RES-9099 Solid Waste Handling Services ContractRESOLUTION NO. 9099
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
ORANGE APPROVING A TEN-YEAR FIXED
TERM CONTRACT WITH USA WASTE OF CALIFORNIA,
INC.,dba WASTE MANAGEMENT OF ORANGE TO
PROVIDE EXCLUSIVE SOLID WASTE HANDLING SERVICES
FOR THE
CITY.WHEREAS, pursuant to the provisions of the Califomia Public Resources Code
Section 400S9(a)(1), the City of Orange is authorized to determine all aspects of solid waste handling which
are of local concern;
and WHEREAS, Public Resources Code Section 400S9(a)(2) also authorizes the City to
determine whether solid waste handling services are to be provided by exclusive or non-exclusive
contract and whether the contract will be awarded with or without competitive
bidding; and WHEREAS, pursuant to Public Resources Code Section 400S9(a)(2), the City may
grant the authority to provide solid waste handling services under terms and conditions prescribed by
it by
resolution; and WHEREAS, the City has negotiated a favorable solid waste handling services
contract with Waste M~
magement, Inc.NOW, THEREFORE, BE IT RESOLVED, by the City Council of the City of
Orange,
as follows:1. The City Council hereby approves the Solid Waste Handling Services Agreement,
a copy of which is attached as
Exhibit "A".2. The Mayor is hereby authorized to execute the Agreement on behalf of
the City.ADOPTED this 27th day of
April
999.
ATTEST:zA/
A~kA4~City Clerk oft ity
I hereby certify that the foregoing Resolution was duly and regularly adopted by the City
Council of the City of Orange at a regular meeting thereof held on the 27th day of
April. , 1999, by the following vote:
AYES:COUNCIL MEMBERS: MURPHY, SLATER, COONTZ, SPURGEON, ALVAREZ
NOES:COUNCIL MEMBERS: NONE
ABSENT:COUNCIL MEMBERS: NONE
ABSTAIN:COUNCIL MEMBERS: NONE
0M-
AkCC City Clerk oft City of
Orange Reso No. 9099 2-DAD:
46-1f - :5 ~L( 7 .(;.
e.... \ ~
AGREEMENT
BETWEEN
CITY OF ORANGE AND
USA WASTE OF CALIFORNIA, INC.,
WASTE MANAGEMENT OF ORANGE
FOR
INTEGRATED SOLID WASTE
MANAGEMENT SERVICES
AGREEMENT
BETWEEN
CITY OF ORANGE
AND
USA WASTE OF CALIFORNIA, INC.,
WASTE MANAGEMENT OF ORANGE
FOR
INTEGRATED SOLID WASTE
MANAGEMENT SERVICES
TABLE OF CONTENTS
Page
RECITALS ..............................................................................,..................................................................1
ARTICLE 1 ........................................................,....................................................................................,..2
DEFINITIONS ...........................................................................................................................................................................2
1.1 AFFILIATE............................................................................................................................ ..................................,..2
1.2 AGREEM ENT .............................................................................................. .............................................. .................2
1.3
BILLINGS.............................................................................................................................. .....................................
2
1.4 BIN.................................................................................................................................... ........................................2
1.5 CALIFORNIA INTEGRATED WASTE MANAGEMENT ACT ............................................................................................3
1.6 CAN ..................................................................................................................................... .....................................3
1.7 CART................................................................................................................................. ........................................3
1.8 CiTy.................................................................................................................................. ........................................3
I. 9 COLLECT/COLLECTION............................................................................................................... .............................. 3
1.10 COMMERCIAL AND INDUSTRlAL PROPERTY .................................................................... ............ .............................. 3
1.11 COMPANY ...................................................................................................,. ............................................................ 3
1.12 COMPANY COMPENSATION..................................................................................................................... ..................3
1.13 CONSTRUCTION WASTE ...................................................... .................................. ........................ ............................ 3
1.14 CONTAINERS............................................................................................................................. ................................ 4
1.15 CUSTOMER................................................................................................................................. ...............................4
1.16 DiSPOSAL............................................................................................................................. .....................................4
1.17 DISPOSAL SITE( S) ................................................ ..................................................................................................... 4
1.18 ENVIRONMENTAL LAWS ...........................................................................................................................................4
1.19 FRANCHiSE........................................................................................................................... ....................................4
1.20 GARBAGE.............................................................................................................................. ....................................4
1.21 HAZA RDOUS SUBSTANCE............................................................................................................................. .............4
1.22 HAZARDOUS
WASTE............................................................................................................................... ..................
5
1.23 HOUSEHOLD HAZARDOUS WASTE (HHW) ...............................................................................................................5
1.24 MATERIALS RECOVERY FACILITY (MRF)............. ........................................................... ............................ ............. 5
1.25 MIXED WASTE PROCESSiNG........................................................................................................................ .............5
1.26 MULTI-FAMILY DWELLING UNIT ....................................... ................... .................................................. .......... ........
5 1.27 OWNER ....... ................................................... ... ...... ............................................ ................................ ........... ...........
5 1.28 PERSON.......................................................................................................................... ...........................................
1.29 PREMISES......... .................... .............................. ..................................................................................... ...........6
1.30 PUTRESCIBLE WASTE............. ........................................................................................ ...........................................6
1.31 RATE yEAR................................................................................................................................... ............................6
1.32 RECyCLING....................................................... ........................................................................................................ 6
1.33 RECYCLABLE MATERIALS ........................................... ........................................................................................ ..... 6
1.34 REFUSE.................................................................................. ..... .............................................................................. 6
1.35 RESIDENTIAL PROPERTy................................................................. .......................................................................... 6
1.36 ROLLOFF Box............................ ............................................................................................................................... 6
1.37 SlNGLE FAMILY DWELLING UNIT ............................................................................................................................. 7
1.38 SOLID WASTE....... ....................................................................................... ............................................................. 7
1.39 SOURCE SEPARATION. .................................................................................................................. .............................7
1.40 TIPPING FEE........................................................................................................................................... ...................7
1.41 YARD WASTE............................................................................... ............................................................................. 7
1.42 YARD WASTE PROCESSING FACILITY ....................................................................................................................... 7
ARTICLE 2 .........................................................,......................................................................................7
GRANT AND ACCEPTANCE OF FRANCHISE ..................................................................................................................7
2.1 GRANT ANO ACCEPTANCE OF FRANCHISE ................................................................................................................ 7
2.2 EXCLUSIVE NA TURE OF FRANCHISE ............ ............................................................................................................. 7
2.3 EFFECTIVE
DATE.................................................................................................................................... ..................
8
2.4 TERM OF AGREEMENT.............................................................................................................................. ................8
2.5 OPTION TO EXTEND TERM.................................................................................................................................... .... 8
2.6 CONDITIONS TO EFFECTIVENESS OF AGREEMENT .....................................................................................................8
2.7 DELEGATION OF AUTHORITy...................... .............................................................................................................. 9
2.8 LIM ITA TIONS TO SCOPE........................ .................................................................................................................... 9
2.9 CITY'S RlGHT TO DIRECT CHANGES ... ..... ................................................................................................................ 10
2.9. / Genera!......... ..................................... .................. ........... /0
2.9.2 New Diversion Programs. ........... ................ ...................... .... .................................... ......................... . /0
2.9.3 City's Right to Acquire Services.. . ............................... ............. ............................. ........ /0
2.10 OWNERSHIP OF SOLID
WASTE.................................................................................................................................
11
2.11 COMPANY STATUS ..................................................................................................................................................11
2.12 COMPANY AUTHORlZA TION............................................................................................................................... ..... II
2.13 ANNEXATIONS ..... ......................................... . ........ ................................................................................................ II
ARTICLE 3 ........................................................,.....................................................................................12
DIRECT SERVICES .....................................................................................................................,.........................................12
3.1 REFUSE COLLECTION SERViCES.............................................................................................................................. 12
3.1. / General.......... ................ . ...................... ................. ..................... ........ /2
3./.2 Single Family Dwelling Unit Refuse Collection.. ................. ............... ................................. ........... /2
3. /.3 Commercial and !ndustrial Property. and Multi-Family Dwelling Unit Refuse Collection. . /
2 3./.4 Temporary Bin Service.. .... ............... ............. ............. .............. ................... /
3 3./.5 RollojfBoxService ................. ............ ................... ............../
3 3. /.6 Collection of Abandoned and !/legally Deposited Items ................ ....... /
3 3./.7 City Facilities' Collection .........../
4 3. /.8 Public Refuse Containers .................. ............. .............. ......................... ................... ......
14 3. /.9 On-call
Bulky
Item
Pickup... ........................ ........................... ............. ................ /4 3.2 RECYCLING
SERVICES..................................................................... ................................................................. ....... 14 3.2.1 Single Family Dwelling Unit
Recycling ...... ............... ................... .............. ........ /4 3.2.2 Multi-Family and
Commercial Recycling ............... ... .................. ................... /5 3.2.
3
Construction
Waste Recycling... .............. . .............................. ...15 3.2.
4
WarningNotice.. ..... /5 3.2.5 Marketing and Sale of
Recyclable
3.3 Y ARO WASTE PROGRAM............................. ....................... .......................................................................... ........... 15
3.3.1 Single Family Dwelling Unit Yard Waste Collection. ......................... .................. .........15
1.3.2 Commercial & Industrial and Multi-Family Dwelling Unit Yard Waste Collection ........
16 1.3.3 Christmas Tree Collection Program .............. ....... ............................. ..
16 3.3.4 End Uses for Yard Waste.. . ................. ................. .................... ............................... ...........
163.4 OPERA TIONS .................................................................................................................................... .......................
163.4.1 Schedules........... .......................... ................ .................... ...
163.4.2 Vehicles .................... .................... ............. ........................... ................... .............
173.4.3 Containers ............. ............. .... ......... ................ ..................
193.4.3.1 Single Family Refuse Containers ....... ........................... .............. ................ .............. .....
193.4.3.2 Single Family Recycling Containers ........ ............... ...... .............. ..................
193.4.3.3 Single Family Yard Waste Carts ..................................... .................. ...
193.4.3.4 Commercial and Industrial Containers... .............. ................................... ....... ......................
20 3.4.4 Litter Abatement ........................................... .................... .........
20 3.4.5 Personnel... . ............... ......................... .............. ................. ...........
20 3.4.6 Identification Required ... ....... ..................... . .............. ............ .............
21 3.4.7 Fees and Gratuities .............. .............. .................... . ............. ........................ .......... ........
21 3.4.8 Non-
Discrimination. .............. ............ ...... .............. .21 3.4.9 Change in Collection
Schedule ....... ................... .................... .................. .................................................22 3.4.10 Report of Accumulation of Solid
Waste;
Unauthorized
Dumping.. .. ..... ..... .............22 3.5 TRANSPORTATION OF SOLID
WASTE.......... .... ...................... ................................................................................... 22 3.6 PROCESSlNG OF SOLID
WASTE .................... ........................................ ..... .......... ......................... ................. ........... 22 3.7 DISPOSAL OF SOLID
WASTE ....................... .......................... ....................................................... ................. ........... 23 3.8 STATUS OF DISPOSAL
SITE ....................... ............................ ................. ............................................. .... ................. 23 3.9 ANNUAL ROUTE
AUDIT ............................................................................................................................... ...........23 3.10 SERVICE EXCEPTIONS; HAZARDOUS WASTE NOTIFlCA
TlONS .................................................................................23 ARTICLE
4 ,......................................,..,...........,.......................................................................................24 OTHER
SERVICES ................................................................................................................................................................24 4.1 SERVICES AND CUSTOMER
BILLING........................................................................................................................ 24 4.1.1 Service
Description ..... .............. .......................................... ..........24 4.
1.
2
Billing............ .......................... ................. ............... ................... ................. ...24 4.1.2.1 Single Family Residential
Customers .................. .. ........................................................ ...24 4. /.2.2 Multi-Family and Commercial
Bin Customers .......................................... ................. ......25 4.1.2.3
RolloffBox Customers............. ..... ...................... .................. .......... ................. ..25 4.1.3 Review
of Billings.. .. ................... .................................... .......................................... .........26 4.2
CUSTOMER SERVICE.................................................................................................................................. .............26 4.2.1
Office Hours... ................. .. ............ .................... ............................................ . ..26 4.2.2
Complaint Documentation... ................. ................... ....................... .............. .....26 4.2.3 Resolution of
Customer Complaints ............. ............... . ... ................ ...27 4.2.4
Government Liaison...... ............... ........................... .............27 4.3 EDUCATION AND PUBLIC
A WARENESS................................... ................................................................................. 27 4.3.
1 Genera!..... .................... ................ ........................................... ......................27 4.3.2
CommunityEvents. ........................... ................. ....................... ................. ................27 4.4 WASTE GENERA TlON/CHARACTERIZA
TlON STUDIES ..... .........................................................................................27
ARTICLE 5 ..............................................,...............................................................................................27 COMPANY COMPENSA nON
AND RATES .....................................................................................................................28 5.1
GEN ERAL .......................................................................................... ...................................................................... 28 5.2
INlTIAL RATES.............................................................................................................................. ..........................28 5.3 SCHEDULE OF
FUTUREADJUSTMENTS ........................ ................ .................................... ............................... ......... 28 5.4 METHOD
OF
5.4.1
General........................ ................... ........................ ................... ................. ........................... .......
28
5.4.2 Single Family Dwelling Unit and Commercial and Industrial Property Customers... .............. . ...
28
5.4.3 RoIlofJ................................... ........................... ........................... ........... .......29
5 .5 EXTRAORDINARY ADJUSTMENTS............................................................................................................................ 29
5.6 SUPPORTING INFORMATION.................................................................................. ..................................................30
5.7 GRANTS........... ............................................................................... ...................... ............................................. ..... 30
5.8 SUBSIDIZED RATES ......................................................................................................................................... ........30
5.9 GUARANTEE OF Low RATES................................................................ ..................................... ..............................30
ARTICLE 6 ........................................................................................................,.....................................31
REVIEW OF SERVICES AND PERFORMANCE..........................................,....,..............................................................31
6.1 PERFORMANCE HEARING................... ................ ..................................................................................................... 31
ARTICLE 7 .......................................................,......................................................................................31
RECORDS, REPORTS AND INFORMA nON
REQUIREMENTS..................................................................................
32
7.1
7.2
7.3
7.4
7.5
7.6
GENERAL ................................................................................................................................................. ...............32
RECORDS ........................................., ......................... ......................................................................................... 32
7.2.1 Genera!.... ....................... ....................... ............. ....32
7.2.2 Financial
Records...... ............... ............... ..................... .........
32
7.2.3 Solid Waste Records. ... ........... .................. .............................. ...32
7.2.4 CERCLA Defense Records.. . ........................... ................... .... 33
7.2.5 Recycling and Yard Waste Service
Records.. ............... ....
33
7.2.6 Disposal Records.. .. .............. ... .......... ............... ................. .......
33
7.2.7 Other Programs' Records...... .............. ................. ..
33
7.2.8 Cost of Audit.. ............. ................ . ................
34
7.2.9 Payments and Refunds ........ ............... ...................... .... ......... ................34
REPORTS................... .............................................................................................................................................. 34
7.3.1 Report Formats and
Schedule.. ...................... ......................... .........
34
7.3.2 Monthly Reports..... . ............. ...................... ..................... ........................35
7.3.3 Annual Report ................ ................. ........................... ................... .35
7.3.4 Financial
Report... ............. .................. ................ ..................... .........
35
ADVERSE
INFORMATION.............................................................................................................................. ...........
36
RIGHT TO INSPECT RECORDS............................................................................................................................... ... 3 6
DUTY TO COOPERATE IN LITIGATION........................................... ..... .................... ..................................................36
ARTICLE 8 .......................................,......................................................................................................37
8 .1 INDEMNIFICATION.. ...... .................................................................................................................................... .......37
8.2 HAZARDOUS SUBSTANCES INDEMNIFlCA TlON ............................. ............................................................ ............... 38
8.3 AB 939 INDEMNIFICATION ............................ ...... .................... .............................................................................. 38
8.4 INSURANCE................................................................................................................................. ............................39
8 .5 FA ITHFUL PERFORMANCE BOND............................................................................................................................. 41
8.6 FORFEITURE OF PERFORMANCE BOND....................................... ............................................................................. 41
ARTICI~E 9 ..............................................................................................................................................42
CITY'S RIGHT TO PERFORM SERVICE..........................................................................................................................
42
9.1 GENERAL................................... ............................................................................................................................. 42
9.2 TEMPORARY POSSESSION OF THE COMPANY'S PROPERTY ......................................................................................43
9.3 BlLLlNG AND COMPENSATION TO THE CiTY DURING THE CiTY'S POSSESSION ........................................................43
9.4 CITY'S RIGHT TO RELINQUISH POSSESSION ........................................... ..................................................................43
9.5 CiTY'S POSSESSION NOT A TAKING ................................... .....................................................................................43
9.6 DURATION OF THE CiTY'S POSSESSION .... .............................................................................................. ................. 43
iv
ARTICLE 10 .............,..............................................................................................................................44
DEFAUL T, REMEDIES AND LIQillDATED DAMAGES ................................................................................................44
10.1 EVENTS OF DEFAULT ................................... ...... ........................ .............................................................................44
10.2 RIGHT TO TERMlNATE UPON DEFAULT ........................................... ..................... ...................................................45
I 0.3 LIQUIDATED DAMAGES............................................................................................................................ ...............45
10.4 EXCUSE FROM PERFORMANCE.................................................................................................................... ............48
10.5 ASSURANCE OF PERFORMANCE..................................................................................................................... ......... 48
ARTIClLE 11 ............................................................................................................................................48
OTHER AGREEMENTS OF THE P ARTIES ......................................................................................................................48
11.1 RELATIONSHIP OF PARTIES .....................................................................................................................................48
11.2 COMPLIANCE WITH LAW ......................................................... ..................................................... ............. .............. 49
11.3 GOVERNING LA W..................................... .... .... ............................ ........................ ............. ............. .........................49
11.4 JURiSDiCTION........................................................................................................................... ...............................49
11.5 ASSIGNM ENT............................................................................................................................... ............................49
11.6 CONTRACTING OR SUBCONTRACTING .................... ...................... ....................... ................. ........... ........................ 50
11.7 BINDING ON ASSiGNS............................................................................................................................... ...............50
11.8 TRANSITION TO THE NEXT COMPANY .....................................................................................................................51
11.9 PARTIES IN INTEREST ............ .......................................................... ........................................................................ 51
11.1 0 WAIVER ............................................................. .................................................................. ................................... 51
11.11 THE COMPANY'S INVESTIGATION............................................................................................................................51
11.12 CONDEMN ~ TION ............ ............................................................ .... ....................... ....................... ........................... 51
11.13 NOTiCE................................................... .......................................................... ......................................................51
11.14 REPRESENTATIVES OF THE PARTIES ........................................................................................................................52
11.1:5 CiTY FREE TO NEGOTIATE WlTH THlRD PARTIES ....................................................................................................52
11.16 COMPLIANCE WlTH MUNICIPAL CODE ....................................................................................................................52
11.17 LEASE OF EQUlPMENT AND
FAClLITlES...................................................................................................................
52
11.18 PRiVACy.......................................................................................................................... .......................................52
11.19 COMPLIANCE WlTH IMMIGRATION LAWS................................................................................................................53
11.20 PROPRIETARY INFORMATION, PUBLIC RECORDS ....................................................................................................53
11.21 GUARANTEE OF CONTRACTOR'S PERFORMANCE...................... ............................................................................... 53
11.22 ATTORNEY'S FEES ................................................................ .......................... ........................... ............................. 53
ARTIClLE 12 ........................................................................,.,.......................................,........,.,..............53
MISCELILANEOUSAGREEMENTS....................................................................................................................................
53
12.1 ENTIRE AG REEM ENT............................................................................................................................. ..................53
12.2 SECTION HEADINGS.................................................................. . ........................................................................... 53
12.3 REFERENCES TO LAWS AND OTHER AGREEMENTS ......................................... ..........................................53
12 .4 INTERPRETATION.................................................................................................................. .................................. 54
12.5 AGREEM ENT ....................................................................................................................................... .................... 54
12.6 SEVERABILITy........................................................................................................................ ................................54
12.7 EXHIBITS.................................................................................................................................. ............................... 54
12.8 NON-WAIVER PROVISION ......................................................................................... ............. .................................
54
LIST OF EXHIBITS
1. City and Public Refuse Containers
2. Public Education Plan
3. Rate Adjustment Formula
4A. Initial Rates Through December 31,1999
4B, Rates - January1,2000 to December 31, 2000 5.
Corporate Guaranty 6.
Company's Faithful Performance Bond 7.
Notary Certification 8,
Flow Control Agreement vi
AGREEMENT
This Franchise Agreement (Agreement) is entered into this _ day of Ma,y . 1999, by and
between the City of Orange (The City) and USA Waste of California, Inc., dba Waste Management of
Orange, a division of Waste Management (Company), for the collection, transportation, recycling,
processing, and disposal of solid waste and other services related to meeting the goals and requirements
of the Califomia Integrated Waste Management Act.
Recitals
WHEREAS, the Legislature of the State of California, by enactment of the California Integrated
Waste Management Act of 1989 (Califomia Public Resources Code Section 40000 et seq.), has declared
that it is in the public interest to authorize and require local agencies to make adequate provisions for
solid waste handling within their jurisdictions; and,
WHEREAS, pursuant to Califomia Public Resources Code Section 400S9(a)(2), the City of
Orange has determined that the public health, safety, and well-being require that an exclusive
franchise be awarded to a qualified company for the collection, transfer and transportation, recycling,
processing,and disposal of solid waste and other services related to meeting the requirements of the
California Integrat~,d Waste Management Act;
and,WHEREAS, the City declares its intention of maintaining reasonable rates and quality
service related to the collection, transportation, recycling, processing, and disposal of solid waste and
other services;
and,WHEREAS, the City has selected the Company to provide such solid waste services;
and,WHEREAS, the City and the Company (Parties) desire to enter into this Agreement;
and,WHEREAS, the current trash hauler for the City has indicated its intention to assign all rights
it may have to provide solid waste services to the Company and by executing this Agreement,
City approves such assignment under the terms and conditions set forth herein;
and,WHEREAS, the Company agrees to and acknowledges that it shall properly dispose of all
solid waste collected in the City pursuant to this Agreement;
and WHEREAS, pursuant to the California Integrated Waste Management Act of 1989 (
California Public Resources Code Section 40000, et seq.), the City is required to implement its Source
Reduction and Recycling Element (SRRE) in order to divert SO percent of its solid waste from landfill disposal
by the year
2000.NOW, THEREFORE, in consideration of the premise above stated and the terms,
conditions,covenants and agreements contained herein, the Parties do hereby agree as
follows:
ARTICLE 1
DEFINITIONS
Vhenever any term used in this Agreement has been defined by the provisions of Chapter
8.36.030 of the Orange Municipal Code or by Division 30, Part I, Chapter 2 of the California Public
Resoum~s Code, the definitions in the Municipal Code or the Public Resources Code shall apply unless
the term is otherwise defined in this Agreement, in which case this Agreement shall control.
Except as provided in Article 1, words beginning with lower case letters are being used with their
common ordinary meanings, not as defined terms. Otherwise, the following capitalized words and terms
shall have the following respective meanings:
1.1 Affiliate
Affiliate" means all businesses (including corporations, limited and general partnerships and sole
proprietorships) which are directly or indirectly related to the Company by virtue of direct or indirect
ownership interest or common management shall be deemed to be "Affiliated with" the Company and
included within the term "Affiliates" as used herein. An Affiliate shall include a business in which the
Company owns a direct or indirect ownership interest, a business which has a direct or indirect
ownership interest in the Company and/or a business which is also owned, controlled or managed by any
business or individual which has a direct or indirect ownership interest in the Company. For purposes of
determining whether an indirect ownership interest exists, the constructive ownership provisions of
Section 318(a) of the Intemal Revenue Code of 1986, as in effect on the date of this Agreement, shall
apply; provided, however, that (i) "ten percent (10%)" shall be substituted for "fifty percent (SO%)" in
Section 318(a)(2)(C) and in Section 318(a)(3)(C) thereof; and (ii) Section 318(a)(S)(C) shall be
disregarded. For purposes of determining ownership under this paragraph and constructive or indirect
ownership under Section 318(a), ownership interest of less than ten percent (10%) shall be disregarded
and percentage interests shall be determined on the basis of the percentage of voting interest or value
which the ownership interest represents, whichever is greater.
1.2 A~:reement
Agreement" means this Franchise Agreement between the City and the Company for Collection,
transportation, Recycling, processing and Disposal of Solid Waste, and other services related to meeting
the goal and requirements of the California Integrated Waste Management Act including all exhibits and
attachments, and any amendments thereto.
1.3 Billings
Billings" means any and all statements of charges for services rendered, howsoever made,
describt:d or designated by the City or the Company, or made by others for the City or the Company, to
persons responsible for arranging for solid waste removal.
1.4 Bin
Bin" means a metal container with hinged lids and wheels serviced by a frontend-loading
truck with a capacity not-to-exceed
6
1.5 California Integrated Waste Management Act
California Integrated Waste Management Act" means Public Resources Code, Section 40000 ~
seq.
1.6 Can
Can" means a metal or plastic receptacle with handles and a tight fitting lid with a capacity of
approximately 33 gallons.
1.7 Ca,rt
Cart" means a plastic container with a hinged lid and wheels serviced by an automated or semi-
automated side-loading truck with a capacity of no less than 3S and no greater than 96
gallons.1.8
City City" means the City of Orange, a municipal corporation, and all the territory lying within
the municipal boundaries of the City as presently existing or as such boundaries may be modified during
the term of this
Agreement.1.9 Collect/
Collection Collect" or "Collection" means to take physical possession, transport, and remove Solid
Waste within and from the
City.1.10 Commercial and Industrial
Property Commercial and Industrial Property" means property upon which business activity is
conducted,including but not limited to retail sales, services, wholesale operations, manufacturing and
industrial operations, but excluding businesses conducted upon Residential Property which are permitted
under applicable zoning regulations and are not the primary use of the
property.1.11
Company Company" means U.S.A. Waste of California, Inc., dba Waste Management of Orange,
a corporation organized and operating under the laws of the State of Delaware and its officers,
directors,employe,es, agents, companies and
Subcontractors.1.12 Company
Compensation Company Compensation" means the revenue received by the Company from Billings in
return for providing services in accordance with this Agreement and any amendments to this
Agreement.1.13 Construction
Waste Construction Waste" means used or discarded construction or building materials removed
from a Premises during the construction or demolition of a
structure.
1.14 Containers
Containers" means any and all types of Solid Waste receptacles, including Carts, Bins, Rolloff
Boxes, and receptacles provided by customers.
1.15 Cnstomer
Customer" means the Person having the care and control of any premises in the City who
receives refuse collection service from the Company.
1.16 I>isposal
Disposal" means the ultimate disposition of Solid Waste collected by the Company at a landfill
in full re:gulatory compliance.
1.17 I>isposal Site(s)
Disposal Site(s)" mean the Solid Waste handling facility or facilities utilized for the ultimate
Disposal of Solid Waste Collected by the Company. The Orange County landfill system operated by the
County of Orange shall be the designated Disposal Site as of the effective date of this Agreement.
1.18 ]~nvironmental Laws
Environmental Laws" means all federal and state statutes, county, local and the City ordinances
conceming public health, safety and the environment including, by way of example and not limitation,
the Comprehensive Environmental Response, Compensation and Liability Act of 1980,42 USC g960l
the Resource Conservation and Recovery Act, 42 USC g6902 ~.; the Federal Clean Water
Act, 33 USC g12S1 ~.; the Toxic Substances Control Act, IS USC g1601 ~.; the Occupational
Safety and Health Act, 29 USC g6S1 ~.; the California Hazardous Waste Control Act, California
Health amd Safety Code g2S100 ~.; the California Toxic Substances Control Act, California Health
and Safety Code g2S300 ~.; the Porter-Cologne Water Quality Control Act, California Water
Code g13000 ~.; the Safe Drinking Water and Toxic Enforcement Act, California Health and Safety
Code g2S249.S ~.; as currently in force or as hereafter amended, and all rules and regulations
promulgated
thereunder.1.19 ]~
ranchise Franchise" means the special right granted by the City to provide for Solid Waste
services within the
City.1.20
Garbage Garbage" means all animal and vegetable waste from kitchens, all vegetable and
fruit trimmings, including such waste from vegetable and fruit stands and all other household waste that
has been prepared for or intended to be used as food, or has resulted from the preparation of
food.1.21 Hazardous
Substance Hazardous Substance" shall mean any of the following: (a) any substances defined, regulated
or listed (directly or by reference) as "Hazardous Substances", "hazardous materials", "Hazardous
Wastes",toxic waste", "pollutant" or "toxic substances" or similarly identified as hazardous to human health
or
the environment, in or pursuant to (i) the Comprehensive Environmental Response, Compensation and
Liability Act of 1980, 42 USC 99601 ~.(CERCLA); (ii) the Hazardous Materials Transportation
Act, 49 lJSC 91802, ~.; (iii) the Resource Conservation and Recovery Act, 42 lJSC 96901 et seq.;
iv) the Clean Water Act, 33 USC 912S1 et seq.; (v) Califomia Health and Safety Code 992S11S-
2S117,2S249.8, 2S281, and 2S316; (vi) the Clean Air Act, 42 lJSC 97901 ~.; or (vii) California
Water Code 9130SO; (b) any amendments, rules or regulations promulgated thereunder to such
enumerated statutes or acts currently existing or hereafter enacted; and (c) any other hazardous or toxic
substance,material, chemical, waste or pollutant identified as hazardous or toxic or regulated under any
other applicable federal, state or local environmental laws currently existing or hereinafter enacted,
including,without limitation, friable asbestos, polychlorinated biphenyl's ("PCBs"), petroleum, natural gas
and synthetic fuel products, and
by-products.1.22
Hazardous Waste Hazardous Waste" means all substances defined as Hazardous Waste, acutely
Hazardous Waste,or extremely Hazardous Waste by the State of California in Health and Safety Code 92S110.
02, 92SIIS,and 92S117 or in the future amendments to or recodifications of such statutes or identified and
listed as Hazardous Waste by the US Environmental Protection Agency (EPA), pursuant to the
Federal Resource Conservation and Recovery Act (42 USC 96901 et seq.), all future amendments thereto, and all
rules and regulations
promulgated thereunder.1.23 Household Hazardous
Waste (HHW)Household Hazardous Waste" means Hazardous Waste generated at
residential Premises.1.24 Materials Recovery
Facility (MRF)Materials Recovery Facility" means a facility where Solid Wastes or Recyclable
Materials are sorted or separated for the purposes of Recycling, processing
or composting.1.25 Mixed
Waste Processing Mixed Waste Processing" means the manual and/or mechanical Recycling process
performed at a Material Recovery Facility by which Recyclable Materials are separated from Solid Waste that
has not been subject
to source-separation.1.26
Multi-Family Dwelling Unit Multi-Family Dwelling Unit" means any Premises consisting of five (S)
or more units per parcel not including hotels or motels), irrespective of whether residence
therein
is transient, temporary
or permanent.1.27 Owner Owner" means the Person holding the legal title to the real
property constituting the Premises to which Solid Waste Collection service is to be provided under this Agreement
or the person holding legal title to the Disposal Site, depending upon the
context
1.28 J'erson
Person" means any individual, firm, association, organization, partnership, corporation, business
trust, joint venture, the United States, the State of California, the County of Orange, towns, cities, and
special purpose districts.
1.29 I'remises
Premises" means any land, or building III the City where Solid Waste IS generated or
accumulated.
1.30 J'utrescible Waste
Putrescible Waste" means wastes that are capable of being decomposed by micro-
organisms with sufficient rapidity as to cause nuisances because of odors, gases, or other offensive
conditions.1.31 Rate
Year Rate Year" means the period January 1 to December 31, for each year of the
Agreement.1.32
Recycling Recycling" means any process by which material which would otherwise become Solid
Waste is colleeted (source-separated, co-mingled, or as "mixed waste"), separated and/
or processed and returned to the economic mainstream in the form of raw materials or products or
materials which are otherwise salvaged or
recovered for reuse.1.
33 Recyclable Materials Recyclable Materials" shall include, but not be limited to, news
print, corrugated cardboard,glass, metal, plastic, aluminum, or other such materials which are placed within the
City right-of-way or within the vicinity of any curb, parkway, or refuse bin
for collection purposes. Recyclable Materials may also include materials that are separated from Solid
Waste through Mixed
Waste Processing.1.34 Refuse Refuse" means putrescible and non-putrescible Solid
Waste or debris,
except sewage, whether combustible
or non-combustible.1.35 Residential Property Residential Property" means property
used for residential purposes including Single-family and Multi-family Dwelling Units, irrespective of whether
such
dwelling units are rental
units or are owner-occupied.1.36 Rolloff Box Rolloff Box" means an open-top metal
container serviced by a rolloff
truck
1.37 Single Family Dwelling Unit
Single Family Dwelling Unit" means each Premises used for or designated as a single family
residential dwelling, including each unit of a condominium project, duplex, triplex, townhouse,
apartment building, or mobile home park in which each premises receives individual Solid Waste
Collection service using cans or carts and consists of four (4) units or less per legal parcel.
1.38 Solid Waste
Solid Waste" means all putrescible and non-putrescible residential Refuse, Recyclable
Material,and Yard Waste, and as otherwise defined in Public Resources Code 940191. Any material that
a Customer pays to be hauled away shall be defined to be Solid Waste and not a Recyclable
Material.1.39 Source
Separation Source Separation" means the segregation into separate Containers by the Customer
of individual components of material which otherwise would become Refuse or Garbage, such as
glass bottles, metal cans, newspapers, plastic containers, etc., for the sole purpose of Recycling, to be
picked up by the
Company.1.40 Tipping
Fee Tipping Fee" means the rate per ton charged by a Disposal Facility to accept Solid
Waste.1.41 Yard
Waste Yard Waste" means leaves, grass, weeds, and wood materials from trees and shrubs (not
more than six (6) inches in diameter or 72 inches in length) and similar materials generated at the
Premises.1.42 Yard Waste Processing
Facility Yard Waste Processing Facility" means a permitted Facility where Yard Waste is
sorted,mulched or separated for the purposes of Recycling, reuse or composting. If a Disposal Site accepts
and uses Yard Waste for alternative daily cover material, the Disposal Site may also be considered a
Yard Waste Processing
Facility.ARTICLE
2 GRANT AND ACCEPTANCE OF
FRANCHISE 2,1 Grant and Acceptance of
Franchise Subject to Section 2.6, the City hereby grants to the Company the exclusive Franchise, right
and privilege to Collect, transfer, transport, Recycle, process, and dispose of Solid Waste accumulating
in the City that is required to be accumulated and offered for Collection to the Company in
accordance with this Agreement. The Company hereby accepts the Franchise on the terms and conditions set
forth in this
Agreement.2.2 Exclusive Nature of
Franchise During the term of this Agreement, except as otherwise provided in Section 2.8 below, or as
may otherwise be provided by federal or state law, the rights granted to the Company under this
Agreement shall be exclusive to the Company. The City will not let any contract to, or enter into any
agreement
with, any other Person for the performance of the services herein required to be performed by the
Company.
