AGREEMENT WITH EEC ENVIRONMENTAL TO PROVIDE ON-CALL WATER
RESOURCES CONSTRUCTION MANAGEMENT AND INSPECTION SERVICES
THIS AGREEMENT is made and entered into on this 20th day of May, 2025 by and between EEC Environmental, a California corporation (“Consultant”), and the City of Santa Ana, a charter city and municipal corporation organized and existing under the Constitution and laws of the State of California (“City”).
RECITALS
A. On January 14, 2025, the City issued Request for Proposal (“RFP”) No. 25-011, by which it sought Consultants to provide on-call water resources construction management and inspection services on behalf of the City of Santa Ana’s Public Works Agency.
B. Consultant submitted a responsive proposal that was among those selected by the City.
Consultant represents that it is able and willing to provide the services described in the scope of work that was included in RFP No. 25-011, which is attached hereto as Exhibit A. Consultant’s responsive proposal to RFP No. 25 -011 shall be incorporated herein by reference as though fully attached to this Agreement.
C. Consultant was selected as one of six (6) vendors which qualified for this engagement.
Only those consultants approved by the City Council on May 20, 2025 shall be eligible to be engaged by the City for these services.
D. In undertaking the performance of this Agreement, Consultant represents that it is knowledgeable in its field and that any services performed by Consultant under this Agreement will be performed in compliance with such standards as may reasonably be expected from a professional consulting firm in the field.
NOW THEREFORE, in consideration of the mutual and respective promises, and subject to the terms and conditions hereinafter set forth, the parties agree as follows:
1. SCOPE OF SERVICES
On an on-call basis, and the City’s sole discretion, Consultant shall perform during the term of this Agreement, the tasks and obligations including all labor, materials, tools, equipment, and incidental customary work required to fully and adequately complete the services described and set forth in Scope of Services - Exhibit A, attached hereto and incorporated herein.
2. COMPENSATION
a. City neither warrants nor guarantees any minimum or maximum compensation to Consultant. Consultant shall be paid only for actual services performed under this Agreement at the rates and charges ident ified in Exhibit B, attached hereto and incorporated herein. Consultant is one of six (6) consultants selected under RFP 2 5- 011. The total compensation for these services provided by all such consultants selected under RFP 25-011 shall not exceed the share d aggregate amount of One Million Five
City Council
20 –
94 5/20/2025
Hundred Thousand Dollars ($ 1,500,000.00) during the term of the Agreement, including any extension periods.
b. Payment by City shall be made within forty-five (45) days following receipt of proper invoice evidencing work performed, subject to City accounting procedures. City and Consultant agree that all payments due and owing under this Agreement shall be made through Automated Clearing House (ACH) transfers. Consultant agrees to execute the City’s standard ACH Ven dor Payment Authorization and provide required documentation. Upon verification of the data provided, the City will be authorized to deposit payments directly into Consultant’s account(s) with financial institutions.
Payment need not be made for work which fails to meet the standards of performance set forth in the Recitals which may reasonably be expected by City.
3. TERM
This Agreement shall commence on the date first written above for a three (3) year term with the option for the City to grant up to two (2), one (1) year renewals, exercisable by a writing by the City Manager and the City Attorney, unless terminated earli er in accordance with Section 15, below.
4. INDEPENDENT CONTRACTOR
Consultant shall, during the entire term of this Agreement, be construed to be an independent contractor and not an employee of the City. This Agreement is not intended nor shall it be construed to create an employer -employee relationship, a joint venture relationsh ip, or to allow the City to exercise discretion or control over the professional manner in which Consultant performs the services which are the subject matter of this Agreement; however, the services to be provided by Consultant shall be provided in a manner consistent with all applicable standards and regulations governing such services. Consultant shall pay all salaries and wages, employer's social security taxes, unemployment insurance and similar taxes relating to employees and shall be responsible for all applicable withholding taxes.
5. OWNERSHIP OF MATERIALS
This Agreement creates a non -exclusive and perpetual license for City to copy, use, modify, reuse, or sublicense any and all copyrights, designs, and other intellectual property embodied in plans, specifications, studies, drawings, estimates, and other documents or works of authorship fixed in any tangible medium of expression, including but not limited to, physical drawings or data magnetically or otherwise recorded on computer diskettes, which are prepared or caused to be prepared by Consultant under this Agreement (“Documents & Data”). Consultant shall require all subcontractors to agree in writing that City is granted a non -exclusive and perpetual license for any Documents & Data the sub contractor prepares under this Agreement.
Consultant represents and warrants that Consultant has the legal right to license any and all Documents & Data. Consultant makes no such representation and warranty in regard to Documents & Data which were provided to Consultant by the City. City shall not be limited in any way in its use of the Documents and Data at any time, provided that any such use not within
City Council
20 –
95 5/20/2025
the purposes intended by this Agreement shall be at City’s sole risk.
6. INSURANCE
Prior to undertaking performance of work under this Agreement, Consultant shall maintain and shall require any subcontractors to obtain and maintain insurance as described below for the entire Term of this Agreement against claims for injuries to persons or damage to property which may arise from or in connection with services, products and materials supplied to City. Total cost of such insurance shall be borne by Consultant.
Minimum Scope and Limit of insurance.
• Commercial General Liability (CGL) : Insur ance Services Office Form CG 00 01covering CGL on an “occurrence” basis, including products and completed operations, property damage, bodily injury and personal & advertising injury with limits no less than $2,000,000 per occurrence and $4,000,000 aggrega te. Required policy limits can be met with primary and umbrella/excess insurance policies. • Automobile Liability: Insurance Services Office Form CA 00 01 covering Code 1 (any auto), with limits no less than $1,000,000 combined single limits. In the event Consultant does not maintain commercial automobile liability insurance, City will accept evidence of personal automobile insurance.
• Workers’ Compensation: as required by the State of California, with Statutory Limits, and Employer’s Liability Insurance with limit of no less than $1,000,000 per accident, policy or employee, for bodily injury or disease. Coverage is not required if Consultant has no employees and signs request to waive such insurance. • Professional Liability Insurance: with limits no less than $1,000,000 per occurrence or claim, and $2,000,000 aggregate.
• If Consultant maintains broader coverage and/or higher limits than the minimum requirements for each line of coverage shown above, City requires and shall be entitled to the broader coverage and/or the higher limits maintained by Consultant. Any available insurance proceeds in excess of the specified minimum limits of insurance and coverage shall be available to City.
Other Insurance Provisions. The above required insurance policies are to contain or be endorsed to contain the following provisions:
• City, its City Council, its officers, officials, employees, agents, and volunteers are to be covered as additional insureds, under Consultant’s CGL, Professional Liability, and Automobile Liability policies, with respect to any liability arising out of work or operations performed by or on behalf of the Instructor including materials, parts, equipment, and personnel furnished in connection with such work or operations. • Consultant’s Insurance company(ies) agrees to waive all rights of subrogation against City, its City Council, its officers, officials, employees, agents, and volunteers for losses paid under the terms of any policy which arise from work performed by Consultant under this Agreement.
• For any claims related to this contract, Consultant’s insurance coverage shall be primary and any insurance maintained by City, its City Council, its officers, officials, employees, agents, or volunteers shall not contribute with it.
City Council
20 –
96 5/20/2025
• A severability of interest provision must apply for all the additional insureds, ensuring that Consultant’s insurance shall apply separately to each insured against whom a claim is made or suit is brought, except with respect to the insurer’s limits of liability. • Insurance policies required herein shall provide that coverage shall not be canceled, suspended, voided, reduced in coverage or in limits, non -renewed by the carrier, or materially changed except after thirty (30) days prior written notice has been given to City. Ten (10) days prior written notice shall be provided to City for policy cancellation or non-renewal due to non-payment of premium.
• Certificate Holder on each Evidence of Insurance certificate shall be: City of Santa Ana, Attention: Public Works Agency, 20 Civic Center Plaza (M -21), Santa Ana, CA 92701. The name and location of project must be included in the Description of Operations section of each certificate.
Self-Insured Retentions. Self-insured retentions must be declared to and approved by the City. The City may require the Consultant to purchase coverage with a lower retention or provide proof of ability to pay losses and related investigations, claim administration, and defense expenses within the retention.
Acceptability of Insurers. Insurance is to be placed with insurers authorized to conduct business in the State of California with a current A.M. Best rating of no less than A:VII, unless otherwise acceptable to City.
Verification of Coverage . Consultant shall furnish City wit h original Certificates of Insurance including all required amendatory endorsements (or copies of the applicable policy language effecting coverage required by this clause) and a copy of the Declarations and Endorsement Page of the CGL policy listing all p olicy endorsements before work begins.
However, failure to obtain the required documents prior to the work beginning shall not waive Consultant’s obligation to provide them. City reserves the right to require complete, certified copies of all required insurance policies, including endorsements required by these specifications, at any time.
Special Risks or Circumstances
City reserves the right to modify these requirements, including limits, based on the nature of the risk, prior experience, insurer, coverage, or other special circumstances.
7. INDEMNIFICATION
Consultant agrees to defend, and shall indemnify and hold harmless the City, its officers, agents, employees, contractors, special counsel, and representatives from liability: (1) for personal injury, damages, just compensation, restitution, judicial or equitable relief arising out of claims for personal injury, including death, and claims for property damage, whic h may arise from the negligent operations of the Consultant, its subcontractors, agents, employees, or other persons acting on its behalf which relates to the services described in section 1 of this Agreement; and (2) from any claim that personal injury, damages, just compensation, restitution, judicial or equitable relief is due by reason of the terms of or effects arising from this Agreement. This indemnity and hold harmless agreement applies to all claims for damages, just compensation, restitution, judicial
City Council
20 –
97 5/20/2025
or equitable relief suffered, or alleged to have been suffered, by reason of the events referred to in this Section or by reason of the terms of, or effects, arising from this Agreement. The Consultant further agrees to indemnify, hold harmless, and pay all costs for the defense of the City, including fees and costs for special counsel to be selected by the City, regarding any action by a third party challenging the validity of this Agreement, or asserting that personal injury, damages, just compensation, restitution, judicial or equitable relief due to personal or property rights arises by reason of the terms of, or effects arising from this Agreement. City may make all reasonable decisions with respect to its representation in any legal proceeding. Notwithstanding the foregoing, to the extent Consultant’s services are subject to Civil Code Section 2782.8, the above indemnity shall be limited, to the extent required by Civil Code Section 2782.8, to claims that arise out of, pertain to, or relate to the negligence, recklessness, or willful misconduct of the Consultant.
8. INTELLECTUAL PROPERTY INDEMNIFICATION
Consultant shall defend and indemnify the City, its officers, agents, representatives, and employees against any and all liability, including cost s, for infringement of any United States’ letters patent, trademark, or copyright infringement, including costs, contained in the work product or documents provided by Consultant to the City pursuant to this Agreement.
9. RECORDS
Consultant shall keep records and invoices in connection with the work to be performed under this Agreement. Consultant shall maintain complete and accurate records with respect to the costs incurred under this Agreement and any services, expenditures, and disbursements charged to the City for a minimum period of three (3) years, or for any longer period required by law, from the date of final payment to Consultant under this Agreement. All such records and invoices shall be clearly identifiable. Consultant shall allow a representative of the City to examine, audit, and make transcripts or copies of such records and any other documents created pursuant to this Agreement during regular business hours. Consultant shall allow inspection of all work, data, documents, proceedings, and activities related to this Agreement for a period of three (3) years from the date of final payment to Consultant under this Agreement.
10. CONFIDENTIALITY
If Consultant receives from the City information which due to the nature of such information is reasonably understood to be confidential and/or proprietary, Consultant agrees that it shall not use or disclose such information except in the performance of this Agreement, and further agrees to exercise the same degree of care it uses to protect it s own information of like importance, but in no event less than reasonable care. “Confidential Information” shall include all nonpublic information. Confidential information includes not only written information, but also information transferred orally, v isually, electronically, or by other means. Confidential information disclosed to either party by any subsidiary and/or agent of the other party is covered by this Agreement. The foregoing obligations of non-use and nondisclosure shall not apply to any information that (a) has been disclosed in publicly available sources; (b) is, through no fault of the Consultant disclosed in a publicly available source; (c) is in rightful possession of the Consultant without an obligation of confidentiality; (d) is required to be disclosed by operation of law; or (e)
City Council
20 –
98 5/20/2025
is independently developed by the Consultant without reference to information disclosed by the City.
11. CONFLICT OF INTEREST CLAUSE
Consultant covenants that it presently has no interests and shall not have i nterests, direct or indirect, which would conflict in any manner with performance of services specified under this Agreement.
12. NON-DISCRIMINATION
Consultant shall not discriminate because of race, color, creed, religion, sex, marital status, sexual orientation, gender identity, gender expression, gender, medical conditions, genetic information, or military and veteran status, age, national origin, ancestry, or disability, as defined and prohibited by applicable law, in the recruitment, selection, teaching, training, utilization, promotion, termination or other employment related activities or any services provided under this Agreement. Consultant affirms that it is an equal opportunity employer and shall comply with all applicable federal, state and local laws and regulations.
13. EXCLUSIVITY AND AMENDMENT
This Agreement represents the complete and exclusive statement between the City and Consultant, and supersedes any and all other agreements, oral or written, between the parties. In the event of a conflict between the terms of this Agreement and any attachments hereto, the terms of this Agreement shall prevail. This Agreement may not be modified except by written instrument signed by the City and by an authorized representative of Consultant. The parties agree that any terms or conditions of any purchase order or other instrument that are inconsistent with, or in addition to, the terms and conditions hereof, shall not bind or obligate Consultant or the City. Each party to this Agreement acknowledges that no representations, inducements, promises or agreements, orally or otherwise, have been made by any party, or anyone acting on behalf of any party, which is not embodied herein.
14. ASSIGNMENT
Inasmuch as this Agreement is intended to secure the specialized services of Consultant, Consultant may not assign, transfer, delegate, or subcontract any interest herein without the prior written consent of the City and any such assignment, transfer, delegation or subcontract without the City's prior written consent shall be considered null and void. Nothing in this Agreement shall be construed to limit the City’s ability to have any of the services which are the subject to this Agreement performed by City personnel or by other Consultants retained by City.
15. TERMINATION
This Agreement may be terminated by the City upon thirty (30) days written notice of termination. In such event, Consultant shall be entitled to receive and the City shall pay Consultant compensation for all services performed by Consultant prior to receipt of such notice of
City Council
20 –
99 5/20/2025
termination, subject to the following conditions:
a. As a condition of such payment, the Executive Director may require Consultant to deliver to the City all work product(s) completed as of such date, and in such case such work product shall be the property of the Ci ty unless prohibited by law, and Consultant consents to the City's use thereof for such purposes as the City deems appropriate.
b. Payment need not be made for work which fails to meet the standard of performance specified in the Recitals of this Agreement.
16. WAIVER
No waiver of breach, failure of any condition, or any right or remedy contained in or granted by the provisions of this Agreement shall be effective unless it is in writing and signed by the party waiving the breach, failure, right or remedy. No waiver of any breach, failure or right, or remedy shall be deemed a waiver of any other breach, failure, right or remedy, whether or not similar, nor shall any waiver constitute a continuing waiver unless the writing so specifies.
17. JURISDICTION - VENUE
This Agreement has been executed and delivered in the State of California and the validity, interpretation, performance, and enforcement of any of the clauses of this Agreement shall be determined and governed by the laws of the State of California. Both parties further agree that Orange County, California, shall be the venue for any action or proceeding that may be brought or arise out of, in connection with or by reason of this Agreement.
18. PROFESSIONAL LICENSES
Consultant shall, throughout the term of this Agreement, maintain all necessary licenses, permits, approvals, waivers, and exemptions necessary for the provision of the services hereunder and required by the laws and regulations of the United States, the State of California, the City of Santa Ana and all other governmental agencies. Consultant shall notify the City immediately and in writing of its inability to obtain or maintain such permits, licenses, approvals, waivers, and exemptions. Said inability shall be cause for termination of this Agreement.
19. NOTICE
Any notice, tender, demand, delivery, or other communication pursuant to this Agreement shall be in writing and shall be deemed to be properly given if delivered in person or mailed by first class or certified mail, postage prepaid, or sent by fax or other telegraphic communication in the manner provided in this Section, to the following persons:
To City:
City Clerk
City of Santa Ana
20 Civic Center Plaza (M-30)
City Council
20 –
100
5/20/2025
P.O. Box 1988
Santa Ana, California 92702-1988
With courtesy copies to:
Executive Director, Public Works Agency
City of Santa Ana
20 Civic Center Plaza (M-21)
P.O. Box 1988
Santa Ana, California 92702
To Consultant:
A party may change its address by giving notice in writing to the other party. Thereafter, any communication shall be addressed and transmitted to the new address. If sent by mail, communication shall be effective or deem ed to have been given three (3) days after it has been deposited in the United States mail, duly registered or certified, with postage prepaid, and addressed as set forth above. If sent by fax, communication shall be effective or deemed to have been given twenty-four (24) hours after the time set forth on the transmission report issued by the transmitting facsimile machine, addressed as set forth above. For purposes of calculating these time frames, weekends, federal, state, County or City holidays shall be excluded.
20. MISCELLANEOUS PROVISIONS
a. Each undersigned represents and warrants that its signature herein below has the power, authority and right to bind their respective parties to each of the terms of this Agreement, and shall indemnify City fully, incl uding reasonable costs and attorney’s fees, for any injuries or damages to City in the event that such authority or power is not, in fact, held by the signatory or is withdrawn. b. All Exhibits referenced herein and attached hereto shall be incorporated as if fully set forth in the body of this Agreement.
