impair the ability of the City to meet sucb 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 Disposal 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 rV hereof) and shall not constitute a breach of this Agreement. (C) Waste Deli3W!2d toTransfer Station. All Residue from any processing of Controllable Waste by materials recovery, composting, recycling or other means, wherever performed, shall constitute Controllable Waste and be subject to the Waste Disposal Covenant. Where City Acceptable Waste is processed at a facility which concurrently processes other Acceptable Waste in a manner which produces commingled residue which cannot be traced to a geographic source, generic residues from such facility in Tonnage equal to the residues that would have been produced had City Acceptable Waste only been processed at the facility shall constitute Controllable Waste and be subject to the Waste Disposal Covenant. Any City Acceptable Waste or material derived or segregated therefrom which is held in storage and asserted by the possessor thereof to constitute Recycled City Acceptable Waste awaiting sale or distribution to the secondary materials markets shall constitute Controllable Waste if, when and to the extent that the storage or diversion thereof can be reasonably deemed to constitute an evasion of the Waste Disposal Covenant rather than generally recognized, accepted and prevailing practice in the Southern California materials recovery and recycling industry conducted in accordance with Applicable Law. In order for the owner and/or operator of a transfer station to be entitled to deliver Acceptable Waste from a Participating City to the Disposal System for the Contract Rate as provided in Article IV, such owner and/or operator must execute a direct agreement with the County, acmowledgiug and agreeing to comply with the obligation of the Participating City to cause the delivery of all Controllable Waste to the Disposal 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 Disposal 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 Disposal 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.
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0 (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 a disposal location selected by the City (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 Disposal 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 pasty beneficiary of the obligation of Franchise Haulers to deliver Controllable Waste to the Disposal 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) 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 Disposal System pursuant to and in accordance with the Waste Disposal Covenant for 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 (x) subtracting the number of tons actually delivered during the month(s) of the breach from the number of tons that were delivered during the same month(s) closest in time when there was no such breach, even if such month(s) closest in time was prior to the Term, and (y) 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 Waste Disposal Agreement as a result of such breach, the damages due as a result of such terminiation shall be equal to (aa) the average monthly deliveries by the City for the twelve months prior to the commencement of the breach multiplied by (bb) the Contract Rate in effect at the time of such breach (or any higher rate withrespect to which the County has provided notice pursuant to Section 4.2), multiplied by (cc) 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 meat 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 herein, including the relationship of the sums to dee 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 wade. (F) Legal ChallMges 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 10 Execution Copy
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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 Disposal 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: uame, address and phone number; identification number; area of collection and transportation; and franchise and permit terms. (H) Waste Inf ro mation System. The City shall cooperate with the Department in collecting information and otherwise monitoring Franchise Haulers in order to assure compliance with this Agreement. Such information may include, to the extent practicable, 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, 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, tonnage by type of load (residential, commercial, roil -off box), customer service levels, tonnage delivered by transfer station or material recovery facility utilized, and other related information.
(1) 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 or its collection, tmasportation, transfer, storage, treatment 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. (1) No Right of Waste 5ub5titubion. Nothing in this Agreement shall authorize or entitle the City to deliver or cause the delivery to the Disposal System of Acceptable Waste originating from or generated outside the jurisdiction of the City, nor obligate the County to receive or dispose of any such Acceptable Waste.
The City shall not assign in whole or in part its right to deliver or cause to be delivered Controllable Waste to the County hereunder, and shall not permit any Acceptable Waste originating from or generated outside the jurisdiction of the City to be substituted for Controllable Waste for any purpose hereunder. (YQ Agpexations Md Restructumg. It is the intention of the parties that this Agreement and the obligations and rights of the City hereunder, including partieularly 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, after March 30, 2008, solid waste management responsibility from a Sanitary District or other public entity) and shall bind any successor or restructured Govertttnental Body whim shall assume or succeed to the rights of the City under Applicable Law.
SECTION 3.2 PROVISION OF DISPOSAL SERVICES BY THE COUNfX. (A) Service Covenant. Commencing on the Commencement Date, the County shall provide or cause the provision of the service of (1) receiving and disposing of all Controllable Waste at the Disposal System (or such other facilities, including transfer stations, as the County may determine to use), (2) disposing in accordance with subsection 3.2(C) hereof of Controllable Waste which, at any time and for any reason, is in excess 1]
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of the disposal capacity of the Disposal System, and (3) 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 keep the Olinda Alpha, Prima Deshecha and Frank R. Bowerman Landfills open for the receipt of 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 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) Particular Facilities. The Department and the City shall consult and cooperate in determining whether and to what extent from time to time other landfills other than that primarily used by the City shall be utilized to receive 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 Disposal Systern, 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 24 hours of the occurrence of any such inability. The County shall use its best efforts to resume normal operation of the landfill primarily used by the City as soon as possible. Fn the event of a temporary material increase in average daily deliveries of Controllable Waste from the City which the County reasonably believes could result in the permitted daily disposal capacity limit to be exceeded with respect to a particular landfill within the Disposal System, the County shall have the right to redirect the increased Controllable Waste to another landfill within the Disposal System for the duration of the increase in average daily deliveries; provided, however, that in such circumstances the County shall utilize reasonable efforts to first redirect waste which is not Controllable Waste.
(C) Compliance with Service Covenant I`lof ExoysW for anv Rea , Commencing on the Commencement Date, the obligations of the County to duly observe and comply with the Service Covenant shall apply continuously and without interruption for the Term of this Agreement. In the event that any Change in Law 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 implement alternative or substitute means and methods to enable it to satisfy the terms and conditions of the Service Covenant. 1k 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.
SECTION 3.3 COUNTY RIGHT TO REFUSE WAS -TE.
(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 iu Section 3.5 hereof;
(3) Waste that does not constitute Acceptable Waste;
(4) Waste that is delivered by any party which has not executed a Waste Disposal Agreement; and
(S) Controllable Waste consisting primarily of construction and demolition debris or inerts which may cause a particular facility's daily tonnage limit to be exceeded. 12 Fx ution Gqy
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(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 Disposal 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 Disposal System. 'The Deparanent 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 Disposal System.
(C) Hazardous Waste and Hazardous Substances. The parties acknowledge that the Disposal System has not been designed or permitted, and is not intended to be used in any manner or to any extent, for the handling, transportation, storage or disposal of Hazardous Waste or Hazardous Substances. Neither the County nor the City shall countenance or knowingly permit the delivery of Hazardous Waste or Hazardous Substances to the Disposal System.
(D) Disposal of Unacceptable Waste and Hazardous Waste. If Unacceptable Waste or Hazardous Waste is discovered in a vehicle at any landfill within the Disposal 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 landfill within the Disposal 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 landfill within the Disposal System, the Department shall take immediate action in accordance with Applicable Law.
(E) Logur_c4_-�S_epamted Hous old dour Waste, The Cauaty shall mtiaiatain as part of the Disposal 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 services relating to Source -Separated Household Hazardous Waste with respect to cities which are not parties to a Disposal 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 Disposal System's viability; provided, however, if the County chooses to reduce services, the County shall nonetheless continue to expend funds for the Source -Separated Household Hazardous Waste Disposal System each year during the term of this Agreement in an amount at least equal to the amount of funds expended for the Source_Separated Household Hazardous Waste Disposal System during fiscal year 2006-07 as adjusted by changes in the Producer Price Index.
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 waste, shall comply with the Waste Disposal Covenant as if the Cotrmty 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).
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SECTION 3.5 MISCELLANEOUS OPERATIONAL MATTERS.
(A) Ciperatina Hours. The County shall keep the Disposal System open for the receiving of Controllable Waste during such regular operating hours as may be established by the Department in the operating rules and regulations applicable to the Disposal System, The County shall utilize best efforts to maintain Substantially similar hours, as were in effect on January 2, 2009, for the receipt of waste through the term of this Agreement (subject to Applicable Law).
(B) Scalegaand Weit?hinp. The Department shall operate and maintain permanent scales at the Disposal System. 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 Coor. ' ator. The County and the City each shall designate in writing thirty 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 Disposal 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 QF THE DISPOSAL SYSTEM.
(A) On or Before [ . ' n ° �U�� , 20091. On or before [120 DAYS AFTER BOARD APPROVAL], the County shall have the right to &ter into waste disposal 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, Sanitary Districts, Transfer Stations and Independent Haulers, which waste disposal agreements shall have terms and provisions substantially identical to the terms and provisions of this Agreement; provided, however, that in no event shall such agreements have teras 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) A$er C]liiW�.W ` '2,1 2009. After [120 DAYS AFTER BOARD APPROVAL], the County shall have the right to enter into waste disposal agreements with Orange County entities, including any city, Sanitary District, Transfer Station and Independent Hauler, 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 Posted Disposal Rate at least 10% higher than the Contract Rate unless the County determines it is in the best interest of the Disposal System to establish a Posted Disposal Rate less than 10% higher than the Contract Rate. In no event shall the Posted Disposal Irate be equal to or less than the Contract Rate. In addition, the County shall reserve the right in any such waste disposal agreement at any time, to the extent permitted by Applicable Law, to refuse to receive and dispose of Acceptable Waste from any city, County Sanitary District, Transfer Station and Independent Hauler if and to the extent that such receipt and disposal may materially and adversely affect the ability of the County to comply with its obligations to the Participating Cities under the Disposal Agreements to which each is a party. (C) Receipt of Imported Acceptable
Waste on a Contract Basis. The County shall have the right to enter into a contract or other agreement with any municipal or private non -County entity for the delivery of Imported Acceptable Waste on terms and couditions that the County determines to be necessary to ensure and enhance the viability of the Disposal System for the benefit of the County and the Participating Cities and to generate Net Import Revenues. 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 Disposal Agreements throughout the Term thereof: The term of any such agreement for the disposal of Imported Acceptable Waste shall end by the later to occur of (i) December 31, 2015 or (ii) the date on which County general purpose revenues are no longer expended to pay debt service on the Orange County Public 14 Execution Copy
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Financing Authority Lease Revenue Refunding Bonds Series 2005, but in no event later than the last day of the fiscal year commencing July 1, 2015.
(D) Self Haulers. The City and the County acknowledge that Self -Haulers shall be entitled to deliver Self -Hauled Waste to the Disposal 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) Application and Use of Revenues From Other Users. All revenues received by the County from the disposal of County Acceptable Waste by the Disposal System, and all revenues received by the County from the disposal of Imported Acceptable Waste by the Disposal System, shall be deposited by the County in the County OC Waste & Recycling Enterprise Fund and shall constitute revenues of the Disposal System.
Pursuant to the County's Plan of Adjustment, the County is entitled to receive net revenues (after payment of all costs attributable to the acceptance of such Imported Acceptable Waste at the Disposal System) CNet Import Revenues") from the disposal of imported Acceptable Waste by the Disposal System, and such Net Import Revenues may be used for the payment of bankruptcy related obligations in accordance with the Plan of Adjustment.
Costs attributable to the disposal of Imported Acceptable Waste include deposits to the Environmental Fund, deposits to closure and postclosure reserves, City host fees (if applicable), incremental operating costs (such as manpower expenditures, equipment, services and supplies expenditures), state surcharges, and a pro rata share of capital project costs. The parties acknowledge that their intention in determining to allow the importation of Imparted Acceptable Waste for disposal by the Disposal System is to stabilize the Contract Rate at rates below those which would otherwise prevail in the absence of such importation.
SECTION 3.7 COUNTY PROVISION OF WASTE DIVERSION SERVIC S. (A) County -Wide Reoyclina Services. This Agreement does not require the County to provide for any source reduction, materials recovery, recycling, composting, or otber waste diversion services by the County'nor any payment therefor by the City, by Franchise Haulers or by ratepayers; provided, however, any County -Wide Recycling Services may be funded through the County'OC Waste & Recycling Enterprise Fund. Any such recycling services may be expanded, contracted or modified by the County at any time, in its sole discretion. (B) SgRarate Ci1y:-Co=ty Diversion Sodu Agretments. 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, Sanitary Districts, Transfer Stations, 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 Disposal Agreements and shall not be funded through the general revenues of the Disposal System.
