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Contract - Orange County - 2009-07-22 i WASTE DISPOSAL AGREEMENT Between THE COUNTY OF ORANGE,CALIFORNIA and the COSTA MESA SANITARY DISTRICT Dated 7/214 2009 County Authorization Date: Sanitary District Authorization Date: March 24,2009 June 23, 2009 County Notice Address: Sanitary District Notice Address. Director Clerk of the District OCWaste&Recycling Costa Mesa Sanitary District 300 N. Flower Street,Suite 400 628 W 19th Street Santa Ana,CA 92703 Costa Mesa CA 92627 Sa nary District Execuu Copy t, TABLE OF CONTENTS Pug ARTICLE I DEFINITIONS AND INTERPRETATION Section I 1 DEFINITIONS .2 Section 12 INTERPRETATION 7 ARTICLE II REPRESENTATIONS AND WARRANTIES Section 2.1 REPRESENTATIONS AND WARRANTIES OF THE CITY 8 Section 2.2 REPRESENTATIONS AND WARRANTIES OF THE COUNTY 9 ARTICLE III DELIVERY AND ACCEPTANCE OF WASTE AND PROVISION OF DISPOSAL SERVICE Section 3.1 DELIVERY OF WASTE. 9 Section 3.2 PROVISION OF DISPOSAL SERVICES BY THE COUNTY I I Section 3.3 COUNTY RIGHT TO REFUSE WASTE. 12 Section 3 4 UNINCORPORATED AREA ACCEPTABLE WASTE 13 Section 3.5 MISCELLANEOUS OPERATIONAL MATTERS. 14 Section 3.6 OTHER USERS OF THE DISPOSAL SYSTEM. 14 Section 3.7 COUNTY PROVISION OF WASTE DIVERSION SERVICES. 15 ARTICLE IV CONTRACT RATE Section 4.1 CHARGING AND SECURING PAYMENT OF CONTRACT RATE 15 Section 4.2 CONTRACT RATE. 15 Section 4.3 RESPONSIBILITY FOR PAYMENT OF THE CONTRACT RATE. .21 Section 4.4 BILLING OF THE CONTRACT RATE 21 Section 4.5 RESTRICTED RESERVES. 21 Section 4.6 AUDITED FINANCIAL STATEMENTS. .22 Section 4.7 ANNUAL UPDATE OF TEN-YEAR FINANCIAL PROJECTION 22 ARTICLE V BREACH, ENFORCEMENT AND TERMINATION Section 5.1 BREACH .23 Section 5.2 CITY CONVENIENCE TERMINATION .23 Section 5.3 TERMINATION. .23 Section 5.4 NO WAIVERS. 24 Section 5.5 FORUM FOR DISPUTE RESOLUTION .24 ARTICLE VI TERM Section 6.1 EFFECTIVE DATE AND TERM. .24 Section 6.2 COMM ENCEM ENT DATE. .25 Sa Mary Distncl Ex un Copy ARTICLE VII GENERAL PROVISIONS Section 7 1 OPERATION AND MAINTENANCE OF THE DISPOSAL SYSTEM .26 Section 7.2 UNCONTROLLABLE CIRCUMSTANCES GENERALLY .26 Section 7 3 INDEMNIFICATION. .27 Section 7 4 RELATIONSHIP OF THE PARTIES .27 Section 7 5 LIMITED RECOURSE, .27 Section 7.6 PRE-EXISTING RIGHTS AND LIABILITIES .27 Section 7 7 NO VESTED RIGHTS .28 Section 7.8 LIABILITY FOR COLLECTION,TRANSPORTATION AND PROCESSING .28 Section 7.9 NO CONSEQUENTIAL OR PUNITIVE DAMAGES .28 Section 7 I0 AMENDMENTS .28 Section 7 1 I NOTICE OF LITIGATION 28 Section 7 12 FURTHER ASSURANCES .28 Section 7 13 ASSIGNMENT OF AGREEMENT .28 Section 7 14 INTEREST ON OVERDUE OBLIGATIONS 28 Section 7 15 BINDING EFFECT 28 Section 7 16 NOTICES. .28 APPENDIX 1 ESTIMATED ANNUAL TONNAGE APPENDIX 2 CUMULATIVE TONNAGE TARGETS APPENDIX 3 CUMULATIVE CAPITAL COSTS APPENDIX 4 FORM OF HAULER ACKNOWLEDGEMENT ii Sa nary Dislr et Ex utt Copy WASTE DISPOSAL AGREEMENT THIS WASTE DISPOSAL AGREEMENT is made and dated as of the date indicated on the cover page hereof between the County of Orange. a political subdivision of the State of California(the 'County'), and the City designated on the cover page of this Agreement,a general law or charter city and political subdivision of the State of California(the 'City''). RECITALS The County owns,manages and operates a sanitary landfill system for the disposal of municipal solid waste generated by the cities and the unincorporated area within the County (the 'Disposal System"). The Disposal System includes three active landfills and four regional household hazardous waste collection centers. The Disposal System is used for the disposal of municipal solid waste which is not reused, recycled or otherwise diverted from landfill disposal, pursuant to the California Integrated Waste Management Act of 1989 (Division 30 of the California Public Resources Cods)(the Act"). The City in the exercise of its police power and its powers under the Act, has entered into a franchise or other agreement with or issued permits or licenses to one or more private haulers for the collection and disposal of municipal solid waste generated within the City A significant portion of municipal solid waste generated within the City historically has been and currently is delivered by such hauler or haulers to the County for disposal in the Disposal System. In 1997 the City and the County entered in a waste disposal agreement(the 'Original WDA'),pursuant to which the County agreed to provide disposal capacity for waste generated in the City and the City agreed to deliver or cause the delivery of waste generated in the City to the Disposal System, as more specifically set forth in, and subject to the terms and conditions of,the Original WDA. The Original WDA, as amended,will expire by its terms on June 30,2010,unless the City and the County agree to renew the Original WDA. The City and the County desire to enter into this agreement to extend, amend and restate the Original WDA,on the terms and conditions set forth herein. The County and City acknowledge that the Original WDA shall remain in full force and effect until the Commencement Date. The City has determined that the execution of this Agreement by the City will serve the public health, safety and welfare of the City by providing greater disposal rate stability more predictable and reliable long-term disposal service,and the continuation of sound environmental management. The County has determined that the execution by the County of this Agreement will serve the public health, safety and welfare by providing a more stable, predictable and reliable supply of municipal solid waste and the resulting service payment revenue to the Disposal System,thereby enabling the County to plan,manage,operate and finance improvements to the Disposal System on a more prudent and sound long term,businesslike basis consistent with its obligations to the State and the holders of obligations secured by its Disposal System. Official action approving this Agreement and determining it to be in the public interest and authorizing its execution and delivery was duly taken by the County on the County authorization date indicated on the cover page hereof. Official action approving this Agreement and determining it to be in the public interest and authorizing its execution and delivery was duly taken by the City on the City authorization date indicated on the cover page hereof. It is,therefore,agreed as follows: Sa itary District Exacta] Copy ARTICLE 1 DEFINITIONS AND INTERPRETATION SECTION I I DEFINITIONS. As used in this Agreement, the following terms shall have the meanings set forth below Acceptable Waste means all garbage, refuse, rubbish and other materials and substances discarded or rejected as being spent, useless, worthless or in excess to the owners at the time of such discard or rejection and which are normally disposed of by or collected from residential (single family and multi-family), commercial, industrial, governmental and institutional establishments and which are acceptable at Class III landfills under Applicable Law Act' means the California Integrated Waste Management Act of 1989 (Division 30 of the California Public Resources Code),as amended,supplemented,superseded and replaced from time to time. Agreement' means this Waste Disposal Agreement between the County and the City as the same may be amended or modified from time to time in accordance herewith. Appendix means an appendix to this Agreement, as the same may be amended or modified from time to time in accordance with the terms hereof Applicable Law means the Act, the Orange County Code, CERCLA, RCRA, CEQA, any Legal Entitlement and any federal or state rule,regulation,requirement,guideline,permit,action,determination or order of any Governmental Body having jurisdiction, applicable from time to time to the siting, design, permitting, acquisition, construction, equipping, financing, ownership, possession, operation or maintenance of the Disposal System, the transfer,handling, transportation and disposal of Acceptable Waste, Unacceptable Waste, or any other transaction or matter contemplated hereby (including any of the foregoing which concern health, safety fire, environmental protection,mitigation monitoring plans and building codes). 'Board' means the California Integrated Waste Management Board. 'Capital Costs means all costs of the Disposal System that are classified as capital costs for purposes of the budget of the Department in accordance with procedures established by the County of Orange Auditor- Controller in compliance with the California State Controller's Manual, including but not limited to all of the categories of costs of the DispOsal System reported as 'Buildings and Improvements, and Infrastructure (Object Code 4200) or 'Equipment' (Object Code 4000) in the County of Orange — Chart of Accounts, or any successor accounting or reporting system utilized by the County 'CEQA means the California Environmental Quality Act, codified at Cal. Pub. Res. Code Section 21000 et seq. as amended or superseded,and the regulations promulgated thereunder. 'CERCLA means the Comprehensive Environmental Response, Compensation and Liability Act, 42 U.S.C.A. Section 9601 et seq. as amended or superseded,and the regulations promulgated thereunder. 'Change in Law means any of the following events or conditions which has a material and adverse effect on the performance by the parties of their respective obligations under this Agreement (except for payment obligations), or on the siting, design, permitting, acquisition, construction, equipping, financing, ownership, possession,operation or maintenance of the Disposal System or other matters to which Applicable Law applies: (I) the enactment, adoption,promulgation, issuance, material modification or written change in administrative or judicial interpretation on or after the Commencement Date of any Applicable Law (other than Applicable Law enacted by the County); (2) the order or judgment of any Governmental Body(other than the County), on or after the Commencement Date, to the extent such order or judgment is not the result of willful or negligent action, error or 7 Sa nary Distnct Ex utt Copy ✓ omission or lack of reasonable diligence of the County or of the City whichever is asserting the occurrence of a Change in Law provided,however, that the contesting in good faith or the failure in good faith to contest any such order or judgment shall not constitute or be construed as such a willful or negligent action,error or omission or lack of reasonable diligence;or 13) the denial of an application for, delay in the review issuance or renewal of, or suspension, termination, interruption, imposition of a new or more stringent condition in connection with the issuance,renewal or failure of issuance or renewal on or after the Commencement Date of any Legal Entitlement to the extent that such denial, delay suspension, termination, interruption, imposition or failure materially and adversely interferes with the performance of this Agreement, if and to the extent that such denial,delay suspension, termination, interruption, imposition or failure is not the result of willful or negligent action, error or omission or a lack of reasonable diligence of the County or of the City whichever is asserting the occurrence of a Change in Law' provided, however that the contesting in good faith or the failure in good faith to contest any such denial, delay suspension, temunation, interruption, imposition or failure shall not be construed as such a willful or negligent action,error or omission or lack of reasonable diligence. A 'Change in Law shall inelu&but not be limited to any new or revised requirements relating to the funding or provision of disposal services, including but not limited to any regulations for disposal operations or activities associated with the renicdiation, closure, funding or monitoring of closed sites with respect to facilities compnsing the Disposal System, or facilities which the County previously utilized to provide waste disposal, transfer recycling,processing or other waste related activities. 'City means, as applicable, the city or Sanitary District designated on the cover page of this Agreement and party to this Agreement. 'City Acceptable Waste' means all Acceptable Waste which was originally discarded by the first generator thereof within the geographical limits of the City and Residue from the foregoing wherever produced, whether within or outside the City (or Tonnage equivalencies of such Residues, as and to the extent provided in subsection 3.1(C)hereof). 'Commencement Date means the date on which the obligations of the parties hereto commence, established as provided in Section 6.2(B)hereof. 'Contract Date means the first date on which this Agreement has been executed by both parties hereto. 'Contract Rate has the meaning specified in Section 42 hereof. 'Contract Year means the fiscal year commencing on July I in any year and ending on June 30 of the following year. 'Controllable Waste means all City Acceptable Waste with respect to which the City has the legal or contractual ability to determine the disposal location therefor and which is. (1) Non-Recycled City Acceptable Waste; (2) not generated from the operations of the Governmental Bodies which, under Applicable Law have the independent power to arrange for the disposal of the waste they generate,and (3) collected and hauled by Franchise Haulers. 'County means the County of Orange, a political subdivision of the State of California and party to this Agreement. 'County Plan means the integrated waste management plan of the County approved by the Board pursuant to the Act as in effect from time to time. 3 Sal any Dictnct Ex on Copy 'County Acceptable Waste means Acceptable Waste generated in the County 'County OC Waste & Recycling Enterprise Fund' means the waste management enterprise fund established and managed by the County pursuant to Section 25261 of the Government Code separate from its other funds and accounts for receipts and disbursements in connection with the Disposal System. 'County-wide Recycling Services has the meaning set forth in subsection 3 7(A)hereof. 'Cumulative Tonnage Target' for any given Contract Ycar means the amount specified in Appendix 2 hereto with respect to such Contract Year. 'Department' means OC Waste & Recycling, and any agency department or other Governmental Body which succeeds to the duties and powers thereof. 'Disposal Agreements means each of the waste disposal agreements entered into between the County and any city within the County Sanitary District or operator of any Transfer Station located in the County in accordance herewith. 'Disposal Services means the solid waste disposal services to be provided by the County pursuant to the Service Covenant and otherwise hereunder. 'Disposal System means the Orange County Waste Disposal System which includes solid waste disposal operations at three active landfills (Olinda Alpha, Frank R. Bowerman and Prima Deshecha); four regional Household Hazardous Waste Collection Centers, as well as services, such as monitoring and other-activities, at closed refuse stations formerly operated by the County as appropriate under Applicable Law 'Environmental Fund' means the fund or funds held by the County to pay unanticipated costs of environmental mitigation.remediation or liability 'Franchise Hauler means any hauler or collector who provides Acceptable Waste collection services within the City pursuant to, or under authority granted by a permit,contract. franchise or other agreement with the City The term Franchise Hauler includes the City itself if Acceptable Waste collection and transportation services are provided directly by City operated municipal collection service. 