Draft_Template_Orange_County_Importation_Agreement_.pdf

4848-5194-9331.1

Draft

MUNICIPAL SOLID WASTE

IMPORTATION AGREEMENT

Between

The County of Orange, California

And

Hauler Name

TABLE OF CONTENTS

RECITALS

SECTION 1: DEFINITIONS

SECTION 2: TERM OF AGREEMENT

SECTION 3: DELIVERY OF WASTE

3.1 COMMITMENT TO DELIVER WASTE

3.2 HAULER’S AUTHORITY TO DELIVER WASTE

SECTION 4: PROVISION OF DISPOSAL SERVICES

4.1 COMMITMENT TO PROVIDE DISPOSAL SERVICES

4.2 RATE FOR DISPOSAL SERVICES

4.3 PAYMENT FOR DISPOSAL SERVICES

4.4 AUTOMATIC ANNUAL RATE ADJUSTMENT FOR DISPOSAL SERVICES

4.5 INCREASE IN GOVERNMENTAL FEES

SECTION 5: PROCEDURES FOR DELIVERY AND ACCEPTANCE OF WASTE

5.1 PROCEDURES FOR DELIVERY AND ACCEPTANCE OF IMPORTED ACCEPTABLE WASTE

5.2 UNACCEPTABLE WASTE

5.3 MONTHLY ADJUSTMENT BETWEEN REVENUE CATEGORIES

5.4 HAZARDOUS MATERIALS, SUBSTANCES OR WASTE

5.5 EMERGENCY REDESIGNATION OF FACILITY

SECTION 6: REGULATORY COMPLIANCE

6.1 APPLICABLE LAW

6.2 COMPATIBILITY WITH THE ACT

6.3 DISPOSAL REPORTING

SECTION 7: BREACH, ENFORCEMENT AND TERMINATION

7.1 FAILURE TO DELIVER AGREED WASTE

7.2 TERMINATION FOR CONVENIENCE

7.3 TERMINATION DUE TO INCREASE IN ORANGE COUNTY WASTE

7.4 REDUCTION OF TONNAGE DUE TO INCREASE IN ORANGE COUNTY WASTE

7.5 TERMINATION FOR CAUSE

7.6 TERMINATION OTHER

7.7 DISPUTE RESOLUTION

SECTION 8: GENERAL CONDITIONS

8.1 UNCONTROLLABLE CIRCUMSTANCES

8.2 INDEMNIFICATION

8.3 INSURANCE

8.4 CURE

8.5 NON‐ASSIGNMENT OF AGREEMENT

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8.6 NON‐DISCRIMINATION

8.7 SEVERABILITY AND SURVIVAL

8.8 SOLE AND ONLY AGREEMENT

8.9 AMENDMENTS

8.10 NOTICES

8.11 GOVERNING LAW AND VENUE

8.12 HEADINGS

8.13 CALENDAR DAYS

8.14 ATTORNEY FEES

8.15 INTERPRETATION

8.16 AUTHORITY

8.17 COUNTERPARTS

EXHIBIT A

EXHIBIT B

EXHIBIT C‐1

EXHIBIT C‐2

EXHIBIT D

4848-5194-9331.1 4

MUNICIPAL SOLID WASTE IMPORTATION AGREEMENT

This Municipal Solid Waste Importation Agreement (“Agreement”) is made and dated this _____ day of ____________2024 (“Effective Date”) between the County of Orange, a political subdivision of the State of California (“County”), and __________ (“Hauler”), each a “Party” and together the “Parties.”

RECITALS

A. The County owns, manages and operates a Waste Infrastructure System which includes solid waste disposal operations at active landfills (“the Disposal System”); Organics Infrastructure; Regional Household Hazardous Waste Collection Centers; and other waste management related systems deemed necessary by the County for the disposal, management and diversion of discarded material generated by the cities and the unincorporated areas within the County. For purposes of this Agreement, the Disposal System is limited to the County’s active landfill operations.

B. 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).

C. In constructing, operating and managing the Disposal System, the County has regulatory obligations pertaining to Landfill operation, management, closure and post closure monitoring and maintenance. Applicable Law requires the County to properly maintain and preserve the Waste Infrastructure System and operate it in an efficient, economical and businesslike manner.

D. The County has determined that by accepting municipal solid waste generated outside of the County (“Imported Acceptable Waste”) unused capacity in the Disposal System can be utilized to cover landfill operating costs and generate revenue.