ARTICLE IV
CONTRACT RATE
SECTION 4.1 CHARGING AND SECURING PA NT OE CONTRACT RATE. The City acknowledges that the County shall have the right to charge and collect a Contract Rate for the acceptance and disposal of Controllable Waste delivered to the System by any 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 pad 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 Franchise Hauler shall be (x) $22.00 per ton from the Commencement Date through June 30, 2010, and (y) $29.95 per ton on and after July 1, 20I0, in bath cases contingent on the delivery to the Disposal System of an amount of Acceptable Waste at 15 ExecutiOD UPY
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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; (i) increased costs incurred by the County (in excess of available insurance proceeds) due to the occurrence of one or rare 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; or
(iii) tonnage shortfalls to the extent permitted by Sections 4.2(B); (iv) average annual inflation prior to July 1, 2010 in excess of the levels set forth in Section 4.2(I4) and escalation pursuant to Section 4.2(F) ; (v) increased costs incurred by the County (in excess of available insurance proceeds) due to the occurrence of one or more Changes in Law; or (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.
Prior to adjusting the Contract Rate as a result of any of the circumstances described in clauses (i), (ii) or (iii) above, the County shat! utilize the following remedies m the following order of priority:
(x) reduce the costs of operating the Disposal System to the extent practicable; and (y) utilize Unrestricted Reserves to pay costs of the Disposal 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 (iv), (v) or (vi) 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 it will evaluate the feasibility of long term financing for significant capital costs where appropriate.
(B) Countycceptable 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:
the Disposal System;
(i) reduce the costs of operating the Disposal System to the extent practicable; (ii) utilize Restricted Reserves described in clause (iii) of Section 4.5 to pay costs of (iii) utilize Unrestricted Reserves to pay costs of the Disposal 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 60 days written 16 Execniion COPY
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notice to the City. In addition, in the event that 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(13) 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 may be given as a credit or adjustment to the Contract Rate for future deliveries, rather than a lump sura payment.
(E) Special Charges. Notwithstanding Section 4.2(A), the County shall have the right to impose special charges for the receipt of hard to handle materials, such as bulky materials, construction and demolition debris, tree stumps and sludge. Such special charges shall be calculated to reflect the reasonable incremental costs to the County of accepting such hard to handle materials. In addition, in the event that the Board of Supervisors of the County makes a determination to implement a facility (including but not limited to a transfer station, landfill, conversion technology facility, or a materials recovery or processing facility), which facility would be intended to provide for disposal alternatives after the closure of one or more of the landfills currently operating within the Disposal System, the County may impose an additional charge of $0.50 per ton of Acceptable Waste in order to pay the costs of the study, development, planning, construction and/or operation of such facility.
Adjustments pursuant to this Section 4.2(E) shall not require compliance with the provisions of Section
4.2(1).
(F) Escalation. The Contract Rate shall be adjusted each July 1, beginning July 1, 2011. The change will be equal to the positive percentage change in the Consumer Price Index -- All Urban Consumers, U.S. city average, All items, Not Seasonally Adjusted, Series ID CUUR0000SA0 ("CPI") as measured from the October 21 months prior to the rate adjustment to the October immediately preceding the rate adjustment. For example: The July 1, 2011 rate adjustment shall be based upon the index change from October 2009, to October 2010, referred to as year 1 and year 2 respectively in the following example _ Formula to calculate percentage change in the Contract Rate:
Step 1:
October Year 2 CPT I = % increase in Contract Rate
October Year 1 CPI I
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, 2011, the County shall provide the City with notice of the 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 will calculate the new Contract Rate each year.
In the event that the change in the CPT is negative, 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. 17 Exwvfim Copy
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For example, if the CPI is measured as follows: October 2009 = 205, October 2010 = 204, October 2011 = 201, October 2012 = 208, then there would-be no adjustment in July 2011, or July 2012, and an adjustment equal to the change from 205 to 208 would be implemented on July 1, 2013.
Adjustments pursuant to this Section 4.2(F) shall not require compliance with the provisions of Section
4.2(1).
(G) Adiustruent 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 (i.e., the State's Integrated Waste Management fee, which is currently $1.40 per ton). The adjustment shall be equal to the amount of any new or increased fee, and the adjustment shall take affect 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 becorning 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(1)•
(Ii) Calculation of Cumulative Inflation state. For purposes of Section 4.2(A)(iv) for adjustments prior to July 1, 2011, the inflation shall be calculated as the change in the CPI between July of the year of calculation and July 1, 2008. Inflation shall be deemed to exceed the levels set forth below if the ratio between the CPI for July for the year of calculation (calculated in accordance with the formula below) and July 2008 exceeds the ratio corresponding to such year of calculation on the table below. The ratio shall be calculated in accordance with the following formula:
(July CPI of calculation year I CPI for July 2008)
Year of Calculation
Ra1ia
JulX 1 2008
1.0000
July 1 2009
1.0356
July 1 2010
1.0723
In the event the CPI is no longer published during the term of this Agreement, such other index identified by the Bureau of Labor Statistics or otherwise generally accepted as a replacement for CPI shall be used for purposes of this Agreement. In the event of an adjustment to the Contract Rate pursuant to this section 4.2(1, such adjustment shall be applied to the Contract. Rate effective until June 30, 2010, and the Contract Rate effective July 1, 2010.
Adjustments pursuant to this Section 4.2(H) shall not require compliance with the provisions of Section
4.2(1)-
(1) Procedure for state 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(l), The County shall be required to provide the City with at least 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 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 events) 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 Disposal 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 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 18 Execution Copy
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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 shal I 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' ubjcct to potential reimbursement pursuant to clause (I 1) of Section 4.2(J).
(1) Procedure for Expedited Judicial Review of Contested Rate Adjustment. In the event that, within 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 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 45 days of the date on which the Board of Supervisors approves the challenged adjustment to the Contract Rate.
(2) Within two (2) days of filing the Action, the Challenging Cities shall personally serve on the County Counsel 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 Expeditpd 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 Kate Determination Stipulation shall be signed by each of the Challenging Cities. (3) Within fifteen (15) days of the date of service upon the County of the summons and complaint, and Expedited Rate Detemtination Stipulation, the County Counsel shall execute the Expedited Rate Determination Stipulation and personally serve upon the Challenging Cities through their counsel of record the Expedited Rate Determination Stipulation and its answer to the complaint in the Action. 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 City and the County mutually 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(,1) 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 Detennination Stipulation, the County and the Challenging Cities shall jointly make ex parte application to the Orange County Superior Court in the Action for the issuance of the order contained in the Expedited Rate Determination Stipulation. At such ex parte application, the County and the Challenging Cities shall also seek to confirm with the Orange County Superior Court the briefing schedule, and request a hearing date in accordance with the procedures set forth in this Section 4.2(l). (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 cotrrt and personally serve upon the County 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(1), any materials filed or lodged with the Board of Supervisors and the Orange County 19 Execution Copy
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Waste Commission, the transcript of the proceedings of the Board of Supervisors meeting and the Orange County Waste Commission, the minutes of the Board of Supervisors and the Orange County Waste Commission meeting, and the resolution and/or other documentation evidencing action by the Board of Supervisors and the Orange County Waste Commission to adjust the Contract Rate pursuant to Section 4,2(A) ar (13). 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 personally serve upon the Challenging Cities 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 personally serve upon the County a rebuttal brief, which shall not exceed 10 pages in length.
(8) The trial of the Expedited Rate Determination shall be conducted as a hearing which shall be conducted at the date set by the court in the ex parte hearing conducted pursuant to Section 4.2(3){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 issue its written statement of decision and enter judgment within thirty (30) days of the date of the hearing in the Expedited Rate Determination. (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 30 days of the date of the statement of decision, reimburse to the City the amount improperly imposed, together with interest calculated at the highest percentage rate that does not constitute usury under California laws. Such reimbursement may be made in the form of a reduction in the Contract Rate for a future period (not to exceed twelve months) reasonably calculated to provide full reimbursement of the amounts described above. (12) If for any reason the court does not sign the order contained in the Expedited Rate Determination Stipulation, the City shall, within 30 days of the court's denial of such requested order, file with the court and personally serve upon the County a motion for summary judgment and/or motion for judgment on the pleadings, in accordance with Code of Civil Procedure Section 437(c) and 438. By executing this Agreement, the parties hereby stipulate that, in the event that the Challenging Cities file such summary judgment motion andlor motion for judgment on the pleadings, the Record shall be deemed to have been incorporated into the complaint and answer filed by the Challenging Cities and the County, and no evidence outside of the Record is relevant or material to the dispute raised in the Expedited Rate Determination. The briefing schedule and hearing on such motion for summary judgment and/or motion for judgment on the pleadings shall be in accordance with Code of Civil Procedure Section 437(c). The Challenging Cities and the County shall be bound by all of the requirements and restrictions set forth in Section 4.2(l) that are not in conflict with this paragraph (12). (13) In the event that the court both does not sign the order contained in the Expedited Rate Determination Stipulation and either does not hear or does not issue a ruling on the merits on the motion for summary judgment and/or judgment on the pleadings which is dispositive of the issues, claims and causes of action in the complaint filed by the Challenging Cities, the Countyand the Challenging Cities shall, within twenty days following the issuance of the Court's order or decision not to honor the parties' stipulation or not to hear the parties' motion for summary judgment, make application to the Presiding Judge of the Orange County 20 Exxulioa Copy
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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 (13). In this regard, and without hmiting 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 COhMRACT RATE. (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 Disposal System or (2) the City uses non -municipal Franchise Haulers for collection but nonetheless elects to pay the Contract Rate from City revenues, the City, as its own Franchise Hauler, shall have direct responsibility for payment of the Contract Rate, and shall take all such budgetary, appropriation and other action as may be necessary to provide for the timely payment of the Contract Rate. 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. To the extent provided in Section 7.5 hereof, the obligation of the City for such Contract Rates shall be limited to amounts in the City's Solid Waste Enterprise Fund.
From the Commencement Date to the date of expiration or termination of this Agreement, the obligation to the City to pay the Contract Rate, to the extent the City rather than Franchise Haulers is responsible directly for payment and provided that the Service Covenant has been complied with, shall be absolute and unconditional and shall not be subject to delay or diminution by reason of set-off, abatement, counterclaim, exisFence of a dispute or otherwise. (B) Payment by Franchise Haulers. With respect to Controllable Waste delivered by Franchise Haulers other than City municipal collection forces, the obligation to pay the Contract Rate shall rest with such Franchise Haulers and not with the City and, unless the City has agreed with the County to be responsible for Franchise Hauler payments, the City shall not be financially responsible for any delay or failure by such Franchise Hauler to pay the Contract Rate or any portion thereof when due. In the event of any such failure, the County and the City shall cooperate with each other and use their best efforts to obtain timely payment. 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 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 30 days afterthe City's or the Franchise Hauler's objection, either party may pursue appropriate legal remedies.
SECTION 4.4 BILLING OF THE CONTRACT RATE. The County shall continue to bill Contract Rates 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 Disposal 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 Disposal System pursuant to any Applicable Law, contract, adopted budget, budgetary policy of the County with respect to the Disposal 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 21 Execution Copy
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Unrestricted Reserves or other funds of the County attributable to the Disposal System. "Restricted Reserves" shall include, but not be limited to, the following:
(i) reserves for closure of components of the Disposal System to the extent required by Applicable Law;
(ii) amounts reserved by the County for funding of post closure maintenance and monitoring with respect to components of the Disposal System; (iii) reserves established to protect the Disposal 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 Disposal 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 the State Integrated Waste Management Board);
(vii) reserves required to meet bond covenants pursuant to financing agreements for Disposal 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) AB939 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 months of budgeted expenses for the Disposal System for the current fiscal year, represmting 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 Disposal System, the Disposal Services, and the fiscal activities of the County OC Waste Disposal Enterprise Fundy and including statements in reasonable detail of the financial condition of the County OC Waste Disposal Enterprise Fund as of the end of the Qmtract Year and revenue and expenses for the Contract Year.