'Governmental Body' means any federal, State, county city or regional legislative, executive,Judicial or other governmental board,agency authority commission,administration,court or other body or any officer thereof acting within the scope of his or her authority 'Hazardous Substance' has the meaning given such term in CERCLA, the Carpenter-Presley-Tanner Hazardous Substance Account Act(California Health and Safety Code Section 25300 et seq.), and Titles 22 and 26 of the 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 reversible, illness, or pose a substantial threat or potential hazard to human health or the environment,or any waste which is defined or regulated as a hazardous waste, toxic substance,hazardous chemical substance or mixture,or asbestos under Applicable Law as amended from time to time including, but not limited to: (1)the Resource Conservation and Recovery Act and the regulations contained in 40 CFR Parts 260-281 (2)the Toxic Substances Control Act(15 U.S.C. Sections 2601 et seq.) and the regulations contained in 40 CFR Parts 761 766; (3)the California Health and Safety Code, Section 25117 (West 1992 & Supp. 1996); (4)the California Public Resources Code, Section 40141 (West 1996); and(5)future additional or substitute Applicable Law pertaining to the identification,treatment, storage or disposal of toxic substances or hazardous wastes; or(b)radioactive materials which are source, special nuclear or by-product material as defined by the Atomic Energy Act of 1954 (42 U.S.C. Section 2011 et seq.) and thL regulations contained in 10 CFR Part 40. 4 Sa iiary District Execun Copy 'Imported Acceptable Waste means Acceptable Waste that is generated outside of the geographical boundaries of the County and delivered to the Disposal System. 'Independent Haulers means those waste collection/hauler companies primarily engaged as a principal business in the collection and transportation of municipal solid waste generated in the County of Orange which are not obligated to deliver County Acceptable Waste to the Disposal System pursuant to a franchise,contract,permit or other authorization with a city in the County 'Initial Term has the meaning specified in Section 6.1(A)hereof 'Legal Entitlement' means all permits, licenses, approvals, authorizations, consents and entitlements of whatever kind and however described which are required under Applicable Law to be obtained or maintained by any person with respect to the Disposal System or the performance of any obligation under this Agreement or the matters covered hereby 'Legal Proceeding means every action, suit, litigation, arbitration, administrative proceeding, and other legal or equitable proceeding having a bearing upon this Agreement 'Loss-and-Expense means any and all loss, liability obligation, damage, delay, penalty judgment, deposit,cost,expense,claim,demand,charge.tax,or expense,including all fees and costs. 'Net Import Revenues has the meaning ascribed thereto in Section 3.6(E). 'Non-Recycled City Acceptable Waste means all City Acceptable Waste other than Recycled City Acceptable Waste. 'Overdue Rate means the maximum rate of interest permitted by the laws of the State,if applicable,or the prime rate established from time to time by the Bank of America, N.A. or its successors and assigns, plus 2% whichever is lower. 'Participating City means any city or Sanitary District executing a Disposal Agreement in accordance with Section 3.6(A)hereof and meeting all requisite conditions to the Commencement Date thereof. 'Plan of Adjustment' means the County s Modified Second Amended Plan of Adjustment, confirmed by the United States Bankruptcy Court Central District of California in that Conformed Order Confirming Modified Second Amended Plan of Adjustment,filed May 17 1996. 'Posted Disposal Rate' means the per ton tipping fee charged by the County for the disposal of solid waste at the Disposal System by parties which are not entitled to disposal service at the Contract Rate pursuant to this Agreement. 'Prohibited Medical Waste means any medical or infectious waste prohibited or restricted under Applicable Law from being received by or disposed at the Disposal System. 'Qualified Household Hazardous Waste means waste materials determined by the Board, the Department of Health Services,the State Water Resources Control Board,or the Air Resources Board to be: (1) Of a nature that they must be listed as hazardous in State statutes and regulations; (2) Toxic/ignitable/corrosive/reactive; and (3) Carcinogenic/mutagenic/teratogenie; which are discarded from households as opposed to businesses. Qualified Household Hazardous Waste shall not include Unacceptable Waste. 5 Sa nary District Ex oil Copy 'Recycled City Acceptable Waste means any otherwise Controllable Waste which is separated from Acceptable Waste by the generator thereof or by processing and which is 'recycled' within the meaning of Section 40180 of the Public Resources Code. 'Renewal Term has the meaning specified in Subsection 6.1(B)hereof. 'Residue means any material remaining from the processing, by any means and to any extent, of City Acceptable Waste or Recycled City Acceptable Waste; provided, however, that Residue shall not include minimal amounts of material remaining after such processing (which minimal amounts shall in no event exceed 10%of the amount of such City Acceptable Waste or Recycled City Acceptable Waste prior to processing). 'Resource Conservation and Recovery Act' or `RCRA means the Resource Conservation and Recovery Act,42 U.S.C.A. Section 6901 et seq. as amended and superseded. 'Restricted Reserves has the meaning specified in Section 4.5. `Sanitary Districts' means the sanitary districts in the County formed pursuant to the Sanitary District Act of 1923, codified at Cal. Ann. Health & Safety Code Suction 6400 et set] as amended, supplemented, superseded and replaced from time to time. 'Self-Hauled Waste means City Acceptable Waste collected and hauled by Self-Haulers. 'Self-Hauler means any person not engaged commercially in waste haulage who collects and hauls Acceptable Waste generated from residential or business activities conducted by such person. 'Service Coordinator' means the service coordinator for either party designated pursuant to subsection 3.5(C)hereof. `Service Covenant' means the covenants and agreements of thu County set forth in Sections 3.2 and 33 hereof. 'Source Separated Household Hazardous Waste means Qualified Household Hazardous Waste which has been segregated from Acceptable Waste originating or generated within the geographical jurisdiction of the City at the source or location of generation. 'Source Separated Household Hazardous Waste Disposal System means the collection centers, facilities, contracts and other arrangements owned or administered by the County for the receipt, handling and disposal of Source Separated Household Hazardous Waste. 'State' means the State of California. 'Term shall mean the Term of this Agreement. 'Ton means a 'short ton of 2,000 pounds. 'Transfer Station means any materials recovery facility composting facility intermediate processing facility recycling center, transfer station or other waste handling or management facility to which solid waste collected for the City is delivered for processing before disposal in the Disposal System. `Unacceptable Waste means Hazardous Waste, Hazardous Substances; Prohibited Medical Waste: Qualified Household Hazardous Waste separated from Acceptable Waste; explosives, ordnance, highly flammable substances, and noxious materials and lead-acid batteries (except if delivered in minimal quantities); drums and closed containers, liquid waste,oil,human wastes;machinery and equipment from commercial or industrial sources, such as hardened gears, shafts,motor vehicles or major components thereof,agricultural equipment, trailers, marine 6 Sa nary Distnct Ex at Copy vessels and steel cable, hot loads, and any waste which the Disposal System is prohibited from receiving under Applicable Law 'Uncontrollable Circumstance means any act, event or condition affecting the Disposal System, the County the City or any of their Franchise Haulers, contractors or suppliers to the extent that it materially and adversely affects the ability of either party to perform any obligation under the Agreement (except for payment obligations), if such act, event or condition is beyond the reasonable control of and is not also the result of the willful or negligent act, error or omission or failure to exercise reasonable diligence on the part of the party relying thereon as justification for not performing an obligation or complying with any condition required of such party under the Agreement;provided,however,that the contesting in good faith or the failure in good faith to contest such action or inaction shall not be construed as willful or negligent action or a lack of reasonable diligence of either party Examples of Uncontrollable Circumstances are (1) an act of God, landslide, lightning, earthquake, fire, explosion, flood, sabotage or similar occurrence,acts of a public enemy extortion,war,blockade or insurrection,riot or civil disturbance;and (2) a Change in Law 'Unincorporated Area means those portions of the County which are not contained within the junsdictional boundaries of incorporated cities. 'Unincorporated Area Acceptable Waste means Acceptable Waste originating from or generated within the Unincorporated Arca. 'Unrestricted Reserves' means cash and other reserves of the Disposal System which are not Restricted Reserves. 'Waste Disposal Covenant' means the covenants and agreements of the City set forth in Section 3 1 hereof. SECTION 1.2 INTERPRETATION. In this Agreement,unless the context otherwise requires: (A) References Hereto. The terms 'hereby 'hereof 'herein 'hereunder' and any similar terms refer to this Agreement, and the term 'hereafter means after, and the term 'heretofore means before, the Contract Date. (B) Gender and Plurality Words of the masculine gender mean and include correlative words of the feminine and neuter genders and words importing the singular number mean and include the plural number and vice versa. (C) Persons Words importing persons include firms, companies, associations, general partnerships, limited partnerships, trusts, business trusts, corporations and other legal entities, including public bodies,as well as individuals. (D) Headings. The table of contents and any headings preceding the text of the Articles, Sections and subsections of this Agreement shall be solely for convenience of reference and shall not constitute a part of this Agreement,nor shall they affect its meaning,construction or effect. (E) No Third Party Beneficiaries. Nothing in this Agreement is intended to confer on haulers or any other person other than the parties hereto and their respective permitted successors and assigns hereunder any rights or remedies under or by reason of this Agreement. (F) Counterparts. This Agreement may be executed in any number of original counterparts. All such counterparts shall constitute but one and the same Agreement. 7 Sanitary Oistnci Ex ulion Copy (G) Applicable Law This Agreement shall be governed by and construed in accordance with the Applicable Laws of the State of California. (li) Severability If any clause, provision, subsection, Section or Article of this Agreement shall be ruled invalid by any court ofjurisdiction,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, effect the intent of the parties therein; (2)if necessary or desirable to accomplish item (1) above,apply to the court having declared such invalidity for a judicial construction of the invalidated portion of this Agreement; and (3)negotiate such changes in,substitutions for or additions to the remaining provisions of this Agreement as may be necessary in addition to and in conjunction with items (1) and (2) above to effect the intent of the parties in the invalid provision. The invalidity of such clause, provision, subsection, Section or Article shall not affect any of the remaining provisions hereof, and this Agreement shall be construed and enforced as if such invalid portion did not exist,unless such invalidity frustrates the underlying primary purpose of the Agreement. (I) Integration; Preservation of Certain Agreements. This Agreement contains the entire agreement between the panics with respect to the transactions contemplated hereby This Agreement shall completely and fully supersede all prior understandings and agreements between the Parties with respect to such transactions;provided,however,that this Agreement shall not supersede the following agreements. 1) MOU, dated March 10, 1992, between the City of Brea and the County of Orange regarding the Olinda Alpha Landfill as amended on April 6, 1993 and November 29 1994; 2) MOU,dated May 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, and amended November 21, 1995, between the City of San Juan Capistrano and the County of Orange regarding importation of out-of-County waste to the Prima Deshecha Landfill; 6) MOU, dated July 1 1997 between the City of San Clemente[ the Orange County Flood Control District]and the County of Orange regarding the Prima Dcshecha Landfill;and 7) Cooperative Agreement, dated August 15. 2006, between the County and the City of Irvine. (J) Recitals. The recitals to this Agreement are not intended to bind the parties hereto. In the event of a conflict between the recitals and the operative provisions of this Agreement, the operative provisions shall prevail. The recitals shall not be used to interpret the provisions of the Agreement. ARTICLE II REPRESENTATIONS AND WARRANTIES SECTION 2.1 REPRESENTATIONS AND WARRANTIES OF THE CITY The City represents and warrants that: (A) Existence. The City is a general law or charter city validly existing under the Constitution and laws of the State. 