The City shall protect the Company's exclusive rights by proper ordinances, and by reasonable
enforcement of those ordinances. Should the City be required to take administrative, law enforcement,
or other legal action against any Person that infringes on the Company's exclusive rights at the request
of the Company, the Company shall reimburse the City for its reasonable administrative, law
enforcement, or other legal costs related to any such action where such action has been requested by
Company.
2,3 Effective Date
The effective date of this Agreement shall be June I, 1999 ("effective date").
2.4 Term of Agreement
The term of this Agreement shall be ten (10) years commencing at midnight June I, 1999, and
expiring at midnight May 31,2009, subject to extension as provided in Section 2.S. The Company may
request to extend the Agreement by one year or more beginning in the fourth year of the Agreement,
subject to the City Council's complete discretion.
2.5 Option to Extend Term
The City shall have the sole option to extend this Agreement two (2) times up to twenty-four (
24)months in periods of at least twelve (12) months each. If the City elects to exercise this option, it
shall give written notice not later than one-hundred twenty(l20) days prior to the initial termination date,
or, if an extension has been exercised, ninety (90) days prior to the extended
termination date.2.6 Conditions to Effectiveness
of Agreement The obligation of the City to permit this Agreement to become effective and to
perform its undertakings provided for in this Agreement is subject to the satisfaction of each and all
of the conditions set out below, each of which may be waived in whole or in part by
the City.a) Accuracy of Representations. Representations and warranties made by
the Company throughout this Agreement are accurate, true and correct on and as of the effective date
of
this Agreemtmt.b) Absence of Litigation. There is no litigation pending in any court challenging the award
of this Franchise to the Company or the execution of this Agreement or seeking .to restrain or
enjoin
its performance.c) Furnishing ofInsurance and Bonds. The Company has furnished evidence ofthe
insurance and bonds required by
Article 8.d) Effectiveness of the City Council Action. The City's Resolution No. 9099
approving this Agreement, shall have become effective pursuant to California law prior to the effective date
of
this Agreement.e) Execution of a Settlement Agreement by and between the City of Orange and
Orange Disposal Services/Orange Resource Recovery Systems and payment to the City as
provided
2.7 Delegation of Authority
The administration of this Agreement by the City shall be under the supervision and direction of
the City Manager's office, and the actions specified in this Agreement, unless otherwise stated, shall be
taken by the City Manager.
2,8 Limitations to Scope
The Franchise for the Collection, Processing, Recycling, removal and Disposal of Solid Waste
granted to the Company shall be exclusive except as to the following categories of Solid Waste listed in
this Section. The granting of this Franchise shall not preclude the categories of Solid Waste listed below
from being delivered to and Collected and transported by others provided that nothing in this Agreement
is intended to or shall be construed to excuse any Person from obtaining any authorization from the City
which is otherwise required by law:
a) Recyclable Materials source separated from Solid Waste by the Customer and for which
Customer sells or is otherwise compensated by a collector in a manner resulting in a net payment to the
Customer;
b) Solid Waste, including Recyclable Materials and Yard Waste, which is removed from any
Premises by the Customer, and which is transported personally by the Customer of such Premises (or by
his or her full-time employees) to a processing or Disposal
Facility;c) Recyclable Materials and Yard Waste which are source separated at any Premises by
the Customer and donated to youth, civic, or charitable
organizations;d) Containers delivered for Recycling under the California Beverage Container Recycling
Litter Reduction Act, Section 14S00, et. seq., Califomia Public Resources
Code;e) Yard Waste removed from a Premises by a gardening, landscaping, or tree trimming
the Company utilizing its own equipment as an incidental part of a total service offered by the
Company rather than as a hauling
service;f)Construction Waste that is incidentally removed by a duly-licensed construction
or demolition company or as part of a total service offered by said licensed company or by the City, where
the licensed company utilizes its
own equipment.g) Animal waste and remains from slaughterhouse or butcher shops for use
as tallow;h) By-products of sewage treatment, including sludge, sludge ash,
grit and screenings;i) Hazardous Waste, and radioactive waste regardless
of its source;j)The casual or emergency collection, removal, disposal or diversion of Solid Waste
by the City through the City officers or employees in the normal course of
their employment. and,k) Collection
of waste oil.The Company acknowledges and agrees that the City may permit other
Persons besides the Company to Collect any or all types of the Solid Waste listed in this Section 2.
8, including Recyclable Materials, without seeking or obtaining approval of the Company
under
This grant to the Company of an exclusive Franchise, right and privilege to Collect, transport, or
process and Dispose of Solid Waste shall be interpreted to be consistent with state and federal laws, now
and during the term of the Franchise, and the scope of this exclusive Franchise shall be limited by
current and developing state and federal laws with regard to Solid Waste handling, exclusive Franchise,
control of Recyclable Materials, Solid Waste flow control, and related doctrines. In the event that future
interpretations of current law, enactment or developing legal trends materially limit the ability of the
City to lawfully provide for the scope of Franchise services as specifically set forth herein, the Company
agrees that the scope of the Franchise will be limited to those services and materials which may be
lawfully provided for under this Agreement, and that the City shall not be responsible for any lost profits
claimed by the Company to arise out of further limilations of the scope of the Agreement set forth
herein, provided that if such an event materially interferes with the Company's benefits or obligations
under this Agreement, the Company may terminate this Agreement upon one year's written notice to
City. In such an event, it shall be the responsibility of the Company to minimize the financial impact to
other services being provided as much as possible.
2,9 City's Right to Direct Changes
2:,9.1 General
The City may direct the Company to perform additional services (including new diversion
programs, etc.) or modify the manner in which it performs existing services or bills for services. Pilot
programs and innovative services which may entail new Collection methods, different kinds of services
and/or new requirements for Customers, and alternative rate structures are included among the kinds of
changes which the City may direct. Pursuant 10 Section 2.9.3, the Company shall be entitled to an
adjustment in its Company Compensation for providing such additional or modified services.
2.9.2 New Diversion Programs
The Company shall present, within 30 days of a request to do so by the City, a proposal to
provide additional or expanded diversion services. The proposal shall contain a complete description of
the following:
Collection methodology to be employed (equipment, manpower, etc.).
Equipment to be utilized (vehicle number, types, capacity, age, etc.).
Labor requirements (number of employees by classification).
Type of materials containers to be utilized.
Provision for program publicity/education/marketing.
Three-year projection of the financial results of the program's operations in an
operating statement format including documentation of the key assumptions underlying the projections
and the support for those
assumptions.9.3 City's Right to Acquire
Services The Company acknowledges and agrees that the City may permit other Persons besides
the Company to provide additional Solid Waste services not otherwise contemplated under this
Agreement.If pursuant to Section 2.9.1 and 2.9.2, the Company and the City cannot agree on terms and
conditions
of such additional or expanded services within ninety (90) days from the date when the City first
requests a proposal from the Company to perform such services, the Company acknowledges and agrees
that the City may permit Persons other than the Company to provide such services. In the event that
City exercises its right to permit third party Persons to provide such services, and if such a decision
reduces or eliminates Company's collection services as contemplated under Company's Proposal and
Article 3 of this Agreement, Company agrees to reduce its Billings proportionately.
2.10 Ownership of Solid Waste
Once Solid Waste is placed in Containers and properly placed at the designated Collection
location, ownership and the right to possession shall transfer directly from the Customer to the Company
by operation of this Agreement. Subject to the Company's objective to meet the Source Reduction and
Recycling goals which apply to the City and the City's right to direct the Company to process and
dispose of Solid Waste at a particular licensed Solid Waste Facility or to dispose of Solid Waste at a
particular licensed Disposal Site, if and only if the City exercises such right by providing specific written
direction to the Company, the Company is hereby granted the right to retain, Recycle, process, Dispose
of, and otherwise use such Solid Waste, or any part thereof, in any lawful fashion or for any lawful
purpose desired by the Company. Subject to the provisions of this Agreement, the Company shall have
the right to retain any benefit resulting from its right to retain, Recycle, process, Dispose of, or reuse the
Solid Waste, Yard Waste, and Recyclable Materials which it Collects. Solid Waste, Yard Waste, and
Recyclable Materials, or any part thereof, which is disposed of at a Disposal Site or sites (whether
landfill, transformation Facility, Transfer Station, Processing Facility or Material Recovery Facility)
shall become the property of the Owner or operator of the Disposal Site(s) once deposited there by the
Company. The City may obtain ownership or possession of Solid Waste placed for Collection upon
written notice of its intent to do so, however, nothing in this Agreement shall be construed as giving rise
to any inference that the City has such ownership or possession unless such written notice has been
given to the Company.
2.11 Company Status
The Company represents and warrants that it is duly organized, validly existing and in good
standing under the laws of the State of Delaware. It is qualified to transact business in the State of
California and has the power to own its properties and to carry on its business as now owned and
operated and as required by this Agreement.
2.12 Company Authorization
The Company has the authority to enter into and perform its obligations under this Agreement.
The Board of Directors or partners of the Company (or the shareholders, if necessary) have taken all
actions required by law, its articles of incorporation, its bylaws or otherwise to authorize the execution
of this Agreement. The Persons signing this Agreement on behalf of the Company have authority to do
so.
2.13 Annexations
This Agreement extends to any territory annexed to the City during the term of this Agreement
except to the extent that collection by the Company within that annexed territory would violate the
provisions of Public Resources Code Section 49S20. In such event, this Agreement shall become
effectiv,: as to such area at the earliest possible date permitted by law, and the City agrees that it shall
11
cooperate with the Company to fulfill any requirement necessary for the Company to serve the annexed
area consistent with this paragraph.
ARTICLE 3
DIRECT SERVICES
3.1 Refuse Collection Services
3.1.1 General
The work to be done by the Company pursuant to this Agreement shall include, but not be
limited to, the furnishing of all labor, supervision, equipment, materials, supplies, and all other items
necessary to perform the services required. The enumeration of, and specification of requirements for,
particular items of labor or equipment shall not relieve the Company of the duty to furnish all others, as
may be required, whether enumerated elsewhere in the Agreement or not.
The work to be done by the Company pursuant to this Agreement shall be accomplished in a
thorough and professional manner so that the residents within the City are provided reliable, courteous
and high-quality Solid Waste Collection at all
times.The Company shall continue the current method of Solid Waste Collection until December
31,1999. This method includes the Collection of Refuse at the curbside from Single Family Dwelling
Unit customt:rs, of not less than once per week, from Customer provided Containers. In addition,
the company shall collect Recyclable materials separated by Single Family Dwelling Unit Customers
in three bins on the same day as Collection of the Refuse. The Company shall, at a minimum, do all
things presently being done by the City's current contract solid waste hauler to maintain the City's
current manner in which Solid waste is collected from Single Family Dwelling Unit Customers, all
other provisions of this Agreement shall be effective as of June 1, 1999. The three-cart automated
system as set forth in this Article 3 shall be implemented beginning on or after January I, 2000, but in
no event later than March
31, 2000.3.1.2 Single Family Dwelling Unit
Refuse Collection The Company shall Collect Refuse delivered for Collection by Single Family
Dwelling Unit Customers at the curbside from automated, Company-provided Carts, not less than once
per week. If any om: of the Customer's Containers exceeds seventy five (7S) pounds, or if the total
quantity at one pickup exceeds two hundred twenty five (22S) gallons, the Customer may be
required to obtain additional Bins provided
by the Company.3.1.3 Commercial and Industrial Property, and Multi-
Family
Dwelling Unit Refuse Collection The Company shall collect and remove all Refuse from all
Commercial and Industrial Property,and from Multi-Family Dwelling Units within the City at least once every
week or more frequently if required to handle the Solid
Waste stream of the Premises.The Company shall provide a Container suitable to
each Commercial and Industrial Property,and Multi-Family Customer for the Collection of Solid
Waste.
Special
when determining the pick up area for Commercial and Industrial Property, and/or Multi-
family Customf:rs to ensure that the flow of traffic is not impeded and that it does not result in
aesthetic degradation of an area. The designated Collection location, if disputed by the customer or the
Company,shall be determined by the City. Additionally, ifin the City's opinion the existing Collection location
is inappropriate, the City may require the Customer and/or the Company to relocate the
Collection location. The Company shall not pay for the cost of any physical improvements to the customer'
s
property.If the City determines that it is impractical to place a Bin at any Commercial and
Industrial Property, or Multi-Family Dwelling Unit (S units or more), the Company shall be required
to provide refuse Collection service using
Company-provided Carts,3.1.4
Temporary Bin Service The Company shall offer temporary one-time Bin service within 24
hours of request (not counting Sundays) on an on-call basis to customers who do not
subscribe to regularly scheduled Bin Collection service. If not received within this time period, a Person my
arrange to receive a temporary
Bin from other service providers.
3,1.5 RolloffBox Service The Company shall offer Rolloff Box service to Single
and Multi-Family Dwelling Units, and Commercial and Industrial Property for the Collection of
Refuse or Construction Waste. The Company shall deliver and Collect Rolloff Boxes at the direction of the Customer.
Rolloff Boxes shall be free of graffiti and in good repair, and must be clearly marked and
identifiable as belonging to the Company.Special consideration shall be given when determining the
Collection location for Rolloff Box service Customers to ensure that the flow of traffic is not impeded and that it
does not result in aesthetic degradation of an area. The designated Collection location, if disputed by the
customer or the Company, shall be determined by the City. Additionally, if in the City's opinion the
location of an existing Collection location is inappropriate, the City may require the customer and/or Company
to relocate the Collection location. The Company shall not pay for the cost of any physical
improvements to the customer's property.If the City is notified by any Person who seeks to receive Rolloff
Box service that the Company is unable to provide service within 24 hours of receiving a service
request (not counting Sundays), then that Person may arrange to receive RolloffBox service from other service
providers. That Person may use other service providers for the duration of the period for which it continuously
receives Rolloff Box service at the location or jobsite for
which RolloffBox service was initially requested.3.1.6 Collection
of Abandoned and Illegally Deposited Items The Company shall Collect and Dispose of discarded items
that have been abandoned or illegally deposited upon any public property, public right of way, street, or alley in the
City, up to 20 calls per year. Discarded items shall include, but not be limited to,
tree branches, used furniture, appliances, and other bulky items with the
exception of Hazardous Waste and automobiles.The City shall determine which items are to be collected and
notify the Company on an as-needed basis. The Company shall Collect and Dispose of the
designated
receIVIng notice from the City. The Company shall not be responsible to Collect items that are
abandoned or illegally deposited on private property.
3.1.7 City Facilities' Collection
The Company shall Collect and dispose of all Solid Waste, and Collect all Recyclable Material
placed in Bins and Cans at all facilities operated by the City, all public Cans in the downtown area, and
all non-sheltered bus stops at no additional charge to the City. Provided, however, the City
shall reimburse the Company for the landfill disposal cost of disposing of street sweepings. Collection
shall be scheduled at a time agreeable to the City. The existing service for City facilities is shown in
Exhibit 2. The City may add service during the term of this agreement as it deems
necessary.The Company shall retain all the proceeds from the sale of recyclable materials Collected
from the City's facilities. The Company shall provide an annual education grant in the amount of$I,OOO to
be administered by the Director of Public
Works.1.1.8 Public Refuse
Containers The Company shall Collect and dispose of all Solid Waste placed in City-owned
Containers in public areas and non-sheltered bus stops (containers at sheltered bus stops are serviced
by the Orange County Transit Authority) according to the service description and schedule shown
in Exhibit 2.3.1.9 On-
call Bulky Item Pickup The Company shall provide bulky item pickup service to
Single Family Residential Customers and Multi-family Residential Customers. Bulky items include things
such as appliances and household fumitur'~, but does not include such things as automobiles,
landscape material, and Construction Waste.Single Family Residential customers shall be entitled to two pickups per
calendar year per dwelling unit at no additional charge, with a maximum of four items
per pickup. Multi-Family Residential complexes shall be entitled to one pickup per year for every four units, at no
additional charge with a maximum of four items per pickup, but in no event no more than 10 pickups
per year per residential complex. Such pickup shall be at a site on the Multi-Family Residential
complex as designated by the Company. In addition, the Company shall distribute disposal
coupons to the manager of each Multi-Family Residential complex receiving bin service. The
Company shall provide two coupons per unit, which shall entitle the presenter to dispose of bulky items free of
charge at a location within the City as designated by the Company. The disposal coupons shall be
on a form approved by the City Manager.The disposal coupons shall be presented with a cover letter
stating that the disposal coupons are to be distributed in a manner making two available to
each individual unit. The Company may charge for bulky item pickups that exceed the allowed number of pickups
per year as set forth in Exhibit 4.Customers will provide the Company with at least 48 hours notice and
the items will be collected
on the -customer's regular
collection day.3.2 Re(:ycling Services 3,
2.1 Single Family Dwelling Unit Recycling The Company shall Collect and remove all Recyclable
Materials placed in Recycling Carts at the curbside for Single Family
Dwelling Units. Recyclable Material Collection from Residential Property within the City shall be a minimum of
once
Material Collected from Residential Property shal1 include, but not be limited to: glass, tin,
aluminum, PET, HDPE, narrow neck plastics, newspaper, mixed paper (including junk mail, phone
books, and magazines), and cardboard. Recyclable Materials are to be cornmingled in a single type
of rol1ing; Recycling Cart with a capacity of approximately 64 gal1ons. Residential Recyclable
Materials Col1ection shal1 be on the same day of the week as Refuse Collection service.
3.2.2 Multi-Family and Commercial
Recycling The Company shall perform, or arrange to have performed, Mixed Waste Processing of
Solid Waste Col1ected from Multi-Family Residential, and Commercial and Industrial
Property Bin Customers. The Company may identify particular routes or loads whose Customers'
waste stream characteristics are not appropriate for Mixed Waste Processing. The Company may elect
not to perform Mixed Waste Processing on those routes or loads. The Company shal1 provide to
the City each quarter a list of Customers whose route or loads are not being Mixed Waste
Processed. If Company is not meeting the diversion percentage requirements of the Califomia
Integrated Waste Management Act, it shall perform additional Mixed Waste Processing that is necessary to
meet
such requirements..3.2.3> Construction
Waste Recycling The Company shal1 make reasonable efforts to prevent Construction Waste that is
suitable for Recycling from being taken to the landfil1 by transporting it to an altemate Facility where it
will be processed
for reuse.3.2.4
Warning Notice The Company shal1 wam customers who have non-recyclables in their
recycling container. If after two sequential written warnings the container continues to be contaminated,
the Company may assign a separation charge to Customers who fail to sort properly
and segregate Recyclable Materials. The Company shall report monthly to the City any warning
notices issued. The separation charge shall be an amount agreed upon between the City
and theCompany.3.2..5 Marketing and Sale
of Recyclable Materials The Company shal1 be responsible for marketing and sale of all
Recyclable Materials Col1ected pursuant to this Agreement. The Company shal1 retain 100% of the proceeds from
the sale
of recyclable materials.3.3
Yard 'Waste Program 3.3>.1 Single Family Dwelling Unit
Yard Waste Collection The Company shal1 provide weekly curbside col1ection of Yard Waste on the same
day as refuse collec1lion from the City's single family customers. The Company shal1 process or
arrange for the processing of the Yard Waste or otherwise manage Yard Waste to maximize
AB 939 diversion credit. The Company shall provide each single family customer (4 dwelling units or
less) with a single rolling 96 gal10n cart in which residents will place their Yard Waste. There
will be no separate charge for curbside Yard Waste col1ection service. It wil1 be included as
part of the monthly single
family
1.3.2 Commercial & Industrial and Multi-Family Dwelling Unit Yard Waste
Collection If the City has not achieved the diversion required by the California Integrated
Waste Management Act by December 31, 2000, the Company shall offer Yard Waste Bin
Collection service to Commercial and Industrial, and Multi-Family Customers with refuse bin service,
in areas where sufficient Yard Waste is generated for the Company to reasonably collect it.
The Company shall notify all of its Commercial and Industrial, and Multi-Family refuse
customers of the availability of Yard Waste Collection service at least once each year. For this
service, the Company shall charge the customer a monthly rate no more than 75% of the monthly rate for
refuse service for the same size of bin and frequency of service. However, curbside customers
utilizing a 96-gallon Yard Waste cart shall
payno additional fee.1.3.3
Christmas Tree Collection Program The Company shall operate an annual Christmas Tree Collection
Program. The program shall include curbside and drop-off (if necessary) Collection and target
all Single Family and Multi-Family Dwelling Units in the City. The Company shall reasonably cooperate
with the City in the scheduling and operation of
theChristmas Tree Collection Program.1.3.4
End Uses for Yard Waste The Company shall divert Yard Waste materials
Collected through curbside Collection, and Christmas tree Collection from Disposal. The Company must provide end
uses for Yard Waste that maximize diversion credits for the City according to
regulations established by the
CaliforniaIntegrated Waste
ManagementBoard.3.4
Operations 3.4.1 Schedules To preserve peace and quiet, no Solid Waste shall be Collected on any day
between 7:00 P.M.and 7:00 A.M. in residential areas, or commercial areas directly
adjacent to residential areas, and between 8:00 P.M. and 6:30 A.M. in commercial areas without the prior
approval of the Director of Public Works. Such Solid Waste shall be Collected, Monday
through Saturday. If the regularly scheduled Collection day falls on New Year's Day, Memorial
Day, Independence Day, Labor Day,Thanksgiving Day, or Christmas Day, alternate collection shall be
performed on the next Collection day. All other Collection days falling on legal
holiday shall remain as scheduled.The Company shall be prepared to review its operations
plan outlining the Collection routes,intelvals of Collection and Collection times for all materials
Collected under this Agreement with the City once annually upon 30-day written notice
requesting said review. More frequent reviews may be required if operations are not satisfactory based
on documented observations or reports of complaints. If the plan is determined to be inadequate by the City,
the Company shall revise its plan incorporating any changes into a revised plan and review said revised
plan with the
City within thirty 30) calendar days.When notified of a missed pick-up, the
Company shall Collect the Refuse, Recyclable Materials,and/or Yard Waste on the same day if notified before noon.
If notified at a later time, collection
shall
3.4.2 Vehicles
A. General. The Company shall provide Collection vehicles sufficient in number and
capacity to efficiently perform the work required by the Agreement in strict accordance with its
terms as described in the Company's Proposal. All active single family residential collection
vehie1es (i.e., those that are used more than two days per week on a regular basis) shall be no more
than ten (10) years of age at any time following the Company's conversion to automated residential
service and shall be in any event in good and workmanlike condition. The Company shall have
available on Collection days sufficient spare vehicles for each type of Collection vehicle used to
respond to complaints and emergencies. By January I, 2001, the average age of bin service
colkction vehicles shall not exceed 10 years at any time during this agreement and shall be in any
event in good and workmanlike condition.
n. Specifications. All vehicles used by the Company in providing Refuse, Recycling, and
Yard Waste Collection services shall be registered with the California Department of Motor
Vehicles. All such vehicles shall have water-tight bodies designed to prevent leakage, spillage
or
overflow.C. Vehicle Identification. The Company's name, local telephone number, and a
unique vehie1e identification number designed by the Company for each collection vehicle shall
be prominently displayed on all vehicles, in letters and numbers no less than (3) three inches high.
The Company shall not place the City's name and/or any City logos on the Company
vehicles.n. Cleaning and
Maintenance I) The Company shall maintain all of its properties, vehicles, facilities,
and equipment used in providing service under this Agreement in a good, safe, neat, clean and
operable condition at all
times.2) Vehicles used in the Collection of Refuse, Recyclable Materials, and Yard
Waste shall be painted, thoroughly washed, and thoroughly steam cleaned on a regular basis so as to
present a clf:an appearance. The City may inspect vehicles at any time to determine compliance with
this Agff,ement. The Company shall also make vehicles available to the Orange County
Health Department for inspection, at any frequency it requests. The Company agrees to replace or repair
to the City's satisfaction, any vehicle which the City determines to be of unsightly appearance,
leaking,or in unsatisfactory operating
condition.3) The Company shall repaint all vehicles used in the Collection of
Refuse,Recyclable Materials and Yard Waste within sixty (60) days' notice from the City, if the
City determines that their appearance warrants
painting.4) The Company shall inspect each vehicle daily to ensure that all equipment
is operating properly. Vehicles which are not operating properly, or vehicles in such a condition as
to be unsafe or excessively noisy, shall be removed from service until repaired and operating
properly.The Company shall reasonably perform all scheduled maintenance functions in accordance with
the manufacturer's specifications and schedule. The Company shall keep accurate records of all
vehicle maintenance, recorded according to date and mileage (or hours of operation) and shall make
such records available to the City upon
request.
5) The Company shall repair, or arrange for the repair of, all of its vehicles and
equipment for which repairs are needed because of accident, breakdown or any other cause so as to
maintain all equipment in a safe and operable condition. If an item of repair is covered by a
warr,mty, the Company shall obtain warranty performance. The Company shall maintain accurate
records of repair, which shall include the date and mileage (or hours of operation), nature of repair
and the verification by signature of a maintenance supervisor that the repair has been properly
performed.
6) Upon request by the City, the Company shall furnish the City a written inventory
of all equipment, including Collection vehicles, used in providing service, and shall update the
inventory annually. The inventory shall list all equipment by manufacturer, ID number, date of
acqullsition, type, and capacity.
E:. Operation. Vehicles shall be operated in compliance with the California Vehicle Code,
and all applicable safety and local ordinances. The Company shall not load vehicles in excess of the
manufacturer's recommendations or limitations imposed by state or local weight restrictions on
vehicles.
Equipment shall comply with US EP A noise emission regulations, currently codified at 40 CFR
Part 205 and other applicable noise control regulations, and shall incorporate noise control features
throughout the entire vehicle. In no event shall the noise level of equipment used for Collection
exceed 75 dba when measured at a distance of 25 feet from the vehicle, five feet from the ground.
The Company shall store all equipment in safe and secure locations in accordance with the City's
applicable zoning regulations.
S.ubject to Section 8.1, the Company shall be responsible for any damage resulting from or
directly attributable to any of its operations, and which it causes to: the City's driving surfaces,
whether or not paved; associated curbs, gutters and traffic control devices; and other public
improvements.
I'. City Inspection Per Code. The City may cause any vehicle used in performance of this
Agre:ement to be inspected and tested at any commercially reasonable time, but in no event more
than twice annually, and in such manner as may be appropriate to determine that the vehicle is being
maintained in compliance with the applicable provisions of the State Vehicle Code, including, but
not limited to all Vehicle Code Sections regarding smog equipment requirements. The City may
direct the removal of any vehicle from service if that vehicle is found to be in nonconformance with
apphcable codes. No vehicle directed to be removed from service shall be returned to service until it
conforms with, and its return to service has been approved by the City.
G. Brake Inspections. The brake system of each vehicle used in performance of this
Agff,ement shall be inspected and certified annually according to state law by the California
Highway Patrol or by a brake inspection station licensed by the California Highway Patrol. Notice
of certification shall be filed with the City within thirty (30) days after each such certification.
Failure to submit the required certification shall be grounds for terminating this Agreement.
H. Correction of Defects. Following any inspection, the City Manager shall have the right
to cause the Company, at its sole cost and expense, to recondition or replace any vehicle or
18
equipment found to be unsafe, unsanitary or unsightly. The City Manager's determination may be
app(,aled to the City Council, which decision shall be final.
3.4.3 Containers
3.4.3.1 Single Family Refuse Containers
As set forth in Section 3.1.1, containers for Refuse Collection for Single Family Residential
Dwelling Unit shall be provided by the Customer.
As set forth in Section 3.1.2, Rolling Carts for Refuse Collection for Single-Family
Dwelling Units shall be provided and distributed by the Company. The Company will offer residents a
choice of three different sizes of Carts of approximately 35, 64, and 96-gallons. Carts shall
be specially made of rigid construction. The Company shall be responsible for Cart repair
and maintenance,graffiti removal, and for replacing lost, stolen or damaged Carts within 24 hours (
not including Sundays) at no additional charge to the customer or to the City, except when repairs
or replacement are due to gross negligence, intentional destruction or other misuse by
theCustomer.3.4.3.2 Single Family
Recycling Containers As set forth in Section 3.1.1, the Company shall provide and distribute
manually collected recycling containers to each Single-Family Dwelling Unit in the City. Ifmaterials
are separated into dim,rent containers, each shall be colored and labeled according to material
type. Customers may request additional containers and the Company shall provide them at no
additional charge. As programs continue and/or expand, the Company shall provide additional containers
as required. The Company shall be responsible for container repair and maintenance, graffiti
removal, and replacing lost, stolen or damaged containers within 48 hours at no additional charge to the Customer
or
to the City.As set forth in Section 3.1.2, the Company shall provide and distribute one
automated 64- gallon Recycling Cart specially made of rigid construction at no additional cost
to each Single-Family Dwdling Unit in the City. Carts shall be identified for Recyclables
only. Customers may request additional or another size of Recycling Carts and the Company shall provide
them at no additional charge. As programs continue and/or expand, the Company
shall provide additional, appropriate Carts as required. The Company shall be responsible for cart
repair and maintenance, graffiti removal, and replacing lost, stolen or damaged Carts within 24 hours at no
additional charge to the customer or to the City, except when repairs or replacements are required
due to gross negligence,intentional destruction, or
misuseby the customer.3.4.3.3 Single
Family Yard Waste Carts As set forth in Section 3.1.2, the Company shall provide and
distribute one automated 96-gallon rolhng Yard Waste Cart specially made of rigid construction at no
additional cost to each Single-Fanlily Dwelling Unit in the City. Carts shall be identified for
Yard Waste only. Customers may request one additional Yard Waste Cart and the Company shall provide
it at no additional charge.Each additional Yard Waste Cart shall be provided for a charge as set
forth in the attached rate exhibit. As programs continue and/or expand, the
Company shall provide additional, appropriate Carts as required. The Company shall be responsible for
cart repair and maintenance, graffiti removal, and replacing lost, stolen or damaged Carts within 48 hours at
no
customer or to the City, except when repairs or replacements are required due to gross negligence,
intentional destruction, or misuse by the customer.
3.4.3.4 Commercial and Industrial Containers
The Company shall provide commercial, industrial, and multi-family dwelling unit
customers with Containers for Collection of Solid Waste. The Company shall maintain its Containers in
a clean, sound condition free from putrescible residue. Containers shall be constructed of heavy
metal,or other suitable, durable material, and shall be watertight, well painted and free of graffiti.
Wheels,forklift slots, and other appurtenances which were designed for movement, loading, or unloading
of the Container shall be maintained in good repair. Containers which are used to Collect
Putrescible Waste shall be cleaned or replaced annually, or more frequently if necessary, to prevent a
nuisance caused by odors or vector harborage. Any customer may request one cleaning or
replacement annually at no charge. Graffiti shall be removed from any Container within two (2) business
days inclluding Saturdays) of request by customers. Each Container placed in the City by the
Company shall have the name and phone number of the Company in letters not less than three inches high
on the exterior of the Container or otherwise clearly visible. The Company shall repair or replace
any stokn, damaged, or dilapidated Bin or Rolloff Box within five (5) working days of notice of
same.The Company may charge the customer if such work is necessary due to misuse by the
customer.3.4.4 Litter
Abatement A. Minimization of
Spills.The Company shall use due care to prevent Solid Waste or fluids from leaking, being
spilled and/or scattered during the Collection or transportation process. If any Solid Waste or fluids leak
or are spilled during Collection, the Company shall promptly clean up all such materials.
Each Collection vehicle shall carry a broom and shovel at all times for this
purpose.The Company shall not transfer loads from one vehicle to another on any public street, unless
it is necessary to do so because of mechanical failure, accidental damage to a vehicle, or a
pre-approved method of Solid Waste transfer between vehicles, without prior written approval by
the
City.B. Clean
Up.During the Collection or transportation process, the Company shall clean up litter in
the immediate vicinity of any Solid Waste storage or collection area whether or not the Company
has caused the litter. The Company shall identify instances of repeated spillage not caused by it
directly with the Customer responsible and will report such instances to the City. The. City will attempt
to rectify such situations with the Customer if the Company has already attempted to do so
without
success.C. Covering of
Loads.The Company shall properly cover all open RolloffBoxes during transport to the Disposal
Site.3.4.5
Personnel The Company shall furnish such qualified drivers, mechanical, supervisory,
clerical,management and other personnel as may be necessary to provide the services required by
this
Agre:ement in a satisfactory, safe, economical and efficient manner. All drivers shall be trained and
qualified in the operation of vehicles they operate and must possess a valid license, of the
appropriate class, issued by the California Department of Motor Vehicles.
The Company also agrees to establish and vigorously enforce an educational program which will
train the Company's employees in the identification of Hazardous Waste. The Company's employees
shall not knowingly place such Hazardous Waste in the Collection vehicles, nor knowingly dispose
of such Hazardous Wastes at the processing facility or Disposal Site.
The Company shall instruct its employees to treat customers with courtesy, shall prohibit the use
of loud or profane language, and shall instruct Collection crews to perform the work quietly. The
Company shall use its best efforts to assure that all employees present a neat appearance and conduct
themselves in a courteous manner. If any employee is found to be discourteous or not to be
performing services in the manner required by this Agreement, the Company shall take all necessary
corrective measures including, but not limited to, transfer, discipline or termination. If the City has
notified the Company of a complaint related to discourteous or improper behavior, the Company will
consider reassigning the employee to duties not entailing contact with the public while the Company
is pursuing its investigation and corrective action process.
The Company shall provide suitable operations, health and safety training for all of its employees
who use or operate equipment or who are otherwise directly involved in Collection or other related
operations.
3.4.6 Identification Required
The Company shall provide its employees, companies and Subcontractors with identification for
all individuals who may make personal contact with residents or businesses in the City. The City
may require the Company to notify customers yearly of the form of said identification. The
Company shall provide a list of current employees, companies, and Subcontractors to the City upon
request.
The City reserves the right to perform a security and identification check upon the Company and
all its present and future employees, in accordance with accepted procedures established by the City,
or for probable cause.
3.4.7 Fees and Gratuities
The Company shall not, nor shall it permit any agent, employee, or Subcontractors employed by
it, to request, solicit, demand, or accept, either directly or indirectly, any compensation or gratuity
for temporary bin/roll off services or the Collection, transportation, Recycling, processing, and
Disposal of Solid Waste, other than provided under this Agreement.
4.8 Non-
Discrimination The Company shall not discriminate in the provision of service or the employment of
Persons engaged in performance of this Agreement on account of race, color, religion, sex, age,
physical handicap or medical condition in violation of any applicable federal or state
law.
