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16-0419_ORANGE, COUNTY OF_E1b_Agenda ReportCity of San Juan Capistrano Agenda Report TO: Honorable Mayor and Members of the City Council 4/19/2016 E1b FROM: ~n Siegel, City Manager SUBMITTED BY : Steve May, Public Works and Utilities Director~~ PREPARED BY: Noreen Swiontek, Senior Management Analys ,; DATE: April19, 2016 SUBJECT: Consideration of an Amendment to the 2009 Waste Disposal Agreement (WDA) with the County of Orange; and Consideration of Approval of Amendment Two (2) to the Memorandum of Understanding (MOU) Between the City of San Juan Capistrano and the County of Orange Regarding the Prima Deshecha Landfill RECOMMENDATION: By motion, 1. Approve the Amendment to the Waste Disposal Agreement (WDA) with the County of Orange with an extension through June 30, 2025; and 2. Approve Amendment Two (2) to the Memorandum of Understanding (MOU) between the City of San Juan Capistrano and the County of Orange regarding the Prima Deshecha Landfill; and 3. Authorize the City Manager to execute the WDA Amendment and MOU Amendment on behalf of the City; and 4. Direct the City Manager to continue negotiations with the County of Orange on a Cooperative Agreement regarding the Prima Deshecha Landfill. EXECUTIVE SUMMARY: On April 5, 2016, the City Council considered an extension and amendment to the 2009 Waste Disposal Agreement with the County of Orange. At that meeting, the City Council continued the item to the April 19, 2016, City Council meeting. Attachment 1 contains the April 5, 2016, agenda report and supporting documents. Staff was directed to continue discussions with the County of Orange to address impacts associated with the City's role as a landfill "host city." City Council Agenda Report April 19 , 2016 Page 2 of 4 Pursuant to City Council direction, the City Manager has met with the Director of OC Waste & Recycling and has reached a tentative agreement in the form of an Amendment to the current Prima Deshecha Memorandum of Understanding (MOU) between the City and the County. A copy of the original MOU and First Amendment to the MOU is provided in Attachment 2. The proposed Second Amendment to the MOU is provided in Attachment 3. The proposed MOU Amendment is contingent upon the City Council's approval of the WDA Amendment prior to April 20, 2016. The key terms of the proposed MOU Amendment are as follows: • County to increase per ton host fee for imported waste from $1.16 to $1.50 effective July 1, 2016. Since the Prima Deshecha Landfill receives limited imported waste, this would result in a little over $20,000 of additional revenue per year. • County to add a $1.50 per ton host fee for in-county waste effective July 1, 2016. The City does not currently receive any revenue for in-county waste. This would provide the City with approximately $500,000 in new revenue per year. • County to provide $25,000 per year for environmental education. The County of Orange has also agreed to continue negotiations to develop a new Cooperative Agreement to address other areas of concern and potential mitigation measures. Correspondence from the Director of OC Waste & Recycling is provided as Attachment 4. DISCUSSION/ANALYSIS : At the April 5, 2016, City Council meeting , Council members expressed a number of concerns related to the City's role as a landfill "host city." Prior to approving the WDA Amendment, the City Council directed staff to explore options to address the following concerns with the County and return April 19, 2016, to continue consideration of the WDA Amendment: • Additional compensation to address City road maintenance costs • Potential alternate truck routes • Restricting trash truck traffic to non-peak hours • Funding for traffic enforcement With regard to traffic mitigation, based on discussions with CR&R Waste Services, once the La Pata connection opens in fall 2016, at least 40 waste trucks per day will be shifted from Ortega to La Pata. Further, the La Pata Avenue Gap Connector Project is anticipated to result in a significant reduction in traffic volume on Ortega Highway (projected reduction of 4,000 vehicles per day in 2016), which will benefit San Juan Capistrano. Extension of the WDA does not affect the number of import trash vehicles on Ortega, which is on average 10 per day . Further, the WDA does not increase the cap on daily maximum waste tonnage received at Prima Deshecha Landfill. City Council Agenda Report April 19 , 2016 Page 3 of 4 The County recognizes the need to continue negotiations related to the County's proposal to revise its Solid Waste Facility Permit with the State . Through that parallel track, the County is committed to discussing a lump sum mitigation payment, alternative traffic routes and potential adjustments to route hours to avoid peak traffic congestion on Ortega. While these are critically important issues, they will not be resolved by the April 19, 2016, City Council meeting. Rather, the County is proposing to continue negotiations and approve a Cooperative Agreement with the City by June 2017 . Conclusion : The WDA strategically leverages a countywide asset. The solid waste revenues are utilized by the County to maintain the landfill system, preserve funds for landfill closure costs, address post-closure maintenance, and mitigate long-term risk and environmental liabilities . The cities in the County benefit from additional services provided by the County, which include permanent household hazardous waste collection facilities and green waste acceptance at no charge to cities to assist with compliance with state recycling mandates. It is recommended that the City Council approve the Amendment to the WDA to provide stable rates for residents and businesses, continued service levels, maintain long-term partnerships between the City and the County, and provide for the City's share of net importation revenues. Staff recommends the City Council approve the Prima Deshecha MOU Amendment as consideration for the City's approval of the WDA Amendment. Upon approval of the City Council, the City Manager will continue negotiations with the County of Orange for a Cooperative Agreement that will provide additional compensation and potential traffic mitigation options. FISCAL IMPACT : Upon execution of the WDA Amendment by all of the Participating Cities, the County will pay an aggregate $5,400,000 to the Participating Cities as consideration for the execution of this Amendment. The City of San Juan Capistrano allocation percentage is 1.23% of the total $5,400,000 payment , equaling $66,420 in Fiscal Year 2016-17, and projected to increase to $111,000 by Fiscal Year 2018-19 . The increase to $1.50 per ton of import waste from the current $1 .16 per ton the City receives as a landfill host city is projected to result in over $20 ,000 in new revenue annually. Over $500,000 annually of new revenue is projected with the addition of $1.50 per ton compensation for in-county waste received at the Prima Deshecha Landfill. In addition, the County will provide $25,000 annually for environmental education. ENVIRONMENTAL IMPACT: Not applicable . City Council Agenda Report April 19, 2016 Page 4 of 4 PRIOR CITY COUNCIL REVIEW: • On April 8, 1997, the City Council entered into a Waste Disposal Agreement. • On May 18, 2004, the City Council approved Amendment 1 to the 1997 Waste Disposal Agreement. • On May 5, 2009, the City Council entered into a new Waste Disposal Agreement executed by the County of Orange on July 23, 2009. • On September 15, 2015, the City Council approved the initial September 30, 2015 effective date Waste Disposal Agreement. • On April 5, 2016, the City Council continued the WDA Agreement to April 19, 2016, and directed staff to engage in discussions with the County to address several City Council concerns and additional mitigations as a host city to the Prima Deshecha Landfill. COMMISSION/COMMITTEE/BOARD REVIEW AND RECOMMENDATIONS: This item does not go through the Commission/Committee review process. NOTIFICATION: OC Waste and Recycling CR&R , Inc . ATTACHMENT(S): Attachment 1 -April 5, 2016, Agenda Report F16 and supporting documents Attachment 2-Prima Deshecha MOU and Amendment One (1) Attachment 3 -Prima Deshecha Proposed MOU Amendment Two (2) Attachment 4 -County of Orange Proposal Letters 4/5/2016 F16 TO: Honorable Mayor and Members of the City Council FROM: ~~Siegel, City Manager SUBMITTED BY: Them Coughran, Interim Public Works and Utilities Direct~ PREPARED BY: Noreen Swiontek, Senior Management Analyst# DATE: April 5, 2016 SUBJECT: Consideration of an Extension and Amendment to the 2009 Waste Disposal Agreement with the County of Orange with a Revised Effective Date of June 30, 2016 RECOMMENDATION: By motion, authorize the City Manager to execute the Extension and Amendment to the July 23, 2009, Waste Disposal Agreement with the County of Orange through June 30, 2025, with a revised effective date of June 30, 2016. EXECUTIVE SUMMARY: The disposal of solid waste at Orange County landfills is governed by a 2009 Waste Disposal Agreement (WDA). Pursuant to the WDA, Orange County cities have agreed to deposit their solid waste at the County's three (3) landfill facilities in return for low, stable disposal rates. The term of the current WDA began on July 1, 2010, and runs through June 30, 2020, with importation of waste from outside the County currently set to expire on June 30, 2016 (Attachment 1 ). On September 15, 2015, the City Council approved an Amendment to the 2009 Waste Disposal Agreement (WDA) to provide for continuation of importation of waste at the County landfills, allocation of future importation revenues among Orange County cities, and to extend terms of the WDA through June 30, 2025. A revision to the effective date of the WDA Amendment was needed to allow additional time for the County to secure all city approvals, and all cities are being asked to re-approve the WDA Amendment with that minor revision. It is recommended that the City Council approve the Amendment to the WDA to provide stable rates for residents and businesses, continued service levels, maintain long-term partnerships between the City and the County, and provide for the City's share of net importation revenues. The revised effective date was approved by the County Board of Supervisors on December 15, 2015, and requires approval by participating agencies Attachment 1 City Council Agenda Report April 5, 2016 Page 2 of 3 (Attachment 2). The City's approval of the WDA is independent of future negotiations related to a Cooperative Agreement with the County that acknowledges impacts associated with hosting one of the County's three landfills. DISCUSSION/ANALYSIS: On September 15, 2015, the City Council approved the WDA Amendment with the County to provide for continuation of waste importation at the County's three landfills and to extend the terms of the WDA through June 30, 2025. The WDA Amendment established an effective date of September 30, 2015. However, one city did not approve the Amendment by the required deadline. As all outstanding issues appear to have been resolved, the County is requesting all cities re-approve an updated amendment. The revision to the WDA Amendment updates the effective date from September 30, 2015, to June 30, 2016. The County Board of Supervisors approved this effective date modification at their December 15, 2015, meeting. All other terms and conditions that were negotiated in the April 2015 WDA Amendment remain in full force and effect. With the success of waste diversion and recycling in recent years and the slow recovery from the recession, in-county waste generation has dramatically decreased, which in turn has reduced revenues for OC Waste and Recycling. A committee of City Managers representing Orange County cities participated with the County in preparing a framework to address the reduction in revenues and to ensure rate stabilization for local residents and businesses. The proposed Amendment to the WDA sets forth a plan for the continuation of importation of out-of-county waste to offset the revenue reduction, and establishes a fair-share allocation of net importation revenues to cities. An in-depth review of County resources concluded the amount of imported waste combined with in-county waste will remain below total disposal tonnage projections contemplated in the current WDA. The proposed 5-year extension of the WDA to 2025 will provide additional stability to the system in light of more stringent legislative and regulatory requirements such as Assembly Bill 1826, Assembly Bill 1594 and the 75% recycling target of Assembly Bill 341. The WDA does not alter the current terms of the City's Agreement with the County regarding operation of the Prima Deshecha Landfill. Further, it does not increase the cap on daily maximum waste tonnage received at Prima Deshecha Landfill or increase the number of truck trips. The WDA strategically leverages a countywide asset. The solid waste revenues are utilized by the County to maintain the landfill system, preserve funds for landfill closure costs, address post-closure maintenance, and mitigate long-term risk and environmental liabilities. The cities in the County benefit from additional services provided by the County, which include permanent household hazardous waste collection facilities and green waste acceptance at no charge to cities to assist with compliance with state recycling mandates. City Council Agenda Report April 5, 2016 Page 3 of 3 FISCAL IMPACT: Upon execution of the Amendment by all of the Participating Cities, the County will pay an aggregate $5,400,000 to the Participating Cities as consideration for the execution of this Amendment. Payment will be distributed to individual Participating Cities in the percentage set forth in Attachment 3. The allocation percentages were derived from a calculation of population and use of landfill. The City of San Juan Capistrano allocation percentage is 1.23% of the total $5,400,000 ratification payment, equaling $66,420 in Fiscal Year 2016-17, and projected to increase to $111,561 by Fiscal Year 2018-19. The WDA revenue sharing is in addition to the current $1.16 per ton of import waste the City receives as a landfill host city. Total import waste revenue for 2014 was $22,429. Staff is also engaged in preliminary discussions with the County to develop a new Cooperative Agreement for future consideration by the City Council and Board of Supervisors. ENVIRONMENTAL IMPACT: Not applicable. PRIOR CITY COUNCIL REVIEW: • On April 8, 1997, the City Council entered into a Waste Disposal Agreement. • On May 18, 2004, the City Council approved Amendment 1 to the 1997 Waste Disposal Agreement. • On May 5, 2009, the City Council entered into a new Waste Disposal Agreement executed by the County of Orange on July 23, 2009. • On September 15, 2015, the City Council approved the initial September 30, 2015 effective date Waste Disposal Agreement. COMMISSION/COMMITTEE/BOARD REVIEW AND RECOMMENDATIONS: This item does not go through the Commission/Committee review process. NOTIFICATION: OC Waste and Recycling CR&R, Inc. ATTACHMENT(S): Attachment 1 -Waste Disposal Agreement July 23, 2009 Attachment 2-Amendment to WDA (revised effective date 6-30-16) Attachment 3 -Waste Disposal Agreement Estimated Revenue Sharing Distribution , WASTE DISPOSAL AGREEMENT Between THE COUNTY OF ORANGE, CALIFORNIA County Authorization Date: March 24, 2009 County Notice Address: Director OC Waste and Recycling 300 N. Flower, Suite 400 Santa Ana, CA 92703 Execution copy and The CITY OF SAN nJAN CAPISTRANO '2009 City Authorization Date: May 5, 2009 City Notice Address Dave Adams, City Manager City of San Juan Capistrano 32400 Paseo Adelanto San Juan Capistrano, CA 92675 Section I .1 Section 1.2 Section 2.1 Section 2.2 TABLE OF CONTENTS ARTICLE I DEFINITIONS AND INTERPRETATION DEFINITIONS .................................................................................................................................. 2 INTERPRETATION ......................................................................................................................... 7 ARTICLE II REPRESENTATIONS AND WARRANTIES REPRESENTATIONS AND WARRANTIES OF THE CITY ..... : .................................................. 8 REPRESENTATIONS AND WARRANTIES OF TilE COUNTY ................................................. 9 ARTICLE III DELJVERY AND ACCEPTANCE OF WASTE AND PROVISION OF DISPOSAL SERVICE Section 3.1 Section 3.2 Section 3.3 Section 3.4 Section 3.5 Section 3.6 Section 3.7 Section 4. I Seetion 4.2 Seetion4.3 Section4.4 Section 4.5 Section 4.6 Section4.7 &ction S.l Section 5.2 Section 5.3 Section 5.4 Section 5.5 Section 6.1 Section 6.2 &ecution Cc!py DELIVERY OF WASTE .................................................................................................................. 9 PROVISION OF DISPOSAL SERVICES BY THE COUNTY ..................................................... II COUNTY RIGHT TO REFUSE WASTE ...................................................................................... 12 UNINCORPORATED AREA ACCEPTABLE WASTE ............................................................... 13 MISCELLANEOUS OPERATIONAL MA1TERS ....................................................................... l4 OTHER USERS OF THE DISPOSAL SYSTEM .......................................................................... 14 COUNTY PROVISION OF WASTE DIVERSION SERVICES ................................................... IS ARTICLE IV CONTRACT RATE CHARGING AND SBCURJNG PAYMENT OF CONTRACT RATE ......................................... 1.5 CONTRACT RA TB ........................................................................................................................ lS RESPONSIBILITY FOR PAYMENT OF 1HE CONTRACT RATE ........................................... 21 BILLING OF THE CONTRACT RA TB ........................................................................................ 2l RESTRlCTED RESERVES ............................................................................................................ 21 AUDITED FINANCIAL STATEMENTS ...................................................................................... 22 ANNUAL UPDATE OF TEN-YE;AR FINANCIAL PROffiCTION ............................................. 22 ARTICLEV BREACH, ENFORCEMENT AND TERMINATION BRBACH ........................................................................................................................................ 23 CITY CONVENIENCE TBRMINA TION ..................................................................................... 23 TERMINATION ............................................................................................................................. 23 NO WAIVERS ................................................................................................................................ 24 FORUM FOR DISPUTE RESOLUTION ............................................................... : ...................... 24 ARTICLE VI TERM EFFECTIVE DATE AND TERM .................................................................................................. 24 COMMENCEMENT DATE ........................................................................................................... 25 Section 7.1 Section 7.2 Section 7.3 Section 7.4 Section 7.5 Section 7.6 Section 7.7 Section 7.8 Section 7.9 Section 7.1 o Section 7.11 Section 7.12 Section 7.13 Section 7.14 Section 7.15 Section 7.16 APPENDIX J ARTICLEVIl GENERAL PROVISIONS OPERATION AND MAINTENANCE OF THE DISPOSAL SYSTEM ....................................... 26 UNCONTROLLABLE CIRCUMSTANCES GENERALLY ........................................................ 26 INDEMNIFICATION ..................................................................................................................... 27 RELATIONSHIP OF TI-IB PARTIES ............................................................................................ 27 LIMITED RECOURSE ................................................................................................................. :27 PRE~EXISTING RIGHTS AND LIABILITIES ................... ; ......................................................... 27 NO VESTED RIGHTS ............................................................................................................ ; ...... 28 LIABILITY FOR COLLECTION, TRANSPORTATION AND PROCESSING .......................... 28 NO CONSEQUENTIAL OR PUNITIVE DAMAGES .................................................................. 28 AMENDMENTS ............................................................................................................................ 28 NOTICE OF LITIGATION ............................................................................................................ 28 FURTHER ASSURANCES ........................................................................................................... 28 ASSIGNMENT OF AGREEMENT ............................................................................................... 28 INTEREST ON OVERDUE OBLIGATIONS ............................................................................... 28 BINDING EFFECT ........................................................................................................................ 28 NOTJCES ........................................................................................................................................ 28 ESTIMATED ANNUAL TONNAGE APPENDJX2 CUMULATIVETONNAGETAROE~ APPENDIX3 CUMULATIVE CAPITAL COSTS APPENDJX4 FORM OF HAULER ACKNOWLEDGEMENT ii Execution Copy • ARTICLE I DEFINITIONS AND INTERPRETATION SECTION 1.1 DEFfNITIONS. As used in this Agreement, the foJlowing 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 nonnally disposed of by or collected from residential (slnale family and multi-family), commercial, indiJsttial, governmental and institutional establishments and which are acceptable at Class m landfills under Applicable Law. "Act" mean~ the California Integrated Waste Management Act of 1989 (Division 30 of the California Public Resources Code), as amended, aupplemented, superseded and replaced from time to time. "Agreement" means Ibis Waste Disposal Agreement between the County and the City BS the same may be amended or modified from time to time in acc:ordance hcrewllh. "Appendix" means an appendix to this Agreement, as the same may be amended or modified from time to time Jn 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 Govemmental Body having jurisdiction, applicable from time to time to the siting, design, pennitting, acquisition, cons1ruction, equipping, fmancing, ownership, possession, operation or maintenance of the Disposal System, the transfer, handling, transportation and disposal of Acceptable Waste, Unacceptable Waste, or any other b"aDsaction 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 Integ111ted Waste Management Board. "Capital Costs" means all costs of the Disposal System that are classified as capital costs for purposes of the budget of tbe Department in accordance with procedures established by tbe County of Orange Auditor- Controller in compliance with the California State Controller's Mmual, including but not limited to an 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 Oranae -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 e1 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 960 I 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 siling, design, permitting, acquisition, cODStruction, equipping, financing, ownership, possession, operation or maintenance of the Disposal System or other m~ 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 ofany Applicable Law (other than Applfeabte Law enacted by the County);' (2) the order or judgment of lillY Governmental Body (other than the CoWity), on or after the Commencement Date, to the extent such order or judgment is not the result of willful or negligent action, error or 2 Exccutloo Copy WASTE DISPOSAL AGREEMENT TH1S 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 uninooi])Omted area within the County (the "Disposal System"). The Di!lpOS&J 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 landfiJI disposal, pursuant to the California Integrated Waste Management Act of 1989 (Division 30 of the California Public Resources Code) (the "Act"). The City, in the exercise of its police power and its powers under the Act, has entered into a franchise or other agreement with or issued permits or licenses to one or more private haulen1 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 environmen1a.l management. The County has detetmlned that the execution by tbe 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 piBII, 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 IUld authorizing its execution and delivery was duly taken by tM 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: Ex«ution Copy omission or lack of reasonable diligence of the County or of the City, whichever is asserting the occurrence of a Ch11nge in Law; provided, however, that the contesting in good faith or the failure in good faith to contest any such order or judgment Bhall not constitute or be construed as such a wlllf\11 or negligent action, error or omission or lack of reasonable diligence; or (3) the denial of an application for, delay in the review, issuance or renewal of, or SUSIJension. 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 denia1, delay, suspension, tenn.lnation, Interruption, imposition or failure materially end adversely interferes with the perfonnance of this Agreement, if and to the extent that such denial, delay, suspension, tennination, interruption, imposition or failure is not the result of willful or negligent action, error or omission or a laclc of reasonable diligence of the County or ofthe City, wbichever is asserting the occurrence of a Change in Law; provided, however that the contesting in good faith or the failure in good faith to contest any such denial, delay, suspension, termination, interruption, imposition or failure shall not be construed as such a willful or negligent action, error or omission or lack of reasonable diligence. A "Change in Law" sha"U include but not be limited to any new or revised requirements relating to the funding or provision of disposal services, including but not limited to any regulations for disposal operations or activities associated with the remediation, closure, funding or monitoring of closed sites with respect to facilities COlllprising 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 SanitaJy District designated on the cover page of this Agreement and party to this Agreement. "City Accept8blc Waste" means aJI Acceptable Waste which was originally discarded by tbe 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.l(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 f'U"St date on which this Agreement has been executed by both parties hereto. "Contract Rate" has the meaning specified in Section 4.2 hereof. "Contract Year" means the fiscal year commencing ·on July 1 In any year and ending on June 30 of the following year . .. ControJJable 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: (l) Non-Recycled City Acceptable Waste; . (2) not generated from the operations of the Governmental Bodies which, under Applicable Law, have the independent power to a:rrange for the disposal of the waste they &enerate; 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 PJan" means the intelfllted waste management pJan of the County approved by the Board pursuant to the Act as in effect from time to time. 3 Execution Copy "County Acceptable Waste'' means Acceptable Waste generated Jn the County. "County OC Waste & Recycling Enterprise Fund" means the waste management enterprise fimd established and managed by the County punuant to Section 25261 of the Government Code separate &om its other funds and accoWits for receipts and disburs ements in connection with the Disposal System. "County-wide Recycling Services" has the meaning set forth in subsection 3.7(A) hen:of. "Cumulative Tonnage Target" for any given Contract Year means the amoWit specified in Appendix 2 hereto with n:spect to such Contract Year. "Depanrnenf' means OC Waste & Recycling, and any agency, department c:ir other Governmental Body which succeeds to the duties and powers thereof. ••Disposal Agreements" means each of the waste disposal agreements entered into between the C01mty and any city within the County, Sanitary Dis1rict or operator of any Tl'llllllfer Station located in the County in accordance herewith . .. Disposal Services" means the solid was te 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. Bowennan 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 lhe 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 pennit, contract, franchise or other agreement with the City. The tenn 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, adm inistn.tion, court or other body, or any officer thereof acting within the scope of his or her authority, .. Hazardous Substance" has the meaning given such tenn in CERCLA, the Carpenter-Presley-Tanner Hazardous Substance Account Act (California Health and Safety Code Section 25300 et seq.), and Titles 22 and 26 of the California Code of Regulations and other regulations promulgated thereunder. "Hazardous Waste" means (a) any waste which by reason of its quality, concentration, composition or physical, chemical or infectious characteristics may do either of the following: cause, or significantly contribute to, an increase in mortality or an increase in serious irreversible, or incapacitating reversible, illness, or pose a substantial threat or potential hazard to human health or the environment, or any waste wbich 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 Rec:oveJ)I Act and the regulations contained in 40 CPR Parts 260-281; (2) the Toxic Substances Control Act (IS U.S.C. Sections 2601 et seq.) and tbe 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, tr~atment, storage or disposal of toxic sub~ces or hazardous wastes; or (b) radioactive materials which are source, special nuclear or by-product material as defmed by the Atomic Energy Act of 1954 (42 u.s:c. Section 2011 e/ seq.) and the regulations contained in 10 CFR. Part 40. 