[signatures appear on following page]
EEC Environmental
Attn: Jim Kolk, Principal
1 City Blvd. West, Suite 1800
Orange, California 92868
Fax: (714) 667-2310
City Council
20 –
101
5/20/2025
Nabil Saba
Digitally signed by
Nabil Saba
Date: 2025.05.05
16:49:25 -07'00'
City Council
20 –
102
5/20/2025
EXHIBIT A
SCOPE OF SERVICES
City Council
20 –
103
5/20/2025
CITY OF SANTA ANA
C
ONSTRUCTION MANAGEMENT AND INSPECTION SERVICES
RFP NO. 25-011
Introduction/Background
The City of Santa Ana intends to retain qualified professional consultant(s) on an as-needed or “on- call” basis to provide construction management and inspection services. A Professional Services Agreement will be entered into with several of the qualified consultant(s) to provide professional construction management services for a variety of capital improvement projects in the City.
These services will be for a variety of Capital Improvement Projects (CIP) and Rehabilitation & Replacement (R&R) projects to meet the City’s project schedule. A more detailed scope of services is listed in the section below.
The City of Santa Ana plans, designs and manages all aspects of Capital Improvement Projects (CIP) and (R&R) delivery services. Some of the design work is accomplished thru engineering consulting services as part of on-call engineering services. Now, the City would like to incorporate qualified and capable consultants to assist in construction management and inspection services.
All interested parties are required to submit proposals in accordance with the conditions and dates outlined on this request for proposal.
Scope of Services
T
he selected consultant(s) are expected to provide professional construction management and inspection services for capital improvement projects and not limited to:
• Project coordination, management, inspection and oversight • Project constructability review and assistance during design phase • Value Engineering
• Consideration of life cycle costs
• Bidding process review assistance and oversight
• Public engagement and community meetings as necessary • Coordination with local agencies, utility companies and members of the public • Project budgeting, scheduling, cost accounting and reporting (with input from others as required)
• Prepare monthly reporting for project construction status • Propose, develop and implement project quality assurance and quality control programs (QA/QC)
• Prepare, review and process contractor’s requests, payment and invoicing • Review, evaluate and recommend budget cost analysis
• Review, and recommend shop drawings for approval
• Review approval of any specifications and permit requirements
EXHIBIT A
SCOPE OF SERVICES
City Council
20 –
104
5/20/2025
CITY OF SANTA ANA
• Provide field conflict resolutions
• Monitor, guide and advise the City for compliance with state, local and federal funding requirements. Prepare paperwork and compliance reports
• Schedule, prepare agendas, conduct progress meetings, and minutes • Provide and prepare assistance with claim disputes, change order requests and associated construction project litigation
• Maintain project files, records, and contact information related thereto. Use of PROCORE software is a requirement
• Project closeout, including: post-construction debriefing meetings; contractor evaluations, file purging and archiving
• Construction Inspection Services management and oversight • Project commissioning and or owner training
• Any other items required for successful project execution
The Construction manager is responsible for monitoring all the contractor(s) operations and compliance thereof including and not limited to their staff, and/or sub-consultants.
The selected consultant(s) must have the expertise, experience, and demonstrated resources available to perform the work described in this RFP.
Project Management, Equipment/Supplies:
The consultant(s) services shall be in accordance w ith the provisions, guidelines and specifications detailed here in and not limited to professional st andards established by the City, and or federal, st ate and local guidelines.
The consultant(s) shall have project management control procedures in effect during the entire time work is being performed under the Agreement. This task shall include the following:
• Project Management Plan- the consultant shall provide a detail management plan including information and coordination to ensure compliance and completion of the job order tasks • Quality Control/Quality Assurance (QA/QC) Plan
• Project Schedule/Invoicing
• Project Correspondence
In case of conflict, ambiguities, discrepancies, er rors, or omissions, the consultant(s) shall submit the matter to the City for clarification.
City Responsibilities:
The City will provide information in its possession relevant to the preparation of the required information in the RFP. The City will provide only the staff assistance and the documentation specifically in referred to herein.
• Furnish scope of work and provide general direction as needed for the assigned project • All plan check coordination within the City Agencies
• Provide as-built records and project information
City Council
20 –
105
5/20/2025
CITY OF SANTA ANA
• Advertise, award, and administer of contract
• Electronic files (sample plans & specifications, City of Santa Ana’s CADD Standards) if needed
• Resolve all construction claims
Fee Proposal:
In addition to Section V.G.2 (Submittal Requirement s: Cost Proposal) fee schedule shall be structured as follows:
The fee proposal shall include the firm’s standard hourly fee schedule, and/or project fee schedule where applicable and as outlined in this this documents. A list of all positions and hourly rates required to perform the services described he rein. A more detailed scope of work will be provided when/if a specific project or Task Order proposal is requested from the consultant(s).
Other Terms and Conditions:
1. The project will be implemented in compliance with the City of Santa Ana’s policies, as well as Prevailing Wages and State/Federal Requirements. (If applicable)
Consultants are advised to consider whether service s to be performed include classifications subject to state or federal prevailing wage require ments. Prevailing wages will apply if the services to be performed will involve land surveyin g (such as flag persons, survey party chief, rodman or chainman), materials sampling and testing (such as drilling rig operators, pile driving, crane operators), inspection work, soils or foundat ion investigations, environmental hazardous materials and so forth. California State prevailing wage information is available through the California Department of Industrial Relations websi te at http://www.dir.ca.gov.dlsr/statistics_research.html.
Labor categories subject to prevailing wage require ments, when employed for any work on this project, are wholly the responsibility of the firm or individual named in any Professional Services Agreement approved by the City. City will not assum e any responsibility for Consultant’s failure to pay prevailing wages in accordance with State law.
2. The City reserves the right to amend this Request f or Proposal by addendum prior to the final dates of submission.
3. All reports, proposals, or other data or materials which are submitted shall become the sole property of the City of Santa Ana with the exceptio n of the confidential Financial Capacity information and fee proposals.
4. All products used or developed in the execution of any contract resulting from this request will remain in the public domain at the completion of this project.
5. The City has an affirmative action program. The pur pose of the affirmative action program is to encourage certified minority business enterprises a nd women business enterprises. All submitting firms must have established affirmative action programs approvable by the City.
City Council
20 –
106
5/20/2025
CITY OF SANTA ANA
During the RFP stage, all firms will need to complete a “Certification of Non-Discrimination” for each firm on their team.
6. Independent Consultant(s). In accepting this contract, Consultant covenants that it presently has no interest, and shall not acquire any interest, di rect or indirect, financial or otherwise, which would conflict in any manner or degree with the per formance of the services hereunder.
Consultant further covenants that, in the performan ce of this contract, no sub-consultant or person having such an interest shall be employed. C onsultant certifies that to the best of his knowledge, no one who has or will have any financial interest under this contract is an officer or employee of City. It is expressly agreed by Consult ant that in the performance of the services required under this contract, Consultant, and any o f its sub-consultants or employees, shall at times be considered independent consultants and not agents of City.
Sub-consultants:
The Consultant(s) shall be able to assist the City throughout this contract to provide the necessary services described herein. The consultant(s) shall utilize in-house and/or sub-consultant(s) to complete the assignments. For specialized work for which the prime consultant will require a sub- consultant, the prime will serve as the administrat ive liaison between the City and the sub- consultant. The prime consultant mark-up for sub-consultant work shall not exceed 10%.
• Consultant agrees to bind every sub-consultants to the terms of the Agreement Documents as far as such terms are applicable to su b-consultant’s portion of the work.
Consultant shall be as fully responsible to the Cit y for the acts and omissions of its sub- consultants and of persons either directly or indirectly employed by its sub-consultants, as Consultant is for acts and omissions of persons directly employed by Consultant. Nothing contained in these Agreement Documents shall create any contractual relationship between any sub-consultants and the City.
• The City reserves the right to approve all sub-cons ultants. The City’s Approval of any sub-consultant under this Agreement shall not in an y way relieve Consultant of its obligations in the Agreement Documents.
Manuals/Standards:
All construction work shall be performed and in acc ordance with all the procedures and standards as applicable and described in the construction plans and contract specifications, standard provisions an d any local, state and federal requirements, and any other agencies involved.
It is the responsibility of the consultant(s) to verify that all the design guidelines and specifications comply with described documents.
City Council
20 –
107
5/20/2025
EXHIBIT B
COMPENSATION
Fee Proposal including hourly rates if applicable
City Council
20 –
108
5/20/2025
PERSONNEL CHARGES Travel
Labor Classification Hourly Rate
Jr. Staff Engineer/Geologist/Scientist 165$
Staff Engineer/Geologist/Scientist 200$ Field Equipment Sr Staff Engineer/Geologist/Scientist 220$
Project Engineer/Geologist/Scientist - I 255$
Project Engineer/Geologist/Scientist - II 265$
Sr Project Engineer/Geologist/Scientist - I 290 $ Subcontractors and Reimbursables Sr Project Engineer/Geologist/Scientist - II 310 $
Principal Engineer/Geologist 340$
Principal 340$
Project Assistant 155$
Technician 160$ Other Project Charges
Drafter 175$
Sr Technician 180$
Compliance Inspector 180$
Technician GIS/Technology 155$
Analyst GIS/Technology 175$
Sr Analyst GIS/Technology 190$
Specialist GIS/Technology 200$ Shipping and Postage
Sr Specialist GIS/Technology 220$
Supervisor GIS/Technology 240$
Director/GIS Technology 255$
Construction Technician 140$ Interest Charges
Construction Field Supervisor 160$
Construction Manager 175$
Sr Construction Manager 215$
Technical Editor 155$ Payment Terms
Communication/Administration Fee:
A communication/administration fee of 4% will be
added to all invoices.
This Fee Schedule is valid for the entire initial agreement term. This Fee Schedule may be adjusted for follow-on renewal periods. 2025-2028 Fee Schedule
When EEC Staff appear as expert witnesses at court
trials, mediation, arbitration hearings and depositions, their time will be charged at 2.0 times the standard rate.
All time spent preparing for such trials, hearings, and depositions, will be charged at the standard hourly rate.
Vehicles used on project assignments will be
charged at $125 per day. Mileage is billed at the
current rate established by the Internal Revenue
Service plus mark up. Per Diem is billed at a cost of
$95 per day (except in high cost markets, which will
adhere to GSA rates). Airfare, lodging, rental cars
and associated expenses are billed at cost plus
15%.
The costs of subcontractors, materials, equipment
rental and costs incurred will be charged at cost
plus 15%.
The cost of additional report reproduction and
special project accounting will be billed as
appropriate. Plotting plans are charged by size,
black and white or color, and by the number of
Shipping charges include couriers and the postage
necessary will be charged at cost plus 15%.
Interest on late payments will be charged at the rate
of 1.5% per month.
Net 30 days applies to all work performed and
invoiced unless superseded by a specific executed
contract. An administration fee of 3.5% will be
added to any invoice wherepayment is made by
credit card.
Emergency response will be charged at a rate of 1.5
times the standard hourly rate.
The charge for all time required for the performance of the Scope of Work, including office, field and travel
time, will be billed at the hourly rate according to the labor classifications set forth below:
Field Equipment is billed at standard unit costs.
Rate schedules are available upon request.
City Council
20 –
109
5/20/2025
Public Works Agency
www.santa-ana.org/pw
Item # 21
City of Santa Ana
20 Civic Center Plaza, Santa Ana, CA 92701
Staff Report
May 20, 2025
TOPIC: Agreement Amendment for Interagency Emergency Interconnection Study
AGENDA TITLE
First Amendment to Interagency Agreement with the Orange County Water District and Moulton Niguel Water District
RECOMMENDED ACTION
Authorize the City Manager to execute the first amendment to the agreement with Orange County Water District and Moulton Niguel Water District, to extend the term of the agreement to June 30, 2028, and to amend the scope of work to include a final design of the proposed infrastructure based on the preliminary design analysis (Agreement No. A-2025-XXX).
GOVERNMENT CODE §84308 APPLIES: No
DISCUSSION
The Public Works Agency’s (PWA) Water Resources Division oversees and maintains the daily operations of the City’s water distribution system which serves more than 45,000 customer connections. The water system is comprised of approximately 480 miles of water main, 21 groundwater wells, seven pump stations, 10 reservoirs with a storage capacity of 49 million gallons, four pressure regulating stations, and seven connection points to Metropolitan Water District of Southern California (MET) water supplies.
The City pumps approximately 85% of its potable water from the Orange County Groundwater Basin, which is managed by Orange County Water District (OCWD), while the remainder of the City’s potable water needs come from imported water sources via seven MET connections located within the City.
As a result of the City’s investment in water supply capacity, the City’s 2017 Water Master Plan identified that the City’s water system has adequate capacity to supply the City’s maximum daily demands for existing, near-term, and buildout scenarios using only groundwater wells.
City Council
21 –
1 5/20/2025
Agreement Amendment for Emergency Interconnection Study May 20, 2025
5 0
1 9
Moulton Niguel Water District (MNWD), which serves more than 170,000 customers in Laguna Niguel, Aliso Viejo, Mission Viejo, Laguna Hills, Dana Point, and San Juan Capistrano, relies solely on imported MET water to meet its customers’ potable water needs. MNWD is not able to draw from the Orange County Groundwater Basin, as the City of Santa Ana does, because the groundwater basin is only accessible to agencies in northern Orange County that fall within its boundaries. Due to MNWD’s sole reliance on imported water, the district is vulnerable to natural disasters or infrastructure failure that cause outages in the MET system.
On May 17, 2022, City Council approved an Interagency Agreement (Exhibit 1) with OCWD and MNWD to complete a preliminary design study and environmental analysis to identify the needed environmental mitigations and the necessary infrastructure modifications to Santa Ana’s water facilities and distribution system to enable Santa Ana to convey water from the Orange County Groundwater Basin to the water transmission pipeline that supplies south Orange County water agencies in an emergency. Data and information from the study has been used by MNWD to develop a scope of work for a potential program to convey groundwater to MNWD in the event an emergency renders the MET’s water delivery infrastructure incapable of making deliveries. Through this potential program, MNWD would build resiliency and provide improved emergency preparedness benefits for the City through increased groundwater production, upgraded backup power, and other critical water infrastructure improvements. The potential emergency water supplies for MNWD would only be available when conditions would have no adverse impacts to Santa Ana’s water supply operations.
The construction of any facilities recommended as a result of the design, study, and environmental analysis will first require approval by the governing boards of all parties and the development of a subsequent agreement for the construction, operation, and funding of the proposed interconnection. Staff recommends the approval of the recommended action to allow for the preliminary design study and environmental analysis efforts to continue and for final design to begin. There is no cost to the City associated to the study, all costs are borne by MNWD. The City, MNWD, and OCWD reserve the right not to enter into any subsequent agreement after the completion of the study and analysis. (Exhibit 2).
ENVIRONMENTAL IMPACT
There is no environmental impact associated with the action.
FISCAL IMPACT
There is no fiscal impact associated with the action.
City Council
21 –
2 5/20/2025
Agreement Amendment for Emergency Interconnection Study May 20, 2025
5 0
1 9
EXHIBIT(S)
1. Item #30, May 17, 2022 Staff Report
2. Amendment to Interagency Agreement with the Orange County Water District and Moulton Niguel Water District
Submitted By: Nabil Saba, P.E., Executive Director – Public Works Agency Approved By: Alvaro Nuñez, City Manager
City Council
21 –
3 5/20/2025
Public Works Agency
www. santa- ana. org/ pw
Item # 30
City of Santa Ana
20 Civic Center Plaza, Santa Ana, CA 92701
Staff Report
May 17, 2022
TOPIC: Agreements for Water Interconnection Study
AGENDA TITLE
Approve an Appropriation Adjustment, Interagency Agreement with the Orange County Water District and Moulton Niguel Water District to Evaluate a Potential Emergency Interconnection, and Approve an Agreement with Stantec Consulting Services, Inc. in an Amount Not to Exceed $ 200, 000 for a Three- year Term to Conduct a Preliminary Design Study and Environmental Analysis for an Emergency Water Distribution Interconnection Non - General Fund)
RECOMMENDED ACTION
1. Authorize the City Manager to execute an agreement with Orange County Water District and Moulton Niguel Water District for a three- year term beginning on May 17, 2022 and ending on May 16, 2025 to conduct a preliminary design study and environmental analysis for an emergency water distribution interconnection, subject to non -substantive changes approved by the City Manager and City Attorney.
2. Approve an appropriation adjustment to recognize $ 200, 000 in reimbursement obligation funds from MNWD into the Water, Public Works Water Revenue, Expense Reimbursement revenue account and appropriate the same amount into the Water, Water Admin/ Engineering, Contract Services — Professional expenditure account.
Requires five affirmative votes)
3. Authorize the City Manager to execute an agreement with Stantec Consulting Services, Inc., for a three- year term beginning on May 17, 2022, and ending on May 16, 2025, to evaluate a water interconnection with Moulton Niguel Water District, in an amount not to exceed $ 200, 000, subject to non -substantive changes approved by the City Manager and City Attorney.
DISCUSSION
The City' s Water Resources Division oversees and maintains the daily operations of the City' s water distribution system, which serves more than 45,000 customer connections.
The water system is composed of approximately 480 miles of water main, 21 groundwater wells, seven pump stations, 10 reservoirs with a storage capacity of 49 million gallons, City Council 30 — 1 5/ 17/ 2022
EXHIBIT 1
City Council
21 –
4 5/20/2025
Agreements for Water Interconnection Study
May 17, 2022
four pressure regulating stations, and seven connection points to Metropolitan Water District of Southern California ( MET) water supplies.