3.4.9 Change in Collection Schedule
The Company shall notify the City forty-five (45) days prior to, and Single
Family Dwelling Unit Customers not later than thirty (30) days prior to, any change in Single Family
Dwelling Unit Collection operations which results in a change in the day on which Solid Waste Collection
occurs.The Company will not permit any customer to go more than seven (7) days without service
in connection with a Collection schedule change. The City's approval of any change in Single
Family Dwelling Unit Collection is required prior to such change, and such approval will not be
withheld
umeasonably.Any changes in the route map or collection schedule shall require the prior approval
of the City. The City may require changes in the route map or collection schedule, to improve service,
to resolve complaints or for other reasons. Prior to the change of a route schedule, the Company
shall provide written notice of the change to affected customers forty-five (45) days in advance and
shall, at its sole cost and expense, publish the changes in a newspaper of
generalcirculation.3.4.10 Report of Accumulation of Solid Waste;
Unauthorized Dumping The Company shall direct its drivers to note (I) the addresses of any Premises
at which they observe that Solid Waste is accumulating and is not being delivered for Collection; and (
2) the address. or other location description, at which Solid Waste has been dumped in
an apparently unauthorized manner. The Company shall deliver the address or description to the City within
five (5)working days of such observation. Company shall cooperate with City in the
investigation and prosecution of any violations of City's Solid
Waste Ordinance.3.5 Transportation of
Solid Waste The Company shall transport all Refuse collected under Section 3.1 to
the Transfer Station or Disposal Site. Unless the City otherwise obtains ownership of the Solid Waste
or Refuse stream as described in Section 2.10, the Transfer Station or Disposal Site shall be the
Orange County Landfill System as designated by the City The Company agrees to make all reasonable
efforts to separate Recyclable Materials from Refuse for diversion from landfill Disposal in order
to achieve complilmce with waste
diversion requirements.The Company shall maintain complete, accurate and up-to-date
records of the quantities of Solid Waste transported to the Transfer Station or Disposal Site and will cooperate
with the City in any audlits or
investigations of such quantities.3.6
Processing of Solid Waste The City, upon prior written notice to the Company, reserves the right,
prior to Disposal, to direct additional portions of the Solid Waste stream collected under this
Franchise
to a Material -Recovery Facility ("MRF") or Yard Waste Processing Facility for separation, reuse,
and Recycling of any Recyclable Materials contained therein. The Company agrees to assist the City
by identifying loads suitabl(, for processing in the MRF. If the City exercises this right, the City agrees to
pass through any increml:ntal change in the Company's cost by adjusting
the
3.7 D1isposal of Solid Waste
The Company shall dispose of all Solid Waste collected under Section 3.1 at the Disposal
Site. Unless and until the City otherwise obtains ownership of the Solid Waste stream under Section
2.10, the Disposal Site shall be the Orange County Landfill System operated by the County of Orange.
The Company has reviewed and is aware of the contents of the agreement between the
County of Orange and various Orange County cities, including the City of Orange for the Disposal of
Solid Waste (hereafter "Flow Control Agreement"). The Flow Control Agreement is attached hereto as
Exhibit "8". The Company acknowledges that the provisions of the Flow Control Agreement include
the requirement that all Solid Waste collected within City limits be disposed of in a landfill owned
and/or operated by the County of Orange. The Company agrees that it will perform all of the City's
obligations set forth in the Flow Control Agreement, and any extensions thereto, and to do otherwise
constitutes a breach of this Agreement. Upon the effective date of this Agreement, Company shall
dispose of all Solid Waste collected within the City limits at the landfill designated in this section. At
any time during the term of this Agreement the City Manager may provide written notice to the
Company relieving it of its obligations under the Flow Control Agreement. The Company will then
have the discretion to dispose of Solid Waste at a landfill of its choosing, provided the Company
provides (,vidence that such disposal is the most economical for the City.
3.8 Status of Di~posal Site
Any Disposal Site utilized by the Company, shall be designed and constructed in
accordance with 23 California Code of Regulations Section 2510 sa ~ ("Subchapter 15"). Any such
landfill must have been issued all permits from federal, state, regional, county and the City agencies
necessary for it to operate as a Class III Sanitary Landfill and is in full regulatory compliance with all
such perrnits.
The Disposal Site is currently authorized to accept, under its existing permit, and has
sufficient uncommitted capacity to accept, all Solid Waste delivered to it by, or on behalf of, the City for
the term of this Agreement plus any extensions thereto.
3.9 Annual Route Audit
At least once annually, the Company shall conduct an audit of its collection routes in the
City. The annual route audit shall include the truck identity, number of accounts serviced, number and
size of containers, frequency of pick-ups, as well as the weight of the refuse delivered to the
Transfer Station or Disposal Site. Results of the annual route audit shall be available for review by the City or
its
representative.3.10 Service Exceptions; Hazardous Waste
Notifications A. Failure to Collect. When Solid Waste is not Collected from any Customer,
the Company shall notify the Customer in writing, at the time Collection is not made, through the use of
a tag" or otherwise, of the reasons why the Collection was not
made.B. Hazardous Waste Inspection and Reporting. The Company reserves the
right under law to inspect Solid Waste put out for Collection and to reject Solid Waste observed to
be contaminated with Hazardous Waste and the right not to collect Hazardous Waste put out with
Solid Waste. The Company shall notifY all agencies with jurisdiction, if appropriate, including the
California
Department of Toxic Substances Control and Local Emergency Response Providers and the National
Response Center of reportable quantities of Hazardous Waste, found or observed in Solid Waste
anywhere within the City. In addition to other required notifications, if the Company observes any
substanees which it or its employees reasonably believe or suspect to contain Hazardous Wastes
unlawfllllly disposed of or released on any City property, including storm drains, streets or other public
rights of way, the Company will immediately notify the City Manager or the City Manager's designee.
C. Hazardous Waste Diversion Records. The Company shall maintain records
showing the types and quantities, if any, of Hazardous Waste found in Solid Waste and which was
inadvertently Collected from Customers within the City, but diverted from landfilling.
ARTICLE 4
OTHER SERVICES
4.1 Services and Customer Billing
4.1.1 Service Description
The Company shall periodically (not less than once per calendar year) prepare and
distribute, subject to the direction of the City, a notice to each Customer served under this Agreement a
listing of the Company's collection rates, rates for other services, annual holiday schedule, recycling
programs offered, and a general summary of services required to be provided hereunder and optional
service which may be furnished by the Company. Such notice shall be in a form subject to the City's
approval prior to its distribution. Such notice may be included with Billings made by the Company and
may also be included as part of the Company's public education plan described below in Section 4.3.1.
4.1.2 Billing
4.1.2.1 Single Family Residential Customers
The City shall directly bill residential customers for refuse collections service a flat fee
per dwelling unit every other month. The City shall remit to the Company its Compensation for
providing service to Single Family Residential Unit Customers according to the Initial Rates shown in
Exhibit 4 or those rates in Exhibit 4 as they are subsequently adjusted according to Article 5. The City
shall provide the Company a listing of Single Family Dwelling Units to support the Compensation paid
to the Company. The City shall remit to the Company its Compensation within 30 days of the end of the
month in which the Company provided service.
At City's option, the Company shall accurately bill Single Family Residential Customers
according to the Initial Rates shown in Exhibit 4 or those rates in Exhibit 4 as they are subsequently
adjusted according to Article 5 at the rate of $.50 per month per unit for the waste hauling automated
service. The Company shall invoice Single Family Dwelling Unit Customers quarterly in advance with
payment due within 30 days from the invoice date (i.e., the beginning of the quarter or the inception of
service). If the invoice remains unpaid after 60 days from the invoice date, the Company shall notify the
Customer at that time that the invoice is overdue and that non-payment may result in suspension
of service. If the invoice remains unpaid after 75 days from the invoice date, the Company shall
again notify the Customer at that time that the invoice is overdue and may stop service and/or take
further collection
action.
4.1.2.2 Multi-Family and Commercial Bin
Customers The Company shall accurately bill Multi-family Dwelling Unit and
Commercialand lndustria.\ Property Bin Customers according to the Initial Rates shown in Exhibit 4 or those
rates in Exhibit 4 as they are subsequently adjusted according to Article 5. The Company shall
invoice its Multi-family Dwelling Unit and Commercial and Industrial Property Bin Customers
monthly in advance with payment due within 30 days from the invoice date (i.e., the beginning of the month
or the inception of service). If the invoice remains unpaid after 45 days from the invoice date, the
Company shall notifY the customer at that time that the invoice is overdue and that non-payment
may result in further collection action including suspension of service and notification to the City Manager
or his designee for appropriate action. If the invoice remains unpaid after 60 days from the invoice
date, the Company shall again notify the customer at that time that the invoice is overdue and that
non-payment may result in further collection action including suspension of service and notification to
the City Manager or his designee for appropriate action. If the invoice remains unpaid after 75
days, the Company shall provide written notice to the Owner of the Premises that the invoice is unpaid and, unless
the invoice is paid in the next 15 days, service will be suspended and the City Manager or
his designee will undertake code
enforcement against the delinquent customer.Provided that adequate payment arrangements have not been made
between the Company and the Owner of the Premises within 90 days of the invoice date, the Company
may suspend service to the customer. The City shall consider Customers who have their service
suspended for non-payment to be in violation of section 8.28.170 of the Orange Municipal Code.
The City agrees to makereasonable efforts to enforce sections 8.28.190 and 8.28.
200 of the Orange Municipal Code.The Company shall not require security
deposits from Multi-family Dwelling Unit and Commercial and Industrial Property Bin Customers unless
a Customer has previously had its service suspended due to non-payment. In that case, the Company
may require the Customer to post a security deposit in an amount not to exceed
the service charge for two months of
service.4.1.2.3 RolIoff Box Customers The Company shall accurately bill
Rolloff Box Customers according to the Initial Rates shown in Exhibit 4 or those rates in Exhibit 4 as
they are subsequently adjusted according to Article 5.For Single Family Dwelling Unit Customers
who request RolloffBox service, the Company shall accept major credit cards for payment.
Single Family Dwelling Unit Customers or other non-permanent customers that do not use credit cards may be required by
the Company to post a security deposit or pay on a "Cash on Delivery" (C. O. D.) basis. Any unused
portion of a security deposit shall be refunded to the Customer
with five business days of the termination of service.For all other Rolloff Box
Customers, the Company shall invoice monthly or semi-monthly in arrears with payment due within 15 or 30 days from the
invoice date (i.e., the beginning of the month or the inception of service). The
Company may grant credit to and take reasonable collection action towards its Rolloff Box Customers as
it deems appropriate. If the Company suspends service for a RolloffBox Customer due to non-
payment, the Company shall notify the City Manager or his designee.The City agrees to reasonably enforce sections 8.
28.
4.1.3 Review of Billings
The Company shall review its Billings to customers under Section 4.1.2. The purpose of
the review is to determine that the amount which the Company is billing each customer is correct in
terms of the level of service being provided to such customer by the Company. The Company shall
review customer accounts annually, and submit to the City a written report of that review annually on
the anniversary of the Effective Day of this Agreement.
The Company shall maintain copies of said Billings and receipts, each in chronological
order, ti)r a period of three (3) years after the date of service for inspection by the City upon request.
The Company may, at its option, maintain those records in computer form, on microfiche, or in any
other manner, provided that the records can be preserved and retrieved for inspection and verification in
a timely manner, and may be produced in a form and manner sufficient to establish the existence of
custom(,r obligations in a court of competent jurisdiction.
4.2 Customer Service
4.2.1 Office Hours
Office hours shall be, at a minimum, from 8:00 A.M. to 5:00 P.M., Monday through
Friday, exclusive of holidays. A responsible and qualified representative of the Company shall be
available during office hours for communication with the public at the local office. Normal office hour
telephone numbers shall be a toll free call. The Company's telephone system shall be adequate to handle
the volume of calls typically experienced on the busiest days. The Company shall also maintain a toll
free telephone number for use during other than normal business hours. The Company shall have a
representative, answering or message providing/receiving (voice-mail) service available at said
after-hours telephone
number.4.2.2 Complaint
Documentation All service complaints shall be directed to the Company. Daily logs of complaints
concerning Collection of Solid Waste, Recyclable Materials and Yard Waste shall be retained for a minimum
of twenty-four (24) months and shall be available to the City at all times
upon request.The Company shall log all complaints received by telephone and said log shall include
the date and time the complaint was received, name, address and telephone number of caller,
description of complallnt, employee recording complaint and the action taken by the Company to respond
to and
remedy complaint.All customer complaints and inquiries shall be date-stamped when received and
shall be initially respond.ed to within one (I) business day of receipt. The Company shall log action
taken by the Company to respond to and
remedy the complaint.All customer service records and logs kept by the Company shall be available to
the City upon request and at no cost to the City. The City shall, at any time during regular
the Company business hours, have access to the Company's customer service department for purposes
that may include monitoring the quality of customer service or
researching
4.2.3 Resolution of Customer Complaints
Disputes between the Company and its customers regarding the services provided in accordance
with this Agreement may be resolved by the City. The City's decision shall be final and binding. The
Company shall pay the City $100 for each City intervention in a dispute between the Company and a
customer if the City reasonably deems intervention is required and the customer's dispute is valid.
Intervention by the City is not a condition precedent to any rights or remedies third parties might
otherwise have in any dispute with Company. Nothing in this Section is intended to effect the remedies
of third parties against the Company. To the extent that remedies are warranted through this Agreement,
this Section shall apply.
4.2.4 Government Liaison
The Company shall designate in writing a "Goverrunent Liaison" who shall be located within
reasonable proximity of City Hall and who shall be responsible for working with the City and/or the
City's designated representative(s) to resolve customer complaints.
4.3 Education and Public Awareness
4.3.1 General
The Company acknowledges and agrees that education and public awareness are critical, key and
essential elements of any effort to achieve the California Integrated Waste Management Act
requirements. Accordingly, the Company agrees to implement a public education plan to expand public
and customer knowledge concerning needs and methods to reduce, reuse and recycle Solid Waste and to
cooperate fully with the City in this regard.
The Company shall submit the Public Education Plan for approval by the City prior to the
Effective Date of the Agreement. The approved Public Education Plan shall be incorporated as Exhibit
3 into this Agreement. The Company shall educate customers and provide public awareness of waste
prevention and recycling according to its Public Education Plan. All public education materials shall be
approved in advance by the City.
4.3.2 Community Events
At the direction of the City, the Company shall participate in and promote Recycling and other
diversion techniques at community events and local activities. Such participation would normally
include providing, without cost, personnel to deliver and present educational and publicity information
promoting the goals of the City's Solid Waste program.
4.4 Waste Generation/Characterization Studies
The Company acknowledges that the City may be required to perform Solid Waste generation
and Disposal characterization studies periodically to comply with the California Integrated Waste
Management Act or other waste diversion requirements. The Company agrees to participate and
cooperate with the City and its agents and to accomplish such studies at no additional cost the City.
27
ARTICLES
COMPANY COMPENSATION AND RATES
5.1 General
The Company Compensation provided for in this Article shall be the full, entire and complete
compensation due to the Company pursuant to this Agreement for all labor, equipment, materials
and supplies, taxes, insurance, bonds, overhead, Disposal, transfer, profit and all other things
necessary to perform all the services required and reasonably anticipated by this Agreement in the
marmer and at the times prescribed.
The Company will perform the responsibilities and duties described in this Agreement in
consideration of the right to receive compensation for services rendered at maximum rates fixed by
the City from time-to-time. The City and the Company agree that the Company will
retain any proeeeds from the sale
ofrecyclable materials.5.2
Initial Rates The rates for the period from contract initiation until December 31, 1999, shall
not exceed those in Exhibit 4A. The rates for the period from January 1,2000, to December 31,2000
shall not excl~ed those set forth in Exhibit 4B, unless amended by a written amendment to
this Agreement ent(,red into by and between the City and the Company. Unless and until the maximum
rates set forth on Exhibit 4B are adjusted, the Company will provide the services required by
this Agreement,charging no more than the maximum rates authorized by Exhibit 4A and Exhibit 4B,
except as provided herein and in Section
5.3.5.3 Schedule of
Future Adjustments Beginning with Rate Year 2 (January I, 2001 to December 31, 2001) and for
all subsequent Rat,~ Years, the Company may request an annual adjustment to the maximum rates shown
in Exhibit 4B. The Company shall submit its request in writing, to be received by the City in person
or via certified mail, by September 1 prior to the beginning of the new rate year based on the
method of adjustment described inSection 5.4. Failure to submit a written request by September 1,
shall result in the Company waiving the right to request such an increase for the
subsequentyear.5.4 Method
of Adjustments 5.4.
1 General Pursuant toSection 5.3, the Company may request an annual adjustment to the
maximum rates according to the method described below and the formulas shown in Exhibits 5A, 5B,
and 5C,su~ject to review and approval of the City. All future adjustments are to be effective January I,
and -shall be based on the initial rates in Exhibit 4.
5.5.4.2 Single Family Dwelling Unit and Commercial and Industrial Property
Customers Maximum rates for Single Family Dwelling Unit and Commercial and Industrial
Property Customers shall be adjusted according to the following procedures and the example calculations
shown in Exhibits 5A and
5B.
SkIL~ - Determine the disposal expense component and service component portions of total rate revenue
as a percentage of total rate revenue. The total disposal expense and total rate revenue should
be for the twelve month period ending on the most recent June 30'''.SkILTwo -
Calculate the percentage change in the Producer Price Index (PPI) for Finished Goods,and the
percent change in the refuse disposal tipping fee per ton. The change in the PPI shall be for the vNelve
month period ending on the most recent June 30. The change in the refuse disposal tipping fee
shall be based on the change between the most recent Tipping Fee on which rates are based and
the new Tipping Fee.SkJL~ - Calculate
the weighted percent change in maximum rates by:I) Multiplying the
refuse disposal expense as a percent of total rate revenue by the percent change in the
refuse disposal tipping fee;2) Multiplying the
service component as a percent of total rate revenue by the percent change in the
PPI; and,3) Adding the
results of I), and 2) above to determine the weighted percent change in rates SkILEmu: - Multiply one
plus the weighted percent change in maximum rates by the then existing maximum rates to derive
the newly adjusted maximum rates.504.3 Rolloff Maximum
load charges, delivery
charges, and overweight charges for rolloff customers shall be adjusted according to the
following procedures and the example calculations shown in Exhibit 5C Step One - Calculate the
percent change in the PPI for the twelve month period for the most recent twelve months ending on
the most recent June 30.St"<P Two - Multiply one
plusthe percent change in PPI by the then existing maximum rates to derive the newly adjusted rolloff rates.
Disposal charges shall be based on the actual landfill fee per ton.5.5 Extraordinary Adjustments The Company
or the City may
request an adjustment to rates at reasonable times other than that required in Section 5.3 for
unusual changes in thecost of providing service under this Agreement. Such changes may include changes in components
of the disposal tipping fee per ton at the landfill, changes in the Disposal Site requested by the
City, and changes in State or local government solid waste fees and charges. Such changes shall not include
changes in the market value of Recyclables from the values assumed in the Company's proposal,
or inaccurate estimates by the Company of its proposed cost of operations, or changes in container service
subscription levels. For each such request, the Company shall prepare a schedule documenting the
extraordinary costs. Such request shall be prepared in a form acceptable to the City with support
for assumptions made by the Company in preparing the estimate.The City shall review the Company'
s request and, in the City's sole judgment, except as otherwise provided in this paragraph, make the
final determination on the appropriate amount of the adjustment if any. However, City's approval shall
not be unreasonably denied where arising from City's designation of a MRF or Disposal Site
or when a new or increased government fee, tax or charge have been imposed on solid waste collection, transportation, disposal
or recycling services. In no event, shall the Company 29
seek an extraordinary adjustment due to costs arising out of a contractual relationship with former
officers, directors or employees of Orange Disposal Services, or Orange Resource Recovery Systems.
5.6 Supporting Information
The Company shall provide the City, in the event the Company requests a rate adjustment on the
basis of unusual changes or extraordinary increases or costs of doing business, with documentation
supporting its request. The Company shall provide any additional documentation reasonably required
by the City to support an adjustment.
5.7 Grants
From time to time, Federal, State, or local agencies including the City may provide to the
Company grants to assist in financing qualified programs provided by the Company. The Company
agrees in the event such grants are awarded, it shall notify the City and if appropriate, the Company
Compensation shall be reduced by the amount of the grant. The City Council shall determine whether
the reduction in the Company Compensation shall be: (I) passed through to those Customers designated
by the City as a reduction to their rates; (2) as an offset to a rate increase calculated in accordance with
Sections 5.2 through 5.5; (3) paid to the City for use as the City directs; or, (4) applied in any
combination of (I) through (3).
5.8 Subsidized Rates
As a result of a settlement of legal issues with the City's prior exclusive Solid Waste provider,
the City has funds in reserve to utilize as a subsidy to the rates charged by the Company. The rates
shown in Exhibit 4A and 4B reflect this subsidy. The per unit and per yard subsidy shall be as set forth
in Exhibits 4A and 48. The Company shall invoice the City for such amount on or before the 15th of
every even numbered month, and payment shall be due on the 7th of every odd numbered month. The
Company shall bill the City in arrears, i.e., invoices due on the l5'h of every even numbered month shall
be for the two months prior service. City may unilaterally change the amount of the subsidy as long as it
results in no decrease in revenue to the Company. The company shall provide documentation to the
reasonable satisfaction of the City, supporting the subsidy amount requested.
5.9 Guarantee of Low Rates
As part of the consideration for this Agreement, the Company guarantees that throughout the
term of this Agreement, that the Company's gross rate for all customers will be in lowest third of the
rates being charged for similar services in all cities in the County of Orange. The gross rate for such
services shall be the non-subsidized rate set forth in Exhibits 4A and 4B and shall be increased
or decreasf:d relative to any such adjustments approved in accordance with this Agreement. As
an example, if the Company is permitted an increase of 2% on the residential rate, the gross residential
rate shall likewise be increased by 2%. The gross rates are based on a calculation of what the Company'
s rates would be without the City subsidy. In comparing rates of other cities with that of the City,
the franchis,e fees paid by solid waste providers in those cities shall be excluded from the calculation
of other cities' rates. Should the City request additional services beyond those set forth in this
Agreement,the incn,mental cost of those additional services shall be deducted in determining the City's gross
rate.As used in this section, the term "similar services" for residential customers shall refer to
an automated 3-Cart system utilizing one Cart for mixed waste, one Cart for Recyclable Material
and
Cart for Yard Waste. In comparing rates for Bin and RolloffBox customers, the term similar services
for Bin shall consider the type of Bin, the frequency of Bin collection and Bin capacity.
ARTICLE 6
REVIEW OF SERVICES AND PERFORMANCE
6.1 Performance Hearing
The City may hold a public hearing on or about the two year anniversary of the start of this
Agreement, at which time the Company shall be present and shall participate, to review the Solid
Waste Collection, source reduction, processing and other diversion services and overall performance.
The purpose of the hearing is to provide for a discussion and review of technological, economic, and
regulatory changes in Collection, source reduction, Recycling, processing and Disposal to achieve a
continuing, advanced Solid Waste Collection, source reduction and Recycling and Disposal system;
and to ensure services are being provided with adequate quality, effectiveness and economy.
Forty-five (45) days after receiving notice from the City of a Solid Waste Services
and Performance Review Hearing, the Company shall, at a minimum, submit a report to the
City indicating the
following:a) Changes recommended and/or new services to improve the City's ability to
meet the goals of the California Integrated Waste Management Act and to contain costs and
minimize impacts on
rates.b) Any specific plans for provision of changed or new services by the
Company.The reports required by this Agreement regarding customer complaints shall be used as
one basis for review. The Company may submit other relevant performance information and reports
for consideration. The City may request the Company to submit specific information for the hearing.
In addition, any customer may submit comments or complaints during or before the hearing,
either orally or in writing, and these shall be
considered.Topics for discussion and review at the Solid Waste Services and Performance Review
Hearing shall include, but shall not be limited to, services provided, feasibility of providing new
services,application of new technologies, customer complaints, amendments to this
Agreement,developments in the law, new initiatives for meeting or exceeding the California Integrated
Waste Management Act's goals, regulatory constraints and the Company performance. The City and
the Company may each select additional topics for discussion at any Solid Waste Services
and Performance Review
Hearing.Not later than sixty (60) days after the conclusion of each Solid Waste Services
and PerfcJrmance Review Hearing, the City may issue a report. As a result of the review, the City
may require the Company to provide expanded or new services within a reasonable time and
for reasonable rates and compensation and the City may direct or take corrective actions for
any perfcJrmance
inadequacies.
ARTICLE 7
RECORDS, REPORTS AND INFORMATION REQUIREMENTS
7.1 General
The Company shall maintain such accounting, statistical and other records related to its
performance under this Agreement as shall be necessary to develop the reports required by this
Agn,ement. Also, the Company agrees to conduct data collection, information and record keeping,
and reporting activities needed to comply with applicable laws and regulation and to meet the
reporting and Solid Waste program management needs of the City. To this extent, such
requirements set out in this and other Articles of this Agreement shall not be considered limiting or
necessarily complete. In particular, this Article is intended to only highlight the general nature of
records and reports and is not meant to define exactly what the records and reports are to be and their
cont,~nt. Further, with the written direction or approval of the City, the records and reports to be
maintained and provided by the Company in accordance with this and other Articles of the
Agreement shall be adjusted in number, format, or frequency.
7.2 Records
7.2.1 General
The Company shall maintain records required to conduct its operations, to support requests it
may make to the City, and to respond to requests from the City in the conduct of the City business.
Adequate record security shall be maintained to preserve records from events that can be reasonably
anticipated such as a fire, theft and earthquake. Electronically maintained data/records shall be
protected and backed up. Financial records shall be maintained for three (3) years after the
expiration of this Agreement.
The Company agrees that the records of any and all companies conducting operations
addressed in the Agreement shall be provided or made available to the City and its official
repfl~sentatives during normal business hours. The City may review or utilize any of the records
described in this section for any purpose whatsoever.
7.2.2 Financial Records
Financial records shall be maintained and expense and revenue information for the City shall
be segregated from other areas served by the Company if required by the City for rate evaluation
purposes.
7.2.3 Solid Waste Records
Records shall be maintained by the Company for the City relating to:
a) Customer services and billing;
b) Character, weight and volume of Solid Waste, especially as related to reducing
and diverting Solid Waste.
c) Special annual cleanup event results;
d) Routes;
32
e) Facilities, equipment and personnel used;
f) Facilities and equipment operations, maintenance and repair;
g) Processing and Disposal of Solid Waste;
h) Complaints; and,
i) Missed pick ups.
7.2.4 CERCLA Defense Records
The City views the ability to defend against CERCLA and related litigation as a matter of great
importance. For this reason, the City regards the ability to prove where Solid Waste Collected in the
City was taken for Disposal, as well as where it was not taken, to be matters of concern. The
Company shall maintain data retention and preservation systems which can establish where Solid
Waste Collected in the City was landfilled (and therefore establish where it was not landfilled) and
provide a copy of the reports required in Section 7.3 for five (5) years after the term during which
Coll(,ction services are to be provided pursuant to this Agreement, or to provide copies of such
records to the City upon City's request. The Company agrees to notify the City's Risk Manager and
the City Attorney at least 90 days before destroying such records. This provision shall survive the
expiration of the period during which Collection services are to be provided under this Agreement.
7.2.5 Recycling and Yard Waste Service Records
Records shall be maintained for the City that relate to:
a) Records described in 7.2.3, above;
b) Recycling and Yard Waste participation - especially as related to determining participation
rates and implementing programs to increase existing participation and to expand diversion (
names, addresses, contacts made, etc.);c)
Weight of each material by type of program; and,d)
Sales - quantity sold in tons.7.2.
6 Disposal Records The Company
shall maintain records of Disposal of all Solid Waste Collected in the City for the period
of this Agreement and all extensions to this Agreement or successor Agreements. In the event the
Company discontinues providing Solid Waste services to the City, the Company shall provide all
records of Disposal or processing of all Solid Waste Collected in the City within thirty 30) days
of discontinuing service. Records shall be in chronological and organized form and readily and easily
interpreted.7.2.
7 Other Programs' Records Records for
other programs shall be tailored to specific needs. In general, they shall include:a) Plans,
tasks, and milestones; and,b) Accomplishments
in terms such as dates, activIties conducted, quantities ofnproducts used, produced
or distributed, and numbers of participants and responses.33
7.2.8 Cost of Audit
Should an audit by the City disclose that franchise or other fees, if any, payable by the
Company were underpaid by two percent (2%) or more, or that two percent (2%) or more of the
residential or commercial customers were billed incorrectly, for the period under review, the
Company shall, in addition to any other remedy City might have, pay for the full cost of the City's
audit.
7.2.9 Payments and Refunds
Should an audit by the City disclose that the franchise fees or other fees, if any, payable by the
Company were underpaid or that customers were overcharged for the period under review, the
Company shall pay to the City any underpayment of franchise fees and/or refund to the Company's
customers any overcharges. Should an audit disclose that Franchise Fees were overpaid, the City
shall promptly refund to the Company the amount of the overpayment. Any refunds to be made by
eith(,r party shall be due and payable (30) days following the date of the audit.
7.3 Reports
7.3.1 Report Formats and Schedule
Records shall be maintained in forms and by methods that facilitate flexible use of data
contained in them to structure reports, as needed. Reports are intended to compile recorded data into
useful forms of information that can be used to, among other things:
a) Determine and set rates;
b) Evaluate past and expected progress towards achieving the California Integrated
Waste Management Act goals and objectives;
c) Determine needs for adjustment to programs; and,
d) Evaluate customer service and complaints.
The Company may propose report formats that are responsive to the objectives and audiences
for each report. The format of each report shall be approved by the City. The Company agrees to
submit all reports on computer discs or by modem in a format compatible with the City's
software/computers at no additional charge, if requested by the City. The Company will provide a
certification statement, under penalty of peIjury, by an authorized Company official, that the report
being submitted is true and correct.
Monthly reports shall be submitted within thirty (30) calendar days after the end of the report
month. Annual reports shall be submitted before January 31st following the reporting year.
All reports shall be submitted to: City Manager (or designated representative)
City of Orange
300 E. Chapman Avenue
Orange, CA 92866
34
7.3.2 Monthly Reports
The information listed shall be the minimum reported for each service:
Rl:lnllar Services
a) Solid Waste Collected by the Company, sorted by kind of Customer and the
Disposal Site or Transfer Station used, in tons.
b) Complaint summary, for month and cumulative for report year, as above.
Summarized by nature of complaints on a compatible computer disc.
c) Narrative summary of problems encountered (including scavenging) and actions
taken with recommendations for the City, as appropriate.
d) Description of promotional and public education materials.
e) CERCLA Defense records required under Section 7.2.4.
f) Other information or reports that the City may reasonably request or require.
cling and Yard Waste Services
a) Same as Regular Service, but for Recycling (by material type) and Yard Waste,
including the pp,rcentage diverted by material type.
b) Number of accounts by category shown for each month of reporting year and
previous years, as above.
c) Participation rates in same format as number of accounts.
d) Container Distribution. Information on the number of Recycling and Yard Waste
Containers distributed, including why Containers have been distributed (i.e., new Recycling
customer, broken, lost, stolen, other).
e) Materials Sales. Sales statement showing: kinds of material, quantity sold (in
tons), net sales and materials rejected for sale and an explanation for the rejection.
7.3.3 Annual Report
The Annual Report is to be essentially in the form and content of the monthly reports, but shall
also include a complete inventory of equipment used to provide all services and a list of the
Company's officers and members of its board of directors, and a comparison of rates in other Orange
County cities as set forth in Section 5.9.
7.3.4 Financial Report
The City may, at the City's option and ifreasonably necessary, request the Company's annual
audited financial reports/statements for the most recently completed fiscal year in connection with a
request for an extraordinary rate increase, pursuant to Section 5.5, or a rate adjustment pursuant to
Section 5.4. City shall pay for the direct cost of reproduction of such copies. Financial statements
may include a supplemental combining schedule showing the Company's results of operations,
including the specific revenues and expenses in connection with the operations provided for in this
Agr<eement, separated from others included in such financial statements. The financial statements
35
and footnotes shall be prepared in accordance with Generally Accepted Accounting Principles
GAAP) and audited, in accordance with Generally Accepted Auditing Standards (GAAS) by a
certJlfied public accountant (CPA) licensed (in good standing) to practice public accounting in the
Stat,e of California as determined by the State of California Department of Consumer Affairs Board
of Accountancy. The cost for preparation of the financial statements and audit shall be borne by the
Company as a direct cost of service. In addition, the Company shall provide to the City the
supplemental schedule on a compiled basis.
The Company shall, in its agreement with the CPA preparing the audit above, have its CPA
make available to the City (or the City's designated representative) such CPA's working papers
related to the audit. The cost, if any, incurred by the Company's CPA shall be included in the cost of
the audit.
At the City's request, the Company shall provide the City with copies of working papers or
other documentation deemed relevant by the City relating to information shown in the disclosure
letter. The disclosure letter shall be provided to the City.
7.4 Adverse Information
A. Reporting Adverse Information. The Company shall provide the City two copies (one
to the City Manager, one to the City Attorney) of all reports, pleadings, applications, notifications,
NotJlces of Violation, communications or other material relating specifically to the Company's
performance of services pursuant to this Agreement, submitted by the Company to, or received by
the Company from, the United States or California Environmental Protection Agency, the California
Integrated Waste Management Board, the Securities and Exchange Commission or any other federal,
state or local agency, including any federal or state court. Copies shall be submitted to the City
simultaneously with the Company's filing or submission of such matters with said agencies. The
Company's routine correspondence to said agencies need not be routinely submitted to the City, but
shall be made available to the City promptly upon the City's written request.
B. Failure to Report. The refusal or failure ofthe Company to file any required reports, or
to provide required information to the City, or the inclusion of any materially false or misleading
stat(,ment or representation by the Company in such report shall be deemed a material breach of the
Agr'eement as described in Section 10.1 and shall subject the Company to all remedies which are
available to the City under the Agreement or otherwise.
7.5 Right to Inspect Records
The City shall have the right to inspect or review the payroll tax reports, specific documents or
records required expressly or by inference pursuant to this Agreement, or any other similar records
or reports of the Company or its related party entities that the City shall deem, in its reasonable
discretion, necessary to evaluate annual reports, compensation applications provided for in this
Agreement and the Company's performance provided for in this Agreement.
7.6 Duty to Cooperate in Litigation
The City has or will be initiating litigation due to causes of action which arose out of its
contracts with Orange Resource Recovery Systems and Orange Disposal Services. To the extent that
the Company comes into the control of the records for these companies or any other companies
36
own(,d or operated by Sam Hambarian, Alyce Hambarian, Mike Hambarian, Jeff Hambarian or Don
Hambarian, it shall maintain these records until such time as the City Attorney approves their
destmction. The Company further agrees to make such records available for review and copying
upon two (2) business days notice.