4 Execution 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 compaDies primarily engaged as a principal business in the collection and transportation of municipal solid waste generated i1t 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 Tenn" has the meaning specified in Section 6.1(A) hereof. "Legal Entitlement~· means all pennits, 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 perfonnance 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 aJJ loss, Jiability, 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 pennitted 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 Ca1ifomia in that Conformed Order Confmning Modified Second Amended Plan of Adjustment, filed May 1 7, 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 w•ste prohibited or restricted under Applicable Law from being received by or disposed at the Disposal System. "Qualified Household Hamrdous Waste" means waste materials detennined 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) Carclnogcniclmutageniclteratogeni(:; which are discarded from households as opposed to businesses. Qualified Household Hazardous Waste shall not include Unacceptable Waste. 5 Execution 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 Resourc:es Code. "Renewal Term" has the meaning specified in Subsection 6.1(8) hereof. "Residue" means any material remaining ftom the processins, by any means and to any extent, of City Accepblble Waste or Recycled City Acceptable Waste; provided, however, that Residue shall not Include minimal amounts of material remaining after such processing. (which minimal amOWits shall in no event exceed I 00~ 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 Resourc:e Conservation and Recovery Act, 42 U.S.C.A. Se~ion 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 Conned pursuant to the Sanitary District Act of 1923, codified at Cal. Ann. Health & Safety Code Section 64~ et seq., as amended, supplemented, superseded and replaced from time to time. '"Self-Hauled Waste" means City Acceptable Waste collected and hauled by Self-Haulers. "Self-Hauler" means any person not engaged commercially in waste haulage who collects and hauls Acceptable Waste generated from residential or business activities conducted by such person. "Service Coordinator" means the service coordinator for either party designated pursuant to subsection 3.S(C) hereof. "Service Covenant" means the covenants and agreements of the County set forth in Sections 3.2 and 3.3 hereof. "Source-Separated Household Hazardous Waste" means Qualified Household Hazardous Waste wblch has been segregated from Acceptable Waste originating or generated within abe geographical jurisdiction of the City at the source or location of generation. "Source-S eparated Household Hazardous Waste Disposal System" means the collection centers, facilities, contracts and other ammgements owned or administered by the County for the receipt, handling 1111d disposal of Source-Sepan~ted Household Hazardous Waste. · "State" means the State of California. "Tenn" shall mean the Tenn of this Agreement. "Ton" means a "short ton" of2,000 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, orclnam:e, highly flammable substances, and noxious materials and lead-acid batteries (except if delivered in minbnal quantities); drums and closed containers; liquid waste, ojl, human wastes; machinecy and equipment from commercial or industrial sources, such as hardened gears, shafts, motor vehicles or m~or components thereof, agricultural equipment, trailers, marine 6 Ex"ution Copy vessels 110d steel cable; hot loads; and a11y 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 OJ.' suppliers to the extent that it matorially and adversely affects the ability of either party to perfonn any obligation under the Agreement (except for payment obligations), if such act, event or condition is beyond the reasonable control of and is not also the result of the wiUful or negligent act, error or omission or failure to exercise reasonable diligence on the part of the party relying thereon as justification for not perfonning 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 sucb action or inaction sha11 not bo consbued as willful or negligent action or a lack of reasonable diligonce of either party. Examples of Uncontrollable Circumstances are: (1) . an act of God, landslide, Ugbtnlng, earthquake, tire, explosion, flood, sabotaae or similar occurrence, acts of a public enemy, extortion, war, blockade or insurrection, riot or civil disturbance; and (2) a Change in Law . "UnincolpOillted Area" means those portions of the County which are not contained within the jurisdictional boundaries of incorporated cities. "Unincmporated Area Acceptable Waste" means Acceptable Waste originating from or generated within the Unincorporated Area. "Unrestricted Reserves" means cash and other reserves of the Disposal System which are not Restricted Reserves. "Waste Disposal Covenant" means the covenants and agreements of the City set forth in Section 3.1 hereof. SECTION 1.2 lNTERfRETATION. In this Agreement, unless the context otherwise requires: (A) References Hereto. The tenns "hereby", "hereof', "herein", "hereunder" and any similar tenns refer to this Agreement, and the tenn "hereafter" means after, and the tenn ''heretofore" means before, the Contract Date. (B) Gender and PluraUty. 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) ~. Words importing persons include firms, comp~ies, associations, general pannerships, limited partnerships, trusts, business trusts, corporations and other legal entities, including pubJic 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 Ponv Beneficiaries. Nothing in this Agreement is intended to confer on haulers or any other person other than the parties hereto BJld their respective penniUcd successors 110d assigns hereunder any rights or remedies under or by reason of this Agreement. (F) Counte1])811S. This Agreement may be exeQlted in any number of original counterparts. All such counterparts shall constitute but one and Che same Agreement. 7 Execution Copy • (G) ·Applicable Law. This Agreement shall be governed by and conslnled in accordance with the Applicable Laws of the State of California. (H) Seyerabi!ity. If any clause, provision, subsection, Scotian or Article of this Agreement shall be ruled invalid by any court of jurisdiction, thon the parties shall: (1) promptly meet and negotiate a substitute for such clause, provision, subsection, Section OT Article which shall, to the greatest extent legally per'missible, eff~ the intent of the parties therein; (2) if necessary or desinble 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 u 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 constnled 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 Certpin Agreements. This Agreement contains the entire agreement between the parties with respect to the transactions contemplated hereby. This Agreement shall completely and fully supersede all prior undmtandi.ngs and agreements between the Parties wilh respect to such transactions; provided, however,'lhat this Agreement shall not superse de the following agreements: I) MOU, dated March 10, 1992, between the City of Brea and the County of Orange regarding the Olinda Alpha Landfill as amended on April6, 1993 and November 29, 1994; 2) MOU, dated May 11, 1995, between the City of Brea and the County of Orange regarding importation of out-of-County waste to the Olinda Alpha Landfill; 3) Settlement Agreement, dated August 1, 1984, between the City of Irvine and the County of Orange regarding the Bee Canyon Landfill (currently called Fraok R. Bowerman Litndtill); 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. Bowennan Landfill; · S) 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-COWlty waste to the Prima Deshecha Landfill; 6) MOU, dated July I, 1997, between the City of San Clemente[, the Orange County Flood Control District) and the County of Orange regarding the Prima Desbecha 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 c.on:flict between the recitals and the operative provisions of this Agreement, the operative provisions shall prevail. The recitals shall not be used to interprettbe provisions of the Agreement. ARTICLEll REPRESENTATIONS AND WARRANTIES SECTION 2.1 REPRESENTATIONS AND WARRANTIES Of 1RE CITY. The City represents and warrants that: (A) Existence. The City is a geneml Jaw or charter city validJy existing under the Constitution and laws of the State. 8 Excc:utlon Copy (B) Pue Authoriution. 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 REPBESENTAIJONS AND WARRANTIES OF THE COUNTY. The County represents and warrants that: (A) Existence. The County is a political subdivision of ~e 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 PELIVERY OF WASIE. (A) Waste Disoosal CovcnBD!. Subject to the occurrence of the Commencement Date and throughout the Term of this Agreement, the City shall exercise all legal and cGntractual 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 Citv AcccmabJe Wash;. The parties hereto acknowledge the responsiblllty 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 tl:lstrict 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 Cify and delivered to the Disposal System by or on behalf of the City which may result from any such source separation or recycling program shaU cause the City any liability hereunder (other than potential adjus1ment to the Contract Rate to the extent provided in Article IV hereof) and shall not cons~te a breach oflhls Agreement. (C) Was!e Delivered to Transfer Station. A]] Residue from any processing of ControUable Waste by materials recovery, composting, recycling or other means, wherever performed, shall constitute Controllable Waste and be subject to tbe Waste Disposal Covenant. Where City Acceptable Waste is processed at a facility which concurrently processes other Acceptable Waste in a manner which produces commingled residue which cannot be traced to a geographic source, generic residues from such facility in Tonnage equal to the residues that would have been produced had City Acceptable Waste only been processed at Ute 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 shan 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 Count)', 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 shal1 be authorized to implement procedures to detennine if Acceptable Waste delivered by the owners or operatoJS 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 Ac~ptable 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 HauleJS. 9 Exet;ution Copy (D) Power to Obligate Waste Pisposal and Comply with this Agreement. On or before the Commencement Date, (i) any City franchise, contract, lease, or other agreement which is lawfully in effect relating to or affecting Controllable Waste shall provide, or shall bave been amended to provide, that the City shall have the right without material restriction on and after lhe Commencement Date to direct the delivery of all Controllable Waste to a disposal location selected b)' 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 if8 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 sucb franchise, contract, lease or other agreement. On and after the Commencement Date and throughout the Tenn of this Agreement the City (a) shall not enter into any franchise, contract, lease, agreement or obligation, isslie 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 excJusive franchises or other contractual arrangements over any City Ac:c:eptable 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 punuant 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, pennits or authorizations with all Franchise Haulers, to the extent required by this Section and to Che oxtent 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 P.ermit, such as but not limited to the suspension, revocation and tennination 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 lhe 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 tbe 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 ohuch breach (or any higher rate with respect to which the County has provided notice pursuant to Section 4.2), multiplied by (c:c:) the number of months that would have remained in the Tenn of the Agreement bad the termination not occurred. The parties recognize that if the City fails to meet its obligations hereunder, tbe County will suffer damages ud that it is and will be impracticable and extremely difficult to ascertain and detcnnine the exact amount of such damages. Therefore, the parties agree that the damages specified above represent a reasonable estimate of the amount of such dam.qcs, considering all of the circumstances existing on the date hereto, including tho relationship of the sums to the range of hann 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 bad ample opportunity to consult with legal counsel and obtain an explanation of this liquidated damage provision at the time that this Agreement was made. (F) Legal Challenges to Franchise System. The City shall use its best efforts to preserve, protect and defend its right to exercise and comply with the Waste Disposal Covenant against any challenge thereto, legal or otherwise (including any lawsuits against the City or the County, whether as plaintiff or defendant), by a 10 Execution Copy 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 relatine to the Waste Disposal Covenant or dle City's exercise thereof establishes in a fmal detennination that wch 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 detenninatioo made by any court or other Applicable Law has rendered its obligation to deliver ControDable Waste to the Disposal System void, unlawful or unenforceable on any iegal groWlds, witb the result that actual waste deliveries to the Disposal System faiJ below the Cumulative Tonnage Targets, the County shall be entitlod to avail itself of the remedies described in Sec~on 4.2(B) hereof. (G) Froncbjse Haulers. The City shall compile and provide the Department with the following infonnatlon concerning all Franchise Haulers: name, address and phone number; identification number; area CJf collection and transportation; and franchise and pennit tenns. (H) Waste Jnfonn atio n Sy st em .. The City shall cooperate with the Department in collecting infonnation and otherwise monitoring Franchise Haulers in order to assure compUance with this Agreement. Such infonnation may include, to the extent practicable, data pertaining to Controllable Waste ·collected, transported, store<t, processed and disposed of, Recycled City Aweptable Waste colhscted, transported, stored, processed and marketed or disposed of, Pnwchise Haulers' lhmchise, permit or licenBe tenns, collection areas, fr411sportation 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 sucb Controllable Waste was collected, tonnage by type of load (residential, commercial, roJl-off box), customer service levels, tonnage delivered by transfer station or material recovery facility utilized, and other related infonnation. · (I) CitY Actions Affect ing County . The City agrees to cany out and fulfill its responsibilities under this Agreement and Applicable Law so as to pennit full and timely compliance by 1he County with its covenants and agreements with the State. In particular, the · City agrees not to conduct, autho~ or permit any disposal services for Controllable Waste to be provided in competition with the Disposal Services provided by the CoWlty hereunder, and oot 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 tbe County's ability to achieve such timely compliance. Notwithstanding tbe foregoing. the City shall not be requ!Rd to deny any pennit or license or refuse to grant any approval while exercising its police powers. {J) No Rigbt of Waste Subslitution. 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 ColUlty 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 pennit any Acceptable Waste originating from or generated outside the jurisdiction of the City to be substituted for Controllable Waste for any pmpose hereunder. (K) Annexat ions an d Res lru ctu ring. 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 pennitted by Applicable Law, extend to any territory annexed by the City (or any territory with respect to which the City assiJmes, after March 30, 2008, solid waste management responsibility from a Sltlitary District or other public entity) and shall bind any successor or restructured Governmental Body which shall assume or succ:eed to the rights of the City Wlder AppJicable Law. SECTION 3.2 PROVISI ON OF P l SPOSAL SERVICE S BY THE CO VNIY. (A) Servi ce Co venant. Commencing on the Commencement Date, tbs County shall provide or cause the provision of the service of ( 1) receiving and disposing of all Controllable Waste at the Disposal System (or $uch other facilities, including transfer stations, as the CoUllty may determine to use), (2) disposing in accordance with subsection 3 ;2(C) hereof ofControl111ble Waste which, at any time and for any reason, is in excess 11 Execlltion 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 tn.nsfe r of ControUable Waste pursuant to th is Agreement . The County shall do and perform all acts and things which may be necessary or desJrable in connection with Its covenants in this subsection, including without limitation all planniDg, development, administration, implementation, c:onstructlon, operation, maintenanc:e, management., fanancing and eontract 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 pNdent so1id waste management practice and environmental conaidera.tions . (B) Pa rti cular Fa ciliti es . The Department and the City shall oonsult 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 wbic:h results in tho 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 Departmeot shall confum such advice in writing within 24 hours of the occurren4:e of any such inability. The County shall use its best efforts to resume normal operation of the landftll 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 CoWJty 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 redirm 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 circumstan4:es lhe Co\Dity shall utilize reasonable efforts to f)l"St redirect waste which is not Controllable Waste. (C) Compli ance wjtb Se rv ·ice Coven ant NoJ Exc used fo r any Re ason . Commencing on the Commen4:ement Date, the obligations of the County to duly observe and comply with the Service Covenant shall apply continuously and without interruption for the Tenn of this Agreement. Jn 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 dle tenDs and conditions of the Service Covenant. In the event that a Change in Law precludes the County from complying with such covenants witb 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 c:hango in or relief from the applicability of such law so as to enable the County lawfully to resume c:omplilllce with such covenants as soon as possible following the Change in Law. SECTION 3.3 COUNTY RIGHT TO RE FUSE WASTE. (A) Right of Refusal. Notwithstanding any other provision hereof, the County may refuse delivery of: (1) Hazardous Waste; (2) ControUable Waste delivered at hours other than those provided in Section 3.S hereof; (3) Waste that does not constitute Acceptable Waste; (4) Waste that is delivered by any party which has not executed a Waste Disposal Agre~ent; and (.5) Controllable Waste consisting primarily of constructioo and demolition debris or inerts which may cause a particular facility's daily tormage limit to be exceeded . 12 Exe~:ution Copy · (B) ldentifica!jon 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 Francltise Hauler remove any Unacceptable Waste ftom Sllch vehicle before it is unloaded. If the Department detennines that it is impmdical to separate Controllable Waste fiom 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 wbich may spill or leak, then the Department may reject the entire vehicle, and the City shaH 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) Haza«Jous Waste and HaZI!l!.lous Substances. The parties acknowled&e that the Disposal System has not been designed or pennitted, and is not intended to be used in any manner or to any extent, for the handling, transportation, storage or disposal of HIWU'dous Waste or HazMd_ous SubstaDces. Neither the County nor the City shall countenance or knowingly permit the delivery of Hazardous Waste or Hazardous Substances to the Disposal System . (D) mwsal of Unaccepti!J21e 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 Jandfill within the Disposal System Department personnel wiJI 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 transpoi"Ultion shall be conducted in accordance with Applicable Law. Whenever Hazardous Waste is detected at any landfill within the Disposal System, the Department shaU take immediate action in accordance with Applicable Law. (E) Source-Separated Household Hazardous Waste. The CoWlty shall maincain, 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 B)'stem 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 fets 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-Separatod Household Hazardous Waste Disposal System each )'ear dwing 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. SECT10N 3.4 UN[NCORPORATED 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 Unincorparated Area and, with respect to such waste, shall comply with the Waste Disposal Covenant as if the County constituted a City subject Co the Waste Disposal Covenant hereunder. Rates charged by the County for the disposal of each class of non-recycled Acceptable Waste generated in the Unincorporate·d 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 ex~rclse and comply wi1h the Waste Disposal Covenant (with respect to no~recycled Acceptable Waste generated In (be Unincorporated Area) against any challenge thereto, Jeaal 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 lltld expense of any such Legal Proceeding or other challenge (with respect to non-recycled Acceptable Waste generated in the Unincorporated Area). 13 Execution Copy • SECTION 3.S MISCELLANEOUS OPERATIONAL MAJTERS. (A) Qperating Houg. 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 operatin8 rules and regulations applicable to the Disposal System. The County shaU utilize best efforts to maintain substantially similar hours, as were In effect on January 2, 2009, for the R~Ceipt of waste through the tenn of this Agreement (subject to Applicable Law). (B) Scales and Wejghlne, The Department shall operate and maintain permanent scales at the Disposal System. The Department shall weigb all vehicles delivering waste by or on bebalfofthe 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 writina thirty days prior to the expected Commencement Date a person to transmit instructions, receive infonnation 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 perfonnanee by either party under this AgreeDJent 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 OTIJER 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 sbaJJ have terms and provisions substantially identical to the tenns and provisions of this Agrumcnt; provided, however, that in no event shaU such agreements have tenns and provisions more favorable than the tenns and provisions of this Agreement (including but not limited to the Contract Rate and availability of disposal capacity). (B) After r . 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 cifY, Sanitary District, Transfer Station and Independent Hauler, or otherwise accept Acceptable Waste &om such patties, but only within the limitations contained in this Section. Any such agreement or waste acceptance agreement JD\Ist provide that the party delivering waste shall pay a Posted Disposal Rate at least I 0% higber than the Contract Rate unless the County detennines it Is in the best interest of the Disposal System to establish a Posted Disposal Rate less than I 0% higher 1han 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 pennltted 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 affea 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 Acceotable Waste on a Contract Basis. The County shall have the right to enter into a contract or other agreement with eny municipal or private non-CoiDity entity for the delivery of Imported Acceptable Waste on terms and conditions that the County dctennines to be necessuy 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 delivezy of such waste wiU not materially and adversely affect the ability of the County to receive and dhpose of Acceptable Waste from tho Par1icipa1ing Cities in accordance with the applicable Disposal Agreements throughout the Term thereof. The te.nn of any such ~ement for the disposal of Imported Acceptable Waste shall end by the later to occur of (I) December 31, 2015 or (ii) the date on which County general purpose revenues are no longer expended to pay debt service on the Orange County Public 14 Execution Copy 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) SclfHauJers. 