E. The County has determined that there is sufficient capacity available to allow for importation waste within the Disposal System.

F. The County has determined that the execution by the County of this Agreement will serve the public health, safety and welfare of the County by providing a more stable, predictable and reliable supply of municipal solid waste to optimize the Disposal System.

AGREEMENT

NOW, THEREFORE, the COUNTY and HAULER agree as follows:

SECTION 1: DEFINITIONS

As used in this Agreement, the following terms will have the meanings set forth below:

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“Acceptable Waste” means all garbage, refuse, rubbish and other materials and substances discarded or rejected as being spent, useless, worthless or in excess to the owners at the time of such discard or rejection and which are normally disposed of by or collected from residential (single family and multi-family), commercial, industrial, governmental and institutional establishments and which are acceptable at Class III landfills under Applicable Law.

(Excluded from the definition Acceptable Waste are Source Separated Organic Waste)

“Act” means AB 939 the California Integrated Waste Management Act of 1989

(Division 30 of the California Public Resources Code), as amended, supplemented, superseded, and replaced from time to time.

“Agreement” means this Municipal Solid Waste Importation Agreement between the County and the Hauler, as it may be amended or modified in accordance herewith.

“Applicable Law” means the Act, Organics Legislation, the Orange County Code or Ordinances, CERCLA, RCRA, CEQA, any legal entitlement and any federal or state rule, regulation, requirement, guideline, permit, action, determination or order of any governmental body having jurisdiction, applicable from time to time to the siting, design, permitting, acquisition, construction, equipping, financing, ownership, possession, operation or maintenance of the Disposal System, and the transfer, handling, transportation and disposal of Acceptable Waste, Unacceptable Waste, or any other transaction or matter contemplated hereby (including any of the foregoing which concern health, safety, fire, environmental protection, mitigation monitoring plans and building codes).

“CalRecycle” means the California Department of Resources Recycling and Recovery, which is a branch of the California Environmental Protection Agency. CalRecycle oversees the state’s waste management and waste reduction programs. CalRecycle was established in 2010 to replace the California Integrated Waste Management Board and is responsible for the enforcement of legislation and regulations and diversion requirements applicable to the Waste Infrastructure System.

“CEQA” means the California Environmental Quality Act (California Public Resources Code Section 21000 et seq.) as amended or superseded, and the regulations promulgated thereunder.

“CERCLA” means the Comprehensive Environmental Responsibility Compensation and

Liability Act (42 U.S.C. Section 9601 et seq.) as amended or superseded, and the regulations promulgated thereunder.

“Change in Law” means any of the following events or conditions which has a material and adverse effect on the performance by the parties of their respective obligations under this Agreement (except for payment obligations), or on the siting, design, permitting, acquisition, construction, equipping, financing, ownership, possession, operation or maintenance of the Waste Infrastructure System or other matters to which Applicable Law applies:

(1) the enactment, adoption, promulgation, issuance, material modification or written change in administrative or judicial interpretation on or after the Commencement Date of any

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Applicable Law (other than Applicable Law enacted by the County); or

(2) the order or judgment of any Governmental Body (other than the County), on or after the Commencement Date, to the extent such order or judgment is not the result of willful or negligent action, error or omission or lack of reasonable diligence of the County or of the City, whichever is asserting the occurrence of a Change in Law; provided, however, that the contesting in good faith or the failure in good faith to contest any such order or judgment shall not constitute or be construed as such a willful or negligent action, error or omission or lack of reasonable diligence; or

(3) the denial of an application for, delay in the review, issuance or renewal of, or suspension, termination, interruption, imposition of a new or more stringent condition in connection with the issuance, renewal or failure of issuance or renewal on or after the Commencement Date of any Legal Entitlement to the extent that such denial, delay, suspension, termination, interruption, imposition or failure materially and adversely interferes with the performance of this Agreement, if and to the extent that such denial, delay, suspension, termination, interruption, imposition or failure is not the result of willful or negligent action, error or omission or a lack of reasonable diligence of the County or of the Hauler, whichever is asserting the occurrence of a Change in Law;

provided, however that the contesting in good faith or the failure in good faith to contest any such denial, delay, suspension, termination, interruption, imposition or failure shall not be construed as such a willful or negligent action, error or omission or lack of reasonable diligence; or

(4) any new or revised requirements or fees relating to the funding or provision of Waste

Infrastructure Services, including but not limited to, Host Fees, regulations for disposal operations, organics processing and diversion, recycling initiatives or activities associated with the remediation, closure, funding or monitoring of closed landfills with respect to facilities comprising the Waste Infrastructure System, or facilities which the County previously utilized to provide waste disposal, transfer, recycling, processing or other waste related activities.