8 Sa nary District Execun Copy (B) Due Authorization. The City has duly authorized the execution.and delivery of this Agreement,and this Agreement has been duly executed and delivered by the City SECTION 2.2 REPRESENTATIONS AND WARRANTIES OF THE COUNTY The County represents and warrants that: (A) Existence. The County is a political subdivision of the State of California validly existing under the Constitution and laws of the State. (B) Due Authorization. The County has duly authorized the execution and delivery of this Agreement,and this Agreement has been duly executed and delivered by the County ARTICLE III DELIVERY AND ACCEPTANCE OF WASTE AND PROVISION OF DISPOSAL SERVICE SECTION 3.1 DELIVERY OF WASTE. (A) Waste Disposal Covenant. Subject to the occurrence of the Commencement Date and throughout the Term of this Agreement,the City shall exercise all legal and contractual power and authority which it may possess from time to time to deliver or cause the delivery of all Controllable Waste to the Disposal System in accordance herewith. (B) Recycled City Acceptable Waste. The parties hereto acknowledge the responsibility of the City to meet the recycling and landfill diversion goals contained in the Act. Nothing in this Agreement is intended or shall be interpreted to prohibit or impair the ability of the City to meet such responsibilities,or to restrict the right of the residents,businesses or organizations in the City to practice source separation,recycling,composting or other materials recovery activities, or to restrict the right of the City to conduct, sponsor, encourage or require such activities in any form. No reduction in the amount of Controllable Waste generated in the City and delivered to the Disposal System by or on behalf of the City which may result from any such source separation or recycling program shall cause the City any liability hereunder (other than potential adjustment to the Contract Rate to the extent provided in Article IV hereof)and shall not constitute a breach of this Agreement. (C) Waste Delivered to Transfer Station. All Residue from any processing of Controllable Waste by materials recovery composting, recycling or other means, wherever performed, shall constitute Controllable Waste and be subject to the Waste Disposal Covenant. Where City Acceptable Waste is processed at a facility which concurrently processes other Acceptable Waste in a manner which produces commingled residue which cannot be traced to a geographic source, genenc residues from such facility in Tonnage equal to the residues that would have been produced had City Acceptable Waste only been processed at the facility shall constitute Controllable Waste and be subject to the Waste Disposal Covenant. Any City Acceptable Waste or material derived or segregated therefrom which is held in storage and asserted by the possessor thereof to constitute Recycled City Acceptable Waste awaiting sale or distribution to the secondary materials markets shall constitute Controllable Waste if when and to the extent that the storage or diversion thereof can be reasonably deemed to constitute an evasion of the Waste Disposal Covenant rather than generally recognized, accepted and prevailing practice in the Southern California materials recovery and recycling industry conducted in accordance with Applicable Law In order for the owner and/or operator of a transfer station to be entitled to deliver Acceptable Waste from a Participating City to the Disposal System for the Contract Rate as provided in Article IV such owner and/or operator must execute a direct agreement with the County acknowledging and agreeing to comply with the obligation of the Participating City to cause the delivery of all Controllable Waste to the Disposal System pursuant to this Agreement. In addition, the County shall be authorized to implement procedures to determine if Acceptable Waste delivered by the owners or operators of Transfer Stations is entitled to utilize the Disposal System for the Contract Rate. Such procedures may include requiring Transfer Stations to certify under penalty of perjury the source of any such Acceptable Waste. If necessary the County may require that, in order to qualify for use of the Disposal System for the Contract Rate, Transfer Stations must deliver Controllable Waste in loads containing only Controllable Waste, and not commingled with Acceptable Waste from entities which are not Participating Cities or Participating Independent Haulers. 9 Sa nary District Execun Copy (D) Power to Obligate Waste Disposal and Comply with this Agreement. On or before the Commencement Date. (i)any City franchise, contract, lase, or other agreement which is lawfully in effect relating to or affecting Controllable Waste shall provide,or shall have been amended to provide, that the City shall have the right without material restriction on and after the Commencement Date to direct the delivery of all Controllable Waste to a disposal location selected by the City (whether or not such Controllable Waste is delivered to a transfer station as an intermediate step prior to landfill disposal) and otherwise to comply with its obligations under this Agreement with respect to Controllable Waste and Franchise Haulers, and (ii)the City shall designate the Disposal System as the disposal location pursuant to such franchise, contract, lease or other agreement. On and after the Commencement Date and throughout the Term of this Agreement the City (a)shall not enter into any franchise, contract, lease, agreement or obligation, issue any permit,license or approval,or adopt any ordinance,resolution or law which is materially inconsistent with the requirements of the Waste Disposal Covenant, and (b)shall maintain non-exclusive or exclusive franchises or other contractual arrangements over any City Acceptable Waste which, as of the Contract Date, is subject to non-exclusive or exclusive franchise or other contractual arrangements. The City agrees that the County shall be a third party beneficiary of the obligation of Franchise Haulers to deliver Controllable Waste to the Disposal System, and may directly enforce such obligation through any legal means available. The City shall notify in writing each Franchise Hauler of the County s third party beneficiary rights. (E) Waste Flow Enforcement. (1)The City in cooperation with the Department, shall establish, implement, carry out and enforce a waste flow enforcement program which is sufficient to assure the delivery of all Controllable Waste to the Disposal System pursuant to and in accordance with the Waste Disposal Covenant for disposal at the times and in the manner provided herein. The waste flow enforcement program shall consist of amending City franchises, permits or authorizations with all Franchise Haulers, to the extent required by this Section and to the extent allowed by law and shall include in addition, to the extent necessary and appropriate in the circumstances to assure compliance with the Waste Disposal Covenant, but shall not be limited to: (i)licensing or permitting Franchise Haulers, upon the condition of compliance with the Waste Disposal Covenant, (ii)providing for and taking appropriate enforcement action under any such franchise,license,or permit,such as but not limited to the suspension, revocation and termination of collection rights and privileges, the imposition of fines or collection of damages, and the exercise of injunctive relief against non-complying Franchise Haulers and (iii)causing any Transfer Station to which Controllable Waste is delivered for processing to deliver certification, under the penalty of perjury of the amounts of Controllable Waste received and Residue remaining from processing at such Transfer Station. (2)The City acknowledges and agrees that in the event of a breach of the Waste Disposal Covenant by the City the City shall pay the County an amount equal to the amount that the City would have been required to pay to the County had the Waste Disposal Covenant not been breached, which shall be calculated by (x) subtracting the number of tons actually delivered during the month(s) of the breach from the number of tons that were delivered during the same month(s) closest in time when there was no such breach, even if such month(s) closest in time was prior to the Term, and(y)multiplying such amount by the Contract Rate in effect at the time of such breach(or any higher rate with respect to which the County has provided notice pursuant to Section 4.2). In the event that the County terminates the Waste Disposal Agreement as a result of such breach, the damages due as a result of such termination shall be equal to (aa) the average monthly deliveries by the City for the twelve months prior to the commencement of the breach multiplied by(bb)the Contract Rate in effect at the time of such breach (or any higher rate with respect to which the County has provided notice pursuant to Section 4.2),multiplied by(cc)the number of months that would have remained in the Term of the Agreement had the termination not occurred. The parties recognize that if the City fails to meet its obligations hereunder, the County will suffer damages and that it is and will be impracticable and extremely difficult to ascertain and determine the exact amount of such damages. Therefore,the parties agree that the damages specified above represent a reasonable estimate of the amount of such damages, considering all of the circumstances existing on the date hereto, including the relationship of the sums to the range of harm to the County that reasonably could be anticipated and anticipation that proof of actual damages would be costly or inconvenient. In signing this Agreement, each party specifically confirms the accuracy of the statements made above and the fact that each party had ample opportunity to consult with legal counsel and obtain an explanation of this liquidated damage provision at the time that this Agreement was made. (F) Legal Challenges to Franchise System. The City shall use its best efforts to preserve, protect and defend its right to exercise and comply with the Waste Disposal Covenant against any challenge thereto. legal or otherwise (including any lawsuits against the City or the County whether as plaintiff or defendant), by a 10 Sa nary Disiticl Ex uu Copy Franchise Hauler or any other person,based upon breach of contract,violation of law or any other legal theory The City shall bear the cost and expense of any such Legal Proceeding or other challenge. In the event any such Legal Proceeding relating to the Waste Disposal Covenant or the City's exercise thereof establishes in a final determination that such covenant or exercise thereof is void, unlawful or unenforceable, or if any Franchise Hauler fails to deliver Controllable Waste to the Disposal System in breach of its franchise with the City on the grounds that a judicial determination made by any court or other Applicable Law has rendered its obligation to deliver Controllable Waste to the Disposal System void, unlawful or unenforceable on any legal grounds, with the result that actual waste deliveries to the Disposal System fall below the Cumulative Tonnage Targets, the County shall be entitled to avail itself of the remedies described in Section 4.2(B)hereof. (CO Franchise Haulers. The City shall compile and provide the Department with the following information concerning all Franchise Haulers. name, address and phone number; identification number; area of collection and transportation;and franchise and permit terms. (H) Waste Information System. The City shall cooperate with the Department in collecting information and otherwise monitoring Franchise Haulers in order to assure compliance with this Agreement. Such information may include, to the extent practicable, data pertaining to Controllable Waste collected, transported. stored, processed and disposed of, Recycled City Acceptable Waste collected, transported, stored. processed and marketed or disposed of, Franchise Haulers' franchise, permit or license terms, collection areas, transportation routes and compliance with Applicable Law and all other information which may reasonably be required by the Department in connection with this Agreement.The City agrees to include in any revised franchise,contract,license or permit or other authorization granted to Franchise Haulers an obligation of the Franchise Hauler to provide to the County information relating to the Controllable Waste collected by such Franchise Hauler, including origins from which such Controllable Waste was collected, tonnage by type of load (residential, commercial, roll-off box), customer service levels,tonnage delivered by transfer station or material recovery facility utilized, and other related information. (I) City Actions Affecting County The City agrees to carry out and fulfill its responsibilities under this Agreement and Applicable Law so as to permit full and timely compliance by the County with its covenants and agreements with the State. In particular, the City agrees not to conduct, authorize or permit any disposal services for Controllable Waste to be provided in competition with the Disposal Services provided by the County hereunder,and not to take or omit to take any action with respect to Controllable Waste or its collection, transportation, transfer, storage, treatment or disposal that may materially and adversely affect the County s ability to achieve such timely compliance. Notwithstanding the foregoing,the City shall not be required to deny any permit or license or refuse to grant any approval while exercising its police powers. (J) No Right of Waste 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 purpose hereunder. (K) Annexations and Restructuring. It is the intention of the parties that this Agreement and the obligations and rights of the City hereunder, including particularly the Waste Disposal Covenant and the Contract Rate, shall, to the extent permitted by Applicable Law extend to any territory annexed by the City(or any territory with respect to which the City assumes,after March 30,2008, solid waste management responsibility from a Sanitary District or other public entity) and shall bind any successor or restructured Governmental Body which shall assume or succeed to the rights of the City under Applicable Law SECTION 3.2 PROVISION OF DISPOSAL SERVICES BY THE COUNTY (A) Service Covenant. L.ommencing on the Commencement Date, the County shall provide or cause the provision of the service of(1)receiving and disposing of all Controllable Waste at the Disposal System (or such other facilities, including transfer stations, as the County may determine to use), (2)disposing in accordance with subsection 3.2(C) hereof of Controllable Waste which,at any time and for any reason, is in excess II Sa nary District Ea ut' Copy of the disposal capacity of the Disposal System, and (3) in accordance with subsection 3.3(C) hereof, disposing of Unacceptable Waste inadvertently accepted at the Disposal System. The County to the maximum extent permitted under Applicable Law shall use its best efforts to keep the Olinda Alpha, Prima Deshecha and Frank R. Bowerman Landfills open for the receipt of waste for disposal or transfer of Controllable Waste pursuant to this Agreement. The County shall do and perform all acts and things which may be necessary or desirable in connection with its covenants in this subsection, including without limitation all planning, development, administration, implementation, construction, operation, maintenance, management, financing and contract work related thereto or undertaken in connection therewith. The County shall exercise all reasonable efforts to minimize the costs incurred in complying with the Service Covenant consistent with its responsibilities hereunder and under this Agreement, Applicable Law and prudent solid waste management practice and environmental considerations. (B) Particular Facilities. The Department and the City shall consult and cooperate in determining whether and to what extent from time to time other landfills other than that primarily used by the City shall be utilized to receive Controllable Waste. The Department shall immediately advise the City by telephone of any situation, event or circumstance which results in the partial or complete inability of the County to receive Controllable Waste at any particular landfill within the Disposal System,its effect on the County's ability to perform its obligations hereunder, and the County's best estimate of the probable duration. The Department shall confirm such advice in writing within 24 hours of the occurrence of any such inability The County shall use its best efforts to resume normal operation of the landfill primarily used by the City as soon as possible. In the event of a temporary material increase in average daily deliveries of Controllable Waste from the City which the County reasonably believes could result in the permitted daily disposal capacity limit to be exceeded with respect to a particular landfill within the Disposal System, the County shall have the right to redirect the increased Controllable Waste to another landfill within the Disposal System for the duration of the increase in average daily deliveries, provided, however, that in such circumstances the County shall utilize reasonable efforts to first redirect waste which is not Controllable Waste. (C) Compliance with Service Covenant Not Excused for any Reason. Commencing on the Commencement Date, the obligations of the County to duly observe and comply with the Service Covenant shall apply continuously and without interruption for the Term of this Agreement. In the event that any Change in Law or other Uncontrollable Circumstance impairs or precludes compliance with the Service Covenant by the means or methods then being employed by the County the County shall implement alternative or substitute means and methods to enable it to satisfy the terms and conditions of the Service Covenant. In the event that a Change in Law precludes the County from complying with such covenants with the means or methods then being employed and from utilizing any alternate or substitute means or methods of compliance, the County shall continuously use all reasonable efforts to effectuate executive, legislative or judicial change in or relief from the applicability of such law so as to enable the County lawfully to resume compliance with such covenants as soon as possible following the Change in Law SECTION 3.3 COUNTY RIGHT TO REFUSE WASTE. (A) Right of Refusal. Notwithstanding any other provision hereof, the County may refuse delivery of: (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, (4) Waste that is delivered by any party which has not executed a Waste Disposal Agreement;and (5) Controllable Waste consisting primarily of construction and demolition debris or inerts which may cause a particular facility's daily tonnage limit to be exceeded. 