The City pumps approximately 75 percent of its potable water from the Orange County Groundwater Basin, which is managed by Orange County Water District (OCWD). While the remainder of the City' s potable water needs come from imported water sources via the seven MET connections located within the City.
It is important to note that as a result of the City's investment in water supply capacity, the City' s 2017 Water Master Plan identified that the City' s water system has adequate capacity to supply the City's maximum daily demands for existing, near -term, and buildout scenarios using only groundwater wells.
Moulton Niguel Water District ( MNWD), which serves more than 170, 000 customers in Laguna Niguel, Aliso Viejo, Mission Viejo, Laguna Hills, Dana Point, and San Juan Capistrano, relies solely on imported MET water to meet its customers' potable water needs. MNWD is not able to draw from the Orange County Groundwater Basin, as the City of Santa Ana does, because the groundwater basin is only accessible to agencies in northern Orange County, which fall within its boundaries. Due to MNWD' s sole reliance on imported water, the district is more vulnerable to natural disasters or infrastructure failure that cause outages in the MET system.
As a result, OCWD and MNWD approached the City to conduct a preliminary design study and environmental analysis ( Exhibit 1) to identify the needed environmental mitigations and the necessary infrastructure modifications to Santa Ana' s water facilities and distribution system to enable Santa Ana to convey water from the Orange County Groundwater Basin to the water transmission pipeline that supplies south Orange County water agencies. This information will be used by OCWD and MNWD to develop estimated construction costs and scope of work for a potential program to convey groundwater to MNWD in the event an emergency renders the MET' s water delivery infrastructure incapable of making deliveries. Stantec Consulting Services, Inc. has been selected to assist in the development and review of the preliminary design study ( Exhibit 2) due to their familiarity with the City of Santa Ana' s water system. MNWD will fund all work conducted as a result of this agreement on a reimbursement basis.
The final design and construction of any facilities recommended as a result of the study and environmental analysis will first require approval by the governing boards of all parties and the development of a subsequent agreement for the construction, operation, and funding of the proposed interconnection. The City, MNWD and OCWD reserve the right not to enter into any subsequent agreement after the completion of the study and analysis.
ENVIRONMENTAL IMPACT
There is no environmental impact associated with the action.
City Council 30 — 2 5/ 17/ 2022
City Council
21 –
5 5/20/2025
Agreements for Water Interconnection Study
May 17, 2022
FISCAL IMPACT
As part of the agreement, MNWD agrees to provide all funding required to perform the scope of work and related RFPs identified as part of the agreement, including reasonable City staff time, consultant fees, and legal counsel review of the scope of work deliverables and related RFPs. MNWD will pay the City, on a reimbursement basis, the actual and necessary costs to complete the proposed preliminary design study conducted under the agreement with Stantec. Approval of the requested Appropriation Adjustment will recognize $ 200, 000 in reimbursement obligation funds from MNWD, as outlined in the Interagency Agreement, into the Water, Public Works Water Revenue, Expense Reimbursement revenue account ( 06017002- 57000) and appropriate the same amount into the Water, Water Admin/ Engineering, Contract Services — Professional expenditure account ( 06017645- 62300). Project number 22- 6475 has been issued to track expenditures for reimbursement purposes.
Funds are budgeted and available as shown in the table below.
Accounting Unit, Accounting Unit Fund
Fiscal Year Account Amount
Account # Description
Description
Contract ( 3- Year Term)
Water
2021- 22 06017645- 62300
Water Admin/ Engineering, 25, 000
May -June) 22- 6475) Contract Services -
Professional
Water
2022- 23 06017645- 62300
Water Admin/ Engineering, 130, 000
July -June) 22- 6475) Contract Services -
Professional
Water
2023- 24 06017645- 62300
Water Admin/ Engineering, 35, 000
July -June) 22- 6475) Contract Services -
Professional
Water
2024- 25 06017645- 62300
Water Admin/ Engineering, 10, 000
July -May) 22- 6475) Contract Services -
Professional
TOTAL 200, 000
EXHIBIT( S)
City Council 30 — 3 5/ 17/ 2022
City Council
21 –
6 5/20/2025
Agreements for Water Interconnection Study
May 17, 2022
1. Interagency Agreement with Orange County Water District and Moulton Niguel Water District
2. Agreement with Stantec Consulting Services, Inc.
Submitted By: Nabil Saba, P.E., Executive Director — Public Works Agency Approved By: Kristine Ridge, City Manager
City Council 30 — 4 5/ 17/ 2022
City Council
21 –
7 5/20/2025
City Council
21 –
8 5/20/2025
City Council
21 –
9 5/20/2025
City Council
21 –
10 5/20/2025
Public Works Agency
www.santa-ana.org/pw
Item #
City of Santa Ana
20 Civic Center Plaza, Santa Ana, CA 92701
Staff Report
May 20, 2025
TOPIC: Second Amendment to the Waste Disposal Agreement with the County of Orange
AGENDA TITLE
Second Amendment to the Waste Disposal Agreement with the County of Orange (Non- General Fund)
RECOMMENDED ACTION
Approve a second amendment to the Waste Disposal Agreement with the County of Orange for an additional one-year term ending June 30, 2026 for continued importation of waste to the County’s three landfills (Agreement No. A-2025-XXX).
GOVERNMENT CODE §84308 APPLIES: No
DISCUSSION
The Public Works Agency’s (PWA) Parks, Fleet, Facilities, and Refuse Division is responsible for the administration and oversight of the refuse collection service in the City. The Refuse Enterprise Section oversees citywide trash and recycling, edible food recovery program, neighborhood cleanup program, and implementation of the City’s waste hauler contract. The disposal of solid waste at the Orange County landfills is governed by a 2009 Waste Disposal Agreement (WDA). In this agreement, the cities within Orange County (County) agreed to deposit their solid waste at the three County landfill facilities in return for low and stable disposal rates. The agreement also set parameters for the importation of waste from outside the County into these landfills. The term of the WDA began on July 1, 2010 and ran through June 30, 2020, with importation of waste from outside the County expiring on June 30, 2016. On February 16, 2016, City Council approved an amendment with the County to extend the terms of the WDA through June 30, 2025.
In January 2022, Orange County Waste & Recycling (OCW&R) notified the County cities of its intent to revise the WDA to align with legislative requirements; such as, Senate Bill 1383 which requires local governments to divert organic waste, like food scraps and landscaping waste, away from landfills. OCW&R presented a proposed successor agreement to the WDA, titled the Waste Infrastructure System Enhancement (WISE) agreement at an Orange County City Manager’s summit on November 7, 2024.
The WISE agreement proposed increasing the landfill disposal rate from $42.65 to $82 per ton, a 92.3% increase. It also proposed a rebate program for composted organic
City Council
22 –
1 5/20/2025
Second Amendment to the Waste Disposal Agreement
May 20, 2025
5 0
1 7
waste and an allocation of capital expenditures for organics recycling infrastructure at County landfills.
The Orange County City Manager Association (OCCMA) formed a committee in December 2024 to negotiate a successor agreement to the WDA and requested an extension of the current WDA to allow time for such negotiations. OCW&R has agreed to the OCCMA committee’s requested extension under the terms of the proposed amendment. However, provisions shall not become effective unless and until the amendment has been executed by all of Orange County cities/sanitary districts.
The amendment will provide for a 12-month extension of the current WDA and a 2.6% disposal fee increase to $43.76 per ton, per the escalation formula in the current WDA (Exhibit 1). This disposal fee increase is expected to result in a modest rise in the City’s overall waste management costs. However, the increase remains in line with the terms of the existing agreement and reflects standard annual cost escalation. The impact on the community is minimal, as residential and commercial rates are not anticipated to change as a direct result of this adjustment. The extension period will allow stakeholders to conduct due diligence on a successor agreement to the WDA as well as evaluate costs, infrastructure plans, and future fee adjustments. If the OCCMA committee and OCW&R do not reach mutually agreeable terms by September 30, 2025, monthly updates will be provided to all cities/sanitary districts beginning October 2025.
Staff recommends the approval of a Second Amendment to the WDA to allow continued importation of waste to the County’s three landfills and continued negotiations among all cities/sanitary districts in Orange County for an additional year (Exhibit 2). This will ensure stable disposal rates for residents and businesses and preserve existing service levels.
ENVIRONMENTAL IMPACT
There is no environmental impact associated with this action.
FISCAL IMPACT
The estimated importation revenue resulting from this second amendment will be deposited into the following account for the specified year:
Fiscal
Year
Accounting
Unit-
Account #
Fund
Description
Accounting Unit,
Account Description
Amount
FY 25-26 06917002-
57702
Refuse
Collection
Service
Revenue Collection
Revenue, County Waste
Importation
$490,000
TOTAL $490,000
City Council
22 –
2 5/20/2025
Second Amendment to the Waste Disposal Agreement
May 20, 2025
5 0
1 7
EXHIBIT(S)
1. Waste Disposal Agreement
2. Second Amendment to Waste Disposal Agreement
Submitted By: Nabil Saba, P.E., Executive Director – Public Works Agency Approved By: Alvaro Nuñez, City Manager
City Council
22 –
3 5/20/2025
A- 2009-047
w
WASTE DISPOSAL AGREEMENT
Between
THE COUNTY OF ORANGE, CALIFORNIA
and
the
CITY OF SANTA ANA
Dated May 4, 2009
County Authorization Date:
March 24, 2009
County Notice Address:
Director
Integrated Waste Management Department
320 N. Flower Street, Suite 400
Santa Ana, CA 92703
City Authorization Date:
May 4, 2009
City Notice Address:
Executive Director
Public Works Agency
20 Civic Center Plaza M- 21
Santa Ana, CA 92701
Execution Copy
City Council
22 –
4 5/20/2025
A- 2009-047
K '~
i
INSURANCEN~~T REQUIRED
WORKPriA'Y t' RQCEED
CLERKQF C~ QUNCILDATE: ~~1N 1 7 ~ODg
WASTE DISPOSAL AGREEMENT
Between
M~ a ~~
k '~
and
the
CITY OF SANTA ANA
Dated May 4, 2009
County Authorization Date:
March 24. 2009
County Notice Address:
Director
Integrated Waste Management Department
320 N. Flower Street, Suite 400
Santa Ana, CA 92703
THE COUNTY OF ORANGE, CALIFORNIA
City Authorization Date:
May 4, 2009
City Notice Address:
Executive Director
Public Works Agency
20 Civic Center Plaza M- 21
Santa Ana, CA 92701
Execurion Copy
City Council
22 –
5 5/20/2025
TABLE OF CONTENTS
Paee
ARTICLE 1
DEFINITIONS AND INTERPRETATION
Section 1.1
Section 1.2
DEFINITIONS ..................................................................................................................................2 1N TERPRE TAT ION ......................................................................................................................... 7
ARTICLE II
REPRESENTATIONS AND WARRANTIES
Section 2.1
Section 2.2
REPRESENTATIONS AND WARRANTIES OF THE CITY ........................................................8 REPRESENTATIONS AND WARRANTIES OF THE COUNTY .................................................9 ARTICLE Ill
DELIVERY AND ACCEPTANCE OF WASTE AND PROVISION OF DISPOSAL SERVICE Section 3.1 DELIVERY OF WASTE ............................................................................ 9 Section 3.2 PROVISION OF DISPOSAL SERVICES BY THE COUNTY ................. 11 Section 3.3 COUNTY RIGHT TO REFUSE WASTE .................................................. 12 Section 3.4 UNINCORPORATED AREA ACCEPTABLE WASTE ........................... 13 Section 3.5 MISCELLANEOUS OPERATIONAL MATTERS ................................... 14 Section 3.6 OTHER USERS OF THE DISPOSAL SYSTEM ...................................... 14 Section 3.7 COUNTY PROVISION OF WASTE DIVERSION SERVICES ...................................................15
ARTICLE IV
CONTRACT RATE
Section 4.1 CHARGING AND SECURING PAYMENT OF CONTRACT RATE .........................................15 Section 4.2 CONTRACT RATE ........................................................................................................................15 Section 4.3 RESPONSIBILITY FOR PAYMENT OF THE CONTRACT RATE ...........................................21 Section 4.4 BILLING OF THE CONTRACT RATE ........................................................................................21 Section 4.5 RESTRICTED RESERVES ............................................................................................................21 Section 4.6 AUDITED FINANCIAL STATEMENTS ......................................................................................22 Section 4.7 ANNUAL UPDATE OF TEN- YEAR FINANCIAL PROJECTION .............................................22
ARTICLE V
BREACH, ENFORCEMENT AND TERMINATION
Section 5.1 BREACH ........................................................................................................................................23 Section 5.2 CITY CONVENIENCE TERMINATION .....................................................................................23 Section 5.3 TERMINATION .............................................................................................................................23 Section 5.4 NO WAIVERS ................................................................................................................................24 Section 5.5 FORUM FOR DISPUTE RESOLUTION ......................................................................................24
ARTICLE VI
TERM
Section 6.1 EFFECTIVE DATE AND TERM ..................................................................................................24 Section 6.2 COMMENCEMENT DATE ...........................................................................................................25 Execution Copy
City Council
22 –
6 5/20/2025
ARTICLE VIl
GENERAL PROVISIONS
Section 7.1 OPERATION AND MAINTENANCE OF THE DISPOSAL SYSTEM ....................................... 26 Section 7.2 UNCONTROLLABLE CIRCUMSTANCES GENERALLY ........................................................ 26 Section 7.3 INDEMNIFICATION ..................................................................................................................... 27 Section 7.4 RELATIONSHIP OF THE PARTIES ............................................................................................ 27 Section 7.5 LIMITED RECOURSE .................................................................................................................. 27 Section 7.6 PRE- EXISTING RIGHTS AND LIABILITIES ............................................................................. 27 Section 7.7 NO VESTED RIGHTS ................................................................................................................... 28 Section 7.8 LIABILITY FOR COLLECTION, TRANSPORTATION AND PROCESSING .......................... 28 Section 7.9 NO CONSEQUENTIAL OR PUNITIVE DAMAGES .................................................................. 28 Section 7. 10 AMENDMENTS ............................................................................................................................ 28 Section 7. 11 NOTICE OF LITIGATION ............................................................................................................ 28 Section 7. 12 FURTHER ASSURANCES ........................................................................................................... 28 Section 7. 13 ASSIGNMENT OF AGREEMENT ............................................................................................... 28 Section 7. 14 INTEREST ON OVERDUE OBLIGATIONS ............................................................................... 28 Section 7. 15 BINDING EFFECT ........................................................................................................................ 28 Section 7. 16 NOTICES ........................................................................................................................................ 28 APPENDIX 1
ESTIMATED ANNUAL TONNAGE
APPENDIX 2
CUMULATIVE TONNAGE TARGETS
APPENDIX 3
CUMULATIVE CAPITAL COSTS
APPENDIX 4
FORM OF HAULER ACKNOWLEDGEMENT
Execution Copy
City Council
22 –
7 5/20/2025
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 designatedon the cover page of this Agreement, 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 disposalof 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 generatedwithin the City historically has been and currentlyis 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 disposalagreement (the "Original WDA"), pursuant to which the County agreedto provide disposal capacity for waste generatedin the City, and the City agreedto 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 the Original WDA, on the terms and conditions set forth herein. The County and City acknowledgethat 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, therebyenabling 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 pagehereof.
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:
Execution Copy
City Council
22 –
8 5/20/2025
ARTICLE I
DEFINITIONS AND INTERPRETATION
SECTION 1.1 DEFINITIONS. As used in this Agreement, the following terms shall have the meaningsset 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, supersededand 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 LegalEntitlement and any federal or state rule, regulation, requirement, guideline, permit, action, determination or order of any Governmental Body having jurisdiction, applicable from time to time to the siting, design, permitting, acquisition, construction, equipping, financing, ownership, possession, operation or maintenance of the 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 ManagementBoard.
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" ( ObjectCode 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 Section 21000 et . req. as amended or superseded, and the regulations promulgatedthereunder.
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 regulationspromulgated 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 changein 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 2 Execution Copy
City Council
22 –
9 5/20/2025
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, en• or 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 adverselyinterferes with the performanceof this Agreement, if and to the extent that such denial, delay, suspension, termination, interruption, imposition or failure is not the result of willful or negligent action, error or omission or a lack of reasonable diligence of the County or of the City, whichever is assertingthe occurrence of a Changein 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 designatedon the cover page of this Agreementand party to this Agreement.
City Acceptable Waste" means all Acceptable Waste which was originally discarded by the first generatorthereof 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 first date on which this Agreementhas been executed by both parties hereto.
Contract Rate" has the meaning specified in Section 4.2 hereof.
Contract Year" means the fiscal year commencingon July 1 in any year and ending on June 30 of the following year.
Controllable Waste" means all City Acceptable Waste with respect to which the City has the legal or contractual ability to determine the disposallocation therefor and which is:
1) Non- RecycledCity Acceptable Waste;
2) not generated from the operations of the Governmental Bodies which, under ApplicableLaw, have the independentpower 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 integratedwaste management plan of the County approved by the Board pursuantto the Act as in effect from time to time.
Execution Copy
City Council
22 –
10 5/20/2025
County Acceptable Waste" means Acceptable Waste generated in the County.
County OC Waste & Recycling Enterprise Fund" means the waste management enterprise fund established and managedby the County pursuant to Section 25261 of the Government Code separate from its other funds and accounts for receiptsand disbursements in connection with the Disposal System.