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) Apj>licatjon and Use of Revenues From Olher Users. AU 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 Dispos~ 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 tbe 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 Revonues 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 tbe 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, IUld a pro rata share of capital project costs. The parties acknowledge that their intention in detennining to allow the importation of Import~ Acceptable Waste for disposal by the Disposal System is to stabilize the Con~t Rate at rates below those which would otbetwise prevail in the absence ofsucb importation. SECTION 3.7 COUNTY PROVISION OF WASTE DIVBRSJON 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) SCJJara!e Cjty·Countv Diversiog Service Agreements. Nothing in this Agreement is intended to limit the right of the County to enter into a separate agrecmmt 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, Tnmsfer Stations, Independent Haulers, Unincorporated Area or non-County entity, shall be operated., managed and accounted for as a program separate arid 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 SECUIUNG 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 estal?lished, 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 lhe operating rules and regulations reasonable measures to secure the payment of all Contract Rates. SECTION 4.2 CONTRACT RA'[E.. (A) Estnblisbmem of Contract RaJe. The Contract Rate payable by each Franchise Hauler shall be (x) $22.00 perton ftom 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 Excwtion Copy least equal 10 the Cumulative Tonoage Targets identified in Appendix 2, and subject to adjustment necessary to reflect the circumstances set forth in this Section 4.2: (i) increased costs ineumd by the County (in exeeu of available insurance proceeds) due to the occurrence of one or more Uncontrollable Clreumst8nces, other than Changes in Law; (li) costs incurred by the County (in excess of available Insurance proceeds and amounts available in the Enviromnental Fund for such purposes) remediatlng environmental conditions at the Disposal System or Inactive or closed disposal sites in the Cmmty, whk:h, if uncorrected, could give rise to potential claims under CERCLA or related federal or state statutes, including costs incurred providing indemnification to any Participatbt& City pursuant to subsection 7 .3; or (iii) tonnage shortfatls to the extent pennitted by Sections 4.2(8); (iv) ave111ge annual inflation prior to July 1, 2010 in excciiiJ of the levels set forth in Section 4.2(H) and escaJation pursuant to Section 4.2(P) ; (v) increased costs incurred by the County (in excess of available insurance proceeds) due to the occwrence of one or more Changes in Law; or (vi) Capital Costs in excess of the Capital Costs at any point in time during the tenn hereof exceeding the CUmulative Capital Costs set forth in Appendix 3. Prior to adjusting the Contract Rate as a result of any of the cimunstances 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 descn'bcd in clauses (iv), (v) or (vi) above. Any adjustments to the Contract Rate permitted by this Section shall be calculated by the County 1o reflect the actual costs or expenses of addressing the circumstance or circumstances purauant to which the adjustment ls authorized. The County agrees that it will evaluate the feasibility of long term financing for significant capital costs where appropriate. (B) County Acceptable Waste Shortfall. In the event that the actual amount of County Acceptable Waste delivered to the Disposal System at the end of any Contract Year Is less than lhe Cumulative Tonnage Target fur 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 shortfa11: (i) reduce the costs of operating the Disposal System to the extent p111cticable; (ii) utilize Restricted Reserves described in clause (iii) of Section 4.5 to pay costs of the Disposal System; (iii) utilize Unrestricted Reserves to pay costs of the Disposal System; and (iv) adjust the Contract Rate. In the event that implementation of the steps described above does not result in sufficient revenues to satisfactorily addresS the shortfDJI In tonnage, the County shall have the right to terminate the Agreement on 60 days written )6. Execution Copy notice to the City. In addition, in the event that actual deliveries to the Disposal System exceed the Cumulative Tonnage Target as of the end of any Contract Year, the City acknowledges the County shall have the right to establish reserves intended to reflect the potential for lower than exJ)C':ted annual waste deliveries in subsequent years, and that any sucb reserves shall constitute 4'Restricted Reserves". (C) [RESERVED] (D) fnte r jm Use of Remedies . In the event that, during any Contract Year, waste deliveries to the Disposal System are 2S% or more below delivery projections for such Contract Year with the result that the County detennines It is unlikely that the Cumulative Tonnage Taraet will be achieved as of the end of such Contract Year, th e County may utilize the remedi es described in Section 4.2(B) prJor to the end of such Contnlc1 Year; provid ed, however, that if at the end of such Conb'aet Year, th e 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 &ljusbnent to the Contract Rate for future deliveries, rather than a lump swn payment. (E) Special Cb !l[ees. Notwithstanding Section 4.2(A), the County shaJJ have the right to impose special oharges for the receipt of hard to handle materials, sucb as bulky materials, construction and demolition debris, tree stumps and sludge. Such special charges shall be calculated to refl«:t the reasonable incremental costs to the CoWlty of accepting sucb hard to handle materials. bi addition, in the event that the Board of Supervisors of the CoJ.!nly makes a detennination 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 DisposaJ System, the County may impose an additional charge of $0.50 per ·ton of Acceptable Waste in order to pay the costs of tbe 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 I, beginning July I, 201 I. The change will be equal to the positive pen:entage change in the Consumer Price Index -All Urban Consumers, U.S. city average, All items, Not Seasonally Adjusted, Series ID CUUROOOOSAO ("CPf') as measured from the October 2 I 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 &om October 2009, to October 2010, referred to as year 1 and year 2 respectively In the following example . Formula to calculate percentage change in the Conttact Rate: Step 1: [ October Year 2 C PI ] --=o~c-!o-:-be...;;.r"-:':Y~ea;;;;.r-':1'-C='p::-:J~ -1 ""% increase in Contract Rate Step 2: Current Contract Rate x ( 1 + % increase in Contract Rate) "" ~ntract Rate as of July 1 Year 2 On each April l, commencing April I, 2011, the County shall provide the City with notice of the adjustment to the Contract Rate to be effective the following July I. Such notice shall contain tho cal~ulation of the adjustment set forth above. The CoWlty will calculate the new Contract Rate each year. In the event that the change in the CPI is negative, no rate adjusbnent will be made for that year. No adjustment under this Section 4.2(F) will take place until the October CPI index surpasses the index level as of the October immediately preceding the last annual rate adjustment pursuant to this Section 4.1(F), wh!ch will be considered "year I" in calculating the change in the Con~ Rate . 17 Execution Copy For exBD'lple, ifdte CPI is measured as follows: October 2009 • 20!5, October 2010"" 204, October2011"' 20 I, Oc:tober 2012 "' 208, then there would be no adjustment in July 2011, or July 2012, and an adjustment equal to the change from 20S 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) Adiu srme nt Res ult in g from Increase d fees. ln addition to the orhor ac(jusemonts speci(red herein, the Contract Rate shall be adjusted to reflect the imposition of new fees or increaec in existing fees relating to the disposal of Controllable Waste imposed by state, federal or other agencies (i.e., Che State's Integrated Waste Management fee, which Is currently $1.40 per ton). The adjustment shall be equal to tbe amount of any new or increased fee, anct the adjustment shall take effect so as to coincide with tbe imposition oftbe new or increased fee. The County shall provide notice of any increase pursuant to this Section 4.2(0) as soon .-s practicable after becoming aware <>fthe imposition of any fees described above. Adjustments pursuant to this Section 4.2(0) shall not require compliance with the provisions of Section 4.2(1). (H) Cal cul ation of Cumu lative lnfl atjon Rat e. For purposes of Section 4.2(A)(iv) for adjusbnenis prior to July 1, 20 1 J, the inflation shall be cak:uJated as the change in the CPI between July of the year of calculation and July I, 2008 . Inflation shalf be deemed to exceed the levels set forth below if the ratio between the CPHor July for the year of wculation (calculated in accordance wicb the fonnula below) and July 2008 exceeds the ratio corresponding to such yw of calculation on the table below. The ratio shall be calculated in accordance wltb the following formula: (July CPI of calculation year I CPI for July 2008) Yur of Calcui4Jion Rtltlo July 1 2008 1.0000 July 1 2009 1.0356 July l 2010 1.0723 In the event the CPI is no longer published during die 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. tn the event of an adjustment to the Contract Rate pursuant to this section 4.2(H), such adjusbnent shall be applied to the Contract Rate effective until June 30,2010, and the Contract Rate effective July l, 2010. Adjusb'nents pursuant to this Section 4.2(H) shall not require compliance with the provisions of Section 4.2(1). (I) Pro cedur e fo r Rate Ad ius tm ents . 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(8), it shall utilize the procedures described in this Section 4.2{1). The County shall be required to provide the City with at least 90 days prior written notice of the adjustment, which notice shall Identify the specific event( a) or circwnstances which require the adjustment. The notice shalJ 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 sball provide the City with a report which shalJ 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 !Jnplemented the remedies described in Section 4.2(A) or (B) prior to requiring the rate adjustment; aad a description of the methodology used by the County to calculate the adjuabnent to the Contract Rate (hereinafter the "County Report"). ln the event the. City disputes the adjustment, it shall provide the County with ~ written description of the reason for the dispute at least I 0 days prior to the meeting of the Board of Supervisors identified in the initial notice of the County (hereinafter the "City Report"). The Cfty Report shall be provided to the Board of Supervisors for 18 Ex~ulion 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 filith to resolve any dispute that may arise regarding the proposed adjustment to the Contract Rate. In any such meeting, the County sball be represented by the Director of the Department or bis 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 CoWJty regardless of whether or not the procedures in Section 4.2(J) are utilized, but subject to potential reimbursement pursuant to clause (II) of Section 4.2(J). (J) Proc¢ure for Exgedjse.d Judici!ll Review o{ Contes\c:d Rate Adjustmen\. In the event that, within 30 days after the effective date of any Contract Rate adjustment made pursuant to Section 4.2(1), Participating Cities which, in the aggregate, accounted for more than 500.4 of the County Acceptable Waste delivered to the County System in the twelve months preceding the Contract Rate adjustment, provide notice to the County of their election to utilize the procedures described in this Section 4.2(J), then the provisions of this Section 4.2(J) shall be utilized by such Participating Cities and the County to resolve the dispute over tbe Contract Rate Adjustment. In the event that Participating Cities which have delivered the amount of waste contemplated in the preceding sentence do not provide nolice to the County of such election, the County shall have no obligation to participate in or cooperate in the implementation of the procedures desc:rlbed below In this S!lction 4.2(J). (1) In order to pursue the expedited judicial determiriation described in this Section (the "Expedited Rate Determination"), the Participating Cities which have made the election described in the pngraph above (the "Challenging Cities") must commence a civil action for breach of contract (the "Action'') in the Orange County Superior Court within 45 days of the date on which the Board of Supervisors approves the challenged adjustment to the Contract Rate. (2) Within two (2) days of filing the Action, the Challenging Cities sball 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 heteinafter refeJTed to as the ''Expedited Rate Determination Stipulation"). The Expedited Rate Detennination Stipulation shall be signed by each of the Challenging Cities. (3) Within fifteen ( l S) days of the date of service upon the County of the summons and c;omplaint, and Expedited Rate Determination Stipulation, the County Counse.I shall execute the Expedited Rate Determination Stipulation and personally serve upon the Challengfn& Cities through their counsel of record the Expedited Rate Detennination Stipulation and its answer to the complaint in the Action. The StipuJation 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 procodures set forth for Expedited Rate Detennination In this Sec:tion 4.2(J) shall be, and are.hercby deemed to be, ministerial duties which the Jaw specifically enjoins upon each of them, and shall be subject to enforcement by the parties herein pursuant to Code of Civil Procedure Section I 085, et seq., or by means of a complaint for !pCCific perfonnance. (4) Within three (3) days of the date of service by the County upon the Challenging Citieji of the fully signed Expedited Rate Determination Stipulation, the C01mty and the Challenging Cities shall jointly make ex parte application to the Orange County Superior Court in the Action for the issuance of the order contained in the Expedited Rate Determination Stipulation. At sucb a parte application, the County and the Challenging Cities shaU also seek to confirm with the Oran&e County Superior Court the briefmg schedule, and requ"st a hearing date in accordance with the procedures set forth in this Section 4.2(J). (S) Within ten (1 0) days of the date of service by the County upon the Challenging Citie~ of the answer in the Expedited Rate Detennination, 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. Tbe opening brief shall not ex.ceed 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 Citie~ pursuant to Section 4.2{1), any materials filed or lodged with the Board of Supervisors and the Orange County 19 Exccullon Copy • 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 CoWlty 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 (1 0) days of service by the Challenging Cities of their opening brief and the Record, the County shall file and personally serve upon the Challenging Cities the County's opposition brief. The opposition brief shall not exceed IS pages in length. (7) Within five (S) days of service by the County upon the Challenging Cities of the opposition brief, the Challenging Cities may file and personally serve upon the Cowtty a rebuttal brief, which shall not exceed I 0 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 tbe court requests the parties to prepare supplemental briefs in response to any question or issue raised by the court, the parties may do so. (9) The standard of review for the Expedited Rate Determination shall be the preponderance of the evidence based upon the Record. The burden of proof shall be borne by the Challenging Cities, and the burden of proof shall be the same as with respect to a plaintiff in a damages action for breach of contract Both parties have participated in the drafting of this Agreement. Accordingly, nothing set forth in this Agreement sha11 be interpreted or construed for or against either of the parties as a consequence of their participation in the drafting of this Agreement. ( 1 0) The court shall issue its written statement of decision and enter judgment within thirty (30) days ofthe date of the hearing in the Expedited Rate Determination. (11) If the court determines that any portion of the County's adjusted Contract Rate which is the subject of the Expedited Rate Dctennination was improperly imposed, the County shal~ 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. Sucb reimbw1ement may be made in the fonn of a reduction in the Contract Rate for a future period (not to exceed twelve months) reasonably calculated to provide full reimbursement of the amounts described above. (12) If for any reason the court docs not sign the order contained in the Expedited Rate Detcnnination Stipulation, the City shall, within 30 days of the court's denial of such requested order, file with the court and personally serve upon the County a motion for summary judgment and/or motion for judgment on the pleadings, in accordance with Code of Civil Procedure Section 437(c) and 438. By executing this Agreement, the parties hereby stipulate that, in the event that the Challenging Cities file such summary judgment motion and/or motion for judgment on the pleadings, the Record sbaU be deemed to have been incorporated into the complaint and answer filed by the Challenging Cities and the CoWlty, and no evide~e outside of the Record is relevant or material to the dispute raised in the Expedited Rate Determination. The briefing schedule and hearing on sudJ motion for summary judgment and/or motion for judgment on the pleadings shall be in accordance with Code of Civil Procedure Section 437(c). The Challenging Cities and the County shall be bound by all of the requirements and restrictions set forth m Section 4.2(J) that arc not in conflict with this pantgraph (12). ( 13) In the event that the comt both does not sign the order contained in the Expedited Rate Determination Stipulation and either does not hear or does not issue a ruling on the merits on the motion for summary judgment and/or judgment on the pleadings which is dispositive of the issues, claims and causes of action in the complaint filed by the Challenging Cities, the County and the Challenging Cities shall, within twenty days following the issuance of the Court's order or decision not to honor the par1ies' stipulation or not to hear the parties' motion for summary judgment, make application to the Presiduig Judge of the Onmge County 20 ExecUtion Copy Superior Court for an expedited hearing or trial date. The Challenging Cities and the County shall be bound by aU of the requirementl and restrictions set forth in Section 4.2(J) that are not in conflict with this paragraph (13). In this regard, and w!tbout limiting the foregoing, the only evidence to be presented at the bearing or trial shall be the Record, no testimony ahall be presented at the bearing or trial; and both the County and the Cha1lcnging Cities waive all rights to IS jury trial, to any reconsideration of the decision of the court, to a new tria] after the court rendm a decision, and to IUly appeal or review of the decision of the court. SECTION 4.3 RESPONSIBILITY FOR PAYMENT OF THE CQNIRACI RATE. (A) Payment by City. In the event and to the extent (I) the City uses municipal collection forces directly for the haulage of Con1rOJ1able Waste to the Disposal system or (2) the City uses non-mUnicipal Francbise 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 soUd waste disposal. The City sba!J 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 aU such amounts which shall become deJinquent, to the fuJI extmt peJlllitted by Applicable Ulw. 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 Ent.eJprise Fund. From the Commencement Date to the date of expiration or termination of this Agreement, the obli1ation 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, shaJI 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 municipaJ collection forces, the obligation to pay the Contnct 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 sacb 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 11om such FnmchJse 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, pennit or license rights. (C) DISJ)Utes. If the City or the Franchise Hauler disputes any amount biiJed 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 ofthe receipt of such Billing Statement indicating the amount that is being disputed and providing all reasons tben known to the City or the Franchise Hauler for any objection to or disagreement with such amount. If the City or the Franchise Hauler and the County are not able to resolve such dispute within 30 days after the City's or the Franchise Hauler's objection, either party may pursue appropriate legal remedies. SECTION 4.4 BlLLJNG OF THE CON'ffiACT RATE. The County shall continue to bjiJ Contract Rates after the Commencement Date, in the same manner as it has customarily biUed tipping fees. Subject to tbe 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.S RESTJUCIBD RESERVES. For purposes of this Ag~ment, "Restricted Reserves" means cash and other resmves of the Disposal System which are restricted to specific uses or arc otherwise being reserved by the County to meet its obli&ations bereunder throughout the term of the Agreement with respect to the Disposal System J)Ul'IIUIIJlt to any Applicable Law, contnct, 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 IICCOW\ts or funds in order to consdtute "Restricted Reserves" hereunder, and may be commingled with 21 Execution 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 witb respect to components of the Disposal System; (iii) reserves established to protect the Dls~sal System against the adverse fmancial fml)act of potential decreases in waste deliveries porsuant to Se<:tion 4.2(8); (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 Applic:able 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 Dlaposal 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 wiD be made available and used by the County if required to pay costs relating to environmental remediation or other related costs); (x) AB939 surcharges; (xi) amounts held by the County in the Corrective Action Fund held pursuant to CCR Title 27 to demonsbate financial assurance to pay for potentia] 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 FlNANClAL STATEMENTS. The County shall annually, on or before January 1 each year, prepare or cause to be prepared and have on file for inspection an annual report for the prc!ceding Contract Year, aC<;Ompanied 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 prc:senting the information therein in conformity with generally accepted accounting principles) relating to the Diaposal System, the Disposal Services, and the fiscal activities of the County OC Waste Disposal Enterprise Fund, and including statements in reasonable detail of the fmancial 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 UPDAIE 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 shaJI include at least two full years ofprior actual data and ten years of future projections including the following clements: 22 Extcution Copy 1. County Acceptable Waste, in tons; 2. Imported Acceptable Waste, in tons~ 3. Revenues and expenditures; 4. Cash fund balances, including aU monies in the County SoJid 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 tbe Ten-Year Financial Projection is to keep the City fully infonned about the future fmandal condition of the Disposal System. The County shall cause a copy of the Ten-Year Financial Projection to be deUvered to tho City Manager of the City no later than May l of each year. Upon request. the County shall make available to the Cities supporting infonnation related to the ten·ycar fmancial projection ARTICLEV BREACH, ENFORCEMENT AND TERMINATION SECTION S.l BREACH. The parties agree that in the event either party breaches any obligation under this Agreement or any representation made by either party hereunder is untrue in any material respect, the other party shall have the right to take any action at law or in equity (including actions for if\iunctive relief, mandBmus and specific perfonnance) it may have to enforu the payment of any amounts due or die perfonnance of any obligations to be perfonned hereunder. Neithe~ party shall have the riglrt 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 che right to terminate this Agreement in its •ole discretion, for its convenience and without cause at any time during the Tenn hereof upon 90 days' written notice to the County. If the City exercises its rights to tennlnate the Agreement pursuant to this Section, the City •ha!J pay the CoWlty 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 bas provided notice pursuant to Section 4.2) multiplied by the number of tons of City Acceptable Waste delivered to the Disposal System during tho 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 iftbe City had complied with the Waste Disposal Covenant), multiplied by the number ofyeara remaining in the Term of the Agreement. SECTIOl'l5.3 TERMINATION. (A) ~. Except as expressly provided herein , the City shall have no right to tenninate this Agn:cment for cause except in the event of the repeated failure or refusal by the County substantially to perfonn any material oblisatlon under this Agreement unless such failure or refusal is excused by an Uncontrollable Circumstance; except that no such failure or refusal shaD give the CitY the ri&bt to tenninate this Agreement for cause under this subsection unless: (l) The City has given prior written notice to the County stating that a specified faiJure or ~:efusal to perfonn exists which will, unless corrected, constitute a material breach of this Agreement on the part of the CoJJnty and which wiD, in its opinion, give tbe City the right to terminate this Agreement for cause under this subsection unless such breach is coneeted 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 fallure or refusal to perfonn 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 (I) of this subsection (but if the 23 Execution Copy County shall have diligently taken steps to carrect such breach within such reasonable period of time, the same shall not constitute a breach giving rise to the right of termination for as long as the County is continuing to take such steps to correct such b~h). (B) Bv 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 perfonn any material obligation under this Agreement W1.less such failure or refusal is excused by an Uncontrollable Circumstance; except that no SIKh failure or reftual shall give the County the right to terminate this Agreement for cause under this subsecdon Wtless: (1) The County has aiven prior written notice to the City stating that a specified failure or refusal to perfonn exists which will, unless corrected, constitute a material breac::h 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 s"ch breac~ is corrected within a reasonable period oftimc, and (2) The City has neither challenged in an appropriate forum (in accordance with Section S.S) the County's c:onclusion that such failure or refusal to perfonn has occurred or constitutes a material breach of this Agreement nor corrected or dUigently 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 tJme, the same shall not constitute a breach giving rise to the right of tennination for as long as the City is continuing to take such steps to correct such breach). SECTION 5.4 NO WAIVER$. No action of the County or the City pursuant to this Agreement (including, but not limtwd to, any investigation or payment), and no failure to act, sha11 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 Clty in exercising any right, power or remedy under this Agreement shall operate as a waiver thereof or otherwise p~judice such party's rights, powers and remedies. No single or par1ial 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 S.S FORUM FOR DISPUTE RESOLUTIQN. It is the express intention of the parties that alJ legal actions and proceedings related to tlrls Aareement or co 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 RFFECTJVE DATE AND TERM. (A) Initial Tenn. 