SECTION 4.7 ANI AL_UPDAIE OF TEN-YEAR FINANCIAL PROJECTION. The County shall annually, on or before May I of each year, prepare or cause to be prepared, an updated Ten -Year Financial Projection for the Disposal 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:
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County Acceptable Waste, in tons;
2. Imported Acceptable Waste, in tons;
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.
S. Projected liabilities for closure and post closure as well as reasonable reserves for other environmental costs.
The purpose of the Ten -Year Financial Projection is to keep the City fully informed about the future financial condition of the Disposal System. The County shall cause a copy of the Ten -Year Financial ,Projection to be delivered to the City 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
ARTICLE V
BREACH, ENFORCEMENT AND TERMINATION
SECTION 5.1 3B . 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 4nd 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 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 Bate 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 months (or, if the City had bew 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 Tenn of the Agreement.
SECTION 5.3 TERONATION.
(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 repeated 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) Tha 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 past 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 periform 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 90 days from the date of the notice given pursuant to clause (1) of this subsection (but if the 23 Execution Copy
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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).
(13) By Co Except as expressly provided herein, the County shall have no right to terminate this Agreement for cause except in the event of the repeated failure or refusal by the City 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 County the right to terminate this Agreement for cause under this subsection unless:
(1) The County has given prior written notice to the City stating that a specified failure or refusal to perform exists which will, unless corrected, constitute a material breach of this Agreement on the pari of the City and which will, in its opinion, give the County right to terrninate 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 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 WADVEIRS. 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 fiuther exercise thereof of the exercise of any other right, power or remedy.
SECTION 5.5 FORUM FOR 121SPUTE REQ . It is the express intention of the parties that all legal actions and proceedings related to this Agreement or to the Disposal System or to any rights or any relationship between the parties arising therefrom shall be solely and exclusively initiated and maintained in courts of the State of California having appropriate jurisdiction.
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 effecf until June 30, 2020, 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) , Qpti l-tto Renew. This Agreement shall be subject to renewal by mutual agreement of the parties, on or before June 30, 2018, for an additional term of tea years (the "Renewal Term') on the same terms and conditions as are applicable during the Initial Tenn hereof. The City shall give the County written notice of its irrevocable election to renew this Agreement on or before June 30, 2017. If the parties do not renew this Agreement by June 30, 2018, the Agreement shall expire on June 30, 2020. (C) - ontr t Rate DWj4g Renewal Term. In connection with the parties' right to renew this Agreement for an additional ten-year term pursuant to Section 6.1(B), the parties shall, on or before June 30, 2018, negotiate an applicable change in the Contract Rate for such renewal term. In determining any revisions to the 24 &Ccuuon Copy
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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) changes in transportation and technology;
(vi) closure and expansion of nearby landfills;
(vii) capacity of the Disposal System; and
(viii) available reserves which are in excess of the amount reasonably required as reserves.
(D) Survival: Accrued Fights. The rights and obligations of the parties hereto pursuant to Sections M(Rx2), 5.1, 5.3, 5.5, 7.2, 7.3, 7.5, 7.7, 7.8, 7.9, and 7.10 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 COMIv1ENCEMENT DATE.
(A) Oblieations of the Parties Prior to the Commencement Date The parties acknowledge that the Disposal 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 mdeataking. Until the Commencement Date occurs, the Original WDAs shall remain in full force and effect.
(B) Con it' n to the Commencernmt Date. The Commencement Date for the Agreement shall be the date on which the percentage of the County's Acceptable Waste attributable to Participating Cities which have executed and delivered Disposal Agreements shall exceed 85% percent (using the percentage rates attributed to such Cities in Appendix 1). 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 I of this Agreement.
(C) Stisfactionipf 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 Disposal 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 famished to each party prior to or on the Commencement Date.
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(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. If any such City executes a Disposal Agreement and rneets the applicable condition provided in subsection 6.2(B) hereof within 180 days following the date of its municipal incorporation, then such City shall be entitled to execute a Waste Disposal Agreement on substantially the same terms and conditions as this Agreement (including the Contract Rate), notwithstanding the limitations contained in Section 3.6(B). (E) Failure of Condition. If by i�r�' ' ` 120 DAYS AFTER BOARD APPROVAL), 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_ Notwithstanding anything in this Agreement to the contrary, in the event that this Agreement is terminated pursuant to this Section, the provisions of the Original WDA shall remain in full force and effect on the terms and conditions set forth therein.
ARTICLE VII
GENERAL PROVISIONS
SECTION 7.1 OPERATIQX AND MARaENANCE OF THE DISPOSAL 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 Disposal System in accordance with Applicable Law and the operating rules and regulations of the Department.
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 fust knew of the commencement thereof, followed within 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 Disposal System.
While the delay continues, Bre County or City shall give notice to the other party, before the first day of each succeeding month, updating the information previously submitted. (C) lmaact 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 Disposal 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 26 6xecurion Copy
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Contract Rate would have otherwise been increased or shall serve to reduce the Contract Kate to reflect such mitigation measures, as applicable.
SECTION 7.3 RMEMNIFICtTION. To the extent permitted by law, the County agrees that, it will protect, indemnify, defend 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 that because of conflict or any other reason 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. 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. 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 A 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 RCRAI 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. Ile City acknowledges the County's legitimate interest in actively participating in any defense, litigation or settlement, and shall, as a condition to this indemnity, coordinate fully with the County in the defense.
SECTION 7.4 RELATIONSHIP OF THE PARTIES. Neither party to this Agreement shall have any responsibility whatsoever with respect to services provided or contractual obligations or liabilities assumed by the other party bereto, 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 TS I ITED OURSE.
(A). To t ie City. Except in the event the City has not established or maintained a City Solid Waste Enterprise Fund, 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.
The sole recourse of the County for all such amounts shall be to the funds held in any such 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 finds 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 KUM 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 disposal of waste in the Disposal System or any other related matter.
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SECTION 7.7 NO VESTED RIGHTS. The City shall not acquire any vested property, license or other rights in the Disposal 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 Acceptable Waste or processing it for diversion from landfill, or as a result of causing, franchising, permitting, licensing, authorizing or arranging any of the foregoing, shall be its sole liability, except as expressly otherwise provided herein.
SECTION 7.9 NO CONSEQUENTIAL OR PUNITfVE 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, modifier], 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 ASSMANCES. 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 _ASSIGNhfENT OF_AGREEMENT. (A) Assignment. Neither this Agreement nor any of the rights or obligations hereunder may be assigned by either party hereto without the prior written consent of the other party, which may be withheld in the other party's sole discretion. Notwithstanding the foregoing; either party may assign this Agreement to another public entity, subject to the reasonable consent of the other party. In such circumstances the party not requesting the assignment shall have the right to demand assurances of the financial, technical and legal ability of the proposed assignee to undertake the responsibilities and obligations of the assigning party
(B) Sale. The County shall not enter into any agreement for the sale of the Disposal System which provides for an effective date for such sale prior to the termination of this Agreement.
SECTION 7.14 RFMREST ON OVERDUE OBLIGATIONS. Except as otherwise provided herein, all amounts due hereunder, whether as damages, credits, revenue or reimbursements, that are not paid when Clue 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 EFFEGI. 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 bereof.
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 ply.
28 Execution Copy
20-291
i 0
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.
Date l
Date
Date
APPROVED AS TO FORM:
COUNTY COUNSEL
Execution Copy
CO F ORANGE
By
Director, OC sate & RccycTift
By
City Representative
City of Newport Beach
By
[NAME]
City Representative
City of Newport Beach
29 APPROVED AS TO FORM:
� .' C
City Attorney
ATTEST:
City Clerk
City of N— ort gear~h
20-292
APPENDIX l
PERCENTAGE OF COUNTY ACCEPTABLE WASTE ATTRIBUTABLE TO PARTICIPATING CITIES FOR PURPOSE OF SECTION 6.2(b)
Jurisdiction
Percentage of County
Acceptable Waste
Anaheim
13.4%
Santa Ana
10.6%
Irvine
7.5%
Huntington Beach
6.0%
OqLnae
' 5.8%
Garden Grove
5.1%
Fullerton
4.5%
Uninco orated, Orange County tli
4.3%
Costa Mesa
3.6%
N art Beach
3.0%
Lake Forest
2.6%
Buena Park
2.5%
Mission Vicio
2.3%
Westminster
2.3%
Yorba Linda
2.3%
Brea
2.1%
Tustin
2.0%
Cypress
f•9%
La Habra
1.9%
San Clemente
1.7%
Fountain Vall
1.6%
LagunaNiguel
1.60/c,
Placentia
1.6%
San Juan Ca istranio
1.6%
Laguna Beach
1.4%
Dana Point
1.2%
Stanton
1.1%
Rancho Santa Margarita
1.0%
La Hills
0.9%
Seal Bea&
0.8%
Aliso Vie'o
0.7%
Us Alamitos
0.5%
La Palma
0.3%
LagunaWoods
0.2%
Villa Park
0.2°/
Total
100%
(1) Unincorporated County 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. (2) A Participating City will only be included for purposing of determining the Com=neement Date upon (i) execution of a Waste Disposal Agreement by that Participating City and (ii) execution of a Hauler Acknowledgement(s) by the Franchise Hauler(s) operating with& such Participating City
Execution Copy
20-293
0 Exwution COPY
APPENDIX 2
CUMULATIVE TONNAGE TARGETS
0 20-294
0 APPENDIX 2
Cumulative County Acceptable Waste Tonnage Target to be Used for Purposes of Section 4.2 (B)
Fiscal Year
County Acceptable Waste
Tonnage
FY 2008-09
3,170,387
FY 2009-I0
3,092,806
FY 2010-11
3,185,590
FY 2011-12
3,344,870
FY 20I2-13
3,445,216
FY 2013-14
3,514,120
FY 2014-15
3,549,262
FY 2015-16
3,565,608
FY 2016-17
3,582,033
FY 2017-18
3,598,535
FY 2018-19
3,615,115
FY 2019-20
3,631,774
Execution Copy
Cumulative County
Acceptable Waste Tonnage
3,170,387
6,263,193
9,448,783
12,793,653
16,238,869
19,752,989
23,302,251
26,867,859
30,449,892
34,048,427
37,663,542
41,295,316
20-295
APPENDIX 3
CUMULATIVE CAPITAL COSTS
to be Used
for Purposes of Section 4.2(A)vi
Fiscal Year
(ezding June 30
Annual Capital Costs
Cumulative Capital Costs
2009
$37,939,538
$37,939,538
2010
$59,343,405
$9_7,282,943
2011
$10,433,978
$1073716,921
2012
$13,678,113
$121,395,034
2013
$11525,040
$139,920,074
2014
$11,259,518
$150,179,592
2015
$37,682,758
$187,862,350
2016
$5,068,800
S 192,931150
2017
$10,662,265
$203,593,415
2018
$29,397,69
$232,991,113
2019
'241,254,908
2020
$45 103805
$286,358,713
Execution Copy
20-296
E
APPENDIX 4
FORM OF HAULER ACKNOWLEDGMENT
ecution COPY
20-297
FRANCHISE HAULER ACKNOWLEDGMENT
THIS FRANCHISE HAULER ACKNOWLEDGMENT, dated as of� 2009 (the "Acknowledgment"), by and between the City of (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, Orange County (the "County") owns, manages and operates a sanitary landfill disposal system for municipal solid waste generated within the County; and WHEREAS, the City and the County have heretofore entered into a Waste Disposal Agreement, dated as of , 2009 (the "Disposal Agreement') determining that the execution of such Disposal Agreement will serve the public health, safety and welfare of the residents of the City and County, by maintaining public ownership and stewardship over the Orange County Landfill Disposal System (the "Disposal System"); and WHEREAS, under the Disposal Agreement, the County has agreed to provide long-term disposal of all municipal solid waste generated within the City 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 Disposal System; and WHEREAS, the provisions of the Waste Disposal Agreement which guarantee capacity for the long term disposal 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 Disposal System; and WHEREAS, the City and the Franchise Hauler desire to eater into this Acknowledgment to assure that the City and the Franchise Hauler will be entitled to the benefits of the Waste Disposal Agreement and to assure conformity with the waste delivery obligations which have been agreed to by the City under the Disposal Ageement through the delivery of waste by the Franchise Hauler to the Disposal 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 as provided in the Disposal 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:
I. Capitalized terms used and not otherwise defined herein are used as defined iii the Disposal Agreement.
�," 7 Wution Copy
20-298
I The Franchise Hauler hereby waives any right which it may possess under applicable law to contest on any ground, constitutional, statutory, case law, administrative or otherwise, (a) the right, power or authority of the County or the City to enter into or perform their respective obligations under the Disposal Agreement, (b) the enforceability against the County or the City of the Disposal Agreement, or (c) the right, power or authority of the City to deliver or cause the delivery of all Controllable Waste to the Designated Disposal Facility 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 Disposal System, and shall otherwise assist the City in complying with its obligations under the Waste Disposal Covenant in Section 3.1 of the Disposal Agreement,
5. 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 Designated Disposal Facility in compliance with the Wasie Disposal Covenant.