County-wide Recycling Services" has the meaningset 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 Bodywhich 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 regionalHousehold Hazardous Waste Collection Centers; as well as services, such as monitoring and other activities, at closed refuse stations formerly operated by the County, as appropriateunder 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-TannerHazardous 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 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 regulatedas 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 disposalof toxic substances or hazardous wastes; or ( b) radioactive materials which are source, special nuclear or by- productmaterial as defined by the Atomic Energy Act of 1954 ( 42 U. S.C. Section 2011 et . seg.) and the regulationscontained in 10 CFR Part 40. 4 Execution Copy
City Council
22 –
11 5/20/2025
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 generatedin the County of Orange which are not obligated to deliver County Acceptable Waste to the Disposal Systempursuant to a franchise, contract, permit or other authorization with a city in the County.
initial Term" has the meaningspecified 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 proceedinghaving 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 meaningascribed thereto in Section 3. 6(E).
Non- RecycledCity 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" means the County's Modified Second Amended Plan of Adjustment, confirmed bythe United States Bankruptcy Court Central District of California in that Conformed Order Confirming Modified Second Amended Plan of Adjustment, filed May 17, 1996.
Posted Disposal Rate" means the per ton tipping fee chargedby 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 disposedat the Disposal System.
Qualified Household Hazardous Waste" means waste materials determined by the Board, the Departmentof 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/ mutagenic/teratogenic;
which are discarded from households as opposed to businesses. Qualified Household Hazardous Waste shall not include Unacceptable Waste.
Execution Copy
City Council
22 –
12 5/20/2025
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 meaningspecified 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 RecoveryAct, 42 U. S.C. A. Section 6901 et . seq., as amended and superseded.
Restricted Reserves" has the meaningspecified 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, supersededand 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- SeparatedHousehold Hazardous Waste" means Qualified Household Hazardous Waste which has been segregated from Acceptable Waste originating or generatedwithin the geographical jurisdiction of the City at the source or location of generation.
Source- SeparatedHousehold 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- SeparatedHousehold Hazardous Waste.
State" means the State of California.
Term" shall mean the Term of this Agreement.
Ton" means a " short ton" of 2, 000pounds.
Transfer Station" means any materials recovery facility, composting facility, intermediate processingfacility, recycling center, transfer station or other waste handling or management facility to which solid waste collected for the City is delivered for processingbefore 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 6 Execution Copy
City Council
22 –
13 5/20/2025
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 tack of reasonable diligence of either party. Examples of Uncontrollable Circumstances are:
1) an act of God, landslide, lightning, earthquake, fire, explosion, flood, sabotageor similar occurrence, acts of a public enemy, extortion, war, blockade or insurrection, riot or civil disturbance; and 2) a Change in Law.
Unincorporated Area" means those portions of the County which are not contained within the jurisdictional boundaries of incorporatedcities.
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 INTERPRETATION. 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 Pluralitv. Words of the masculine gender mean and include correlative words of the feminine and neuter gendersand words importing the singular number mean and include the pluralnumber 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 publicbodies, as well as individuals.
D) Headines. 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 assignshereunder 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.
Execution Copy
City Council
22 –
14 5/20/2025
G) Applicable Law. This Agreement shall be governed by and construed in accordance with the Applicable Laws of the State of California.
H) Severabilitv. If any clause, provision, subsection, Section or Article of this Agreementshall be ruled invalid by any court of jurisdiction, then the parties shall: ( 1) promptly meet and negotiatea 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 changesin, 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) Inteeration: Preservation of Certain Agreements. This Agreement contains the entire agreement between the parties with respect to the transactions contemplated hereby. This Agreement shall completely and fully supersede all prior understandingsand 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 Orangeregarding 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 Orangeregarding importation ofout- 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 regardingimportation ofout- of--County waste to the Frank R. Bowerman Landfill; 5) MOU, dated September12, 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 OrangeCounty Flood Control District] and the County of Orangeregarding 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 provisionsshall 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) Existence. The City is a general law or charter city validly existing under the Constitution and laws of the State.
Execution Copy
City Council
22 –
15 5/20/2025
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 Countyrepresents and warrants that:
A) Existence. The County is a political subdivision of the State of California validlyexisting 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) Recvcled Ci Acceptable Waste. The parties hereto acknowledgethe 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 interpretedto 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, compostingor other materials recovery activities, or to restrict the right of the City to conduct, sponsor, encourage or requiresuch 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 recyclingprogram 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 Tonnageequal 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 segregatedtherefrom which is held in storage and asserted by the possessor thereof to constitute Recycled CityAcceptable Waste awaiting sale or distribution to the secondary materials markets shall constitute ControllableWaste 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, acknowledging and agreeing to comply with the obligation of the Participating City to cause the delivery of all Controllable Waste to the Disposal System pursuantto this Agreement. In addition, the County shall be authorized to implement proceduresto determine if AcceptableWaste 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 onlyControllable Waste, and not commingled with Acceptable Waste from entities which are not Participating Cities or Participating Independent Haulers.
Execution Copy
City Council
22 –
16 5/20/2025
D) Power to Obligate Waste Disposal and Complv with this Agreement. On or before the Commencement Date, (i) any City franchise, contract, lease, or other agreement which is lawfully in effect relatingto 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 designatethe 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) 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 DisposalCovenant 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 bythis Section and to the extent allowed by law, and shall include in addition, to the extent necessary and appropriatein the circumstances to assure compliance with the Waste Disposal Covenant, but shall not be limited to:
i) licensingor 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- complyingFranchise 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 processingat such Transfer Station. 2) The City acknowledgesand 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 damagesdue 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 higherrate 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 partiesrecognize that if the City fails to meet its obligations hereunder, the County will suffer damagesand 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 damagesspecified above represent a reasonable estimate of the amount of such damages, consideringall 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 damageswould 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 damageprovision at the time that this Agreement was made.
F) Leeal Challenges to Franchise Svstem. 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 challengethereto, legal or otherwise ( including any lawsuits against the City or the County, whether as plaintiff or defendant), by a 10 Execution Copy
City Council
22 –
17 5/20/2025
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: 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 collectinginformation 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, transportationroutes 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, roll- off box),customer service levels, tonnage delivered by transfer station or material recovery facility utilized, and other related information.
I) Citv Actions Affecting Countv. 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 Countywith 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 bythe 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 abilityto achieve such timely compliance. Notwithstandingthe foregoing, the City shall not be required to deny any permitor license or refuse to grant any approval while exercising its police powers.
J) No Right of Waste Substitution. Nothing in this Agreement shall authorize or entitle the City to deliver or cause the delivery to the Disposal System of Acceptable Waste originating from or generatedoutside 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 generatedoutside the jurisdictionof the City to be substituted for Controllable Waste for any purpose hereunder.
K) Annexations and Restructurin 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, 2008, solid waste management responsibility from a Sanitary District or other public entity) and shall bind any successor or restructured Governmental Body which shall assume or succeed to the rights of the City under Applicable Law.
SECTION 3.2 PROVISION OF DISPOSAL SERVICES BY THE COUNTY.
A) Service Covenant. Commencing on the Commencement Date, the County shall provideor cause the provision of the service of ( 1) receiving and disposing of all Controllable Waste at the Disposal Systemor 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
City Council
22 –
18 5/20/2025
of the disposal capacity of the Disposal System, and ( 3) in accordance with subsection 3. 3(C) hereof, disposing of UnacceptableWaste inadvertently acceptedat the Disposal System. The County, to the maximum extent permittedunder 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 determiningwhether and to what extent from time to time other landfills other than that primarily used by the Cityshall 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 performits 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. 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 Changein 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 Changein 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 changein 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 consistingprimarily of construction and demolition debris or inerts which may cause a particular facility's daily tonnage limit to be exceeded. 12 Execution Copy
City Council
22 –
19 5/20/2025
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 UnacceptableWaste from such vehicle before it is unloaded.
If the Department determines that it is impractical to separate Controllable Waste from UnacceptableWaste 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 DisposalSystem.
C) Hazardous Waste and Hazardous Substances. The parties acknowledgethat the Disposal System has not been designedor 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 dischargethe 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) Source- SeparatedHousehold Hazardous Waste. The County shall maintain, as part of the Disposal System, aSource- Separated Household Hazardous Waste Disposal System for the disposal of Source- SeparatedHousehold 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- SeparatedHousehold 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-SeparatedHousehold 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- SeparatedHousehold 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- SeparatedHousehold Hazardous Waste Disposal System during fiscal year 2006-07 as adjustedby changesin 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- recycledAcceptable 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 Citysubject to the Waste Disposal Covenant hereunder. Rates chargedby the County for the disposal of each class of non- recycledAcceptable Waste generated in the UnincorporatedArea shall be the same as the Contract Fee chargedfor 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- recycledAcceptableWaste 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 Countyshall bear the cost and expense of any such Legal Proceeding or other challenge (with respect to non- recycledAcceptable Waste generated in the UnincorporatedArea). 13 Execution Copy
City Council
22 –
20 5/20/2025
SECTION 3.5 MISCELLANEOUS OPERATIONAL MATTERS.
A) Operatin 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 operatingrules and regulations applicable to the Disposal System. The County shall utilize best efforts to maintain substantially similar hours, as were in effect on January2, 2009, for the receipt of waste through the term of this Agreement (subject to Applicable Law).
B) Scales and Weiehing. 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 (whetheror 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 designatein 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 designatea 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 2009. On or before [ 120 DAYS AFTER BOARD APPROVAL], the County shall have the right to enter 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) ABer ( , 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 IndependentHauler, 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 disposeof 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 AcceptableWaste on a Contract Basis. The County shall have the right to enter into a contract or other agreement with any municipal or private non- Countyentity 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 goodfaith judgment the contract or other agreement for the delivery of such waste will not materially and adverselyaffect 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
City Council
22 –
21 5/20/2025
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 anon- contract basis, at the Posted Disposal Rate. Such Self- Haulers shall not be entitled to disposeof Acceptable Waste for the Contract Rate.
E) Apalication 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 depositedby the Countyin 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 disposalby 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 funded through the County OC Waste & Recycling Enterprise Fund. Any such recycling services maybe expanded, contracted or modified by the County at any time in its sole discretion.
B) Separate Ci - 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- Countyentity, 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 PAYMENT OF CONTRACT RATE. The City acknowledgesthat 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 acknowledgesthat the County shall have the right to establish as part of the operating rules and regulationsreasonable 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, 2010, in both cases contingent on the delivery to the Disposal System of an amount of Acceptable Waste at 15 Execution Copy
City Council
22 –
22 5/20/2025
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 Changesin 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 potentialclaims 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 Changesin 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 operatingthe Disposal Systemto 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 addressingthe 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) Countv Acceptable Waste Shortfall. In the event that the actual amount of County Acceptable Waste delivered to the Disposal System at the end of any Contract Year is less than the Cumulative Tonnage Target for such Contract Year for County Acceptable Waste, as specified in Appendix 2, the County shall utilize the following options, in the following order of priority, in order to remedy any adverse effects of such tonnage shortfall:
i) reduce the costs of operating the Disposal Systemto the extent practicable; ii) utilize Restricted Reserves described in clause ( iii) of Section 4.5 to pay costs of the Disposal System;
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 satisfactorilyaddress the shortfall in tonnage, the County shall have the right to terminate the Agreement on 60 days written 16 Execution Copy
City Council
22 –
23 5/20/2025
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 TonnageTarget 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 adjustmentto the Contract Rate for future deliveries, rather than a lump sum payment.
E) Special Charges. Notwithstanding Section 4. 2(A), the County shall have the right to 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 processingfacility), which facility would be intended to provide for disposal alternatives after the closure of one or more of the landfills currently operatingwithin 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 adjustedeach July 1, beginning July 1, 2011. The changewill be equal to the positive percentage change in the Consumer Price Index - All Urban Consumers, U. S. city average, All items, Not SeasonallyAdjusted, Series ID CUUROOOOSAO (" CPI") as measured from the October 21 months prior to the rate adjustmentto the October immediately precedingthe rate adjustment. For example: The July I, 2011 rate adjustment shall be based upon the index changefrom October 2009, to October 2010, referred to as year 1 and year 2 respectively in the following example .
Formula to calculate percentage changein the Contract Rate:
Step 1:
October Year 2 CPI _
1 = % increase in Contract RateOctober Year 1 CPI
Step 2: Current Contract Rate x ( 1+ % increase in Contract Rate) =Contract Rate as of July I 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 changein 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 1" in calculating the changein the Contract Rate. 17 Execution Copy
City Council
22 –
24 5/20/2025
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 changefrom 205 to 208 would be implemented on July 1, 2013.
Adjustments pursuant to this Section 4. 2(F) shall not require compliancewith the provisions of Section
4. 2(1).
G) Adjustment Resulting from Increased Fees. In addition to the other adjustments specified herein, the Contract Rate shall be adjustedto reflect the imposition of new fees or increase in existing fees relatingto 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 adjustmentshall 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 becomingaware of the imposition of any fees described above.
Adjustments pursuant to this Section 4. 2(G) shall not require compliance with the provisions of Section
4. 2(I).
H) Calculation of Cumulative Inflation Rate. For purposes of Section 4. 2(A)( iv) for adjustmentsprior to July 1, 2011, the inflation shall be calculated as the changein 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 CPl 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 Ratio
Jul 1, 2008 1. 0000
Jul 1, 2009 1. 0356
Jul 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(H), such adjustmentshall 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(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(I). 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 improvementsto 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 disputesthe 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
City Council
22 –
25 5/20/2025
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 representedby the Director of the Department or his or her designee. In the event the Board of Supervisors approves all or a portion of the proposedrate adjustment, such rate adjustment shall become effective on the date identified in the initial notice sent by the County regardlessof whether or not the procedures in Section 4. 2(J) are utilized, but subject to potential reimbursement pursuant to clause ( 1 I) of Section 4. 2(J).
J) 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 proceduresdescribed below in this Section 4. 2(J). 1) In order to pursue the expeditedjudicial 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 challengedadjustment to the Contract Rate.
2) Within two ( 2) days of filing the Action, the Challenging Cities shall personallyserve 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 signedby each of the Challenging Cities. 3) Within fifteen ( IS) 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 bythe parties herein pursuant to Code of Civil Procedure Section 1085, et . reg., or by means of a complaint for specificperformance. 4) Within three ( 3) days of the date of service by the County upon the ChallengingCities of the fully signed Expedited Rate Determination Stipulation, the County and the Challenging Cities shall jointly make ex pane 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 pane 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 ChallengingCities 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 IS 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 ChallengingCities pursuant to Section 4. 2(I), any materials filed or lodged with the Board of Supervisors and the Orange County 19 Execution Copy
City Council
22 –
26 5/20/2025
Waste Commission, the transcript of the proceedings of the Board of Supervisors meeting and the Orange CountyWaste 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) 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 oppositionbrief. The opposition brief shall not exceed l5 pages in length. 7) Within five ( 5) daysof 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 hearingwhich shall be conducted at the date set by the court in the ex parte hearingconducted 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 damagesaction 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 participationin 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 daysof 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 ExpeditedRate Determination Stipulation, the City shall, within 30 daysof the court's denial of such requestedorder, 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 hear or does not issue a ruling on the merits on the motion for summary judgment and/or judgment on the pleadings which is diapositive 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
City Council
22 –
27 5/20/2025
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 j ury 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, dependingupon 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 proceedingsfor 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 Cityto 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) Payment by Franchise Haulers. With respect to Controllable Waste delivered byFranchise 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 agreedwith 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 tenninate the Franchise Hauler's franchise, permit or license rights.
C) Disputes. If the City or the Franchise Hauler disputesany 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 disagreementwith 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 legalremedies.
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 beingreserved 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 depositedin separate accounts or funds in order to constitute " Restricted Reserves" hereunder, and may be commingled with 21 Execution Copy
City Council
22 –
28 5/20/2025
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 Systemto the extent requiredby 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 againstthe 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 chargespayable to the State IntegratedWaste 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 budgetedexpenses for the Disposal Systemfor the current fiscal year, representingworking 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 precedingContract Year, accompanied by a certificate of an independentpublic accountant or of the County Auditor and Controller as to the examination of the financial statements therein ( describing such statements as fairlypresenting 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 EnterpriseFund 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:
22 Execution Copy
City Council
22 –
29 5/20/2025
1. County Acceptable Waste, in tons;
2. Imported Acceptable Waste, in tons;
3. Revenues and expenditures;
4. Cash fund balances, including all monies in the County Solid Waste EnterpriseFund, 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 obligationsto 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 upon90 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 precedingtwelve 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) B Cit . Except as expressly provided herein, the City shall have no right to terminatethis Agreement for cause except in the event of the repeated failure or refusal by the County substantially to performany 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 specifiedfailure 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 withSection 5.5) the City's conclusion that such failure or refusal to perform has occurred or constitutes a materialbreach of this Agreement nor corrected or diligently taken steps to correct such breach within a reasonable period oftime not more than 90 days from the date of the notice given pursuant to clause ( 1) of this subsection ( but if the Execution Copy
23 City Council
22 –
30 5/20/2025
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 repeatedfailure 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 specifiedfailure 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 Cityshall 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 Systemor to any rights or any relationshipbetween 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 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) Option 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 often 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 June 30, 2018, negotiate an applicable change in the Contract Rate for such renewal term. In determining any revisions to the 24 Execution Copy
City Council
22 –
31 5/20/2025
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) changesin transportation and technology;
vi) closure and expansion of nearbylandfills;
vii) capacity of the Disposal System; and
viii) available reserves which are in excess of the amount reasonably required as reserves.