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 tenninated in accardance with its tenns, in which event the Term shall be deemed tC? have expired as of the date of such termination. (B) Oplion to Renew. This Agreement shall be subject to renewal by mutual agreement of the parties, on or before June 30, 2018, for an additional tenn of ten years (the "Renewal Tenn") on the same terms and condlllons as are applicable during the Initial Tenn tiereof. The City shall give the County written notice of its irrevoc:able election to renew this Agreement on or before June 30, 20 17. If the parties do not renew this Agreement by June 30, 20 18, the Agreement shall expire on June 30, 2020. (C) ConiTact Rate During Renewal Tenn. In connection with the parties' right to renew this Agreement for an additional ten-year tenD pursuant to Section 6.1(8), the parties shaU, on or before June 30, 2018, negotiate an applicable change in 1he Contract Rate for such renewa) term. ln determining any revisions to the 24 Execution Copy Contract Rate to be applicable during any renewal period, in addition to the circumstances described in Section 4.2(A), the p.uties may take Into consideration the following paraineters, including but not limited to: reserves. (i) (ii) (iii) (iv) (v) (vi) (vii) (viii) actual cost of operatioi)IS; population growth; increase or decrease in available tonnage; economic and disposal market conditions In the Southern California region; changes in tnosportation and technology; closure and expansion of nearby landfills; capacity of the Disposal System; and available reserves which are in excess of the amount reasonably required as (D) Survival: Accrued Rights. The rights and ob1igations of the parties hereto pursuant to Sections 3.1(EX2), 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 tennination or expiration of this Agreement, and no such termination or expiration shall limit or otherwise affec::t the respective rights and obligations of the parties hereto acCJUed prior to the date of such tennination or expiration. At the end of the Tcirm of this Agreement, all other obligations of the parties shall tenninate. SECTION 6.2 COMMENCEMENT DATE. (A) Obligations of tbe Parties Prior to the Commencement Date. The parties acknowledge that the Disposal Agreements may be execute4 and delivered on different dates and that, except as provided In this subsection, neither the County nor the City shall be obligated to perfonn 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 ,nd due diligence and take all steps within its reasonable control in seeking to satisfy the conditjons 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 CJties in connection with the foregoing undertaking. Until the Commencement Date occurs, the Original WDAs shall remain in full force and effect. (B) Cond ition 10 the Commencement Date. The Commen«:ment Date for the Agreement ahall be the date on which 1he percentaae of the County's Acceptable Waste attributable to Participating Cities which have executed and delivered Disposal Agreements shall exceed BS% percent (using the percentage rates attributed to such Cities in Appendix 1 ). Unincorporated County is assumed to be a Participating City for the purposes of determining the Commencement Date in accordance with this Section 6.2(b) and Appendix I of this Agreement. (C) Satisfaction of Condition lllld Commencement DAte. Upon 1be satisfaction or waiver of the condition to the Commencement Dale, the County shall give written notice thereof to the cides whicb have theretofore executed Disposal Apwments. The parties shall thereupon hold a formal closing acknowledsfng the satisfaction or waiver of the condition to the Commencement Date, certifYing that 1he 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 (D) Newly lncoroorated 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 tbe date of its municipal incorporation, then such City shall be entitled to execute a Waste Disposal Agreement on subsllllltially the same tenns and conditions as this Agreement (including the Contract Rate), notwithstanding the limitations contained in Section 3.6(B). (E) Failure ofCondjtjon. If by [120 DAYS AFTER BOARD APPROVAL}, or such later date as the County may agreo, the condition to the Commencement Date specified in this Sec:tion is not satisfied, either party hereto may, by notice in writing to the other party, terminate this Agreement. Neither party sball be liable to the other for the termination of this Agreement pursuant to this subsection, and each of the parties shan bear its respective costs and expenses incurred iD seeking to satisfY the condition to the Commencement Date. NotwithstandiDg anythma in this Agreement to the contrary, in the event that this Agreement is tenninated pursuant to this Section, the provisions of the Original WDA shan mnain in full force and effect on the tenDs and conditions set forth therein. ARTICLEVIl GENERAL PROVISIONS SECTION 7.1 OPERATION AND MAINTENANCE OF DIE DISPOSAL SYSTEM. The County, at its cost and expense through the County Solid Waste Entetprise 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) Perfonnance Excused. Except as otherwise specifically pro~ided in this Agreement, neither the County nor the City shall be liable to the other for any failure or delay in the perfonnance of any obligation under this Agreement (other thrm 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. Mitisation. The party experiencing an Uncontrollable Cirtumst.ance shall notifY the other party by telecommunication or telephone and in writina, on or promptly after the date the party experiencing such Uncontrollable Circumstance first knew of the commencement thereof, followed within IS days by a written descriptl011 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 perfonnance of such party's obligations hereiDider wUl be delayed, (3) the estimated amount, if any, by which the Contract Rate may need to be adjusted as a ~suit of such Uncontrollable Cfrcumstanc;e, (4) its estimated impact on the other obligations of such party under this Agreement and (S) potential mitigating actions whkh might be taken by the County or City and any areas where costs mJght 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 advmely affected thereby shall, as promptly as reasonably possible. use its best efforts to eliminate the cause therefor, reduce costa and resume performance under this Agreement. In addition, with respect to Changes In Law, the County shall diligently contest any such chanaes the imposition of which would have a material adverse impact on the Disposal System . While the delay continues, the County or City shall give notice to the other party, before the fust day of each succeeding month, updating the information previously submitted. (C) lmpa cl on Con !Tact Rate. If and to the extent that Uncontrollable Circumstances interfere with, delay or increase the cost to the County of meetins Its obligations hereunder and providin& Dispo.sal Services to the Participating Cities in accordance herewith, the CoUDty shall be entitled to an increase in the Contract Rate as provided in Section 4.2 herein or an extension in the schedule for perfonnance equal to the amount of tho 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 inaeases payable under this subsection. Ally cost reductions achieved tJuough the mitigating measures undertaken by the County pursuant to subsection 7.2(8) horoof upon the occurrence of an Uncontrollable Circumstance shall be reflected in a reduction oftbe amoiDit by which 1he 26 ExiiCUI.ion Copy Contract Rate would have otherwise been increased or shall serve to reduce the Contract Rate to reflect such mitigation measuros, as applicable. · SECTION 7.3 INDEMNIFICATION. To the extent permitted by law, the County agrees tbal, it wiU protect, indemnifY, defend aod hold harmless the City from and agaiDst all Loss-and-Expense uising from tbe City's activity as an .. 1UT8118er'' (for purposes of and as such tenD is defined under CERCLA or comparable state statutes) of municipll solid waste disposal pursuant to thia Agreement. In the event the City shall detenninc that because of conflict or any other reason that it wishes to be defended by legal counsel other than the logal COWisel provided by the County, the cost of providing such legal COIDlsel shall be the City's sole responsibility. 11te City acknowledges the County's logitimate interest In actively participating in any defense, litigation or settlcmont whether the County or the City provides legal counsel. Any costa incuJTCd by the County pursuant to this Section shaH be considered an Uncontrolhtble Circumstance cost and the CoUDty 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 pennits or Applicable Law. The parties agree that this provision ~nstitutes an indemnity under CERCLA (to the extent of the specific pi'C)Visions 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 fr6nchised or not, or any Independent Hauler or Tl'8!lsfer Station, under any circumstances. The City acknowled&es 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 1he County in the defense. SECTION 7.4 RllLATJONSHIP 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 ejtiJer party a partner, agent or legal representative of the other party or to create any fiduciary relationship between the parties . . SECTION 7.5 LIMITED RECOURSE. (A) To the Citv. Except in the event the City Jw not established or maintained a City Solid Waste Enterprise Fund, no rocoursc shall b'e had to tbc general funds or general credit of the City for tbe payment of any amount due the County here1111der, or the performance of any obligation incurred hereunder, including any Loss- and-Expen$e 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 Fl(nd. All amounts held in any City Solid Waste Enterprise Fund shall be held for the uses pennitted and required thereby, and no such amounts shall constitute property of the County. The City sball make adequate provision in the administration of any City Solid Waste Enterprise Fund for the payment of any amount or the perfonnance 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-Expcmse of any qature arising from the performance or non-perfonnance of tbe County's obligations hereunder. The sole recourse of the City for all such amounts shall be to the funds held in the County Solid Waste Enterprise Fund in accordance with the terms of this Agreement. All amounts held in the County SoUd Waste Enterprise Fund shall be held for the uses pcnnitted and required thereby, and no such amounts shall constltute property ofthe 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 perfonnance of any obligation which may be due hereunder. · SECTION 7.6 PR&EXJSTING RlGHTS AND LlABILIIIES. Nothing·in this Agreement is intended to affect, .~lease, 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 w89te in the Disposal System or any other related matter. 27 Execution 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 incwred 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, Ucenslng, authorizing or amnging 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 abaJI either party bereto bo liable to tho other or obligated in any manner to pay to tbe other any speciaJ, tncidentaJ, 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 1uch claims are based upon contract, tort, negligence, warranty or other legal theory. SECTION 7.10 AMENDMENTS. Neither this Agreement nor any provision hereof may be changed, modified, amended or waived except by written agreement duly authorized and executed by both parties. SECTION 7.1 I NOTICE OF LITIGATION. Each party shall deliver written notice to the other of any Legal Proceeding to which it is a pany and which questions the validity or enforceability of this Agreement executed by the City or the County or any Legal Entitlement Issued in connection herewith. SECTION 7.12 FURTHER ASSURANCES. At any and all times the City and the County so far as muy be authorized by law shall pass, make, do, execute, acknowledge and deliver any and every such fUrther resolutions, acts, deeds, conveyances, instruments, assignments, transfen 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) Assjnnment. 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 withhold in the other party's sole discretion. Notwithstanding the foregoing, either party may assign this Agreement to another pubUc entity, subject to the mmmable consent of the other party. ln 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 undel1ake the responsibilities and obligations oftbe assi&ning party. (B)~. The County sball not enter into any agreement for the sale of the Disposal System which provides for an effective date for such sale prior to the tennmadon of1bis Agreement. SECTION 7.14 INTEREST ON OvERDUE OBUGAT!ONS. Except as otherwis~ provided herein, all amountl 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 nwnber of days elapsed, and all suc:h interest accrued at any time shall, to the extent pennitted by Applicable Law, be deemed added to the amount due, as accrued. SECTION 7 .1.5 aJNDING 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 pennitted hereunder shall be in writing and sufficiently givon if delivered in person or sent by certified or registered maiJ, pOStiJe prepaid, to tbe notice address of the respective parties set forth on the cover page of this Agreement. Changes in the respective addresses to which such notices may be directed may be made from time to time by any party by notice to the other party. 28 Execution Copy IN WITNESS WHEREOF, COUNTY and CITY have caused this Agreement to be ex"uted by their duly BUthorized officers or representatives as of the day and year fll'St above written. APPROVED AS TO FORM: COUNTY COUNSEL 0 CO U NTY, CALIFORNIA ~-WiW Exccvtion Copy 29 COUNTY OF ORANGE By _____ 8J_~--:-: ... ~T:--:~~· ~..-- Dave Adams, City Manager ., City of San Juan Capistrano APPENDIX I PERCENTAGE OF COUNTY ACCEPTABLE WASTEAITRIBUTABLE TO PARTICIPATING CITIES. FOR PURPOSE OF SECTION 6.2(b) Jurisdiction PereenCa1e of' County Acceptable Wute Anaheim 13.4% Santa Ana 10.6% Irvine 7.5% HuntinJd()n Beach 6.0% Orange 5.8% Garden Grove 5.1% Fullerton 4.5% Unincorporated Oranae Co101ty (II 4.3% Costa Mesa 3.6% Newport Beach 3.0% Lake Forest 2.6% Buena Park 2.5% Mission Viejo 2.3% Westmimter 2.3% Yorba Linda 2.3o/. Brea 2.1% Tustin 2.00/o Cypress 1.9% La Habra. 1.8% San Clemente 1.7% Fountain Valley 1.6% Lapna Niguel 1.6% Placentia 1.6% San Juan Capistrano 1.6% Laauna Beach 1.4% Dana Point 1.2% Stanton 1.1% Rancho Santa Marauita ].()Gio Laguna Hills 0.9% Seal Beach 0.8% Aliso Vitio 0.7% Los Alantitos 0.5% La Palma 0.3% Laguna Woods 0.2% Villa Park 0~.,{, To1al 100'/o . {I) Uninc<>rporated County ts 8.9sumed to be a Participating City for the purposes of detennining the Commencement Date in at4:ordance wltb Section 6.2(b) of this Agreement. (2) A Participating Clly wJJI only be included for purposlug of detonnining tbe Commenc~mont Date upon {i) execution of a Waste Disposal Aveement by that Participating City and {il) execution of a Hauler Acknowledgement(s) by the Franchise Hauler(s) operating within such Participllling City Execution Copy . Execution Copy APPENDIX2 Cumulative County Aeceptlible Waate Tonnaae Tai'Jet to be Unci for Parpo111 of Section 4.2 (B) FlsuiYur FY2008..o9 FY2009-10 FY 2010-11 FY 2011-12 FY 2012-13 FY 2013·1 .4 FY2014-15 FY 2015-16 FY 2016-17 FY2017·18 FY201B-19 FY2019-20 C'DruJOf A«tplll61e Wale TDIIIIII66 3,170,387 3,092,806 3,185,!590 3,344,870 3,445,216 3,514,120 3,549,262 3,565,608 3,582,033 3,598,535 3,615,11.5 3,631,774 ca .. ,.,.,. a,,~ Acceptdle Wlrlle TDIIIIIIfe 3,170,387 6,263,193 9,448,783 12,793,653 16,238,869 19,752,989 23,302,251 26,867,159 30,449,892 34,041,427 37,663,!542 41,295,316 .. Fiscal Year (ending June 30) 2009 2010 2011 2012 2013 2014 2015 2016 2017 2018 2019 2020 Execution Copy APPENDIX3 CUMULATIVE CAPITAL COSTS to be Used for Purposes of Section 4.2(/\)vi Annual Capital Costs CUmulative Capital Costs $37,939,538 $37 939 538 $5~~43,405 $97,282,943 $10,433 ,978 $107 716 921 $13,~78 113 $121.395 034 $17 S2S,040 $138 920 074 $11.259~18 $150 179 592 $37 682 758 $187 862 350 $S 068,800 $192,931_.,150 $10,662,265 $203 593,415 $29 397 698 $232.991_,113 $8,263 795 $241,254,908 $45,103,805 $286 35~,713 • ~ . FRANCHISE HAULER ACKNOWLEDGMENT THIS FRANCHlSE HAULER ACKNOWLEDGMENT, dated as of April 3, 2009 (the "Acknowledgment"), by and between the City of San Juan Capistrano (the "City") and CR&R Incorporated (the "Franchise Hauler"). WITNESSETH WHEREAS, the City and the Franchise Hauler have heretofore entered into an agreement entitled Integrated Solid Waste Collection Agreement. dated as ofl>eoember 17, 1996 (the "Franchise'') with three amendments following the original Franchlae; and WHEREAS, the City has issued to the Franchise Hauler a pennit, 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 provides for the exciWilve 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 hererofore entered into a Waste Disposal Agreement, dated as of April 21, 2009 (the "Disposal Agreement") detennining 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 wllhln 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 Hauler will be entitled to the benefi1s of the Waste Disposal Agreement and to assure confonnity with the waste delivery obligations which have been agreed to by the City under the Disposal Agreement through the delivery of waste by the Franchise Hauler to the Disposal System; and WHEREAS, the Franchise Hauler's agreement to deliver Franchise Waste to the Disposal System under this Acknowledgment is given in consideration of the Franchise Hauler's right to receive the Contract Rate for such disposal as provided In the Disposal Agreement. NOW, THEREFORE, in consideration of the premises and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties hereto, intending to be legally bound hereby, agree as follows: I. Capitalized terms used and not otherwise defined herein are used as defined in the Disposal Agreement. Execution Copy • t • 2. The Franchise Hauler hereby waives any right which it may possess under applicable law to contest on any ground, constitutional, statutory, case law, administrative or otherwise, (a) the right, power or authority of the County or the City to enter into or perform their respective obligations under the Disposal Agreement, (b) the enforceability against the County or the City of the Disposal Agreement, or (c) the right, power or authority of the City to deliver or cause the delivery of all Controllable Waste to the Designated Disposal Facility in accordance with this Acknowledgment. 3. The City and the Franchise Hauler each hereby represent that this Acknowledpent has been duly authorized by all necessary actton of their respective governing bodies. 4. The Franchise Hauler shall deliver or cause to be delivered all Controllable Waste (Including all residue from the processing by any means, wherever conducted, of Controllable Waste), to the Disposal System, and shall otherwise assist the City In complying with its obligations under the Waste Disposal Covenant in Section 3 .I of the Disposal Agreement. 5. The franchise Hauler shall not haul Controllable Waste to any materials recovery facility, composting facility, intennediate processing facility, recycling center, transfer station or other waste handling or management facility unless the contract or other agreement or BITBDgement 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 Acceptahle 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 siven the Franchise Hauler in the Franchise to recycle City Acceptable Waste, except as provided in paragraph S above with respect to Residue from any such recycling operations. 8. The obligations of the Franchise Hauler under this Acknowledgment shall apply notwithstanding any provision of the franchise which may conflict herewith. 9. This Acknowledgment may be enforced by the City by any available legal means. In any enforcement action by the City, the burden of proof shall be on the Franchise Hauler to demonstrate compliance herewith. 10 . This Acknowledgment sball be in full force and effcc;t and shall be legally bindin& 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 tenn of the Disposal Asreement. 11. The City and Hauler agree that the County shall be an express third party beneficiary of this Acknowledgment. and shall be entitled to independently enforce the obligations of the Franchise Hauler hereunder. 12. The Hauler agrees to assist the County in verifYing tonnage collected by the franchise Hauler and providing information required by the County. Hauler will provide upon request refuse tonnage collected within the County, and outside the County (if relevant to confinning 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 tnlmfer station). Hauler will provide wstomer 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 itll auditors. J.lxetlltioo Copy • ' .. IN WITNESS WHEREOF, the parties have caused this Acknowledgment to be executed by their duly authorized officers or representatives as of3rd day of April, 2009. Execution Copy CITY OF SAN JUAN CAPISTRANO Signatur~, = ~\=e Printed Name: Dean Ruffridge Title: Senior Vice President CR&R (Franchise Hauler) • • CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT who proved to me on 1he basis of satisfactory evidence to be the person(s) whose name(s) lsfare subscribed to the within Instrument and acknowledged to me that he/she/they executed the sarne in hlsiher!1helr authorized capaclty(les), and that by hlslherllhelr slgnature(s) on the Instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph Is true and correct. Signature ___,..,..____._..~~,...,...=,_..,=-=,-----IUia 01 NOID ty ~ --------------------OPTIONAL ----------------------- Though lhs Information below Is not required by 18w, It may prow valuable to persons relying on the doct11n8nt and could prwsnl fraudulsnt removal and reattaclltn8fll of this form to another documsnt. Peecrlptlon of Attached Document TdleorTypeofDocume1t ~£)'(Y\ Qi Jta\J l-er -1\cr..tl b v-\\~~-i __ Document Date: .t.J _ 3/D .q Number of Pages:------- Signer(s) Other Than Named Above: _ ___,N.__Lit. ____________________ _ Capactty(lel) Claimed by Slgner(s) Slgner'sName:_~ ~-f&',J¥ ~Individual 0 Corporate Officer -TlUe(s): 0 Partner-0 Umited 0 General 0 Attorney In Fact [J Trustee D Guardian or Conaervator 0 Other: _______ _ Signer Is Representing: ___ _ Signer's Name : 0 Individual ----. ------- 0 Corporate Officer -Tltle(s): 0 Partner-0 Limited 0 General 0 Attorney In Fact OTrustee 0 Guardian or Conservator 0 Other: ________ _ Signer Is Representing: ____ _ ~~~~'W~~-t:L-m.~ CI2007Nibla1Nolaly~•9350De&l*l1Na.,P.O.Sar.240'l•~.CA 913t3.2oi02•-.NIIIIonlfNaaory.COV bmiiSIItll ....,.,c,~,_F,..1-«<N7HI27 Memorandum Date: July 30, 2009 To: Cities, Facility Operators, and Sanitation Districts From: JeffSouthem J.J. Subject: Executed copy of Waste Disposal Agreement Mlci!Ht 8. Gla11cofo, Dhctor 300 N. Rower StrMt, Sulw 400 Santa Ana. CA 9l70:J www pdaodftlls.com TII'Jihone: (714) 8l4-4000 Fax: (7141834-4183 Enclosed is your copy of the fully executed Waste Disposal Agreement with the County of Orange OC Waste & Recycling Department. The County maintains two original copies ofthc docwnent, one at the Clerk of the Board and the other with the Department. Should you have any questions or need any assistance please do not hesitate to call me. (714) 834-2652 Thank you, Jeff Southern 32400 ~A811!0 ADELAN1'0 8AN .IUAN CAI"t.-rftANO, CA 8287& (849) 493-1171 (849) 493-1053 FAX www.sanjuancapistrtmo.org TRANSMITTAL May6, 2009 TO: OC Waste & Recycling Attn : Jeff Southern 300 N. Flower, Suite 400 Santa Ana, CA 92703 FROM: Maria Morris, Deputy City Clerk (949) 443-6309 RE: Waste Disposal Agreement Enclosed: ..W.iRS 01' THE cnY COUNCIL SAMAI..L!VATO ~.AURA FREER lHOMAII w. HltiiM MAAKIIEL81N DR. L.OtGftES UIO A minute extract from the Meeting of May 5, 2009 pertaining to this matter and (3) Original, executed 'Waste Disposal Agreement" between the City of San Juan Capistrano and the County of Orange, Califomia After execution by the County of Orange, please forward (1) executed original agreement to my attention for our records. Please contact Ziad Mazboudl, Senior Civil Engineer at (949) 234-4413, with Questions regarding the agreement. I can assist you regarding the City Council's actions. CC: Ziad Mazboudi, Senior Civil Engineer San Juan Capistrano: Preserving the Pasi to Enhance the Future 0 Prinled on 100% I8C)'ded paper 32400~ASEOADE~ BAN JUAN CAP'IST'IIANO, C:A 92675 (949) G3-117t (948) 493-1 0!53 F'AJl www.sanjuancapislrano.org CITY COUNCIL MEETING MINUTE EXTRACT MEMBERS OF THE CnY COUNCL IIAMAI.aVATO I.AlltA FREESE ntOMA8 W. HIIIIWt MARK NIELBiiN DR. LONDRE8 USO A Regular Meeting of the City Council of the City of San Juan Capistrano, California was held on May 5, 2009 at 6:30p.m. in the City Council Chamb~r. 32400 Paseo Adelanto, San Juan Capistrano, California with Mayor Nielsen presiding. ROLL CALL PRESENT: COUNCIL MEMBERS: ABSENT: COUNCIL MEMBER: Allevato, Hribar, Freese, Uso, and Mayor Nielsen None EXTRACT OF: Consent Calendar Item 08: Consideration of Approval of the County of Orange Waste Disposal Agreement Council ActiQ.Q: Moved by Council Member Allevato, seconded by Council Member Freese, and carried unanimously to approve the County of Orange Waste Disposal Agreement; and City Manager authorized to sign the agreement. ROLL CALL: AYE: NO: ABSENT: Council Members: Allevato, Hribar, Freese, Uso, and Mayor Nielsen Council Members: None Council Members: None I, Maria Morris, Deputy City Clerk of the City of San Juan Capistrano, California, do hereby certify that the foregoing is a true and correct copy of the Minute Entry on record in my office. Said Minut s have not been officially approved by the City Council of the City of San Juan Capi tran , es of May 6, 2009. S WHEREOF, I hereunto set my hand and affix the official seal of the City of San r~I:Uc:-trano , California this 6th day of May 2009. Original to: Jeff Southam; OC Waste & Recycling Ziad Mazboudi, Se.nior Civil Engineer (Copy) San Juan Capistrano: Preserving the Past to Enhance the Future () Prlnled on 1 OO'IIo reeyded paper Today's Data:4/27/2009 CIP No. (If any): CONTRACT TRANSMITTAL ~If\ {~t;tt~~ Oti)Y~ Project Manager's Last Name: Mazboudi Phone Extenalon:4413 Council or CRA Meeting Date (if applicable): 5/5/2009 APPROVING AUTHORITY: (Check One) ~ Mayor E2:) CRA Chair ~ City Manager Tn~nsmlttal Routing (Check All That Apply) City Attorney City Manager City Cler1< Provide ( 1) executed original contract for each signing party, including the City. If the agreement is to be recorded-only (1) original will be recorded with certified copies going to other parties. Please provide the mailing address of any party to receive an agreement -unless the mailing address is included within the body of the agreement: (Not necessary if Information Is included in the contract) Name{~} Street CitY_ St Zip - OTHER INSTRUCTIONS: Maria -please send a copy of the minutes to the following contact which only contain information for this particular agenda item. (waste discharge) ~~~f1 ~ N · 'ftot>JeY, ~ Li,w s~ ~ ,(¥,-ct2.7v3 5/5/2009 AGENDA REPORT 08 TO: Dave Adams, City Manager ~\ FROM: Nasser Abbaszadeh, Public Works Director SUBJECT: Consideration of Approval of the County of Orange Waste Disposal Agreement RECOMMENDATION: By Motion, approve the County of Orange Waste Disposal Agreement and Authorize the City Manager to sign the Agreement. SUMMARY AND RECOMMENDATION On March 24, 2009, the County of Orange Board of Supervisors adopted a Waste Disposal Agreement and Disposal fees. The OC (Orange County) Waste and Recycling and Waste Management Committee of the Orange County City Manager's Association have worked since 2006 to negotiate a mufti-year agreement to continue the existing agreement. The existing agreement, which was adopted in 1997, will expire on June 30, 2010. The new agreement is substantially the same as the current waste disposal agreement. Some of the new agreement topics include: • Requires -Cities to direct their trash to the County disposal system from July 1, 2010 to June 30, 2020; • Rate-Annually adjusted per ton rate beginning at $29.95 effective July 1, 2010; • Results -Provides long-term capacity at below market rate (projections indicate OC capacity exceeding 50 years with importation ending in 2016; the negotiated rate is estimated to be $8 to $10 below market in 2010, and about $30 below matket in 2015). Staff recommends that the City Council approve the County of Orange Waste Disposal Agreement and Authorize the City Manager to sign the Agreement. Background In 1997, the County and Cities of Orange County entered into a waste disposal agreements for a fixed rate per-ton for the disposal of solid waste in the County disposal system. The agreement will end on June 30, 2010. Since late 2006, the OC Waste and Recycling and Waste Management Committee of the Orange County City Manager's Association have worked to negotiate another multi-year agreement to fulfill city waste disposal needs and provide for the financial stability of the County disposal system. Agenda Report Page2 May 5, 2009 Following the completion of negotiations, which included analysis of the rate structure by a third-party financial consultant and legal review of the agreement by a "committee" of city attorneys, the final agreement was presented to the County Board of Supervisors for consideration on March 24, 2009. The Board approved the agreement. Orange County enjoys a unique resource In Its landfill system. Managed with long-term capacity and environmental sensitivity as key objectives, the system has provided the County with a reliable place to deposit approximately 4 million tons of solid waste per year at competitive rates. While surrounding Counties scramble to find new disposal alternatives at great expense, Orange County has long-term capacity at reasonable costs. W()rking cooperatively through this agreement, cities and the County are jointly seeking to continue this positive benefit to the residents and businesses of Orange County. The Rate The rate is $29.95 per ton for Franchise Haulers beginning July 1, 2010, adjusted annually by Consumer Price Index (CPI), for a ten year term. This rate is: • Reasonable-The current disposal fee of $22.00 per ton has been in effect since 1997 with no increase. Had the disposal fee in 1997 been increased by the CPI and new regulatory costs added on, the disposal fee in 2010 would likely exceed this rate; • Competitive -Surrounding landfills are presently and will soon be charging significantly more than the negotiated rate (e.g. Puente Hills, Los Angeles County, will be at $37.62 effective July 1, 2010); • Secure-Revenues from cities go into an enterprise fund that Is to the long term benefit of the participants, namely: the cities of Orange County, and will continue as an asset that has tremendous economic value; and, • Protected-The County agrees that for the tenn no other rate will be offered at less than that being charged to cities. The current rate of $22.00 per ton will go unchanged until the new rate takes effect on July 1, 2010. The County projects the Impact of the rate increase on the average residential ratepayer's monthly solid waste collection bill to be approximately $1.00; an increase of less than 6% (this is the first such disposal rate increase in 13 years). Subsequent annual changes, based on the projected change In CPI, would range from $0.12 to $0.14 per home per month. The City and CR&R will calculate this rate annually and incorporate it in the annual rate structure. The Terms For the agreement to take effect, it requires that cities representing 85% of the "aeceptable" waste generated in the County adopt the terms within 120 days following approval of the agreements by the County Board of SupeNisors. During the term all participants are required to direct their solid waste to the County system. The agreement does provide extraordinary circumstances whereby the County may raise the rate in excess of CPI (e.g. changes in law, unforeseen claims in excess of insurance proceeds, capital costs exceeding the "cumulative capital costs" set forth). The agreement requires Agenda Report Page3 May 5, 2009 the County to reduce operating costs and/or utilize unrestricted reserves for typical operating impacts (e.g. tonnage shortfalls). The System The County landfill system is comprised of three (3) active landfills and twenty-one (21) closed landfill sites. The County has created an Environmental Liability Fund for the purpose of protecting