6. The Franchise Hauler shall pay the Contract Rate imposed by the County at the Designated Disposal Facility for the disposal of all Controllable Waste, which rate shall be subject to potential adjustment necessary to reflect the circumstances set forth in the Disposal Agreement. 7_ Nothing in this Acknowledgment is intended to restrict any right or responsibility explicitly given the Franchise Hauler in the Franchise to recycle City Acceptable Waste, except as provided in paragraph 5 above with respect to Residue from any such recycling operations. . 8. The obligations of the Franchise Hauler under this Acknowledgment shall apply notwithstanding any provision of the Franchise which may conflict herewith.
9. 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.
10. This Acknowledgment shall be in full force and effect and shall be legally binding upon the City and Franchise Hauler from the dated hereof and shall continue in full force and effect until the earlier of (i) the and of the term of the Franchise or (6) the end of the term of the Disposal. Agreement.
11. The City and 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.
12. The Hauler agrees to assist the County in verifying tonnage collected by the Franchise Hauler and providing information required by the County. 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), and by facility to which it was delivered (specify which landfill or transfer station). Hauler will provide customer service levels and route lists. Hauler will cooperate with County audits to verify reported origin of tonnage by malting records and personnel available to the County and/or its auditors.
E[em ioz COPY
20-299
TN WITNESS WHEREOF, the parties have caused this Acknowledgment to be executed by their duly authorized officers or representatives as of day of , 2009,
CITY OF
Signature:
Printed Name:
Tide:
(Franchise Hauler)
Signature:
Printed Name:
Title:
t xeoxioa UPY
20-300
May 4, 2009
� CITY OF NEWART BEACH
Mr. Jeff Southern
Orange County Waste & Recycling
300 N. Flower Street, Suite 400
Sar►ta Ana, CA 92703
Dear Mr. Southern:
OFFICE OF THE CITY CLERK
I..eilanl I. Brown, MMC
Certified No. 7009 0080 0000 7494 7627
Return Receipt Requested
Enclosed please find the certified minutes excerpt from the April 28, 2009 Newport Beach City Council Meeting, one original contract, and three original signature pages for Contract No. 4194 between the City of Newport Beach and the County of Orange. Please have the three original signature pages signed where indicated.
Once executed, please return one fully executed contract to:
Leilani I. Brown, City Clerk
City of Newport Beach
3300 Newport Boulevard
Newport Beach, CA 92663
If you have any questions or need additional information, please contact General Services Director Mark Harmon.
Sincerely,
4��
Leilani I. Brown, MMC
City Clerk
Enclosures
cc: Mark Harmon, General Services Director
3300 Newport Boulevard • Post Office Box 1768 • Newport Beach, California 92658-8915 Telephone: (949} 644-3005 • Fax: (949) 644-3039 • www.city.newport-beach.ca.us 20-301
CITY OF NEWPORT BEACH MINUTE EXCERPT
` CITY COUNCIL MEETING OF APRIL 28, 2009
ROLL CALL
Present: Henn, Rosansky, Curry, Webb, Gardner, Mayor Selich
Absent: Daigle (excused)
CURRENT BUSINESS
19. APPROVAL OF TEN YEAR AGREEMENT WITH THE COUNTY OF
ORANGE FOR THE DISPOSAL OF MUNICIPAL SOLID WASTE (C-4194).
Motion by Council Member Webb to approve the ten year agreement with the County of Orange (July 1, 2010 through June 30, 2020) for the delivery of all controllable municipal solid wastes from the City to the County landfill disposal system, thereby ensuring a long-term, reliable and cost competitive disposal source for the City's municipal solid waste,
The motion carried by the following roll call vote:
Ayes: Council Member Henn, Council Member Rosansky, Mayor Pro Tem Curry, Mayor Selich, Council Member Webb, Council Member Gardner Noes: None
Abstain: None
Absent: Council Member Daigle
CERTIFIED AS A TRUE AND CORRECT COPY
City Clerk of the City of
DATE- 5 4QR
Beach
� 6RNty
20-302
GAI
Michael & Glancolo. ii
O R A N G E G O V N T T 300 N. Flower Street, Suite 400 (.0
Waste&RecyclffigEIVED Santa Ana, CA 92703
www.oclandfills.com
Our Community. our Commitment. • Telephone: (714) 834-400D N9 A 29 P 1:44 Fax: (714) 834-4183
July 23, 2009
Mr. Homer Bludau, City Manager
City of Newport Beach
3300 Newport Blvd.
Newport Beach, CA 92663
Subject: Waste Disposal Agreement
Dear Mr. Bludau,
I am pleased to inform you that the required conditions of the Waste Disposal Agreement (Agreement) have been met and we are prepared to formally enter into this partnership with your jurisdiction. As you are aware Section 8.2 of the Agreement states that the commencement date shall occur when cities representing 85% of the waste generated in the County approve and execute the Agreement. This threshold was required to be met within 120 days following Orange County Board of Supervisors approval of the Agreement, which occurred March 24, 2009.
This letter serves as written notification that this condition of the Agreement has been satisfied and the commencement date of the Agreement is July 23, 2009. For your reference, please find attached an executed Commencement Date Certificate signifying that the commencement date has occurred and a listing of all the participants.
I'd like to take this opportunity to thank you for your timely consideration and action with regard to this Agreement. Landfill capacity is a valuable resource to Orange County residents.
Through implementation of this Agreement we can best manage that capacity for future generations while at the same time controlling the expense for current residents. I look forward to our continued partnership for years to come.
If you have any questions, please contact me directly at (714) 834-4122 or Jeff Southern of my staff at (714) 834-2652.
Sincerely,
Michael B. Gianc a
cc:
Board of Supervisors
CEO
Attachment
20-303
0 o R .> N 6 E C O U N T Y
CWas te&,Recycling
Our Community. Our Commitment.
Michael & Gloncola, Director
300 N. Flower Street. Suite 400
Santa Ana. CA 92703
1N_W_W—oChnd5IISSS2M
Telephone: (714) 834.4000
Fax: (714) 834-4183
CERTIFICATE OF THE COUNTY OF ORANGE, CALIFORNIA
CERTLFYING SATISFACTION OF CONDITION
TO COMMENCEMENT DATE
RELATING TO WASTE DISPOSAL AGREEMENT
July 23, 2049
I, Michael B. Giancola, Director, OC Waste & Recycling, County of Orange, California, hereby certify as follows:
1. On March 24, 2009, by Resolution No. 09-036, the County Board of Supervisors approved the forms of Waste Disposal Agreements and designated July 23, 2009, as the date by which all conditions to the Commencement Date (as defined in the Waste Disposal Agreements) were to be met.
2. On July 23, 2009, OC Waste & Recycling received executed Waste Disposal Agreements from Participating Cities exceeding eighty-five percent (85%) of County Acceptable Waste using the percentage rates attributable to such Participating Cities in Appendix 1 of the Waste Disposal Agreement.
3. [n accordance with Section 6.2 of the Waste Disposal Agreements, the condition precedent to the Commencement Date has been met and the County designates July 23, 2009, as the Commencement Date for the attached list of Participating Cities.
4. Copies of all documents constituting evidence of satisfaction of the condition to the Commencement Date are available for inspection and copying at OC Waste & Recycling, 300 N.
Flower St., Suite 400, Santa Ana, CA 92703, (714) 834-4000, I hereby certify the foregoing is true and correct,
Michael B. Giancola, Director, OC Waste & Recycling
20-304
20-305
PARTICIPATING CITIES, SANITATION DISTRICTS, AND FACILITY OPERATORS Cities:
Rancho Santa Margarita
Aliso Viejo
San Clemente
Anaheim
San Juan Capistrano
Brea
Santa Ana
Buena Park
Seal Beach
Costa Mesa
Stanton
Cypress
Tustin
Dana Point
Villa Park
Fountain Valley
Westminster (by way of Midway Sanitation)
Fullerton
Yorba Linda
Garden Grove (by way of Garden Grove
Sanitation Districts:
Sanitation)
Costa Mesa Sanitation
Huntington Beach
Garden Grove Sanitation
Irvine
Midway Sanitation
La Habra
South Orange County Wastewater Authority
La Palma
(SOCWA)
Laguna Beach
Facility Operators:
Laguna Hills
CR&R Incorporated
Laguna Niguel
Rainbow Disposal
Laguna Woods
Tierra Verde Industries
Lake Forest
Madison Materials (dba Ware Disposal)
Los Alamitos
USA Waste/Waste Management of Orange
County
Mission Viejo
Newport Beach
Orange
Placentia
20-305
The agreement is attached, along with supplemental information intended to aid in preparation of an item for your city council.
Should your city choose to execute the agreement, please return three wet signature copies to the below address. The County will retain two copies and return one to the city. Please also include a copy of the resolution, minute order or other documentation confirming that your City Council has approved the agreement.
OC Waste & Recycling4— [
300 N. Flower Street, Suite 400
Santa Ana, CA 92703
Attention: Jeff Southern
OC Waste & Recycling stands ready to further assist you by providing additional information or by making a presentation to your city council and/or staff. Please contact Rochelle Carpenter at (714) 834-4060 or Jeff Southern at (714) 834-2652.
Sincerely,
r�-�
Michael B. Giancola, Director
Attachments:
Waste Disposal Agreement
Summary of Major Provisions
Board Resolution
Staff Report Information
I
I
20-306
0 0
CITY OF NEWPORT BEACH MINUTE EXCERPT
CITY COUNCIL MEETING OF APRIL 28, 2009
ROLL CALL
Present: Henn, Rosansky, Curry, Webb, Gardner, Mayor Selich
Absent: Daigle (excused)
CURRENT BUSINESS
19. APPROVAL OF TEN YEAR AGREEMENT WITH THE COUNTY OF
ORANGE FOR THE DISPOSAL OF MUNICIPAL SOLID WASTE (C-4194).
Motion by Council Member Webb to approve the ten year agreement with the County of Orange (July 1, 2010 through June 30, 2020) for the delivery of all controllable municipal solid wastes from the City to the County landfill disposal system, thereby ensuring a long-term, reliable and cost competitive disposal source for the City's municipal solid waste.