12 sanitary Distnct Ex on Copy (B) Identification of Unacceptable Waste. The Department shall have the right (but not the duty or the obligation) to inspect the vehicles of all Franchise Haulers delivering material to the Disposal System, and may require that the Franchise Hauler remove any Unacceptable Waste from such vehicle before it is unloaded. If the Department determines that it is impractical to separate Controllable Waste from Unacceptable Waste in any vehicle, or if the Franchise Hauler delivering such waste is unwilling to make such separation, or if any vehicle is carrying waste which may spill or leak, then the Department may reject the entire vehicle, and the City shall forthwith remove or cause the removal of the entire delivery from the Disposal System. The Department may take all reasonable measures to prevent waste from being blown or scattered before and during unloading. The City shall cause the Franchise Haulers to observe and comply with Applicable Law the operating rules and regulations of the Department, and the provisions of this Agreement prohibiting the delivery of Unacceptable Waste to the Disposal System. (C) Hazardous Waste and Hazardous Substances. The parties acknowledge that the Disposal System has not been designed or permitted, and is not intended to be used in any manner or to any extent, for the handling, transportation, storage or disposal of Flazardous Waste or Hazardous Substances. Neither the County nor the City shall countenance or knowingly permit the delivery of Hazardous Waste or Hazardous Substances to the Disposal System. (D) Disposal of Unacceptable Waste and Hazardous Waste. If Unacceptable Waste or Hazardous Waste is discovered in a vehicle at any landfill within the Disposal System,the driver of the vehicle will not be permitted to discharge the load. If a vehicle is observed unloading Unacceptable Waste or Hazardous Waste in the tipping area of a landfill within the Disposal System Department personnel will use reasonable efforts to assure that such material has been characterized, properly secured and its disposition resolved. The return or reloading onto the delivery vehicle of any Hazardous Waste, Prohibited Medical Waste or other waste requiring handling or transportation shall be conducted in accordance with Applicable Law Whenever Hazardous Waste is detected at any landfill within the Disposal System. the Department shall take immediate action in accordance with Applicable Law (E) Source Separated Household Hazardous Waste. The County shall maintain,as part of the Disposal System, a Source Separated Household Hazardous Waste Disposal System for the disposal of Source Separated Household Hazardous Waste. The disposal service provided by such system shall constitute part of the Disposal Services, and shall be available to Participating Cities as part of the Contract Rate. The County may impose additional fees and charges for services relating to Source Separated Household Hazardous Waste with respect to cities which are not parties to a Disposal Agreement. The County may provide for the expansion, contraction or modification of the Source Separated Household Hazardous Waste Disposal System and its services to the extent necessary to ensure the Disposal System's viability provided, however, if the County chooses to reduce services, the County shall nonetheless continue to expend funds for the Source Separated Household Hazardous Waste Disposal System each year during the term of this Agreement in an amount at least equal to the amount of funds expended for the Source Separated Household Hazardous Waste Disposal System during fiscal year 2006-07 as adjusted by changes in the Producer Price Index. SECTION 3.4 UNINCORPORATED AREA ACCEPTABLE WASTE. Commencing on the Commencement Date, the County in accordance with Applicable Law shall provide or cause to be provided the service of disposing of non-recycled Acceptable Waste originating or generated within the Unincorporated Area and,with respect to such waste, shall comply with the Waste Disposal Covenant as if the County constituted a City subject to the Waste Disposal Covenant hereunder. Rates charged by the County for the disposal of each class of non-recycled Acceptable Waste generated in the Unincorporated Area'shall be the same as the Contract Fee charged for the disposal of each class of Controllable Waste. The County shall use its best efforts to preserve, protect and defend its right to exercise and comply with the Waste Disposal Covenant(with respect to non-recycled Acceptable Waste generated in the Unincorporated Area) against any challenge thereto, legal or otherwise, by a Franchise Hauler or any other person, based upon breach of contract, violation of law or any other legal theory The County shall bear the cost and expense of any such Legal Proceeding or other challenge (with respect to non-recycled Acceptable Waste generated in the Unincorporated Area). 13 Sa vary District Ex Wt Copy SECTION 3.5 MISCELLANEOUS OPERATIONAL MATTERS. (A) Operating Flours. The County shall keep the Disposal System open for the receiving of Controllable Waste during such regular operating hours as may be established by the Department in the operating rules and regulations applicable to the Disposal System. The County shall utilize best efforts to maintain substantially similar hours, as were in effect on January 2 2009 for the receipt of waste through the term of this Agreement(subject to Applicable Law). (B) 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 (D) Review of Records. Each party may review the other party s books and records with respect to matters relevant to the performance by either party under this Agreement or otherwise related to the operation of the Disposal System to the extent allowed under the California Public Records Act(interpreted as if the parties to this Agreement were natural persons for purposes of the Public Records Act). SECTION 3.6 OTHER USERS OF THE DISPOSAL SYSTEM. (A) On or Before [ , 20091. On or before [120 DAYS AFTER BOARD APPROVAL], the County shall have the right to enter into waste disposal agreements with Orange County entities with respect to Acceptable Waste which was originally discarded by the first generator thereof within the geographical limits of the County, including other cities in the County Sanitary Districts, Transfer Stations and Independent Haulers,which waste disposal agreements shall have terms and provisions substantially identical to the terms and provisions of this Agreement; provided, however, that in no event shall such agreements have terms and provisions more favorablL than the terms and provisions of this Agreement(including but not limited to the Contract Rate and availability of disposal capacity). (B) After ( , 2009 After [120 DAYS AFTER BOARD APPROVAL], the County shall have the right to enter into waste disposal agreements with Orange County entities, including any city Sanitary District,Transfer Station and Independent Hauler,or otherwise accept Acceptable Waste from such parties, but only within the limitations contained in this Section. Any such agreement or waste acceptance agreement must provide that the party delivering waste shall pay a Posted Disposal Rate at least 10%higher than the Contract Rate unless the County determines it is in the best interest of the Disposal System to establish a Posted Disposal Rate less than 10% higher than the Contract Rate. In no event shall the Posted Disposal Rate be equal to or less than the Contract Rate. In addition, the County shall reserve the right in any such waste disposal agreement at any time, to the extent permitted by Applicable Law,to refuse to receive and dispose of Acceptable Waste from any city County Sanitary District, Transfer Station and Independent Hauler if and to the extent that such receipt and disposal may materially and adversely affect the ability of the County to comply with its obligations to the Participating Cities under the Disposal Agreements to which each is a party (C) Receipt of Imported Acceptable Waste on a Contract Basis. The County shall have the right to enter into a contract or other agreement with any municipal or private non-County entity for the delivery of Imported Acceptable Waste on terms and conditions that the County determines to he necessary to ensure and enhance the viability of the Disposal System for the benefit of the County and the Participating Cities and to generate Net Import Revenues. The County certifies that in its good faith judgment the contract or other agreement for the delivery of such waste will not materially and adversely affect the ability of the County to receive and dispose of Acceptable Waste from the Participating Cities in accordance with the applicable Disposal Agreements throughout the Term thereof. The term of any such agreement for the disposal of Imported Acceptable Waste shall end by the later to occur of(i) December 31 2015 or(ii) the date on which County general purpose revenues are no longer expended to pay debt service on the Orange County Public 14 Sanitary Dicmci Ex un Copy Financing Authority Lease Revenue Refunding Bonds Series 2005, but in no event later than the last day of the fiscal year commencing July I 2015. (D) Self Haulers. The City and the County acknowledge that Self-Haulers shall be entitled to deliver Self-Hauled Waste to the Disposal System, on a non-contract basis,at the Posted Disposal Rate. Such Self- Haulers shall not be entitled to dispose of Acceptable Waste for the Contract Rate. (E) Application and Use of Revenues From Other Users. All revenues received by the County from the disposal of County Acceptable Waste by the Disposal System, and all revenues received by the County from the disposal of Imported Acceptable Waste by the Disposal System, shall be deposited by the County in the County OC Waste & Recycling Enterprise Fund and shall constitute revenues of the Disposal System. Pursuant to the County's Plan of Adjustment, the County is entitled to receive net revenues (after payment of all costs attributable to the acceptance of such Imported Acceptable Waste at the Disposal System) ("Net Import Revenues') from the disposal of Imported Acceptable Waste by the Disposal System, and such Net Import Revenues may be used for the payment of bankruptcy related obligations in accordance with the Plan of Adjustment. Costs attributable to the disposal of Imported Acceptable Waste include deposits to the Environmental Fund, deposits to closure and postclosure reserves, City host fees (if applicable), incremental operating costs (such as manpower expenditures, equipment, services and supplies expenditures), state surcharges, and a pro rata share of capital project costs. The parties acknowledge that their intention in determining to allow the importation of Imported Acceptable Waste for disposal by the Disposal System is to stabilize the Contract Rate at rates below those which would otherwise prevail in the absence of such importation. SECTION 3 7 COUNTY PROVISION OF WASTE DIVERSION SERVICES. (A) County-Wide Recycling Services. This Agreement does not require the County to provide for any source reduction,materials recovery recycling,composting,or other waste diversion services by the County nor any payment therefor by the City by Franchise Haulers or by ratepayers; provided, however, any County-Wide Recycling Services may be funded through the County OC Waste& Recycling Enterprise Fund. Any such recycling services may be expanded,contracted or modified by the County at any time in its sole discretion. (B) Separate City-County Diversion Service Agreements. Nothing in this Agreement is intended to limit the right of the County to enter into a separate agreement with the City or any other person to provide source reduction, materials recovery recycling, composting or other waste diversion services. Any such program conducted by the County whether in participation with the City any other of the Participating Cities,other Cities, Sanitary Districts, Transfer Stations. Independent Haulers, Unincorporated Area or non-County entity shall be operated, managed and accounted for as a program separate and distinct from the Disposal Services program contemplated by the Disposal Agreements and shall not be funded through the general revenues of the Disposal System. ARTICLE 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 4.2 hereof. In addition, the City acknowledges that the County shall have the right to establish as part of the operating rules and regulations reasonable measures to secure the payment of all Contract Rates. SECTION 4.2 CONTRACT RATE (A) Establishment of Contract Rate. The Contract Rate payable by each Franchise Hauler shall be(x)$22.00 per ton from the Commencement Date through June 30,2010,and(y)$29.95 per ton on and after July 1 2010, in both cases contingent on the delivery to the Disposal System of an amount of Acceptable Waste at 15 Sa nary District Ex orlon Copy least equal to the Cumulative Tonnage Targets identified in Appendix 2, and subject to adjustment necessary to reflect the circumstances set forth in this Section 4.2: (i) increased costs incurred by the County (in excess of available insurance proceeds)due to the occurrence of one or more Uncontrollable Circumstances,other than Changes in Law (ii) costs incurred by the County (in excess of available insurance proceeds and amounts available in the Environmental Fund for such purposes) remediating environmental conditions at the Disposal System or inactive or closed disposal sites in the County which, if uncorrected,could give rise to potential claims under CERCLA or related federal or state statutes, including costs incurred providing indemnification to any Participating City pursuant to subsection 7.3,or (iii) tonnage shortfalls to the extent permitted by Sections 4.2(13); (iv) average annual inflation prior to July 1, 2010 in excess of the levels set forth in Section 4.2(1-1)and escalation pursuant to Section 4.2(F) (v) increased costs incurred by the County (in excess of available insurance proceeds)due to the occurrence of one or more Changes in Law or (vi) Capital Costs in excess of the Capital Costs at any point in time during the term hereof exceeding the Cumulative Capital Costs set forth in Appendix 3. Prior to adjusting the Contract Rate as a result of any of the circumstances described in