the cities' general funds from any cost liabilities in the event of an environmental incident at the closed landfill sites. The system is managed by OC Waste and Recycling (formerly known as the Integrated Waste Management Department), with a staff of approximately 250. As a result of the County bankruptcy, the system has been accepting •imported" solid waste as a means to payoff bankruptcy debt. Pursuant to this agreement, importation will end in June 30, 2016. The result is a landfill system with a projected capacity of over 50 years. The City primarily uses the Prima Deschecha landfill and will continue to do so, until the landfill is closed. Next Steps The County Board of Supervisors adopted a resolution approving the waste disposal agreements and other disposal fees on March 24, 2009. Subsequent to that date, cities have 120 days to execute the agreement. If cities representing at least 85% of County acceptable waste have signed agreements by June 23, 2009, the Director of OC Waste and Recycling will execute the agreements. If less than 85% of the County acceptable waste Is secured by June 23, 2009, the agreements will not be adopted and County staff will return to the Board of Supervisors to present alternative rate strategies. The agreement, Appendix 4, is a form of hauler acknowledgment with terms identified for each city hauler to agree, In order to have an effective Waste Disposal Agreement. CR&R have agreed to the terms and have signed the form attached to the agreement. Staff supports the adoption of the County Waste Disposal Agreement and recommends that City Council approves the agreement as presented. COMMIS SION/BOARD REVIEW AND RECOMMENDATIONS: N/A FINANCIAL CONSIDERATIONS : There is no immediate financial impact to the City as a result of the agreement. The public will receive an increase effective July 1, 2010, as a result of the landfill waste collection fee increase. In future years, this fee will increase based on CPl. The annual increase should be minimal. Agenda Report Page4 NOTIFICA TIQ.M: OC Waste and Recycling CR&R, Inc. RECOMMENDATION: May 5, 2009 By Motion, approve the County of Orange Waste Disposal Agreement and Authorize the City Manager to sign the Agreement. Respectfully submitted, Nasser Abbaszadeh, PE Public Works Director Pre~~ Ziad Mazboudi, PE, CPSWQ, CPESC Senior Civil Engineer Attachment: 1. County of Orange Waste Disposal Agreement. AMENDMENT TO WASTE DISPOSAL AGREEMENT Between THE COUNTY OF ORANGE, CALIFORNIA and the CITY OF SAN JUAN CAPISTRANO County Amendment Authorization Date: ____ ,2016 County Notice Address: Director OC Waste and Recycling 300 N. Flower, Suite 400 Santa Ana, CA 92703 Amendment to Waste Disposal Agreement ___ _,2016 City Amendment Authorization Date: _____ ,2016 City Notice Address: Benjamin Siegel, City Manager City of San Juan Capistrano 32400 Paseo Adelanto San Juan Capistrano, CA 92675 AMENDMENT TO WASTE DISPOSAL AGREEMENT THIS AMENDMENT TO WASTE DISPOSAL AGREEMENT (the "Amendment") is made and dated as of the date indicated on the cover page hereofbetween the County of Orange, a political subdivision ofthe State of California (the "County"), and the City designated on the cover page of this Amendment, a general law or charter city and political subdivision of the State of California (the "City"). RECITALS The County owns, manages and operates a sanitary landfill system for the disposal of municipal solid waste generated by the cities and the unincorporated area within the County (the "Disposal System"). The Disposal System includes three active landfills and four regional household hazardous waste collection centers. The Disposal System is used for the disposal of municipal solid waste which is not reused, recycled or otherwise diverted from landfill disposal, pursuant to the California Integrated Waste . Management Act of 1989 (Division 30 of the California Public Resources Code) (the "Act"). The County has entered into waste disposal agreements in 2009 (the "Original Waste Disposal Agreements") with all of the cities in the County, including the City, as well as certain sanitary districts located in the County (the "Participating Cities"), pursuant to which the County agreed to provide disposal capacity for waste generated in or under the control of the Participating Cities, and the Participating Cities agreed to deliver or cause the delivery of waste generated in or under the control of the Participating Cities to the Disposal System, as more specifically set forth in, and subject to the terms and conditions of, the Original Waste Disposal Agreements. The City has determined that the execution of this Amendment by the City is in the best interest of the City and will serve the public health, safety and welfare by providing greater disposal rate stability, more predictable and reliable long-term disposal service, and sound environmental management. The County has determined that the execution by the County of this Amendment will serve the public health, safety and welfare by providing a more stable, predictable and reliable supply of municipal solid waste and the resulting service payment revenue to the Disposal System, thereby enabling the County to plan, manage, operate and finance improvements to the Disposal System on a more prudent and sound long term, businesslike basis consistent with its obligations to the State and the holders of obligations secured by its Disposal System. Official action approving this Amendment and determining it to be in the public interest and authorizing its execution and delivery was duly taken by the County on the County authorization date indicated on the cover page hereof. Official action approving this Amendment and determining it to be in the public interest and authorizing its execution and delivery was duly taken by the City on the City authorization date indicated on the cover page hereof. It is, therefore, agreed as follows: Amendment to Waste Disposal Agreement Section 1. Amendment to Original Waste Oisposnl Agreement. (a) Sections 3.6(C) and 3.6(E) of the Original Waste Disposal Agreement are deleted and replaced in their entirety, as set forth below: "(C) Receipt of Imported Acceptable Wnste on a Contract Ba is. Throughout the Term hereof, the County shall have the right to enter into a contract or other agreement with any municipal or private non-County entity for the delivery of Imported Acceptable Waste on terms and conditions that the County determines to be necessary to ensure and enhance the viability of the Disposal System for the benefit of the County and the Participating Cities and to generate Net Import Revenues. The County certifies that in its good faith judgment the contract or other agreement for the delivery of such waste will not materially and adversely affect the ability of the County to receive and dispose of Acceptable Waste from the Participating Cities in accordance with the applicable Disposal Agreements throughout the Tenn thereof. " "(E) Application and Use of Revenues From Other Users. (1) Throughout the term hereof, all revenues received by the County from the disposal of County Acceptable Waste by the Disposal System, and all revenues received by the County from the disposal of Imported Acceptable Waste by the Disposal System (including amounts received by the County as a result of the failure of contract counterparties to deliver minimum required amounts of Imported Acceptable Waste), shall be deposited by the County in the County OC Waste & Recycling Enterprise Fund and shall constitute revenues of the Disposal System. Pursuant to the County's Plan of Adjustment, the County is entitled to receive net revenues (after payment of all costs attributable to the acceptance of such Imported Acceptable Waste at the Disposal System) (''Net Import Revenues") from the disposal of Imported Acceptable Waste by the Disposal System. Costs attributable to the disposal of Imported Acceptable Waste include deposits to the Environmental Fund, deposits to closure and postclosure reserves, City host fees (if applicable), operating costs (such as manpower expenditures, equipment, services and supplies expenditures), state surcharges, and a pro rata share of capital project costs. Net Import Revenues shall be used for the payment ofbankruptcy related obligations until payment in full of such bankruptcy related obligations required to be paid from such Net Import Revenues pursuant to the Plan of Adjustment. It is estimated that payment in full of such bankruptcy related obligations required to be paid from such Net Import Revenues pursuant to the Plan of Adjustment will occur by the end of Fiscal Year 2017-18. (2) Until the County's obligation to apply Net Import Revenues for the payment of bankruptcy related obligations in accordance with the Plan of Adjustment has been satisfied in full, Net Import Revenues shall be calculated as provided in Section (3.6)(E)(l). For any period after the County's obligation to apply Net Import Revenues for the payment of bankruptcy related obligations in accordance with the Plan of Adjustment has been satisfied in full, Net Import Revenues shall be calculated as foJlows: (i) in Fiscal Year 2017-18, Net Import Revenues for each ton of Imported Acceptable Waste received shall be equal to the revenues received for the disposal of such ton oflmported Acceptable Waste (excluding any newly established per-ton fees or increases to existing per-ton fees with respect to Imported Acceptable Waste payable to the State, other regulatory agencies or cities in which facilities in the Disposal System are located) in excess of$17.57 per ton; (ii) in Fiscal Year 2018-19, Net Import Revenues for each ton oflmported Acceptable Waste received shall be equal to the revenues received for the disposa1 of such ton of Imported Amendment to Waste Disposal Agreement Acceptable Waste (excluding any newly established per-ton fees or increases to existing per-ton fees with respect to hnported Acceptable Waste payable to the State, other regulatory agencies or cities in which facilities in the Disposal System are located) in excess of$18.01 per ton; (iii) in Fiscal Year 2019-20, Net Import Revenues for each ton ofhnported Acceptable Waste received shall be equal to the revenues received for the disposal of such ton of Imported Acceptable Waste (excluding any newly established per-ton fees or increases to existing per-ton fees with respect to Imported Acceptable Waste payable to the State, other regulatory agencies or cities in which facilities in the Disposal System are located) in excess in excess of $18.46 per ton; and (iv) thereafter, Net Import Revenues shall be equal to 30% of the revenues received by the County from the disposal of Imported Acceptable Waste (excluding any newly established per-ton fees or increases to existing per-ton fees with respect to hnported Acceptable Waste payable to the State, other regulatory agencies or cities in which facilities in the Disposal System are located). (3) After the County's obligation to apply Net Import Revenues for the payment of bankruptcy related obligations in accordance with the Plan of Adjustment has been satisfied in full (i) 50% of any Net bnport Revenues (as calculated pursuant to Section 3.6(E}(2)) shall be paid to the County General Fund; and (ii) 50% of such Net Import Revenues shall be paid to the Participating Cities (and to the County, with respect to the unincorporated area) listed in Appendix 5 for use for any purpose by the Participating City, including but not limited to state mandated solid waste programs. Payments of such amounts to the County General Fund and the Participating Cities shall be made by the County within 90 days after the end of each fiscal year. The portion ofNet Import Revenues specified above payable to the Participating Cities shall be apportioned in the percentages set forth in Appendix 5. ( 4) The percentages set forth in Appendix 5 with respect to each Participating City will be adjusted at the end of Fiscal Year 2019-20 to reflect the percentage of actual deliveries of Acceptable Waste from each Participating City as compared to the total amount of actual deliveries from all of the Participating Cities during Fiscal Years 2017-18, 2018-19, and 2019-20. The County shall notify each Participating City of the revised percentages in Appendix 5 within 120 days after the end of Fiscal Year 2019-20. The revised percentages will be used for the allocation ofNet Import Revenues generated during Fiscal Year 2020-21 and thereafter. (b) Section 4.2(A)(z) is added to the Original Waste Disposal Agreement (immediately following Section 4.2(A)(y)) as follows: "(z) decrease the amount of Net Import Revenues otherwise payable to the County General Fund and the Participating Cities pursuant to Section 3.6(E)(2) and Section 3.6(E)(3) and use the amount of such decrease to pay costs of the Disposal System." (c) Section 6.I(A) and Section 6.l(B) ofthe Original Waste Disposal Agreement are deleted and replaced in their entirety with the following: Amendment to Waste Disposal Agreement "SECTION 6.1 EFFECTIVE DATE AND TERM. (A) Initial Tenn. This Agreement shall continue in full force and effect until June 30, 2025, unless earlier terminated in accordance with its terms, in which event the Term shall be deemed to have expired as of the date of such termination. (B) Option to Renew. This Agreement shall be subject to renewal by mutual agreement of the parties, on or before June 30, 2023, for an additional term often years (the "Renewal Term") on the same terms and conditions as are applicable during the Initial Term hereof. The City shall give the County written notice of its irrevocable election to renew this Agreement on or before June 30, 2022. If the parties do not renew this Agreement by June 30, 2023, the Agreement shall expire on June 30, 2025." (d) The first sentence of Section 6.1(C) ofthe Original Waste Disposal Agreement is deleted in its entirety and replaced with the following: "In connection with the parties' right to renew this Agreement for an additional ten-year term pursuant to Section 6.1 (B), the parties shall, on or before June 30, 2023, negotiate an applicable change in the Contract Rate for such renewal term." (e) Appendix 2 of the Original Waste Disposal Agreement is deleted in its entirety and replaced with the fonn attached hereto. (f) Appendix 5 shall be added to the Original Waste Disposal Agreement as a new appendix, in the form attached hereto. (g) All other terms and conditions of the Original Waste Disposal Agreement shall remain in full force and effect. Section 2. Initial Payment. As consideration for the execution ofthis Amendment by all of the Participating Cities, and subject to the occurrence of the Amendment Effective Date pursuant to Section 3, the County agrees to pay, from the County OC Waste & Recycling Enterprise Fund, the Amendment Payment to the Participating Cities listed in Appendix 5. The aggregate Amendment Payment shall be $5,400,000, and shall be distributed to the individual Participating Cities (including the City) in the percentages set forth in Appendix 5 by September 30,2016. Section 3. Elfec ti vene s or Amendment. The provisions of this Amendment shall not become effective unless and until the Amendment has been executed by the County and all of the Participating Cities. The date on which the County and all of the Participating Cities have executed the Amendment shall be the "Amendment Effective Date." The County shall give written notice of the Amendment Effective Date to the City. In the event that the Amendment Effective Date does not occur by June 30, 2016, this Amendment shall be automatically terminated and the County shall have no obligation to make the Amendment Payment. Section 4. REPRESENTATJONS AND WARRANTIES OF THE PARTIES. Each of the parties to this Amendment represent and warrant that it is a political subdivision of the State of California validly existing under the Constitution and laws of the State and (ii) it has duly authorized the execution and delivery of this Amendment, and has duly executed and delivered the Amendment. Amendment to Waste Disposal Agreement All other terms and conditions of the 2009 Original Waste Disposal Agreement not specifically changed by this Amendment, shall remain in full force and effect. IN WITNESS WHEREOF, COUNTY and CITY have caused this Amendment to be executed by their duly authorized officers or representatives as of the day and year first above written. Date --------------------- Date -------------------- APPROVED AS TO FORM: COUNTY COUNSEL ORANGECOUNTY,CALWORN~ By ____________________ ___ James Steinmann, Deputy Amendment to Waste Disposal Agreement COUNTY OF ORANGE By -~-=------=-~=----~=-------=-:---Director, OC Waste & Recycling CITY OF SAN JUAN CAPISTRANO By ----=-----:---:----=c:------=--:-:-~------- Benjamin Siegel, City Manager APPROVED AS TO FORM: GENERAL COUNSEL CITY OF SAN JUAN CAPISTRANO, CALIFORN~ By ____ ~~,.,.----~--------- JeffBallinger, City Attorney ATTEST: By ____________________ __ Maria Morris, City Clerk APPENDIX2 County Acceptable Waste Tonnage Target to be Used for Purposes of Section 4.2(b) Fiscal Year Tonnage Cumulative FY 2015-16 2,724,250 2,724,250 FY 2016-17 2,681,153 5,405,403 FY 2017-18 2,638,746 8,044,149 FY 2018-19 2,597,017 10,641,166 FY 2019-20 2,558,522 13,199,688 FY 2020-21 2,520,605 15,720,293 FY 2021-22 2,483,256 18,203,549 FY 2022-23 2,483,256 20,686,805 FY 2023-24 2,483,256 23,170,061 FY 2024-25 2,483,256 25,653,317 Amendment to Waste Disposal Agreement APPENDIXS PARTICIPATING CITY ALLOCATION PURSUANT TO SECTION 3.6 City Allocation Percentage for Allocation of Purl!oses of Section 3.6 Initial Pa~ment Anaheim 13.18% $711,509 Aliso Viejo 0.67 36,416 Buena Park 2.34 126,275 Brea 2 .28 123,085 Costa Mesa 2.18 117,936 Costa Mesa Sanitary District 1.48 79,976 Cypress 2.56 138,115 Dana Point 0.99 53,278 Fullerton 4.10 221,271 Fountain Valley 1.76 95,217 Garden Grove/ GG Sanitary District 7.17 387,197 Huntington Beach 6.13 330,807 Irvine 8.22 444,036 Laguna Beach 1.14 61,796 Laguna Hills 0.74 40,098 Laguna Niguel 1.36 73,341 Laguna Woods 0.41 22,274 La Habra 1.69 91,431 Lake Forest 2.45 132,214 La Palma 0.32 17,325 Los Alamitos 0.58 31,362 Mission Viejo 2.42 130,902 Newport Beach 3.68 198,946 Orange 4.90 264,468 Placentia 1.58 85,116 Rancho Santa Margarita 1.11 60,009 Santa Ana 10.60 572,184 San Clemente 1.40 75,728 San Juan Capistrano 1.23 66,420 Seal Beach 0.82 44,292 Stanton 1.62 87,287 Tustin 1.42 76,648 Villa Park 0.21 11,081 Midway City Sanitary District (Westminster) 2.13 114,893 Yorba Linda 1.78 96,344 County Unincorporated 3.35 180 ,723 Totals 100% $5,400,000 Amendment to Waste Disposal Agreement Distribution of Revenues to Cities for Continuation of Importation (from FY 16/17 to FY 19/20) % Distribution City to Cities FY 16/17 FY 17/18 FY 18/19 FY 19/20 Total Ana heim 13.2% $ 711,509 $ 857,171 $ 1,195,072 $ 1,196,45 6 $ 3,960,208 Aliso Viejo 0.7% $ 36,416 $ 43,871 $ 61,165 $ 61,235 s 202,687 Buena Park 2.3% s 126,275 $ 152,126 s 21 2,095 $ 212,341 $ 702,837 - Brea 2.3% $ 123,085 $ 148,283 $ 206,736 $ 206,976 s 685,080 ------Costa Mesa 3.~ !J 197,912 $ 238,429 $ 332,418 $ 332,803 $ 1,101,562 Cypress 2.6% $ 138,115 $ 166,390 $ 23 1,982 $ 232,250 $ 768,738 --Dana Point 1.0% _L 53,278 $ 64,185 $ 89,487 $ 89,590 $ 296,540 --- Fullerton 4.1% $ 221,271 s 266,570 $ 371,653 s 372,083 .~ 1,231,576 Fountain Valley 1.8% _$ __ 95,217 $ 114,710 s 159,930 s 160,115 $ 529,972 Garden Grove 7.2% $ 387,197 s 466,465 s 650,348 $ 651,101 $ 2,155,1 1.3_ ----Hu ntington Beach ___ 6.1% $ 330,807 s 398,531 $ 555,634 s 556,2 77 $ 1,841,249 --Irvine 8.2% $ 444,036 s 534,940 $ 745,815 $ 746,679 $ 2,471,469 --Laguna Beach 1.1% $ 61,796 $ 74,~ .i 103,795 $ 103,915 $ 343,954 ------Laguna Hills 0.7% $ 40,098 s 48,306 I_L 67,349 $_ 67 427 $ 223,181 ------Laguna Niguel 1.4% $ 73,34.!_ _$ ~56 1 123,g!6 ~ 123,329 $ 408,211 ----Laguna Woo~ 0.4% $ 22,274 $ 26,834 L 37,411 $ 37,455 $ 123,974 ...---La Habra 1.7~ 1__ 91,43 1 $ 110,149 $ 153,570 -.L 153,747 $ 508,897 -----Lake Forest 2.4% J 132,214 $ 159,281 $ 222,070 $ 222,327 $ 735,892 -------La Palma 0.3% j_ 17,325 $ 20,872 $ 29,100 $ 29,134 $ 96,431 ---Los Alamitos 0.6% $ 31,362 $ 37,782 $ 52,676 $ 52,737 $ 174,558 Missio n Vlej _o _ 2.4% $ 130,902 $ 157,701 L 219,867 $ 220,12.l_ $ 728,592 -- Newport Beach 3.7% $ 198,946 $ 239,674 $ 334,155 $ ~4,542 $ 1,107,317 Orange 4.9% $ 264,468 $ 318,611 $ 444,209 $ 444,723 $ 1,472,011 Placentia 1.6% $ 85,116 _$_ 102,542 f-$ 142,964 $ 143,130 $ 473,751 Rancho Santa Margarita 1.1% $ 60,009 $ 72,294 $ 100,792 $ 100,909 $ 334,004 Santa Ana 10.6% _$_ 572,184 j___ 689,322 $ 961,057 s 962,169 $ 3,184,732 ------San Clemente 1.4% $ 75,728 $ 91,231 $ 127,194 $ 127,342 $ 421 ,495 -f--$-~n Juan Capistrano 1.2% $ 66,420 $ 80,018 $ 111,561 $ 111,690 369,689 --Seal Beach -0.8% $ 44,292 $ _53,359 L _ 1_~ $ 74,480 $ 246,526 ------ Stanton 1.6% $ 87,287 ~--105,157 $ 146,611 $ 146,780 $ 485,835 -------Tustin 1.4% j_ 76,648 $ 92,339 $ 128,740 $ 128,889 $ 42 ?~ -- VIlla Park 0.2% $ 11,081 $ 13,350 .1-18,612 $ 18,~ $ 61,677 -- Midway City Sanitary (4) -2.1% $ 114,893 $_ 130,347 $ 181,730 }_ 181,941 $ 608,911 Yorba Linda 1.8% $ 96,344 $ 116,067 J. ~~$ 162,009 $ 536,242 -- Un incorporated 3.3% $ 180,723 $ 225,790 $ 314 798 $ 315,162 $ 1,036.473 Totals 100.0% $ 5,400,000 $ 6,5o5,5oo I s 9,0 70,000 $ 9,080,500 $ 30,056,000 [1) % distribution to cities based on the tonnage each city delivered for the past 33 months [2] Annual amounts based on the% distribution of the negotiated share of cities net import revenues. Combined share is SO% of total projected net importation revenues through FY 19/20. Total net importntion revenues is projected to be $49.3 million [3) Host fees based on projected tonnage and rates provided by HF&H (4]1ncludes Westminster and portions of unincorporated for Midway City Attachment 3 FIRST AMENDMENT TO MEMORANDUM OF UNDERSTANDING BETWEEN THE CITY OF SAN JUAN CAPISTRANO AND THE COUNTY OF ORANGE REGARDING THE PRIMA DESHECHA LANDFILL This First amendment is made and entered into this .2L day of {)av , 1995, by and between the County of Orange, hereinafter referred to as "COUNTY", and the City of San Juan Capistrano, hereinafter referred to as "CITY", and is made to the Memorandum of Understanding between the parties dated September 12, 1995, hereafter collectively referred to as the MOU. NOW, THEREFORE, THE PARTIES AGREE AS FOLLOWS: 1. The Sound/Visual Berms Section, is amended by deleting Paragraph, Section 1, C Sound/Visual Berms in its entirety, and substituting the following: Paragraph I, C, -Sound/Visual Berm CITY and COUNTY agree to cooperate in the construction of an earthen berm per Exhibit A in order to buffer residential units from noise and view of vehicles traveling to LANDFILL on La Pata. Said berm shalt be approximately eight (8) feet high, and nine hundred (900) feet long. Berm shall be designed in a manner to minimize the need for extra right-of-way and to accommodate existing topography as much as possible. CITY and COUNTY shall agree on technical specifications of berm design prior to its construction. Should additional right-of-way be needed, CITY and COUNTY agree to cooperate in negotiations with appropriate landowner (s). If the California Integrated Waste Management Board receives a letter from the City of San Juan Capistrano by November 27, 1995, which satisfies the General Plan Consistency requirements of Public Resources Code Section 50000, COUNTY shall pay total cost of said berm, including but not limited to, engineering and design, right of way acquisition and construction costs. Construction shall include hydroseeding or similar method of erosion control. COUNTY agrees to repair benn as necessary. Construction shall be completed within one ( 1) year of permit issuance. If General Plan Consistency fmding persuant to Section 50000 is not sent by City to the CIWMB by November 27, 1995, COUNTY's share of total cost shall be $45,000 and construction shall begin at a date mutually agreed to by CITY and COUNTY. All other terms and conditions of the agreement remain unchanged. Attachment 2 . .. - IN WITNESS V-REOF, the parties hereto have execul this First Amendment to the Memorandum of Understanding on the dates opposite their respective signatures: COUNTY OF ORANGE, a political subdivision of the State of ~omia ~:~-.:· L' (J 0!).}---r----· DATED: ( {JC/ ~ {~. ~ -------n, Chairman of the Board of Supervisors .... SIGNED AND CERTIFIED mAT A COPY OF THIS DOCUMENT HAS BEEN DEUVERED TO THE CHAIRMAN OF THE BOARD Kathleen E. Goodno, Acting Clerk of the Board of Supervisors of Orange County, California F ASSIST ANT COUNTY COUNSEL DATED: January 2, 1996 ATTEST: Rtc rd Denhitlter, City Attorney of the City of San Juan Capistrano, California DATED: ~I CITY OF SAN JUAN CAPISTRANO By: ~a tt. 1-Lu:f Wyatt Hart Mayor DATED:_2.__.:~~L......:../.....:9_:::.b:...__ __ _ SAN JUAN CAPISTRANO • .. \ . • \ • • ~.459 ~ , .-, ~. .....__.....~-~~~ ,..• "-• • --.~F- • I . . LOCATION MAP SAN CLEMENTE ORANGE COUNTY EfMRONMENTAL MANAGEMENT ~O«:f PROPOSED SOUND BERM @ LA PATA AVENUE SCALE : 1••3000' THOMAS GUIDE :.911J4 -9!52ft5 At tachllent A . , . .. • MEMORANDUM OF UNDERSTANDING REGARDING THE PRIMA DESHECHA LANDFILL between THE CITY OF SAN JUAN CAPISTRANO and THE COUNTY OF ORANGE "· • TABLE OF CONTENTS PREAMBLE ............................................................... l SECTION 1. GENERAL PLAN AMENDMENT/GENERAL DEVELOPMENT PLAN .... 1 A Road Improvements ................................................. 2 B. Ridgeline Preservation ............................................... 3 C. Sound/Visual Berms . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .... 3 D. Park Use Financing Plan .............................................. 3 E. Traffic Circulation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 3 SECTION 2. SOLAG RELOCATION ........................................... 4 SECTION 3. HOST FEE ..................................................... 4 SECTION 4. TONNAGE LIMITATIONS ........................................ 4 SECTION 5. RECIPROCAL COOPERATION .................................... 5 A. Processing General Development Plan . . . . . . . . . . . . . . . . . . . . . . . . . .......... 5 B. Cooperation on Antonio Parkway ....................................... 5 C. Cooperation on Solid Waste Facilities Permit .............................. 5 SECTION 6. STATUS OF CITY AND INDEMNIFICATION ........................ 5 SECTION 7. REPORTS AND INFORMATION ................................... 6 SECTION 8. BINDING EFFECT ............................................... 6 SECTION 9. EXHIBITS INCORPORATED ...................................... 6 SECTION 10. FORCE MAJEURE ............................................. 6 SECTION 11 . NOTICES ..................................................... 7 SECTION 12. AMEND:MENTS ............................................... 7 EXHIBIT A. MAP OF LANDFILL AREA ....................................... 8 EXHIBIT B. PROJECT SCHEDULE ........................................... 9 .. MEMORANDUM OF UNDERSTANDING BETWEEN THE CITY OF SAN JUAN CAPISTRANO AND THE COUNTY OF ORANGE REGARDING THE PRIMA DESHECBA LANDFILL This Memorandum of Understanding is made and entered into this /g -tiJ day of September, 1995, by and between the County of Orange, hereinafter referred to as the "COUNTY'' and the City of San Juan Capistrano, hereinafter referred to as the ''CITY." PREAMBJ,E The Prima Deshecha Landfill "LANDFILL" is one of the three active landfills owned and operated by the COUNTY as part of its landfill system. By COUNTY Ordinance, COUNTY may contract to provide solid waste disposal services to governmental entities and/or solid waste haulers for municipal solid waste originating outside of the COUNTY ("Out-of-County Waste") provided said contracts meet certain conditions specified in Orange County Codified Ordinance ("OCCO") § 4-3-116. The COUNTY is considering entering into contracts to accept Out-of-County Waste at the LANDFilL. It is the intent of the COUNTY to participate in the mitigation of any potential impacts on the CITY. The purpose ofthis Memorandum of Understanding is to identify the understanding ofthe parties as to how the COUNTY will reasonably mitigate these impacts on the CITY. The COUNTY is currently under a Stipulated Order of Compliance and Agreement in operating the LANDFILL. The present Solid Waste Facility Permit (SWFP) was authorized at a time when the LANDFILL was operating at a level of approximately seven hundred and fifty (750) tons per day. The COUNTY is currently accepting approximately eleven hundred (I, I 00) tons per day of the municipal solid waste at the LANDFILL and is presently submitting a request for a revised SWFP for authorization to operate the LANDFilL at a proposed four thousand (4,000) tons per day. Any contracts entered into for disposal services of Out-of-County Waste shall not cause the tonnage to exceed four thousand (4,000) tons per day. NOW, THEREFORE, THE PARTIES AGREE AS FOLLOWS: SECTION 1. GENERAL PLAN AMENDMENT/GENERAL DEVEWPMENT PLAN. CITY has received a payment of twenty thousand dollars ($20,000) from COUNTY which represents the deposit for processing the COUNTY's application for General Plan Amendment. Any unused balance shall be refunded to COUNTY. 