The motion carried by the following roll call vote:
Ayes: Council Member Henn, Council Member Rosansky, Mayor Pro Tem Curry, Mayor Selich, Council, Member Webb, Council Member Gardner Noes: None
Abstain: None
Absent: Council Member Daigle
CERTIFIED AS A TRUE AND CORRECT COPY
IN
City Clerk of the City of Newport Beach
DATE: 5/4/01
rj
20-307
WASTE DISPOSAL AGREEMENT
Between
THE COUNTY OF ORANGE, CALIFORNIA
and
the
CITY OF NEWPORT BEACH
Dated 4128 2009
County Authorization Date:
March 24. 2009
County Notice Address:
Director
OC Waste & Recycling
300 N. Flower Street, Suite 400
Santa Ana, CA 92703
Execution Copy
0 City Authorization Date -
April -28; 2009
City Notice Address:
General Services Director
3300 Newport: Boulevard
Newport Beach, CA 92663
20-308
0 TABLE OF CONTENTS
E
Page
ARTICLE I
DEFINITIONS AND INTERPRETATION
Section1.1 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 Section 4.3
ARTICLE III
DELIVERY AND ACCEPTANCE OF WASTE AND PROVISION OF DISPOSAL SERVICE Section3.1
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
Section5.1
BREACH........................................................................................................................................23 Section 5.2
CITY CONVENIENCE TERMINATION
23 Section 5.3
TERMINATION___ ...... ............. ---- ............. -- ........................................................ 23 Section5.4
NO WAIVERS................................................................................................................................24 Section 5.5
FORUM FOR DISPUTE RESOLUTION......................................................................................24
ARTICLE
TERM
Section 6.1 EFFECTIVE DATE AND TERM. ..............
Section 6.2 COMMENCEMENT DATE ........................
a
Execution Copy
20-309
Section 7.1
Section 7.2
Section 7.3
Section 7.4
Section 7.5
Section 7.6
Section 7.7
Section 7.8
Section 7.9
Section 7.10
Section 7.11
Section 7.12
Section 7.13
Section 7.14
Section 7.15
Section 7.16
APPENDIX I
ARTICLE VTI
GENERAL PROVISIONS
OPERATION AND MAINTENANCE OF THE DISPOSAL SYSTEM.......................................26 UNCONTROLLABLE CIRCUMSTANCES GENERALLY........................................................26 INDEMNIFICATION.....................................................................................................................27 RELATIONSHIP OF THE PARTIES............................................................................................27 LIMITED RECOURSE. .................... .............................................................................................27 PRE-EXISTING RIGHTS AND LIABILITIES.............................................................................27 NOVESTED RIGHTS...................................................................................................................28 LIABILITY FOR COLLECTION, TRANSPORTATION AND PROCESSING ..........................28 NO CONSEQUENTIAL OR PUNITIVE DAMAGES..................................................................28 AMENDMENTS............................................................................................................................28 NOTICE OF LITIGATION............................................................................................................28 FURTHER ASSURANCES...........................................................................................................28 ASSIGNMENT OF AGREEMENT...............................................................................................28 INTEREST ON OVERDUE OBLIGATIONS...............................................................................28 BINDING EFFECT........................................................................................................................28 NOTICES........................................................................................................................................ 28
ESTIMATED ANNUAL TONNAGE
APPENDIX 2
CUMULATIVE TONNAGE TARGETS
APPENDIX 3
CUMULATIVE CAPITAL COSTS
APPENDIX 4
FORM OF HAULER ACKNOWLEDGEMENT
Execution Copy
20-310
0 0
WASTE DISPOSAL AGREEMENT
THIS WASTE DISPOSAL AGREEMENT 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, a general law or chatter city and political subdivision of the State of California (the "City").
RECITALS
The County owns, manages and operates a sanitary landfill system for the disposal of municipal solid waste generated by the cities and the unincorporated area within the County (the "Disposal System"). The Disposal System includes three active landfills and four regional household hazardous waste collection centers.
The Disposal System is used for the disposal of municipal solid waste which is not reused, recycled or otherwise diverted from landfill disposal, pursuant to the California Integrated Waste Management Act of 1989 (Division 30 of the California Public Resources Code) (the "Act"), The City, in the exercise of its police power and its powers under the Act, has entered into a franchise or other agreement with or issued permits or licenses to one or more private haulers for the collection 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.
In 1997, the City and the County entered in a waste disposal agreement (the "Original WDA'), pursuant to which 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 Original WDA.
The Original WDA, as amended, will expire by its terms on June 30, 2010, unless the City and the County agree to renew the Original WDA.
The City and the County desire to enter into this agreement to extend, amend and restate time Original WDA, on the terms and conditions set forth herein. The County and City acknowledge that the Original WDA shall remain in full force and effect until the Commencement Date.
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 greater disposal mate stability, more 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 more stable, predictable and reliable supply of municipal solid waste and the resulting service payment revenue to the Disposal System, thereby enabling the County to plan, manage, operate and finance improvements to the Disposal System on a more prudent and sound long term, businesslike basis consistent with its obligations to the State and the holders of obligations secured by its Disposal System.
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:
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0 ARTICLE I
DEFINITIONS AND INTERPRETATION
0 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 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 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 Disposal 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, the Orange County Code, 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, constriction, equipping, financing, ownership, possession, operation or maintenance of the Disposal System, 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 concent health, safety, fire, environmental protection, mitigation monitoring plans and building codes). "Board" means the California Integrated Waste Management Board. "Capital Costs" means all costs of the Disposal 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 Disposal System reported as `Buildings and Improvements, and Infrastruchue" (Object Code 4200) or "Equipment" (Object Code 4000) in the County of Orange — Chart of Accounts, or any successor accounting or reporting systeiii utilized by the County. "CEQA" means the California Environmental Quality Act, codified at Cal. Pub. Res. 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.A. 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, fmancing, ownership, possession, operation or maintenance of the Disposal 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);
(2) the order or judgment of any Govetnmentat 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 Execution Copy
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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, interntption, 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.
A "Change in Law" shall include but not be limited to any new or revised requirements relating to the funding or provision of disposal services, including but not limited to any regulations for disposal operations or activities associated with the remediation, closure, funding or monitoring of closed sites with respect to facilities comprising the Disposal 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 or Sanitary District designated an the cover page of this Agreement and party to ibis Agreement.
"City Acceptable Waste" means all Acceptable Waste which was originally discarded by the first generator thereof within the geographical limits of the City, and Residue from the foregoing wherever produced, whether within or outside the City (or Tonnage equivalencies of such Residues, as and to the extent provided in subsection 3.1(C) hereof).
"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 fust date on which this Agreement has been executed by both parties hereto. "Contract Rate" bas the meaning specified in Section 4.2 hereof. "Contract Year" means the fiscal year commencing on July I 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 Flan" means the integrated waste management plan of the County approved by the Board pursuant to the Act as in effect from time to time.
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"County Acceptable Waste" means Acceptable Waste generated in the County. "County OC Waste & Recycling Enterprise Fund" means the waste management enterprise fund established and managed by the County pursuant to Section 25261 of the Goverment Code separate from its other funds and accounts for receipts and disbursements in connection with the Disposal System. "County -wide Recycling Services" has the meaning set forth in subsection 3.7(A) hereof. "Cumulative Tonnage Target" for any given Contract Year means the amount specified in Appendix 2 hereto with respect to such Contract Year.
"Department" means OC Waste & Recycling, and any agency, department or other Governmental Body which succeeds to the duties and powers thereof.
"Disposal Agreements" means each of the waste disposal agreements entered into between the County and any city within the County, Sanitary District or operator of any Transfer Station located in the County in accordance herewith.
"Disposal Services" means the solid waste disposal services to be provided by the County pursuant to the Service Covenant and otherwise hereunder.
"Disposal System" means the Orange County Waste Disposal System which includes solid waste disposal operations at three active landfills (Olinda Alpha, Frank R. Bowerman and Prima Deshecha); four regional Household Hazardous Waste Collection Centers; as well as services, such as monitoring and other activities, at closed refuse stations 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. "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 Substance" has the meaning given such term in CERCLA, the Carpenter -Presley Tanner Hazardous Substance Account Act (California Health and Safety Code Section 25300 et seq.), and Titles 22 and 26 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 irreversnble, 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.
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"Imported Acceptable Waste" means Acceptable Waste that is generated outside of the geographical boundaries of the County and delivered to the Disposal System. "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 Disposal 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 Disposal System or the performance of any obligation under this Agreement or the matters covered hereby.
"Legal Proceeding" means every action, suit, litigation, arbitration, administrative proceeding, and other legal or equitable proceeding having a hearing 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. "Net Import Revenues" has the meaning ascribed thereto in Section 3.6(E). "Non -Recycled City Acceptable Waste" means all City Acceptable Waste other than Recycled City Acceptable Waste.
"Overdue Rate" means the maximum rate of interest permitted by the laws of the State, if applicable, or the prime rate established from time to time by the Bank of America, N.A. or its successors and assigns, plus 2%, whichever is lower.
"Participating City" means any city or Sanitary District executing a Disposal Agreement in accordance with Section 3.6(A) hereof and meeting all requisite conditions to the Commencement Date thereof. "Plan of Adjustment" mans the County's Modified Second Amended Plan of Adjustment, confirmed by the United States Bankruptcy Court Central District of California in that Conformed Order Confirming Modified Second Amended Plan of Adjustment, filed May 17, 1346.
"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.
"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 the Board, the Department of Health Services, the State Water Resources Control Board, or the Air Resources Board 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/mutageniclteratogenic;
which are discarded from households as opposed to businesses. Qualified Household Hazardous Waste shall not include Unacceptable Waste.
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"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(B) 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.A. Section 6901 etseq., 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 at Cal. Ann. Health & Safety Code Section 6400 et seq., as amended, supplemented, superseded and replaced from time to time.
"Self -Hauled Waste" means City Acceptable 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.
"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 fat the receipt, handling and disposal of Source -Separated Household Hazardous Waste.
"State" means the State of California.
"Tout" shall mean the Term of this Agreement.
"Ton" means a "short ton" of 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 disposal in the Disposal System. "Unacceptable Waste" means 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 Execution Copy
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vessels and steel cable; hot loads; and any waste which the Disposal System is prohibited from receiving under Applicable Law.
"Uncontrollable Circumstance" means any act, event or condition affecting the Disposal 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; and (2) a Change in Law.
1 "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 Disposal System which are not Restricted Reserves.
"Waste Disposal Covenant" means the covenants and agreements of the City set forth in Section 3.1 hereof.
SECTION 1.2 MERPRET'ATION. In this Agreement, unless the context otherwise requires:
(A) Rdgrences_Hercto. The terms "hereby", "hereof', "herein", "hereunder" 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.
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(G) Applicable Law. This Agreement shall be governed by and construed in accordance with the Applicable Laws of the State of California.
(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 aveomplish 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) Inte tion• Pres=ign of C . 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 agreements:
1) MOU, dated March 10, 1992, between the City of Brea and the County of Orange regarding the Olinda Alpha Landfill as amended on April 6, 1993 and November 29,1994; 2) MOU, dated May 11, 1995, between the City of Brea and the County of Orange regarding importation of out -of -County waste to the Olinda Alpha Landfill; 3) Settlement Agreement, dated August 1, 1984, between the City of Irvine and the County of Orange regarding the Bee Canyon Landfill (currently called Frank R. Bowerman Landfill); 4) MOU, dated May 16, 1995, between the City of Irvine and the County of Orange regarding importation of cut -of -County waste to the Frank R. Bowerman Landfill; 5) MOU, dated September 12, 1995, and amended November 21, 1995, between the City of San Juan Capistrano and the County of Orange regarding importation of out -of -County waste to the Prima Deshecha Landfill;
6) MOU, dated July 1, 1997, between the City of San Clemente[, the Orange County Flood Control District] and the County of Orange regarding the Prima Deshecha Landfill; and 7) Cooperative Agreement, dated August 15, 2006, between the County and the City of Irvine.
(J) Recitals. The recitals to this Agreement are not intended to bind the parties hereto. In the event of a conflict between the recitals and the operative provisions of this Agreement, the operative provisions shall prevail. The recitals shall not be used to interpret the provisions of the Agreement.
ARTICLE II
REPRESENTATIONS AND WARRANTIES
SECTION 2.1 REPRESENTATIONS AND WARRANTIES OF THE CITY. The City represents and warrants that:
(A) Eli=e The City is a general law or charter city validly existing under the Constitution and laws of the State.
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(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 DISPOSAL SERVICE
SECTION 3.1 DELIVERY OF WASTE.
(A) Waste Disposal Covenant. Subject to the occurrence of the Commencement Date and throughout the Term of this Agreement, 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 Disposal System in accordance herewith.