D) Survival: Accrued Rights. The rights and obligations of the parties hereto pursuant to Sections 3. 1(E)( 2), 5.1, 5.3, 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) Oblieations of the Parties Prior to the Commencement Date. The parties acknowledgethat 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 reasonablypracticable. 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 Agreementshall 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 determiningthe 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.
25 Execution Copy
City Council
22 –
32 5/20/2025
D) Newlv Incorporated Cities. Any city within Orange County which becomes incorporatedafter 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), notwithstandingthe limitations contained in Section 3. 6(B).
E) Failure of Condition. If by [ 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 partiesshall bear its respective costs and expenses incurred in seeking to satisfy the condition to the Commencement Date.
Notwithstandinganything 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 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 notifythe 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 beganand the cause thereof, its estimated duration, the estimated time duringwhich the performance of such party's obligations hereunder will be delayed, (3) the estimated amount, if any, bywhich 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 mightbe 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 therebyshall, as promptly as reasonablypossible, use its best efforts to eliminate the cause therefor, reduce costs and resume performance under this Agreement. In addition, with respect to Changesin Law, the County shall diligentlycontest any such changesthe 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 first day of each succeedingmonth, 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
City Council
22 –
33 5/20/2025
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 againstall Loss- and-Expense arising from the City's activity as an " arranger" ( for purposes of and as such term is defined under CERCLA or comparablestate 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 bythe County, the cost of providing such legal counsel shall be the City's sole responsibility. The City acknowledgesthe County's legitimate interest in actively participating in any defense, litigation or settlement whether the Countyor 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 acknowledgethat 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 acknowledgesthe 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 hereto, whether accrued, absolute, contingent or otherwise, or whether due or to become due. The County is an independent contractor of the City and nothing in this Agreement shall be deemed to constitute either party a partner, agent or legal representative of the other party or to create any fiduciary relationship between the parties.
SECTION 7.5 LIMITED RECOURSE.
A) To the Citv. 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- Expenseof any nature arising from the performance or non- performanceof 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 EnterpriseFund. All amounts held in any City Solid Waste Enterprise Fund shall be held for the uses permitted and requiredthereby, and no such amounts shall constitute property of the County. The City shall make adequateprovision 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 Countv. 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- performanceof 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 adequateprovision in the administration of the CountySolid Waste Enterprise Fund for the payment of any amount or the performance of any obligation which may be due hereunder.
SECTION 7.6 PRE- EXISTING RIGHTS AND LIABILITIES. Nothing in this Agreement is intended to affect, release, waive or modify any rights, obligations or liabilities which any party hereto may have to or againstthe other party as of the Contract Date relating to the disposal of waste in the Disposal System or any other related matter.
27 Execution Copy
City Council
22 –
34 5/20/2025
SECTION 7.7 NO VESTED RIGHTS. The City shall not acquire any vested property, license or other rights in the Disposal Systemby 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 processingit 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 damagesbased upon claims arising out of or in connection with the performance or non- performance of its obligations or otherwise under this Agreement, or the material inaccuracy of any representation made in this Agreement, whether such claims are based upon contract, tort, negligence, warranty or other legal theory.
SECTION 7. 10 AMENDMENTS. Neither this Agreement nor any provision hereof may be changed, modified, amended or waived except by written agreement duly authorized and executed by both parties.
SECTION 7. 11 NOTICE OF LITIGATION. Each party shall deliver written notice to the other of any Legal Proceeding to which it is a party and which questions the validity or enforceability of this Agreement executed by the City or the County or any Legal Entitlement issued in connection herewith.
SECTION 7. 12 FURTHER ASSURANCES. At any and all times the City and the County so far as may be authorized by law shall pass, make, do, execute, acknowledgeand deliver any and every such further resolutions, acts, deeds, conveyances, instruments, assignments, transfers and assurances as may be necessary or reasonably requested by the other in order to give full effect to this Agreement.
SECTION 7. 13 ASSIGNMENT OF AGREEMENT. ( A) Assi ng ment. Neither this Agreement nor any of the rights or obligations hereunder may be assignedby 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 assignmentshall have the right to demand assurances of the financial, technical and legal ability of the proposed assigneeto 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 providesfor 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 dayselapsed, 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 partieshereto and any successor or assigneeacquiring 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 registeredmail, postage prepaid, to the notice address of the respective parties set forth on the cover page of this Agreement. Changes in the respectiveaddresses to which such notices may be directed may be made from time to time by any party by notice to the other party.
28 Execution Copy
City Council
22 –
35 5/20/2025
IN WITNESS WHEREOF, COUNTY and CITY have caused this Agreement to be executed by their duly authorized officers or representatives as of the day and year first above written.
COUNTY OF ORANGE
Date By
Director, OC Waste & Recyc ng
ATTEST,. ---- y~a,`' ~
PATRICIA E. HEALY
Clerk of the Council
FOR
By \
J ES G ROSS
Ex utive Director of the
Pu [ ic W rks Agency
APPROVED AS TO FORM:
COUNTY COUNSEL
ORANGE COUNTY, CALIFORNIA
B \ ~}
D; ca-~. ~-~ . u
APPROVED AS TO FORM:
JOSEPH W. FLETCHER
City Attorney
Laura Sheedy `
Assistant City Attorney
CITY OF SANTA ANA
B
AVID N. REAM
City Manager
29 Execution Copy
City Council
22 –
36 5/20/2025
City Council
22 –
37 5/20/2025
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 2009-10 3, 092,806
FY 2010-11 3, 185,590
FY 2011-12 3, 344,870
FY 2012-13 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
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
Execution Copy
City Council
22 –
38 5/20/2025
APPENDIX 3
CUMULATIVE CAPITAL COSTS
to be Used
for Purposesof Section 4. 2(A) vi
Fiscal Year
endin June 30
Annual Capital Costs Cumulative Capital Costs
2009 37, 939,538 37, 939,538
2010 59, 343,405 97, 282,943
2011 10, 433,978 107, 716,921
2012 13, 678,113 121, 395,034
2013 17, 525,040 138, 920,074
2014 11, 259,518 150, 179,592
2015 37, 682,758 187, 862,350
2016 5, 068,800 192, 931,150
2017 10, 662,265 203, 593,415
2018 29, 397,698 232, 991,113
2019 8, 263,795 241, 254,908
2020 45, 103,805 286, 358,713
Execution Copy
City Council
22 –
39 5/20/2025
APPENDIX 4
FORM OF HAULER ACKNOWLEDGMENT
Execution Copy
City Council
22 –
40 5/20/2025
FRANCHISE HAULER ACKNOWLEDGMENT
THIS FRANCHISE HAULER ACKNOWLEDGMENT, dated as of May 4, 2009 ( the Acknowledgment"), by and between the City of Santa Ana ( the " City") and USA Waste of California Inc. ( the Franchise Hauler").
WTTNESSETH
WHEREAS, the City and the Franchise Hauler have heretofore entered into an agreement entitled Third Amended and Restated Agreement for Collection and Handling of Solid Wastes Generated, Produced and/or Accumulated in the City of Santa Ana, dated as of Apri13, 2005 ( 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 authorizes the collection and disposal of certain municipal solid waste as described therein (" Franchise Waste") generatedwithin the City; and] WHEREAS, Orange County (the "County") owns, manages and operates a sanitary landfill disposal system for municipal solid waste generatedwithin the County; and WHEREAS, the City and the County have heretofore entered into a Waste Disposal Agreement, dated as of May 4, 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 generatedwithin the City and the City has agreedto 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 Hauler will be entitled to the benefits of the Waste Disposal Agreement and to assure conformity with the waste delivery obligations which have been agreedto 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.
Execution Copy
City Council
22 –
41 5/20/2025
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 Facilityin accordance with this Acknowledgment.
3. The City and the Franchise Hauler each herebyrepresent that this Acknowledgment has been dulyauthorized 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 processingby 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 DesignatedDisposal Facility in compliance with the Waste 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 giventhe 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 complianceherewith.
10. This Acknowledgment shall be in full force and effect and shall be legally binding upon the Cityand 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 Countyaudits to verify reported origin of tonnage by making records and personnel available to the County and/or its auditors.
Execution Copy
City Council
22 –
42 5/20/2025
IN WITNESS WHEREOF, the parties have caused this Acknowledgment to be executed by their duly authorized officers or representativesas of day of , 2009.
CITY OF SANTA ANA
Signatur
Printed Name: `~,,
1'/"lfrt~'12.t..S ~Title: ~~ 1~ 1(~-v~~" ~ it' 1M ~"ILU~ L~Y'/ USA WASTE OF CALIFORNIA INC.
Signature:
Printed Name:
Title: ~ I~,e - QctS~
Execution Copy
City Council
22 –
43 5/20/2025
APPENDIX 1
PERCENTAGE OF COUNTY ACCEPTABLE WASTE ATTRIBUTABLE TO PARTICIPATING CITIES FOR PURPOSE OF SECTION 6. 2(b)
Jurisdiction Percentage of County
Acce table Waste
Anaheim 13. 4%
Santa Ana 10. 6%
Irvine 5%
Huntin ton Beach 6. 0%
Oran e 5 g%
Garden Grove 5.1
Fullerton 4. 5%
Uninco orated Oran e Coun ~~~ 4. 3%
Costa Mesa 3. 6%
Ne ort Beach 3. 0%
Lake Forest 2 6%
Buena Park 2 5%
Mission Vie'o 2 3%
Westminster 2 3%
Yorba Linda 2 3%
Brea 2 1
Tustin 2 0%
C ress
1. 9%
La Habra 1 8%
San Clemente l ~%
Fountain Valle 1. 6%
La una Ni uel 1. 6%
Placentia 1. 6%
San Juan Ca istrano 1. 6%
La una Beach 1. 4%
Dana Point 1. 2%
Stanton 1.1
Rancho Santa Mar arita 1. 0%
La una Hills 0. 9%
Seal Beach 0 g%
Aliso Vie'o 0 7%
Los Alamitos 0 5%
La Palma 0. 3%
La una Woods 0 2%
Villa Park 0 2%
Total 100%
cviNura~ eu ~. ounry is assumeu to be a Participating City for the purposes of determiningthe Commencement Date in accordance with Section 6. 2(b) of this Agreement.2) A ParticipatingCity will only be included for purposing of determining the CommencementDate upon ( i) execution of a Waste Disposal Agreement by that Participating City and ( ii)execution of a Hauler Acknowledgement(s) by the Franchise Haulers) operating within such ParticipatingCity
Execution Copy
City Council
22 –
44 5/20/2025
City Council
22 –
45 5/20/2025
Pag
e 1 of 5
SECON
D AMENDMENT TO WASTE DISPOSAL AGREEMENT
Between
THE C
OUNTY OF ORANGE, CALIFORNIA
and
the
CITY
OF SANTA ANA
June
30, 2025
Cou
nty Amendment Authorization Date
__________
_______, 2025
Cou
nty Notice Address:
Direc
tor, OC Waste & Recycling
601 N. Ross Street
5th Floor
Santa Ana, CA 92701
City
Amendment Authorization Date
__________
__________, 2025
City
Notice Address:
City
of Santa Ana
Attn: City Clerk
20 Civic Center Plaza (M-30)
P.O. Box 1988
Santa Ana, CA 92702-1988
FAX 714-647-6956
EXHIBIT 2
City Council
22 –
46 5/20/2025
SECOND AMENDMENT TO WASTE DISPOSAL AGREEMENT
THIS SECOND AMENDMENT TO THE WASTE DISPOSAL AGREEMENT (“Second 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 (general law, charter or other), Special District or Sanitary District designated on the cover page of this Agreement and party to this Agreement.(the “City”).
RECITALS
The County owns, manages , and operates a Waste Infrastructure System to manage municipal and solid waste generated within Orange County, California or imported from outside Orange County, California pursuant to contractual agreements (hereafter used referred to as “Disposal System” or “Waste Infrastructure System”). The Waste Infrastructure System collectively includes active Class III sanitary landfills (“County Landfills”), resource recovery, recycling and organics programs, infrastructure and operations, and regional household hazardous waste collection centers and other waste management related systems as may be deemed necessary by the County.
The County is also responsible for the long-term management of 20 closed landfills as required under Applicable Law.
County Landfills are used for the management of municipal solid waste pursuant to legislation including, but not limited to , the California Integrated Wast e Management Act of 1989 (Division 30 of the California Public Resources Code) (the “Act”) and the Short -lived Climate Pollutants Reduction Act ( “SB 1383”). County Landfills are also subject to other state and federal regulations designed to ensure that landfill operations minimize the impacts to public health and safety and the environment.
The City, in the exercise of its police power, its powers under the Act, and other Applicable Law, has entered into a franchise or other agreement with or issued permits or licenses to one or more private haulers for the collection, recycling, diversion, and disposal of municipal solid waste generated within the City.
The City and the County have historically provided for the management of municipal solid waste through Waste Disposal Agreements (“WDAs”), wherein the County agreed to provide disposal capacity for waste generated in the City, and the City agreed to deliver or cause the delivery of waste generated in the City to the Disposal System, as more specifically set forth in, and subject to the terms and conditions of the WDAs. In 2009, the Parties entered into a new WDA (referred to as the “Original WDA”). In 2016, the Original WDA was amended by the Parties (“ First Amendment”), whereby the Parties updated cer tain terms and extended the term through June 30, 2025. ( The Original WDA and its corresponding First Amendment are referred to in this Second Amendment as the “Current WDA”.) In response to passage of several pieces of legislation that require significant reductions in the disposal of organic waste, and in light of the approaching expiration of the Current WDA, the County held two City Manager Summits in November 2024 proposing terms of a new WDA.
The Orange County City Manager Association (“OCCMA”) has established a Committee (“OCCMA Committee”) including representatives of cities and sanitary districts to review the terms of the proposed new WDA. The OCCMA Committee requested a 12-month extension of the Current WDA to allow for additional time to negotiate mutually agreeable terms for a new WDA, and obtain approval from the respective
City Council
22 –
47 5/20/2025
governing bodies. The County is agreeable to OCCMA’s requested extension to the Current WDA on terms as provided in this Second Amendment.
The City has determined that the execution of this Second Amendment by the City is in the best interest of the City and will serve the public health, safety , and welfare by continuing the waste disposal services historically provided under the Current WDA while the Parties: (1) engage in due diligence related to a new WDA, in order for the City to evaluate the cost/benefit of a new WDA, which is expected to include the City and OCCMA obtaining more comprehensive and detailed information on the County’s plans for infrastructure expansion and improvements, the financial and operational conditions of the existing Waste Infrastructure System, and the components, timing, and procedures for future contract fee increases; and, (2) negotiate the terms and conditions of a new WDA.
The County has determined that the execution by the County of this Second Amendment will serve the public health, safety , and welfare by continuing to provide a stable, predictable, and reliable supply of municipal solid waste and the resulting service payment revenue to the Disposal System, while the Parties exchange information and conduct negotiations with the County goal of ensuring that any negotiated Contract Rate in the new WDA covers the full cost of operations and infrastructure O&M and development needed to ensure indemnification and regulatory compliance..
Official action approving this Second 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.
Official action approving this Second 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.
It is, therefore, agreed as follows:
1. Extended Term.
(a) Section 6.1 (A) of the Current WDA is deleted in its entirety and replaced with the following:
“Extended Term. This Agreement shall continue in full force and effect until 11:59 p.m. on June 30, 2026 (the “Extended Term”), unless earlier terminated in accordance with its terms, in which event the Extended Term shall be deemed to have expired as of the date of such termination.” (b) Section 6.1 (B) is deleted in its entirety.
(c) Section 6.1 (C) of the Current WDA is deleted in its entirety and replaced with the following:
“Contract Rate Negotiations During Extended Term. If the Orange County City Manager Association’s committee tasked with negotiating the terms of a successor to this Agreement with the County and recommending approval of the same to the Parties (the “Committee”) and the County have not reached mutually agreeable terms of a successor to this Agreement including, but not l imited to, proposed revisions to the Contract Rate, by September 30, 2025, the County shall, and it is expected that the Committee will provide, updates to all Participating Cities , and their respective governing bodies as may be deemed necessary, regarding the status of negotiations on a monthly basis until mutually agreeable terms are reached or the Extended Term expires.”
City Council
22 –
48 5/20/2025
In recommending any revisions to the Contract Rate, in addition to the circumstances described in Section 4.2(A), the Committee and County may take into consideration factors including, but not limited to, the following:
(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) changes in transportation costs;
(vii) closure and expansion of nearby landfills;
(viii) capacity of the Disposal System;
(ix) long-term infrastructure needs; and
(x) available reserves which are in excess of the amount reasonably required as reserves. (d) Appendix 2 of the Current WDA is deleted in its entirety and replaced with the following:
APPENDIX 2
Cumulative County Acceptable Waste Tonnage Target to be Used for Purposes of Section 4.2(B)
Fiscal Year County Acceptable Waste Tonnage Cumulative County Acceptable Waste Tonnage FY 2025-26 3,166,659 3,166,659
2. Contract Rate.
(a) The first paragraph of Section 4.2(A) of the Current WDA is deleted in its entirety and replaced with the following:
“(A) Establishment of Contract Rate. During the Extended Term, the Contract Rate payable by each Franchise Hauler shall be $43.76 per ton, contingent on the delivery to the Disposal System of an amount of Acceptable Waste at least equal to the Cumulative Tonnage Targets identified in Appendix 2, and subject to adjustment necessary to reflect the circumstances set forth in this Section 4.2 , subjections (i) through (z).”
Note: Subsections (i) through (z) found in the Current WDA remain unchanged.