"Contract Rate” the Disposal Rate as provide in Section 4.2.

“County” means the County of Orange, a political subdivision of the State of California and party to this Agreement.

“Designated Landfill” means the Prima Deshecha Landfill, and/or Frank R. Bowerman Landfill, or other landfill located in the Disposal System, as designated by the Director. Director may change the Designated Landfill at any time, with 30 days written notice or in emergency circumstances as provided in Section 5.5 of this Agreement.

“Director” means the Director of OC Waste & Recycling or designee.

“Disposal Services” means the solid waste disposal services to be provided to the Hauler by the County under this Agreement. (Excluded from the term Disposal Services are acceptance and processing of Source Separated Organic Waste as required under Organics Legislation.

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Acceptance and processing of source separated Organic Waste would require a separate agreement between the Parties.)

“Disposal System” means the Orange County solid waste disposal operations at the

Prima Deshecha Landfill, and/or Frank R. Bowerman Landfill, or other landfill located in the Disposal System.

“Hazardous Material” or “Hazardous Substance” has the meaning given such terms 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, as well as other regulations promulgated under these statutes, as they exist now and as they may be amended from time to time.

“Hazardous Waste” means (a) any waste which by reason of its quality, concentration, composition or physical, chemical or infectious characteristics may do any of the following:

cause, or significantly contribute to, an increase in mortality or an increase in serious irreversible, or incapacitating reversible, illness, or pose a substantial threat or potential hazard to human health or the environment, or any waste which is defined or regulated as a hazardous waste, toxic substance, hazardous chemical substance or mixture, or asbestos under Applicable Law, as amended from time to time including, but not limited to: (1) the Resource Conservation and Recovery Act and the regulations contained in Title 40 of the Code of Federal Regulations (CFR) Parts 260-281; (2) the Toxic Substances Control Act (15 U.S.C. Sections 2601 et seq.)

and the regulations contained in Title 40 CFR Parts 761-766; (3) the California Health and Safety Code, Section 25117 (West 1992 & Supp. 1996); (4) the California Public Resources Code, Section 40141 (West 1996); and (5) future additional or substitute Applicable Law pertaining to the identification, treatment, storage or disposal of toxic substances or hazardous wastes; or (b) radioactive materials which are source, special nuclear or by-product material as defined by the Atomic Energy Act of 1954 (42 U.S.C. Section 2011 et seq.) and the regulations contained in Title 10 CFR Part 40.

“Imported Acceptable Waste” means Acceptable Waste that is generated outside of the geographical boundaries of the County and delivered to the Disposal System pursuant to the terms of this Agreement.

“Maximum Allocated Tonnage” means the annual tonnage specified in Section 3.1, subject to a daily cap as specified in Exhibit A.

“Maximum Daily Allocation” means the maximum amount that Hauler may dispose of on a daily basis, as specified in Exhibit A.

“OC Waste & Recycling” or “OCWR” means the County of Orange Department that is responsible for managing and operating the County of Orange Waste Infrastructure System.

“Organics Legislation” means organics recycling legislation including AB 341, AB

1594, AB 1826, SB1383 and any future legislation pertaining to the management and diversion of organic waste.

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“Organic Waste” means solid wastes containing material originated from living organisms and their metabolic waste products including, but not limited to, food, green material, landscape and pruning waste, organic textiles and carpets, lumber, wood, paper products, printing and writing paper, manure, biosolids, digestate, and sludges as defined in Title 14 of the California Code of Regulations, Section 18982(a)(46).

“Origin Totals” means a breakdown of the total tons of Acceptable Waste delivered by the Hauler each calendar month by jurisdiction or origin.

“Prohibited Medical Waste” means any medical or infectious waste prohibited or restricted under Applicable Law from being received by or disposed at Class III landfills or at the Disposal System.

“RCRA” means the Resource Conservation and Recovery Act, 42 U.S.C. Section 6901 et seq., as amended and superseded.