clauses(i),(ii)or(iii)above, the County shall utilize the following remedies in the following order of priority. (x) reduce the costs of operating the Disposal System to the extent practicable;and (y) utilize Unrestricted Reserves to pay costs of the Disposal System. The County will not be required to utilize such remedies prior to adjusting the Contract Rate as a result of any of the circumstances described in clauses(iv),(v)or(vi)above. Any adjustments to the Contract Rate permitted by this Section shall be calculated by the County to reflect the actual costs or expenses of addressing the circumstance or circumstances pursuant to which the adjustment is authorized. The County agrees that it will evaluate the feasibility of long term financing for significant capital costs where appropriate. (B) County Acceptable Waste Shortfall. to the event that the actual amount of County Acceptable Waste delivered to the Disposal System at the end of any Contract Year is less than the Cumulative Tonnage Target for such Contract Year for County Acceptable Waste as specified in Appendix 2, the County shall utilize the following options, in the following order of priority in order to remedy any adverse effects of such tonnage shortfall: (i) reduce the costs of operating the Disposal System to the extent practicable; lii) utilize Restricted Reserves described in clause(iii)of Section 4.5 to pay costs of the Disposal System; (in) utilize Unrestricted Reserves to pay costs of the Disposal System;and (iv) adjust the Contract Rate. In the event that implementation of the steps dcscnbed above does not result in sufficient revenues to satisfactorily address the shortfall in tonnage, the County shall have the right to terminate the Agreement on 60 days written 16 Sa nary District Saecum Copy notice to thi, City In addition, in the event that actual deliveries to the Disposal System exceed the Cumulative Tonnage Target as of the end of any Contract Ycar, the City acknowledges the County shall have the right to establish reserves intended to reflect the potential for lower than expected annual waste deliveries in subsequent years,and that any such reserves shall constitute 'Restricted Reserves (C) [RESERVED] (D) Interim Use of Remedies. In the event that,during any Contract Year,waste deliveries to the Disposal System are 25% or more below delivery projections for such Contract Year with the result that the County determines it is unlikely that the Cumulative Tonnage Target will be achieved as of the end of such Contract Year, the County may utilize the remedies described in Section 4.2(B) prior to the end of such Contract Year; provided, however, that if at the end of such Contract Year. the Cumulative Tonnage Target is actually met, the County shall reimburse any adjustments to the Contract Rate made pursuant to this Section to Participating Cities. Such reimbursement may be given as a credit or adjustment to the Contract Rate for future deliveries, rather than a lump sum payment. (E) Special Charges. Notwithstanding Section 4.2(A), the County shall have the right to impose special charges for the receipt of hard to handle materials, such as bulky materials, construction and demolition debris, tree stumps and sludge. Such special charges shall be calculated to reflect the reasonable incremental costs to the County of accepting such hard to handle materials. In addition, in the event that the Board of Supervisors of the County makes a determination to implement a facility(including but not limited to a transfer station, landfill,conversion technology facility or a materials recovery or processing facility),which facility would be intended to provide for disposal alternatives after the closure of one or more of the landfills currently operating within the Disposal System, the County may impose an additional charge of$0.50 per ton of Acceptable Waste in order to pay the costs of the study development,planning,construction and/or operation of such facility Adjustments pursuant to this Section 4.2(E) shall not require compliance with the provisions of Section 4.2(1). (F) Escalation. The Contract Rate shall be adjusted each July 1 beginning July 1 2011 The change will be equal to the positive percentage change in the Consumer Price Index—All Urban Consumers, U.S. city average, All items, Not Seasonally Adjusted, Series ID CUUR0000SA0("CPI")as measured from the October 21 months prior to the rate adjustment to the October immediately preceding the rate adjustment. For example: The July I 2011 rate adjustment shall be based upon the index change from October 2009 to October 2010, referred to as year I and year 2 respectively in the following example Formula to calculate percentage change in the Contract Rate: Step I r October Ycar 2 CPI L October Year 1 CPI J I =%increase in Contract Rate Step 2: Current Contract Rate x(1+%increase in Contract Rate)=Contract Rate as of July 1 Year 2 On each April 1 commencing April 1 2011 the County shall provide the City with noti� of the adjustment to the Contract Rate to be effective the following July 1 Such notice shall contain the calculation of the adjustment set forth above.The County will calculate the new Contract Rate each year. In the event that the change in the CPI is negative, no rate adjustment will be made for that year. No adjustment under this Section 4.2(F) will take place until the October CPI index surpasses the index level as of the October immediately preceding the last annual rate adjustment pursuant to this Section 4.I(F), which will be considered year 1 in calculating the change in the Contract Rate. 17 Sa nary Distnct Execution Copy For example, if the CPI is measured as follows. October 2009=205,October 2.010=204,October 2011 = 201 October 2012=208,then there would be no adjustment in July 2011,or July 2012,and an adjustment equal to the change from 205 to 208 would be implemented on July 1 2013. Adjustments pursuant to this Section 4.2(F)shall not require compliance with the provisions of Section 4.2(1). (G) Adjustment Resulting,from Increased Fees. In addition to the other adjustments specified herein, the Contract Rate shall be adjusted to reflect the imposition of new fees or increase in existing fees relating to the disposal of Controllable Waste imposed by state, federal or other agencies (i.e. the State s Integrated Waste Management fee, which is currently SI 40 per ton). The adjustment shall be equal to the amount of any new or increased fee, and the adjustment shall take effect so as to coincide with the imposition of the new or increased fee. The County shall provide notice of any increase pursuant to this Section 4.2(G) as soon as practicable after becoming aware of the imposition of any fees described above. Adjustments pursuant to this Section 4.2(G) shall not require compliance with the provisions of Section 4.2(1). (H) Calculation of Cumulative Inflation Rate. For purposes of Section 4.2(A)(iv) for adjustments prior to July 1 2011 the inflation shall be calculated as the change in the CPI between July of the year of calculation and July I 2008. Inflation shall be deemed to exceed the levels set forth below if the ratio between the CPI for July for the year of calculation(calculated in accordance with the formula below)and July 2008 exceeds the ratio corresponding to such year of calculation on the table below The ratio shall be calculated in accordance with the following formula: (July CPI of calculation year/CPI for July 2008) Year of Calculation Ratio July I.2008 1.0000 July I,2009 1.0356 July I,2010 1.0723 In the event the CPI is no longer published dunng the term of this Agreement, such other index identified by the Bureau of Labor Statistics or otherwise generally accepted as a replacement for CPI shall be used for purposes of this Agreement. In the event of an adjustment to the Contract Rate pursuant to this section 4.2(H), such adjustment shall be applied to the Contract Rate effective until June 30,2010,and the Contract Rate effective July 1 2010. Adjustments pursuant to this Section 4.2(H) shall not require compliance with the provisions of Section 4.20). (1) Procedure for Rate Adjustments. In the event the County determines that it is entitled to an adjustment of the Contract Rate pursuant to Section 4.2(A) (other than 4.2(A)(iv)) or Section 4.2(B), it shall utilize the procedures described in this Section 4.20). The County shall be required to provide the City with at least 90 days prior written notice of the adjustment, which notice shall identify the specific event(s) or circumstances which require the adjustment. The notice shall also specify the earliest date on which the County Board of Supervisors shall consider the proposed adjustment. At least 45 days prior to such meeting of the Board of Supervisors, the County shall provide the City with a report which shall contain the following information: a description of the specific event(s) or circumstances which require the adjustment; a description (including cost estimates) of any activities(which may include,but not be limited to capital improvements to the Disposal System) required in order to remedy such event or circumstance; certification by the County that it has implemented the remedies described in Section 4.2(A) or (B) prior to requiring the rate adjustment; and a description of the methodology used by the County to calculate the adjustment to the Contract Rate(hereinafter the 'County Report"). In the event the City disputes the adjustment, it shall provide the County with a written description of the reason for the dispute at least 10 days prior to the meeting of the Board of Supervisors identified in the initial notice of the County (hereinafter the 'City Report"). The City Report shall be provided to the Board of Supervisors for 18 Sa Italy Distr ct Execute Copy consideration at such meeting in connection with the proposed rate adjustment. At any time from and after the date that the County provides the City with the County Report,upon the request of either party the City and County shall meet and confer in good faith to resolve any dispute that may arise regarding the proposed adjustment to the Contract Rate. In any such meeting, the County shall be represented by the Director of the Department or his or her designee. In the event the Board of Supervisors approves all or a portion of the proposed rate adjustment, such rate adjustment shall become effective on the date identified in the initial notice sent by the County regardless of whether or not the procedures in Section 4.2(J)are utilized,but subject to potential reimbursement pursuant to clause(1 I)of Section 4.2(1) (J) Procedure for Expedited Judicial Review of Contested Rate Adjustment. In the event that, within 30 days after the effective date of any Contract Rate adjustment made pursuant to Section 4.20), Participating Cities which, in the aggregate, accounted for more than 50% of the County Acceptable Waste delivered to the County System in the twelve months preceding the Contract Rate adjustment, provide notice to the County of their election to utilize the procedures described in this Section 4.2(J), then the provisions of this Section 4.2(1) shall be utilized by such Participating Cities and the County to resolve the dispute over the Contract Rate Adjustment. In the event that Participating Cities which have delivered the amount of waste contemplated in the preceding sentence do not provide notice to the County of such election, the County shall have no obligation to participate in or cooperate in the implementation of the procedures described below in this Section 4.2(1). (I) In order to pursue the expedited judicial determination described in this Section (the 'Expedited Rate Determination'), the Participating Cities which have made the election described in the paragraph above (the 'Challenging Cities') must commence a civil action for breach of contract (the Action") in the Orange County Superior Court within 45 days of the date on which the Board of Supervisors approves the challenged adjustment to the Contract Rate. (2) Within two(2)clays of filing the Action,the Challenging Cities shall personally serve on the County Counsel both the summons and complaint, and a stipulation and request for the entering of an order incorporating all of the procedural provisions relating to the Expedited Rate Determination as set forth in this Section 4.2(J)(such stipulation and request for order is hereinafter referred to as the 'Expedited Rate Determination Stipulation'). The Expedited Rate Determination Stipulation shall be signed by each of the Challenging Cities. (3) Within fifteen(15) days of the date of service upon the County of the summons and complaint,and Expedited Rate Determination Stipulation, the County Counsel shall execute the Expedited Rate Determination Stipulation and personally serve upon the Challenging Cities through their counsel of record the Expedited Rate Determination Stipulation and its answer to the complaint in the Action. The Stipulation shall also include a waiver by each of the parties of their right to a jury trial of the issues raised in the Action. The City and the County mutually agree that the duty to execute the Expedited Rate Determination Stipulation and comply with the procedures set forth for Expedited Rate Determination in this Section 4.2(1) shall be, and are hereby deemed to be, ministerial duties which the law specifically enjoins upon each of them, and shall be subject to enforcement by the parties herein pursuant to Code of Civil Procedure Section 1085,et seq. or by means of a complaint for specific performance. (4) Within three(3)days of the date of service by the County upon the Challenging Cities of the fully signed Expedited Rate Determination Stipulation, the County and the Challenging Cities shall jointly make ex pane application to the Orange County Superior Court in the Action for the issuance of the order contained in the Expedited Rate Determination Stipulation. At such ex parte application, the County and the Challenging Cities shall also seek to confirm with the Orange County Superior Court the briefing schedule, and request a hearing date in accordance with the procedures set forth in this Section 4.2(3). (5) Within ten (10) days of the date of service by the County upon the Challenging Cities of the answer in the Expedited Rate Determination, the Challenging Cities shall file with the court and personally serve upon the County the Challenging Cities' opening brief and the Record in the Expedited Rate Determination. The opening brief shall not exceed 15 pages in length. The Record shall consist 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 4.20),any materials filed or lodged with the Board of Supervisors and the Orange County 19 Sa nary Dicing Ex at Cops Waste Commission, the transcript of the proceedings of the Board of Supervisors meeting and the Orange County Waste Commission, the minutes of the Board of Supervisors and the Orange County Waste Commission meeting, and the resolution and/or other documentation evidencing action by the Board of Supervisors and the Orange County Waste Commission to adjust the Contract Rate pursuant to Section 4.2(A) or (B). The record shall also include the most recent reports prepared pursuant to Sections 4.6 and 4.7 The Expedited Rate Determination shall be decided solely on the evidence in the Record,and no extrinsic evidence shall be submitted to or considered by the court. (6) Within ten (10) days of service by the Challenging Cities of their opening brief and the Record, the County shall file and personally serve upon the Challenging Cities the County's opposition bnef. 