3. Effectiveness of Second Amendment.
The provisions of this Second Amendment shall not become effective unless and until this Second Amendment has been executed by the County and all of the Participating Cities, and shall become effective once that occurs.
City Council
22 –
49 5/20/2025
Pag
e 5 of 5
4. Representations and Warranties of the Parties.
Each of the parties to this Second 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 that it has duly authorized the execution and delivery of this Second Amendment to each other party.
5. Remaining Terms.
All other terms and conditions of the Current WDA not specifically changed by this Second Amendment, shall remain in full force and effect.
IN W
ITNESS WHEREOF, COUNTY and CITY have caused this Second Amendment to be executed by their duly authorized officers or representatives as of the day and year first above written.
County of Orange
By _
______________________________
Director, OC Waste & Recycling
Date
_____________________
App
roved as to Form
By _
______________________________
County Counsel
Date
_____________________
City of Santa Ana
By _
______________________________
Alvaro Nuñez, City Manager
Date
_____________________
App
roved as to Form
Sonia R. Carvalho, City Attorney
By _
______________________________
Kyle Nellesen, Assistant City Attorney
Date _____________________
April 29, 2025
ATTEST:
__________________________________
Jennifer L. Hall
City Clerk
RECOMMENDED FOR APPROVAL:
_______________________________
Nabil Saba, PE
Executive Director
Public Works Agency
Nabil Saba
Digitally signed by Nabil Saba
Date: 2025.05.05 10:35:40 -07'00'
City Council
22 –
50 5/20/2025
Public Works Agency
www.santa-ana.org/pw
Item # 23
City of Santa Ana
20 Civic Center Plaza, Santa Ana, CA 92701
Staff Report
May 20, 2025
TOPIC: Resolution Authorizing Donation of Surplus Public Works Equipment to Sister City Sahuayo de Morelos, Michoacán, Mexico
AGENDA TITLE
Resolution Authorizing the City of Santa Ana to Donate Surplus Public Works Equipment to Sister City, Sahuayo de Morelos, Michoacán, Mexico
RECOMMENDED ACTION
Adopt a resolution authorizing the City of Santa Ana to donate surplus Public Works equipment to Sister City Sahuayo de Morelos, Michoacán, Mexico.
RESOLUTION NO. 2025-XXX entitled A RESOLUTION OF THE CITY COUNCIL OF
THE CITY OF SANTA ANA AUTHORIZING DONATION OF SURPLUS PUBLIC
WORKS EQUIPMENT TO SISTER CITY, SAHUAYO DE MORELOS
GOVERNMENT CODE §84308 APPLIES: No
DISCUSSION
In 2022, the City of Santa Ana established a new sister city relationship with Sahuayo de Morelos, Michoacán, Mexico (Sahuayo) to foster friendship, goodwill, and charitable collaboration. This partnership also supports educational, cultural, environmental, and business exchanges between the two cities. Like many growing communities, Sahuayo faces significant challenges in maintaining its water and sewer infrastructure, and in meeting the demand for clean, potable water. For this reason, limited resources have made it difficult for Sahuayo to regularly inspect and maintain its systems or to track water usage through customer metering. Additionally, their water system lacks essential valves needed to manage supply and maintain adequate water pressure during repairs.
The Public Works Agency’s Water Resources Division possesses surplus equipment that is no longer utilized due to age, obsolescence, or incompatibility with current standards and/or processes within the City. This surplus equipment would typically be subject to destruction, recycling, or sent to auction. However, the equipment could significantly improve Sahuayo’s ability to maintain, operate, and enhance its water and sewer system infrastructure, ensuring cleaner water and better services for their community.
City Council
23 –
1 5/20/2025
Resolution Authorizing Donation of Surplus Public Works Equipment May 20, 2025
5 0
2 5
Staff recommends donation of the surplus equipment (Exhibit 1 and 2) to the City of Sahuayo de Morelos, Michoacán, Mexico to further the collaborative efforts between the two cities.
ENVIRONMENTAL IMPACT
There is no environmental impact associated with the action.
FISCAL IMPACT
The estimated value of the surplus equipment is $35,370 (Exhibit 2).
EXHIBIT(S)
1. Resolution
2. Equipment List
Submitted By: Nabil Saba, P.E., Executive Director – Public Works Agency Approved By: Alvaro Nuñez, City Manager
City Council
23 –
2 5/20/2025
Resolution No. 2025-XXX
RESOLUTION NO. 2025-xxx
A RESOLUTION OF THE CITY COUNCIL OF THE CITY
OF SANTA ANA AUTHORIZING DONATION OF
SURPLUS PUBLIC WORKS EQUIPMENT TO SISTER
CITY, SAHUAYO DE MORELOS
BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF SANTA ANA AS FOLLOWS:
Section 1. The City Council of the City of Santa Ana hereby finds, determines and declares as follows:
A. In 2022, the City of Santa Ana established a new sister city relationship with the city of Sahuayo de Morelos, Michoacán, Mexico (“Sahuayo”) to promote and encourage friendship, goodwill and charity and promote educational, cultural, environmental and business exchanges between the two municipalities.
B. Sahuayo faces challenges in inspection and maintaining its water and sewer utility infrastructure , as well as m etering customer water consumption. In addition, their water system lacks the valves necessary to manage their water supply and isolate sections of the distribution system to maintain pressure while making needed repairs.
C. The Public Works Agency Water Resources Division possesses surplus equipment that is no longer utilized due to age, obsolescence or incompatibility with current standards and/or processes. A full list of this equipment, in cluding quantifies and estimated value, is included as an Exhibit accompanying this item. This surplus equipment would typically be subject to destruction, recycling, or sent to auction. However, donation of this equipment could significantly improve Sahuayo’s ability to maintain, operate, and enhance its water and sewer system infrastructure, ensuring cleaner water and better services for their community.
D. The City Council of the City of Santa Ana believes that authorizing the donation of this equipment to Sahuayo would serve to promote friendship, goodwill and charity, as well as providing substantial enhancement to the infrastructure and maintenance of Sahuayo’s water and sewer systems.
Section 2. The City Council of the City of Santa Ana hereby authorizes the donation of surplus equipment from the Public Works Agency Water Resources Division as outlined above. Such donation may include transfer via use of volunteer EXHIBIT 1
City Council
23 –
3 5/20/2025
Resolution No. 2025-XXX
intermediaries, on terms as may b e acceptable to the City Manager a nd City Attorney. S uch terms shall inclu de an agreement an d releas e from liability.
Section 3. This Resolution shall take effect immediately upon the signing of this Resolution by the City Council and the City Clerk shall attest to and certify this the vote adopting this Resolution.
SIGNED this day of _______________ , 2025.
______________________________
Valerie Amezcua
Mayor
APPROVED AS TO FORM:
Sonia R. Carvalho, City Attorney
By: Kyle Nellesen
Assistant City Attorney
AYES: C
ouncilmembers
NOES: C
ouncilmembers
ABSTAI
N: Councilmembers
NOT PRES
ENT: Councilmembers
CERTI
FICATE OF ATTESTATION AND ORIGINALITY
I, JENNI
FER L. HALL , City Clerk, do hereby attest to and certify the attached Resolution No. 2025-XXX to be the original resolution adopted by the City Council of the City of Santa Ana on , 2025.
Date:
_______________ _____________________________
City Clerk
City of Santa Ana
City Council
23 –
4 5/20/2025
EXHIBIT 2
Item Description Model Quantity
Estimated Value /
Per Unit
Total Estimated
Value
Water Meters Various 1,000 $3.20 $3,200*
Clay Valve 1 $640 $640*
90 Clay Valve 1 $480 $480*
Whisperwatt Diesel Powered AC Generator DCA‐220SSVU 1 $9,500 $9,500 CCTV Trailer (Wells Cargo 6x10) TW121, Manufactured 5/15/2008 1 $3,500 $3,500 Vacuum Trailer Pacific Tek PV‐350, Year 2000 1 $4,000 $4,000 Concrete sawcut machine Husqvarna FS 4,000 1 $2,500 $2,500 4" Portable Pump Godwin SD 150M Dri‐Prime Pump, Year 2012 1 $6,000 $6,000 Lateral Bursting System Hammerhead PB30 1 $3,000 $3,000 Hydraulic Power Unit Stanley HP28 1 $2,500 $2,500
Well Sounder 1 $50 $50
TOTAL $35,370
* Items marked with asterisk represent the salvage value of materials (selling material as scrap); all other values are potential auction values.
City Council
23 –
5 5/20/2025
Police Department
www.santa-ana.org/pd
Item # 24
City of Santa Ana
20 Civic Center Plaza, Santa Ana, CA 92701
Staff Report
May 20, 2025
TOPIC: Second Reading of an Ordinance Adding Article XIV to Chapter 10 (Crimes and Miscellaneous Law Enforcement Provisions) of the Santa Ana Municipal Code Prohibiting The Sale or Distribution of Nitrous Oxide
AGENDA TITLE
Second Reading of an Ordinance Adding Article XIV to Chapter 10 (Crimes and Miscellaneous Law Enforcement Provisions) of the Santa Ana Municipal Code Prohibiting the Sale or Distribution of Nitrous Oxide
First reading conducted at the May 6, 2025 City Council meeting and approved by vote of 7-0. Legal notice published in the OC Reporter on May 9, 2025.
RECOMMENDED ACTION
Conduct a second reading and adopt an Ordinance adding Article XIV to Chapter 10 (Crimes and Miscellaneous Law Enforcement Provisions) of the Santa Ana Municipal Code prohibiting the sale or distribution of Nitrous Oxide:
ORDINANCE NO. NS-3079 entitled AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF SANTA ANA ADDING ARTICLE XIV TO CHAPTER 10 OF THE SANTA ANA
MUNICIPAL CODE (CRIMES AND MISCELLANEOUS LAW ENFORCEMENT
PROVISIONS) PROHIBITING THE SALE OR DISTRIBUTION OF NITROUS OXIDE [Includes determination that the ordinance is not subject to the California Environmental Quality Act (CEQA) pursuant to CEQA and Sections 15060(c)(2) and 15060(c)(3) of the CEQA Guidelines because it will not result in a direct or reasonably foreseeable indirect change in the environment and is not a “project” as defined in Section 15378 of the CEQA Guidelines as well as pursuant to the “common sense” exemption set forth in CEQA Guidelines Section 15061(b)(3)]
GOVERNMENT CODE §84308 APPLIES: No
DISCUSSION
At the May 6, 2025 meeting, the City Council conducted a first reading of an ordinance adding Article XIV to Chapter 10 (Crimes and Miscellaneous Law Enforcement
City Council
24 –
1 5/20/2025
Ordinance Adding Article XIV to Chapter 10 (Crimes and Miscellaneous Law Enforcement Provisions) of the Santa Ana Municipal Code Prohibiting The Sale or Distribution of Nitrous Oxide
May 20, 2025
5 0
3 6
Provisions) of the Santa Ana Municipal Code prohibiting the sale or distribution of nitrous oxide in the City. The ordinance, approved 7:0, requires a second reading.
The following changes to the ordinance were made by the City Council:
1) An amendment was made to include a public health campaign to be initiated by the City to raise community awareness regarding the health dangers of Nitrous Oxide abuse, its appearance and common delivery methods for identification purposes, and to educate the public of the prohibitions, requirements, and penalties. 2) An amendment was made to require the City to collect and record all citation and arrest data to monitor any disparities, if any, in the enforcement of this ordinance, to include demographic data.
A copy of the ordinance for second reading is attached to this report as Exhibit 1.
ENVIRONMENTAL IMPACT
There is no environmental impact associated with this action.
FISCAL IMPACT
There is no fiscal impact associated with this action.
EXHIBIT(S)
1. Ordinance for Second Reading
Submitted By: Robert Rodriguez, Police Chief
Approved By: Alvaro Nuñez, City Manager
City Council
24 –
2 5/20/2025
Ordinance No. NS-XXX
ORDINANCE NO. NS-XXXX
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF
SANTA ANA ADDING ARTICLE XIV TO CHAPTER 10 OF
THE SANTA ANA MUNICIPAL CODE (CRIMES AND
MISCELLANEOUS LAW ENFORCEMENT PROVISIONS)
PROHIBITING THE SALE OR DISTRIBUTION OF NITROUS
OXIDE
WHEREAS, the City of Santa Ana (City) is empowered pursuant to California Constitution, Article XI, Section 7 to make and enforce within its limits all local, police, sanitary, and other ordinances and regulations not in conflict with general laws; and
WHEREAS, the City is specifically empowered by the California Health and Safety Code, Section 101450, as may be hereafter amended or renumbered, to take measures as may be necessary to preserve and protect the public health, including the adoption of ordinances, regulations, and orders not in conflict with the general laws; and
WHEREAS, Nitrous Oxide is an odorless, colorless chemical that can be inhaled for legitimate purposes associated with medical or dental procedures in a clinical setting, and is legitimately used for industrial purposes and as a propellant for food products; and
WHEREAS, Nitrous Oxide is also subject to recreational misuse and abuse, in part, because it is easy to purchase from retail vendors and relatively inexpensive; and
WHEREAS, the recreational misuse and abuse of Nitrous Oxide can cause permanent vitamin deficiencies in the blood, and can cause long -term neurological effects, including paralysis and death; and
WHEREAS, the incidence of Nitrous Oxide recreational misuse and abuse has been on the rise within the county, nationally, and internationally over the past decade, with multiple medical studies noting significant increases in recreational misuse in the past five years, as well as a broader medical understanding of the long-term hematological and neurological impacts of Nitrous Oxide misuse and abuse; and
WHEREAS, the City does not currently regulate the sale of Nitrous Oxide and finds and declares that in the absence of local regulation, Nitrous Oxide remains subject to significant risk of misuse and abuse through sale to individuals who intend to misuse or abuse the product; and
WHEREAS, the City desires to regulate the sale of Nitrous Oxide in order to preserve and protect public health and to dissuade sellers of Nitrous Oxide products from selling to individuals which they know or have reason to know intend to use the products for illegal purposes (i.e., recreational ingestion and/or inhalation).
City Council
24 –
3 5/20/2025
Ordinance No. NS-XXX
WHEREAS, the City Council desires that the City initiate a public health campaign to raise community awareness regarding the health dangers of Nitrous Oxide abuse, its appearance and common delivery methods for identification purposes, and to educate the public of the prohibitions, requirements, and penalties set forth in this ordinance.
WHEREAS, the City Council desires that the City collect and record all citation and arrest data pursuant to this article in an effort to monitor disparities, if any, in the enforcement of this ordinance.
THE CITY COUNCIL OF THE CITY OF SANTA ANA HEREBY ORDAINS AS FOLLOWS:
Section 1. New Article XIV is hereby added to Chapter 10 of the Santa Ana Municipal Code (CRIMES AND MISCELLANEOUS LAW ENFORCEMENT PROVISIONS) to read in full as follows:
ARTICLE XIV. - PROHIBITION ON SALE OR DISTRIBUTION OF NITROUS OXIDE
Sec. 10-900. - Authority and Purpose.
This article is enacted pursuant to the City’s plenary police powers to protect the public safety, health and welfare. The express purpose of this article is to protect the public health and safety by eliminating retail access for recreational use of nitrous oxide, which is a dangerous gas that may be illicitly used as an intoxicant.
Sec. 10-901 - Definitions.
For purposes of this article, the following definitions apply.
(a) “Device” means any cartridge, compressed gas cylinder, apparatus, container, balloon, attachment, nozzle, or other object used to contain, dispense or administer nitrous oxide.
(b) “Nitrous oxide” means the colorless nonflammable gas sometimes identified as N2O, which is sometimes used in aerosols and sometimes used as an anesthetic, and which, when inhaled, produces loss of sensibil ity to pain, often preceded by exhilaration and laughter and often used as an anesthetic in dentistry. Nitrous oxide is often informally or colloquially referred to as “laughing gas,” “NOX,” “galaxy gas,” “whippits,” amongst others.
(c) “Person” means any individual or legal entity however constituted or organized.
(d) “Wholesale capacity” means sale of or distribution of nitrous oxide or a device to dispense nitrous oxide to a person that will use nitrous oxide or the device in service or products for resale. Examples include, but are not limited to, commercial sale of dentistry supplies to dentists or dentistry offices, commercial sale of devices
City Council
24 –
4 5/20/2025
Ordinance No. NS-XXX
for the use in food production or in a commercial kitchen, and/or commercial sale of nitrous oxide for the purpose of producing food products for commercial sale (e.g., whipped cream canisters).
Sec. 10-902 - Prohibition on Sale or Distribution of Nitrous Oxide.
Except as otherwise explicitly authorized by law or allowed under this article, it is unlawful for any person to sell, attempt to sell, offer, distribute or otherwise provide to any person nitrous oxide, a device to dispense or administer nitrous oxide, or any device that contains any quantity of nitrous oxide.
Sec. 10-903 - Exceptions to Prohibition.
This article does not apply to the sale, attempt to sell, distribution, or other manner of providing nitrous oxide, or a device containing nitrous oxide, in the following exempt circumstances:
(a) If the nitrous oxide is contained in a food product for use as a propellant.
(b) If the nitrous oxide or device is being sold, attempted to be sold, offered, or distributed in a wholesale capacity, for uses similar to those described in subsection (d) of section 10-901. This exemption only applies if the wholesaler does not know or have reason to know that the recipient intends to use the nitrous oxide or device in violation of section 10-902.
(c) If the nitrous oxide or device that is being sold, attempted to be sold, offered, or distributed is specifically designed for use in a vehicle to enhance the performance of the vehicle.