1 A Road Improvements -If COUNTY begins accepting Out-of-County Waste at the LANDFILL, COUNTY shall be lead agency for design and construction of Antonio Parkway, a minimum four-lane roadway between Oso Parkway and Ortega Highway, by May 31, 1999. COUNTY shall be responsible for certification of an Environmental Impact Report ("EIR.") by the Board of Supervisors, contribution of right-of-way from the property owners, setting aside sufficient funds for its design, construction, maintenance, drainage, slopes and environmental mitigation, including the cost of clearing any title obligations. It is further agreed that in order to accept Out-of-County Waste at the LANDFILL that the following schedule of events must be met: i. COUNTY Board of Supervisors shall set aside all funding for the design and construction of Antonio Parkway in accordance with the following schedule: COUNTY shall accumulate gas tax funds over two (2) successive fiscal years beginning in 1995-96. COUNTY shall include with its adopting resolutions for its budget, a finding that the funding, design and expedited construction of Antonio Parkway between Oso Parkway and Ortega Highway is its highest priority capital project. In addition, this agreement, including this budget priority, shall be included as an executory contract to be assumed under any "Plan of Adjustment" to be filled by the Bankruptcy Court. ii. COUNTY Board of Supervisors shall "Award Contract" for construction of Antonio Parkway by December 31, 1997. 111. Start of construction to commence within 90 days of award of contract and be maintained as a continuous operation until completion, except for delays caused by acts of nature. iv. Antonio Parkway to be completed not as a toll road and open for public use no later than May 3 1, 1999 . If the above stated schedule is not met, the COUNTY will cease acceptance of all Out- of-County Waste at the LANDFILL until said milestones have been met. The COUNTY shall hold CITY harmless from any claims that may arise due to other contractual agreements that COUNTY has with separate third parties related to the construction of Antonio Parkway. CITY agrees not to interfere with any contracts between COUNTY and third parties. Changes to the aboYe schedule may be discussed as part of a thiny (30) day meet and confer period prior to the expiration of the above dates. Any extension ofthe above performance dates can only be authorized upon agreement of both COUNTY and CITY. 2 COUNTY will not submit an application for revision of SWFP No. 30-AB-0019 subsequent to the application for revision of SWFP No. 30-AB-00 19 currently being reviewed by the staff of the Local Enforcement Agency (''LEA") and California Integrated Waste Management Board ("CIWMB") until a contract has been awarded for the construction of Antonio Parkway. COUNTY agrees to incorporate the above construction schedule for Antonio Parkway as a mitigation measure in the EDt currently being prepared for the CITY's General Plan Amendment and the COUNTY's General Development Plan ("GDP") for the LANDFIT...L. Said mitigation measure shall be in full force and effect in accordance with the provision of the California Environmental Quality Act ("CEQA"). B Ridaeline Preservation -The COUNTY will install and maintain final landfill grades which result in no silhouetting above and along the General Plan -designated "major ridgeline" which forms the northern and western edges of the LANDFILL site boundary such that no landfill operations or placement of landfill materials will visually encroach upon the designated General Plan ridgeline or be viewed from Ortega Highway. C SoundNisual Benns -COUNTY agrees to construct an earthen berm per Exhibit A in order to buffer residential units from noise generated by vehicles travelling to LANDFILL on La Pata. Said berm shall be a minimum four to five ( 4 to 5) feet high, and nine hundred (900) feet long and be designed such that it may be constructed so as to not require the acquisition of any additional right-of-way by the COUNTY. Further, berm shall be designed to be accommodated by existing topography, without requiring retaining structures or significant grading. Construction should include hydroseeding or other method of erosion control. COUNTY agrees to repair berm as necessary. The berm is to be constructed prior to importation of Out-of-County Waste to LANDFILL in 1997. D Park Use Financing Plan -COUNTY agrees that the GDP will include a requirement that the ultimate recreational uses to be established on the site within CITY limits following closure of the landfill operations shall be mutually agreed upon by COUNTY and CITY. It is further agreed that the GDP will include a financial analysis and financial plan. E. Traffic Circulation-Any agreement for Out-of-County Waste will require that Out-of-County Waste be delivered via I-5 Freeway to Ortega Highway to La Pata Avenue. Any other alternate route must be approved by the Director ofEngineering and Building or his designee. CITY's approval shall not be unreasonably withheld. Any agreement for Out·of-County Waste will require that Out-of-County Waste be delivered to the LANDFll.L in transfer trailer vehicles, approximately twenty (20) tons of cargo, so as to reduce adverse traffic impacts unless approved in writing by City Manager or his designee. 3 .. · ·.· SECTION 2. SOLAG RELOCATION. When an application is submitted, COUNTY will expedite review of conditional use permits within ninety (90) days excepting appeals for the relocation of Solag Disposal Company to property owned by the San Juan Company, a California limited partnership, and San Juan Partnership No. I, a California limited pannership, or any property whereby COUNTY has jurisdiction over the land use permit process or construction permit process, and COUNfY will not unreasonably withhold permits for such relocation. SECTION 3. HOST FEE. The COUNTY will pay the CITY no less than eighty-one cents ($.81) per ton for each ton of Out-of-County Waste deposited in the LANDFILL, regardless of whatever tip fee is finally negotiated, for as long as such Out-of-County Waste continues to be deposited in the LANDFll..L ("Host Fee"). Said Host Fee is mitigation for LANDFll,L access only and is not compensation for acceptance of solid waste. Payment of the Host Fee will be made quarterly within one (1) month of the close of collection for the quarter for all loads which are composed of Out-of-County Waste. A subsequent payment will be made within twenty (20) days of receipt of origin of waste data from the hauler of any mixed loads composed of both Out-of-County Waste and In-County Waste. Mixed loads shall be prorated. Should the COUNTY's gate fee be increased after the COUNTY begins providing disposal services for Out-of-County Waste, the Host Fee will be adjusted. The adjustment to the Host Fee will be made according to the following formula utilizing a floating decimal. The new adjusted Host Fee will be rounded to the nearest whole cent. N= C x(AIB) A= The new adjusted gate fee for Out-of-County Waste B =The current gate fee for Out-of-County Waste C = The current Host Fee for the CITY N = The new Host Fee for the CITY SECTION 4. TONNAGE LIMITATIONS. Landflll operation will be limited to a maximum of four thousand (4,000) tons per day of municipal solid waste for the length of time the LANDFILL is in operation. Any SWFP issued by the State of California or LEA shall specifically stipulate a maximum daily tonnage limitation offour thousand (4,000) tons per day and an annual tonnage limitation (based 4 ... ·.· on three hundred and seven [307] operating days per year) of one million, two hundred and twenty- eight thousand (1,228,000) tons of municipal solid waste. Importation shall begin January of 1997, and shall not exceed two thousand (2,000) tons per day for any day prior to completion of Antonio Parkway . Antonio Parkway shall not be constructed as a toll road. If construction of Antonio Parkway is not completed by May 31, 1999, COUNTY will discontinue use of LANDFIT...L for the disposal of Out-of-County Waste, and shall cease all LANDFILL operation above two thousand (2,000) tons per day of municipal solid waste of any kind, including In-County Waste. Said limitations shall remain in effect until Antonio Parkway is completed and open to public traffic. SECTION 5. RECIPROCAL COOPERATION. A Prncessim~ General Development Plan -The CITY will proceed with processing the application submitted by the COUNTY for an amendment to its General Plan reflecting the interim landfill use of the site occupied by the LANDFILL and will present that amendment to the City Council no later than November 21, 1995. In order to meet this obligation, the COUNTY shall submit a draft EIR to the CITY no later than September 22, 1995 . The CITY and COUNTY agree to the schedule and milestones for processing the General Plan Amendment contained in Exhibit B, attached and incorporated by this reference excepting appeals. If CITY fails to meet its milestones for processing General Plan Amendments, CITY shall not object to COUNTY obtaining extensions of Senate Bill (SB) 17 (Craven)(Stats. 1995, Chapter 4 uXX). B . Cooperation on Antonio Parkway-CITY shall cooperate with COUNTY in providing necessary information and other actions required by the COUNTY in the preparation and certification of the EIR for both Antonio Parkway and the LANDFILL GDP and process any necessary permits, right of entry agreement, and applications involved in the funding and construction of the road. C. Cooperation on Solid Wast& Facilities Pennit -The CITY will cooperate with the COUNTY by providing the COUNTY with any necessary documents or clearances required by the LEA or the CIWMB so as to enable the COUNTY to complete its pending permit revision application, including, but not limited to information required by Public Resources Code Section 50000.5. Once CITY has acted on the General Plan Amendment, CITY shall provide LEA and CIWMB with records of action. SECTION 6 ... STATUS OF CITY AND INDEMNIFICATION. The CITY and COUNTY desire to leave no doubt as to their respective roles, and that by entering into this Memorandum of Understanding, CITY is not thereby becoming an ('Arranger" as that term is used in CERCLA § 107 (a)(3), and that it is the COUNTY, not the CITY, which is "Arranging For'' the disposal of Out-of-County Waste in LANDFILL which may contain hazardous, toxic, harmful or corrosive substances. 5 COUNTY agrees to defend, indemnify and hold CITY, and its officers, employees and agents harmless for all claims, injury, death or damage to property resulting solely from the acts or omissions of the COUNTY, its officers, employees, agents for liability arising from any activity of the COUNTY, its officers, employees, agents taken pursuant to the provisions of this Memorandum of Understanding including liability arising due to delivery of Out-of-County Waste to the LANDFll.L. CITY agrees to defend, indeJDDifY and hold COUNTY, and its officers, employees and agents harmless for all claims, injury, death or damage to property resulting solely from the acts or omissions of the CITY, its officers, employees, agents for liability arising from any activity of the CITY, its officers, employees and agents taken pursuant to the provisions of this Memorandum of Understanding. Ifthe CITY's negligence combines with the COUNTY's negligence to cause injury, the parties agree that liability will be apportioned as determined by a court of competent jurisdiction. Neither party shall request a jury apportionment. SECTION 7. REPORTS AND lNFORMATION. The CITY reserves the right to inspect the records of the COUNTY and the right to audit and to recompute any amounts deemed payable under this Memorandum of Understanding. Any such audit must be at CITY expense and take place within thirty-six (36) months of the close of each of the fiscal years. Any additional amount due must be paid within thirty (30) days following written notice to the COUNTY by the CITY. This notice shall include a copy of the audit report. SECTION 8. BINDING EFFECT. Each covenant, obligation, and condition contained in this Memorandum ofUnderstanding shall inure to the benefit of and be binding upon the parties to this Memorandum of Understanding. If LANDFU.L is transferred by COUNTY, COUNTY will provide in any such agreement that subsequent operator will comply with all requirements of this Memorandum of Understanding, which apply to the operation ofthe LANDFILL. SECTION 9, EXBWIT INCORPQRATED. Exhibits "A" through "B" are attached to and incorporated in this Memorandum of Understanding by reference. SECTION 10. FORCE MAJEURE. Should the performance of the obligations of either party under this Memorandum of Understanding be interrupted or delayed by any occurrence not occasioned by the conduct of either party to this Memorandum of Understanding, whether that occurrence is an act of God, war, civil insurrection, fire, flood, storm, strikes, lockouts, or by any law, regulation, or order of any federal or state court, that party's performance under this Memorandum of Understanding shall be excused for whatever period of time after the occurrence is reasonably necessary to remedy the effects of that occurrence. 6 SEC]JON 11. NOTICES. Any notice required or permitted by this Memorandum of Understanding shall be in writing and sufficiently given if delivered in person or sent by certified or registered mai~ postage prepaid, to the notice address of the respective parties set forth in this Memorandum of Understanding. Changes in the respective addresses to which such notices may be directed may be made from time to time by any party by notice to the other party . The present addresses of the parties are: COUNTY: County ofOrange EMA!Integrated Waste Management Department Attn: Director Location for Direct Deliveries and Certified Mail: 320 North Flower Street, Suite 400 Santa Ana, CA 92703 Mailing Address: P.O. Box 4048 Santa Ana, CA 92702·4048 CITY City of San Juan Capistrano Attn: City Manager Mailing Address: 32400 Paseo Adelanto San Juan Capistrano, CA 92675 SECTION 12. AMENDMENTS. Neither this Memorandum of Understanding nor any provision hereof may be changed, modified, amended or waived except by written agreement duly authorized and executed by both parties. 7 IN WITNESS WHEREOF, the parties hereto have executed thi5 Memorandum of Understanding on the dates opposite their respective signatures: DATED: _ __,q_---LI.....:.Jt ........ -........~9~5c:.,.___ SIGNED AND CERTIFIED THAT A COPY OF TinS DOCUMENT HAS BEEN DELIVERED TO THE CHAIRMAN OF THE BOARD ktAJJ 'rAV £ tam~ Kathleen E. Goodno, Acting Clerk of the Board of Supervisors of Orange County, California HIEF ASSIST ANT COUNTY COUNSEL DATED : ---~~r{~~~li~$-~----- CITY OF SAN JUAN CAPISTRANO DATED:Sq; '&a/ur J% /99S By:~~~ Carolyn Nash, ayor AJi~OVE~ AS T9 Yf?i : Jlr ~ fJY.J-.LL. DATED: ____ _ 'RicllafdDellhalter, City Attorney ofthe 9Pr9 City of San Juan Capistrano, California r s- 8 EXHIBIT A T(Ptf!AL Secno.J .. . \1. \ I i I I i i '• ' ' I ,:: .'.: . ·, ·.\ ·,,. ·····- ••• I ... ,, I ... . .. : ... :'' A. B. C. D. E. F. G. H. I. EXHIBITB PRIMA DESHECHA LANDFIT..L MOU & EIR. 548 PROJECT SCHEDULE SEPTEMBERS, 1995 Prepare Revised Draft EIR. - City Council Execute MOU - Board of Supervisors Execute MOU - Print Revised Draft EIR - Distribution of Revised Draft EIR - 45-Day Public Review Period1 - Prepate Response to Comments - City/County Commission(s)- City CounciVCertifies EIRI Adopts GP A - B/S Certifies EIR - Permit Approval by CIWMB - August 24 through September 15, 1995 September 8, 1995 September 12, 1995 September 15 through September 17, 1995 September 18, 1995 September 19 through November 2, 1995 November 2 through November 7, 1995 Week ofNovember 13th November 21, 1995 November 21, 1995 (Special Meeting needed) December 1995 1 The following items will begin during this period: staff reports, response to comments received early, mitigation monitoring and reporting program, findings of fact and statements of overriding consideration. January 4, 1996 Geoffrey K. Hunt, Deputy Office of the County Counsel County of Orange P. 0. Box 1379 Santa Ana, California 92702-1379 MEMBERS OF THE CITY COUNCIL COI..I.BE CAMPBELl. WYATT HART GIL .lONE I CAROLYN NASH OAIII) IWEROLIN Re: Prima Oeshecba Canada Landfill Memorandum of Understanding and First Amendment Dear Mr. Hunt: At their meeting of January 2, 1996, the City Council of the City of San Juan Capjstrano approved the First Amendment to the Memorandum of Understanding with the County. The Memorandum relates to mitigation of impacts on the City due to out-of-County waste transported to the Landfill. The First Amendment pertains to responsibility for the design and construction of the sound and visual berm on La Pata. Two fully-executed originals of both the Memorandum of Understanding and the First Amendment to the Memorandum of Understanding are enclosed. We have retained one fully-executed copy of each document for our files. Thank you for your assistance in this matter. Enclosure cc: Planning Director (with copy of MOU/First Amendment) Bill Ramsey (with copy of MOU/First Amendment) Douglas Dum hart (with copy of MOU/First Amendment) 32400 PASEO ADELANTO, SAN JUAN CAPISTRANO, CALIFORNIA 9:l67! • (714) 493·1171 • • • RESOLUTION NO 96-1-2-3. AUTI:IORIZING PURCHASE AND ACCEPTANCE OF RIGHI-OF-WAY ALIPAZ STREET IMPROVEMENT (ORANGE COUNTY FLOOD CONTROL) -A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF SAN JUAN CAPISTRANO, CALIFORNIA, AUTHORIZING PURCHASE AND ACCEPTANCE OF RIGHT -OF-WAY FROM THE ORANGE COUNTY FLOOD CONTROL DISTRICT FOR THE IMPROVEMENT OF ALIP AZ STREET APPROXIMATELY 500 FEET NOR Til OF CALLE RIO VISTA IN CONJUNCTION WITH DEVELOP'MENT OF T;RACT 14379 (PEPPERWOOD ESTATES/WITTENBERG-LIVINGSTON) The Mayor, City Clerk, and City Attorney were authorized to execute the Offer and Agreement to Purchase Real Property on behalf of the City, and the City Clerk was directed to forward the document to the Flood Control District for approval by the County Board of Supervisors. The Flood Control District had required the City to purchase the property. The developer had submitted payment for the parcel to the City in the amount of$4,000, and the Administrative Services Director was authorized to forward that payment to the Flood Control District. The following item was removed from the Consent Calendar at the request of Council Member Campbell. ~ APPROVAL OF FIRST AMENDMENT TO MEMORANDUM OF um>ERSIANDING Willi COUNTY OF ORANGE PERTAINING TO DESIGN AND CONSJRUCTION OBLIGATIONS FOR SOUNDMSUAL BEBMS (PRIMA QESHECBA LANPFIUJ (60~0) Written Commynication: Report dated January 2, 1996, from the Planning Director, recommending that the First Amendment to the Memorandum of Understanding with the County of Orange be approved modifying Paragraph l.C entitled "Sound/Visual Berm." The modified language would confirm the County's full financial obligation for installation of an 8-foot-high, 900-foot-long earthen berm along La Pata to buffer the noise and visual impacts on nearby residential units. Council Member Campbell requested assurance that the provisions contained in the First Amendment were consistent with the City's discussions with regard to height, location, angle, and length of the sound/visual benn. Mr. Tomlinson advised that the location and length were consistent, and that the 8-foot height would sufficiently screen trucks on La Pata from view. Approval ofFirst Amendment to Memorandum ofUnderstandin& with the CountY re: Sound/Visual Berm: It was moved by Council Member Campbell, seconded by Council Member Swerdlin, and unanimously carried that the First Amendment to the Memorandum of Understanding with the County of Orange be approved modifying Paragraph l.C entitled "Sound/Visual Berm." The Mayor was authorized to execute the First Amendment on behalf of the City . City Counoil Minutea l/2196 ·- ·" AGENDA ITEM January 2, 1996 TO: George Scarborough, City Manager FROM: Thomas Tomlinson, Planning Director SUBJECT: Approval of First Amendment to Memorandum of Understanding with the County of Orange Pertaining to Design and Construction Obligations for SoundNisual Berm RECOMMENDATION By Motion, approve the first amendment to the Memorandum of Understanding with the County of Orange by ModifYing Paragraph I.C, entitled SoundNisual Berm establishing responsible parties for the design and construction of said sound and visual berm. A. SUMMARY AND RECOMMENDATION -At the time that the Orange County Board of Supervisors approved the Memorandum of Understanding with the City of San Juan Capistrano, direction was given to County staff to work with the City to review the location and design of the proposed berm defined under paragraph I. C of the agreement. The purpose of this additional review was to determine feasibility and cost of construction of this improvement. This review has been completed and the County has agreed to amendment language to fully install the berm at their cost. In consideration of this obligation, language was also included in the amended language that would cap the County's obligation if the City did not transmit to the California Integrated Waste Management Board the action of the City Council in approving the General Plan amendment, bringing the landfill operation into compliance with the City's General Plan. This letter was to be transmitted by November 27, 1995. On November 21, 1995, the City Council did approve the General Plan amendment and a letter was transmitted to the California Integrated Waste Management Board on November 27, 1995. Therefore, the total cost of these improvements becomes the obligation of the County. Due to the timing of the study and the preparation of the amendment language, it was not possible to agendize this item for Council consideration until this meeting. Staff recommends that the City Council approve the amended language to the Memorandum of Understanding. This language was adopted by the Board of Supervisor's at their meeting of November 22, 1995. FOR CITY COUNCIL AGEN~ AGENDA ITEM -2-January 2, 1995 B. STAFF ANALYSIS -As the City Council is aware, one of the concerns that was discussed during consideration of the memorandum of understanding was as provision to install an earthen berm that would help reduce the noise and visual impacts of trucks using La Pata. This berm was to reduce these types of impacts to those homes in the Warmington subdivision at the City's easterly limits. At the time of the preparation of the agreement, concerns on the feasibility and costs that could be associated with this improvement was expressed on the part of County staff. The Board of Supervisor's, at the suggestion of the City requested that additional study be devoted to this issue. City staff developed a conceptual design including locational criteria and height studies to met the parameters discussed with the Council. This work included visitations on-site in the Warmington development. The preliminary plans were transmitted to the County. County staff evaluated the concepts and determined that the design was technically feasible. Furthermore, the County after reviewing the concept made a decision to install the berm at their expense. This decision included not only the cost of construction, but also any additional costs that may be required for right-of-way acquisition and long-term maintenance. In making that decision to pick up the costs of its installation, the County requested that the City not delay transmittal to the State of our action to approve the amendment to the City's General Plan. The specific language of the amendment reads as follows : "CITY and COUNTY agree to cooperate in the construction of an earthen berm per Exhibit A in order to buffer residential units from noise and view of vehicles traveling to LANDFILL on La Pata. Said berm shall be approximately eight (8) feet high, and nine hundred (900) feet long. Berm shall be designed in a manner to minimize the need for extra right-of-way and to accommodate existing topography as much as possible. CITY and COUNTY shall agree on technical specifications of berm design prior to its construction. Should additional right-of-way be needed, CITY and COUNTY agree to cooperate in negotiations with appropriate landowner(s). If the California Integrated Waste Management Board receives a letter from the City of San Juan Capistrano by November 27, 1995, which satisfies the General Plan Consistency requirements of Public Resources Code Section 50000, COUNTY shall pay total cost of said berm, including but not limited to, engineering and design, right-of-way acquisition and construction costs. Construction shall include hydroseeding or similar method of erosion control. COUNTY agrees to repair berm as necessary. Construction shall be completed within one (1) year of permit issuance. If the General Plan Consistency finding pursuant to Section 50000 is not sent by City to the CIWMB by November 27, 1995, COUNTY's share of total cost shall be . . AGENDA ITEM -3-January 2, 1995 $45,000 and construction shall begin at a date mutually agreed to by CITY and COUNTY . ., Staff believes that the installation of the sound/visual berm will be of significant benefit to those residents whose homes back onto the area impacted by La Pata. Staff recommends that the amendment language to the Memorandum of Understanding be approved by the City Council in that it satisfies the direction provided to staff to insure that such improvements would occur. COMMUNITY REDEVEWPMENT AGENCY This agreement and the improvements identified are not located within any project area of the San Juan Capistrano Redevelopment Agency. FINANCIAL CONSIDERATIONS In accordance with the provisions of the amended language, the County of Orange will be obligated to improve the sound/visual berm in accordance with the design provided by the City at no cost to the City since notification to the California Integrated Waste Board occurred by November 27, 1995. PUBLIC NOTIFICATION Although a public hearing is not required to consider this agenda item, a copy of the report has been transmitted to the County of Orange and residents whose properties are located along the easterly subdivision boundary facing La Pata. ALTERN ATE ACTIONS 1. Approve the amendment language to the adopted Memorandum of Understanding as submitted. 2 . Deny the amendment and direct the City Manager to conduct further discussions with the County. 3. Continue the item for additional information. ... AGENDA ITEM -4-January 2, 1995 RECOMMENDATION By Motion, approve the first amendment to the Memorandum of Understanding with the County of Orange by modifYing Paragraph I.C, entitled Sound/Visual Berm establishing responsible parties for the design and construction of said sound/visual berm. Respectfully submitted, ~,~. Thomas Tomlinson, Planning Director mou1.2 Attachment 1. First Amendment to Memorandum of Understanding (714) 834-3306 OFFICES OF e THE COUNTY COUNSEL COUNTY OF ORANGE 10 CI'IIC CENTER PlAZA M.r.IUNG AOOFIES$: P.O. BOX 137'11 SANTA ANA. CAUFORNIA 927!12·137'11 71~ FAX. 71411134-23511 December 22, 1995 George Scarborough, City Manager City of San Juan Capistrano 32400 Paseo Adelanto san Juan Capistrano, CA 92675 LAURENCE M. WATSON CHilE!' ASSISTANT JAMES F. MEADE ASSISTANT EDWARO N. DURAN KATHY PAUL RICHARD D. OVIEDO KAREN Fl. PRATHER BENJAMIN P. DE MAYO JIM PERSINGER HOWARD SERBIN GEOFFREY K. HUNT GENE AXELROD JACK w. GOI.OEN RoteRT\.. AUSllH DEBORAH M. GMEII'ER DONALD H. AUBIN CI1FilSTOPMEFI J. MILLER CAROL D. BROWN ROBERT G. OVERBY BARBARA L. STOCKER PI.MEI.A KEMP PARKER JAMES L. TURNER BARBI.RA H. EVANS NICHOLAS &. CHRISOS MICHEL!£ BEN-HUR 'TliOMAS F. MORSE DANIB. P. TORRES WANDA&. FLORENCE JOHN H. ABBOTT HOPI! 1!. SNYDER MICHELLE L. PALMER THOMAS C. AGIM WI.RD IIAAOV SHI!FilE A. CHRISTENSEN CHFilSTOPHEA M. DARGAN SUSA/11 M. NILSeN JANELLE M. SROCK SARA L. PARKER AACHEL M. BAVIS ADRIENNE K. SAUFIO ANN E. FLETCHER KARYN J. DRIESSEN IRVING BERGER DEPUTIES Re: Prima Deshecha Canada Landfill Memorandum of Understanding Dear Mr. Scarborough: Enclosed you will find the three original versions of Amendment Number 1 to the Memorandum of Understanding between the County and the City of San Juan Capistrano. The Board of. Supervisors approved this amendment at their November 21, 1995 meeting. Once it has been approved by your City Council, please return two fully executed originals to this office along with the two executed originals of the Memorandum of Understanding. If you have any questions, please advise. GKH Enclosures Very truly yours, LAURENCE M. WAT CHIEF ASSISTA DEC 2 71995 OR ANGB COUNTY DIVISION 600 W. Sruua Ana Dh'tt. Suite 214 S iinlu. AJ.w.. CA 92701 (71-1) 972-0077FA.X: l71-1) 972.-l!lHi 0A1'E: TO: FROM: RE: September li, 1995 Mayors, Cit.y Council Members and City 1\rlauagcrs Janet M. H11blOl1 1 Executive Director/ Ellen A. J .apointe, Staff Assistant Follow Up to Buard of Superviso.rs Meeting, Septemoor 26. 