(B) Recycled City Acceptable Waste. The parties hereto acknowledge the responsibility of the City to meet the recycling and landfill diversion goals contained in the Act. 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 Disposal System by or on behalf of the City which may result from any such source separation or recycling program shall cause the City any liability hereunder (other than potential adjustment to the Contract Rate to the extent provided in Article IV hereof) and shall not constitute a breach of this Agreement. (C) Waste Delivered to Transfer Station. All Residue from any processing of Controllable Waste by materials recovery, composting, recycling or other means, wherever performed, shall constitute Controllable Waste and be subject to the Waste Disposal Covenant. Where City Acceptable Waste is processed at a facility which concurrently processes other Acceptable Waste in a manner which produces commingled residue which cannot be traced to a geographic source, generic residues from such facility in Tonnage equal to the residues that would have been produced had City Acceptable Waste only been processed at the facility shall constitute Controllable Waste and he 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 extant 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 Disposal 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 Disposal 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 Disposal 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 Disposal 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.
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(D) Power to Obligate Waste Disposal and Comely 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 a disposal location selected by the City (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 Disposal 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 Disposal 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) Wage 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 Disposal System pursuant to and in accordance with the Waste Disposal Covenant for 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 (x) subtracting the number of tons actually delivered during the month(s) of the breach from the number of tons that were delivered during the same month(s) closest in time when there was no such breach, even if such month(s) closest in time was prior to the Terns, and (y) 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 Waste Disposal Agreement as a result of such breach, the damages due as a result of such termination shall be equal to (aa) the average monthly deliveries by the City for the twelve months prior to the commencement of the breach multiplied by (bb) 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 (cc) 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 oonfirms 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 10 Execution Copy
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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 Disposal System in breach of its fi-anchise 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. Such information may include, to the extant practicable, 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, 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, tonnage by type of load (residential, commercial, rolloff box), customer service levels, tonnage delivered by transfer station or material recovery facility utilized, and other related information.
(1) 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 or its collection, transportation, transfer, storage, treatment or disposal that may materially and adversely affect the County's ability to achieve such timely compliance. Notwithstanding the foregoing, the City shall not be required to deny any permit or license or refuse to grant any approval while exercising its police powers. (J) No Right of Waste SAstitution. Nothing in this Agreement shall authorize or entitle the City to deliver or cause the delivery to the Disposal System of Acceptable Waste originating from or generated outside the jurisdiction of the City, nor obligate the County to receive or dispose of any such Acceptable Waste.
The City shall not assign in whole or in part its right to deliver or cause to be delivered Controllable Waste to the County hereunder, and shall not permit any Acceptable Waste originating from or generated outside the jurisdiction of the City to be substituted for Controllable 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, after March 30, 2048, 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 QF DISPOSAL SERVICES BY 3M C
(A) Service Covenant. Commencing on the Commencement Date, the County shall provide or cause the provision of the service of (1) receiving and disposing of all Controllable Waste at the Disposal System (or such other facilities, including transfer stations, as the County may determine to use), (2) disposing in accordance with subsection 3.2(C) hereof of Controllable Waste which, at any time and for any reason, is in excess 11 Execution Copy
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of the disposal capacity of the Disposal System, and (3) 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 keep the Olinda Alpha, Prima Deshecha and Frank R. Bowerman Landfills open for the receipt of 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 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) Plqi!alar Facilities. The Department and the City shall consult and cooperate in determining whether and to what extent from time to time other landfills other than that primarily used by the City shall be utilized to receive 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 Disposal 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 24 hours of the occurrence of any such inability. The County stall use its best efforts to resume normal operation of the landfill primarily used by the City as soon as possible. In the event of a temporary material increase in average daily deliveries of Controllable Waste from the City which the County reasonably believes could result in the permitted daily disposal capacity limit to be exceeded with respect to a particular landfill within the Disposal System, the County shall have the right to redirect the increased Controllable Waste to another landfill within the Disposal System for the duration of the increase in average daily deliveries; provided, however, that in such circumstances the County shall utilize reasonable efforts to first redirect waste which is not Controllable Waste.
(C) Compliance with Service Covenant Not Excused for any Reason. Commencing on the Commencement Date, the obligations of the County to duly observe and comply with the Service Covenant shall apply continuously and without interruption for the Term of this Agreement. In the event that any Change in Law 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 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.
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) Waste that is delivered by any party which has not executed a Waste Disposal Agreement; and
(5) Controllable Waste consisting primarily of construction and demolition debris or inerts which may cause a particular facility's daily tonnage limit to be exceeded 12 Execution Copy
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(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 Disposal System, and may require that the Franchise Hauler remove any Unacceptable Waste from such vehicle before it is urdoaded.
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 Disposal 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 Disposal System.
(C) HAzardous Waste and Hazardous Substances. The parties acknowledge that the Disposal System has not been designed or permitted, and is not intended to be used in any manner or to any extent, for the handling, transportation, storage or disposal of Hazardous Waste or Hazardous Substances. Neither the County nor the City shall countenance or knowingly permit the delivery of Hazardous Waste or Hazardous Substances to the Disposal System.
(D) Disposal of Unacceptable Waste and Hazardous_ Waste. If Unacceptable Waste or Hazardous Waste is discovered in a vehicle at any landfill within the Disposal 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 landfill within the Disposal 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 landfill within the Disposal System, the Department shall take immediate action in accordance with Applicable Law.
(E) wee Separated_Household Hazardous Waste. The County shall maintain, as part ofthe Disposal 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 services relating to Source -Separated Household Hazardous Waste with respect to cities which are not parties to a Disposal 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 Disposal System's viability; provided, however, if the County chooses to reduce services, the County shall nonetheless continue to expend funds for the Source -Separated Household Hazardous Waste Disposal System each year during the term of this Agreement in an amount at least equal to the amount of funds expended for the Source -Separated Household Hazardous Waste Disposal System during fiscal year 2006-07 as adjusted by changes in the Producer Price Index.
SECTION 3A 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 waste, 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 m 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). 13 Excadien Copy
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SECTION 3.5 MISCELLANEOUS OPERATIONAL MATTERS.
(A) Operating Hours. The County shall keep the Disposal System open for the receiving of Controllable Waste during such regular operating hours as may be established by the Department in the operating rules and regulations applicable to the Disposal System. The County shall utilize best efforts to maintain substantially similar hours, as were in effect on January 2, 2009, for the receipt of waste through the term of this Agreement (subject to Applicable Law).
(B) Scalgg and Wgiding. The Department shall operate and maintain permanent scales at the Disposal System. 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 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 Disposal 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 20091. On or before [120 DAYS AFTER BOARD APPROVAL], the County shall have the right to &ter into waste disposal 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, Sanitary Districts, Transfer Stations and Independent Haulers, which waste disposal agreements shall have terms and provisions substantially identical to the terms and provisions of this Agreement; provided, however, that in no event shall such agreements have terms and provisions more favorable than the terms and provisions of this Agreement (including but not limited to the Contract Rate and availability of disposal capacity).
(B) After 2009. After [120 DAYS AFTER BOARD APPROVAL), the County shall have the right to enter into waste disposal agreements with Orange County entities, including any city, Sanitary District, Transfer Station and Independent Hauler, 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 Posted Disposal Rate at least 10% higher than the Contract Rate unless the County determines it is in the best interest of the Disposal System to establish a Posted Disposal Rate less than 10% higher than the Contract Rate. In no event shall the Posted Disposal Rate be equal to or less than the Contract Rate. In addition, the County shall reserve the right in any such waste disposal agreement at any time, to the extent permitted by Applicable Law, to refuse to receive and dispose of Acceptable Waste from any city, County Sanitary District, Transfer Station and Independent Hauler if and to the extent that such receipt and disposal may materially and adversely affect the ability of the County to comply with its obligations to the Participating Cities under the Disposal Agreements to which each is a party. (C) Receipt of Imported Acceptable
Waste on a Contract Basis. The County shall have the right to enter into a contract or other agreement with any municipal or private non -County 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 Disposal System for the benefit of the County and the Participating Cities and to generate Net Import Revenues. 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 Disposal Agreements throughout the Term thereof. The term of any such agreement for the disposal of Imported Acceptable Waste shall end by the later to occur of (i) December 31, 2015 or (ii) the date on which County general purpose revenues are no longer expended to pay debt service on the Orange County Public 14 Execution Copy
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Financing Authority Lease Revenue Refunding Bonds Series 2005, but in no event later than the last day of the fiscal year commencing July 1, 201 S.
(D) Self Haulers. The City and the County acknowledge that Self -Haulers shall be entitled to deliver Self -Hauled Waste to the Disposal 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) Application and Use of Revenues From Other Users. All revenues received by the County from the disposal of County Acceptable Waste by the Disposal System, and all revenues received by the County from the disposal of Imported Acceptable Waste by the Disposal System, shall be deposited by the County in the County OC Waste & Recycling Enterprise Fund and shall constitute revenues of the Disposal System.
Pursuant to the County's Plan of Adjustment, the County is entitled to receive net revenues (after payment of all costs attributable to the acceptance of such Imported Acceptable Waste at the Disposal System) ("Net Import Revenues") from the disposal of Imported Acceptable Waste by the Disposal System, and such Net Import Revenues may be used for the payment of bankruptcy related obligations in accordance with the Plan of Adjustment.
Costs attributable to the disposal of Imported Acceptable Waste include deposits to the Environmental Fund, deposits to closure and postclosure reserves, City host fees (if applicable), incremental operating costs (such as manpower expenditures, equipment, services and supplies expenditures), state surcharges, and a pro rata share of capital project costs. The parties acknowledge that their intention in determining to allow the importation of Imported Acceptable Waste for disposal by the Disposal System is to stabilize the Contract Rate at rates below those which would otherwise prevail in the absence of such importation.
SECTION 3.7 COUNTY PROVISION OF WASTE DIVERSION SERVICES. (A) County -Wide Recycling Services. This Agreement does not require the County to provide for any source reduction, materials recovery, recycling, composting, or other waste diversion services by the County nor any payment therefor by the City, by Franchise Haulers or by ratepayers; provided, however, any County -Wide Recycling Services may be fimded through the County OC Waste & Recycling Enterprise Fund. Any such recycling services may be expanded, contracted or modified by the County at any time in its sole discretion. (B) 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, Sanitary Districts, Transfer Stations, 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 Disposal Agreements and shall not be funded through the general revenues of the Disposal System.
ARTICLE N
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 and disposal of Controllable Waste delivered to the System by any 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) EstabliabMMt of Co tract Rate. The Contract Rate payable by each Franchise Hauler shall be (x) $22.00 per ton from the Commencement Date through June 30, 2010, and (y) $29.95 per ton on and after July 1, 2010, in both cases contingent on the delivery to the Disposal System of an amount of Acceptable Waste at 15 Execution Copy
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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:
(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 Manges 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; or
(iii) tonnage shortfalls to the extent permitted by Sections 4.2(B); (iv) average annual inflation prior to July 1, 2010 in excess of the levels set forth in Section 4.2(H) and escalation pursuant to Section 4.2(F) ; (v) increased costs incurred by the County (in excess of available insurance proceeds) due to the occurrence of one or more Changes in Law; or (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.
Prior to adjusting the Contract Rate as a result of any of the circumstances described in clauses (i), (ii) or (iii) above, the County shall utilize the following remedies in the following order of priority:
(x) reduce the costs of operating the Disposal System to the extent practicable; and (y) utilize Unrestricted Reserves to pay costs of the Disposal 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 (iv), (v) or (vi) 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 it will evaluate the feasibility of long term financing for significant capital costs where appropriate.
(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:
the Disposal System;
(i) reduce the costs of operating the Disposal System to the extent practicable; (ii) utilize Restricted Reserves described in clause (iii) of Section 4.5 to pay costs of (iii) utilize Unrestricted Reserves to pay costs of the Disposal 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 60 days written 16 Execution Copy
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notice to the City. In addition, in the event that 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 250% 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 may be given as a credit or adjustment to the Contract Rate for future deliveries, rather than a lump sum payment.