(d) If the nitrous oxide is being sold, attempted to be sold, offered, or distributed specifically for the purpose of providing medical or dental care, by or at the direction and under the supervision of, a medical or dental practitioner licensed by the State of California and in accordance with all applicable rules and regulations.
(e) If the nitrous oxide or device is being sold, attempted to be sold, offered, distributed, or dispensed by a pharmacist, phar macist intern, or pharmacy as defined by California Business & Professions Code§§ 4030, 4036, and 4037, as may be amended, in the course of their duties as a pharmacist or pharmacist intern, or wholesalers licensed by the Board of Pharmacy.
(f) Or any other circumstances explicitly exempted under law.
Any sales or distributions of Nitrous Oxide contemplated under this section shall comply with all documentation requirements set forth in California Penal Code §381e.
City Council
24 –
5 5/20/2025
Ordinance No. NS-XXX
Sec. 10-904 - Violations and Penalties.
Every violation of the provisions of this article may be charged as either a misdemeanor or as an infraction in the discretion of the citing officer or city attorney and, upon conviction thereof, shall be punishable as provided for in Section 1-8 of this C ode. Each day any violation of any said provision of this chapter shall continue shall constitute a separate offense. Alternatively, violations may be addressed through the use of an administrative citation as set forth in Sections 1-21.1 through 1-21.9. Use of criminal enforcement and/or administrative citations shall not prevent or preclude the City from seeking injunctive relief and civil penalties in court for violations of this article. This section shall not serve to limit any other legal remedies or actions that the City may have to address violations of section 10-902.
Sec. 10-905 – Severability.
If any section, paragraph, sentence, clause, phrase or portion of this article is held invalid or unconstitutional by any court of competent jurisdiction, such portion shall be deemed severable and such holding shall not affect the validity of the remainin g portions hereof.
The City Council hereby declares that it would have adopted this article irrespective of the invalidity of any particular portion thereof and intends that the invalid portions should be severed, and the balance of the article be enforced.
Secs. 10-906 – 10-999. - Reserved
Section 2. The City Council finds and determines that this ordinance is not subject to the California Environmental Quality Act (CEQA). Pursuant to CEQA and Sections 15060(c)(2) and 15060(c)(3) of the CEQA Guidelines , the adoption of this Ordinance is exempt from CEQA review because it will not result in a direct or reasonably foreseeable indirect physical change in the environment, as there is no possibility it will have a significant effect on the environment and it is not a "project", as defined in Section 15378 of the CEQA Guidelines. Furthermore, the proposed ordinance falls within the “common sense” CEQA” exemption set forth in CEQA Guidelines section 15061(b)(3), excluding projects where “it can be seen with certainty that there is no possibility that the activity in question may have a significant effect on the environment.”
Section 3. This ordinance shall become effective thirty (30) days after its adoption.
Section 4. The City Clerk shall certify the adoption of this ordinance and shall cause the same to be published as required by law.
ADOPTED this _______ day of ___________, 2025.
_________________________
Valerie Amezcua
Mayor
City Council
24 –
6 5/20/2025
Ordinance No. NS-XXX
APPROVED AS TO FORM
Sonia R. Carvalho, City Attorney
By: _________________________
Jonathan T. Martinez
Assistant City Attorney
AYES: Councilmembers: _________________________________
NOES: Councilmembers: _________________________________
ABSTAIN: Councilmembers: _________________________________
NOT PRESENT: Councilmembers: _________________________________
CERTIFICATE OF ATTESTATION AND ORIGINALITY
I, __________________, City Clerk, do hereby attest to and certify that the attached Ordinance No. NS-______ to be the original ordinance adopted by the City Council of the City of Santa Ana on _____________________, and that said ordinance was published in accordance with the Charter of the City of Santa Ana.
Date: ______________________ ________________________________ City Clerk
City of Santa Ana
City Council
24 –
7 5/20/2025
City Manager’s Office
www.santa-ana.org/cm
Item # 25
City of Santa Ana
20 Civic Center Plaza, Santa Ana, CA 92701
Staff Report
May 20, 2025
TOPIC: Resolutions for Positions on Various State Legislative Proposed Bills
AGENDA TITLE
Resolutions Supporting California Senate Bills 28 and 38 (Umberg), 569 (Blakespear), and 757 (Richardson)
RECOMMENDED ACTION
Adopt the following resolutions in support of state legislative efforts aligned with the City’s goals of enhancing the quality of life for residents through community safety, housing stability, and criminal justice reform:
1. RESOLUTION NO. 2025-XXX entitled A RESOLUTION OF THE CITY COUNCIL
OF THE CITY OF SANTA ANA IN SUPPORT OF CALIFORNIA SENATE BILLS 28 AND 38 BY SENATOR THOMAS J. UMBERG TO STRENGTHEN
TREATMENT COURT STANDARDS AND REENTRY OPPORTUNITIES
THROUGH THE SECOND CHANCE PROGRAM; and
2. RESOLUTION NO. 2025-XXX entitled A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF SANTA ANA SUPPORTING CALIFORNIA SENATE BILL 569
BY SENATOR CATHERINE BLAKESPEAR, THE HOMELESS ENCAMPMENT
COLLABORATION ACT, TO STRENGTHEN LOCAL COLLABORATION WITH THE DEPARTMENT OF TRANSPORTATION; and
3. RESOLUTION NO. 2025-XXX entitled A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF SANTA ANA IN SUPPORT OF SENATE BILL 757 BY SENATOR STEVEN RICHARDSON, THE LOCAL GOVERNMENT – NUISANCE
ABATEMENT, TO EXPAND AND STRENGTHEN LOCAL AUTHORITY AND
CONTROL
GOVERNMENT CODE §84308 APPLIES: No
City Council
25 –
1 5/20/2025
Resolutions for Positions on Various State Legislative Proposed Bills May 20, 2025
5 0
6 2
DISCUSSION
The City of Santa Ana remains committed to enhancing the quality of life for all residents by advancing community well-being, public safety, and equity through thoughtful policies and strategic partnerships. In support of these priorities, staff recommends that the City Council adopt three resolutions endorsing key state legislative proposals introduced during the 2025 legislative session.
BACKGROUND AND ANALYSIS
Senate Bills 28 and 38 (Umberg)
SB 28 standardizes treatment court practices statewide, improving outcomes for participants in drug, mental health, and veterans courts. SB 38 creates the Second Chance Program, which provides reentry services including housing, workforce development, and mental health care for formerly incarcerated individuals. Both measures support Santa Ana’s dedication to restorative justice and comprehensive community safety. The City has submitted letters of support for both bills.
Senate Bill 569 (Blakespear)
SB 569 addresses homelessness on state transportation property, where coordination with Caltrans has historically been limited. This bill would establish a dedicated Caltrans liaison, authorize delegated maintenance agreements, and improve cross-jurisdictional collaboration without imposing unfunded mandates on local governments. The bill promotes timely and humane responses to encampments. Santa Ana submitted a letter of support recognizing the bill’s alignment with local needs.
Senate Bill 757 (Richardson)
This bill strengthens local authority to enforce nuisance abatement through liens and special assessments for properties that violate building and fire codes. SB 757 requires reinvestment of collected fines into enforcement efforts and mandates a hardship waiver process to ensure equity. It supports Santa Ana’s ongoing commitment to safe and well- maintained neighborhoods. The City submitted a formal letter of support for SB 757 through the Legislature’s Position Letter Portal.
Each resolution affirms the City’s legislative advocacy role and expresses clear support for these bills, enabling staff to further engage with state legislators and coalitions to ensure passage.
ENVIRONMENTAL IMPACT
There is no environmental impact associated with this action.
FISCAL IMPACT
There is no fiscal impact associated with this action.
City Council
25 –
2 5/20/2025
Resolutions for Positions on Various State Legislative Proposed Bills May 20, 2025
5 0
6 2
EXHIBIT(S)
1. Exhibit 1 – Resolution in Support of Senate Bills 28 and 38 (Umberg)
2. Exhibit 2 – Resolution in Support of Senate Bill 569 (Blakespear)
3. Exhibit 3 – Resolution in Support of Senate Bill 757 (Richardson) Submitted By: Sylvia Vazquez, Deputy City Manager
Approved By: Alvaro Nuñez, City Manager
City Council
25 –
3 5/20/2025
Resolution No. 2025-XXX
RESOLUTION NO. 2025-XXX
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
SANTA ANA IN SUPPORT OF CALIFORNIA SENATE BILLS
28 AND 38 BY SENATOR THOMAS J. UMBERG TO
STRENGTHEN TREATMENT COURT STANDARDS AND
REENTRY OPPORTUNITIES THROUGH THE SECOND
CHANCE PROGRAM
WHEREAS, the City of Santa Ana submitted position letters to the California State Legislature Position Letter Portal for SB 28 and 38 to reaffirm the City’s commitment to enhancing the quality of life for all residents.
WHEREAS, the City of Santa Ana is committed to advancing equity and public safety through evidence-based alternatives to incarceration and enhanced rehabilitation opportunities for justice-involved individuals; and
WHEREAS, Senate Bill (SB) 28, authored by Senator Tom Umberg, establishes clear and consistent statewide standards for treatment courts, including dru g courts, mental health courts, and veterans treatment courts, ensuring that all participants across California receive high -quality, effective, and equitable access to services that reduce recidivism and support long-term recovery; and
WHEREAS, SB 28 directs the Judicial Council to develop best practice standards for treatment courts, enhancing transparency and accountability in how these courts operate and making certain that public funds are used efficiently and effectively; and
WHEREAS, SB 38, also au thored by Senator Umberg, establishes the Second Chance Program to support local agencies and community -based organizations in helping formerly incarcerated individuals successfully reenter society, with services including housing support, job training, mental health care, and education; and
WHEREAS, SB 38 promotes long -term public safety by investing in people reentering the community and helping them become stable, contributing members of society, thereby reducing repeat offenses and strengthening families and neighborhoods; and
WHEREAS, both SB 28 and SB 38 reflect the City of Santa Ana’s values of restorative justice, smart rehabilitation, and a holistic approach to community safety.
NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Santa Ana, that:
Section 1. The City of Santa Ana hereby supports Senate Bill 28 and Senate Bill 38 and urges the California State Legislature to pass these critical measures to improve treatment court operations and expand reentry support services across the state.
City Council
25 –
4 5/20/2025
Resolution No. 2025-XXX
Section 2. This Resolution shall take effect immediately upon its adoption by the City Council, and the Clerk of Council shall attest to and certify the vote adopting this Resolution.
ADOPTED this _____ day of ____________, 2025.
________________________________
Valerie Amezcua
Mayor
APPROVED AS TO FORM:
Sonia R. Carvalho, City Attorney
By:
AYES: Councilmembers
NOES: Councilmembers
ABSTAIN: Councilmembers
NOT PRESENT: Councilmembers
CERTIFICATION OF ATTESTATION AND ORIGINALITY
I, Jennifer L. Hall, City Clerk, do hereby attest to and certify the attached Resolution No. 2025-XXX to be the original resolution adopted by the City Council of the City of Santa Ana on _______________.
Date: ______________________ ________________________________ City Clerk
City of Santa Ana
City Council
25 –
5 5/20/2025
Resolution No. 2025-XXX
RESOLUTION NO. 2025-XXX
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
SANTA ANA SUPPORTING CALIFORNIA SENATE BILL 569
BY SENATOR CATHERINE BLAKESPEAR, THE
HOMELESS ENCAMPMENT COLLABORATION ACT, TO
STRENGTHEN LOCAL COLLABORATION WITH THE
DEPARTMENT OF TRANSPORTATION
WHEREAS, the City of Santa Ana submitted a letter of support to the California State Legislature Position Letter Portal for S enate Bill (S B) 569 to reaffirm the City’s commitment to the enhancing the quality of life for all residents; and
WHEREAS, homelessness is a critical issue facing the State of California and the City of Santa Ana, with many individuals residing in encampments on or ne ar state transportation property, which continue to lack proper oversight and response to issues related to these types of concerns and have become a blight on cities across California ; and
WHEREAS, the California Department of Transportation (Caltrans) o wns and operates significant land areas within Santa Ana, including rights-of-way along highways and freeways and the Department of Motor Vehicles Santa Ana Office , where encampments often develop and pose serious public health, safety, and environmental concerns; and
WHEREAS, Caltrans currently faces barriers in coordinating with local governments regarding the response to and management of homeless encampments located on its property in a timely manner; and
WHEREAS, SB 569 by Senator Catherine Blakespear — the California Homeless Encampment Collaboration Act — would require Caltrans to designate a dedicated liaison to serve as the primary point of contact for state and local agencies addressing homeless encampments on Caltrans property; and
WHEREAS, SB 569 would authorize Caltrans to enter into delegated maintenance agreements with local governments and provide general entry permits for the duration of those agreements to streamline interagency response efforts; and
WHEREAS, SB 569 does not incorporate funding language, instead includes language in SEC. 3. Section 130.4 Subsection (c) that specifically states that the Legislature shall not be required to provide reimbursement to local governments for services rendered pursuant to delegated maintenance a greements for addressing homeless encampments; and
City Council
25 –
6 5/20/2025
Resolution No. 2025-XXX
WHEREAS, SB 569 further requires Caltrans to prepare an annual report summarizing homeless encampment activities and recommendations, promoting transparency, accountability, and long-term strategic planning; and
WHEREAS, the City of Santa Ana supports legislative efforts that enable effective and compassionate management of homelessness while ensuring public safety, health, and local coordination; and
WHEREAS, the City of Santa Ana thanks Senator Blakesp ear for continuing to advocate on behalf of local governments and believes that SB 569 will improve cross - jurisdictional collaboration and lead to more effective solutions to address encampments on transportation property.
NOW, THEREFORE, BE IT RESOLVED b y the City Council of the City of Santa Ana, that:
Section 1. The City of Santa Ana supports Senate Bill 569 (Blakespear) and urges its swift passage and enactment by the California State Legislature and the Governor.
Section 2. This Resolution shall tak e effect immediately upon its adoption by the City Council, and the Clerk of Council shall attest to and certify the vote adopting this Resolution.
ADOPTED this _____ day of ____________, 2025.
________________________________
Valerie Amezcua
Mayor
APPROVED AS TO FORM:
Sonia R. Carvalho, City Attorney
By:
City Council
25 –
7 5/20/2025
Resolution No. 2025-XXX
AYES: Councilmembers
NOES: Councilmembers
ABSTAIN: Councilmembers
NOT PRESENT: Councilmembers _
CERTIFICATION OF ATTESTATION AND ORIGINALITY
I, Jennifer L. Hall, City Clerk, do hereby attest to and certify the attached Resolution No. 2025-XXX to be the original resolution adopted by the City Council of the City of Santa Ana on _______________.
Date: ______________________ ________________________________ City Clerk
City of Santa Ana
City Council
25 –
8 5/20/2025
Resolution No. 2025-XXX
RESOLUTION NO. 2025-XXX
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
SANTA ANA IN SUPPORT OF SENATE BILL 757 BY
SENATOR STEVEN RICHARDSON, THE LOCAL
GOVERNMENT – NUISANCE ABATEMENT , TO EXPAND
AND STRENGTHEN LOCAL AUTHORITY AND CONTROL
WHEREAS, the City of Santa Ana submitted a letter of support to the California State Legislature Position Letter Portal for Senate Bill (SB) 757 to reaffirm the City’s commitment to the enhancing the quality of life for all residents; and
WHEREAS, the City of Santa Ana is committed to protecting public health, safety, and the quality of life in all neighborhoods through effective enforcement of building, housing, and fire codes; and
WHEREAS, properties that fall into disrepair or violate safety standards can create serious public nuisances, posing threats to the well-being of residents and placing undue strain on municipal resources; and
-
WHEREAS, local governments, including Santa Ana, frequently fa ce challenges in addressing such nuisances due to limited enforcement tools and financial constraints associated with prolonged code enforcement actions; and
WHEREAS, SB 757, authored by Senator Steven Bradford Richardson, seeks to expand and strengthen the authority of local governments to collect civil fines for certain nuisance abatement violations through the imposition of liens or special assessments, thereby providing a sustainable mechanism for funding code enforcement activities; and
WHEREAS, SB 7 57 requires that revenue generated from these fines be reinvested into local enforcement of state and local building and fire code standards, ensuring that resources directly support community safety and compliance efforts; and
WHEREAS, SB 757 requires lo cal agencies to provide a process for hardship waivers to protect financially vulnerable individuals from undue burden, and ensures fairness by mandating a reasonable opportunity for property owners to cure violations — except in cases of immediate danger to health or safety; and
WHEREAS, these provisions align with the City of Santa Ana’s values of equity, fairness, and effective public policy that supports safe and healthy communities; and
WHEREAS, the City of Santa Ana believes SB 757 will improve public safety, reduce blight, and provide meaningful tools for holding property owners accountable while safeguarding community interests.
City Council
25 –
9 5/20/2025
Resolution No. 2025-XXX
NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Santa Ana that:
SECTION 1. The City of Santa Ana hereby expresses its strong support for SB 757 (Richardson) and urges the California State Legislature and the Governor to enact this legislation to improve local government enforcement of nuisance abatement laws.
SECTION 2. This Resolution shall take effect immediately upon its adoption by the City Council.
ADOPTED this _____ day of ____________, 2025.
________________________________
Valerie Amezcua
Mayor
APPROVED AS TO FORM:
Sonia R. Carvalho, City Attorney
By:
AYES: Councilmembers
NOES: Councilmembers
ABSTAIN: Councilmembers
NOT PRESENT: Councilmembers _
CERTIFICATION OF ATTESTATION AND ORIGINALITY
I, Jennifer L. Hall, City Clerk, do hereby attest to and certify the attach ed Resolution No. 2025-XXX to be the original resolution adopted by the City Council of the City of Santa Ana on _______________.