“Recycle and Disposal Reporting System (RDRS)” means RDRS is CalRecycle’s online data system in which businesses, facilities, and operations with a reporting obligation submit required information.

“Service Coordinator” means the person designated by either PARTY to transmit instructions, receive information and otherwise coordinate service matters arising pursuant to this Agreement.

“Unacceptable Waste” means: Hazardous Waste; Hazardous Substances; Prohibited Medical Waste; qualified Household Hazardous Waste separated from Acceptable Waste;

explosives, ordinance, highly flammable substances, and noxious materials and lead-acid batteries (except if delivered in minimal quantities); drums and closed containers; liquid waste, oil, human wastes; machinery and equipment from commercial or industrial sources, such as hardened gears, shafts, motor vehicles or major components thereof, agricultural equipment, trailers, marine vessels and steel cable; hot loads; and any waste which Class III Landfills and the Disposal System are prohibited from receiving under Applicable Law.

“Uncontrollable Circumstance” means any act, event or condition affecting the

Waste Infrastructure System, the County, the Hauler, or any of their contractors or suppliers to the extent that it materially and adversely affects the ability of either party to perform any obligation under the Agreement (except for payment obligations), if such act, event or condition is beyond the reasonable control of and is not also the result of the willful or negligent act, error or omission or failure to exercise reasonable diligence on the part of the party relying thereon as justification for not performing an obligation or complying with any condition required of such party under the Agreement; provided, however, that the contesting in good faith or the failure in good faith to contest such action or inaction shall not be construed as willful or negligent action or a lack of reasonable diligence of either party. Examples of Uncontrollable Circumstances are:

(1) an act of God, landslide, lightning, earthquake, fire, explosion, flood, sabotage or similar occurrence, acts of a public enemy, extortion, war, blockade or insurrection, riot or civil disturbance, or epidemic; and

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(2) a Change in Law.

SECTION 2: TERM OF AGREEMENT

The term (“Term”) of this Agreement will commence on July 1, 2025 (the Effective Date), and terminates on June 30, 2030, and may be extended for up to two subsequent five-year terms upon mutual agreement of the Parties.

SECTION 3: DELIVERY OF WASTE

3.1 MAXIMUM ALLOCATED TONNAGE

(a) Beginning July 1, 2025, and subject to available Disposal System permitted capacity, the Hauler is authorized to deliver a maximum of 500,000 tons of Imported Acceptable Waste annually (Maximum Allocated Tonnage), based on a 308 day work year, or prorated for years that are less than a full calendar year, to the Designated Landfill, and subject to a daily cap as specified in Exhibit A.

(b) Upon approval of an increase in permitted landfill capacity at the Prima Deshecha Landfill it is estimated an additional 500,000 tons annually of landfill capacity will be available for Imported Acceptable Waste. Hauler shall have a right of first refusal for up to an additional 500,000 tons annually of waste allocated by the County for acceptance as Imported Waste as specified in Section 3.1 (c).

(c) Director will notify Hauler in writing regarding the availability of additional

Imported Waste capacity of up to 500,000 tons annually. Hauler will have first right of refusal to accept the additional tonnage at the then applicable Contract Rate. Within 30 days written notice from OCWR, hauler must notify the OCWR Director of its intent to import additional tonnage. Hauler will indicate the additional tonnage requested up to 500,000 tons annually prorated for the first year based on remaining operating days for the fiscal year. Hauler will be responsible for the fees incurred for the additional tonnage in accordance with the fee schedule established in Section 4.3 prorated for the first year. Any tonnage remaining from the 500,000 tons not accepted by the Hauler will be available to OCWR to solicit bids from other haulers for importation of waste or for other allocation as may be deemed appropriate by the County.

(d) If any additional tonnage becomes available over Maximum Allocated Tonnage or the hauler exceeds the Maximum Allocated Tonnage, the OCWR Director and Hauler shall negotiate a per ton rate at or above the Contract Rate.

3.2 HAULER’S AUTHORITY TO DELIVER WASTE

The Hauler warrants that it has the right, power, and authority to deliver Imported Acceptable Waste to the Disposal System through contracts, permits, licenses or other

4848-5194-9331.1 10 arrangements, and affirms it will deliver no more than the agreed tonnage of waste to the Designated Landfill for the Term of this Agreement.