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(J)(4), or such other date and time ordered by the court. If the court requests the parties to prepare supplemental briefs in response to any question or issue raised by the court,the parties may do so. (9) The standard of review for the Expedited Rate Determination shall be the preponderance of the evidence based upon the Record. The burden of proof shall be borne by the Challenging Cities, and the burden of proof shall be the same as with respect to a plaintiff in a damages action for breach of contract. Both panics have participated in the drafting of this Agreement. Accordingly nothing set forth in this Agreement shall be interpreted or construed for or against either of the parties as a consequence of their participation in the drafting of this Agreement. (10) The court shall issue its written statement of decision and enter judgment within thirty(30)days of the date of the hearing in the Expedited Rate Determination. (II) If the court determines that any portion of the County's adjusted Contract Rate which is the subject of the Expedited Rate Determination was improperly imposed,the County shall,within 30 days of the date of the statement of decision,reimburse to the City the amount improperly imposed,together with interest calculated at the highest percentage rate that does not constitute usury under California laws. Such reimbursement may be made in the form of a reduction in the Contract Rate for a future pcnod (not to exceed twelve months) reasonably calculated to provide full reimbursement of the amounts described above. (12) If for any reason the court does not sign the order contained in the Expedited Rate Determination Stipulation,the City shall,within 30 days of the court's denial of such requested order,file with the court and personally serve upon the County a motion for summary judgment and/or motion for judgment on the pleadings, in accordance with Code of Civil Procedure Section 437(e) 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 he deemed to have been incorporated into the complaint and answer filed by the Challenging Cities and the County and no evidence outside of the Record is relevant or material to the dispute raised in the Expedited Rate Determination. The briefing schedule and hearing on such motion for summary judgment and/or motion for judgment on the pleadings shall be in accordance with Code of Civil Procedure Section 437(e). The Challenging Cities and the County shall be bound by all of the requirements and restrictions set forth in Section 4.2(1)that are not in conflict with this paragraph(12). (13) In the event that the court both does not sign the order contained in the Expedited Rate Determination Stipulation and either does not hear or does not issue a ruling on the merits on the motion for summary judgment and/or judgment on the pleadings which is diapositive of the issues, claims and causes of action in the complaint filed by the Challenging Cities,the County and the Challenging Cities shall,within twenty days following the issuance of the Court's order or decision not to honor the parties' stipulation or not to hear the parties motion for summary judgment, make application to the Presiding Judge of the Orange County 20 Sa nary Distr ct Ex Wt Copy Superior Court for an expedited hearing or trial date The Challenging Cities and the County shall be bound by all of the requirements and restrictions set forth in Section 4.2(J)that are not in conflict with this paragraph(13). In this regard. and without limiting the foregoing, the only evidence to be presented at the hi,aring or trial shall be the Record, no testimony shall be presented at the hearing or trial; and both the County and the Challenging Cities waive all rights to a jury trial,to any reconsideration of the decision of the court,to a new trial after the court renders a decision,and to any appeal or review of the decision of the court. SECTION 4.3 RESPONSIBILITY FOR PAYMENT OF THE CONTRACT RATE (A) Payment by City In the event and to the extent (1)the City uses municipal collection forces directly for the haulage of Controllable Waste to the Disposal System or (2)the City uses non-municipal Franchise Haulers for collection but nonetheless elects to pay the Contract Rate from City revenues, the City as its own Franchise Hauler, shall have direct responsibility for payment of the Contract Rate, and shall take all such budgetary appropriation and other action as may be necessary to provide for the timely payment of the Contract Rate. Such action may include, depending upon the means authorized by the City to provide for such payment, the levy and collection of general or special taxes, the imposition of benefit assessments, or the collection of user fees, generator charges or other similar impositions for municipal solid waste disposal. The City shall use best efforts in accordance with Applicable Law to levy and impose all such taxes, assessments, fees or charges, and will take all steps, actions and proceedings for the enforcement, collection and payment of all such amounts which shall become delinquent, to the full extent permitted by Applicable Law To the extent provided in Section 7.5 hereof, the obligation of the City for such Contract Rates shall be limited to amounts in the City s Solid Waste Enterprise Fund. From the Commencement Date to the date of expiration or termination of this Agreement, the obligation to the City to pay the Contract Rate,to the extent the City rather than Franchise Haulers is responsible directly for payment and provided that the Service Covenant has been complied with, shall be absolute and unconditional and shall not be subject to delay or diminution by reason of set-off,abatement,counterclaim,existence of a dispute or otherwise. (B) Payment by Franchise Haulers. With respect to Controllable Waste delivered by Franchise Haulers other than City municipal collection forces,the obligation to pay the Contract Rate shall rest with such Franchise Haulers and not with the City and, unless the City has agreed with the County to be responsible for Franchise Hauler payments, the City shall not be financially responsible for any delay or failure by such Franchise Hauler to pay the Contract Rate or any portion thereof when due. In the event of any such failure, the County and the City shall cooperate with each other and use their best efforts to obtain timely payment. Such efforts by the County may include, as appropriate, requiring cash payments for disposal rights from such Franchise Hauler and bringing a legal proceeding for payment and damages. Such efforts by the City may include, as appropriate, legal proceedings to suspend,revoke or terminate the Franchise Hauler s franchise,permit or license rights. (C) Disputes. If the City or the Franchise Hauler disputes any amount billed by the County in any Billing Statement,the City or the Franchise Hauler shall nonetheless pay the billed amount and shall provide the County with written objection within 30 days of the receipt of such Billing Statement indicating the amount that is being disputed and providing all reasons then known to the City or the Franchise Hauler for any objection to or disagreement with such amount. If the City or the Franchise Hauler and the County are not able to resolve such dispute within 10 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. Tht, County shall continue to bill Contract Rates after the Commencement Date, in the same manner as it has customarily billed tipping fees. Subject to the other provisions of this Agreement, the County shall have the right to modify or amend such manner of billing on reasonable notice to affected parties. SECTION 4.5 RESTRICTED RESERVES. For purposes of this Agreement, 'Restricted Reserves' means cash and other reserves of the Disposal System which are restricted to specific uses or are otherwise being reserved by the County to meet its obligations hereunder throughout the term of the Agreement with respect to the Disposal System pursuant to any Applicable Law contract, adopted budget, budgetary policy of the County with respect to the Disposal System,or other arrangement. Such cash and other reserves are not required to be deposited in separate accounts or funds in order to constitute 'Restricted Reserves hereunder, and may be commingled with 21 Sa eary District Ea tat Copy Unrestricted Reserves or other funds of the County attributable to the Disposal System. Restricted Reserves shall include,but not be limited to,the following: (i) reserves for closure of components of the Disposal System to the extent required by Applicable Law (ii) amounts reserved by the County for funding of post closure maintenance and monitoring with respect to components of the Disposal System; (iii) reserves established to protect the Disposal System against the adverse financial impact of potential decreases in waste deliveries pursuant to Section 42(B); (iv) amounts reserved to pay the costs of capital improvements with respect to the Disposal System; (v) amounts funded from revenues during the early years of the term of the Agreement reserved to enable the County to provide disposal services for the Contract Rate during the later years of the Agreement; (vi) amounts temporarily held by the County prior to payment to the State or other Governmental Bodies pursuant to Applicable Law (including any fees or charges payable to the State Integrated Waste Management Board); (vii) reserves required to meet bond covenants pursuant to financing agreements for Disposal System assets to the extent such amounts must be legally separate and distinct from other reserves identified in this Section; (viii) security deposits from landfill deferred payment program users; (ix) amounts held by the County in the Environmental Fund(provided,however,that such amounts in the Environmental Fund will be made, available and used by the County if required to pay costs relating to environmental remediation or other related costs); (x) A13919 surcharges: (xi) amounts held by the County in the Corrective Action Fund held pursuant to CCR Title 27 to demonstrate financial assurance to pay for potential groundwater contamination;and (xii) an amount equal to three months of budgeted expenses for the Disposal System for the current fiscal year,representing working capital of the Disposal System. SECTION 4.6 AUDITED FINANCIAL STATEMENTS. The County shall annually on or before January I each year, prepare or cause to be prepared and have on file for inspection an annual report for the preceding Contract Year,accompanied by a certificate of an independent public accountant or of the County Auditor and Controller as to the examination of the financial statements therein (describing such statements as fairly presenting the information therein in conformity with generally accepted accounting principles) relating to the Disposal System. the Disposal Services,and the fiscal activities of the County OC Waste Disposal Enterprise Fund, and including statements in reasonable detail of the financial condition of the County OC Waste Disposal Enterprise Fund as of the end of the Contract Year and revenue and expenses for the Contract Year. SECTION 4.7 ANNUAL UPDATE OF TEN-YEAR FINANCIAL PROJECTION. The County shall annually on or before May 1 of each year, prepare or cause to be prepared, an updated Ten-Year Financial Projection for the Disposal System. Said Financial Projection shall include at least two full years of prior actual data and ten years of future projections including the following elements. 22 Sa itary Disinct Execution Copy County Acceptable Waste,in tons; 2. Imported Acceptable Waste,in tons; 3 Revenues and expenditures; 4. Cash fund balances, including all monies in the County Solid Waste Enterprise Fund, with specific delineation of monies in the Environmental Fund, Restricted Reserves, Unrestricted Reserves, and all other funds of the System. 5. Projected liabilities for closure and post closure as well as reasonable reserves for other environmental costs. The purpose of the Ten-Year Financial Projection is to keep the City fully informed about the future financial condition of the Disposal System. The County shall cause a copy of the Ten-Year Financial Projection to be delivered to the City Manager of the City no later than May I of each year. Upon request, the County shall make available to the Cities supporting information related to the ten-year financial projection ARTICLE V BREACH,ENFORCEMENT AND TERMINATION SECTION 5.1 BREACH. The parties agree that in the event cithcr party breaches any obligation under this Agreement or any representation made by either party hereunder is untrue in any material respect, the other party shall have the right to take any action at law or in equity(including actions for injunctive relief,mandamus and specific performance)it may have to enforce the payment of any amounts due or the performance of any obligations to be performed hereunder. Neither party shall have the right to terminate this Agreement except as provided in Section 5.2 and Section 5.3 hereof or as otherwise provided in this Agreement SECTION 5.2 CITY CONVENIENCE TERMINATION. The City shall have the right to terminate this Agreement in its sole discretion, for its convenience and without cause at any time during the Term hereof upon 90 days written notice to the County If the City exercises its rights to terminate the Agreement pursuant to this Section, the City shall pay the County a termination fee equal to the Contract Rate in effect at the time of such termination (or any higher rate with respect to which the County has provided notice pursuant to Section 4.2) multiplied by the number of tons of City Acceptable Waste delivered to the Disposal System during the preceding twelve months (or, if the City had been in breach of the Waste Disposal Covenant during such prior months, such amount as would have been delivered if the City had complied with the Waste Disposal Covenant),multiplied by the number of years remaining in the Term of the Agreement. SECTION 5.3 TERMINATION. (A) By City Except as expressly provided herein, the City shall have no right to terminate this Agreement for cause except in the event of the repeated failure or refusal by the County substantially to perform any material obligation under this Agreement unless such failure or refusal is excused by an Uncontrollable Circumstance; except that no such failure or refusal shall give the City the right to terminate this Agreement for cause under this subsection unless. (I) The City has given prior written notice to the County stating that a specified failure or refusal to perform exists which will, unless corrected, constitute a material breach of this Agreement on the part of the County and which will, in its opinion, givt, the City the nght to terminate this Agreement for cause under this subsection unless such breach is corrected within a reasonable period of time,and (2) The County has neither challenged in an appropriate forum (in accordance with Section 5 5) the City-s conclusion that such failure or refusal to perform has occurred or constitutes a matenal breach of this 4greement nor corrected or diligently taken steps to correct such breach within a reasonable period of time not more than 90 days from the date of the notice given pursuant to clause (I) of this subsection (but if the 23 Sa nary District Ex un Copy County shall have diligently taken steps to correct such breach within such reasonable period of time, thi,same shall not constitute a breach giving rise to the right of termination for as long as the County is continuing to take such steps to correct such breach). (B) By County Except as expressly provided herein, the County shall have no right to terminate this Agreement for cause except in