(E) 5necial Charges. Notwithstanding Section 4.2(A), the County shall have the right to impose special charges for the receipt of bard to handle materials, such as bulky materials, construction and demolition debris, tree stumps and sludge. Such special charges shall be calculated to reflect the reasonable incremental costs to the County of accepting such hard to handle materials. 1n addition, in the event that the Board of Supervisors of the County makes a determination to implement a facility (including but not limited to a transfer station, landfill, conversion technology facility, or a materials recovery or processing facility), which facility would be intended to provide for disposal alternatives after the closure of one or more of the landfills currently operating within the Disposal System, the County may impose an additional charge of $0.50 per ton of Acceptable Waste in order to pay the costs of the study, development, planning, construction and/or operation of such facility.
Adjustments pursuant to this Section 4.2(E) shall not require compliance with the provisions of Section 4,2(I).
(F) Escalation, The Contract Rate shall be adjusted each July 1, beginning July 1, 2011. The change will be equal to the positive percentage change in the Consumer Price Index — All Urban Consumers, U.S. city average, All items, Not Seasonally Adjusted, Series ID CUUROONSAO ("CPI") as measured from the October 21 months prior to the rate adjustment to the October immediately preceding the rate adjustment. For example: The July 1, 2011 rate adjustment shall be based upon the index change from October 2009, to October 2010, referred to as year 1 and year 2 respectively in the following example.
Formula to calculate percentage change in the Contract Rate:
Step 1:
October Year 2 CPI
October Year 1 CPI
I- 1 = % increase in Contract Rate
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, 2011, the County shall provide the City with notice of the adjustment to the Contract Rate to he effective the following July 1. Such notice shall contain the calculation of the adjustment set forth above. The County will calculate the new Contract Rate each year.
In the event that the change in the CPI is negative, 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 I" in calculating the change in the Contract Rate. 17 Execution Copy
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For example, if the CPT is measured as follows: October 2009 = 205, October 2010 = 204, October 2011 = 201, October 2012 = 208, then there would be no adjustment in July 2011, or July 2012, and an adjustment equal to the change from 205 to 208 would be implemented on July 1, 2013.
Adjustments pursuant to this Section 4.2(F) shall not require compliance with the provisions of Section
4.2(1).
(G) Adjustment Resulting fromr(�Sreased 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 (i.e., the State's Integrated Waste Management fee, which is currently $1.40 per ton). 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).
(1T) Calculation of Cumulative Inflation Rate. For purposes of Section 4.2(Axiv) for adjustments prior to July 1, 2011, the inflation shall be calculated as the change in the CPI between July of the year of calculation and July 1, 2008. Inflation shall be deemed to exceed the levels set forth below if the ratio between the CPT for July for the year of calculation (calculated in accordance with the formula below) and July 2008 exceeds the ratio corresponding to such year of calculation on the table below. The ratio shall be calculated in accordance with the following formula:
(July CPI of calculation year / CPI for July 2008)
Year of Calculation
Ra do
July 1 2008
1.0000
July 1 2009
1.0356
July 1 2010
1.0723
In the event the CPI is no longer published during the term of this Agreement, such other index identified by the Bureau of Labor Statistics or otherwise generally accepted as a replacement for CPI shall be used for purposes of this Agreement. In the event of an adjustment to the Contract Rate pursuant to this section 4.2(1-1), such adjustment shall be applied to the Contract Rate effective until June 30, 2010, and the Contract Rate effective July 1, 2010.
Adjustments pursuant to this Section 4.2(M shall not require compliance with the provisions of Section
4.2(I).
(1) 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(1). The County shall be required to provide the City with at least 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 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 Disposal 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 Re)ort').
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 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 18 Execution Copy
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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 Rale. 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 far Expedited Judicial Review of Contested Rate Adjustment. In the event that, within 30 days after the effective date of any Contract Rate adjustment made pursuant to Section 4.2(l), Participating Cities which, in the aggregate, accounted for more than 50% of the County Acceptable Waste delivered to the County System in the twelve 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 grange County Superior Court within 45 days of the date on which the Board of Supervisors approves the challenged adjustment to the Contract Rate.
(2) Within two (2) days of filing the Action, the Challenging Cities shall personally serve on the County Counsel 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. (3) Within fifteen (15) days of the date of service upon the County of the summons and complaint, and Expedited Rate Determination Stipulation, the County Counsel shall execute the Expedited Rate Determination Stipulation and personally serve upon the Challenging Cities through their counsel of record the Expedited Rate Determination Stipulation and its answer to the complaint in the Action. 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 City and the County mutually agree that the duty to execute the Expedited Rate Determination Stipulation and comply with the procedures set forth for Expedited Rate Determination in this Section 4.2(J) shall be, and are hereby deemed to be, ministerial duties which the law specifically enjoins upon each of them, and shall be subject to enforcement by the parties herein pursuant to Code of Civil Procedure Section 1085, et seq., or by means of a complaint for specific performance.
(4) Within three (3) days of the date of service by the County upon the Challenging Cities of the fully signed Expedited Rate Determination Stipulation, the County and the Challenging Cities shall jointly make ex parte application to the Orange County Superior Court in the Action for the issuance of the order contained in the Expedited Rate Determination Stipulation. At such ex parte application, the County and the Challenging Cities shall also seek to confirm with the Orange County Superior Court the briefing schedule, and request a hearing 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 personally serve upon the County 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 o& 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 Hoard of Supervisors and the Orange County 19 Execs dioo Copy
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Waste Commission, the transcript of the proceedings of the Board of Supervisors meeting and the Orange County Waste Commission, the minutes of the Board of Supervisors and the Orange County Waste Commission meeting, and the resolution and/or other documentation evidencing action by the Board of Supervisors and the Orange County Waste Commission to adjust the Contract Rate pursuant to Scetion4.2(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 personally serve upon the Challenging Cities the County's opposition brief. The opposition brief shall not exceed 15 pages in length. (7) Within five (S) days of service by the County upon the Challenging Cities of the opposition brief, the Challenging Cities may file and personally serve upon the County a rebuttal brief, which shall not exceed 10 pages in length.
(8) The trial of the Expedited Rate Determination shall be conducted as a hearing which shall be conducted at the date set by the court in the ex parte hearing 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 issue its written statement of decision and enter judgment within thirty (30) days of the date of the smearing in the Expedited Rate Determination. (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 30 days of the date of the statement of decision, reimburse to the City the amount improperly imposed, together with interest calculated at the highest percentage rate that does not constitute usury under California laws. Such reimbursement may be made in the form of a reduction in the Contract Rate for a future period (not to exceed twelve months) reasonably calculated to provide full reimbursement of the amounts described above. (12) If for any reason the court does not sign the order contained in the Expedited Rate Determination Stipulation, the City shall, within 30 days of the court's denial of such requested order, file with the court and personally serve upon the County a motion for summary judgment and/or motion for judgment on the pleadings, in accordance with Code of Civil Procedure Section 437(c) and 438. By executing this Agreement, the parties hereby stipulate that, in the event that the Challenging Cities file such summary judgment motion and/or motion for judgment on the pleadings, the Record shall be deemed to have been incorporated into the complaint and answer filed by the Challenging Cities and the County, and no evidence outside of the Record is relevant or material to the dispute raised in the Expedited Rate Determination. The briefing schedule and hearing on such motion for summary judgment and/or motion for judgment on the pleadings shall be in accordance with Code of Civil Procedure Section 437(c). 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). (13) In the event that the court both does not sign the order contained in the Expedited Rate Determination Stipulation and either does not bear or does not issue a ruling on the merits on the motion for summary judgment and/or judgment on the pleadings which is dispositive of the issues, claims and causes of action in the complaint filed by the Challenging Cities, the County and the Challenging Cities shall, within twenty days following the issuance of the Court's order or decision not to honor the parties' stipulation or not to hear the parties' motion for summary judgment, make application to the Presiding Judge of the Orange County 20 Execution Copy
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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 (13). 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. (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 Disposal System or (2) the City uses non -municipal Franchise Haulers for collection but nonetheless elects to pay the Contract Rate from City revenues, the City, as its own Franchise Hauler, shall have direct responsibility for payment of the Contract Rate, and shall take all such budgetary, appropriation and other action as may be necessary to provide for the timely payment of the Contract Rate. 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. To the extent provided in Section 7.5 hereof, the obligation of the City for such Contract Rates shall be limited to amounts in the City's Solid Waste Enterprise Fund.
From the Commencement Date to the date of expiration or termination of this Agreement, the obligation to the City to pay the Contract Rate, to the extent the City rather than Franchise Haulers is responsible directly for payment and provided that the Service Covenant has been complied with, shall be absolute and unconditional and shall not be subject to delay or diminution by reason of set-off, abatement, counterclaim, existence of a dispute or otherwise. (B) PgMent by Franc lam„ aulers. With respect to Controllable Waste delivered by Franchise Haulers other than City municipal collection forces, the obligation to pay the Contract ]tate shall rest with such Franchise Haulers and not with the City and, unless the City has agreed with the County to be responsible for Franchise Hauler payments, the City shall not be financially responsible for any delay or failure by such Franchise Hauler to pay the Contract Rate or any portion thereof when due. In the event of any such failure, the County and the City shall cooperate with each other and use their best efforts to obtain timely payment. 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) Di Utes. 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 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 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. The County shall continue to bill Contract Rates 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 RESTRI D RESERVES. For purposes of this Agreement, "ResWeted Reserves" means cash and other reserves of the Disposal 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 Disposal System pursuant to any Applicable Law, contract, adopted budget, budgetary policy of the County with respect to the Disposal 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 21 Execution Copy
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Unrestricted Reserves or other funds of the County attributable to the Disposal System. "Restricted Reserves" shall include, but not be limited to, the following:
(i) reserves for closure of components of the Disposal System to the extent required by Applicable Law;
(ii) amounts reserved by the County for funding of post closure maintenance and monitoring with respect to components of the Disposal System,- (iii)
ystem;(iii) reserves established to protect the Disposal 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 Disposal 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 the State Integrated Waste Management Board);
(vd) reserves required to meet bond covenants pursuant to financing agreements for Disposal 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) AB939 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 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 Disposal System, the Disposal Services, and the fiscal activities of the County OC Waste Disposal Enterprise Fund, and including statements in reasonable detail of the financial condition of the County 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 Disposal 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:
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0 County Acceptable Waste, in tons;
2. Imported Acceptable Waste, in tons;
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.
5. Projected liabilities for closure and post closure as well as reasonable reserves for other environmental costs.
The purpose of the Ten -Year Financial Projection is to keep the City fully informed about the future financial condition of the Disposal System. The County shall cause a copy of the Ten -Year Financial Projection to be delivered to the City 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
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 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 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 repeated 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 90 days from the date of the notice given pursuant to clause (1) of this subsection (but if the 23 Execution Copy
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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 repeated failure or refusal by the City 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 County the right to terminate this Agreement for cause under this subsection unless.,
(1) The County has given prior written notice to the City stating that a specified failure or refusal to perform exists which will, unless corrected, constitute a material breach of this Agreement on the part of the City and which will, in its opinion, give the County right to terminate this Agreement for cause under this subsection unless such breach is corrected within a reasonable period of time, and (2) The City has neither challenged in an appropriate forum (in accordance with Section 5.5) the County's conclusion that such failure or refusal to perform has occurred or constitutes a material breach of this Agreement nor corrected or diligently taken steps to correct such breach within a reasonable period of time not more than 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.
SECTION 5.5 FORUM FOR DISPUTE RESOLUTION. It is the express intention of the parties that all legal actions and proceedings related to this Agreement or to the Disposal System or to any rights or any relationship between the parties arising therefrom shall be solely and exclusively initiated and maintained in courts of the State of California having appropriate jurisdiction.