ARTICLE 8
INDEMNIFICATION, INSURANCE AND BOND
8.1 Indemnification
The Company hereby agrees to and shall indemnify and hold harmless the City, its elected and
appoiinted boards, commissions, officers, employees, and agents (collectively, Indemnitees) from and
against any and all loss, liability, penalty, forfeiture, claim, demand, action, proceeding or suit in law
or equity of any and every kind and description (including, but not limited to, injury to and death of
any Person and damage to property, or for contribution or indemnity claimed by third parties) arising
or resulting from and in any way connected with (I) the negligence or willful misconduct of the
Company, its officers, employees, agents, Companies and/or Subcontractors in performing services
under this Agreement; (2) the failure of the Company, its officers, employees, agents, Companies
and/or Subcontractors to comply in all respects with the provisions of this Agreement, applicable
laws (including, without limitation, the Environmental Laws), ordinances and regulations, and/or
applil:able permits and licenses; (3) the acts of the Company, its officers, employees, agents,
Companies and/or Subcontractors in performing services under this Agreement for which strict
liability is imposed by law (including, without limitation, the Environmental Laws). The foregoing
indemnity shall not apply to the extent such loss, liability, penalty, forfeiture, claim, demand, action,
procf:eding, suit, injury, death or damage is caused in part by any of the Indemnitees active
negligence, willful misconduct or breach of this Agreement. The Company further agrees to and
shall, upon demand of the City, at the Company's sole cost and expense, defend (with attorneys
acceptable to the City) the Indemnitees against any claims, actions, suits in law or equity or other
procf:edings, whether judicial, quasi-judicial or administrative in nature, arising or resulting from
any oftht, aforementioned
events.The Company, upon demand of the City, made by and through the City Attorney, shall
protect the City and appear in and defend the Indemnitees, in any claims or actions by third parties,
whether judicial, administrative or otherwise, including, but not limited to disputes and litigation over
the definitions of "Solid Waste" or "Recyclable Material" or the limits of the City's authority
with respect to the grant of licenses, or agreements, exclusive or otherwise, asserting rights under
the Dornlant Commerce Clause or federal or state laws to provide Solid Waste services in the City.
This provision shall survive the expiration of the period during which Collection services are to
be provided under this Agreement. The City and the Company agree to confer following any trial
to decidle jointly whether to appeal or to oppose any appeal. In the event the City and the
Company jointly agree to appeal, or to oppose any appeal, the City and the Company agree to share equally
the costs of appeals. Should either the City or the Company decide to appeal, or to oppose an
appeal,and the other decide not to appeal, or to oppose an appeal, the party which decides to appeal, or
to oppose an appeal, shall bear all fees and costs of the appeal or the opposition to the
appeal.
The Company's duty to indemnify and defend from the aforementioned events arising during
the Term of the Agreement and as it may be extended shall survive the expiration or earlier
termination of this Agreement.
8.2 Hazardous Substances Indemnification
The Company shall indemnify, defend with counsel reasonably acceptable to the City, protect
and hold harmless the Indemnitees from and against all claims, damages (including but not limited to
special, consequential, natural resources and punitive damages), injuries, costs, (including without
limit any and all response, remediation and removal costs), losses, demands, debts, liens, liabilities,
causes of action, suits, legal or administrative proceedings, interest, fines, charges, penalties,
attorney's fees for the adverse party and expenses (including without limit attorneys' and expert
witness fees and costs incurred in connection with defending against any of the foregoing or in
enforcing this indemnity), (collectively, "Damages") of any kind whatsoever paid, incurred or
sufft,red by, or asserted against, the Indemnitees arising from or attributable to the acts or omissions
of the Company, its officers, directors, employees, companies or agents, whether or not negligent or
otherwise culpable, in connection with or related to the performance of this Agreement, including
without limit Damages arising from or attributable to any repair, cleanup or detoxification, or
preparation and implementation of any removal, remedial, response, closure or other plan (regardless
of whether undertaken due to governmental action) concerning any Hazardous Substance, Hazardous
Waste, Household Hazardous Waste, Solid Waste, and/or other waste that has been generated,
colkcted, stored, transported, or disposed in the City. The foregoing indemnity is intended to
operate as an agreement pursuant to ~107(e) of the Comprehensive Environmental Response,
Compensation and Liability Act, CERCLA, 42 USC. ~9607(e) and California Health and Safety
Code 925364, to defend, protect, hold harmless, and indemnify the Indemnitees from liability. This
provision is in addition to all other provisions in this Agreement and shall survive the end of the term
of this Agreement. The foregoing applies only to facilities owned or operated by the Company or its
Affiliates or any facility that the Company selects for Disposal of Solid Waste Collected pursuant to
this Agreement.
8.3 AB 939 Indemnification
The Company agrees to indemnify and hold harmless the City from and against all fines and/or
penalties imposed by the California Integrated Waste Management Board in the event the source
reduction and Recycling goals or any other requirement of AB 939 are not met by the City with
respect to the waste stream Collected under this Agreement. The Company's indemnification of the
City shall be subject to all of the following restrictions: The Company's obligation to indemnify the
City shall not be enforceable if the Board imposed penalty is based solely upon the failure of the
City to establish and maintain a source reduction and recycling element pursuant to section 41000 et.
seq., of the Public Resources Code. Any Board imposed penalty based upon the City's failure to
meet the solid waste diversion requirements imposed by Section 41780 et. seq., of the Public
Resources Code resulting in whole or in part from the Company's breach of contract or
noncompliance with any other authorization, shall be apportioned in accordance with the percentage
of f:mlt of the City and the Company. Further, the Company shall not be liable for the indemnity
obligation to the extent that the Company's breach or noncompliance resulted from the action or
failure to act of the City .No payment required or imposed pursuant to the Company's obligation to
38
indemnify the City may exceed that portion of any penalty assessed by the Board against the City
that was caused by the Company's breach or noncompliance of an express obligation or requirement
undf:r this Agreement. The Company is familiar with the City's waste characterization study as set
forth in the City's Source Resource and Recycling Element (SRRE). The Company warrants that it
has Ithe ability to meet or exceed the diversion requirements as set forth in the Integrated Waste
Management Act under the programs and services provided for in this Agreement.
8.4 Insurance
The City does not, and shall not, waive any rights against the Company which it may have by
reason of the aforesaid indemnification provisions, because of acceptance by the City or the deposit
with the City by the Company of the insurance policies described in this provision. Such indemnity
shall apply regardless of insurance coverage or requirements.
A. Minimum Scope of Insurance. Coverage shall be at least as broad as:
I. The most recent editions of Insurance Services Office form number GL 0002
covering Comprehensive General Liability and Insurance Services Office form number GL 0404
covering Broad Form Comprehensive General Liability; or Insurance Services Office Commercial
Genllral Liability coverage ("occurrence" form CG 0001).
2. The most recent editions of Insurance Services Office form number CA 0001
covering Automobile Liability, code I "any auto" and endorsement CA 0025.
3. Workers' Compensation insurance as required by the Labor Code of the State of
California and Employers Liability insurance.
B. Minimum Limits of Insurance. The Company shall maintain in force for the term of
this Agreement limits no less than:
I. Comprehensive General Liability: Five Million Dollars ($5,000,000) combined
single limit per occurrence for bodily injury, Personal injury and property damage.
2. Automobile Liability: Five Million Dollars ($5,000,000) combined single limit
per accident for bodily injury and property damage.
3. Workers' Compensation and Employers Liability: Workers' compensation limits
as rl~quired by the Labor Code of the State of California and Employers Liability limits of
1,000,000 per accident.
C. Deductibles and Self-Insured Retentions. Any deductibles or self-
insured retentions must be declared to and approved by the City. At the option of the City, either: the
insurer shall reduce or eliminate such deductibles or self-insured retention's as respects the
Indemnitees; or the Company shall procure a bond guaranteeing payment of losses and
related investigations, claim administration and defense expenses in the amount of such deductibles
or self-insured retentions.D. Other Insurance Provisions. The policies are to contain, or be
endorsed to
contain, the following provisions:I. General Liability
and
a) The Indemnitees are to be named as additional insureds as respects:
liability arising out of activities performed by or on behalf of the Company; products and completed
operations of the Company; Premises owned, leased or used by the Company; or vehicles owned,
leased, hired or borrowed by the Company. The coverage shall contain no special limitations on the
scope of protection afforded to the City, its elective and appointive boards, commissions, officials,
employees, agents or volunteers.
b) The Company's insurance coverage shall be primary insurance as respects
the Indemnitees. Any insurance or self-insurance maintained by the City, its officials, elective
and appointive boards, commissions, employees, agents or volunteers shall be excess of the Company'
s insUlfance and shall not contribute with
it.c) Any failure to comply with reporting provisions of the policies shall
not affect coverage provided to the
Indemnitees.d) Coverage shall state that the Company's insurance shall apply separately
to each insured against whom claim is made or suit is brought, except with respect to the limits of
the inSUlfer's
liability.2. Workers' Compensation and Employers Liability Coverage - The insurer shall
agr(,e to waive all rights of subrogation against the lndemnitees for losses arising from work
performed by the Company for the City.
3. All Coverages - Each insurance policy required by this clause shall be endorsed to statl~
that coverage shall not be suspended, voided, canceled, reduced in coverage or in limits except after
thirty (30) days' prior written notice by certified mail, return receipt requested, has been given to
the City.E.
Acceptability of Insurers. The insurance policies required by this Section shall be issued
by an insurance company or companies authorized to do business in the State of California and
with a rating in the most recent edition of Best's Insurance Reports of size category VII or larger and
a rating classification of A- or better.F.
Verification of Coverage. The Company shall furnish the City with certificates of insurance
and with original endorsements affecting coverage required by this clause. The certificates and
endorsements for each insurance policy are to be signed by a Person authorized by that insurer to bind
coverage on its behalf. The certificates and endorsements are to be on forms provided by or acceptable
to the City and are to be received and approved by the City before work commences. The City
reserves the right to review complete, certified copies of all required insurance policies, at any tiffil~.
G.
Companies and Subcontractors. The Company shall include all Companies and Subcontractors
as insureds under its policies or shall furnish separate certificates and endorsements for
each the Company and Subcontractor. All coverages for Companies and Subcontractors shall be sU1:>
jectto all of the requirements stated herein.H.
Delivery of Proof of Coverage. Simultaneously with the execution of this Agreement,the
Company shall furnish the City certificates of each policy of insurance required hereunder, in fonn
and substance satisfactory to the City. Such certificates shall show the type and amount of 40
coverage, effective dates and dates of expiration of policies and shall have all required endorsements.
If the: City requests, copies of each policy, together with all endorsements, shall be made available
for review to the City.
Renewal certificates will be furnished periodically to the City to demonstrate
mainltenance of the required coverage throughout the Term.
I. Other Insurance Requirements
I. In the event any services are delegated to a Company or Subcontractor, the
Company shall require such the Company or Subcontractor to provide statutory workers'
compensation insurance and employer's liability insurance for all of the Company or Subcontractor's
employees engaged in the work in accordance with this Section 8.4. The liability insurance required
by this Section 8.4 shall cover all the Company or Subcontractors or the Company or Subcontractor
must furnish evidence of insurance provided by it meeting all of the requirements of this Section 8.4.
2. The Company shall comply with all requirements of the insurers issuing policies.
The carrying of insurance shall not relieve the Company from any obligation under this Agreement.
If any claim exceeding the amount of any deductibles or self-insured reserves is made by any
third Person against the Company or any Company or Subcontractor on account of any occurrence
related to this Agreement, the Company shall promptly report the facts in writing to the insurance
carrier and to the
City.If the Company fails to procure and maintain any insurance required by this Agreement,
the City may take out and maintain, at the Company's expense, such insurance as it may deem
proper and deduct the cost thereof from any moneys due the
Company.8.5 Faithful Performance
Bond Concurrently with execution of this Agreement, the Company shall deliver to the City
a performance bond, from an admitted surety insurer, in the amount of Five Hundred
Thousand Dollars ($500,000), similar to the form provided in Exhibit 7, which secures the faithful
performance of this Agreement, including, without limitation, payment of any penalty and the funding of
any work to cure a breach of this Agreement. The bond shall contain the original notarized signature
of an authorized officer of the surety and affixed thereto shall be a certified and current copy of
his pow(,r of attorney. The bond shall be unconditional and remain in force during the entire term of
the Agreement and shall be null and void at the conclusion of the term of this Agreement only if
the Company promptly and faithfully performs all terms and conditions of this
Agreement.8.6 Forfeiture of Performance
Bond In the event the Company shall for any reason become unable to, or fail in any way to,
perform as re:quired by this Agreement, the City may declare a portion or the entirety of the
performance bond which is necessary to recompense and make whole the City, forfeited to the City. Upon
partial forfeiture of the performance bond, the Company shall restore the performance bond to its
face amount within 30 days of the City's
declaration.
ARTICLE 9
CITY'S RIGHT TO PERFORM SERVICE
9.1 General
In addition to, but not in lieu of, any other rights or remedies City might have under this
Agreement, at law or in equity, in the event that the Company, for any reason whatsoever, fails,
refuses or is unable to Collect, Recycle, process, transport or dispose of any or all Solid Waste which
it is required by this Agreement, at the time and in the manner provided in this Agreement, for a
period of more than forty-eight (48) hours, and if, as a result thereof, Solid Waste should
accumulate in the City to such an extent, in such a manner, or for such a time that the City should find that
such accumulation endangers or menaces the public health, safety or welfare, then the City shall have
the righI:, but not the obligation, upon notice to the Company during the period of such emergency
as detennined by the City, as hereinafter set forth, (I) to perform, or cause to be performed,
such services itself with its own or other personnel without liability to the Company; and/or (2) subject
to the requirements of Section 9.2, to take possession of any or all of the Company's land,
equipment and other property used or useful in the Collection and transportation of Solid Waste, and to use
such property to Collect and transport any Solid Waste generated within the City which the
Company would otherwise be obligated to Collect, transport and properly dispose of or process pursuant to
this
Agmement.Notice of the Company's failure, refusal or neglect to Collect, transport and properly dispose
of or process Solid Waste may be given orally by telephone to the Company at its principal office
and shall be effective immediately. Written confirmation of such oral notification shall be sent to
the Company within twenty-four (24) hours of the oral notification. The Company further agrees
that in
such event:A. It will take direction from the City to effect the transfer of possession of
equipment and property to the City for the City'
s use.B. It will, if the City so requests, keep in good repair and condition all of
such equipment and property, provide all motor vehicles with fuel, oil and other service, and provide
such other service as may be necessary to maintain said property in
operational condition.e. The City may immediately engage all or any personnel necessary or useful
for the collection and transportation of Solid Waste, including, if the City so desires,
employees previously or then employed by the Company. The Company further agrees, if the City so requests,
to furnish the City the services of any or all management or office Personnel employed by the
Company whose services are necessary or useful for Solid Waste Collection, transportation, processing
and disposal operations and for the billing and Collection of fees for
these services.The City agrees that it assumes complete responsibility for the proper and normal use
of such equipment and facilities while in
its possession.If the interruption or discontinuance in service is caused by any of the reasons listed
inSection 10.4, the City shall pay to the Company the reasonable rental value of the equipment
and facilities,possession of which is taken by the City, for the period of the City's possession, if
any,
extends beyond the period of time for which the Company has rendered bills in advance of service,
for the class of service involved.
9.2 Temporary Possession of the Company's Property
If the City suffers an interruption or discontinuance of service (including interruptions and
discontinuance due to events described in Section 10.4), the City may take possession of and use all
of the Company's property described above until other suitable arrangements can be made for the
proviision of Solid Waste Services. If such an interruption lasts 45 days or more, with or without
fault on the Company, the City may terminate the Franchise and grant it to another waste hauling
company.
9.3 Billing and Compensation to the City During the City's Possession
During such time that the City is providing Solid Waste services, as above provided, the
Company shall bill and Collect payment from all users of the above-mentioned services as
described in Section 4.1. The Company further agrees that, in such event, it shall reimburse the City for
any and all costs and expenses incurred by the City beyond that billed and received by the City in
taking over possession of the above-mentioned equipment and property for Solid Waste service
in such manner and to an extent as would otherwise be required of the Company under the Terms
of this Agreement. Such reimbursement shall be made from time to time after submission by the City
to the Company of each statement listing such costs and expenses, but in no event later than
five (5)working days from and after each
such submission.9.4 City's Right to
Relinquish Possession It is further mutually agreed that the City will relinquish possession of any or all of
the above-mentioned property to the Company at such time the Company provides a reasonable showing
that it can resume the Solid Waste services as provided in this Agreement, whereupon the
Company shall be bound to resume
thesame.9.5 City's Possession Not
A Taking Except as otherwise expressly provided in the previous paragraph, the City's exercise
of its rights under this Article 9 (I) does not constitute a taking of private property for
which compensation must be paid; (2) will not create any liability on the part of the City to the Company; and (3)
does not exempt the Company from the indemnity provisions of Article 8, which are meant to
extend to circumstances arising under this Section, provided that the Company is not required to
indemnify the City against claims and damages arising from the active negligence or willful misconduct
of the City:, its elective and appointive boards, commissions, officers, employees and agents
in the operation of Collection vehicles during the time the City has taken possession of
such vehicles.9.6 Duration of the City'
s Possession The City's right pursuant to this Article to retain temporary possession of the
Company's facilities and equipment, and to render Collection services, shall terminate when the
City determines that such services can be resumed by the Company, or when the City no longer
reasonably requires such property or equipment. In any case, the City has no obligation to maintain possession
of the Company's property or equipment and/or continue its use for any period of time and may
at any time, in its sole discretion, relinquish possession to
the
ARTICLE 10
DEFAULT, REMEDIES AND LIQUIDATED DAMAGES
10.1 Events of Default
Each of the following shall constitute an event of default.
A. Fraud or Deceit. If the Company or any officer of the Company, practices or attempts to
practice, any fraud or deceit upon the City.
B. Insolvency or Bankruptcy. If the Company becomes insolvent, unable, or unwilling to
pay its debts, or upon listing of an order for relief in favor of the Company in a bankruptcy
proceeding.
C. Failure to Maintain Coverage. If the Company fails to provide or maintain in full force
and effect the Workers' Compensation, liability, or indemnification coverage as required by this
Agrllement.
D. Violations of Regulation. If the Company violates any orders or filings of any
regulatory body having jurisdiction over the Company related to the performance of Company's
obligations hereunder, provided that the Company may contest any such orders or filings by
appropriate proceedings conducted in good faith, in which case no breach of the Franchise and this
Agr1lement shall be deemed to have occurred.
E. Failure to Perform. If the Company ceases to materially provide Collection, processing
or Recycling services as required under this Agreement for a period of two (2) consecutive days or
more, except where due to events set forth in Section 10.4.
F. Failure to Pay. If the Company fails to make any payments required under this
Agrl~ement and/or refuses to provide the City, within ten (10) days of the demand therefor, with
required information, reports, and/or records in a timely manner as provided for in the Agreement.
G. Acts or Omissions. Any other act or omission by the Company which violates the terms,
conditions, or requirements of this Agreement, the California Integrated Waste Management Act of
1989, as it may be amended from time to time, or any law, statute, ordinance, order, directive, rule,
or regulation issued thereunder, related to the performance of Company's obligations hereunder, and
which is not corrected or remedied within the time set in the written notice of the violation or, if the
Company cannot reasonably correct or remedy the breach within the time set forth in such notice, if
the Company should fail to commence to correct or remedy such violation within the time set forth
in such notice and diligently effect such correction or remedy thereafter.
H. False or Misleading Statements. Any representation or disclosure made to the City by
the Company in connection with or as an inducement to entering into this Agreement, or any future
amendment to this Agreement, which proves to be false or misleading in any material respect as of
the time such representation or disclosure is made, whether or not any such representation or
disclosure appears as part of this Agreement.
I. Attachment. There is a seizure of, attachment of, or levy on, the operating equipment of
the Company, including without limits its equipment, maintenance or office facilities, or any part
thereof.
44
J. Failure to Provide Services. If the Company materially fails to provide the high quality
ofselvices contemplated by this Agreement.
K. Failure to Provide Assurance of Performance. If the Company fails to provide
reasonable assurances of performance as required under Section 10.6.
The Company shall be given forty-eight (48) hours from notification by the City to cure
any default arising under subsections E and K provided, however, that the City shall not be obligated
to provide the Company with a notice and cure opportunity if the Company has committed the same
or similar breach within a twenty-four
month period.10.2 Right to Terminate
Upon Default Except as provided in Section 10.1, upon a default by the Company, the City shall
have the right to terminate this Franchise and this Agreement upon a ten (10) days notice if the
public health or safety is threatened, or otherwise a thirty (30) days notice, but without the need for
any hearing,suit or legal action. The Company shall be provided the opportunity to cure during the 10-
day or 30-day period. No extension to cure will be granted, unless the City is satisfied that
the Company has taken all reasonable steps to initiate the cure and is
diligently prosecuting completion.The City's rights to terminate this Agreement, or to take possession of the
Company's Facility are not exclusive, and the City's termination of this Agreement shall not constitute
an election of remedies. Instead, they shall be in addition to any and all other legal and
equitable rights and remedies which the
City may have.By virtue of the nature of this Agreement, the urgency of timely continuous
and high- quality service, the time required to effect alternative service, and the rights granted by the
City to the Company, the remedy of damages for a breach hereof by the Company is inadequate
and the City may be entitled
in injunctive relief.10.
3 Liquidated Damages A. General. The City finds, and the Company agrees, that as of the time of
the execution of this Agreement, it is impractical, if not impossible, to reasonably ascertain the
extent of damages which shall be incurred by the City as a result of a breach by the Company of
its obligations under this Agreement. The factors relating to the impracticability of ascertaining damages
include, but are not limited to, the fact that: (i) substantial damage results to members of the public
who are denied services or denied quality or reliable service; (ii) such breaches
cause inconvenience, arIXiety,frustration, and deprivation of the benefits of the Agreement to individual members
of the general public for whose benefit this Agreement exists, in subjective ways and in
varying degrees of intensity which are incapable of measurement in precise monetary terms; (
iii) that Franchised services might be available at substantially lower costs than alternative services
and the monetary loss resulting from denial of services or denial of quality or reliable services
is impossible to calculate in precise monetary terms; and (iv) the termination of this Agreement
for such breaches,and other remedies are, at best, a means of future correction and not remedies which
make the public whole
for past breaches.B. Service Performance Standards; Liquidated Damages for
Failure to Meet Standards. The parties further acknowledge that consistent, reliable Solid
Waste
is of utmost importance to the City and that the City has considered and relied on the Company's
repfl~sentations as to its quality of service commitment in awarding the Franchise to it. The parties
further recognize that some quantified standards of performance are necessary and appropriate to
ensure consistent and reliable service and performance. The parties further recognize that if the
Company fails to achieve the performance standards, or fails to submit required documents in a
timely manner, the City and its residents will suffer damages and that it is and will be impractical
and extremely difficult to ascertain and determine the exact amount of damages which the City will
suffer. Therefore, without prejudice to the City's right to treat such non-performance as an event
of default under this Article 10, the parties agree that the following liquidated damage
amounts represent a reasonable estimate of the amount of such damages considering all of the
circumstances existing on the date of this Agreement, including the relationship of the sums to the range of harm
to the City that reasonably could be anticipated and the anticipation that proof of actual damages
would be costly or impractical. The Company agrees to pay (as liquidated damages and not as a
penalty)the amounts set forth
below:I. Collection
Reliability a) For each failure to commence service to a new customer account within seven (
7)days after order, which exceed ten (10) such failures annually: $150.
00 b) For each failure to Collect Solid Waste, which has been properly set out
for Collection, from an established customer account, or accounts, on the scheduled Collection day
and not Collected within the period described in this Agreement which exceeds twenty (20) such
failures annually: $150.
00 c) For each failure to Collect Solid Waste, which has been properly set out
for Collection, from the same customer on two (2) consecutive scheduled pickup days: $150.
00 d) For each failure to prepare for or properly conduct Annual Cleanups
including adv(,rtising and press releases: $250.
00 2. Collection
Quality a) For each occurrence of unreimbursed damage to private property which
exceeds five (5) such occurrences annually: $250.
00 b) For each occurrence of failure to properly return empty Containers to
avoid pedestrian or vehicular traffic impediments or to place cans upright with lids secured (in areas
where customers own their containers, if applicable) which exceeds twenty (20) such occurrences
annually:150.
00 c) For each occurrence of excessive noise or discourteous behavior: $250.
00 d) For each failure to clean up Solid Waste spilled from Solid Waste
Containers which exceeds ten (10) such failures annually: $150.
00 e) For each occurrence of Collecting Solid Waste during unauthorized hours
which exceeds five (5) such occurrences annually: $250.
00.
3. Customer Responsiveness
a) For each failure to initially respond to a customer complaint within one (I)
business day: $100.00
b) For each failure to process customer complaints to the City as required by Article
5 herein: $500.00
c) For each failure to carry out responsibilities for establishing service: $500.00
d) For each failure to remove graffiti from containers, or to replace with containers
bearing no graffiti, within two (2) business days of request from City or Customers: $150.00.
4. Timeliness of Submissions to the City
Any report shall be considered late until such time as a correct and complete report is received
by the City. For each calendar day a report is late, the daily liquidated damage amount shall be:
a) Monthly Reports: $100 per day
b) Annual Reports: $350 per day
5. Accuracy of Billing
a)
rate schedule:
Each customer invoice that is not prepared in accordance with the City's approved
250.00 ($1,000 maximum per billing cycle)
b) In those instances where the customer invoice was prepared incorrectly due to the
same: error and effects four or more invoices: $1,000.00
c) Each occurrence in which a service address is "double billed" with multiple
invoices sent to different billing addresses (for examples, both a tenant and an off-site
property owner are billed for service at the same location): $250.
00 6. Implementation of Public Education
Plan a) Each day past the agreed upon deadline that the Company fails to perform a
task set forth in its public education plan: $100 per
day 7. Assessment and Payment of Liquidated
Damages Liquidated damages will only be assessed after the Company has been given the
opportunity but failed to rectify the damages as described in Section 10.2 of this Agreement. The City
may detelmine the occurrence of events giving rise to liquidated damages through the observation of
its own employees or representative or investigation of customer
complaints.Prior to assessing liquidated damages, the City shall give the Company notice of its intention
to do so. The notice will include a brief description of the incident(s)/non-performance.
The Company may review (and make copies at its own expense) all non-confidential information
in the possession of the City relating to incident(s)/non-performance. The Company may, within
ten (10) days after receiving the notice, request a meeting with the City Manager or his or
her designee. The Company may present evidence in writing and through testimony of its employees and
others relevant to the incident(s)/non-performance. The City Manager or his or her
designee will provide the Company with a written explanation of his or her determination on each
incident(
authorizing the assessment of liquidated damages. The decision of the City Manager or his designee
shall be final.
The City may assess liquidated damages for each calendar day or event, as appropriate, that the
Company is determined to be liable in accordance with this Agreement. The Company shall pay any
liquidated damages assessed by the City within ten (10) days after they are assessed. If they are not
paid within the ten (10) day period, the City may proceed against the performance bond required by
the Agreement or order the termination of this Agreement, or exercise any other right or remedy
available to City under this Agreement or at law or in equity, or any combination of these remedies.
10.4 Excuse from Performance
The parties shall be excused from performing their respective obligations hereunder in the
event they are prevented from so performing by reason of floods, earthquakes, other natural
disasters, war, civil insurrection, riots, acts of any government (including judicial action), and other
similar catastrophic events which are beyond the control of and not the fault of the party claiming
excuse from performance hereunder. Labor unrest, including but not limited to strike, work
stoppage or slowdown, sick-out, picketing, or other concerted job action conducted by
the Company's employees or directed at the Company is not an excuse from performance and
the Company shall be obligated to continue to provide service notwithstanding the occurrence of any
or all of such
events.The party claiming excuse from performance shall, within two (2) days after such party
has notj,~e of such cause, give the other party notice of the facts constituting such cause and asserting
its claim to excuse under this
Section.The interruption or discontinuance of the Company's services caused by one or more of
the events excused shall not constitute a default by the Company under this Agreement. However,
the City may terminate this Agreement as otherwise set forth in this
Agreement.10.5 Assurance of
Performance The City may, at its option and in addition to all other remedies it may have, demand from
the Company reasonable assurances of timely and proper performance of this Agreement, in such
form and substance as the City may require. If the Company fails or refuses to provide
satisfactory aSSUlfances of timely and proper performance in the form and by the date required by the City,
such failure or refusal shall be an event of
default.ARTICLE
11 OTHER AGREEMENTS OF THE
PARTIES 11.1 Relationship of
Parties The parties intend that the Company shall perform the services required by this Agreement
as an independent Company engaged by the City and not as an officer or employee of the City nor as
a partner of or joint venture with the City. No employee or agent or Company shall be or shall
be deemed to be an employee or agent of the City. Except as expressly provided herein, the
Company shall have the exclusive control over the manner and means of conducting the Solid
Waste Collection services performed under this Agreement, and all Persons performing such services.
The
Company shall be solely responsible for the acts and omiSSIOns of its officers, employees,
Companies, Subcontractors, Affiliates and agents. Neither the Company nor its officers, employees,
Companies, Subcontractors, Affiliates and agents shall obtain any rights to retirement benefits,
workers' compensation benefits, or any other benefits which accrue to the City employees by virtue
ofthe:ir employment with the City.
11.2 Compliance with Law
In providing the services required under this Agreement, the Company shall at all times, at its
sole cost, comply with all applicable laws and regulations of the United States, the State of
Califi)rnia, and local agencies. The City shall comply with all applicable regulations promulgated by
federal, state, regional or local administrative and regulatory agencies, now in force and as they may
be enacted, issued or amended during the Term.
11.3 Governing Law
This Agreement shall be governed by, and construed and enforced in accordance with, the laws
of the State of California.
11.4 Jurisdiction
Any lawsuits between the parties arising out of this Agreement shall be brought and concluded
in thf: courts of the State of California, which shall have exclusive jurisdiction over such lawsuits.
With respect to venue, the parties agree that this Agreement is made in and will be performed
in Orange County.
11.5 Assignment
Except as may be provided for in Article 10 (the City's Right to Perform Service), neither party
shall assign its rights, nor delegate, subcontract or otherwise transfer its obligations under this
Agmement to any other Person without the prior written consent of the other party. Any such
assignment made without the consent of the other party shall be void and the attempted assignment
shall constitute a material breach ofthis Agreement.
For purposes of this Section when used in reference to the Company, "assignment" shall
include, but not be limited to (i) a sale, exchange or other transfer of substantially all of the
Company's assets dedicated to service under this Agreement to a third party; (ii) a sale, exchange or
other transfer of outstanding common stock of the Company to a third party provided said sale,
exchange or transfer may result in a change of control of the Company; (iii) any dissolution,
reorganization, consolidation, merger, re-capitalization, stock issuance or re-issuance,
voting trust,poohng agreement, escrow arrangement, liquidation or other transaction to which results in
a change of Ownership or control of the Company; (iv) any assignment by operation of
law, including insolvency or bankruptcy, making assignment for the benefit of creditors, writ of attachment
for an execution being levied against this Agreement, appointment of a receiver taking possession
of the Company's property, or transfer occurring in the event of a probate proceeding; and (
v) any combination of the foregoing (whether or not in related or contemporaneous transactions)
which hasthe e:ffect of any such transfer or change of Ownership, or change of control of
the
The Company acknowledges that this Agreement involved rendering a vital service to the
CitY's residents and businesses, and that the City has selected the Company to perform the services
specified herein based on (I) the Company's experience, skill and reputation for conducting its
operations in a safe, effective and responsible fashion, at all times in keeping with applicable
Environmental Laws, regulations and best Solid Waste management practices, and (2) the
Company's financial resources to maintain the required equipment and to support its indemnity
obligations to the City under this Agreement. The City has relied on each of these factors, among
others, in choosing the Company to perform the services to be rendered by the Company under this
Agn,ement.
If the Company requests the City's consideration of and consent to an assignment, the City may
deny or approve such request in its complete discretion provided that the City shall not unreasonably
deny an assignment to an affiliate of the of the Company. With respect to a non-affiliate, no
request by the Company for consent to an assignment need be considered by the City unless and until
the Company has met the following
requirements:a) The Company shall furnish the City with audited financial statements of
the proposed assignee's operations for the immediately preceding three (3) operating
years;b) The Company shall furnish the City with satisfactory proof: (i) that the
proposed assignee has at least ten (10) years of Solid Waste management experience on a scale equal to
or exceeding the sale of operations conducted by the Company under this Agreement; (ii) that in
the last five (5) years, the proposed assignee has not suffered any significant citations or other
censure from any federal, state or local agency having jurisdiction over its Solid Waste
management operations due to any significant failure to comply with state, federal or local Environmental
Laws and that the assignee has provided the City with a complete list of such citations and censures; (
iii)that the proposed assignee has at all times conducted its operations in an environmentally safe
and conscientious fashion; (iv) that the proposed assignee conducts its Solid Waste
management practices in accordance with sound Solid Waste management practices in full compliance with
all federal, state and local laws regulating the collection and Disposal of Solid Waste
including Hazardous Substances; and, (v) of any other information required by the City to ensure the
proposed assignee can fulfill the Terms of this Agreement in a timely, safe and effective
manner.Under no circumstances shall the City be obliged to consider any proposed assignment by
the City if the Company is in default at any time during the period of
consideration.Any application for an assignment shall be made in a manner prescribed by the City
Manager.The application shall include a transfer fee in an amount to be set by a resolution of the City
Council,to cover the reasonable costs of all direct and indirect administrative expenses of the City,
including,without limitation, consultants and attorneys, necessary to analyze the application and to
reimburse the City for all its direct and indirect expenses. The applicant shall pay such invoices prior to
any authorized change of ownership or franchise transfer becoming
effective.11.6 Contracting or
Subcontracting The Company shall not engage any Companies or Subcontractors for Collection,
transfer,processing, Recycling or Disposal of Solid Waste without the prior written consent of the
City.
11.7 Binding on Assigns
The provisions of this Agreement shall inure to the benefit to and be binding on the permitted
assigns of the parties.
11.8 Transition to the Next Company
If the transition of services to another company occurs through expiration of term, default and
termination, or otherwise, the Company will cooperate with the City and subsequent company(ies) to
assist in an orderly transition which will include, but not be limited to, the Company providing route
lists and billing information.
11.9 Parties in Interest
Nothing in this Agreement, whether express or implied, is intended to confer any rights on any
Persons other than the parties to it and their representatives, successors and permitted assigns.