the event of the repeated failure or refusal by the City substantially to perform any material obligation under this Agreement unless such failure or refusal is excused by an Uncontrollable Circumstance; except that no such failure or refusal shall give the County the right to terminate this Agreement for cause under this subsection unless: (1) The County has given prior written notice to the City stating that a specified failure or refusal to perform exists which will, unless corrected, constitute a material breach of this Agreement on the part of the City and which will, in its opinion,give the County right to terminate this Agreement for cause under this subsection unless such breach is corrected within a reasonable period of time,and (2) The City has neither challenged in an appropnate forum (in accordance with Section 5.5) the County s conclusion that such failure or refusal to perform has occurred or constitutes a material breach of this Agreement nor corrected or diligently taken steps to correct such breach within a reasonable period of time not more than 90 days from the date of the notice given pursuant to clause(1)of this subsection(but if the City shall have diligently taken steps to correct such breach within such reasonable period of time, the same shall not constitute a breach giving rise to the right of termination for as long as the City is continuing to take such steps to correct such breach). SECTION 54 NO WAIVERS. No action of the County or the City pursuant to this Agreement (including,but not limited to,any investigation or payment),and no failure to act,shall constitute a waiver by either party of the other party s compliance with any term or provision of this Agreement. No course of dealing or delay by the County or the City in exercising any right, power or remedy under this Agreement shall operate as a waiver thereof or otherwise prejudice such party s rights,powers and remedies. No single or partial exercise of(or failure to exercise) any right, power or remedy of the County or the City under this Agreement shall preclude any other or further exercise thereof of the exercise of any other right,power or remedy SECTION 5.5 FORUM FOR DISPUTE RESOLUTION. It is the express intention of the parties that all legal actions and proceedings related to this Agreement or to the Disposal System or to any rights or any relationship between the parties arising therefrom shall be solely and exclusively initiated and maintained in courts of the State of California having appropriate jurisdiction. ARTICLE VI TERM SECTION 6.1 EFFECTIVE DATE AND TERM. (A) Initial Term. This Agreement shall become effective,shall be in full force and effect and shall be legally binding upon the City and the County from the Contract Date and shall continue in full force and effect until June 30, 2020, unless earlier terminated in accordance with its terns, in which event the Term shall be deemed to have expired as of the date of such termination. (B) Option to Renew This Agreement shall be subject to renewal by mutual agreement of the parties, on or before June 30, 2018, for an additional term of ten years(the 'Renewal Term')on the same terms and conditions as are applicabh during the Initial Term hereof. The City shall give the County written notice of its irrevocable election to renew this Agreement on or before June 30,2017 If the parties do not renew this Agreement by June 30,2018,the Agreement shall expire on June 30,2020. (C) Contract Rate During Renewal Term. In connection with thi, parties' nght to renew this Agreement for an additional ten-year term pursuant to Section 6.1(0), the parties shall, on or before June 30,2018, negotiate an applicable change in the Contract Rate for such renewal term. in determining any revisions to the 24 Sa nary District Execution Copy Contract Rate to be applicable during any renewal period, in addition to the circumstances described in Section 4.2(A),the parties may take into consideration the following parameters, including but not limited to: (i) actual cost of operations; (ii) population growth; (iii) increase or decrease in available tonnage; (iv) economic and disposal market conditions in the Southern California region; (v) changes in transportation and technology (vi) closure and expansion of nearby landfills; (vii) capacity of the Disposal System;and (viii) available reserves which arc in excess of the amount reasonably required as reserves (D) Survival; Accrued Rights. The rights and obligations of the parties hereto pursuant to Sections 3.I(E)(2), 5.1 5.3, 5.5, 7.2, 7.3, 7.5, 7 7 7.8, 7.9 and 7 10 hereof shall survive the termination or expiration of this Agreement, and no such termination or expiration shall limit or otherwise affect the respective fights and obligations of the parties hereto accrued prior to the date of such termination or expiration. At the end of the Term of this Agreement,all other obligations of the parties shall terminate. SECTION 6.2 COMMENCEMENT DATE. (A) Obligations of the Panics Prior to the Commencement Date. The parties acknowledge that the Disposal Agreements may be executed and delivered on different dates and that, except as provided in this subsection, neither the County nor the City shall be obligated to perform its obligations hereunder until the participation threshold provided herein has been met and the other conditions to the occurrence of the Commencement Date have occurred. Prior to the Commencement Date, each party hereto shall at its own expense exercise good faith and due diligence and take all steps within its reasonable control in seeking to satisfy the conditions to the Commencement Date set forth herein as soon as reasonably practicable. The County and the City each at its own expense. shall cooperate fully with each other and the other Participating Cities in connection with the foregoing undertaking. Until the Commencement Date occurs, the Original WDAs shall remain in MI force and effect. (B) Condition to the Commencement Date. The Commencement Date for the Agreement shall be the date on which the percentage of the County's Acceptable Waste attributable to Participating Cities which have executed and delivered Disposal Agreements shall exceed 85% percent (using the percentage rates attributed to such Cities in Appendix I). Unincorporated County is assumed to be a Participating City for the purposes of determining the Commencement Date in accordance with this Section 6 2(b) and Appendix 1 of this Agreement. (C) Satisfaction of Condition and Commencement Date. Upon the satisfaction or waiver of the condition to the Commencement Date, the County shall give written notice thereof to the cities which have theretofore executed Disposal Agreements. The parties shall thereupon hold a formal closing acknowledging the satisfaction or waiver of the condition to the Commencement Date, certifying that the Commencement Date has occurred and designating the Participating Cities. Copies of all of the documents or instruments constituting or evidencing satisfaction of the Commencement Date conditions shall be furnished to each party prior to or on the Commencement Date. 25 Sa 'tary Distnct Ex on Copy (D) Newly Incorporated Cities. Any city within Orange County which becomes incorporated after the Commencement Date shall upon request be offered the opportunity by the County to become a Participating City If any such City executes a Disposal Agreement and meets the applicable condition provided in subsection 6.2(B) hereof within 180 days following the date of its municipal incorporation, then such City shall be entitled to execute a Waste Disposal Agreement on substantially the same terms and conditions as this Agreement (including the Contract Rate),notwithstanding the limitations contained in Section 3.6(B). (E) Failure of Condition. If by [120 DAYS AFTER BOARD APPROVAL],or such later date as the County may agree, the condition to the Commencement Date specified in this Section is not satisfied, either party hereto may by notice in writing to the other party terminate this Agreement. Neither party shall be liable to the other for the termination of this Agreement pursuant to this subsection,and each of the parties shall bear its respective costs and expenses incurred in seeking to satisfy the condition to the Commencement Date. Notwithstanding anything in this Agreement to the contrary in the event that this Agreement is terminated pursuant to this Section,the provisions of the Original WDA shall remain in full force and effect on the terms and conditions set forth therein. ARTICLE VII GENERAL PROVISIONS SECTION 7 1 OPERATION AND MAINTENANCE OF THE DISPOSAL SYSTEM. The County at its cost and expense through the County Solid Waste Enterpnse Fund, shall at all times operate, or caused to be operated, the Disposal System in accordance with Applicable Law and the operating rules and regulations of the Department. SECTION 7.2 UNCONTROLLABLE CIRCUMSTANCES GENERALLY (A) Performance Excused. Except as otherwise specifically provided in this Agreement, neither the County nor the City shall be liable to the other for any failure or delay in the performance of any obligation under this Agreement (other than any payment at the time due and owing) to the extent such failure or delay is due to the occurrence of an Uncontrollable Circumstance. (B) Notice, Mitigation. The party experiencmo an Uncontrollable Circumstance shall notify the other party by telecommunication or telephone and in writing, on or promptly after the date the party experiencing such Uncontrollable Circumstance first knew of the commencement thereof; followed within 15 days by a written description of(I)the Uncontrollable Circumstance and the cause thereof(to the extent known),(2)the date the Uncontrollable Circumstance began and the cause thereof, its estimated duration, the estimated time during which the performance of such party's obligations hereunder will be delayed, (3)the, estimated amount, if any by which the Contract Rate may need to be adjusted as a result of such Uncontrollable Circumstance, (4)its estimated impact on the other obligations of such party under this Agreement and(5)potential mitigating actions which might be taken by the County or City and any areas where costs might be reduced and the approximate amount of such cost reductions. Each party shall provide prompt written notice of the cessation of such Uncontrollable Circumstance. Whenever such act, event or condition shall occur, the party claiming to be adversely affected thereby shall,as promptly as reasonably possible,use its best efforts to eliminate the cause therefor,reduce costs and resume performance under this Agreement. In addition,with respect to Changes in Law the County shall diligently contest any such changes the imposition of which would have a material adverse impact on the Disposal System. While the delay continues, the County or City shall give notice to the other party before the first day of each succeeding month,updating the information previously submitted. (C) Impact on Contract Rate. If and to the extent that Uncontrollable Circumstances interfere with, delay or increase the cost to the County of meeting its obligations hereunder and providing Disposal Services to the Participating Cities in accordance herewith, the County shall he entitled to an increase in the Contract Rate as provided in Section 4.2 herein or an extension in the schedule for performance equal to the amount of the increased cost or the time lost as a result thereof. The proceeds of any insurance available to meet any such increased cost shall be applied to such purpose prior to any determination of cost increases payable under this subsection. Any cost reductions achieved through the mitigating measures undertaken by the County pursuant to subsection 7.2(B)hereof upon the occurrence of an Uncontrollable Circumstance shall be reelected in a reduction of the amount by which the 26 Sa nary Dicirict i xecuti Copy Contract Rate would have otherwise been increased or shall serve to reduce the Contract Rate to reflect such mitigation measures,as applicable. SECTION 7.3 INDEMNIFICATION. To the extent permitted by law the County agrees that, it will protect, indemnify defend and hold harmless the City from and against all Loss-and-Expense arising from the City's activity as an arranger (for purposes of and as such term is defined under CERCLA or comparable state statutes) of municipal solid waste disposal pursuant to this Agreement. In the event the City shall determine that because of conflict or any other reason that it wishes to be defended by legal counsel other than the legal counsel provided by the County the cost of providing such legal counsel shall be the City s sole responsibility The City acknowledges the County s legitimate interest in actively participating in any defense, litigation or settlement whether the County or the City provides legal counsel. Any costs incurred by the County pursuant to this Section shall be considered an Uncontrollable Circumstance cost and the County shall be entitled to adjust the Contract Rate as provided in subsection 4.2(A) herein. The County shall not, however, be required to indemnify or defend the City from and against all Loss-and-Expense arising from any willful, knowing, illegal or negligent disposal of hazardous waste (other than incidental amounts of Household Hazardous Waste commonly found in municipal solid waste and permitted to be disposed in Class III landfills under RCRA) which violates the County's landfill permits or Applicable Law The parties agree that this provision constitutes an indemnity under CERCLA(to the extent of the specific provisions of this Section). The parties acknowledge that this subsection is not intended to and does not create any obligation on the part of the County to provide any indemnification or defense to any Franchise Hauler, whether franchised or not, or any Independent Hauler or Transfer Station, under any circumstances. The City acknowledges the County s legitimate interest in actively participating in any defense, litigation or settlement, and shall,as a condition to this indemnity coordinate fully with the County in the defense. SECTION 7 4 RELATIONSHIP OF THE PARTIES. Neither party to this Agreement shall have any responsibility whatsoever with respect to services provided or contractual obligations or liabilities assumed by the other party hereto, whether accrued, absolute, contingent or otherwise, or whether due or to become due. The County is an independent contractor of the City and nothing in this Agreement shall be deemed to constitute either party a partner, agent or legal representative of the other party or to create any fiduciary relationship between the parties. SECTION 7 5 LIMITED RECOURSE. (A) To the City Except in the event the City has not established or maintained a City Solid Waste Enterprise Fund,no recourse shall be had to the general funds or general credit of the City for the payment of any amount due the County hereunder,or the performance of any obligation incurred hereunder,including any Loss- and-Expense of any nature arising from the performance or non-performance of the City's obligations hereunder. The sole recourse of the County for all such amounts shall be to the funds held in any such Solid Waste Enterprise Fund. All amounts held in any City Solid Waste Enterprise Fund shall be held for the uses permitted and required thereby,and no such amounts shall constitute property of the County The City shall make adequate provision in the administration of any City Solid Waste Enterpnse Fund for the payment of any amount or the performance of any obligation which may be due hereunder. (B) To the County No recourse shall be had to the general funds or general credit of the County for the payment of any amount due the City hereunder, or the performance of any obligation incurred hereunder, including any Loss-and-Expense of any nature arising from the performance or non-performance of the County s obligations hereunder. The sole recourse of the City for all such amounts shall be to the funds held in the County Solid Waste Enterpnse Fund in accordance with the terms of this Agreement. All amounts held in the County Solid Waste Enterprise Fund shall be held for the uses permitted and required thereby and no such amounts shall constitute property of the City The County shall make adequate provision in the administration of the County Solid Waste Enterprise Fund for the payment of any amount or the performance of any obligation which may be due hereunder. SECTION 7.6 PRE-EXISTING RIGHTS AND LIABILITIES. Nothing in this Agreement is intended to affect,release,waive or modify any rights,obligations or liabilities which any party hereto may have to or against the other party as of the Contract Date relating to the disposal of waste in the Disposal System or any other related matter. 