Date: ______________________ ________________________________ City Clerk
City of Santa Ana
City Council
25 –
10 5/20/2025
City Manager’s Office
www.santa-ana.org/cm
Item # 26
City of Santa Ana
20 Civic Center Plaza, Santa Ana, CA 92701
Staff Report
May 20, 2025
TOPIC: Ordinance Adding Article XII Entitled Disclosure of Certain Enforcement Actions to Chapter 2 of the Sana Ana Municipal Code Requiring Disclosure of Federal Election Commission and California Fair Political Practices Commission Enforcement Actions
AGENDA TITLE
Ordinance Adding Article XII Entitled Disclosure of Certain Enforcement Actions to Chapter 2 of the Sana Ana Municipal Code Requiring Disclosure of Federal Election Commission and California Fair Political Practices Commission Enforcement Actions
RECOMMENDED ACTION
Conduct a first reading and adopt an ordinance adding Article XII entitled Disclosure of Certain Enforcement Actions to Chapter 2 of the Santa Ana Municipal Code requiring disclosure of Federal Election Commission and California Fair Political Practices Commission enforcement actions:
ORDINANCE NO. NS-XXXX entitled AN ORDINANCE OF THE CITY COUNCIL OF
THE CITY OF SANTA ANA ADDING ARTICLE XII ENTITLED DISCLOSURE OF CERTAIN ENFORCEMENT ACTIONS TO CHAPTER 2 OF THE SANTA ANA
MUNICIPAL CODE REQUIRING DISCLOSURE OF FEDERAL ELECTION
COMMISSION AND CALIFORNIA FAIR POLITICAL PRACTICES COMMISSION
ENFORCEMENT ACTIONS FOR CERTAIN LICENSES, PERMITS OR OTHER
ENTITLEMENTS FOR USE
GOVERNMENT CODE §84308 APPLIES: No
DISCUSSION
The proposed ordinance requires that any party or participant involved in the application for a license, permit, or entitlement for use disclose final enforcement actions taken by the Federal Election Commission (FEC) or the California Fair Political Practices Commission (FPPC). These disclosures are aimed at ensuring transparency and accountability in the process of granting entitlements within the City. This amendment will ensure that the public is informed about any prior enforcement actions related to political campaign finance, which is crucial for maintaining trust in the city's licensing and entitlement processes.
City Council
26 –
1 5/20/2025
Ordinance Requiring Disclosure of Federal Election Commission and California Fair Political Practices Commission Enforcement Actions
May 20, 2025
5 0
6 4
Consistent with State and Federal Regulations, by aligning with California Government Code and federal law, this amendment ensures consistency with broader regulatory frameworks governing political conduct and enforcement in the City of Santa Ana.
Additionally, including the enforcement disclosure in public notices and staff reports, and requiring oral disclosure during public meetings, ensures that the community is fully informed when reviewing applications for licenses or entitlements.
The ordinance establishes penalties for failure to disclose, which may be pursued as either misdemeanors or infractions, at the discretion of the City Attorney or citing officer.
This flexibility in enforcement provides the City with a range of tools to address violations of the disclosure requirements.
ENVIRONMENTAL IMPACT
There is no environmental impact associated with this action.
FISCAL IMPACT
The implementation of this ordinance is expected to have minimal fiscal impact. The primary costs will be associated with notifying applicants and ensuring compliance. City staff will need to review applications for the required disclosures and may need to make minor updates to public notices and staff reports. The ordinance does not require significant new infrastructure or resources.
EXHIBIT(S)
1. Ordinance Requiring Disclosure of Federal Election Commission and California Fair Political Practices Commission Enforcement Actions Submitted By: Sylvia Vazquez, Deputy City Manager
Approved By: Alvaro Nuñez, City Manager
City Council
26 –
2 5/20/2025
O
rdinance No. NS-XXX
ORDINANCE NO. NS-XXX
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF
SANTA ANA ADDING ARTICLE XII ENTITLED
DISCLOSURE OF CERTAIN ENFORCEMENT ACTIONS TO
CHAPTER 2 OF THE SANTA ANA MUNICIPAL CODE
REQUIRING DISCLOSURE OF FEDERAL ELECTION
COMMISSION AND CALIFORNIA FAIR POLITICAL
PRACTICES COMMISSION ENFORCEMENT ACTIONS
FOR CERTAIN LICENSES, PERMITS OR OTHER
ENTITLEMENTS FOR USE
T
HE CITY COUNCIL OF THE CITY OF SANTA ANA DOES ORDAIN AS FOLLOWS:
Section 1. Article XII entitled “Disclosure of Certain Enforcement Actions” is added to Chapter 2 of the Santa Ana Municipal Code starting with Section 2-920 as follows:
A
RTICLE XII. – DISCLOSURE OF CERTAIN ENFORCEMENT ACTIONS S
ec. 2-920. -Definitions.
(a
) “Party” shall have the same meaning as that set forth in California Government Code Section 84308(a)(1) and as periodically amended. (b
) “Participant” shall have the same meaning as that set forth in California Government Code Section 84308(a)(2) and as periodically amended. (c) “License, permit or other entitlement for use” shall have the same meaning as that set forth in California Government Code Section 84308(a)(5)(A) and as periodically amended.
(d) “Final enforcement action” shall mean that the California Fair Political Practices Commission and/or Federal Election Commission has issued a warning letter, advisory letter, administrative penalty and/or fine.
S ection 2. Section 2- 921 shall be added to Article XII of Chapter 2 of the Santa Ana Municipal Code to read as follows:
S
ec. 2-921. – Disclosure of Federal Election Commission and California Fair Political Practices Commission Enforcement Actions Required.
(a
) Every party or participant in a proceeding involving a license, permit or other entitlement for use shall disclose any final enforcement action taken by the
City Council
26 –
3 5/20/2025
Ordinance No. NS-XXX
Federal Election Commission or the California Fair Political Practices Commission involving the party or participant in the last ten (10) years and shall include the enforcement action case number, date of final enforcement action, and nature of final enforcement action taken.
(b) Said disclosure shall be made in writing as part of the application process at the time the party applies for any license, permit or other entitlement for use. (c) Said disclosure shall be included as part of any public notice provided and set forth in any staff report for any public meeting pursuant to the Brown Act (California Government Code section 54950 et seq.) involving the party’s application for license, permit or other entitlement for use. (d) Said disclosure shall be made orally by any participant during public comment at any public meeting pursuant to the Brown Act (California Government Code section 54950 et seq.).
Section 3. Section 2-922 shall be added to Article XII, of Chapter 2 of the Santa Ana Municipal Code as follows:
Sec. 2-922.- Penalty for violation.
(a) Every violation of this article may be charged as either a misdemeanor or as an infraction in the discretion of the citing officer or city attorney and, upon conviction thereof, shall be punishable as provided for in section 1-8 of this Code. (b) Use of criminal enforcement and/or administrative citations shall not prevent or preclude the city from seeking all other legal remedies available in court for violations of this article.
Section 4. If any section, subsection, sentence, clause, phrase or portion of this ordinance is for any reason held to be invalid or unconstitutional by the decision of any court of competent jurisdiction, such decision shall not affect the validity of the remaining portions of this ordinance. The City Council of the City of Santa Ana hereby declares that it would have adopted this ordinance and each section, subsection, sentence, clause, phrase or portion thereof irrespective of the fact that any one or more sections, subsections, sentences, clauses, phrases, or portions be declared invalid or unconstitutional.
Section 5. This Ordinance shall become effective thirty (30) days after its adoption.
Section 6. The City Clerk shall certify the adoption of this Ordinance and shall cause the same to be published as required by law.
ADOPTED this day of May, 2025.
_______________________
Valerie Amezcua
Mayor
City Council
26 –
4 5/20/2025
Ordinance No. NS-XXX
APPROVED AS TO FORM:
Sonia R. Carvalho, City Attorney
By: ____________________________
Laura A. Rossini
Chief Assistant City Attorney
AYES: Councilmembers
NOES: Councilmembers
ABSTAIN: Councilmembers
ABSENT: Councilmembers
CERTIFICATE OF ATTESTATION AND ORIGINALITY
I, JENNIFER L. HALL,
City Clerk, do hereby attest to and certify the attached Ordinance No. NS-XXXXXX to be the original ordinance adopted by the City Council of the City of Santa Ana on , 2025.
Date: _________________ _______________________ Jennifer L. Hall
City Clerk
City of Santa Ana
City Council
26 –
5 5/20/2025
CITY ATTORNEY
Sonia R. Carvalho
CITY MANAGER
Alvaro Nuñez
CITY CLERK
Jennifer L. Hall
20 CIVIC CENTER PLAZA - P.O. BOX 1988, M31 - SANTA ANA, CALIFORNIA 92702 TELEPHONE (714) 647-6900 - FAX (714) 647-6954 - www.santa-ana.org Councilmember-Requested Item Report
DATE
May 20, 2025
TOPIC
Transparency and Public Notification of ICE/DHS Courtesy Alerts to Santa Ana Police Department
COUNCILMEMBER-REQUESTED ITEM TITLE
Discuss and Consider Providing Direction to the City Manager to Develop and Implement a Policy Requiring Immediate Disclosure of All ICE Courtesy Notifications Received by the Santa Ana Police Department
DISCUSSION
On May 5, 2025, data-based reporting by journalist Ben Camacho revealed that the Santa Ana Police Department (SAPD) received at least forty-two courtesy alerts from U.S. Immigration and Customs Enforcement (ICE) and the Department of Homeland Security (DHS) between January 20 and April of this year.1 These notifications informed SAPD that federal immigration agents planned to be active within our city, often during early morning hours.
SAPD did not disclose this information to the public, to the Council, or when asked directly about immigration enforcement activity at the February 4, 2025 Santa Ana City Council meeting. Subsequent meetings involving a similar line of questioning also did not mention any of the notifications, as reported by Voice of OC.2 This highlights a transparency gap in regards to ICE’s repeated presence in Santa Ana neighborhoods including near residential areas, schools, and places of worship. Such a transparency gap should be addressed, particularly given our city’s commitment to protecting and supporting all residents, including immigrant and refugee community members.
Existing California state law, including the California Values Act (SB 54), and local law both heavily limit the extent to which Santa Ana departments and agencies cooperate with federal immigration enforcement. SAPD clarified that it does not participate in or assist with ICE actions and that alerts are received strictly as a matter of officer safety 1 Ben Camacho, “EXCLUSIVE: Santa Ana Police Department Received Forty-Two Alerts From Immigration Agents And Did Not Tell The Community,” Inadvertent, May 5, 2025. https://inadvertent.substack.com/p/sapd-ice-data 2 Hosam Elattar, “Have Santa Ana’s Police Chief & City Manager Been Up Front With Residents About ICE Activity?” Voice of OC, May 6, 2025. https://voiceofoc.org/2025/05/has-santa-anas-police-chief-city-manager-been-up-front-with-residents-about- ice-activity/
City Council
27 –
1 5/20/2025
CITY ATTORNEY
Sonia R. Carvalho
CITY MANAGER
Alvaro Nuñez
CITY CLERK
Jennifer L. Hall
20 CIVIC CENTER PLAZA - P.O. BOX 1988, M31 - SANTA ANA, CALIFORNIA 92702 TELEPHONE (714) 647-6900 - FAX (714) 647-6954 - www.santa-ana.org and situational awareness. We appreciate this clarification and recognize the importance of keeping SAPD officers informed about potential ICE/DHS actions. At the same time, the public also deserves timely, accurate information about ICE/DHS activity occurring in their neighborhoods, especially when such information may affect residents’ sense of security and ability to make informed choices for themselves and their families.
SAPD already maintains the capacity to proactively share weekly data on firearm and narcotics seizures. The Department has no policy directing it to release such data proactively, yet SAPD does so of its own accord. Implementing a similar process for ICE courtesy notifications would be a practical and meaningful step toward ensuring consistent transparency on issues that directly affect community well-being. This proposal aims to strengthen residents’ trust in the City of Santa Ana and provide additional transparency and communication regarding important information within the public record that the community should have increased, direct access to.
Therefore, we would like to propose that the City Council direct the City Manager to:
1. Collaborate with the City Attorney and the SAPD Police Chief to develop a policy to immediately notify the Council, the Police Oversight Commission, and the public whenever a courtesy alert is received from ICE/DHS. a. This notice should be made available within 48 hours of receipt. b. The report must include:
i. The date and time of the communication
ii. The neighborhood or block targeted by ICE/DHS
iii. The nature of the federal activity (e.g. custody check-in, warrant service)
iv. Any known or stated outcomes, including if SAPD was asked to participate in an any capacity, if applicable
v. A redacted copy of the alert (when possible under law)
2. Establish a publicly accessible webpage where these notices will be published in real time, along with information about residents’ constitutional rights during interactions with federal immigration enforcement officers. Notices and accompanying information must be available in English, Spanish, and Vietnamese.
3. Instruct the Public Information Officer to publish these notices in real time on City of Santa Ana social media accounts and the SAPD to publish these notices in real time on SAPD social media accounts. Social media posts from the City of Santa Ana and SAPD social media accounts regarding these notices must be accompanied by links to the City of Santa Ana webpage containing information about residents’ constitutional rights during interactions with federal immigration enforcement officers.
4. Instruct SAPD to provide an oral report on ICE communications, including courtesy alerts, at each Council and Police Oversight Commission meeting.
City Council
27 –
2 5/20/2025
CITY ATTORNEY
Sonia R. Carvalho
CITY MANAGER
Alvaro Nuñez
CITY CLERK
Jennifer L. Hall
20 CIVIC CENTER PLAZA - P.O. BOX 1988, M31 - SANTA ANA, CALIFORNIA 92702 TELEPHONE (714) 647-6900 - FAX (714) 647-6954 - www.santa-ana.org
5. Report back to the Council within 30 days with a draft policy and timeline for implementation.
The expectation from the people we serve is clear: we must lead with transparency, not secrecy, when it comes to immigration enforcement activity in Santa Ana.
SUBMITTED BY
Councilmember Johnathan Ryan Hernandez and Mayor Pro Tem Benjamin Vazquez
City Council
27 –
3 5/20/2025
Finance and Management Services
www.santa-ana.org/finance
Item # 28
City of Santa Ana
20 Civic Center Plaza, Santa Ana, CA 92701
Staff Report
May 20, 2025
TOPIC: Fiscal Year 2025-26 Budget Work Study Session
AGENDA TITLE
Fiscal Year 2025-26 Budget Work Study Session
RECOMMENDED ACTION
Discuss and provide further direction to staff.
GOVERNMENT CODE §84308 APPLIES: No
DISCUSSION
The City Council first provided direction on the Fiscal Year 2025-26 (FY25-26) Budget during the Early Direction session held on March 18, 2025. Additional guidance was given during the stand-alone Work Study Session on May 15. The purpose of this Work Study Session is to offer City Council an opportunity to provide final input on the budget. To gather as much feedback as possible, the annual Budget Priorities Survey will remain open through May 19, with staff presenting the final survey results at the May 20 meeting.
Staff plans to incorporate the feedback received during the May 15 workshop into the presentation for the meeting on May 20. The draft budget posted on the City’s website does not yet include City Council direction from May 15. The proposed budget for the June 3 public hearing will incorporate City Council direction from both May 15 and May
20. The following table displays when each document will be shared with City Council and the public:
City Council
28 –
1 5/20/2025
Fiscal Year 2025-26 Budget Work Study Session
May 20, 2025
5 0
6 1
FY25-26 Document
Type
May 20, 2025
(Draft)
June 3, 2025
(Proposed)
June 17, 2025
(Proposed)
Detailed Budget
Document
•General Fund
Summary
•Cannabis
Spending
•Workforce
Changes
•Department
Budget Detail
•General Fund
Summary
•Cannabis
Spending
•Workforce
Changes
•Department
Budget Detail
•10-Yr Outlook
•Charter
Requirement for
Public Recreation
Program
Spending
•General Fund
Summary
•Cannabis
Spending
•Workforce
Changes
•Department
Budget Detail
•10-Yr
Outlook
•Charter
Requirement
for Public
Recreation
Program
Spending
Capital Improvement
Plan1 (CIP)- Includes
Seven-Year CIP
CIP Summary Proposed Document
Classification &
Compensation Plan1
N/A Proposed Document
Uniform Schedule of
Miscellaneous Fees1
Summary of New,
Modified & Deleted
Fees
Proposed Document
1City Council approval on June 3, 2025 formally adopts the CIP, the Classification & Compensation Plan, and the Uniform Schedule of Miscellaneous Fees. Only the Budget Ordinance is required to have a 2nd Reading.
On June 3, City Council is scheduled to hold a Public Hearing on the budget and consider the first reading of the ordinance to adopt the FY25-26 Budget, which covers the fiscal year from July 1, 2025, through June 30, 2026. The second reading and final adoption of the FY25-26 Budget Ordinance is scheduled for June 17.
ENVIRONMENTAL IMPACT
There is no environmental impact associated with this action.
FISCAL IMPACT
There is no direct fiscal impact at this time.
City Council
28 –
2 5/20/2025
Fiscal Year 2025-26 Budget Work Study Session
May 20, 2025
5 0
6 1
EXHIBIT(S)
1. May 15 Draft Budget Document- https://www.santa-ana.org/fiscal-year-2025-26- budget/
Submitted By: Alex Trinidad, Acting Executive Director of Finance and Management Services Agency
Approved By: Alvaro Nuñez, City Manager
City Council
28 –
3 5/20/2025