1995 ============ =============--··=-· --====--=-= ISSUES IMPORTANT TO Crrm.s ON AGENDA: CoutracL wilh the City of Villa. .Pru:.k.. for Additional Ser~ Hours at Villa Park Library (Consent Calendar Item No. 6.} Coo tract with the City of La Palma for Additional~~ Hours at La Pahna. Library (Consent Calendar Item No.7.) Appropriation Transfers and Other Actions Necessary to Balanw the Fiscal Yea:r 1994-95 Budget (Co~lt Dllendar Item 34.) · ModifiCI.ltions of ()J:augc County Projeclionlii (Constmt Cal~· Ite1». No. 37.) Orange COunty Employed; Redrernent Systettt Regulation!; (Consent Ca1endu Item No. 45.) +• Condnu~ to Octnber 17* .. Fedsral Aviation Adtninisttatioo Airpon Improvement Progmm Grant Offer for Reuse .Planning of Marine Corps Air Snttion. El Tol'O (Supplcnwmal Consent (;alendar ltem No. S4.SC.) Policy Resolutioo for Antonio Parkway CQnJJtru.ction Project (Suppk:u:ntal Consent Calendar item Ko. S45F.) Adoption of Cuwtly of Orange Fisclll Yew· 1995/96 Final Bud&e&. (Dloo1usion Calendar Item No. 46.) A4mi.niwarivc S~rviccs Agrcemcn.L Between the CoUilty of 01augc .and the Onmge Cowlty Fire:: Authority (Discussion Clllendar Item No. <l1.) v Item S4511' was pulled. All otbe.·s pas.sed 011 ronsent. a,(oHI/i 5"" .. >< SLOTs v c.m .v CON.SENT CALEI"w'DAR ITEMS: "P e Board of .!;~Apcriiuor.r' Polklw Up Memo Stp~mber ').6, 11)95 Pugc2 --wn ~tern No. ~ Contl'acl: with th~ City of Villa Park for Additional Serviee Hnu~ Bf. Villa Park Lllm~ty As n reblllt of reduced FY9~-96 fun<ling, the Oranac CO"unty Public Libmy (OCPL) was required to cut costs. As pan of lh~ plan, open service hours at the Villta Fact bcanch. along with others. were to be dectt'JlSM to~ TO!al vf 11 houri/week. The City indicated they wllntcd 14 additiooall•ounJwca lllllllbalt.hey'd be willing to pny for lhosc hours. OCPL swff has calculated the cost of those a&litionlll bows, including overhead, at $23,116lycar. 1i\e contnrct pn.wid.es · for rbose hours uod costs. Vote; Pa.ssOO on. a.>nse11t il Item No. 7, Contract with the City of La Palma for Additional Service Hour• at La Palma Librar_y At~ t1 result of reduced F\"95-96 fwldin.g. the Orange County Public Ubra:ry (OCPL) was required to cut cosrs. As part of ilio plun, open SC.l'vice lwun> ill the La Palma branch, along wilh ulhers, were to be decreased to <1 total of IG how·:Vw~.:ek. The City indica~ tbey wmrxrl 16 additional bours/wc.clc and that they'd be willing to pay for thosf: hours. OCPL staff has calculated th<' cost of 1bosc additional hours, inclllding Qverbead, at $61, 9 ~ :1/y(".nr. The <X).ntrar..t p.rov ides for those bOUl'S and costs. V~;>te; I'aslied on C'.onsent l1 loom No. 34, Appropriation 'l'l"ansfers and. Othlbr ActiOillli N~ary tu Balance tM Fi8C8.1 Year 1994-95 Budget This rtlquest is ro appl:Op1·lalt: rc.venue.s r~ved in excest. of budgeted amou.au:; i'Lppropriute FY94-95 fUild balan~~ for various funds/agencies; establish approprla.tloos itl C.Ouuty OeneraJ dc:pw-tmenUI fOi · FY94-95 Data System COlit allocaoon offset by establishment of a cost applied 11ppropriatlo.a. in DaLa Systci.U; and transfer a.ppaoprialions fror:D various Councy General B.gt;ltcies tot tht: COunty general Miscellaneous A&~11C.y .in Ol'd~ Lo cover fa_Hel'cS( in-lieu Pliyments. to FJpPf<?priate the General Fund•s sba.te ~f UJe. investment 1~~> •. aD;d tu appropnate tran!lfer ofFlm.d Balance Awulahle ro Fund US. These. trans11.~Uons are nece"ary tl> elumnate tlppropriation defidts in various funds :xnd agencies which occurred during yeat-enrl cl~ing, mainly ('fne ro intetfnnd cbarges and bankruptcy relnred lransfer!i. Funds uffected are: 1'rinl Court Operating Fund, O.C. Housing Aul.hority Operatilli keserve, .Pension Obligation Bond PayJDent. Peo.!Uon Obligation Boud Atnonizatlon, Debt Reduction/Future :Essential Opecati.ng Rcquirernencs. De:agn~ted Spucial Rtvcnue Fund, Restricted Refmancing l'rocct.ds, Advances tv Oe11e;Ial Obligution Bond Funds. Vote: .Passed on Consent '::··~~ •.:·_·:.,' .. ,"',''' ·-·.:·.--.. .. ....... -lJvarti of Sup.,;;;;~rs' J•olluw Up Mr:nw il lUtm No. 37, Modifications of Orange Couuty Projedloos Sep~m~r 26~ 1 S.Si5 Pa~eJ Prior to the Mat'Ch 1, 1995 • .reorganizatiOA of ll1~ ~ Administtalivc Office t"CAO) in rcspoose to the banbupt:<.~y. the former CAO/Forecast and Analysis Center (FAC) was .responsible fru J)Jovid.ihg demographic data a.ud analysis to lbe noa:rd and Couuty agencies and depanmeots. ln n Marcil 8, 1995, meDlt> from l.hen CE<? Popejoy. lhe. P.n-vlronmental Mtu11agcment A~cncy wa.s dite<;tc.J LO handle any nc.cded. demographic servsc~. SCAO initla4.:d au update of their reglonal gmwth forecasts in May 1995 and ~uested that local g_Qvtrumc:nts provide input by Sep~m001' for a basdine {Orec:&$t. 1n keeping with lhe CBO's direclioo. EMA p\-epazed draft popul!Uion, hou.:;in& end r;.'tnploymcnt projections fol· O.C. fur submi.Ual Lo St:AO. EMA bas condncroo this effon with input fror.n O.C. c..ities and in cooperation with the 0.\.:. Division. Vote; Passed on Consent NOTE: 'l 'IUJ stqff TBpuN quoUd ill not rttpl'tiiiHtalire of acluul ~11m~$. This proj•ct wa in reality C(mduct.d b' 1M Dillilion ia t.>lfiunclion with Mr. BiU GuyJr., tJJ. jomur Coull()' deiiWflNPMr. Si~ the Cotmty laid ofl the ernplo)'tts witl~ lkmo,paphw ~~rdse, lh~ Divisioll u exploring IIIUmatt MrangeJMnJs for futurs aQivtdes . .1. Item No. 45, Orange Count}' ll:mploye~ Rt:tiremt:nt System Regulati0111 Cot\tlt1'ucd lO October 17 ~ ltem No. S45C, l~edetal Aviation Adminislndioo Airport lmprovement Program Grant Offer fur Reuse 'Pbnming ofMarin~ Corps Air Station, El'fo.ro Scplcl:nber 15, Jobu Wayne Akpon (IW A) iubnuUC4.l an appli.catiuu roc &U Airport Improvemcm Program l'roject Grant. September 19, JW A received uotice that fe<icra1 gnmt funds equal to $'700.000, have bcr.~n obJigated by the Federal Aviatiou AWninistr~uion (FAA) to aecomplish MCAS E Toro Comm\Ulity Reuse P.J;m and Euvlronrnem.allmpac1. Repcm. FAA fundlng of $208,164 remains rn:11n the pte"lous &;rant Lo &.he County for 1 Fea.~"bility Study of Civilinn Avi ation uses fo.· MCAS El Toro lllld v.ill also be applied tow-41\i the projeca . Staff now recomlllflnds the Boatd authori?..c lnteTlm DiTC.c::tor, .lVI A, and Director, 'BMA. to is~m('. a Nt~ticlf' to Proceed to P&D Consnltin.g. Inr.. Vote: Passed on Conse.nL 0 Item No. S4Sli', J•uucy Resolution for Antonio Parkway Coustruelion Projed This itw1 contains Memo.r-~u:lwn of V~uwding rutuirentents, including t1ncling regarding priority of Auli'JJUU Parkway con~tructiou. Pulled by: Supel"tJiror Silva pulled lhia item to note hili concctns about muning such a priority before unponatiorl acLuully otx:urs. He asked if Lhc pdority itc.:m wUl be revis.itod if something happens wi.tb the imP<JriEltion issue. Mike Ruane, County EMA, replied that this item is specifically caUcd for in lhe MOU with th e City of San Ju;m CapiSUMO, and that it ruay be appropriwo to bring up addjtia.aal issues when the iruporr.ation Jssue ls disc ussed. Vote: Unanimuuli ~upport DISCUSSION CALENDAR ITEMS: ·:..:·· -: ............... ' · .. :.:·.: : .... . -Bourd oj SI4J)e~·t~;..sv;s' l•o&w Up Mefl~ S6Prell•l.ter UJ, l!i~J Pa.ge4 -·''"' -' l ... ,,...=,------;;:tJ . .._....._=<..c=== ....... ,,_,=== ..... -==-===--....::===.,..<=-==- A lttm No. 46, Adopti~ of County oi Orang~ to'iscal Year1995~96 Finat Bude,et Supervisor Yasquu, in a lcuer to the olher Board rnembexs. recommended for l-""Y9:>-%: (1) All Prop. 172 revMuc will be deposited into the Local Publi\: Saiety Fn11d and aUocalCIU to the District Atloruey Bod Shcrirf-Coroncr (20% and 80% Jespectively); (2) Revenue cslimaleS will be prepared by l.ht Auililor~Con&roller a:'ld CRO , and reviewt:-:.1 andconcun·oo by the Districl AlLUrne)' and Sheriff-COronc.I; (3) Rc\leoue esliwares will be based on conservative ~stimates to avoid lll;clget ~bortfa.lls; and (4) A positivt! revenue var1ance will uot reduce the 11nnm1l Oenern.I Fund C"4Jnrrlh\Uion to the Distrlcl ALLuntey and Sberiff-Cotou..n·. Any i:L!UluW. ~drlitional revenue will be carric.rl i'l\'et in the Local Puhlir.: s~~r(:ty F&Jnd for use by the Tlist1k1 Auorrn.:)' and Sheriff-Coroner, hll~..d o'l the reventle ttJlocrttion specified aoove. - Discussion: .Supervisor Vasquc.~ rouved that. per his !ettcr to tit~ olher Boan1 memben, Proposition 172 reveuucs be aUocated specifically to the Sheriff's ])(;partmtm~ (80%) and the DistricL Attorney's Depanment (:~0%). Sup¢rvj:sor Bc-.!·gcsuu opposed this proposal, saying iL \\vuld scL a bad pn:ct:ek.11t w protect MY specific fund while the Co1~nry Is still struggtin~ finnncwlly. She added that maximum flc}l.iujfuy is neccled when cenliT'Ig with the r.oming budgets. Aft<:r Supr.rvisor Bergeson voiced her op~tion to his provosa.l, he. agreed to 5eps:l\fe the two issues. Vole: J\genda item 46. wuurimous approval. Supervisor Vasque1.' proposal to allocate Prop. 1'72monicli, 4--!1 wi&h Bergewo in oppo$ition. A Item NQ. 47, Administrative &ni~ Agreemt:nt llCitween tbe County of Oranae and the Orariie Cm.mty Fire Autbof'ity The rir~ Au1hority {OCf?A) was foroled 3~1-95. Su~uentiy. the Board adopted an Administrative Service-s AgrcC'JllCnt for the County w continue providin~ certain admin•!.'tl-ati:ve and support services from .3 -1 ~ 95 tt:rough 6-30 -95. lrl May, the OCFA t·cquested mat the County continue to j)f'Ovkle serviu:s lhrougb I<Y95- ~(i c)1' wnil Lhc: s~rvj~es ~.:ould bt:. transferred to the OCFA or il.l1 inde_penden1. cullttllcror. lb.ese t>crvi.c~s wac hml.ted to the: Atrditor-Controller, Treasurcr{fax Colleclor, CSA/Purchusmg aud HR/Et.nploye-e Denefiu. J·Jow r;v E',r, since Mny. t11e OCFA ha." rcqu~st~l th~ s~:es he increased . tr is the CF..O's contenliun Uuil the m.,jority of rhese services can oo contracted or ha11dled wirhin the OCFA. The C' .. ounr.y Administrative Office (CAO) rec.(Hrummds the Board not approve nll of the ~cciftcd Rr;MCf:s. llte CAO also recommends lb.v !k>ard authorize the CAO 19 iOlWOAlQDL !he QlX!I:!OrLv l4x jn~&gr&ptiun 12roce~s to collect from OCFA all monies due the CQuo~. !nclw:1ins. but nnt limited to. the Cc;wn~wiAA Cost A lloCatjou Pmgr.a.;n CCWCAP>, Discussion: Supt:r:vilior llergeson mov«i ro sepA(ale ool CWCAP frowtlw Setvlce~ Agreemell~ saying she belil:ve<i 1his issue co~1d lead to litigation w1d tbat. abe didn 'i want lbat to bappcJ:L. Furd11:r di.Bcuss.aon btitween 111~ Cot1nty and rhe OCFA is uccdcu . Supccvisot Steiue.-said he is dis~l>ed. that thil) iss:ue ap~s to be heuding so quickly toward litigation, an.d thar he agrees wil:h Supervisot· Ber&csou to sepcu-a.to [he lSSue:;_ & su&gesled. t:be Bonrcf .appro":'~ rhe ALimini~ative Se.r-.ri~s Afteeme;n1 uud etl ler _imo n~gotiations about ~hat :i£ owed the <'..onnt:l ar-d what 1s not. Superv1srJI"s Stanton and Silva disagreed, statillg theu· support for the Item ut lnralir;y . 1'om Wllsun. Mayor Pro Tem of Laguna Niguel and Chair of 'he OCFA, endo~.sed S~_pcrvisors Ber,cc:,;un and Steiner':> position. lle expiained that & vote on tl.)e item in totality would negunvcly twpucl the OCFA , and -¢ar the cmly w11y lu rc;;oolve differences bctwt:en the County and OCFA is to roect at the table . .: _':.. .. ._ .. :· ·. ' ..... ·-···· ,, .... e .Botll'd uf ~upr!i-visors' f< o~w Up Memfl s~~r26,1995 Pa.~P.. J Vute: Unanimous support tot Supervisor Berg~on's amM.ded motion tu approve !.he Administrative Sc n•ic~s Agtoeement..lo¥s the irems about CWCAP, ~nd ro further direct the CEO to WI)[~ wall \he OCHA on rhoS<·. items fi-Lld provide a pro&~cs~ report back to the Board within 30 d.'\ys (Supervt!)o)r Stan:.on llOtW fW: the remrd h!~ disng.t'C~mc:nt by juserting a motion fur the 1tem. in totaf!ry. lt was sr::r.onde.d by Stlpen.oisor Suva. bul nc:>t c.ons:1dered.). ADMINISTRATIVE ITEMS CITY MANAGER >L RATIFICATION OF A MEMORANDUM OF UNPERSTANPING WITH TilE COUNTY OF QRANGE REGARDING THE PRIMA DESHECHA LANDFILL ~w· c · · nttenommuwcatlon: Report dated September 19, 1995, from the City Manager, recommending that the proposed Memorandum of Understanding be approved between the City and the County regarding the Prima Deshecha Landfill. The following are provisions contained in the MOU: ( 1) The County will initiate the process with the City to gain General Plan compliance for the landfill itself (2) The County must begin construction of the Antonio Parkway extension between Oso Parkway and Ortega Highway by December J 1, 1996, for completion by May 31, 1999. (3) Antonio Parkway shall not be constructed as a toll road to encourage its use. ( 4) Importation of trash will be prohibited until January 1997 and may not exceed 2,000 tons per day prior to completion of the Antonio Parkway extension. ( 5) If Antonio Parkway extension is not completed within the stipulated time frame, the County agrees to stop all importation to Prima Deshecha. ( 6) The City's ridgelines shall be protected and no activity or material will be allowed to "silhouette" above major ridgelines. (7) The County will construct earthen berms to buffer noise to residences located near the landfill. (8) The County will establish a plan for financing the construction of a park over the landfill once closed. (9) The County will pay the City $.81 for each ton of imported trash deposited in the landfill. The fee is mitigation for landfill access only, not compensation for acceptance of solid waste. The money can be used to fund increased traffic enforcement along Ortega Highway, additional hours of commercial vehicle enforcement and to fund road and signalization improvements to Ortega Highway. (10) The County will limit the total tonnage for all trash to 4,000 tons per day for the life of the landfill. City Council Minutes -8-9/19/95 (11) Any out-of-county waste haulers using Prima Deshecha landfill must use a haul route approved mutually by the County and the City. (12) Any imported solid waste must be brought in transfer trailer vehicles. Mayor Nash explained how the City Council arrived at its decision to enter into an agreement with the County regarding importation, despite the City's past strong opposition to the County's proposal to do so. She advised that the City still opposed importation; however, the Council felt that through negotiation with the County the City had achieved some beneficial concessions. She advised that the City's main concern had always been with the amount of increased traffic on Ortega Highway that would result from the importation of trash . Although the City was not successful in defeating SB 17xx, which would have allowed County importation of trash into the City's landfill without requiring an Environmental Impact Report, the bill that was passed included a clause that would restrict the amount of trash coming into the landfill and require the County to bring their operating permit into compliance with the Citys regulations before importation could begin. The restriction was added because the County had never obtained an approved General Plan Amendment from the City. She noted that the Prima Deshecha landfill was the largest west of the Mississippi and the Council felt that realistically the County would eventually be able to import trash despite Litigation . To decrease the amount of trash truck traffic, primarily from San Diego County, alternatives were studied, including extending La Pata through San Clemente, extending Antonio Parkway from its current tenninus at Oso Parkway to Ortega Highway, which connects to La Pata and the landfill. However, it became clear that the majority of traffic impacts to Ortega Highway were from sand, graveL and cement trucks travelling west on Ortega Highway, which would not be rerouted off Ortega through a plan to reduce the number of trash trucks. Therefore, in order to reduce the number of other kinds of trucks, the County agreed to construct Antonio Parkway, which would remove approximately 6,000 vehicle per day, as a mitigation measure for impacts from importation. In exchange, the City would permit a maximum of 2,000 tons per day starting January, 1997, to be imported to the landfill, which is half the tonnage originally proposed for importation. Completion of Antonio Parkway was expected by 1999, which meant approximately additional 100 trucks per day would use Ortega Highway for 2 years. She reiterated that this was the main reason the City Council began to work with the County on an agreement. She stated that most of the construction trucks on Ortega Highway were travelling to Rancho Santa Margarita and the ability to use Antonio Parkway would alleviate traffic on Ortega Highway through the City. Additional benefits the City received included delaying importation until 1997, berming on La Pata to mitigate impacts to nearby residences, compliance with the City's General Plan, protection of the City's ridgelines, and an 81 ¢ per ton fee on imported trash to cover road improvements on Ortega Highway. With the aid of an overhead projector, Mr. Scarborough gave a presentation showing the advantages and disadvantages of the proposed Agreement with the County, noting that in many instances, litigation by the City might have resulted in the same outcome . He noted that the City intended to work with the County on the design of the benning, which would be brought back to the Council for review and approval. City Council Minutes -9-9/19/95 Public Comments: (1) Bonnie Holt, #1 Strawbeny Lane, expressed appreciation to the City for their efforts in negotiating with the County. She inquired whether trash importation could be delayed until Antonio Parkway was completed, how trash trucks could be monitored to ensure they use Antonio Parkway, whether Avenida Pico could be extended to La Pata and whether fees received for imported trash would be placed in a special maintenance fund for Ortega Highway to ensure that the funds are not allocated for another use. She concurred with the proposed berming and felt that additional berming was needed for other neighborhoods along Ortega Highway. She read a letter submitted by Larry H. Parker to Leonard Popejoy, CEO for the County, regarding the dangerous conditions from increased traffic from trash trucks passing by residential neighborhoods. Mr. Scarborough explained that trucks importing trash from San Diego County will need to access the landfill via Ortega Highway; however, construction and trash trucks traveling southbound will be substantially diverted from Ortega Highway once Antonio Parkway was completed. He noted that the County's Environmental Impact Report does not relate to trash importation; however, the proposed Agreement will require that the County prepare an Environmental Impact Report for a General Plan Amendment process in the City. He indicated that he would contact Ms . Holt to discuss her concerns regarding use of the funds for improvements to Ortega Highway and that staff would provide the Council with a detailed analysis of use of those funds. Council Member Jones stated that delaying the importation of trash until 1999 had been a critical point in the City's negotiations with the County. However, the County had emphasized the need to begin trash importation in 1997 due to financial issues related to their bankruptcy status. He noted that other landfills in the County will begin receiving imported trash in 1 996. (2) Warren Michae1is, 28471 Via Ordaz, concurred with the comments made by Ms. Holt. He felt that the ongoing deterioration of Ortega Highway and safety concerns needed to be further addressed and expressed concern that funds realized from importation be used for Ortega Highway improvements . (3) Barry Todd Miller, 10 Strawberry Lane, felt that the current loading conditions at the Ortega Highway off-ramps were dangerous and illegal and preferred that the City continue to strongly oppose the importation of trash. ( 4) Ethel Tregarthen, 27625 Sununerfield, expressed appreciation to the City Council for its efforts in this matter. However, she expressed concern that the completion of Antonio Parkway would encourage additional traffic onto Ortega Highway, noting the existing gridlock at Rancho Viejo Road and Ortega Highway. She expressed concern that the agreements made here would be continued through subsequent Council terms. City Cotmcil Minutes -lO-9119/95 • Mayor Nash stated that the proposed Agreement is a Memorandum of Understanding, which requires both parties to agree to any modifications . Therefore, future City Councils would not be able to overturn the conditions of the Agreement. Council Member Jones felt that when the freeway is widened and the offramp is completed, many of the existing traffic problems at Rancho Viejo Road and Ortega Highway will be alleviated. Council Member Swerdlin noted that the County's bankruptcy situation politically forced the issue of trash importation to the front to provide income. However, he felt that the proposed Agreement would mitigate many of the City's concerns and would serve the City's best interests in the long term. Council Member Jones concurred and stated that although he has always adamantly opposed trash importation, he ultimately felt the proposed Agreement was in the best interest of residents. Council Member CampbeU strongly believed that the City would benefit from the completion of Antonio Parkway. However, she indicated that she had problems with the agreement and would have held out longer and her vote would indicate that. She felt the proposed Agreement did not go far enough in ensuring: 1) the construction of the berms as high as the City wants them, 2) covering up of trucks to prevent debris from spilling out, particularly along La Pata, 3) a financial guarantee for funds to be received by the City, which caused concerns about maintaining law enforcement on, and maintenance of, Ortega Highway; and 4) while there is a provision that importation will stop in 1999 if Antonio Parkway is not completed, there is no limitation on the number of trucks that can come from Orange County. Council Member Hart indicated he would personally be seriously impacted by this proposal and has been opposed to trash importation. However, he felt that the City would have been unable to win a legal battle against the County in this matter and felt it was unconscionable to spend taxpayers' money on a lawsuit. He noted that the City fought hard to get the bill passed that would prohibit trash importation into the City's landfill . However, with the proposed Agreement, he felt that the City and its citizens would get the most benefit in the most expedient manner. Ratification of Memorandum of Understandina with the County: It was moved by Council Member Jones, seconded by Council Member Hart, that the Memorandum of Understanding between the City of San Juan Capistrano and the County of Orange regarding the Prima Deshecha Landfill be approved . The Mayor was authorized to execute the MOU on behalf of the City. The motion carried by a 4-1 roll call vote, with Council Member Campbell voting in opposition. nJBLIC HEARINGS 1. DISAPPROVAL OF DRAFT ORANGE COQNTY INTEGRAIED WASTE MANAGEMENT PLAN (810. 70) Proposal: Consideration of the draft County-wide Integrated Waste Management Plan (CIWMP) in accordance with the California Integrated Waste Management Act of 1989 . The CIWMP City Council Minutes -11-9/19/95 AGENDA ITEM September 19, 1995 TO: Honorable Mayor and City Council FROM: George Scarborough, City Manager SUBJECI': Ratification of a Memorandum of Understanding with the County of Orange Regarding the Prima Deshecha Landfill RECOMMENDATION: By motion, ratify the City Council action in approving the Memorandum of Understanding Regarding the Prima Deschecha Landfill between the City of San Juan Capistrano and the County of Orange. SITUATION: After extensive discussions, County representatives have agreed to a number of key measures necessary to mitigate the impacts of trash importation into the Prima Deshecha landfill. The agreement is structured as a Memorandum of Understanding (MOU) between the City and the County. A copy of the MOU is attached. Two key elements of agreement are the delay of solid waste importation to Prima Deshecha Landfill until 1997 and a greatly accelerated time frame for construction of the Antonio Parkway extension. These elements will provide significant traffic relief for Ortega Highway and upon completion of the Antonio Parkway extension, will result in an immediate reduction in existing traffic of 5,900 vehicle trips per day. This represents 34% of the present traffic. (Over the next 15 years, this will result in a reduction of 11,447,000 vehicle trips on Ortega Highway, resulting in far fewer vehicles on Ortega Highway than what would have been realized without importation). (See Attached Traffic Schedule) The City had been vigorous in its opposition to solid waste importation earlier this year, when Senate Bill (SB)17xx, sponsored by Senator Craven was making its way through the legislature in emergency session. SB 17xx passed and the State permitted the County to bypass California Environmental Quality Act requirements for solid waste importation. However, the effectiveness of the City's opposition to SB 17xx resulted in the biiJ's modification and provided the leverage necessary to protect and improve the quality of life for San Juan Capistrano residents. The modified bill requires the County to obtain General Plan consistency of the landfill operations before solid waste importation can occur. FOR CRYCOUNCILAGEN~ C-lb Agenda Item -2-September 19, 1995 Because the County was forced by SB 17xx to bring its operating permit into compliance with the City's requirements, the City has been able to negotiate significant concessions from the County which will benefit the community greatly and mitigate the adverse environmental impacts. The settlement agreement between the City and the County requires the County to take several measure to protect the environment and the quality of life in San Juan Capistrano when importation begins. Important provisions of the MOU are as follows: 1. The County will initiate the process with the City to gain General Plan compliance for the landfill itself. This process will require the preparation of an Environmental Impact Report, an important point stressed by the City in its earlier opposition to Senate Bill 17xx. 2. The County must begin construction of the Antonio Parkway extension between Oso Parkway and Ortega Highway by December 31, 1996 for completion by May 31, 1999. This road will be very important to reducing traffic volume on Ortega Highway. The first year it should bring a 34% reduction in traffic on Ortega Highway. The Antonio Parkway Extension was not planned for completion until the year 2010. By moving its completion forward, this will allow for a reduction of 11,447,000 traffic trips on Ortega Highway over these intervening years. This would not be possible without the funds that importation fees will generate to pay for the Antonio Parkway construction. 3. The County has agreed not to construct the Antonio Parkway extension as a toll road, thereby encouraging its use upon completion. 4. Importation is prohibited until January, 1997 and may not exceed 2,000 tons per day prior to completion of the Antonio Parkway extension. S. If the Antonio Parkway extension is not completed within the stipulated time frame, the County agrees to stop all importation to Prima Deshecha. 6. The County will maintain grades of landfill operations which protect the City's ridgelines. No activity or material will be allowed to "silhouette" above major ridgelines. 7. The County will construct an earthen berm to buffer residences located nearby the landfill from noise of vehicles using La Pata, the access road to the landfill. 8. The County will establish a plan for financing the construction of a park over the landfill site, when the landfill closes. It will be the County's ultimate responSJ'bility to construct a regional park at the landfill site. Agenda Item ~3~ September 19, 1995 9. The County will pay the City eighty one (81) cents per ton for each ton of imported waste deposited in the landfill. This fee is mitigation for landfill access only, not compensation for acceptance of solid waste. This fee could generate as much as $447,000 annually, depending on the amount of solid waste disposed at Prima Deshecha. This money can be used to fund increased traffic enforcement along Ortega Highway, additional hours of commercial vehicle enforcement, and fund road and signalization improvements on Ortega Highway. 