11.10 Waiver
The waiver by either party of any breach or violation of any provisions of this Agreement shall
not be deemed to be a waiver of any breach or violation of any other provision nor of any subsequent
breach of violation of the same or any other provision. The subsequent acceptance by either party of
any moneys which become due hereunder shall not be deemed to be a waiver of any pre-existing
or concurrent breach or violation by the other party of any provision of this
Agreement.11.11 The Company's
Investigation The Company has made an independent investigation (satisfactory to it) of the conditions
and circumstances surrounding the Agreement and the work to be performed by
it.11.12
Condemnation The City fully reserves the rights to acquire the Company's property utilized in the performance
of this Agreement, by purchase or through the exercise of the right of eminent domain. This
provision is additive, and not intended to alter the rights of the parties set forth in Article
10.11.13
Notice All notices, demands, requests, proposals, approvals, consents and other
communications which this Agreement requires, authorizes or contemplates shall be in writing and shall either
be personallly delivered to a representative of the parties at the address below or be deposited in the
United States mail, first class postage prepaid, addressed as
follows:If to the
City:Public Works
Director City of
Orange 300 E. Chapman
Avenue Orange, CA
92866 If to the
Company:District
Manager Waste Management of
Orange 1931 N.
Batavia Orange, CA
92866
The address to which communications may be delivered may be changed from time to time by
a written notice given in accordance with this Section.
Notice shall be deemed given on the day it is personally delivered or, ifmailed, three days from
the date it is deposited in the mail.
11.14 Representatives ofthe Parties
References in this Agreement to the "City" shall mean the City Council and all actions to be
taken by the City shall be taken by the City Council except as provided below. The City Council may
delegate, in writing, authority to the City Manager, and/or to other City employees and may permit such
employ,ees, in turn, to delegate in writing some or all of such authority to subordinate employees.
The Company shall, by the effective date, designate in writing a responsible officer who shall
serve as the representative of the Company in all matters related to the Agreement and shall inform the
City in writing of such designation and of any limitations upon his or her authority to bind the Company.
The City may rely upon action taken by such designated representative as actions of the Company.
11.15 City Free to Negotiate with Third Parties
Notwithstanding the exclusive nature of the Franchise, the City may investigate all options for
the CoHection, transporting, Recycling, processing and Disposal of Solid Waste at any time prior to the
expiration of the Term. Without limiting the generality of the foregoing, the City may solicit proposals
from the Company and from third parties for the provision of Collection services, Disposal services,
Recycling services, Yard Waste services and processing, and any combination thereof, and may
negotiate and execute agreements for such services which will take effect upon the expiration or earlier
termination under Section 10.1 (Events of Default) of this Agreement.
11.16 Compliance with Municipal Code
The Company shall comply with those provisions of the municipal code of the City which are
applicable, and with any and all amendments to such applicable provisions during the term of this
Agreement. The Company and any subcontractors must maintain a current City business license during
the ternl of this Agreement.
11.17 Lease of Equipment and Facilities
The Company agrees not to enter into leases or the purchase of significant new vehicles and new
facilities which would result in the Company seeking extraordinary Compensation under Section 5.5
without the advance, written approval of the City.
11.18 Privacy
The Company shall strictly observe and protect the rights of privacy of customers. Information
identifying individual customers or the composition or contents of a customer's waste stream shall not be
revealed to any Person, governmental unit, private agency, or company, unless upon the authority of a
court of law, by statute, or upon valid authorization of the customer. This provision shall not be
construed to preclude the Company from preparing, participating in, or assisting in the preparation of
waste characterization studies or waste stream analyses which may be required by the California
Integrated Waste Management Act. This provision shall not apply to reports or records provided to City
pursuant to this Agreement so long as City maintains reports or records with customer identification or
52
confidential information in accordance with this Section 11.19, in which case this Section 11.19 shall
apply to City in the same manner to which it applies to Company.
11.19 Compliance with Immigration Laws
The Company agrees that, in the performance of this Agreement, it will comply with all
immigration laws.
11.20 Proprietary Information, Public Records
The City acknowledges that a number of the records and reports of the Company are
proprietary and confidential. The Company is obligated to permit the City inspection of its records
on demand and to provide copies to the City where requested. The City will endeavor to maintain
the confidentiality of all proprietary information provided by the Company. Notwithstanding the
foregoing, and notwithstanding Section 11.19 (as it applies to City), any documents provided by the
Company to the City that are public records may be disclosed pursuant to a proper public records
request.
11.21 Guarantee of Contractor's Performance
Pursuant to a guarantee in substantially the form attached as Exhibit 6, Waste Management of
North America, Inc., a corporation which owns all of the issued and outstanding common stock of
Company, has agreed to guarantee the Company's performance of this Agreement. The Guarantee is
being provided concurrently with the Company's execution of this Agreement.
11.22 Attorney's Fees
In any action or proceeding to enforce or interpret any of the terms or conditions of this
Agre,ement the prevailing party shall be entitled to an award to attorney's fees in the amount
reasonably incurred in the prosecution or defense of such action. The term "prevailing party" shall
mean the party entitled to recover costs of suit, upon the conclusion of the matter, in accordance with
the laws of the State of California.
ARTICLE 12
MISCELLANEOUS AGREEMENTS
12.1 Entire Agreement
This Agreement, including the Exhibits, represents the full and entire Agreement between the
parties with respect to the matters covered herein. No verbal agreement or conversation with any
offic,e, agent, or employee of the City, either before, during, or after the execution of this contract,
shall affect or modifY any of the terms or obligations herein contained nor such verbal agreement or
conversation entitle the Company to any additional payment whatsoever under the terms of this
contract.
12.2 Section Headings
The article headings and section headings in this Agreement are for convenience of reference
only and are not intended to be used in the construction of this Agreement nor to alter or affect any
of its provisions.
53
12.3 References to Laws and Other Agreements
All references in this Agreement to laws shall be understood to include such laws as they may
be subsequently amended or recodified, unless otherwise specifically provided. This Agreement
supersedes any and all agreements heretofore entered into by the parties and the City.
12.4 Interpretation
This Agreement, including the exhibits attached hereto, shall be interpreted and construed
reasonably and neither for nor against either party, regardless of the degree to which either party
participated in its drafting.
12.5 Agreement
This Agreement may not be modified or amended in any respect except by a writing signed by
the parties.
12.6 Severability
If any non-material provision of this Agreement is for any reason deemed to be invalid
and unenforceable, the invalidity or unenforceability of such provision shall not affect any of
the remaining provisions of this Agreement which shall be enforced as if such invalid or
unenforceable provision had not been contained
herein.12.7
Exhibits Each of the Exhibits identified in this Agreement is attached hereto and incorporated
herein and made a part hereof by this
reference.12.8 Non-
Waiver Provision Failure of either party to exercise any of the remedies set forth herein within the
time periods provided for shall not constitute a waiver of any rights of that party with regard to that
failure to perfiJrm or subsequent failures to performing whether determined to be a
breach, excused perfiJrmance or unexcused defaults by the
other party.IN WITNESS WHEREOF, the City and the Company have executed this Agreement
as of the day and year first
above
COMPANY"CITY"
By:By:
Printed Name:
Title:
By:
Printed Name:
Title:
DATE OF EXECUTION:
If COMPANY is a corporation, City requires the following signature(s):
Chairman of the Board or President or Vice-President and Secretary or Chief Financial
Officer or Assistant of either. If only one corporate officer exists, please so indicate.
Qr.Corporate officer named in corporate resolution as authorized to enter into this
Agreement certified copy of resolution provided to
City.)
COMPANY"
r
By:~}It\JC
Printed Kame: _F,'" ~"'~ ? l>..?~
Title: \lId, i'k'<S, ';)~....t-
CITY"
By:
Joanne Coontz
Mayor
J
ATTEST:
r
ry Cassandra
Cathcart, City Clerk DATE
OF EXECUTION:If
COMPANY is a corporation. City requires the following signature(s):Chairman
of the Board or President or Vice-President!1!11l. Secretary or Chief Financial Officer
or Assistant of either. If only one corporate officer exists. please so indicate. Qr.
Corporate officer named in corporate resolution as authorized to enter into this Agreement
certified copy of resolution provided to City.)
APPROVED AS TO FORM:
City Attorney Date
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THUMBPRINT OF SIGNER 1997
National Notary
Association' 9350 De
SotoAve, P.O. Box2402 . Chalsworth. CA 91313-2402
Prod. No.
5907 Reorder:
Call TolI.Free 1-800-876-6827
EXHIBIT 1
CITY AND PUBLIC REFUSE CONTAINERS
City and Public Refuse Containers
CITY FACILITIES UTILIZING
WASTE MANAGEMENT SERVICE
Location No. Bins Pick UP per week
1 City Hall 2 r/c+1 4X
300 E. Chapman Ave
2 Economic Dev. 1 2X
230 E. Chapman Ave
3 Fire Headquarters/Station #1 1 2X
176 S. Grand Ave
4 Fire Prevention 1 1X
174 S. Orange Ave
5 Fire Station #2 1 1X
2900 E. Collins Ave
6 Fire Station #3 1 1X
1910 N. Shaffer Ave
7. Fire Station #4 1 2X
201 S. Esplanade Ave
8. Fire Station #5 1 1X
1345 W. Maple Ave
9. Fire Station #6 1 1X
345 City Drive South
10. Fire Station #7 1 1X
8501 E. Fort Road
11. Police Headquarters Facility 2 r/c+2 5X
1107 N. Batavia Ave
12. Police East End Substation 0 (Currently Closed)
8525 East Fort Road
13. Water Plant 1 5X
189 S. Water Street
14. Eisenhower Park 3 3X
2
3894 N. Tustin Ave
Location No. Bins Pick UP per vveek
15. EI Camino Real Park 3 3X
400 N. Main Street
16. EI Modena Park 1 2X
555 S. Hevves Ave
17. Handy Park 1 2X
2143 E. Oakmont Ave
18. Hart Park 3 3X
701 N. Glassell Ave
19. Olive Park 1 2X
2841 N. Glassell Ave
20. Santa Fe Depot Park 1 4X
100 N. Atchinson St
21. Santiago Hills Park 2 1X
8040 E. White Oak Ridge
22. Shaffer Park 2 5X
1930 N. Shaffer St
23. Main Library . 2 3X
101 N. Center St
24. .- EI Modena Branch Library 1. 3X 380
S. Hevves St 25.
Taft Branch Library 1 1X 740
E. Taft Ave 26.
Resource Center 1 1X 210
N. Mcpherson St 27.
Senior Citizen Building 2 3X 170
S. Olive SI 28.
City Corporation Yard 2 2X 637
W. Struck Ave o
3
Location No. Bins Pick UP per 'N6ek
29.- Plaza-Spoke Streets 8 Cans 3X
@ the listed locations:
172 N. Glassell Ave
177 N. Glassell Ave
140 N. Glassell Ave
141 N. Glassell Ave
140 S. Glassell Ave
131 S. Glassell Ave
178 S. Glassell Ave Adjacent to bus stop
195 S. Glassell Ave Adjacent to bus stop
310.** Plaza - Quadrants 9 cans 3X @
listed locations 71
Plaza Square 104
N. Glassell Ave On Plaza Sq s/side of bldg 107
N. Glassell Ave On Plaza Sq s1side of bldg 101
E. Chapman Ave On Plaza Sq w/side of bldg 100
W. Chapman Ave On Plaza Sq e/side of bldg 55
Plaza Square 10
Plaza Square 108
S. Glassell Ave On Plaza Sq n1side of bldg 26
Plaza Square On Plaza Sq n1side of bldg 31.-
Civic Center 3 cans 3X @ the
listed locations 300 E.
Chapman On Grand s/of Chapman e/curb by steps 400 W.
Chapman 101 N.
Center N/Chapman e/curb 12. City
Yard 2 (18x6) Roll Off Boxes As Needed
Trash Trailers -
Comm, Servo As Needed Cans
in Plaza
park are serviced by City staff.Can service listed
in 29, 30 & 31 shall be serviced 'N6ekly on Monday,Wednesday & Saturday.o
EXHIBIT 2
PUBLIC EDUCATION PLAN
CITY OF ORANGE
PUBLIC EDUCA nON PLAN
The purpose of the public education plan is to assist the City of Orange in reaching the
state mandated AB939 goals and to implement the programs identified in the City's
SRRE.
The Objectives of the Public Education Plan are:
I. To insure a smooth transition from the current residential solid waste collection
program and current service provided, to the new automated solid waste
collection program and the new service provider.
2. To educate the community on the residential services changes.
3. To maximize diversion and recycling tonnage by making the recycling and green
waste programs easily understood by the residents.
4. To promote the City's goals of source reduction, recycling and composting for
residents and businesses alike.
The components of the Public Education Plan are as Follows:
New Service Provider Mailer
Waste Management will prepare a newsletter for businesses and residents alike that
explains the change in service provider. It will address the concerns expressed through
the community workshops and other meetings with city staff. Mailer to be distributed to
each rate payer before June I, 1999, and to any new rate payers when service is
established.
New Residential Collection Start-UP
Campaign Waste Management will prepare a mailer for residential customers that identifies
the c:omponents of a three cart program and the types of materials that will be collected in
the new program. It will also explain the different cart sizes and how much material they
can
hold.Carts will be placed on display at city facilities designated by city staff, so that
all residents can compare the cart sizes. We will also ask the local grocery stores to allow
us to put up a cart
display.Waste Management will hold at least three community meetings to explain the
new
program.A start-up kit will be prepared for delivery with the carts when the automated
program is implemented, and to all new rate payers when service is established. The "
how to"brochure will detail how the program works, what materials can be
recycled, most commonly asked questions, bulky item pick-up information,
used oil collection information, holiday schedule and other pertinent information. "Take
me" stickers for the old trash cans and recycling bins will
also be
included.Ouarterlv Newsletter A quarterly newsletter promoting city programs and strategies
for source reduction,recycling and compo sting will be provided to all residential customers. City
to review all
newsletters before
mailing.Other Materials Waste Management will develop flyers promoting special events at the
City's direction along with text and graphics for the City'
s web
site.School Programs An annual recycling program will be
implemented as follows:Waste Management will work with local schools to promote the
new collection and recycling program along with environmental stewardship. "Cycler",
the recycling robot presentations will be offered to all elementary schools. Children
will receive age appropriate coloring and activities books
and recycled give-aways.Middle and High Schools will be offered a variety of
programs; poster contents, essay contests, classroom presentation and Career Day presentations. At
least one program will be conducted each year the middle school
or
Waste Management will reach out to local college environmental clubs, provide speakers
a.nd participate in special events on the campuses.
usiness Outreach
Waste Management will conduct presentations to local commercial multi-tenant,
and industrial sectors about programs and activities that promote recycling, source
reduction and composting. Waste Management will use materials developed by the
California Integrated Waste Management
Board.Additional information on recycling and general commercial services will be included
in bill inserts on a quarterly
basis.Waste Management will host a booth at the Chamber of Commerce Business
showcase.Community
Events Waste Management will distribute brochureslflyers at 4-6 community
events annually.International Street Fair, July 4th, Earth Day, Cops Expo, Orange County Fair).
The list of events will be reviewed annually with
city staff.
public Outreach Waste Management personnel will be available to community groups for
presentation on city programs, regional trash issues and state issues. A new public display
will be prepared by June I, 1999, to reflect the program changes and service
provider changes,lmd to be displayed in locations determined by
the City.Waste Management will work with the local college TV station to prepare a
PSA about the new residential
collection program.R.
ecvcling Awards Waste Management will provide $1,000 annually to the City for its
recycling
awards program.All materials will be reviewed and approved by the city staff before they are
printed and distributed. There will also be an annual review with the city staff on
the public education plan for the
upcoming year.
GSI165.
EXHIBIT 3
RATE ADJUSTMENT FORMULA
Example Rate Adjustment - Single Family Residential Rates Step
One: Determine disposal expense and service revenue as a percent of total actual rate revenue for the 12 months
ending June 30 Single
Family Revenue Component Annual Amount (a) Percent
of Total
Revenue Total
Actual Single Family Rate Revenue $ 5,000,000 100.0%Less:
Actual Single Family Refuse Disposal Expense 1,500,000 30.0%Actual
Single Family Service Revenue $ 3,500,000 70.0%Step
Two: Calculate percentage change in adjustment factors Adjustment
Factor Old New Percent Change Disposal
Tipping Fee per Ton $22.00 $26.00 18.2%Producer
Price Index (Finished Goods) 130.0 135.0 3.8%Step
Three: Calculate weighted percentage change in single family rates Components
of Actual Revenue Component Weight Percent Change (e) Weighted Rate b)
Adjustment Refuse
Disposal 30.0% 18.2% 5.5%Service
70.0% 3.8% 2.7%Total
100.0% N/A 8.2%Step
Four: Apply weighted percentage change to single family rates Refuse
Service Current
Monthly Weighted Rate Adjusted Monthly Rate
Adjustment (d) Rate 90
gallon cart $ 12.50 8.2% $ 13.53 Additional
90 gallon cart $ 2.40 8.2% $ 2.60 a)
For the twelve months ending on the date six months prior to the effective date of the rate adjustment. For example,
for a rate adjustment effective January 1, 2001, the revenue used should be for the twelve months ending
June 30, 2000 b)
From percent of total revenue in Step One c)
From percent change in Step Two d)
From weighted rate adjustment in Step Three City
of Orange - RFP April 27. 1999
Example Rate Adjustment - Commercial and MFR Bin Rates Step
One: Determine disposal expense and service revenue as a percent of total actual rate revenue for the 12 th
d' J 30 monsenm!lune Revenue
Component Annual
Amount Percent of a)
Total Revenue Total
Actual Commercial and MFR Bin Revenue S 4,500,000 100.0%Less:
Actual Commercial and MFR Bin Refuse 1,575,000 35.0%Disposal
Expense Actual
Commercial and MFR Bin Service Revenue $ 2,925,000 65.0%Stev
Two: Calculate vercenta!lechan!lein adjustment factors Adjustment
Factor Old New Percent Change Disposal
Tipping Fee per Ton S 22.00 S 26.00 18.2%Producer
Price Index (Finished Goods) 130.0 135.0 3.8~~Stev
Three: Calculate wei!lhtedvercentMe chan!lein commercial and MFR bin rates Components
of Actual Revenue Component Weight Percent Change (c) Weighted Rate b)
Adjustment Refuse
Disposal 35.0% 18.2% 6.4%Service
65.0% 3.8% 2.5%Total
100.0% N/A 8.9%S
F A I h d h I dMFRb'tepour: lpp/If Welf(/; te ' vercenta'lec an'leto commerCia an m rates Service
Current Monthly Weighted Rate Adjusted Monthly Rate
Adjustment (d) Rate 1
ea 3 yard bin once per week $ 78.91 8.9% . $ 85.93 1
ea 3 yard bin twice per week 117.24 8.9% 127.67 1
ea 3 yard bin three times per week 157.79 8.9% 171.83 1
ea 3 yard bin four times per week 227.26 8.90/0 247.-19 1
ea 3 yard bin five times per week 268.58 8.9~/o 292.-18 1
ea 3 yard bin six times per week $ 313.31 8.9% $ 341.19a)
For the twelve months ending on the date SL'( monthsprior to the effective date of the rate adjustment. For example,
for a rate adjustment effective January 1, 2001. the revenue used should be for the twelve months ending
June 30, 2000 b)
From percent of total revenue in Step One c)
From percent change in Step Two d)
From weighted rate adjustment in Step Three City
of Orange - RFP April 27, ]999
EXHIBIT 4A
INITIAL RATES
RATES-JUNE 1, 1999 - TO DECEMBER 31,1999
WASTE MANAGEMENT OF ORANGE
IIONTIILY RATE EXHIBIT 4A
PERIOD: THROUGH DECEMBER, 1999
RESIDENTIAl;
MONTIiLY BILLING RATE PER UNlr 3. ~ c
MONTHLY RESIDENTIAL SUBSIDY PER UNIT 03
MONTHLY ADDITIONAL CART SURCHARGE (PER CART):
REFUSE
RECYCLABLES
YARD WASTE (AFTER 2ND CART)
2.40
NO CHARGE
200
COMMERCIAl;
3 CUBIC YARD
1XM'EEK 50.98 13.09 0.00 74.07
2XlWEEK 91.35 21.05 0.00 112.40
3XmEEK 125.90 27.05 0.00 152.95
4XIWEEK 178.22 44.20 000 222.42
5XM1EEK 210.90 5264 0.00 253.74
6XlWEEK 245.73 51.74 0.00 308.47
EXTRA PICKUPS 28.58 7.72 0.00 36.40
ONETIME BIN 55.58 12.27 0.00 57.95
2 CUBIC YARD:
lXM1EEK 42.30 9.00 0.00 5130
2XMIEEK 63.50 14.52 0.00 78.12
EXTRA PICKUPS 22.50 570 0.00 2820
DROP OFF BOX:
18' X 3'
18' X S'
22' X 5'
24111
232.25
247.18
30.86
29....
2982
JO.85
29.45
29.81
302.83
291 15
J0581
BALES:
100.1,000 LBS
1.001-2,000
LBS
1844
3784
495 10.
05
000 0.
00 23.
39 47.
EXHIBIT4B
RATES-JANUARY 1, 2000 TO DECEMBER 31,
WASTE MANAGEMENT OF ORANGE
MONTHLY RATE EXHI81T 48
PERICD: JANUARY. 2000 THRCUGH OEC,,>,lSE't 2000
RESIDENTIAL:
MCNTHLY 31L1NG AATE PER '''':'4IT Il:u.".....
MONTHLY RESIDENTIAL SUBSIDY PER UNIT 2.25
MONT~L Y ADDITIONAL CART SURCHARGE (PER CARn
REFUSE
RECYCL.ABLES
YARD WASTE (AFTER 2ND CART)
2.40
NO CHARGE
2.00
COMMERCIAL:
C:TY RATE
SUBSIDY
BILLING
RATE
TOTAL
RATE
3 CUBIC Y ARC:
lXiWEEK 77.61 1.30 78.91
2XiWEEK 114.54 2.60 117.24
3XiWEEK 153.89 3.90 157.79
4XiWEEK 222.06 5.20 227.26
5XiWEEK 262.08 6.50 268.58
6XiWEEK 305.51 7.80 313.31
EXTRA PICKUPS 36.40 0.00 36.40
ONE riME BIN 67.95 0.00 6795
2 CUBIC YARO:
lXiWEEK 55.27 0.67 5614
2XiWEEK 81.23 1.7:3 82.96
EXTRA PICKUPS 26.20 000 26.20
DROP OFF BOX:
61LLING CITY RArE I TOTAL
RATE SUBSIDY RArE
18' X 3' 302.63 0.00 302.63
16' X 6' 29115 000 29115
22' X 6' 30681 000 306.81
BALES:
100-1,000
LBS 1 ,C01.2.COO
LBS
2339 47.
89 0.
00 3.
00 23.
39 47.
EXHIBIT 5
Corporate Guaranty
CORPORATE GUARANTY
Guarantv
THIS GUARANTY (the "Guaranty") is given as of the 27th day of April, 1999.
THIS GUARANTY is made with reference to the following facts and circumstances:
A. USA Waste of Califomia, Inc. (hereinafter "Owner") is a corporation organized under
the ISIWS of the State of Delaware, all of the issued and outstanding stock of which is owned by
Waste Management of North America, Inc., a corporation organized under the laws of the
State of Illinois (hereinafter "Guarantor"). Guarantor owns all of the issued and outstanding
stock of Owner.
B. Owner and the CITY have negotiated an Agreement for Collection, Processing, and
Disposal of Solid Waste dated as of April 27, 1999 (hereinafter "Agreement"). A copy of this
Agrelsment is attached hereto.
C. It is a requirement of the Agreement, and a condition to the City entering into the
Agre,ement, that Guarantor guarantees Owner's performance of the Agreement.
D. Guarantor is providing this Guaranty to induce the City to enter into the Agreement.
NOW, THEREFORE, in consideration of the foregoing, Guarantor agrees as follows:
1. Guarantv of the Aareement. Guarantor hereby irrevocably and unconditionally
guarantees to the City the complete and timely performance, satisfaction and observation by
Owner of each financial term and condition of the Agreement which Owner is required to
perform, satisfy or observe. In the event that Owner fails to perform, satisfy or observe any of
the terms and conditions of the Agreement, Guarantor will promptly and fully provide the funds
neCElssary to cause them to be performed, satisfied or observed. Guarantor hereby
guarantees payment to the City of any damages, costs or expenses which might become
recoverable by the City from Owner due to its breach of the Agreement.
2. Guarantor's Obliaations Are Absolute. The obligations of the Guarantor hereunder
are direct, immediate, absolute, continuing, unconditional and unlimited, and with respect to
any payment obligation of Owner under the Agreement, shall constitute a guarantee of
payment and not of collection, and are not conditional upon the genuineness, validity,
regularity or enforceability of the Agreement. In any action brought against the Guarantor to
enfc.rce, or for damages for breach of, its obligations hereunder, the Guarantor shall be
entitled to all defenses, if any, that would be available to the Owner in an action to enforce, or
for damages for breach of, the Agreement (other than discharge of, or stay of proceedings to
enforce, obligations under the Agreement under bankruptcy law).
3. Waivers. Except as provided herein the Guarantor shall have no right to terminate this
Guaranty or to be released, relieved, exonerated or discharged from its obligations under it for
any reason whatsoever, including, without limitation: (1) the insolvency, bankruptcy,
reor~lanization or cessation of existence of the Owner; (2) the actual or purported rejection by
a trustee in bankruptcy of the Agreement, or any limitation on any claim in bankruptcy resulting
from the actual or purported termination of the Agreement; (3) any waiver with respect to any
of th,e obligations of the Agreement guaranteed hereunder or the impairment or suspension of
any of the City's rights or remedies against the Owner; or (4) any merger or consolidation of
the Owner with any other corporation, or any sale, lease or transfer of any or all the assets of
the Owner. Without limiting the generality of the foregoing, Guarantor hereby waives the rights
and loenefits under Califomia Civil Code Section 2819.
The Guarantor hereby waives any and all benefits and defenses under Califomia Civil Code
Section 2846, 2849 and 2850, including without limitation, the right to require the City to (a)
prooeed against Owner, (b) proceed against or exhaust any security or collateral the City may
hold now or hereafter hold, or (c) pursue any other right or remedy for Guarantor's benefit, and
agrees that the City may proceed against Guarantor for the obligations guaranteed herein
without taking any action against Owner or any other guarantor or pledgor and without
proceeding against or exhausting any security or collateral the City may hold now or hereafter
hold. City may unqualifiedly exercise in its sole discretion any or all rights and remedies
available to it against Owner or any other guarantor or pledgor without impairing the City's
rights and remedies in enforcing this Guaranty.
The Guarantor hereby waives and agrees to waive at any future time at the request of the City
to the extent n"w or then permitted by applicable law, any and all rights which the Guarantor
may have or which at any time hereafter may be conferred upon it, by statute, regulation or
otherwise, to avoid any of its obligations under, or to terminate, cancel, quit or surrender this
Guaranty. Without limiting the generality of the foregoing, it is agreed that the occurrence of
anyone or more of the following shall not affect the liability of the Guarantor hereunder: (a) at
any time or from time to time, without notice the Guarantor, performance or compliance
herelwith is waived; (b) any other of any provision of its Agreement indemnification with respect
to Owner's obligations under the Agreement or any security therefore is released or
exchanged in whole or in part or otherwise dealt with; or (c) any assignment of the Agreement
is effected which does not require the City's approval.
The Guarantor hereby expressly waives diligence, presentment, demand for payment or
performance, protest and all notices whatsoever, including, but not limited to, notices of
non-payment or non-performance, notices of protest, notices of any breach or
default, and noti,ces of acceptance of this Guaranty. If all or any portion of the
obligations guaranteed hemunder are paid or performed, Guarantor's obligations hereunder shall continue
and remain in full force and effect in the event that all or any part of such payment or
performance is avoided or recovered directly or indirectly from the City as a preference, fraudulent
transfer or othl~rwise, irrespective of (a) any notice of revocation given by Guarantor or Owner
prior to such avoidance or recovery, and (b) payment in full of any obligations
then outstanding.4. Tenn. This Guaranty shall continue in full force and effect during
the Agreement.Guarantor shall not be released of its obligations hereunder so long as there is any
claim by the City against Owner arising out of the Agreement based on Owner's failure to
perform which has not been settled
or discharged.5. No Waivers. No delay on the part of the City in exercIsing any rights
under this Gu,aranty or failure to exercise such rights shall operate as a waiver of such rights.
No
to or demand on Guarantor shall be a waiver of any obligation of Guarantor or right of the City
to talke other or further action without notice or demand. No modification or waiver of any of
the provisions of this Guaranty shall be effective unless it is in writing and signed by the City
and IJY Guarantor, nor shall any waiver be effective except in the specific instance or matter for
whiclh it is given.
6. Attornev's Fees. In addition to the amounts guaranteed under this Guaranty,
Guarantor agrees in the event of Guaranty's breach of its obligations including to pay
reaslJnable attorney's fees and all other reasonable costs and expenses incurred by the City in
enforcing this Guaranty, or in any action or proceeding arising out of or relating to this
Guaranty, including any action instituted to determine the respective rights and obligations of
the parties hereunder.
7. Governina Law: Jurisdiction. This Guaranty is and shall be deemed to be a contract
entered into in and pursuant to the laws of the State of California and shall be governed and
construed in accordance with the laws of California without regard to its conflicts of laws, rules
for all purposes including, but not limited to, matters of construction, validity and performance.
Guarantor agrees that any action brought by the City to enforce this Guaranty may be brought
in any court of the State of California and Guarantor consents to personal jurisdiction over it by
SUC~I courts. Guarantor appoints the following person as its agents for service of process in
California:
CT Corporation System
818 West Seventh Street
Los Angeles, CA 90017
Attention: Jere J. Keprios
With a copy by certified mail to:
Waste Management of North America, Inc.
1001 Fannin, 40th Floor
Houston, TX 77002
Attention: Bryan J. Blankfield,
Vice President and Assistant Secretary
8. Severabilitv. If any portion of this Guaranty is held to be invalid or unenforceable,
such invalidity will have no effect upon the remaining portions of this Guaranty, which shall be
sevl!rable and continue in full force and effect.
9. Bindina On Successors. This Guaranty shall inure to the benefit of the City and its
successors and shall be binding upon Guarantor and its successors, including transferee(s) of
substantially all of its assets and its shareholder(s) in the event of its dissolution or insolvency.
10. Authoritv. Guarantor represents and warrants that it has the corporate power and
authority to give this Guaranty, that its execution of this Guaranty has been authorized by all
necessary action under its Articles of Incorporation and By-Laws, and that the person
signing this Guaranty on its behalf has the authority to do
so.11. Notices. Notice shall be given in writing, deposited in the U.S. mail, registered
or certified, first class postage prepaid, addressed as
follows:
To the City: City Manager
City of Orange
600 E. Chapman Avenue
Orange, CA 92866
with a copy to the City Attomey at the same address.
To the Guarantor:
Waste Management of North America, Inc.
1001 Fannin, 40th Floor
Houston, TX 77002
Attention: Bryan J. Blankfield,
Vice President and Assistant Secretary
With a copy to:
Waste Management of North America, Inc.
1001 Fannin, 40th Floor
Houston, TX 77002
Attention: Ronald H. Jones,
Vice President and Treasurer
By:t/-vL--
Ron~H. Jones
Vice President & TreasurerTitle:
By:
Title:
4
EXHIBIT 6
Company's Faithful Performance Bond
BOND NO. PB99-
0001-HR COMPANY'S FAITHFUL
PERFORMANCE BOND KNOW ALL MEN BY
THESE PRESENTS:USA
WASTE Delaware That OF CALIFORNIA. INC. , a~W'POJRPO!l{gpils PRINCIP AL, and NATIONAL
GlJA IYINSURANCE al1E"NY OF ~ , a Corporation organized and doing business by virtue of the laws
of the State of California, and duly licensed for the purpose of making, guaranteeing, or becoming
sole surety upon bonds or undertakings required or authorized by the laws of the State of California,
as SURETY,are held and firmly bound to City, hereinafter called OBLIGEE, in the penal sumofjL~II!1frt$..2iliL
000.00 lawful money of the United States, for the payment of which, well and truly to be made, we
and each of us hereby bind ourselves, and our and each of our heirs, .executors, administrators,
successors,and assigns, jointly and severally, firmly by these
presents.NOW, THEREFORE, THE CONDITION OF THIS OBLIGATION IS SUCH
THAT:WHEREAS, the above bounden PRINCIPAL has entered into a contract,
entitled INTEGRATED SOLID WASTE MANAGEMENT SERVICES" with City, to do and perform
the following work, to wit: CollecI, Process and Dispose of Solid Waste generated within City,
in accordance with the
contract.NOW, THEREFORE, if the above bounden PRINCIPAL shall well and truly perform, or
causet'O be performed each and all of the requirements and obligations of said contract to be performed by
said PRINCIPAL, as in said contract set forth, then this BOND shall be null and void; otherwise it
will remain in full force and
effect.And the said Surety, for value received hereby stipulates and agrees that no change, extension
of time, alteration or addition to the terms of the contract or to the work to be performed thereunder or
the specifications accompanying the same shall in any wise affect its obligations on this BOND; and it
does hereby waive notice of any such change, extension of time, alteration or addition to the terms of
the contract or to the work or to the
specifications.be duly signed and sealed this
26TH 1>\ WASl'E OF CALIFORNIA,
me.a
OI-
porationDe l-.(....-
t/~
PRINCIPAL)James W. TelT) (
SEAL)VIce PIesidert . RisKMa!
1ll98flllll1l IN WITNESS WHEREOF, said PRINCIPAL and said SURETY have caused these presents
to DAY OF APRIL ,
1999 GUARANIY INSURANCE Cll1PANY OF VERt>
rnT S
TY
B'B
ATT Y CT)
PHYLLI KALANSKI SEAL)
NOTWITHSTANDING ANYTHING CONTAINED IN THE CONTRACT TO THE CONTRARY, THE LIABILI1
OF THE PRINCIPAL AND SURETY UNDER THIS BOND IS LIMITED TO THE ORIGINAL TERM
OF THE CONTRACT FROM MAY 1, 1999 TO MAY 1, 2000. ANY EXTENSIONS OR RENEWALS OF
THE REFERENCED CONTRACT SHALL BE COVERED UNDER THIS BOND ONLY WHEN CONSENTED TO
IN WRITING BY THE SURETY.
75
CALIFORNIA ALL.PURPOSE ACKNOWLEDGMENT
State of PENNSYLVANIA
County of ALLEGHENY
On APRIL 26. 1999
DATE
before me, ELIZABETH L. POOLE. NOTARY PIlRJ.TC.