27 Sa nary Distnct Ex un Copy SECTION 7 7 NO VESTED RIGHTS. The City shall not acquire any vested property license or other rights in the Disposal System by reason of this Agreement. SECTION 7.8 LIABILITY FOR COLLECTION, TRANSPORTATION AND PROCESSING. Any liability incurred by the City as a result of collecting Acceptable Waste or processing it for diversion from landfill, or as a result of causing,franchising,permitting,licensing, authorizing or arranging any of the foregoing,shall be its sole liability except as expressly otherwise provided herein. SECTION 7.9 NO CONSEQUENTIAL OR PUNITIVE DAMAGES. In no event shall either party hereto be liable to the other or obligated in any manner to pay to the other any special, incidental, consequential, punitive or similar damages based upon claims arising out of or in connection with the performance or non- performance of its obligations or otherwise under this Agreement, or the material inaccuracy of any representation made in this Agreement, whether such claims are based upon contract, tort, negligence, warranty or other legal theory SECTION 7-10 AMENDMENTS. 'Neither this Agreement nor any provision hereof may be changed, modified,amended of waived except by,written agreement duly authorized and executed by both parties. SECTION 7 l l NOTICE OE LITIGATION. Each party shall deliver written notice to the other of any Legal Proceeding to which it 's party and which questions the validity or enforceability of this Agreement executed by the City or the County or any Legal Entitlement issued in connection herewith. SECTION 7 12 FURTHER ASSURANCES. At any and all limes the City and the County so far as may be authorized by law shall pass,make,do, execute,acknowledge and deliver any and every such further resolutions, acts, deeds, conveyances, itistrunients, assignments, transfers and assurances as may be necessary Or reasonably requested by the other in order to give full effect to this Agreement. SECTION 7 13 ASSIGNMENT OF AGREEMENT (A) Assignment. Neither this Agreement nor any of the rights or obligations hereunder may be assigned by either party hereto without the prior written consent of the other party which may be withheld in the other party's sole discretion. Notwithstanding the foregoing, either party may assign this Agreement to another public entity subject to the reasonable consent of the other party In such circumstances the party not requesting the assignment shall have the right to demand assurances of the financial, technical and legal ability of the proposed assignee to undertake the responsibilities and obligations of the assigning party (B)Sale.The County shall not enter into any agreement for the sale of the Disposal System which provides for an effective.date for such sale prior to the termination of this Agreement. SECTION 7 14 INTEREST ON OVERDUE OBLIGATIONS. Except as otherwise provided herein, all amounts due hereunder, whether as damages, credits, revenue or reimbursements, that are not paid when due shall bear interest at the Overdue Rate on the amount outstanding from time to time, on the basis of a 365-day year, counting the actual number of days elapsed,and all such interest accrued at any time shall,to the extent permitted by Applicable Law,be deemed added to the amount due,as accrued. SECTION 7 15 BINDING EFFECT This Agreement shall bind and inure to the benefit of the parties hereto and any successor or assignee acquiring an interest hereunder consistent with the provisions of Section 7 13 hereof. SECTION 7 16 NOTICES. Any notice or communication required or permitted hereunder shall be in writing and sufficiently given if delivered in person or sent by certified or registered mail, postage prepaid, to the notice address of the respective parties set forth on the cover page of this Agreement. Changes in tht, respective addresses to which such notices may be directed may be made from time to time by any party by notice to the other party 28 Sa nary Dtstnc Execun Copy IN WITNESS WHEREOF COUNTY and CITY have caused this Agreement to be executed by their duly authorized officers or representatives as of the day and year first above written. CO Y OF ORANGE I r � ' U Date 1/ By Director,0 Waste& ecycling Date tP'a 9 -o y By Li..0 -[NAME] Saridary D•s .ct Represent?tivc ••/I Costa M a Sanitary Dist jet Date N -2. Y di By [NAME] Sanitat District Representative Costa Mesa Sanitary District APPROVED AS TO FORM: COU,P4r\COUNSEL ORANGE , OU TY CALIFORNI•• ?g Sa ttary District Ex till Copy APPENDIX I ESTIMATED ANNUAL TONNAGE Sa 'tar Dtstr et Cxecett Copy APPENDIX 1 PERCENTAGE OF COUNTY ACCEPTABLE WASTE ATTRIBUTABLE TO PARTICIPATING CITIES FOR PURPOSE OF SECTION 6.2(b) Jurisdiction Percentage of County Acceptable Waste Anaheim 13.4% Santa Ana 10.6% Irvine 7.5% Huntington Beach 6.0% Orange 5.8% Garden Grove 5.1,o Fullerton 4.5% Unincorporated Orange County(') 4.3% Costa Mesa 3.6% Newport Beach 3.0% Lake Forest 2.6% Buena Park 2.5% Mission Viejo 2.3% Westminster 2.3% Yorba Linda 2.3% Brea 2.1.0 Tustin 2.0% Cypress 1.9% La Habra 1.8% San Clemente 1.7% Fountain Valley 1.6% Laguna Niguel 1.6% Placentia 1.6% San Juan Capistrano 1.6% Laguna Beach 1 4% Dana Point 1.2% Stanton 1.1% Rancho Santa Margarita 1.0% Laguna Hills 0.9% Seal Beach 0.8% Aliso Viejo 0.7% Los Alamitos 0.5% La Palma 0.3% Laguna Woods 0.21,0 Villa Park 0.2% Total 100% (1) Unincorporated County is assumed to be a Participating City for the purposes of determining the Commencement Date in accordance with Section 6.2(b)of this Agreement. (2)A Participating City will only be included for purposing of determining the Commencement Date upon(i)execution of a Waste Disposal Agreement by that Participating City and(ii) execution of a Hauler Acknowledgement(s)by the Franchise Hauler(s)operating within such Participating City Sa nary Distnct Gx unon Copy APPENDIX 2 CUMULATIVE TONNAGE TARGETS Sammry Distnci Ba on Copy APPENDIX 2 Cumulative County Acceptable Waste Tonnage Target to be Used for Purposes of Section 4.2(B) Fiscal Year County Acceptable Waste Cumulative County Tonnage Acceptable Waste Tonnage FY 2008-09 3,170,387 3,170,387 FY 2009-10 3,092,806 6,263,193 FY 2010-11 3,185 590 9 448,783 FY 2011 12 3,344,870 12,793,653 FY 2012 13 3,445,216 16,238,869 FY 2013-14 3,514,120 19 752,989 FY 2014-15 3,549,262 23,302,251 FY 2015-16 3,565,608 26,867 859 FY 2016-17 3,582,033 30,449,892 FY 2017-18 3,598,535 34,048,427 FY 2018-19 3,615,115 37,663,542 FY 2019-20 3,621,774 41,295,316 Sa nary Distnct Ex on Copy APPENDIX 3 CUMULATIVE CAPITAL COSTS to be Used for Purposes of Section 4.2(A)vi Fiscal Year Annual Capital Costs Cumulative Capital Costs _ (ending June 30) 2009 $37,939,538 $37,939,538 2010 $59,343,405 $97,282,943 2011 $10,433,978 $107,716,921 2012 $13,678,113 $121,395,034 2013 $17,525,040 $138,920,074 2014 $11,259,518 $150,179,592 _ 2015 $37,682,758 $187,862,350 2016 $5,068,800 $192,931,150 2017 $10,662,265 $203,593,415 2018 $29,397,698 $232,991,113 2019 $8,263,795 $241,254,908 2020 $45,103,805 $286,358,713 Sanitary District Execution Copy APPENDIX 4 FORM OF HAULER ACKNOWLEDGMENT Sa itary District Ls anon Copy FRANCHISE HAULER ACKNOWLEDGMENT THIS FRANCHISE HAULER ACKNOWLEDGMENT dated as of G 2L 2009 (the Acknowledgment"), by and between the - . _ ^ • -4 (theme) and Cfl.flL (the `Franchise Hauler'). Costa Mesa Sanitary District 'District" WITNESSETH [WHEREAS, the City and the Franchise Hauler have heretofore entered into an agreement entitled dated as of% „0-4, (the 'Franchise');and[ [WHEREAS, the City has issued to the Franchise Hauler a permit, license. approval or other authorization the Authorization') which allows the Franchise Hauler to provide solid waste collection services within the City and]] [WHEREAS. the Franchise [SUBSTITUTE AUTHORIZATION' THROUGHOUT IF APPLICABLE]] provides for the collection and disposal of certain municipal solid waste as described therein ("Franchise Waste') generated within the City and] WHEREAS.Orange County(the 'County')owns,manages and operates a sanitary landfill disposal system for municipal solid waste generated within the County and WHEREAS,the City and the County have heretofore entered into a Waste Disposal Agreement,dated as of 2008 (the 'Disposal Agreement) determining that the execution of such Disposal Agreement will serve the public health,safety and welfare of the residents of the City and County by maintaining public ownership and stewardship over the Orange County Landfill Disposal System(the 'Disposal System');and WHEREAS, under the Disposal Agreement, the County has agreed to provide long-term disposal of all municipal solid waste generated within the City and the City has agreed to exercise all legal, and contractual power which it possesses from time to time to deliver or cause the delivery of such waste to the Disposal System;and WHEREAS, the provisions of the Waste Disposal Agreement which guarantee capacity for the long term disposal of waste at specified rates generated in the City provide significant benefits to the Franchise Hauler. WHEREAS, notwithstanding any Franchise provisions to-the contrary the Franchise Hauler explicitly acknowledges the aforementioned benefits to the City the County and the Franchise Hauler in providing for the disposal of all Franchise Waste to the Disposal System; and WHEREAS.the City and the Franchise Hauler desire to enter into this Acknowledgment to assure that the City and the Franchise Mauler will be entitled to the benefits of the Waste Disposal Agreement and to assure conformity with the waste delivery obligations which have been agreed to by the City under the Disposal Agreement through the delivery of waste by the Franchise Hauler to the Disposal System; and WHEREAS, the Franchise Hauler s agreement to deliver Franchise Waste to the Disposal System under this Acknowledgment is given in consideration of the Franchise Haulers right to receive the Contract Rate for such disposal as provided in the Disposal Agreement. NOW THEREFORE, in consideration of the premises and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties hereto, intending to be legally bound hereby agree as follows: Capitalized terms used and not otherwise defined herein are used as defined in the Disposal Agreement Sa nary Distr it 13 utwn Cops 2. The Franchise Hauler hereby waives any right which it may possess under applicable law to contest on any ground, constitutional, statutory case law administrative or otherwise, (a)the right, power or authority of the County or the City to enter into or perform their respective obligations under the Disposal Agreement, (b)the enforceability against the County or the City of the Disposal Agreement. or(c)the right, power or authority of the City to deliver or cause the delivery of all Controllable Waste to the Designated Disposal Facility in accordance with this Acknowledgment. The City and the Franchise Hauler each hereby represent that this Acknowledgment has been duly authorized by all necessary action of their respective governing bodies. 4. The Franchise Hauler shall deliver or cause to be delivered all Controllable Waste (including all residue from the processing by any means, wherever conducted,of Controllable Waste), to the Disposal System,and shall otherwise assist the City in complying with its obligations under the Waste Disposal Covenant in Section I of the Disposal Agreement 5 The Franchise Hauler shall not haul Controllable Waste to any materials recovery facility composting facility intermediate processing facility recycling center transfer station or other waste handling or management facility unless the contract or other agreement or arrangement between the Franchise Hauler and the operator of such facility is sufficient in the opinion of the County to assure that the Residue from such facility constituting City Acceptable Waste (or Tonnage equivalencies) and the City Acceptable Waste transferred by such facility shall be delivered to the Designated Disposal Facility in compliance with the Waste Disposal Covenant. 6. The Franchise Hauler shall pay the Contract Rate imposed by the County at the Designated Disposal Facility for the disposal of all Controllable Waste, which rate shall be subject to potential adjustment necessary to reflect the circumstances set forth in the Disposal Agreement. 7 Nothing in this Acknowledgment is intended to restrict any right or responsibility explicitly given the Franchise Hauler in the Franchise to recycle City Acceptable Waste, except as provided in paragraph 5 above with respect to Residue from any such recycling operations. S The obligations of the Franchise Hauler under this acknowledgment shall apply notwithstanding any provision of the Franchise which may conflict herewith. 9 This Acknowledgment may be enforced by the City by any available legal means. In any enforcement action by the City the burden of proof shall be on the Franchise Hauler to demonstrate compliance herewith. 10 This Acknowledgment shall be in full force and effect and shall be legally binding upon the City and Franchise Hauler from the dated hereof and shall continue in full force and effect until the earlier of(i)the end of the term of the Franchise or(ii)the end of the term of the Disposal Agreement. I I The City and Hauler agree that the County shall be an express third party beneficiary of this Acknowledgment,and shall be entitled to independently enforce the obligations of the Franchise Hauler hereunder. 12. The Hauler agrees to assist the County in verifying tonnage collected by the Franchise Hauler and providing information required by the County Hauler will provide upon request refuse tonnage collected within the County and outside the County (if relevant to confirming tonnage origination), separated by jurisdiction, by load type (residential, commercial, roll-off box), and by facility to which it was delivered (specify which landfill or transfer station). Hauler will provide customer service levels and route lists. Hauler will cooperate with County audits to verify reported origin of tonnage by making records and personnel available to the County and/or its auditors. Sanitary Distr et E> uu Copy IN WITNESS WHEREOF the parties have aused this Acknowledgment to be executed by their duly authorized officers or representatives as of 2atihday of Time ilkitSx.x 2009 a Costa Mesa Sauitary'District ! Signature: . A _-'/ ' r Printed Name.Ariee n $chafer Title:President Costa Mesa Sani ary District . , - (Franchise Hauler) p Signature: �C�''�`�/`���'�11,x-_/( Printed Name:�E4of fir. IC VIFFr>bC Title: Sl.r ivtAi ict PR<SJCIetip Sanitary Dist ct Execution Copy