ARTICLE VI
TERM
SECTION 6.1 EFFEf,TTVE 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, 2020, 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) Wion to Renew. This Agreement shall be subject to renewal by mutual agreement of the parties, on or before June 30, 2018, for an additional term of ten years (the "Renewal Term") on the same terms and conditions as are applicable during the Initial Term hereof. The City shall give the County written notice of its irrevocable election to renew this Agreement on or before June 30, 2017. If the parties do not renew this Agreement by June 30, 2018, the Agreement shall expire on June 30, 2020. (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(B), the parties shall, on or before Jane 30, 2018, negotiate an applicable change in the Contract Rate for such renewal term. In determining any revisions to the 24 Execution Copy
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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) changes in transportation and technology;
(vi) closure and expansion of nearby landfills;
(vii) capacity of the Disposal System; and
(viii) available reserves which are in excess of the amount reasonably required as reserves.
(D) Survival, Accrued Ra ►is. The rights and obligations of the parties hereto pursuant to Sections 3.1(Ex2X 5.1, 5.3, 5.5, 7.2, 7.3, 7.5, 7.7, 7.8, 7.9, and 7.10 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) Obli ati n arii for t"he Commenizement Date. The parties acknowledge that the Disposal 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.
(B) Condition to the Commencement Date. The Commencement Date for the Agreement shall be the date on which the percentage of the County's Acceptable Waste attributable to Participating Cities which have executed and delivered Disposal Agreements shall exceed 85% percent (using the percentage rates attributed to such Cities in Appendix 1). 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 Disposal 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.
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(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. If any such City executes a Disposal Agreement and meets the applicable condition provided in subsection 6.2(B) hereof within 180 days following the date of its municipal incorporation, then such City shall be entitled to execute a Waste Disposal Agreement on substantially the same terms and conditions as this Agreement (including the Contract Rate), notwithstanding the limitations contained in Section 3.6(B). (E) Failure of Condition. If by s 20 DAYS AFTER BOARD APPROVAL], or such later date as the County may agree, the condition to a Commencement Date specified in this Section is not satisfied, either patty 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.
Notwithstanding anything in this Agreement to the contrary, in the event that this Agreement is terminated pursuant to this Section, the provisions of the Original WDA shall remain in full force and effect on the terms and conditions set forth therein.
ARTICLE VII
GENERAL PROVISIONS
SECTION 7.1 OPERATION AND MAINTENANCE OF THE DISPOSAL 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 Disposal System in accordance with Applicable Law and the operating rules and regulations of the Department.
SECTION 7.2 UNCONTROLLaLE CIRCUMSTANCES ONERALLY.
(A) Performance Exc.usW. 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) Nglice. 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 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 Disposal System.
While the delay continues, the County or City shall give notice to the other party, before the fust 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 Disposal 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 26 Execution Copy
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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 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 that because of conflict or any other reason 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. 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. 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, and shall, as a condition to this indemnity, coordinate fully with the County in the defense.
SECTION 7.4 RELATIONSHIP OF THE PARTIES. Neither patty 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.
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(A) To the City. Except in the event the City has not established or maintained a City Solid Waste Enterprise Fund, 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.
The sole recourse of the County for all such amounts shall be to the funds held in any such 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 finds 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 7.5 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 disposal of waste in the Disposal System or any other related matter.
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SECTION 7.7 NO VESTED RIGHTS. The City shall not acquire any vested property, license or other rights in the Disposal System by reason of this Agreement.
SECTION 7.8 LIABILITY FOR COLLECTION, TRANSPORTATION AND PROCESSIhLG. Any liability incurred by the City as a result of collecting Acceptable Waste or processing it for diversion from landfill, or as a result of causing, franchising, permitting, licensing, authorizing or arranging any of the foregoing, shall be its sole liability, 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 ASS1,tUJANCES. 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 A T OF AGREEMENT. (A) 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 foregoingt 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 ply.
(B) Sale. The County shall not enter into any agreement for the sale of the Disposal 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 ley.
28 Execution Copy
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APPENDIX 1
ESTIMATED ANNUAL TONNAGE
Execution Copy
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0 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.
Date
COUNTY OF ORANGE
By
Date By
Date By
APPROVED AS TO FORM.-
COUNTY
ORM:COUNTY COUNSEL
ORANGE COUNTY, CALIFORNIA
I'm
Ewoutton copy
Director, OC Waste & Recycling
29 City Representative
City of Newport Beach
[NAME]
City Representative
City of Newport Beach
APPROVED AS TO FORM:
A-'— ff..,
Cifiy Attomev
ATTEST:
z� )
City Clerk
City of Newport Baarh
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0 APPENDIX 1
`J
PERCENTAGE OF COUNTY ACCEPTABLE WASTE ATTRIBUTABLE TO PARTICIPATING CITIES FOR PURPOSE OF SECTION 6.2(b)
Jurisdiction
Percentage of County
Acceptable Waste
Anaheim
13.4%
Santa Ana.
10.60/a
Irvine
7.5%
Huntington Beach
6.0%
e
5.8%
Garden Grove
5.1%
Fullerton
4.5%
Unincorporated Orange County
4.3%
Costa Mesa
3.6%
Newport Beach
3.0%
Lake Forest
2.61/11D
Buena Park
2.5%
Mission Viejo
2.3%
Westminster
2.3%
Yorba Linda
2.3%
Brea
2.1%
Tustin
2.0%
cypress
1.9%
La Habra
1.8%
San Clemente
1.7%
Fountain Valley
1.6%
Laguna Niguel
1.6%
Placentia
1.6%
San Juan Ca istrano
1.6%
Laguna Beach
1.4%
Dana Point
1.2%
Stanton
1.10/0
Rancho Santa Margarita
1.00/0
Laguna Hills
0.9%
Seal Beach
0.8%
Aliso Viejo
0.7%
Los Alamitos
0.5%
La Palma
0.3%
LagunaWocds
0.2%
Villa Park
0.2%
Total
100%
(1) Unincorporated County 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. (2) A Participating City will only be included for purposing of determining the Commencement Date upon (i) execution of a Waste Disposal Agreement by that Participating City and (ii) execution of a Hauler Acknowledgement(s) by the Franchise Hauler(s) operating widnin such Participating City
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0 APPENDIX 2
0 Cumulative County Acceptable Waste Tonnage Target to be Used for Purposes of Section 41(B)
Fiscal Year
County Acceptable Waste
Cumulative County
Tonnage
Acceptable Waste Tonnage
FY 2008-09
3,170,387
3,174,387
FY 2009-10
3,092,806
6,263,193
FY 2010-11
3,185,590
9,448,783
FY 2011-12
3,344,870
12,793,653
FY 2012-13
3,445,216
16,238,869
FY 2013-14
3,514,120
19,752,989
FY 2014-15
3,549,262
23,302,251
FY 2015-16
3,565,608
26,867,859
FY 2016-17
3,582,033
30,449,892
FY 2017-18
3,598,535
34,048,427
FY 2018-19
3,615,115
37,663,542
FY 2019-20
3,631,774
41,295,316
Exertion Copy
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0 APPENDIX 3
CUMULATIVE CAPITAL COSTS
to be Used
for Purposes of Section 42(A)vi
0 Fiscal Year
(ending June 30
Annual Capital Costs
Cumulative Capital Costs
2009
$37,239,538
$37,939,538
2010
$59,343,405
$97 82,943
2011
$10,433,978
$107,716,921
2012
$13,078,113
$121 95 034
2013
$17.525,040
$138,920074
2014
$11,259,519
$150,179,592
2015
$37,682,758
$187,862,350
2016
$5,W,800
$192,931,1
2017
$10,662,265
$203,593,415
2018
$29,397,698
$232,991 113
2019
$8,263,795
$241,254,2 US
2020
$45103,805
$286 58.713
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0 FRANCHISE HAULER ACKNOWLEDGMENT
THIS FRANCHISE HAULER ACKNOWLEDGMENT, dated as of , 2009 (the "Acknowledgment"), by and between the City of (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, Orange County (the "County") owns, manages and operates a sanitary landfill disposal system for municipal solid waste generated within the County; and WHEREAS, the City and the County have heretofore entered into a Waste Disposal Agreement, dated as of '20D9 (the "Disposal Agreement') determining that the execution of such Disposal Agreement will serve the public health, safety and welfare of the residents of the City and County, by maintaining public ownership and stewardship over the Orange County Landfill Disposal System (the "Disposal System"); and WHEREAS, under the Disposal Agreement, the County has agreed to provide long-term disposal of all municipal solid waste generated within the City 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 Disposal System; and WHEREAS, the provisions of the Waste Disposal Agreement which guarantee capacity for the long term disposal 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 Disposal System; and WHEREAS, the City and the Franchise Hauler desire to enter into this Acknowledgment to assure that the City and the Franchise Mauler will be entitled to the benefits of the Waste Disposal Agreement and to assure conformity with the waste delivery obligations which have been agreed to by the City under the Disposal Agreement through the delivery of waste by the Franchise Hauler to the Disposal 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 as provided in the Disposal 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 Disposal Agreement.
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0 0
2. The Franchise Hauler hereby waives any right which it may possess under applicable law to contest on any ground, constitutional, statutory, case law, administrative or otherwise, (a) the right, power or authority of the County or the City to enter into or perform their respective obligations under the Disposal Agreement, (b) the enforceability against the County or the City of the Disposal Agreement, or (c) the right, power or authority of the City to deliver or cause the delivery of all Controllable Waste to the Designated Disposal Facility 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 Disposal System, and shall otherwise assist the City in complying with its obligations under the Waste Disposal Covenant in Section 3.1 of the Disposal Agreement.
5. 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 Designated Disposal Facility in compliance with the Waste Disposal Covenant. & The Franchise Hauler shall pay the Contract Rate imposed by the County at the Designated Disposal Facility for the disposal of all Controllable Waste, which rate shall be subject to potential adjustment necessary to reflect the circumstances set forth in the Disposal Agreement.
7. Nothing in this Acknowledgment is intended to restrict any right or responsibility explicitly given the Franchise Hauler in the Franchise to recycle City Acceptable Waste, except as provided in paragraph 5 above with respect to Residue from any such recycling operations.
8. The obligations of the Franchise Hauler under this Acknowledgment shall apply notwithstanding any provision of the Franchise which may conflict herewith.
9. 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.
10. This Acknowledgment shall be in full force and effect and shall be legally binding upon the City and Franchise Hauler from the dated 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 Disposal Agreement.
11. The City and 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.
12. The Hauler agrees to assist the County in verifying tonnage collected by the Franchise Hauler and providing information required by the County. 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), and by facility to which it was delivered (specify which landfill or transfer station). Hauler will provide customer service levels and route lists, 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.
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E
0 IN WITNESS WHEREOF, the parties have caused this Acknowledgment to be executed by their duly authorized officers or representatives as of day of 2009.
CITY OF
Signature:
Printed Name:
Title:
(Franchise Hauler)
Signature:
Printed Name:
Title -
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CITY OF NEWPORT BEACH APR ' 709
CITY COUNCIL STAFF REPORT
c-4tq �L
Agenda Item No. 19
April 28, 2009
TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL
FROM: Homer Bludau, City Manager
9491644-3000 or hbludau(@acity.newport- beach.ca.us
Mark Hannon, General Services Director
949-644-3061 or [email protected]
SUBJECT: Approval of Ten Year Agreement with the County of Orange for the Disposal of Municipal Solid Waste
ISSUE:
Should the City Council approve the attached Agreement with the County of Orange for the disposal of solid waste in the County's landfill disposal system for the term of July 1, 2010 to June 30, 2024?
RECOMMENDATION:
Approve the ten-year agreement with the County of Orange (July 1, 2010 through June 30, 2020) for the delivery of all controllable municipal solid wastes from the City to the County landfill disposal system, thereby ensuring a long -temp, reliable and cost competitive disposal source for the CiWs municipal solid waste.
DISCUSSION:
Background:
In 1997, the County and cities of Orange County entered into disposal agreements for a fixed rate per -ion for the disposal of solid waste in the Countys landfill disposal system. The term of the agreement with Newport Beach and all Orange County cities will expire on June 30, 2010. Since late 2006, personnel representing the County's Waste and Recycling Division and a Committee of the Orange County City Manager's Association have worked to negotiate another multi-year agreement to fulfill city waste disposal needs and provide for the 20-347
Orange County Waste Disposal Agreement
April 28, 2009