NAME. TITLE OF OFFICER. E.G., "JANE DOE, NOTARY PUBLIC'
personally appeared PHYLLIS KALANSKI
NAME(S) OF SIGNEA(S)
LXI personally known to me - OR - D proved to me on the basis of satisfactory evidence to be
the person(s) whose name(s) is/are subscribed to
the within instrument and ac-knowledged to
me that he/she/they executed the same
in his/her/thei r authorized capacity(ies),
and that by his/her/their signature(s)
on the instrument the person(s).or the
entity upon behalf of which the person(s)
acted, executed the instrument.WITNESS my
hand and official seal.l j "'
of)' .-", ) I<..~
r- ,....- or; " SlGNATUAEQFNQTARY
OPTIONAb"
Though the
data
below
is not required by law. it may prove valuable to persons relying on the document and could prevent fraudulent reattachment of this
form.CAPACITY CLAIMED BY SIGNER
D INDIVIDUAL D COF1PORATE
OFFICER DESCRIPTION
OF ATTACHED DOCUMENT
TITLE OR TYPE OF
DOCUMENT TITLE(S)D PAFITNER(
S)D
LIMITED D GENERAL NUMBER OF
PAGES D
ATTORNEY-iN-FACTDTRlISTEE(
S)D GUARDIAN/
CONSERVATOR D OTHER:
DATE OF
DOCUMENT SIGNER IS
REPRESENTING:NAME OF
PI::RSON(S) OR ENTITY(IES)SIGNER(S)
OTHER THAN NAMED ABOVE 8D-11333/
94 101993 NATIONAL NOTARY ASSOCIATION. 8236 Remmel Ave., P.O. Box 7184. Canoga Park, CA 91309-7184
NATIONAL GUARANTY INSURANCE COMPANY OF VERMONT
7 BURLINGTON SQUARE, 6th FLOOR. BURLINGTON, VT 05401 . 1-
800-876-
6442 SURETY RIDER To be attached to and form a part of Bond No. PB99-0001-HR dated 04/
26/1999 executed by USA WASTE OF CALlFORNIA,IN~. as
Principal, and NATIONAL GUARANTY INSURANCE COMPANY OF VERMONT'~~ Surety, in favor of City (
CITY OF ORANGE, CALIFORNIA, 300 CHAPMAN AVENUE,
ORANGE, CA 92866), as Obligee.In consideration of the premium charged, it is understood and agreed that, effective
on 05/01/99,
the following conditions are added:An (:xtension certificate or performance bond for each succeeding year of
the contract shall be delivered to CITY OF ORANGE, CALIFORNIA, 300 CHAPMAN AVENUE.
ORANGE, CA 92866, ninety (90)days prior to the
expiration of the current bond.Provided, however, that the liability of the Surety under the attached bond and
under the attached bond as changed by this
rider shall not be cumulative.Nothing herein contained shall be held to vary, waive, alter or extend
any of the terms, conditions,agreements or warranties of the above-mentioned
bond, other than as stated above.Signed,
sealed and dated 05/11/99.
by
USA WASTE
OF CALIFORNIA, INC.PrinCiPa~ '
BY:~~~-uG /James W. 'lel'!)
VIce President. Risk Maoage<
1""'NATIONAL
GUARANTY
INSURANCE COMPANY OF
VERMONT Surety)
By: ~ AA./ 41. ~^.
ttorney-ln:
Fact
John
M.
Cain
CALlFOR,NIA ALL.PURPOSE ACKNOWLEDGMENT
State of PENNSYLVANIA
County of ALLEGHENY
On ]'\AY 11, 1999
DATE NAME, TITLE OF OFFICER. E.G., "JANE DOE, NOTARY PUBLIC"
before me, ELIZABETH L. POOLE
personally appeared JOHN M. CAIN
NAME(S) OF SIGNEA(S}
IX] personally known to me - OR - 0 proved to me on the basis of satisfactory evidence to be
the person(s) whose name(s) is/are subscribed to
the within instrument and ac-knowledged to
me that he/she/they executed the same
in his/her/their authorized capacity(ies),
and that by his/her/their signature(s)
on the instrument the person(s).or the
entity upon behalf of which the person(s)
acted, executed the instrument.WITNESS my
hand and official seal.1-- ,,\,1..- -
l..:'
L .t.--j,.~"\ L~'~~n'~~~-----i OPTIONA[! ~
C~<'-':;;'~"""'-'~~:J
Though
the data below
is not
required by law, it may prove valuable to persons relying on the document and could prevent fraudulent reattachment of this form.GAPACITY
CLAIMED BY SIGNER o INDIViDUAL
o COF1PORATE OFFiCER DESCRIPTION
OF ATTACHED
DOCUMENT TiTLE OR
TYPE OF DOCUMENT TITlE(
S)o PAFITNER(S)o
LIMiTED o
GENERAL NUMBER OF PAGES o
ATTORNEY-iN-
FACT o TRUSTEE(S)o
GUARDiAN/CONSERVATOR o
OTHER:DATE OF
DOCUMENT SIGNER
IS REPRESENTING:NAME
OF P1:=:RSON(
S) OR ENTllY(IES)SiGNER(S) OTHER THAN
NAMED ABOVE 80-11333/94 ltl1993
NATIONAL NOTARY ASSOCIATION. 8236 Remmel Aile.. P.O. Box 7184. Canoga Park, CA 91309.7184
EXHIBIT 7
Notary Certification
POWER OF ATTORNEY
Know all Men by These Presents that the National Guaranty Insurance Company ofVerrrIOnt, 7 Burlington Square, 6th Floor, Burlington, Vermont Corporation (theCorporation"), has constituted and appointed and does hereby constitute and appoint JohnM. Cain, Phyllis Kalanski, Barbara A. Leeper, Lynne A. Zeleznik and Guy A. Squillante ofPittsburgh, Pennsylvania and James Moore and Leo Winstead of Countryside, Illinois eachitstrueandlawfulAttorney-in-Fact to execute under such designation in its nameandtoaffixitscorporatesealtodeliverforandonitsbehalfassuretythereonorotherwise, bonds of any of the following classes,
to wit:1. Surety bonds to the United States of America or any agencythereof, including lease and miscellaneous surety bonds required or permitted under
the laws,ordinances or regulations of any State, City, Town, Village, Board oranyotherbodyororganization, public
or private.2. Bonds on behalf of contractors in connection with bids, proposals
or contracts.The foregoing pOwers granted by the Corporation shall be subject to
and conditional upon the written direction of any officer (or any designee of any such
officer) to execute and deliver any
such bonds.The signatures and attestations of such Attorneys-in-fact and
the seal of the Corporation may be affixed to any such bond or to anycertificaterelatingtheretobyfacsimile, and any such bond or certificate bearingsuchfacsimilesignaturesorfacsimilesealshallbevalidandbindinguponthe
Corporation when so affixed.IN WITNESS WHEREOF, the Corporation has caused thesepresentstobesignedbyitsPresident, and its corporate seal to be hereto affixed this
11 TH day
of MAY , 19 99
Witness:NATIONAL GUARANTY
INSURANCE COMPANY OF
VERMONT Ronald H.
Jones
Vice
President &
Treasurer P ~. W"'~-
Earl
E. IleFrates President
THE STATE OF TEXAS S
S
COUNTY OF HARRIS S
BEFORE ME, the undersigned authority, on this day personally James W. Terry, Vice
President of Risk Management, known to me to be the person whose name is subscribed to the
foregoing instrument, and acknowledgement to me that he executed the same for the purposes
and consideration therein expressed.
GIVEN UNDER MY HAND AND SEAL OF OFFICE this lth day of May, 1999.
Public in and for
tate of Texas
POWER OF ATTORNEY
Know all Men by These Presents that the National Guaranty Insurance Company of
Vermont, 7 Burlington Square, 6th Floor, Burlington, Vermont Corporation (the
Corporation"), has constituted and appointed and does hereby constitute and appoint John
M. Cain, Phyllis Kalanski, Barbara A. Leeper, Lynne A. Zeleznik and Guy A. Squillante of
Pittsburgh, Pennsylvania and James Moore and Leo Winstead of Countryside, Illinois each
its true and lawful Attorney-in-Fact to execute under such designation in its name
and to affix its corporate seal to deliver for and on its behalf as surety thereon or
otherwise, bonds of any of the following classes,
to wit:I. Surety bonds to the United States of America or any agency
thereof, including lease and miscellaneous surety bonds required or permitted under
the laws,ordinances or regulations of any State, City, Town, Village, Board or
any other body or organization, public
or private.2. Bonds on behalf of contractors in connection with bids, proposals
or contracts.The foregoing powers granted by the Corporation shall be subject to
and conditional upon the written direction of any officer (or any designee of any such
officer) to execute and deliver any
such bonds.The signatures and attestations of such Attorneys-in-fact and
the seal of the Corporation may be affixed to any such bond or to any
certificate relating thereto by facsimile, and any such bond or certificate bearing
such facsimile signatures or facsimile seal shall be valid and binding upon the
Corporation when so affixed.IN WITNESS WHEREOF, the Corporation has caused these
presents to be signed by its President, and its corporate seal to be hereto affixed
this 26TH
day of APRIL , 19~
Witness:NATIONAL GUARANTY
INSURANCE COMPANY OF
VERMONT Ronald H.
Jones Vice
President &
Treasurer
c J '\:. W"'~-
Earl
E. EleFrates President
THE STATE OF TEXAS s
S
COUNTY OF HARRIS S
BEFORE ME, the undersigned authority, on this day personally James W. Terry, Vice
President of Risk Management, known to me to be the person whose name is subscribed to the
foregoing instrument, and acknowledgement to me that he executed the same for the purposes
and consideration therein expressed.
GIVEN UNDER MY HAND AND SEAL OF OFFICE this 27th day of April, 1999.
f,
NO'
taryPubllc
inilnd-f{,f 'The
State of Texas f'
T IUSA AUPCHURCHA..: NOTARY PI./BlIC
JIl'{~ State 01 T_
i..'" Comm. Exp. 02-
25-2002
EXHIBIT 8
Flow Control Agreement
r\ql\. d...7~~
C.I
J
WASTE
DISPOSAL AGREEMENT Between
THE
COUNTY OF ORANGE. CALIFOR.'-:IA and r,
r;
r ("I~ Q"':a~ge Dated~, 1997
1 COWlty
Au~
orization
Date City Authorization Date:Anr-;l R.
1QO-;ebruarv 19. 1007 COWlty Notice Address.
City Notice Address City Clerk Director
INTEGRt\TED
WASTE
MANAGEMENT DEPARTMENT 320 N. Flower
Street, Suite 400 Santa Ana. CA
92703 Ci"'"0: Oran,?
eO~ange CivicCenter
300 E. Chapman Avenue
P. O. Box 449
0~~~ge, C2lifo~~ia
926~6-1S9~
r",
V
ARTICLE VI
TERM
SECTION 6. L EFFECTNE DATE AND TERM
SECTION 6.2. COMMENCEMENT DATE .........
30
30
ARTICLE VII
GENERAL PROVISIONS
SECTION 7 L OPERATION AND MAINTENANCE OF THE DISPOSAL SYSTEM. .. 32
SECTION 7.2. UNCONTROLLABLE CIRCUMSTANCES GENERALLY. . . . . . . . .. 32
SECTION 7.3. INDEMNIFICATION....................... .. . . . . .. . . . .. . . . .. . .. 32
SECTION 7.4. RELATIONSHIP OF THE PARTIES. .. .. . .. . .. .. .. . . . . . . . . .. . .. . . . . . 33
SECTION 7.5. LIMITED RECOURSE. . . .. .. . .. . .. .. . . . .. . .. . . . .. . . . . . . . . . . . . 33
SECTION 7.6. PRE-EXISTING RIGHTS AND LIABILITIES. . . . . . . . . . . . . . . . . . . . . . . . . . ..
33 SECTION 7 7 NO VESTED RIGHTS .. . .. . .. .. . .. .. . .. . .. .. . .. .. .. . . .. .. .. .. . . . .. ..
33 SECTION 7.8. LIABILITY FOR COLLECTION. TRANSPORTATION AND PROCESSING .
34 SECTION 7.9. NO CONSEOUENTIAL OR PUNITNE DAMAGES . . . . . . . . . . . . . . . . . . . . .'
34 SECTION 7.10. AMENDMENTS. . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . . . . . . . . . . . . . . . . . . . ..
34 SECTION 7.11. NOTICE OF LmGATION ...........................................
34 SECTION7.12. FURTHER ASSURANCES ... ... ....... ....... . .. .. . ....... ... .. ... ..
34 SECTION 7.13. ASSIGNMENT OF AGREEMENT. .. ....... . .... . ... .' .. . .. ..... .... ..
34 SECTION7.14. INTEREST ON OVERDUE OBLIGATIONS ............................
34 SECTION 7.15. BINDING EFFECT .................................................
34 SECTION 7.16. NOTICES. ....... ............ . .. .. . ..... .... . ..... .. .. ..... . .. .. ..
35 APPENDIX
1 ESTIMATED ANNUALTO}''
NAGE APPENDIX
2 CUMULATNE TONNAGE
TARGETS APPENDIX
3 FORM OF HAULER
WASTE DISPOSAL
AGREEMENT TH[S
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 "Count\'''),and the
City designated on 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 disposal of municipal solid waste
generated by the cities and the unincorporated area within the County (the "Disposal System"). The Disposa[ System
includes four 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 Calitornia Integrated Waste Management Act of [989 Division 30
of the California Public Resources Code). The Act, which mandates the diversion of 50% of waste from landfill
disposal by 2000, has already significantly reduced the volwne of waste delivered to the landfills The Disposal
System, which was designed to accept approximately [6,000 tons of waste per day, now receives on a.
verage less than 10,000 tons per day of Orange County waste. The reduction in tonnage disposed reduced revenues to
the system. at the same time that federal and state statutes and regulations mandated the installation of costly
infrastructure at the landfills to protect air and water.Based on
reduced revenues and increased costs, the County was actively exploring opportunities to rem=dy
theshortfall when the bankruptcy occurred. The impact of the County's bankruptcy petition in December 1994 precipitated
a series of profound changes because the Disposal System was identified as one of the County's most valuable
assets. These changes included importation of out-of-County waste to raise revenues, restructuring
the department like a business enterprise to reduce costs and operate more efficiently, and development of a
strategic study of the options available to the County for the future use or disposition of the system.
In January 1996, the County began accepting out-of-County municipal solid waste for disposal
in the Disposal System in order to utilize the unused landfill capacity to raise revenues to assist in
bankruptcy recovery.Contracts for disposal of imported waste are intended to produce net revenues of $15 million per year
for twenty 20) years, which revenues are committed to the County's Plan of Adjustment for
bankruptcy recovery.In March 1996, the Integrated Waste Management Department ("IWMD") began
implementing a departmental restructuring plan focused on reducing overhead charges and costs applied by
other County department/agencies that provide support services to IWMD, reducing the contract services
costs through performance-based contract practices, and reducing staff costs identified in
the internal department reorganization. In addition, IWMD continued to work with the Solid Waste Working Group ("
SWWG") of the City Managers Association ("CMA") and the Orange County Division of the League
of California Cities LOCC") to resolve city issues and concerns regarding their future use of
the Disposal System To assist indetermining the fem:!e use of the Dispsal System, 'he County engaged
the services of independent consultants to idenlify and study available options for disposition of the
Disposal System On November 20. 1996, the Orange County Board of Supervisors considered the consultant's report
and based on recommendations from the cities and waste haulers, directed the IWMD to conunence
negotiations 10 secure mutually acceptable long-term disposal contracts with Orange County cities and
return ,,;thin 90 days.
J
In directing this action, the Board recognized the cities' interest in the procurement of competitive and
stable disposal fees, the assurance of long tenn capacity, and the continuation of sound environmental
management of the landfill system. In order to assure these goals, the County requires long Ienn, fmancially
sound, disposal contracts \\oith the cities. Long-tenn disposal contracts between the County and Orange
County cities will also serve the public health, safety and welfare of the residents of Orange County by maintaining
publico\\oTlership and stewardship over the Orange County Landfill Disposal
System.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 pennits or licenses to one or more private haulers for the
collection and disposal of municipal solid waste generated within the
City.The significant portion of municipal solid waste generated within the Cily historically has
been and currently is delivered by such hauler or haulers to the County for disposal in the Disposal
System.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 publ~c health, s~fety and welfare by providing a more stable, predictable and reliable supply of
municipal solid waste and the resulting service payment revenue to the Disposal System, thereby enabling the County
to plan,maIlage, operate and finance improvements to the Disposal System on a more prudent and sound
long tenn,businesslike basis consistent with its obligations to the State and the holders of obligations secured
by its
Disposal System.The City and the County acknowledge that execution of this Agreement will result
in significant costsavings f<r the residents of the County. The tipping fee currently charged for the disposal of solid
waste at the lDisposal System is $27 per ten If this Agreement is executed by a sufficient number of cities,
the Agreement provides for a Contract Rate of$22 per ton, effective July
I, 1997.Official action approving this Agreement and determining it to be in the public
interest and authorizing its execution and delivery was duly taken by the County on the County authorization
date indicated on the cover
page hereof.Official action approving this Agreement and determining it to be in the public
interest and authorizing its execution and delivery was duly taken by the City on the City authorization date indicated
on the covl=r
page hereof.It is, therefore, agreed
as follows:Execution
I j
ARTICLE I
DEFINITIONS AND
INTERPRET A nON SECTION 1.
1. DEFINITIONS. As used in this Agreement, the following tenns shall have the meanings set
forth below.Acceptable Waste"
means all garbage, refuse, rubbish and other materials and subSlances 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 nonnally disposed of by or collected from residential (single family and multi-family),commercial,
industrial, go\'ernmentaland institutional establishments which are acceptable at Class III landfills under
Applicable Law.Act"
means the California Integrated Waste Management Act of 1989 (Division 30 of the California
Public Resources Code), as amended, supplemented, superseded and replaced from time to time.Agreement"
means this Waste Disposal Agreement between the County and the City as the same
may be amended or modified from time to time in accordance herewith.Annual.
Imported Tormage Target" means the amount of Imported Acceptable Waste specified in
Appendix 2.Appendix"
means an appendix to this Agreement, as the same may be amended or modified from
time to time in accordance with the terms hereof.Applicable
Law" means the Act, the Orange County Code, CERCLA, RCRA, CEQA, any Legal
Entitlement and any federal or state rule, regulation, requirement, guideline, permit, action, determination or
order of any Governmental Body having jurisdiction, applicable from time to time to the siting, design,permitting,
acquisition, construction, equipping, financing, ownership, possession, operation or maintenance of th,~
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 concem health,
safety, fire, environmental protection, mitigation monitoring plans and building codes.).Board"
means the California Integrated Waste Management Board.CEQA"
means the California Environmental Quality Act, codified at CaI. Pub. Res. Code Section
21000 et sea. (West 1996) as amended or superseded, and the regulations p.romulgated thereunder.CERCLA"
means the Comprehensive Environmental Responsibility Compensation and Liability
Act, 42 U.S.CA Section 960 I et sea. (West 1995 & Supp. 1996, as amended or superseded, and the regulations
promulgated thereunder.Change
in Law" means any of the following events or conditions which has a material and adverse
effect on the perfonnanc,; D} ille parties c; their respecli\'eobligationsunder this .~.gr~en:~nt (except for payment
obligalions), or on the siting, design, permitting, acquisition, construction, equipping, fmancing,mmership,
possession, operation or maintenance of the Disposal System or other matters to which Applicable L!
iwapplies:Execution
Copy 3
Nr"~.-7.,-\\,~
J I) the
enactment, adoption, promulgation, issuance, material modification or writlen change in
administrative or judicial interpretation on or after the Commencement Date of any Applicable Law (other
than Applicable Law enacted by the County);2) the
order or judgment of any Governmental Body (other than the County), on or after the Commencement
Date, to the extent such order or judgment is not the result of willful or negligent action, error
or omission or lack of reasonable diligence of the County or of the City, whichever is asserting the
occurrence of a Change in Law; orovided, however, that the contesting in good faith or the failure in
good faith to contest any such order or judgment shall not constitute or be construed as such a willful
or negligent action, error or omission or la~k of reasonable diligence; or 3) the
denial of an applicalion for, delay in the review, issuance or renewal of, or suspension, tennination,
inteITUptiOn, imposition of a new or more stringent condition in connection "ith the issuance,
renewal or failure of issuance or renewal on or after the Commencement Date of any Legal Entitlement to
the extent that such denial, delay, suspension, termination, interruption, imposition or failure materially
and adversely interferes with the perfonnance of this Agreement, if and to the extent that such
denial, delay, suspension, termination, interruption, imposition or failure is not the result of willful or
negligent action, error or omission or a lack of reasonable diligence of the County or of the City, whichever
is asserting the occurrence of a Change in Law; orovided. 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.City" means,
as applicable, the city or SanitaIy District designated on the cover page of this Agrc=ent
and party to this Agreement City Acceptable
Waste" means all Acceptable Waste which was originaIly discarded by the first generator thereof
within the geographical limits of the City, and Residue from the foregoing wherever produced,whether within
or outside the City (or Tonnage equivalencies of such Residues, as and to the extent provided in subsection 3.
1(C) hereof).COII1l1lCl1CeIIIt 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 date of delivery of this Agreement as executed by the parties herelo.Contract Rate"
has the meaning specified in Section 4.2 hereof.Contract Year"
means the fiscal year commencing on July I in any year and ending on June 30 of the
follo\\1ng year.Controllable Waste"
means all City Acceptable Waste \lith respecI to which the City has the legal or
co:ltractual ability to determine the disposallocalion therefor and which is.I) Non-
Recycled City Acceptable Wasle;2)
not generated from the operations of the Governmental Bodies which, under Applicable Law,
have the independent power to arrange for the disposal of the waste they generate; and 3)
collected and hauled by Franchise Hauler~.Exec:
ution Cop~.4 Revised Pn:;!~
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lj
County" means the County of Orange, a political subdivisIOn of the State of California and
party to this Agreement.
County Plan" means the integrated waste management plan of the County approved by the
Board pursuant to the Act as in effect from lime to time.
County Acceptable Waste" means Acceptable Waste generated in the County.
County Waste Management Enterprise Fund" means the waste management enterprise fund
established and managed by the County pursuant to Section 25261 of the Goverrunent Code separate from its
oth,~r funds and accounts for receipts and disbursements in connection with the Disposal System.
County-wide Recycling Services" has the meaning set forth in subsection 3.7(A)
hereof Cumulative Tonnage Target" for any given Contract Year means the amount specified
in Appendix 2 hereto with respect to such Contract
Year.Department" means the Orange County Integrated Waste Management Department, and
any agency, department or other Governmental Body which succeeds 10 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 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 Systtm" means the Orange County Waste Disposal System which includes solid
waste disposal operations at four active landfills (Olinda Alpha, Frank R. Bowerman, Prima Deshecha and
Santiago);four regiooal Household Hazardous Waste Collection Centers; as well as services, such as monitoring and
other activities, at refuse stations formerly operated by the County, as appropriate under Applicable
Law.Environmental Fund" means the fund or funds held by the County to pay unanticipated
costs of I:nvironmental mitigation, remediation or
liability.Excess Import Revenues" has the meaning ascribed thereto in Section 3.6(
E).franchise Hauler" means any hauler or collector who provides Acceptable Waste
collection services within the City pursuant to, or under authority granted by, a contract, franchise or other agreement
with the City. The term Franchise Hauler includes the City itself if Acceptable Waste collection and
transportaIion sen'ices are provided directly by City operated municipal collection
service.Governmental Body" means any federal, State, county, city or regional legislative,
executive.juclicial or other governmental board, agency, :uthority, commission, a-::ninistratio:1. COlL"t or other body, O~
ar.:'ofljcer thereof acting within the scope of his or her
authority.Hazardous Substance" has the meaning given such Ienn in CERCLA, the
CarpenIer-Presley-Tamer Hazardous Substance Account Act (California Health and Safety Code Section 25300 et sea.) (
West 1992 Execution Copy 5
0-
J
Supp.
1996), and Titles 22 and 26 of the Califomia 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 rev(,
rsible, illness, or pose a substantial threat or potential hazard to human health or the environment, or any waste
which is defmed or regulated as a hazardous waste, toxic substance, hazardous chemical substance or mixture,
or asbestos under Applicable Law, as amended from time to time including, but not limited to: (I) the Resource
Conservation and Recovery Act and the regulations contained in 40 CFR Parts 260-281; (2) the Toxic
Substances Control Act (15 US.c. Sections 2601 et sea.) 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 40 141 (West 1996); and (5) future additional or substitute
Applicable Law pertaining to the identification, treatment, storage or disposal of toxic substances or hazardous wasIes;
or b) radioactive materials which are source, special nuclear or by-product material as defmed by
the Atomic Energy Act of 1954 (42 US.c. Section 20 II ~ ~.) and the regulations contained in 10 CFR
Part 40 Imported Acceptable Waste" means Acceptable Waste that is generated outside
of the geographical boundaries of the Cbunty 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 nnmicipal solid waste generated in the County
of Orange and not under a franchise or other contract with a city in
the County.Initial Term" has the meaning specified in Section 6. I (
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 D'laintMnM by any person with respect to the Disposal System or the performance of any obligation
under this AgI1:ement or the matters
covered hereby.Legal Procee<ling" means every action, suit, litigation, arbitration,
administrative proceeding,and other legal or equitable proceeding having a bearing upon
this Agreement.Loss-and-Expense" means any and all loss, liability,
obligation, damage, delay, penalty,judgment, deposit, cost, expense, claim, demand, charge, tax, or expense, including
all fees and costs.Non-Recycled City Acceptable Waste" means all City
Acceptable Waste other
than Recycled City Acceptable Waste.Overdue Rate" means the maximum raIe 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,
NA orits successors and lSsigns, pl;;
s 2%, whichever is lower.Participating City" means any city or SaniIary District
executing a Disposal Agreement in accordance with Section 3.6(A) hereof and meeIing all requisite conditions
to the Commencement Date
1.
Plan
of
Adjustment" means the COlUlty'S Plan of Adjustment as approved by the County Board of Supervisors
in August. 1995.Posted Disposal
Rate" means the per ton tipping fee charged by the County for the disposal of solid
waste aI the Disposal System by parties which are not entitled 10 disposal service at the Contract Rate pursuant to
this Agreement.Prohibited Medical
Waste" means any medical or infectious waste prohibited or restricted under Applicable Law
from being received by or disposed at the Disposal System.Qualified Household
Hazardous Waste" means waste materials deIermined by the Board, the D~partrnent
of Health Seryices, 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;hich are
discarded from houseb.olds as opposed to businesses. Qualified Household Hazardous Waste shall not include Unacceptable
Waste.Recycled City
Acceptable Waste" means any otherwise Controllable Waste whicb is separated from Acceptable
Waste by the generator thereof or by processing and which is "recycled" within the meaning of Sc:ction
40180of the Public Resources Code.Renewal Term"
has the meaning specified in Subsection 6.1(8) hereof.Residue" means
any material remaining from the processing, by any means and to any extent,of City
Acceptable Waste or Rceyc1ed City Acceptable Waste; provided, however, that Residue shall not include minimal amounts
of material f""l.ining after such processing (which minim. I amounts shall in no event exceed I 0%
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 R,::covery
Act., 42 U.S.C.A. Section6901 et sea. (West 1983 & Supp 1989), as amended and superseded.Restricted Reserves"
has the meaning specified in Section 4.5.Sanitary Districts"
means the sanitary districts in the County formed pursuant to the Sanitary District Act
of 1923, codified at Cal. Ann. Health & Safety Code Section 6400 et sea. (West 1970 & Supp.1996), as
amended, supplemented, superseded and replaced from time to time.Self-Hauled
Waste" means City AccepIable Waste collected and hauled by Self-Haulers
Self-Hauler" means any person not engaged commercially in waste haul~ge \'.'~) cJne::~ ~:
lc'hauls Acceptable Waste generaIed from residential or business activities conducIed by such
person.Service Coordinator" means the service coordinaIor for either party designaIed pursuanI
10 subsection3.5(C)
hereof.EX~CUlion Copy
1V
C\
I
Service Covenant" means the covenants and agreements of the County set forth in Sections 3.2
and 3.3 hereof
Source-Separated Household Hazardous Waste" means Qualified Household Hazardous
Waste which has been segregated from Acceptable Waste originating or generated \,ithin the geographical
jurisdicIion of the City at the source or location of
generation.Source-Separated Household Hazardous Waste Disposal System" means the
collection centers.facilities, contracts and otherarrangements O\med or administered by the County for the receipt,
handling and disposal of Source-Separated
Household Hazardous Waste.State" means the
State of California.Term" shall mean the Initial Tenn
of this Agreement.Ton" means a "short ton" of
2,000 pounds.Transfer Station" means any materials recovery facility,
compostingfacility, intennediate proo:ssing facility, recycling center: transfer station or other waste handling or management faciliIy
to which solid waste collected for the City is delivered for processing before disposal in
the Disposal System.Unacceptable Waste" means Hazardous Waste; Hazardous
Substances; Prohibited Medical Waste; Qualified Household Hazardous Waste separated from Acceptable Waste;
explosives, ordnance, highly flammable substances, and noxious materials and lead-acid batteries (except if delivered
in minim.1 quantities);drums and closed containers; liquid waste, oil, human wastes; m.r.hinery and
equipment from commercial or industrial sources, such as hardened gears, shafts, motor vehicles or
major components thereot; agricultural equipment, trailers, marine vessels and steel cable; hot loads; and any waste which
the Disposal System is prohibited from
receiving under Applicable Law. .Uncootrollable Circumstance" means any act, event or condition
affecting the Disposal System,the County, the City, or any of their Franchise Haulers, conlractors or suppliers to the extent
that it materially and adversely affects the ability of either party to perfonn any obligation under the
Agreement (except for payment obligations), if such act, event or condition is beyond the reasonable control and is not also the
result of the willful or negligent act, error or ornission or failure to exercise reasonable diligence on the part
oftheparty relying then>l:m as justification for not performing an obligation or complying with any condition
required of such party Wider the Agreement; Drovided. however, that the contesting in good faith or the failure in
good faith to contest such action or inaction shall not be construed as willful or negligent action or a lack
of reasonable diligence of eithc:r party. Examples
of Uncontrollable Circwnstances are:1) an act of God, landslide, lightning, earthquake, fire,
explosion, flood, sabotag~ or similar occurrence, acts of a public enemy, extortion, war, blockade or
insurrection, riot
or civil disturbance; and 2)
a Change in Law.UnincOIporated Area" means Ihose portions of the County which are
not contained within the jurisdicIional
boundaries of incorporated cities.Exec:
J
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 dot Restricted
Reserves.Waste
Disposal Covenant" means the covenants and agreements of the City set forth in SecIion 3.