10. The County will limit the total tonnage for all trash to 4,000 tons per day for the life of the landfill; approximately 70 years. This represents a significant limitation of the potential impacts to San Juan Capistrano from long term use of the landfill 11. Any out of county waste haulers using Prima Deshecha landfill must use a haul route approved mutually by the County and the City. 12. Any imported solid waste must be brought in transfer trailer vehicles, approximately twenty tons of cargo, each so as to reduce traffic impacts. The use of these vehicles will mean fewer trips. Approval of the Memorandum of Understanding is scheduled for County Board of Supervisor consideration on September 12. This agreement will become part of the settlement plan for the County's bankruptcy. COMMISSION/BOARD REVIEW AND RECOMMENDATIONS: None FINANCIAL CONSIDERATIONS: Under the terms of the Memorandum of Understanding the County will pay the City eighty one (81) cents per ton for each ton of imported waste deposited in the Prima Deshecha Landf'all. This fee could generate as much as $447,000 annually. PUBLIC NOTIFICATION: A media release has been distributed to all news media representatives regarding this item. Additionally, interested residents living in the vicinity of Ortega Highway and the landfill have been notified. Agenda Item September 19, 1995 ALTERNATE ACfiONS: 1. Ratify the City Council action in approving the Memorandum of Understanding Regarding the Prima Deshecha Landfill between the City of San Juan Capistrano and the County of Orange. 2. Do not ratify the Memorandum of Understanding Regarding the Prima Deshecha Landfill between the City of San Juan Capistrano and the County of Orange. 3. Continue the item and request additional information from staff. RECOMMENDATION: By motion, ratify the City Council action in approving the Memorandum of Understanding Regarding the Prima Deschecha LandfiiJ between the City of San Juan Capistrano and the County of Orange. GS:dh Attachments: 1. 2. MOU Traffic Schedule Wnter's Direct Diol Number 834-3306 File No. G-091 George Scarborough City Manager OFFICES OF THE COUNTY COUNSEL COUNTY OF ORANGE 10 CIVIC CENTER PLAZA MAILING ADDRESS: P.O . BOX 1379 SANTA ANA, CALIFORNIA g2702-1379 7141834-3300 FAX 7141834·2369 September 14, 1995 City of San Juan Capistrano 32400 Paseo Adelanto San Juan Capistrano, California 92675 Re: MOU concerning Prima Deshecha Landfill Dear Mr. Scarborough: TERRY C. ANDRUS COUNTY COUNSEL LAURENCE M. WATSON ASSISTANT JAMES F . MEADE ASSISTANT EDWARD N DURAN RICHARD 0 . OVIEDO BENJAMIN P . DE MAYO HOWARD SERBIN GENE AXELROD ROBERT L. AUSTIN DONALD H. AUBIN CAROl D . BROWN BARBARAL.STOCKER JAMES L. TURNER NICHOLAS 9 . CHRISOS THOMAS F. MORSE WANDA S. FLORENCE HOPE E. SNYDER THOMAS C. AGIN SHERIE A CHRISTENSEN SUSAN M. NILSEN SARA L. PARKER ADRIENNE K. SAURO KARYN J. DRIESSEN KATHY PAUL KAFIEN A. PRATHER JIM PERSINGER GEOFFREY K. HUNT JACK W. GOLDEN DEBORAH M. GMEINEA CHRISTOPHER J MILLER ROBERT G OVERBY PAMELA KEMP PARKER LISA PESKA Y MALMSTEN BARBARA H. EVANS MICHELLE BEN-HUR DANIEL P. TORRES JOHN H. ABBOTT MICHELLE L PALMER WARD BRADY CHRISTOPHER M. DARGAN JANELLE M. BROCK RACHEL M. BAVIS ELIZABETH L. KOLAR ANN E. FLETCHER IRVING BERGER YASMIN B. KAMKAR AMY E. HOYT MARGARET E. EASTMAN MARCUS S SHORE DEPUTIES Enclosed you will find three originals of the MOU approved by the Board of Supervisors on September 12, 1995. We understand that it is scheduled to be approved by the City Council on September 19, 1995. Enclosed you will also find a copy of the minute order that documents the Board's action. As you are aware, the Board directed that County staff work with City staff concerning placement and other technical aspects of the earthen berm mentioned in the MOU. This direction is reflected in the minute order. If you have any further questions, please do not hesitate to contact the undersigned. GKB:br Enclosures cc: Vicki Wilson Mike Ruane Brad Gates Douglas Dumhart Very truly yours, LAURENCE M. WATSON CHIEF ASSISTANT COUNTY COUNSEL BOARD OF SUPERVISORS ORANGE COUNTY, CALIFORNIA MINUTES SEPTEMBER 12, 1995 MEMORANDUM OF UNDERSTANDING BETWEEN THE CITY OF SAN JUAN CAPISTRANO AND THE COUNTY OF ORANGE REGARDING THE PRIMA DESBECHA LANDFILL: Environmental Management Agency requests approval of the Memorandum of Understanding between the County and the City of San Juan Capistrano. MOTION: On motion by Supervisor Silva, seconded by Supervisor Steiner, the Board moved to: 1. Find that the proposed project is statutorily exempt pursuant to Senate Bill 17. 2. Approve execution of the Memorandum of Understating between the County of Orange and the City of San Juan Capistrano. 3. Direct staff to work closely with the City of San Juan Capistrano on the size, height and location of the earthen berm, noted in the memorandum. Supervisors Vasquez and Bergeson were absent. MOTION CARRIED. r \ September 11, 1995 Dear Resident; MEMBERS OF THE CITY COUNCIL COUENE CAMPBEl.L WYATT HART GILJON£8 CAROLYN NASH DAIIID SWEADLIN CITY MANAGEA GEOAOE SCARIIOAOUCJH The issue of solid waste importation at the Prima Deshecha landfill is very important to the City. Earlier this year, the City solicited help from residents to try to stop the County from getting environmental exemptions from the State which would allow solid waste from other counties to be disposed of in Orange County landfills. Because of the significant support of residents of San Juan Capistrano, the emergency bill SB 17xx was modified to require the County to bring their operating permit into compliance with the City's regulations before they could import solid waste at the local landfill. This provision in the emergency legislation has provided the leverage necessary for the City to get significant concessions from the County as it moves ahead with a plan to start solid waste importation. These concessions are contained within a settlement agreement that is being approved by both the City Council and the County Board of Supervisors. Information about the settlement agreement has been provided to the media, however, the City Council wanted you to receive the same information in case the media does not choose to print all of the important points. The attached document provides details about all the County will have to do to benefit San Juan Capistrano and result in less impacts on the portions of our community near Ortega Highway and the Prima Deshecha landfill. An important requirement is the County has agreed to construct the Antonio Parkway extension by 1999"lo get traffic off of the Ortega Highway. This will result in sianificant reductions in traffic trips on Ortega Highway. Also, the County has agreed to place fewer tons of solid waste at Prima Deshecha than they were proposing prior to SB 17xx. The City Council believes that the concessions the City will gain through this agreement are significant and will result in less impacts on the community than would have been possible without the County importing solid waste to Prima Deshecha. We hope you will agree. Sincerely, 32400 PASEO ADELANTO, SAN JUAN CAPISTRANO. CALIFORNIA 9267!5 • (714) 493·1171 PRESS RELEASE Ciey of San )IIlli Cipiltr&na • 32406 Pu1t A4elaatt • hn j11111Capimw. (A 92675 • (714) 49l-1171 • Fu: (714) 49]-105) For Immediate Release Date: Contact: Phone: Fax: September 8, 1 99 5 George Scarborough, City Manager (714) 493-1171 (714) 493-1053 City Approves Agreement to Secure Environmental Mitlptlon for County Solid Wasu Importation San Juan Capistrano, CA-Expressing satisfaction, the San Juan Capistrano City Council approved the terms of a settlement agreement with the County of Orange today in closed session, spelling out terms and conditions the County will have to meet to import out of County solid waste for disposal in the Prima Deshecba l...andfili. One third of the 1,500 acre landflll is located within City limits. Two key elements of this victory are the delay of solid waste1mportation to Prima Deshecha Landfill until 1 CH7 aod a greatly accelerated time frame for construction of the Antonio Parkway extension. These elements will provide significant ttaffic relief for Ortega Highway and upon completion of the Antonio Parkway extension, will result in an immediate reduction in existing traffic of 5,900 vehicle trips per day. This represents 34% of the present traffic. (Over the next 15 years, this will result in a reduction of 11,447,000 vehicle ttips on Ortega Highway, resulting in far fewer vehicles on Ortega Highway than what would have been realized without importation). (See Attached Traffic Schedule) r The City had been vigorous in its opposition to solid waste importation earlier this year, when Senate BilJ (SB) 17xx, sponsored by Senator Craven was making its way through the legislature in emergency session. SB 17xx passed and the State permitted the County to bypass California Environmental Quality Act requirements for solid waste importation. However, the effectiveness of the City's opposition to SB 17xx resulted in the bill's modification and provided the leverage necessary to protect and improve the quality of life for San Juan Capistrano residents . The modified bill requires the County to obtain General Plan consistency of the landfill operations before solid waste importation can occur. Because the County was forced by SB 17xx to bring its operating permit into compliance with the City's requirements, the City has been able to negotiate significant concessions from the County which wiU benefit the community greatly and mitigate the adverse environmental impacts. Stated Mayor Carolyn Nash, l believe we have gained more protection for the community by doing this. With this agreement improvements necessary to reducing traffic and other impacts to residents in the vicinity of Ortega Highway and the landfill have been secured. The settlement agreement between the City and the County, structured as a Memorandum of Understanding (MOU). requires the County to take several measure to protect the environment and the quality of life in San Juan Capistrano when importation begins. Important provisions of the MOU are as follows: l. The County wiU initiate the process with the City to gain General Plan compliance for the landfill itself. This process will require the preparation of an Environmental lmpact Report, an important point stressed by the City in its earlie( opposition to Senate Bill 17xx. 2. The County must begin construction of the Antonio Parkway extension between Oso Parkway and Ortega Highway by December 31, 1996 for completion by May 31, 1999. This road will be very important to reducing traffic volume on Ortega Highway. The first year it should bring a 34% reduction in traffic on Ortega Highway. The Antonio Parkway Extension was not planned for completion until the year 2010. By moving its completion forward, this will allow for a reduction of 11,447,000 traffic trips on Ortega Highway over these intervening years. This would not be possible without the funds that importation fees will generate to pay for the Antonio Parkway construction. 2 3. The County has agreed not to construct the Antonio Parkway extension as a toll road. thereby encouraging its use upon completion. 4 . Importation is prohibited until January, 1997 and may not exceed 2,000 tons per day prior to completion of the Antonio Parkway extension. 5. [f the Antonio Parkway extension is not completed within the stipulated time frame, the County agrees to stop all importation to Prima Deshecha . 6. The County wilJ maintain grades of landfill operations which protect the City's ridgelines. No activity or material will be allowed to "silhouette" above major ridgelines. 7. The County will construct an earthen berm to buffer residences located nearby the landfill from noise of vehicles using La Pata, the access road to the landftll. &. The County will establish a plan for financing the construction of a park over the landfill site, when the landfll1 closes. It will be the County's ultimate responsibility to construct a regional park at the landflll site. 9 . The County will pay the City eighty one (81) cents per ton for eacb ton of imported waste deposited in the landfill. This fee is mitigation for landfdl access only, not compensation for acceptance of solid waste. This fee could generate as much as $447,000 annually, depending on the amount of solid waste disposed at Prima Deshecha. The City plans to use this money to fund increased traffic enforcement along Ortega Highway, additional hours of commercial vebicle enforcement, and will use it to fund road and signalization improvements on Ortega Highway. 10. The County will limit the total tonnage for all trash to 4,000 tons per day for the life of the landflll; approximately 70 years. This represents a significant limitation of the potential impacts to San Juan Capistrano from long term use of the hmdftll. 11. Any out of county waste haulers using Prima Deshecha landfill must use a haul route approved mutually by the County and the City. 12 . Any imported solid waste must be brought in transfer trailer vehicles, approximately twenty tons of cargo, each so as to reduce traffic impactS. The use of these vehicles will mean fewer trips. 3 I Arriving at a decision to negotiate with the County rather than litigate was not easy for the City Council. "It was very difficult to sit down with the County to discuss the possibility of solid waste importation, given our opposition to the concept," stated Mayor Pro Tern Wyatt Hart, "however, I believe the citizens of San Juan Capistrano and their quality of life will be improved because of the measures the County will be required to provide if it chooses to dispose of imported waste in San Juan Capistrano. Getting the best for our community was ultimately more important than fighting with the County." "Getting the County to commit the $45 million necessary to construct Antonio Parkway is a significant accomplishment which ultimately improves the Long range traffic situation. By requiring funds from solid waste importation to pay for the Antonio Parkway extension, the City forced the County to construct this road about 11 years earlier and save millions of traffic trips on Ortega Highway," added Council Member Dave Swerdlin. Approval of the Memorandum of Understanding is scheduled for County Board of Supervisors consideration on September 12. This agreement will become part of the settlement plan for tbe County's bankruptcy. The settlement agreement will be ratified by the San Juan 'Capistrano City Council in public session on September 19. Attachment: Estimated Trip Reduction Chan ### ....... 4 YEAR 1997 1998 1999 1999 2000 2001 2002 2003 2004 2005 2006 2007 2008 2009 2010 .... ••• •••• ESTDYlA TED TRIP REDUCTIO, . ., ORTEGA HIGHWAY WITH ANTONIO PARKWAY DAILY INCREASE/DECREASE ORTEGA HIGHWAY TRIPS +720• +720 +720 .. -5,880 ••• -5,880 -5,238 •••• -4,596 -3,954 -3,312 -2,670 -2,028 -1,386 -744 -102 +504 YEARLY TOTAL +221.040 +221,040 +108,000 -1,264,200 -2,146,200 -1,911,870 -1,677,540 -1,443,310 -1,208,880 -974,550 -740,220 -50~.890 -271,560 -37,230 +113 960 -11,447,410 These trips represent the number of pwenger ear equivalent trips that are assoc:iated with the initiation of importation (equals 180 tractor trailer round trips on Ortega Highway) bued upon 3 07 days of operation of landfill. Represents number of trips prior to completion of Antonio Parkway (to be completed by May 3 I, 1999) Represents reduction in traffic due to AmoDio Parkway completion. Represeots projected trip adjustments due to development of the Homo Planned CoiilJDUDity and other traffic using Antonio Puklny to travel south and connect with Interstate s. SOLID WASTE IMPORTATION AGREEMENT PRO'S CON'S Importation delayed until January 1, 1997. Separate law suit may have resulted in same outcome or even later. County will start process to bring Prima Separate law suit may have resulted in same Deshecha Landfill into compliance with San outcome. Juan Capistrano General Plan. Construction of Antonio Parkway Extension Construction of road may have its own must begin by December 31, 1996, and be environmental impacts on pristine back completed by May 31, 1999. country. First year open, Antonio Parkway should Traffic will increase by approximately 200 bring 34% reduction in traffic on Ortega. trucks per day over existing volume (17,000 Over 15 years, reduction will total 11.4 trips per day) between January 1997 and May million. 1999. Traffic on La Pata will increase. Antonio Parkway will not be constructed as a toll road. If Antonio Parkway is not completed by May 31, 1999, then importation must stop. The grade of landfill operations (which Separate law suit may have resulted in same ptotect City Ridgelines) will not silhouette outcome. above major ridgelines. County will construct an earthen berm along Berm will lessen, but not eliminate, noise. La Pata to buffer residents near the Landfill from current visual and noise impacts. The County will establish a plan for financing the construction of a regional park over the Landfill site when the Landfill closes. County will pay City $. 81 per ton for Funds will be spent to mitigate maintenance mitigation fee. This could generate as much as and traffic impacts exacerbated due to $447,000 annually. Mitigation money will be increased traffic on Ortega Highway during used to increase enforcement and make the 29 months from January 1997 to May iDlprovements. 1999. County will limit total tonnage for all trash to 4,000 tons per day for life of Landfill. Irnported solid waste to be brought in in Vehicles are heavier and may put more stress transfer trailer vehicles to reduce traffic on roadways. impacts (fewer, heavier trucks). County of Orange, OC Waste & Recycling City of San Juan Capistrano AMENDMENT NUMBER TWO TO MEMORANDUM OF UNDERSTANDING BETWEEN THE CITY OF SAN JUAN CAPISTRANO AND THE COUNTY OF ORANGE REGARDING THE PRIMA DESHECHA LANDFILL This "Amendment" to the Memorandum of Understanding between the City of San Juan Capistrano and the County of Orange Regarding the Prima Deshecha Landfill dated September 12th, 1995, as amended by that certain First Amendment to the Memorandum of Understanding between the City of San Juan Capistrano and the County of Orange regarding the Prima Deshecha Landfill, dated November 21, 1995, collectively the "Agreement", is entered into upon execution of all necessary signatures between the County of Orange, a political subdivision of the State of California, through its OC Waste & Recycling department ("County") and the City of San Juan Capistrano, a General Law city of the State of California ("City"). County and City may sometimes be referred to as "Parties." RECITALS WHEREAS, County and City entered into the original Memorandum of Understanding on September 12t11 , 1995 for the purpose of establishing duties and procedures regarding the importation of tonnage at the Prima Deshecha Landfill and other matters of mutual concern; and WHEREAS, County and City entered into the First Amendment to the Memorandum of Understanding on November 21, 1995 regarding the cooperative building of a berm to buffer the noise and view of vehicles traveling to the Prima Deshecha Landfill; and WHEREAS, County and City have negotiated to provide City with additional compensation as consideration for the impacts on the City due to County's continued importation of solid waste from outside of Orange County and delivery of in-County waste; NOW, THEREFORE, in consideration of the premises hereto and the mutual covenants and agreements set forth herein, the Parties agree as follows: 1. The following will be added to the end of Section I.E of the Agreement: 4. The County will work jointly with the City to identify revised hauling routes and evaluate County's enforcement options for compliance with the provisions of this Section. 2. Section 3 of the Agreement shall be deleted and replaced in its entirety with the following language: Through June 30,2016: Per Ton Importation Fee The County will pay to City an importation fee of $1.16 per ton for each ton of Out-of-County Waste deposited in the Landfill. Beginning July I, 2016: Per Ton hnportation F ee The per-ton host fee for importation will follow the per-ton host fee for in-County waste. Beginning July 1, 2016, the County will increase the per-ton host fee for importation from the current $1 .16 per ton to $1.50 per ton for waste imported from outside the County and accepted at Prima Deshecha Landfill, excluding exempt waste and soil. The per-ton host fee will be Execution Copy Page 1 of3 Attachment} County of Orange, OC Waste & Recycling City of San Juan Capistrano paid to the City on a quarterly basis beginning with the July !-September 30, 2016 quarter, and payable forty-five days after the end of each quarter. Payment will be based on actual tonnage levels. Beginning July I, 2016: Per Ton In-County Host Fee Beginning July 1, 2016, the County will pay to City $1.50 per ton of waste accepted at Prima Deshecha Landfill, excluding (i) exempt waste and soil, (ii) imported waste, and (iii) City of San Juan Capistrano-generated waste. The per-ton host fee will be paid to the City on a quarterly basis beginning with the July !-September 30, 2016 quarter, and payable forty-five days after the end of each quarter. Payment will be based on actual tonnage levels. Begilming July 1, 2016: Enviromnental Education Funding Effective July 1, 2016, coterminous with the City's WDA, the County will fund environmental education programs to be developed cooperatively between City and County staff up to a cost of $25,000 per fiscal year. 3. Parties agree to enter into good faith negotiations related to the pending solid waste facility permit revision for the extension of operations at the Zone 1 and Zone 4 of the Prima Deshecha Landfill, with negotiations to be completed by June 30, 2017. 4. This Amendment shall not become effective except upon the execution by County of the Amendment to the Waste Disposal Agreement between the County of Orange, California and the City of San Juan Capistrano Dated May 5, 2009, which extends that agreement until June 30, 2025. 5. Except as explicitly amended herein, all remaining terms and conditions of the Agreement shall remain in full force and effect. [SIGNATURE PAGE FOLLOWS] Execution Copy Page 2 of3 County of Orange, OC Waste & Recycling City of San Juan Capistrano IN WITNESS WHEREOF, the Parties acknowledge that they have read this Amendment and agree to be bound by its terms. Each party has full power and authority to enter into this Amendment, and the person signing this Amendment on behalf of each is properly authorized and empowered to do so. Date ______________________ _ Date ----------------------- APPROVED AS TO FORM: COUNTY COUNSEL ORANGE COUNTY, CALIFORNIA By ____________ _ James Steinmann, Deputy Execution Copy COUNTY OF ORANGE By ------------- Dylan, Wright, Director, OC Waste & Recycling CITY OF SAN JUAN CAPISTRANO By -------------- Benjamin Siegel, City Manager APPROVED AS TO FORM: GENERAL COUNSEL CITY OF SAN JUAN CAPISTRANO, CALIFORNIA By ___________ _ JeffBallinger, City Attorney ATTEST: By _________________ _ Maria Morris , City Clerk Page 3 of3 I ,,,JI J (o l t I I April 7, 2016 City of San Juan Capistrano Mr. Ben Siegel, City Manager 32400 Paseo Ad elan to San Juan Capistrano, CA 92675 Dylan Wright, Director 300 N Flower Street, Suite 400 Santa Ana, CA 92703 Via Electronic and Standard Mail www.oclandfills.com Telephone: (714) 834-4000 Fax: (714) 834-4183 Subject: Proposed Amendment to MOU for the Prima Deshecha Landfill Dear Mr. Siegel, As a follow-up to my letter to you dated April1, 2016, and as committed to the San Juan Capistrano City Council at its meeting on April 5, 2016, I would like to propose an amendment to the existing Memorandum of Understanding between the City of San Juan Capistrano and the County of Orange Regarding the Prima Deshecha Landfill (Agreement), subject to approval by your City Council and the Board of Supervisors. As you know, your City Council (and all cities) will have to approve an amendment to the current Waste Disposal Agreement with the County by April20, 2016 in order for importation of out-of-County waste to continue. There are substantial benefits to continuing waste importation, however it is recognized that there are also impacts to certain cities, including San Juan Capistrano. In consideration of those impacts, I have prepared the attached proposed amendment to the Agreement, consistent with mitigations included in a similar proposed amendment to the City of Irvine's Cooperative Agreement. The proposed amendment, among other things, would increase the per ton host fee for imported waste from $1.16 to $1.50 per ton and also add a $1.50 per ton host fee for in- County waste (excepting City of San Juan Capistrano waste). It would also and provide 1 Attachment 4 Proposed Amendment to MOU for the Prima Deshecha Landfill April 7, 2016 up to $25,000 per year for environmental education, coterminous with the Waste Disposal Agreement. The estimated benefit to San Juan Capistrano from the proposed amendment and the WDA amendment is over $2.5 million through 2020. In addition, a lump sum mitigation payment is a key component of our discussions related to revision of the Prima Deshecha Landfill Solid Waste Facility Permit which we continue to address on a parallel track and which is also noted in the proposed amendment. With respect to traffic mitigations on Ortega Highway, it is critical to acknowledge that the County is spending tens of millions of dollars on the La Pata Avenue Gap Connector Project which will result in a significant reduction in traffic volume on Ortega Highway (projected reduction of 4000 vehicles per day in 2016). It is also important to note that OC Waste & Recycling is contributing over $9 million to the La Pata A venue Gap Connector Project to mitigate for landfill traffic impacts which will directly benefit San Juan Capistrano. Based on discussions with CR&R, Inc., waste hauler for San Juan Capistrano, San Clemente and other South County cities, CR&R will shift at least 40 waste trucks per day from Ortega Highway to La Pata A venue upon completion of the project (estimated fall of 2016). The above reductions will be on the section of Ortega Highway from La Pata Avenue to Interstate 5, directly within San Juan Capistrano city limits. One final note, the proposed Amendment and the WDA amendment are subject to Board of Supervisors approval which must be secured no later than April 26, 2016 to avoid a lapse in importation until 2020 and an extraordinary disposal rate increase for Orange County residents and businesses. The estimated additional cost to San Juan Capistrano residents and business from the extraordinary increase is between $670,000 and $800,000 through 2020. I respectfully request that you present the proposed amendment to the Agreement, along with the amendment to the Waste Disposal agreement to your City Council at its April 19, 2016 meeting. Dylan Wright Attachment 2 Proposed Amendment to MOU for the Prima Deshecha Landfi)J April 7, 2016 cc: Frank Kim, County Executive Officer, County Executive Office Mark Denny, Chief Operating Officer, County Executive Office Shaw Lin, Deputy Director, OC Waste & Recycling 3 • o rJ' "i 01 l')u r.~t. April11, 2016 City of San Juan Capistrano Mr. Ben Siegel, City Manager 32400 Paseo Adelanto San Juan Capistrano, CA 92675 Dylan Wright, Director 300 N. Flower Stn?et. Suite 400 Santa Ana. CA 92703 www.oclandfil ls.com Telephone: (714) 834-4000 Fax: (714) 834-41 D3 Via Electronic and Standard Mail Subject: Proposed Amendment to MOU for the Prima Deshecha Landfill Dear Mr. Siegel, My letter to you dated April 7, 2016, transmitted a proposed amendment to the current Memorandum of Understanding (MOU) with the City of San Juan Capistrano for the operation of the Prima Deshecha landfill. The amendment purposes to address concerns raised by your City Council at its AprilS, 2016 meeting. In summary, the amendment provides for (1) equitable compensation to San Juan Capistrano on a per-ton of waste basis, in alignment with other "landfill host cities"; (2) requires that the County work with the City to explore opportunities to reduce traffic impacts on Ortega Highway; (3) requires that the County and City negotiate in good faith regarding mitigations for the continued operation of the Prima Deshecha landfill, including but not limited to additional monetary compensation not contemplated in the proposed amendment. With respect to traffic mitigations on Ortega Highway, it is necessary to note that the County, through its Public Works Department, is spending tens of millions of dollars on the La Pata A venue Gap Connector Project (Project) which will significantly reduce traffic volume on the segment of Ortega Highway within the city limits of San Juan Capistrano (estimated average reduction to daily traffic of 4000 vehicles, including at least 40 waste disposal trucks). In addition, OC Waste & Recycling is contributing over $9 million to the Project and the City of San Clemente is also contributing approximately $9 million. Finally, as you know, since 2014, OC Waste & Recycling has been endeavoring to negotiate with your predecessors an agreement for additional mitigation, including compensation, to the City of San Juan Capistrano for landfill impacts. With the approval 1 Proposed Amendment to MOU for the Prima Deshecha Landfil1 April II, 2016 of the proposed Waste Disposal Agreement Amendment and the proposed MOU amendment by your City Council at or before their April 19, 2016 meeting, a solid foundation will be in place to build a mutually beneficial agreement. 5/?ely, Dylan Director cc: Frank Kim, County Executive Officer, County Executive Office Mark Denny, Chief Operating Officer, County Executive Office Shaw Lin, Deputy Director, OC Waste & Recycling 2