1 hereof SECTION
1.2. INTERPRETATION. In this Agreement, unless the context otherwise requires A)
References Hereto. The tenns "hereby", "hereof', "herein", "hereunder" and any similar tenDS
to this Agreement, and the tenn "hereafter" means after, and the tenn "heretofore" means before, the Contract
Date.B)
Gender and Plurality. Words of the masculine gender mean and include correlative words of
Ire feminine and neuter genders and words importing the singular nwnber mean and include the plural nwnber and
vice versa.C)
Persons. Words importing persons include firms, companies, associations, general partnerships,
1imited partnerships, trusts, business trusts, corporations and other legal entities, including public bodies,
as well as individuals.D)
Headings. The table of contents and any headings preceding the text of the Articles,Sec;
tions 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)
Entire Agreement This Agreement cont.in< the entire agreement between the parties hereto wi:
th respect to the transactions contemplated by this Agreement and, except as expressly provided otherwise herein,
nothing in this Agrec:mentis intended to confer on haulers IX any other person other than the parties hereto and
their respective permitted successors and assigns hereunder any rights or remedies under or by reason of this Agreement
F)
CounterDarts. This Agreement may be executed in any nwnber of original counterparts. All suc;
h counterparts shall constitute but one and the same Agreement.G)
Aoolicable Law. This Agreement shall be governed by and construed in accordance \\ith thl'
Applicable Laws of the State ofCalifomia.H)
Severability. If any clause, provision, subsection, Section or Article of this Agreement shall be
ruled invalid by any court of jurisdiction, then the parties shall: (I) promptly meet and negotiate a substitute for
such clause, provision, subsection, Section or Article which shall, to the greatest extent legally permissible,efrect
the intent of the parties therein; (2) ifneceso:J..'Y or desirJble to accomplish item (I) above, apply to the court
having declared such invalidity for a judicial construction of the invalidated portion of this Agreement; and 3)
negotiate such changes in, substitutions for or additions 10 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 intenI of the parties in the
invalid prO\.ision. The invalidity of such clause. provision, subsection, SecIion or Article shall not affect any Execution
Copy 9
0~', -of
the remaining provisIOns hereof, and this Agreement shall be construed and enforced as if such invalid portion did
not exist, w1less such invalidity frustrates the underlying primary purpose of the Agreement.Integration:
Preservation of Certain Agreements. This Agreement contains the entire agreement
between the parties with respect to the transactions contemplated hereby. This Agreement shall completely
and fully supersede all prior understandings and agreements between the Parties with respect to such transactions;
provided, however, that this Agreement shall not supersede the following agreements:I)
MOU, daIed March 10, 1992, between the City of Brea and the County of Orange regarding the
Olinda Alpha Landfill as amended on April 6, 1993 and November 29, 1994 2)
MOU, dated May II, 1995, between the City of Brea and the County of Orange regarding importation
of out-of-County waste to the Olinda Alpha
Landfill 3) Settlement Agreement, dated August I, 1984, between the City of Irvine and the County
of Orange regarding the Bee Canyon Landfill (currently called frank R. Bowerman
Landfill)4) MOU, dated May 16, 1995, between the City of Irvine and the County of Orange
regarding importation of out-of-County waste to the frank
R. Bowerman Landfill 5) MOU, dated September 12, 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) M 0 U, currently under negotiation, between the City of
San Clemente, the Orange County flood Control District and the County of Orange
regarding the Prima Deshecha Landfill 1) Recitals. The recitals to this Agreement are not intended to bind
the parties hereto. In the event of a conflict between the recitals and the operative provisions of
this Agreement, the operative provisions shaH prevail. The recitals shall not be used to interpret
the provisions of
Jj ARTICLE
II REPRESENT
A TIONS 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.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 A!\'DWARRANTIES OF THE COUNTY The County represents
and warrants that:A)
Existence. The County is a political subdivision of the State of California validly existing under
the Constitution and laws of the State.B)
Due Authorization. The County has duly authorized the execution and delivery of this Agreement,
and this Agreement has been duly executed and delivered by the County.E:\:
ecution Copy 11
e<~:l:'f~ .-'''i. . ~'.i;<,,-
d:"A
J ARTICLE
III
DELIVERY AND
ACCEPTANCE OF WASTE AND PROVISION
OF DISPOSAL SERVICE SECTION 3,
I. DELIVERY OF WASTE, (A) Waste Disoosal 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 beginning on July I, 1997.B) Recvcled
City Acceotable Waste The parties hereto acknowledge the responsibility of the
City to meet the recycling and landfill diversion goals contained in the Act Nothing in this Agreement is int(:nded
or shall be interpreted to prohibit or impair the ability of the City to meet such responsibilities, or to restrict the
right of the residents, businesses or organizations in the City to practice source separation, recycling,composting or
other materials recovery activities, or to restrict the right of the City to conduct, sponsor, encourage or require
such activities in any form. No reduction in the amount of Controllable Waste generated in the City and delivered
to the Disposal System by or on behalf of the City which may result from any such source separation or
recycling program shall cause the City any liability hereunder (other than potential adjustment to the COntract
Rate to the extent provided in Article IV hereof) and shall not consIitute a breach of this Agreement C) . Waste
Delivered to TrlUISfer 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 II
facility which concurrently processes other Acceptable Waste in a manner which produces commingled residue which
cannot be traced to a geographic source, generic residues from such facility in Tonnage equal to the residues
that would have been produced had City Acceptable Waste only been processed at the facility shaII constitute Controllable
Waste and be subject to the Waste Disposal Covenant. Any City Acceptable Waste or mal:erial
derived or segregated therefrom which is held in storage and asserted by the possessor thereof to constitute Rec}
cled City Acceptable Waste awaiting sale or distribution to the secondaIy materials markets shall constitute Controllable
Waste if; when and to the extent that the storage or diversion thereof can be reasonably deemed to
constitute an evasion of the Waste Disposal Covenant rather than generaIly recognized, accepted and prevaiIing practice
in the Southern California materials recovery and recycling industry conducted in accordance with Applicable
Law. In order for the owner and/or operatorof a transfer station to be entitled to deliver AC(:eptable
Waste from a Participating City to the Disposal System for the Contract Rate as provided in Article IV, such
owner and/or operator must execute a direct agreement with the County, acknowledging and agreeing to comply
with the obligation of the Participating City to cause the delivery of all Controllable Waste to the Disposal System
pursuant to this Agreement. In addition, the County shall be authorized to implement procedures to determine
if Acceptable Waste delivered by the owners or operators of Transfer Stations is entitled to utilize the Disposal
System for the Contract Rate. Such procedures may include requiring Transfer Stations to certify,underpmaIty ofperjwy,
the source of any such Acceptable Waste. Ifnecessary, the County may require that, in ord:r
toqualify for use of the Disposal System for the Contract Rate, Transfer Stations must deliver Controllable Waste in
loads containing only Controllable Waste, and not commingled with Acceptable Waste from entities whlch are
not Participating Cities or Participating Independent Haulers,D) Power
to Obligate Waste Disoosal and Comolv with this Agreement. On or before July L [997, (
i) any City franchise, contract, lease, or other agreement which is lawfully in effect relating to or affc,cting
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 no! such Controllable Waste is delivered to a Ex:cution
cor~12
J J
transfer station as an intermediate step prior to landfill disposal) and otherwise to comply \\ith its obligations
Wlder this Agreement with respect to Controllable Waste and Franchise Haulers, and (ii) the City shall designate
the Disposal SysIem 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 pennit, 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 othcx contractual arrangements. The City agrees that the County shall be a third party beneficiary of
the obligation of Franchise Haubs to delivery 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. (I) The City, in cooperation \\ith the
Department, shall establish, implement, carry out and enforce a waste flow enforcement program which is sufficient to
assure the delivery of all Controllable Waste to the Disposal System pursuant to and in accordance with the
Waste Disposal Covenant for disposal at the times and in the manner provided herein. The waste flow enforcement
program shall consist of amending City franchises with all Franchise Haulers, to the extent required by this Section,
and shall include in addition, to the extent necessary and appropriate in the circumstances to assure compliance
with the Waste Disposal Covenant, but shall not be limited to: (i) licensing or permitting Franchise Haulers,
upon the condition of compliance with the Waste Disposal Covenant, (ii) providing for and taking
appropriate enforcement action under any such franchise, license, or permit, such as but not limited to the suspension,
revocation and termination of collection rights and privileges, the imposition of fines or collection of damages, and
the exercise of injunctive relief against non-complying Franchise Haulers and (iii) causing any Transfer
Station to which CoIiIrollable Waste is delivered for procesci"g to deliver certification, under the penalty of peIjury,
of the amounts ofControIIable Waste received and Residue remaining from processing at such Transfer Station. (
2) The City ackllowledges and agrees that in the event of a breach of the Waste Disposal Covenant by the City,
the City shall pay the County an amount equaI to 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(G)) multiplied by the
number of tons of City Acceptable Waste delivered to the Disposal System during the preceding twelve months (or,
if the City had been in breach of the Waste Disposal Covenant during such prior months, such amount as
would have been delivered if the City had complied with the Waste Disposal Covenant), multiplied by the
number of years remaining in the Term of the Agreement. The parties recognize that if the City fails to
meet its obligations hen:under, the County will suffer damages and that it is and will be impracticable and
extremely difficult to asC4:rtain and determine the exact amount of such damages. Therefore, the parties agree
that the damages spo:ified above represent a reasonable estimate of the amount of such damages, considering
all of the circ:wnstances existing on the date hereto, including the relationship of the sums to the range of
harm to the County that reasonably could be anticipated and anticipation that proof of actual damages would
be costly or inC4Jnvenient. In signing this Agreement, each party specifically confinns the accuracy of
the statements made above and the fact that each party had ample opportunity to consult with legal counsel and
obtain an explanation of this liquidated damage provision at the time that this
Agreement was made.F) Le~al Challen~es to Franchise S\'stem. The City shall use iIS best
efforts to preserve.protect and defend its right to exercise and comply with the WasIe Disposal Covenant
against any challenge thereto, legal or othem;se (including any lawsuits against the City or the County, whether
as plaintiff or defendant), by a Franchise Hauler or any other person, based upon breach of contract, violation of
law or any other legal theory. The City shall bear the cost and expense of any such Legal Proceeding
or other challenge.In Ihe event any such Legal Proceeding relating to the Waste Disposal Covenant or the City'
s exercise thereof Exc:cution Copy
J),,",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, unla\\fulor unenforceable on any legal growIds,
with the result that actual waste deliveries to the Disposal System fall below the Cumulative Tonnage Targ,:
ts, 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 County with the following infonnation
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 County in collecting infonnation
and otherwise monitoring Franchise Haulers in order to assure compliance "ith this Agreement Such infonnation
may include, to the extent practicable, data pertaining to Controllable Waste collected, transported,storo:~
processed and disposed of; Recycled City Acceptable Waste collected, transported, stored, processed and mark:
ted or disposed of; Franchise Haulers' franchise, permit or license terms, collection areas, transportation routes .
and compliance with Applicable Law; and all other information which may reasonably be required by the Department
in connection with this Agreement II) ,
Citv Actions Affectine 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 County
with its covenants and agreements with the State. In particular, the City agrees not to conduct or permit any
disposal services for Controllable Waste to be provided in competition with the Disposal Services provided by
the County hereunder, and not to take or omit to take any action with respect to Controllable Waste or its colleo:
tion, transportation, transfer, storage, treatment or disposal that may materially and adversely affect the County'
s ability to achieve such timely compliance. Notwithstanding the foregoing, the City shall not be required to
del:!)' any permit or license or refuse to grant any approval while exercising its police powers.1)
No Rimt 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 generated
outside the jurisdiction of the City, nor obligate the County to receive or dispose of any such Acceptable
Waste. The City shall not assign in whole or in part its right to deliver or cause to be delivered Controllable
Waste to the County hereunder, and shall not permit any Acceptable Waste originating from or generated
outside the jurisdiction of the City to be substituted for Controllable Waste for any pUlpose hereunder.K)
Annexations and Restructurine. 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, 1997, solid waste management responsibility
from a sanitary district or other public entity) and shall bind any successor or restructured Go\'
e:mmental Body which shall assume or succeed to the rights of the City under Applicable Law,SECTIOK
3,2, PROVISION OF DISPOSAL SERVICES BY THE CCU"\'TY.A)
Service Covenant Commencing July I, 1997, the County shall provide or cause the provision of the service of (
I) receiving and disposing of all Controllable Waste at the Disposal System (or such other facilities, including transfer
stations, as the County may deterntine to use), (2) disposing in accordance with subsection 3.2(C) hereof of
Ccmtrollable Waste which, at any time and for any reason, is in excess of the disposal capacity of the Disposal Systl;
m, and (3) in accordance with subsection 33(C) hereof, disposing of Unacceptable Waste inadvertently Exe::
utioncop~14
acce:
pted at the Disposal System. The County, to the maximum extent pennitted under Applicable Law, shall use
its beSI effons 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 \\ithout limitation all planning, development, administration, implementation, construction,operation,
maintenance, management, fmancing and contract work related thereto or undertaken in connection then:
with. The County shall exercise all reasonable effons to minimize the costs incurred in complying with the Ser'
iiceCovenant 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 detemuning \\
nether and to \mat extent from time to time other landfills other than that primarily used by the City shal.
lbe 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 perfJl1Il
its obligations hereunder, and the County's best estimate of the probable duration. The Department shall corrlinn
such advice in writing within 24 hours of the occurrence of any such inability. The County shall use its best
effons to resume normal operation of the landfill primarily used by the City as soon as possible in accordance
with subsection 3.2(C) hereof.C)
CoIIIDliance with Service Covenant not Excused for anv Reason. Commencing July I,1997,
the obligations of the County to duly observe and comply with the Service Covenant shall apply continuously
and without interruption for the Term of this Agreement. In the event that any Change in Law or other
UncaIlroUable Circumstance impairs or precludes compliance with the Service Covenant by the means or methods
then being employed by the County, the County shall implement alternative or substitute means and methods
to enable it to satisfy the terms and conditions of the Service Covenant. In the event that a Change in Law
precludes the County from complying with such covenants with the means or methods then being employed and
from utilizing any aItemate or substitute means or methods of compliance, the County shall continuously use all
reasonable efforts to effectuate executive, legislative or judicial change in or relief from the applicability of such
law so as to enable the County lawfully to resume compliance with such covenants as soon as possible following
the Change in Law.SECTION
3.3. COUNTY RIGHT TO REFUSE WASTE A)
Ri2ht of Refusal. Notwithstanding any other provision hereof, the County may refuse delivery of:I)
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; and 4)
Waste that is delivered by any party which has not executed a Waste Disposal Agreement.
ffi)
Identification ofUnacceotable Waste The Department shall have the right (but not the duty or
the o~lig1tion) t8 inspect ilie vehicles of all Franchise Haulers delivering material to the Disposal System, ane may
require that the Franchise Hauler remove any Unacceptable Waste from such vehicle before it is unloaded.If
the Department determines that it is impractical to separate Controllable Waste from Unacceptable Waste in any
vehicle, or if the Franchise Hauler delivering such waste is unwilling to make such separation, or if any ver~
cle is carrying waste which may spill or leak, then the Department may reject the entire vehicle, and the City shall
fortll\\ith remove or cause the removal of the entire delivery from the Disposal System. The Department may Exc:,
cution Copy 15
c...
i~,_~,
take:
all
reasonable measures to prevent waste from being blO\m or scattered before and during unloading. The City shall
cause the Franchise Haulers to observe and comply with Applicable Law, the operating rules and regulaIions of
the Department, and the provisions of this Agreement prohibiting the delivery of Unacceptable Waste to
the Disposal System C) Hazardous
Waste and Hazardous Substances. The parties acknowledge that the Disposal System
has not been designed or pennitted, and is not intended to be used in any manner or to any extc,nt,
for the handling, transportation, storage or disposal of Hazardous Waste or Hazardous Substances Neither the
County nor the City shall countenance or kno\\ingly permitthe delivery of Hazardous Waste or Hazardous Substances
to the Disposal System.D) Disoosal
of Unacceotable Waste and Hazardous Waste. If Unacceptable Waste or Hazardous Waste
is discovered in a vehicle at any landfill \\ithin the Disposal System, the driver of the vehicle will not
be pennitted to discharge the load. If a vehicle is observed unloading Unacceptable Waste or Hazardous Waste in
the tipping area of a landfill within the Disposal System Department personnel will use reasonable efforts to
assure that such material has been characterized, properly secured and ilS disposition resolved. The retum or
reloading on to 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-
Seoarated Household Hazardous Waste. The County shall maintain, as part of the
Disposal System, a Somce-Separated Household Hazardous Waste Disposal System for the disposal of
Source-Separated Household Hazardous Waste. The disposal service provided by such system shall
constitute part of the Disposal Services, and shall be available to Participating Cities as part of the Contract Rate.
The County may impose additiroal fees and charges for services relating to Somce-Separa.ted
Household Hazardous Waste with respect to cities which are not parties to a Disposal Agreement. The County may provide
for the expansion, contraction or modification of the Source-Separated Household Hazardous
Waste Disposal System and its services to the extent necessary to ensurethe Disposal Sys1l:m's viability; provided, however,
if the County chooses to reduce services, the County shall nonethelesscontinueto c:xpc:nd fundsfor
the Somce-Separa.ted HOIIseholdHazardous Waste Disposal Sys1l:m each year during the term of this Agreement in
an amount at least equ;d to the amount of fimds expended for the Somce-Separated
Household Hazardous Waste Disposal System during fiscal year 1996-97 as adjusted by
changes in the Producer Price Index.F) Environmental Insurance. The County will
explorethe availability of insurance for potc:ntial CERCLA or other environmental liability of the Disposal System,
and will acquire such insurance to the ,extent that such insurance is, in the judgment of the County,
commercially available at a reasonable rate.SECTION 3 .4.
UNINCORPORATED AREA ACCEPTABLE WASTE. Commencing July I, 1997, the County in accordance with Applicable Law shall provide or cause
to be: provided the servi~ of disposing of non-recycled Acceptable Waste originating or
generated within the Unincorporated Area and, \\ith respect to such waste, shall comply with the Waste Disposal Covenant as
if the County constituted a City subjectto tllC Waste Disposal Covenant hereunder ?," ~.: c!-.::g.~ ::. the r::lU::~' for the
disposal of each class of non-recycled Acceptable Waste generated in the Unincorporated Area shall be the
same as the Contract Fee charged for the disposal
of each class of Controllable Waste.SECT10N 3.5. MISCELLANEOUS OPERATIONAL
MA TIERS. (A) Operating Hours. The County shall keep the Disposal SysIem open for the receiving .
of Controllable Waste during such
Opl:
ratinghours as may be established by the Department in the operating rules and regulations applicable to the Disposal
System The County shall utilize best efforts to maintain substantially similar hours, as were in effect on
January 2, 1997, for the rcceipt of waste through the term of this Agreement (subject to Applicable Law),B)
Scales and Weighing, The Department shall operate and maintain permanent scales at the Disposal
System The Department shall weigh all vehicles delivering waste by or on behalf of the City (whether or
not the County accepts such waste) and prepare a daily weight record with regard to such delivery.C)
Service Coordinator. The County and the City each shall designate in writing thirty days prior
to the expected Commencement Date a person to transmit instructions, receive information and otherwise coordinate
service matters arising pursuant to this Agreement (each a "Service Coordinator"), Either party may designate
a successor or substitute Service Coordinator at any time by notice to the other party,0)
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 oftJl1e
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 June 30.19SQ:.
On or before June 30, 1997, the County shall have the right to enter into waste disposal agreements with othl:
rcitiesin the CountY, Sanitary Districts, Transfer Stations and Independent Haulers, to be effective on July I,
1997, which waste disposal agreements shaIl have terms and provisions substantially identical to the terms and provisions
of this Agreement; provided, however, that in no event shall such agreements have terms and provisions
more favorable than the terms and provisions of this Agreement (including but not limited to the Contract
Rate and availability of disposal capacity).B)
After June 30.1997. After June 30,1997, the CountyshaIl have the right to enter into waste disposal
agreements with any city, Sanitary District, Transfer Station and Independent Hauler, or otherwise accept ACl'"
PtableWaste from such parties, but only within the limitations contain..nin this Section. Any such agrl:
ement or waste acceptance agreement must provide that the party delivering waste shall pay a Posted DispC15al
Rate at least 10% higher than the Contract Rate unless the County detennines 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 eve.
nt 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
n:fuse to receive and dispose of Acceptable Waste from any city, County Sanitary District, Transfer Station and
Independent Hauler if and to the extent that such receipt and disposal may materially and adversely affect the .
ability of the County to comply with its obligations to the Participating Cities under the Disposal Agreements to
which each is a party. Notwithstanding the foregoing, the County shall be permitted to enter into a Waste Disposal
Agreement with the City of Garden Grove in accordance with Section 3.6(A) if such Waste Disposal Agreement
is executed by the City of Garden Grove within 90 days after the date on which Garden Grove assumes
responsibility for solid waste collection within the City of Garden Grove.C)
ReeeiotofImoorted Acceotable Waste on a Contract Basis. The County shall have the.right
to enter into a contract or other agreement \\ith any municlpai c.~. . _1_ .l~::' : :=~ ::1:ityfo~ the delivery of
Lmported 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. The COlmty
certifies that in its good faith judgment the contract or other agreement for the delivery of such waste will not
materially and adversely affect the ability of the County to receive and dispose of Acceptable Waste from the Participating
Cities in accordance with applicable the Disposal Agr:ementsthroughout the Term thereof.Exe.:
ution Copy 17
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D) Self Haulers. The City and the County acknowledge that Self-Haulers shall be
entitled to deliver Self-Hauled Waste to the Disposal System, on a non-contract basis, at the Posted
Disposal Rate. Such Self-Haulers shall not be entitled to dispose of Acceptable Waste
for the Contract Rate.E) Apolication and Use of Revenues From Other Users:
Excess Import Revenues. All revl:nues received by the County from the disposal of County Acceptable Waste by the
Disposal System, and all reVl:nues received by the County from the disposal of Imported Acceptable Waste by
the Disposal System, shall be deposited by the County in the County Waste Management 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) from the disposal of Imported Acceptable Waste by the Disposal System in an amount
of $15,000.000 per year. 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 slK:h as manpower expenditures, equipment, services and supplies expenditures), state surcharges,
and a pro rata share of capital project costs. All net revenues in excess of the $15,000,000 per year
shall be considered "Excess Import Revenues" and shall be (i) retained in the County Waste Management Enterprise
Fund or (ii) deposited in ~le County debt repayment reserve for future bond defeasance established by Resolution
No. 96-473 of the County Board of Supervisors on June 25, 19% ("Debt Repayment Reserve").
Amounts from the Disposal System so deposited in the Debt Repayment Reserve shall only be used for the
purposes ofrepayment of County bankruptcy rel.:.ted obligations and defeasance of bankruptcy related financings as
set forth in the Debt Repayment Policy approved pursuant to Resolution No. 96-473 unless the Board,
by a four fifths majority vote,delf:rmines to use such amounts for other purposes. The parties
acknowledge that their intention in determining to allow the importation of Imported Acceptable Waste for disposal by the
Disposal System is to stabilize the Contract Rate at rates below those which would otherwise prevail
in the absence of such importation.SECTION 3.7.
COUNTY PROVISION OF WASTE DIVERSION SERVICES.A) County-Wide Recvclinl! 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 Waste Management Enterprise Fund Any such recycling services may be expanded, contracted or modified by the
County at any time in itssole discretion.B) Separate City-County
Diversion Service Al!feements. 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, materialsrecovery, recycling, composting
or other waste diversion services. A:D.y such program conducted by the County, whether in participation
with the City, any other of the Participating Cities,othc,r Cities, Sanitary
Districts, Transfer Stations, Independent Haulers, Unincorporated Area or non-County entity, shall be operated, managed and accounted
for as a program separate and distinct from the Disposal Services program contemplated by the Disposal
Agreements and shall not
be funded through the
J
ARTICLE
IV CONTRACT
RATE SECTION
4.1. CHARGING AND SECURING PAYMENT OF CONTRACT RATE. The City acknowledges
that the County shall have the right to charge and collect a Contract Rate for the acceptance 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 4.2hereof. In addition, the City acknowledges
that the County shall have the right to establish as part of the operating rules and regulations reasonable
measures to secure the payment of all Contract Rates.SECTION
4.2: Contract Rate. (A) Initial Tenn. Effective July I, 1997, the Contract Rate pavable
by each Franchise Hauler shall be $22.00 per ton, contingent on the delivery to the Disposal System of an
amount of Acceptable Waste at least equal to the Cwnulative Tonnage Targets identified in Appendix 2, and subject
to potential adjustment necessary to reflect the circumstances set forth below:i)
ina-eased costs incurred by the County (in excess of available insurance proceeds) due
to the occurrence of one or more Uncontrollable Circumstances, including Changes in Law;
ii) average annual inflation at any point during the Tenn of this Agreement in excess of
four per cent, cOmpounded annually, calculated in accordance with Section 4.2 (F);
iii) 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
System or inactive or closed disposal sites in the County, which, if uncorrected, could give rise
to potcntial claims under CERCLA orrelat.ed federal or state statutes, including costs incurred providing
indemnification to any participating City pursuant to subsection 7.3 (but not including costs of obtaining
insurance pursuant to Section 3.3(F)); or
iv) tonnage shortfalls to the extent permitted by Sections 4.2(B) and 4.2(C).
Prior to adjusting the Contract Rate as a result of any of the circumstances described above, the County shall
utilize the following remedies in the following order of priority:
i) reduce the costs of operating the Disposal System to the extent practicable;
ii) utilize Excess Import Revenues to pay costs of the Disposal System; and
iii) utilize Unrestricted Reserves to pay costs of the Disposal System.
Any adjustments to the Contract Rate permitted by this Section shall be calculated by the County to reflect the
actual costs or expenses of addressing the circumstance or circumstances pursuant to which the adjustment is
authorized.
B) County Acceotable Waste Shortfall. In the event that the actual amount of Coun~
Acceptable Waste delivered 10 the Disposal System at the end of any Contract Year is less than the Cwnulative
Tonnage Target for such Contract Year for County Acceptable Waste, as specified in Appendix 2, the Coun~.
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 System to the extent practicable;
Execution Copy 19 Revised Panel
ii) utilize Excess Import Revenues to pay costs of the Disposal SvsIem;
iii) utilize Restricted Reserves described in clause (iii) of Section 4.5 to pay costs of the
Disposal System;
iv) utilize Unrestricted Reserves to pay costs of the Disposal System; and
v) adjusI the Contract Rate.
In the event that implementation of the steps described above do not result in sufficient revenues to satisfactorily
address the shortfall in tonnage, the County shall have the right to terminate the Agreement on 60 days written
notice to the City. In addition, in the event that actual deliveri~s 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) Imoorted A=table Waste Shortfall. In the event that the actual amount of Imported
Acce'ptable Waste delivered to the Disposal System at the end of any Contract Year is less than the Annual
Imported Tonnage Target for such Contract Year for Imported Acceptable Waste, as specified in Appendix 2,
the County shall utilize the following options, in the following order of priority, in order to (i) provide the net
annual payment to the County described in Section 3.6(E) of at least $15,000,000 and (ii) generate sufficieni
revenues from the acceptance of Imported Acceptable Waste to continue to accept County Acceptable Waste for
the tlIen applicable Contract Rate:
i) reduce the costs of operating the Disposal System to the extent practicable;
ii) utilize Excess Import Revenues to pay costs of the Disposal System; and
iii) utilize Unrestricted Reserves to pay costs of the Disposal System.
In !hi: event that, after implerJ1l'>1tarion of the options described above, the sufficient revenues from the acceptance
of Imported Acceptable Wasw are not available to both (i) provide the net annual payment to the County
descibcd in Section 3.6(E) of at least $15,000,000 and (ii) generate sufficient revenues from the acceptance of
Impcrted Acceptable Waste to continue to accept County Acceptable Waste for the then applicable Contract Rate,
then the County may propose in writing to the Participating Cities an adjustment to the then applicable Contract
Rate intended to achieve both requirements described above. The Participating Cities shall then have the right
to eitlIer (i) accept the proposed adjustment to the Contract Rate or (ii) terminate the Agreement in writing. Any
Parti,;ipating City \Wich does not terminate the Agreement within 45 days after receipt of notice of the proposed
adjustment from the County shall be irrevocably deemed to have agreed to the proposed adjustment. In the event
that /L sufficient number of Participating Cities (as reasonably determined by the County in light of then current
cirCUJ:nstances) do not agree in writing to the proposed adjustment to the Contract Rate within such 45 day period,
then the County may terminate the Disposal Agreements.
0) Interim Use of Remedies. In the event that, during any Contract Year, waste deliveries
to th(, Disposal System are 25% or more below deliveIY projections for such Contract Year with the result that
the County determines it is unlikely that the Cumulative Tonnage Target or Annual Imported Tonnage Target
win be achieved as of the end of such Contract Year, the County may utilize the remedies described in Section
4.2(13) or 4.2(C), as applicable prior to the end of such Contract Year; provided, however, that if at the end of
such Contract Year, the Cumulative Tonnage Target or Annual Imported Tonnage Target (as applicable) are
actuaLlly met, the County shall reimburse any adjustments to the Contract Rate made pursuant to this Section to
Partil;ipating Cities. Such reimbursement may be given as a credit or adjustment to the Contract Rate for future
deliveries, rather than a lump sum payment.
Execution Copy 20 Revised Page)
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E)
Soecial Charges. Notwithstanding Section 4.2(A), the Count)' shallhave the right to Impose
special charges for the receipt of hard to handle materials, such as bulk'y materials, construction and demolition
debris, tires and sludge. Such special charges shall be calculated to reflect the reasonable incremental costs
to the County of accepting such hard to handle materials F)
Calculation of Average Annual Inflation. For pUQoses of Section 4.2(A)(ii), the inflation
shall be calculated as the change in the Producer Price index, Finished Goods ("ppr'), reportedby the Bw-
eau of Labor Statistics of the United States Department of Labor between July of the year of calculation and
July I, 1997. Average annual inflation shall be deemed to exceed 4% if the ratio between the PPI Index for July
for the year of calculation (calculated in accordance "ith the formula below) and July 1997 exceeds the ratio
con'esponding to such year of calculation on the table below The ratio shall be calculated in accordance "ith the
following formula:
July PPI Index of calculation year / PPI Index for July 1997)
Year of Calculation
July I, 1997
July 1, 1998
July I, 1999
July 1,2000
July I, 2001
July 1,2002
July 1,2003
July 1,2004
July 1, 2005
July 1,2006
July 1,2007
Ratio
1.0000
1.0400
1.0816
1.1248
1.1698
1.2166
1.2653
1.3159
1.3685
1.4233
1.4802
In tbe event the PPI is DO longer published during the term of this Agreement, such other index identified by the
Bw:eau of Labor Statistics or otherwise generally accepted as a repla=ent for PPI shall be used for purposes
of lhis Service Agreement.
G) Procedure for Rate Adiustments. In the event the County determines that it is entitled
to an adjustment of the Contract Rate pursuant to Section 4.2, it shall utilize the procedures described in this
Section 4.2(G). The County shall be required to provide the City "ith at least 60 days prior written notice of the
adjustment, which notice shall identify the specific event( s) or circwnstances 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 "hich shall contain the following information: a description of the specific event( s) or circwnstances
which require the adjustment; a description (including cost estimates) of any activities (which may include, but
not be limited to capital improvements to the Disposal System) required in order to remedy such event or
cin:umstance; =ti..fication by the County that it has implemenIed the remedies described in Section 4.2 prior to
requiring the rate adjustment; and a description of the methodology used by the C~unty to calculate the
adjustment to the Contract Rate (hereinafter the "CmIDty Report"), In the event the City disputes the adjustment,
it shall provide the County "ith a written description of the reason for the dispute at least I 0 days prior to the
meeting of the Board of Supenisors identified in the initial notice of the County (hereinafter the "City Report").
The City Report shall be provided to the Board of Supervisors for consideration at such meeting in connection
ith the proposed rate adjustment. At any time from and after the date that the County provides the City with
EXI:cution Copy 21
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the County Report, upon the request of either party, the City and COWlty shall meet and confer in good faith to
resolve any dispute that may arise regarding the proposed adjustment to the Contract Rate. In any such meeting,
the County shall be represented by the Director of the Department or his or her designee. In the event the Board
of Supervisors approves all or a portion of the proposed rate adjustment., such rate adjustment shall become
effective on the date identified in the initial notice sent by the COWlty regardless of whether or not the procedures
in Section 4.2(H) are utilized, but subject to potential reimbursement pursuanI to clause (II) of Section 42(H).
H) Procedure for Exuedited Judicial Review of Contested Rate Adiustment. In the event
that., within 30 days after the effective date of any Contract Rate adjustment made pursuant to Section 4.2(G),
Participating Cities which, in the aggregate, accounted for more than 50% of the County Acceptable Waste
deli\l::red 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(H), then the provisions of this
Sec~:on 4.2(H) 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
contc:mplated in the preceding sentence do not provide notice to the COWlty of such election, the COWlty shall
have no obligation to participate in or cooperate in the implementation of the procedures described below in this
Section 4.2(H).
I. In order to pursue the expedited judicial detennination described in this Section (the
Expedited Rate Determination"), the Participating Cities which have made the election described in the
paragraph above (the "Challenging Cities") must commence a civil action for breach of contract (the
Action") in the Orange County Superior Court within 45 days of the date on which the Board of
Supervisors approves the challenged adjustment to the Contract Rate.
2. Within two (2) days of filing the Action, the Challenging Cities sha1l personally serve
on the County Counsel both the summons and complaint, and a stipulation and request for the entering
of an order incorporating all of the procedural provisions relating to the Expedited Rate Determination
as set forth in this Section 4.2(H) (such stipulation and request for order is hereinafter referred to as the
Expedited Rate Determination Stipulation''). The Expedited Rate Determination Stipulation shall be
signed by each of the Challenging Cities.
3. Within fifteen (15) days of the date of service upon the COWlty of the summons and
complaint., and Expedited Rate Detennination Stipulation, the COWlty Counsel shall execute the
Expedited Rate Detennination Stipulation and personally serve upon the Challenging Cities through their
counsel of record the Expedited Rate Detennination Stipulation and its answer to the complaint in the
Actim 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 COWlty 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(H) shall be, and are hereby deemed to be, ministerial duties which the
law specifically enjoins upon each of them, and shall be subject to enforcement by the parties herein
pursuant to Code of Civil Procedure Section 1085, et seq., or by means of a complaint for specific
performance.
4. Within three (3) days of the date of service by the COWlty upon the Challenging Cities
of the fully signed Expedited Rate DeIennination Stipulation, the COWlty and the Challenging Cities
shall jointly make er parte application to the Orange COWlty Superior Court in the Action for the
issuance of the order contained in the Expedited Rate Detennination Stipulation. At such er parte
application, the COWlty and the Challenging Cities shall al~o seek to confirm with the Orange COWlt)'
Execution Copy 11
ie,' "\
VJ
Superior Court the briefing schedule, and request a hearing date in accordance with the procedures set
forth in this Section 4.2(H).
5. Within ten (10) days of the date of service by the COuniy upon the Challenging Cities
of the answer in the Expedited Rate Detennination, the Challenging Cities shall file \.ith the court and
l<-'fSonallyserve upon the County the Challenging Cities' opening brief and the Record in the Expedited Rate
Determination. The opening brief shall not exceed 15 pages in length. The Record shall consist of,
and be limited to, the record of the proceedings before the Board of Supervisors with respect to the adjustment
of the Contract Rate, including but not limited to the County Report and the City Report prepared
by each or any of the Challenging Cities pursuant to Section 4.2(G), any materials filed or lodged
with the Board of Supervisors and the Orange County Waste Management Commission, the transcript
of the proceedings of the Board of Supervisors meeting and the Orange County Waste Management
Commission, the minutes of the Board of Supervisors and the Orange County Waste Management
Commission meeting, and the resolution and/or other documentation evidencing action by the
Board of Supervisors and the Orange Calmty Waste Management Commission to adjust the Contract Rate
pursuant to this Section 4.2. The record shall also include the most recent reports prepared pursuant
to Sections 4.6 and 4.7. The Expedited Rate Detennination 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 Call1lty shall file and personally serve upon the Challenging Cities the County's opposition brief.
The opposition brief shall not exceed 15 pages in length.7.
Within five (5) days of service by the County upon the Challenging Cities of the opposition
brief, the Challenging Cities may file and personally serve upon the County a rebuttal brief,which
shall not exceed 10 pages in length.8.
The trial of the Expedited Rate Determination shall be conducted as a hearing which shall
be conducted at the date set by the court in the ex parte hearing conducted pursuant to Section 4.
2(H)( 4), or such other date and time ordered by the court. No evidence other than the Record shall be admitted
into evidence or considered at the hearing of the Expedited Rate Determination, and no t...
rimn"lJ' shall be taken. The hearing shall consist of oral argument and responses to inquiries from the court,
as well as the evidence contained in the Record. 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 b;:sedupon the Record. The burden of proof shall be borne by the Challenging
Cities, and the burden of proof shall be the same as with respect to a plaintiff in a damages action
for breach of contract Both parties have participated in the drafting of this Agreement.Accordingly,
nothing set forth in this Agreement shall be interpreted or construed for or against either of
the parties as a consequence of their participation in the drafting of this Agreement.10.
The court shall issue ilS written statement of decision and enter judgment within t.ltirty30)
days of the date of the hearing in the Expedited Rate Determination. The City and the County hereby
waive any and all rights of reconsideration or new trial with respect 10 the court's determination of
any of the issues raised in the Expedited Rate Determination, and the City and the County waive any and
all rights to appeal the judgment or the deIermination of any issue raised in the Expedited Rate Determination.
Execution
Copy 23
c"c";_~'_.'
JII. If
the court determines that any portion of the County's adjusted Contract RaIe which is the
subject of the Expedited Rate Determination was improperly imposed, the County shall, within 30 days of
the date of the statement of decision, reimburse to the City the amount improperly imposed,together with
interest calculated at the highest percentage rate thaI 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 reasonably calculated to provide full reimbursement of the amounts described abo\'e 12. If
for any reason the court does not sign the order contained in the Expedited Rate Determination Stipulation,
the City shall, within 30 days of the court's denial of such requested order,file with
the court and personally serve upon the County a motion for summary judgment and/or motion for judgment
on the pleadings, in accordance with Code of Civil Procedure Section 437 (c) and 438 By executing this
Agreement, the parties hereby stipulate that, in the event that the Challenging Cities file such summary
judgment motion and/or motion for judgment on the pleadings, the Record shall be deemed to
have been incorporated into the complaint and answer filed by the Challenging Cities and the County, and
no evidence outside of the Record is relevant or material to the dispute raised in the Expedited Rate
Determination. The briefmg schedule and hearing on such motion for swnmary 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(H) 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 judgmenton the pleadings which is dispositive of the issues, claims and causes of
action in the complaint filed by the Challenging Cities, the County and the Challenging Cities shall, within
tweDty days folIowing the issuance of the Court's order or decision not to honor the parties'stipulation or
not to hear the parties' motion for summary judgement, make application to the Presiding Judge of
the Orange County Superior Court for an expedited hearing or trial date. The Challenging Cities and
the County shall be bound by all of the requirements and restrictions set forth in Section 4.2(
H) that are not in conflict with this paragraph (13). In this regard, and without limiting the foregoing, the
only evid= to be presented at the bearing or trial shall be the Record, no testimony shall be presented
at the hearing or trial; and both the County and the Challenging Cities waive all rights to a jury
trial, to any reconsideration of the decision of the court, to a new trial after the court renders a decision, and
to any appeal or review of the decision of the court.SECTION 4.
3. RESPONSIBILITY FOR PAYMENT OF THE CONTRACT RATE. (A)Payment bv
City. In the event and to the extent (I) 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 HaulIer,
shall have direct responsibility for payment of the Contract Rate, and shall take all such budgetary,appropriation
and other action as may be necessary to provide for the timely payment of the Contract Rate. Such action
may include, depending upon the means authorized by the City to provide for such payment, the le\y and collection
of general or special taxes, the imposition of benefit assessments, or the collection of user fees,genc,
rator charges or other similar impositions for mur.icieal solid waste disF,a:. ::" City shall use best efforts in
a,:cordance with Applicable Law to levy and impose all such ta.xes, assessments, fees or charges, and will lake all
steps, actions and proceedings for the enforcemenI, collection and pa)ment 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 shnU be limited to amounts in the City's Solid Waste Enterprise Fund.
From the Commencement Date to the date of expiration or t~rmination of this Agreement, the obligation Exe\:
ution Copy 24
v
p of
the City to pay the Contract Rate, to the extent the City rather than Franchise Haulers is responsible directly for
payment and provided that the Service Covenant has been complied Vlith, 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) Pavment bv Franchise Haulers With respect to Controllable Waste delivered by
Franchise Haulers other than City municipal collection forces, the obligation to pay the Contract Rate shall rest
wI,th such Franchise Haulers and not with the City and, unless the City has agreed with the County to be
responsible for Franchise Hauler payments, the City shall not be financially responsible for any delay or faIlure
by such Franchise Hauler to pay the Contract Rate or any portion thereof when due. In the event of my such
fallure, the County and the City shall cooperate with each other and use their best efforts to obtain timely
payment. Such efforts by the County may include, as appropriate, requiring cash payments for disposal rights
from such Franchise Hauler and bringing a legal proceeding for payment and damages. Such efforts by the City
may include, as appropriate, legal proceedings to suspend, revoke or terminate the Franchise Hauler's franchise,
permit or license rights.
C) Disoutes. If the City or the Franchise Hauler disputes any amount billed by the County
in any Billing Statement, the City or the Franchise Hauler sha1l nonetheless pay the billed amount and sha1l
provide the County \vith written objection within 30 days of the receipt of such Billing Statement indicating the
anlOunt that is being disputed and providing a1l reasons then known to the City or the Franchise Hauler for any
objection to or disagreement with such amount. If the City or the Franchise Hauler and the County are not able
to resolve su::h dispute within 30 days after the City's or the Franchise Hauler's objection, either party may pursue
appropriate legal remedies.
SECTION 4.4. BILLING OF THE CONTRACT RATE. The County sha1l continue to bill
Contract Rates after July I, 1997, in the same manner as it has customarily billed tipping fees. Subject to the
otller provisions of this Agreement, the County shall have the right to modifY or aIllend such manner of billing
oD. reasonable notice to affected parties.
SECTION 4.5. RESTRICTED RESERVES. For purposes of this Agreement, "Restricted
Rc:serves" means cash and other reserves of the Disposal System which are restricted to specific uses or are
otllerwise being reserved by the County to meet its obligations hereunder throughout the term of the Agreement
with respect to the Disposal System pursuant to any Applicable Law, contract, adopted budget, budgetary policy
of the County with respect to the Disposal System, or other arrangement. Such cash and other reserves are not
required to be deposited in separate accounts or funds in order to constitute "Restricted Reserves" hereunder, and
may be commingled \vith Unrestricted Reserves or other funds of the County attributable to the Disposal System.
Restricted Reserves" shall include, but not be limited to, the follo....ing:
i) reserves for closure of components of the Disposal System to the extent required by
Applicable Law;
ii) 75% of the amount reserved by the County for funding of post closure maintenance and
monitoring \\ith respect to components of the Disposal System (provided, however, that if a Change in
Law occurs which requires the County to separately maintain post closure reserves at levels higher than
75% of the amount then currently maintained by the County, such higher amount shall constitute
Restricted Reserves");
Execution Copy 25
0,"iii)
reserves established to protect the Disposal System against the adverse financial impact of potential
decreases in waste deliveries pursuant to Section 4.2(B);iv)
amounts res~rved 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 oftl1e Agreement reserved to
enable the County to provide disposal services for the Contract Rate during the later years of tl1e Agreement;
vi)
amounts temporaIily held by tl1e County prior to payment to tl1e State or other Governmental
Bodies pursuant to Applicable Law (including any fees or charges payable to the State Integrated
Waste Management Board);vii)
reserves required to meet bond covenaIlts purSUaIlt to fmancing agreements for Disposal System
assets to tl1e extent such amounts must be legally separate and distinct from otl1er reserves identified
in this Section;viii)
security deposits from landfill deferred payment program users; and ix)
amounts held by the County in tl1e Environmental Fund ( provided, however, tl1at such amounts
in tl1e Environmental Fund will be made available and used by tl1e County if required to pay costs
relating to environmental remediation or otl1er related costs).SECTION
4.6. AUDITED FINANCIAL STATEMENTS. The County sha1l annua1ly, on or before
January I each year collllllellCing on January 1, 1998, prepare or cause to be prepared and have on file for inspection
an annual report for the preceding Contract Year, accompanied by a certificate of an independent public
accountant or of tl1e County Auditor and Controller as to the exanlination of the financial statements therein (
describing such statements as fairly presenting tl1e information therein in conformity witl1 generally accepted
accounting principles) relating to tl1e Disposal System, tl1e Disposal Services, and tl1e fiscal activities of
the County Waste Disposal Enterprise Fund, and including statements in reasonable detail of the fmancial condition
of tl1e County Waste Disposal Enterprise Fund as of tl1e end of tl1e Contract Year and revenue and exp<=
es for tl1e Contract Year.SECTION
4.7. ANNUAL UPDATE OF TEN.YEAR FINANCIAL PROJECTION. The County
shall annually, on or before May I of each year, commencing May 1, 1998, 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 tl1e follomng
elements:
1. County Acceptable Waste, in tons;
2. Imported Acceptable Waste, in tons;
3. Revenues and expenditures;
4. Cash fund balances, including all monies in tl1e County Solid Waste Enterprise Fund,
with specific delineation of monies in tl1e Environmental Fund, Rest:icted Rcser\"cs,
Unrestricted Reserves, and all otl1er ftmds of tl1e System.
Exe(:ution Copy 26
I1
j
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 tl1e future fmancial condition of
the Disposal System The County shall cause a copy c:-:he Ten,
Ycar
Financial Projecticn:c be delivered :0 tl1e
City :Vlanager of L~e City no later tl1an ;"lay I of each year, comme:1cing May I. ,1998 EXI:cution Copy
27
0'"
hARTICLE
V BREACH,
ENFORCEMENT AND TERMINA TION SECTION
5.1. BREACH. The parties agree tl1at in tl1e event either party breaches any obligation
under this Agreement or allY representation made by eitl1er party hereunder is untrue in allY material respect,
the other party sha1l have tl1e right to take any action at law or in equity (including actions for injunctive relief,
mandamus and specific performance) it may have to enforce tl1e payment of any amounts due or tl1e performance
of any obligations to be performed hereunder. Neitl1er party shall have tl1e right to terminate this Agreement
except as provided in Section 5.2 and Section 5.3hereof or as otherwise provided in this Agreement.SECTION
5.2. CITY CONVENIENCE TERMINATION. The City shall have tl1e rig.~t to terrninate
this Agreement in its sole discretion, for its convenience and without cause at any time during tl1e Term hereof
upon 90 days' written notice to tl1e County. If tl1e City exercises its rights to terminate tl1e Agreement purSUaIlt
to this Section, the City shall pay the County a termination fee equal to tl1e Contract Rate in effect at the
time of such termination (or any higher rate witl1 respect to which the County has provided notice pursuant to
Section 4.2(G)) multiplied by tl1e number of tons of City Acceptable Waste delivered to tl1e Disposal System during
the preceding twelve months (or, if the City had been in breach of tl1e Waste Disposal Covenant during sueD
prior months, such amount as would have been delivered if tl1e City had complied with the Waste Disposal CovenaIlt),
multiplied by tl1e number of years remaining in tl1e Term of tl1e Agreement.SECTION
5.3. TER.MINAnON, (A) Bv City. Except as expressly provided herein, tl1e City shall
have no right to terminate this Agreement for cause except in tl1e event of tl1e repeated failure or refusal by the
County substantia1ly 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 tl1e City tl1e right to
terminate this Agreement for cause under this subsection unless:I)
The City has given prior written notice to tl1e County stating that a specified failure or refusal
to perform exists which will, unless corrected, constitute a material breach of this Agreement on the
part of the County and which will, in its opinion, give the City tl1e right to terminate this Agreement for
cause under this subsection unless such breach is corrected within a reasonable period of time, alld 2)
The County has neither challenged in an appropriate forum (in accordance with Section 5.
5) tl1e City's conclusion tl1at such failure or refusal to perform has occurred or constitutes a material breach
of tl1is Agreement nor corrected or diligently taken steps to correct such breach \vithin a reasonable
period of time not more tl1an 90 days from tl1e date of tl1e notice given pursUaIlt to clause (1)of
this subsection (but if the County sha1l have diligently taken steps to correct such breach within such reasonable
period of time, tl1e same shall not constitute a breach giving rise to tl1e right of termination for
as long as tl1e County is continuing to take such steps to correct such breach).B)
Bv County. Except as expressly provided herein, tl1e County shall have no right to tenninate
this Agreement for cause except in the event of tl1e repeated failure or refusal by the City substantially to
perform any material obligation under this Agreement unless such failure or refusal is excused by an Uncontrollable
Circumstance; except that no such failure or refusal shall give the County tl1e right to terminate tl1is
Agreement for cause under this subsection unless:I)
The County has given prior written notice to tl1e City stating tl1at a specified failure or refusal
to perform exists which \vill, unless corrected, constitute a material breach of this Agreement on Exc:
cution Copy 28 Revised PJ.ge)
oJ
the
part of the City
and which will, in Its opinion, give the County right to terminate this Agreement for cause under tl1is subsection unless
such breach is corrected within a reasonable period of time, and 2) The City has neitl1er
challenged in an appropriate forum (in accordance witl1 Section 5.5) the County's
conclusionthat such failure or refusal to perform has occurred or constitutes a material breach of this Agreement nor
corrected or diligently taken steps :~ correct such breach within a reasonable period of time not
more than 90 days from tl1e date of tl1e notice given pursUaIlt to clause (I)of tl1is subsection (but if
tl1e City shall have diligently taken steps to correct such breach within such reasonable period of time, tl1e
same shall not constitute a breach giving rise to tl1e right of termination for as long as tl1e
City is continuing to take such steps to correct such breach).SECTION 5.4. NO WAIVERS.
No action of tl1e County or tl1e 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
tl1e otl1er party's compliance witl1 any term or provision of this Agreement. No course of dealing or delay by
tl1e 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 oftl1e County or tl1e City under this Agreement shall preclude any otl1er or
further exercise tl1ereof of the exercise of any other right, power or remedy.SECTION 5.5. FORUM FOR
DISPUTE RESOLUTION. It is tl1e express intention of the parties that all legal actions
and proceedings related to this Agreement or to tl1e Disposal System or to any rights or !Iny relationship between the
parties aIising therefrom sha1l be solely and exclusively initiated and maintained in courts of tl1e State
of California having appropriate jurisdiction.EXI:cution Copy 29
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ARTICLE VI
TERM
SECTION 6.1 EFFECTIVE DATE AND TERM. (A) Initial Term. This Agreement shall
bec:ome effective, shall be in full force and effect and shall be legally binding upon tl1e City and the County from
the Contract Date and shall continue in full force and effect until tl1e tentl1 anniversary of the first day of tl1e
Contract Year following tl1e Contract Year in which the Commencement Date occurs, unless earlier terminated
in olccordance with its terms, in which event tl1e Term shall be deemed to have expired as of tl1e date of such
tennination.
B) Ootion to Renew This Agreement shall be subject to renewal by mutual agreement of
tl1e parties, on or before June 30, 2004, for an additional term often years (tl1e "Renewal Term") on tl1e same
terms and conditions as are applicable during tl1e Initial Term hereof. The City shall give tl1e County written
notice of its irrevocable election to renew this Agreement on or before June 30, 2004. If the parties do not renew
this Agreement by June 30, 2004, tl1e Agreement shall expire on June 30, 2007.
C) Contract Rate Durin!! Renewal Term. In connection with the parties right to renew this
Agreement for an additional ten-year term pursuant to Section 6.1(B), tl1e parties shall, on or before June
30,2004, negotiate an applicable change in tl1e Contract Rate for such renewal term. In determining my
revisions to the Contract Rate to be applicable during any renewal period, in addition to the circumstances described
in Sel:tion 4.2(A), tl1e parties may take into consideration the following paranreters, including but not limited
to:i) . actual cost of
operations;ii) population
growth;iii) increase or decrease in available
tonnage;iv) economic and disposal market conditions in the Southern California
region;v) changes in transportation and
technology;vi) closure and expansion of nearby
landfills;vii) capacity oftl1e Disposal System;
and viii) available
reserves.0) Survival' AccruedRie:hts. The rights and obligations of tl1e parties hereto pursUaIlt 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 hereofsha11 survive tl1e termination or expiration
of this Agreement, md no such termination or expiration shall limit or otherwise affect tl1e respective rights
and oblligations of tl1e parties hereto accrued prior to the date of such termirtation or expiration. At the end of
tl1e Term of this Agreement, all otl1er obligations oftl1e parties shall
terminate.SECTION 6.2. COMMENCEMENT DATE. (A) Oblieations of the Parties Prior to
tl1e Commencement Date. The parties acknowledge tl1at the Disposal Agreements may be executed and
delivered on different dates and tl1at, except as provided in this subsection, neitl1er the County nor the City shall
be obligated to perform its obligations hereunder until tl1e participation tl1reshold provided herein has been met
and the: other conditions to tl1e occurrence of tl1e Commencement Dateha\'e occurred. Prior to the
Commencement Dale, each party hereto shall at itsm\U expense exercise good faitl1 and due diligence and take all steps
within its reasonable control in seeking to satIsfy the conditions to tl1e Commencement Date set forth herein as soon
as rellSonably practicable. The County and the City, each at its own expense, shall cooperatefull\' witl1 each
other and tl1e otl1er Participating Cities in connection witl1 the foregoing
undertaking.Execution Copy 30 Rc';is~dP.1g:
1(",I
J.o'
0',0;:,:,.."._"";.:.;..)0......... '~.'_,-,'" ....,. ","..B) Condition
to the Commencement Date. The Commencement Date for tl1e Agreement shall be
the date on which the Aggregate Estimated Annual Tonnage attributable to Participating Cities, Transfer Stations and
Independent Haulers which have executed and delivered Disposal Agreements shall be 1,842,000 tons per
year (using the amounts attributed to such Cities, Independent Haulers or Transfer Stations in Appendix I).C)
Satisfaction
of Condition and Commencement Date. Each party sha1l give tl1e otl1er prompt notice
VIhen the condition to the Commencement Date has been satisfied. Upon tl1e satisfaction or waiver of such
Commencement Date condition, tl1e County shall give written notice tl1ereof to the cities which have th,::retofore
executed Disposal Agreements. The parties shall thereupon hold a formal closing acknowledging tl1e satisfaction or
waiver oftl1e condition to tl1e Commencement Date, certifying that tl1e Commencement Date has occurred and
designating the Participating Cities. Original or certified copies of all of the documents or instruments constituting
or evidencing satisfaction of tl1e Commencement Date conditions sha1l be furnished to each party
prior to or on tl1e Commencement Date.D) Newlv
Incoroorated Cities. Any city within Orange County which becomes incorporated after the
Commencement Date sha1l upon request be offered tl1e opportunity by tl1e County to become a Participating City.
If any such City executes a Disposal Agreement and meets tl1e applicable condition provided in subsection
6.2(B) hereofwithin180days following the date of its municipal incorporation, tl1en such City shall.bl: entitled
to execute a Waste Disposal Agreement on substantia1ly the same terms and cOnditions as this Agreement (including
tl1e Contract Rate), notwithstanding tl1e limitations contained in Section 3.6(B).E) Failure
of Condition. Ifby March 30,1997, or such later date as tl1e County may agree,the condition
to tl1e 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 sha1l be liable to tl1e other for the temlination of
this Agreement pursUaIlt to this subsection, and each of tl1e parties sha1l bear its respective costs aIld expenses
incurred in seeking to satisfy tl1e condition to tl1e Commencement Date.Execution Copy
31 Revised Pallc)
e.",J.-v
ARTICLE Vll
GENERAL
PROVISIONS SECTION
7.1 '
OPERATION AND MAINTENANCE OF THE DISPOSAL SYSTEM, The COImty, at its
cost and expense tl1rough the County Solid Waste Enterprise Fund, shall at all times operate, or caused to be
operated, tl1e Disposal System in accordance witl1 Applicable Law and tl1e operating rules and regulations of tl1e
Department.SECTION 7,2.
UNCONTROLLABLE CIRCUMSTANCES GENERALLY A) Performance Excused.
Except as otherwise specifically provided in this Agreement, neitl1er tl1e County nor the City shall
be liable to tl1e otl1er for any failure or delay in tl1e performance of any obligation under this Agreement (otl1er tl1an
any payment at tl1e time due and O\ving) to tl1e extent such failure or delay is due to tl1e occurrence of all
Uncontrollable Circumstance.B) Notice. Mitil!
lltiOll The partyexperiencing an Uncontrollable Circumstance shall notify the other party
by telecommunication or telephone and in writing, on or promptly after the date tl1e party elq:eriencing such
Uncontrollable Circumstance first knew of the commencement thereof, followed within 15 days by :1 written
description of (1) tl1e Uncontrollable Circumstance aIld tl1e cause thereof (to the extent known), (2)the date the
Uncontrollable Circumstance began and tl1e cause tl1ereof, its estinlated duration, tl1e estimated time during which tl1e
performance oC"such party's obligations hereunder will be delayed, (3) the estinlated amount,if any, by
which the Contract Rate may need to be adjusted as a result of such Uncontrollable Circumstance, (4)its estimated impact
on the otl1er obligations of such party under this Agreement aIld (5) potential mitigating actions which might
be taken by the County or City and any areas where costs might be reduced and the approximate amount of
such cost reductions. Each party sha1l provide prompt written notice of the cessation of such Uncontrollable CircunlStance.
Whenever such act, event or condition sha1l occur, the party claiming to be adversely affected thereby
shall, as promptly as reasonably possible, use its best efforts to elim;nat" the cause therefor, reduce costs
and res= performance under this Agreement. In addition, with respect to Changes in Law, the County
shall diligently contest any such changes the imposition of which would have a material adverse impact 00 the
Disposa1 System. While the delay continues, the County or City sha1l give notice to the other party,before the first
day of each succeeding month, updating the information previously submitted.C) Imoact on
Contract Rate. If and to the extent that Uncontrollable Circumstances interfere with, delay
or increase tl1e cost to the County of meeting its obligations hereunder aIld providing Disposal Services to
the Participating Cities in accordance herC\vith, the Countyshall be entitled to an increase in lbc Contract
Rate as provided in Section 4.2 herein or an extension in tl1e schedule for performance equal to the anrountofthe increased
cost or the time lost as a result tl1ereof. 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 tl1rough tl1e mitigating measures undertaken by the County PUJrsuant to subsection
7.2(B) hereof upon tl1e occurrence of an Uncontrollable Circumstance shall be reflected in ,1 reduction
of the amount by which the Contract Rate would have otl1erwise been increased or shall sen'e to reduce tl1e Contract
Rate to reflect such mitigation measures, as applicable.SECTION 7.3.
INDEMNIFICA nON. To the extent pertT'tted by law. the County agrees that,it will protect,
indemnify, defend and hold harmless tl1e City from and against all Loss-and-Expense aIising from the:
City's activity as an "arranger" (for purposes of and as such term is defmed under CERCLA or comparable state
statutes) of municipal solid waste disposal pursuant to this Agreement. In tl1e event the City shall determine that
because of conflict or any otl1er reason tl1at it wishes to be defended by legal counsel other than the legal counsel
provided by tl1e County, tl1e cost of providing such legal counsel shall be tl1e City's sole responsibility The
City acknowledges the County's legitimate interest in actively participating in any E~:
ecution Copy 32 Revise.:i ~)j,gc)
0.
defense,
litigation
or settlement whether the County or tl1e 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 tl1e Contract Rate as provided in subsection 42(A) herein. The County shall not, however,be required
to indemnify or defend tl1e City from alld against all Loss-and-Expense aIising from any willf~l.
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 tl1e specific provisions of this Section). The parties acknowledge
th.1t this subsection is not intended to and does not create allY obligation on tl1e part of the County to provide any
indemnifIcation or defense to any Franchise Hauler, whether franchised or not, or any Independent Hauler or
Transfer Station, under any circumstances. The City acknowledges tl1e County's legitimate interest in actively
participating in any defense, litigation or settlement, and shall, as a condition to this indemnity, coordinate fully
with tl1e County in tl1e defense.
SECTION 7.4. RELATIONSHIP OF THE PARTIES. Neither party to this Agreement shall
have any responsibility whatsoever witl1 respect to services provided or contractual obligations or liabilities
assumed by tl1e otl1er party hereto, whether accrued, absolute, contingent or otl1erwise, or whetl1er due or to
be::ome due. The County is an independent contractor oftl1e City alld nothing in this Agreement sha1l be deemed
to constitute either party a partner, agent or legal representative of the other party or to create any fiduciary
relationship between tl1e parties. .
SECTION 7.5. LIMITED RECOURSE. (A) To tl1e City. Except in the event the City has
not estal1lisbed or maintained a City Solid Waste Enterprise Fund, no recourse sha1l be had to tl1e general finlds
or general credit of the City for the payment of any amount due tl1e County hereunder, or the performance of any
obligation incurred hereunder, including any Loss-and-Expense of any nature wing from the
performance or non-perfonnaIlce of the City's obligations hereunder. The sole recourse of the County for a1l
such anlOunts sha1l be to the funds held in any such Solid Waste Enterprise Fund. All amounts held in any
City Solid Waste Erll.erprise Fund sha1l be held for the uses permitted and required thereby, and no such
amounts sha1l constitute pmperty of the County. The City sha1l make adequate provision in the ~tlmini.tration of any
City Solid Waste Enterprise Fund for tl1e payment of any amount or tl1e performance of any obligation which
may
be due hereunder.B) To tl1e County. No recourse shall be had to tl1e general finlds or general
credit of tl1e CC)unty for tl1e payment of any aIllount due tl1e City hereunder, or the performance of
allY obligation incurred hereunder, including any Loss-and-Expense of any nature aIising from
tl1e performance or non-performance of th,: County's obligations hereunder. The sole recourse of the City for a1l such amounts
shall be to tl1e finlds held in tl1e County Solid Waste Enterprise Fund in accordaIlce \vitl1 the terms
of this Agreement. All aIllounts held in the County Solid Waste Enterprise Fund shall be held for thc uses permitted
and required thereby, and no such amounts shall constitute property of tl1e City. The County shall
make adequate provision in the administration of the County Solid Waste Enterprise Fund for the payment of any amount
or tl1e performallce of any
obligation which may be due hereunder SECTION7.6 PRE-FXISTING RIGHTS
AND LL<\BILlTIES. Notl1ing in iliis Agreement is intended to affect, release, waive or modify any rights, obligations
or liabilities which any party hereto may Illlve to or against the other party as of the Contract Date relating to the
disposal of waste in the
Disposal System or any otl1er related matter.SECTION 7.7. NO VESTED RIGHTS. The City
shall not acquire any vested property, license OJ: other rights in the
Disposal System by reason of this
17\
SECTION 78. LIABILITY FOR COLLECTION. TRANSPORTATION AND
PROCESSING. Any liability incurred by the City as a result of collecting Acceptab;e Waste or processmg it for
diversion from landfill, or as a result of causing, franchising, permitting, licensing, autl10rizing or arranging any
oflne foregoing, shall be its sole liability, except as expressly otherwise provided herein.
SECTION 7.9. NO CONSEOUENTIAL OR PUNITIVE DA...'vlAGES. In no event shall either
party hereto be liable to tl1e other or obligated in any manner to pay to tl1e otl1er any special, incidental,
consequential, punitive or similar damages based upon claims aIising out of or in connection witl1 tl1e
performance or non-perfonnance 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,WaITanty or otl1er legal
theory.SECTION 7.10. AMENDMENTS. Neitl1er this Agreement nor any provision hereof may
be changed, modified, amended or waived except by written agreement duly autl10rized and executed by botl1
parties.SECTION7.11. NOTICE OF LlTIGA TION. Each party sha1l deliver written notice to the
otl1er of llIll' Legal Proceeding to which it is a party and which questions the validity or enforceability of this
Agreement executed by tl1e City or tl1e 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 autl10rized by law sha1l pass, make, do, execute, acknowledge and deliver any and every
such further resolutions, acts, deeds, conveyances, inslrunlents, assignments, transfers and assurances as may
be necessary or reasonably requested by the otl1er in order to give full effect to this
Agreement.SECTION7.13. ASSIGNMENT OF AGREEMENT. (A) Assil!lllIlent Neither this
Agreement nor any of the rights or obligations hereunder may be assigned by either party hereto without the prior
written consent of the otl1er party, which may be withheld in tl1e otl1er party's sole discretion. Notwithstanding
thefon:going, that either party may assign this Agreement to anotl1er public entity, subject to the reasonable
consent of the otha party. In such circumstances the party not requesting tl1e assignment sha1l have the right to
demand assurances of the financial, technical and legal ability of the proposed assignee to undertake tl1e
responsibilities and obligations of the assigning
party.B) Sale. The County shall not enter into negotiations \vitl1 respect to the sale of
tl1e Disposal System prior to June 30, 2004. In addition, the County sha1l not enter into allY agreement for the
sale of the Disposal System which provides for an effective date for such sale prior to tl1e expiration or
termination of Ibis
Agreement.SECTION 7.14. INTEREST ON OVERDUE OBUGA TIONS. Except as otherwise
provided herein, aU aInounts due hereunder, whetl1er as damages, credits, revenue or reimbursements, that are not
paid when due shall bear interest at the Overdue Rate on tl1e amount outstanding from time to time, on tl1e basis
of a 365-day year, counting the actual number of days elapsed, and all such interest accrued at any time shall,
to tl1e extent permitted by Applicable L~w, De deemed added to tl1e amount due,
as accrued.SECTION 7.15. BINDING EFFECT This Agreement shall bind and inure to tl1e
benefit oftl1e parties hereto and any successor or assignee acquiring an interest hereunder consistent \vitl1 the
provisions of Sel:tion 7.
13 hereof.Exc:cution
J
I
I
i
i
I
SECTION 7.16. NOTICES. Any notice or communication required or permitted hereunder shall
lx: in writing and sufficiently given if delivered in person or sent by certified or registered mail, postage prepaid,
to tl1e notice address of the respective parties set forth on tl1e cover page of tl1is Agreement. Changes in the
respective addresses to which such notices may be directed may be made from time to time by any party by notIce
to the otl1er party
Execution Copy 35
e.'.'~.
IN WITNESS WHEREOF, COUNTY and CITfES have caused thIS Agreement to be
executcd by their duly authorized offIcers or representatives as of the day and ycar first above wntten.
COl"TY OF OR.-'.NGE Dat,~
v/c~)By'\... J..~ I:- -<- <-.....
1-.., "-Director, [ntegratedWaste Management Department APPROVED
AS TO FORM:COUNTY COUNSEL
ORANGE COUNTY, CALIFORNIA th)
By'Date:
Execution Copy 36
J)1
J WITNESS WHEREOF, COUNTY and CrTIES Im.c causcd thiS Agrcemcnt to bc cxccuted
by thclr duly authorizcd officcrs or representatives as of thc day and \ car first above \\Titten
COi,-\
T'(
OF OR_~.\G~D:
JtcB\Chairman.
Board of Supcrnsors SIGNED
A:--iDCERTIFIED TH.~ T A COPY OF THIS
CO\TRACT HAS BEEN DELIVERED TO THE
CHAIR.vIA\ OF THE BO_~RD Date
By DARLENE
1. BLOOM Clerk
of the Board of Supervisors Of
Orange County, Califomi:JCITY
OF ORANGE Dal:
e By T Mayor /'APPROVED
AS
TO FORM:COUNTY COUNSEL
ORANGE COUNTY,
CALIFOIU-llA oanne
APPROVeD
AS TO FORM 1697
DATE:By
BY:
JJ'
l~""-CITY ATTOR:'i=YDateATTEST:
By:kC~ _~
7(.,
3 Exc:c:.
mon Copy36
o
APPENDIX 1
ESTIMATED ANNUAL TONNAGE
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G~?;1IJAPPENDIX
2 CUMULATIVE
TONNAGE TARGETS
f.':-.v..,
J y'APPENDIX
2 Cumulative
Tonnage Target to be Used for
Purposes of Section 4.2 (8)Fiscal
Year Tannage Cumulative Tannage FY
1997-98 I 2.277' 2,277
FY 1998-99 I 2,134 : 4.
411 FY 1999-20001 2,007
6,418 FY 2000-01 . 2,
025 ; 8.443 FY 2001-02 i
2,042! 10,485 FY 2002-03 I
2,060 I 12,545 FY 2003-04
I 2,0791 14,624 I
FY 2004-05 : 2,096 ; 16,720
FY 2005-06 I 2,1111 18,
831 FY 2006-07 : 2.128
i 20,959 Nate:
Tons are expressed in thousands.
Annual Impartation Tonnage Target to
be
Used for
Purposes of Sections
4.2 (C)ImpartFiscal
Tonnage Year Year Contracted 1
11997-98 I 1,428
2 11998-99 11,
428 3 11999-2000I1,
428 4 \2000-01
I 1,4285
i2001-02 I 1,428
I 6 12002-031,
428 7 12003-04 , 1,
428 8 12004-05 I 1,
1
APPENDIX 3
FOR.c\1 OF HAULER ACIGoIOWLEDGMENT
vi
FRANCHISE HAULER ACKNOWLEDGMENT
THIS FRANCHISE HAULER ACKNOWLEDGMENT, dated as of
the .'Acknowledgment"), by and between the City of
the "Franchise Hauler").
1997
tte .'City') and
WITNESSETH
WHEREAS, the City and the Hauler have heretofore entered into an agreement entitled _
dated as of (the "Franchise"); and
WHEREAS, the Franchise provides for the collection and disposal of certain municipal solid
waste as described therein ("Franchise Waste") generated within the City; and
WHEREAS, Orange County (the "County") owns, manages and operates a sanitary landftll
disposal system for municipal solid waste generated within the County; and
WHEREAS, the City and the County have heretofore entered into a Waste Disposal
Agreement. dated as of , 1997 (the "Disposal Agreement") determining tl1at the execution of
such Disposal Agreement will serve the public health, safety and welfare of the residents of the City and
Cmmty, by tI1.inrnining public ownership and stewardship over the Orange County LandfiJl Disposal System
thl: "Disposal System"); and
WHEREAS, under the Disposal Agreement, the County has agreed to provide long-
term disposal of a1l municipal solid waste generated within the City and the City has agreed to exercise all
legal,and contractual power which it possesses from time to time to deliver or cause the delivery of such waste
to the Disposal System;
and WHEREAS, the provisions of the Waste Disposal Agreement which guarantee capacity
for tl1e long term disposal of waste at specified rates generated in the City provide significant benefits to
the
Hauler;WHEREAS, notwithstaOOing any Franchise provisions to the contrary, the Franchise
Hauler explicitly acknowledges the aforementioned benefits to the City, the County and the 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 Hauler will be entitled to the cenefIts of the Waste Disposal Agreement and
to assure conformity with the waste delivery obligations which have been agreed to by the City under the
Disposal Agreement through the delivery of waste by the Franchise Hauler to the Disposal System;
ill
r~:\
J
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 A ~reement.
NOW, THEREFORE, in consideration of the premises and for other good and valuable
considl:ration, the receipt and sufficiency of which is hereby ack.r:owledged, the parties hereto, intending w
be legally bound hereby, agree as follows:
1.
Disposal Agreement.
Capitalized terms used and not otherwise defmed herein are used as defmed in the
2. The Franchise Hauler hereby waives any right which it may possess under applicable
law to contest on aIlY 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) tl1e enforceability against the County or the City of the Disposal Agreemem, or Ie)
the right, power or autl10rity of the City to deliver or cause the delivery of all Controllable Waste to the
Designated Disposal Facility in accordance with this Acknowledgment.
3. The City md the Franchise Hauler each hereby represent that this Acknowledgment
has been duly authorized'by all necessary action of their respective governing bodies.
4. The Franchise Hauler shall deliver or cause to be delivered all Controllable Waste
including a1l residue from the processing by any means, wherever conducted, of Controllable Waste), to me
Disposal System, and sha1l otherwise assist the City in complying with its obligations under tl1e Waste Disposal
Covenant in Section 3.1 of the Disposal Agreement.
5. The Franchise Hauler shall not haul Controllable Waste to any materials recovery
facili~I, composting facility, intermediate processing facility, recycling center, transfer station or other waste
haIxIling or mmagement facility unless the contract or other agreement or arrangement between me Franchise
Hauler md me operator of such facility is sufficient in the opinion of me County to assure that the Residue
from such facility constituting City Acceptable Waste (or Tonnage equivalencies) md the City Acceptable
Waste: transferred by such facility shall be delivered to the Designated Disposal Facility in compliance with
the Waste Disposal Covenant,
6. The Franchise Hauler shall pay the Contract Rate inlposed 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
explic:idy given the Franchise Hauler in the Franchise to recycle City Acceptable Waste, except as provided
in paragraph 5 above with respect to Residue from any such recycling operations.
8. The obligations of the Franchise Hauler under this Acknowledgment shall apply
notwithstanding any provision of the Franchise which may connict herewith.
9. This Acknowledgment may be enforced by the City by any available legal means.
In any enforcement action by the City, the burden of proof shall be on the Franchise Hauler to demonstrate
compliance herewith.
1
j 10. This
Acknowledgment shall be in full force and effect and shall be legally binding upon the
City and Frmchise 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 [his
Acknowledgment, and shan be entitled to independently enforce the obligations of the Hauler hereunder.3
0-IN WITNESS
WHEREOF. the parties have caused this Acknowledgment (0 be executed by their duly
authorized officers or representatives as of _ day of , [997.CITY OF
Signawre:Printed )
iame:
Title:Franchise
Hauler)
Signature:Printed
Name:
Title:4