SECTION 4: PROVISION OF DISPOSAL SERVICES

4.1 COMMITMENT TO PROVIDE DISPOSAL SERVICES

The County agrees to provide Disposal Services to Hauler for the Term of this

Agreement under the conditions specified in this Agreement. Subject to available Disposal System permitted capacity, County agrees to provide disposal services for Imported Acceptable Waste at the Designated Landfill identified in Exhibit A under the facility permit for the Term of this Agreement.

4.2 RATE FOR DISPOSAL SERVICES

Beginning on the Effective Date, the County shall charge Hauler for Disposal Services for delivery of up to its Maximum Allocated Tonnage at the negotiated “Contracted Yearly Flat Rate” of ________ (000,000) dollars (per ton rate x Maximum Allocated Tonnage), subject to the limits provided in Section 3.1 and Exhibit A and other conditions of this Agreement. The Contracted Yearly Flat Rate (“Contract Rate”) for Disposal Services shall be based on the delivery schedule in Exhibit A. No Contract Rate adjustments will be made if less than the Maximum Allocated Tonnage is delivered. The Maximum Allocated Tonnage and the Maximum Daily Allocation are a use-it or lose-it allocation. No refunds or discounts will be made if Hauler delivers less than the Maximum Allocated Tonnage or Maximum Daily Allocation.

4.3 PAYMENT FOR DISPOSAL SERVICES

Payments are due on a quarterly basis at 25% of the annual contract amount, in advance of the quarter. Payments are due based on the below payment schedule. It will be the sole discretion of the Director to negotiate an extension for payment if Hauler cannot fulfill their financial responsibilities. Payments shall be postmarked by the payment due date, to be deemed one time.

In the event of a late payment, County shall impose a 1.5% late fee, calculated off the quarterly payment amount.

Payment Schedule

Quarter 1 (July 1 - September 30): Due by June 30 Quarter 2 (October 1 – December 31): Due by September 30

Quarter 3 (January 1 – March 31): Due by December 31 Quarter 4 (April 1 – June 30): Due by March 31

Should additional tonnage become available and accepted by Hauler, Hauler shall be responsible for the fees incurred for the additional tonnage in accordance with the fee schedule and prorated.

Any prorated payment shall be due within 30 days of accepting additional tonnage. Following initial prorated payment, all payments shall be per the Payment Schedule above and include additional tonnage fees.

4.4 AUTOMATIC ANNUAL RATE ADJUSTMENT FOR DISPOSAL SERVICES

(A) Commencing July 1, 2026, and each July 1 thereafter for the term of the agreement, the rate specified in Section 4.2 and all other rates provided within the agreement

4848-5194-9331.1 11 shall be adjusted annually. The change will be equal to the positive percentage change in the Consumer Price Index – Consumer Price Index for All Urban Consumers: Water and Sewer and Trash Collection Services in U.S. City Average (CUSR0000SEHG) as measured from the October 21 months prior to the rate adjustment to the October immediately preceding the rate adjustment. For example: The July 1, 2026 rate adjustment shall be based upon the index change from October 2024, to October 2025, referred to as year 1 and year 2 respectively in the following example. In the event the CPI increase is under 3% County shall charge a flat 3% rate increase.

Formula to calculate percentage change in the Contract Rate:

Step 1:

October Year 2 CPI - 1 = % increase in Contract Rate October Year 1 CPI

Step 2: Current Contract Rate x (1+ % increase in Contract Rate) = Contract Rate as of July 1 Year 2

4.5 INCREASE IN GOVERNMENTAL FEES

In addition to the other adjustments specified herein, the rate shall be adjusted to reflect the imposition of new fees or increase in existing fees relating to the disposal of solid waste imposed by state, federal or other agencies excluding the County, except insofar as the County acts as Local Enforcement Agency. The adjustment shall be equal to the amount of any new or increased fee, and the adjustment shall take effect so as to coincide with the imposition of the new or increased fee. The County shall provide notice of any increase as soon as practicable after becoming aware of the imposition of any fees described above.

SECTION 5: PROCEDURES FOR DELIVERY AND ACCEPTANCE OF WASTE

MISCELLANEOUS OPERATIONAL MATTERS.

(A) Operating Hours. The County shall keep the Disposal System open for the receiving of Acceptable Waste during such regular operating hours as may be established by the Department in the operating rules and regulations applicable to the Disposal System.

The County reserves the right to modify the operating days and hours to comply with Applicable law or as otherwise may be deemed necessary by the County.

(B) Scales and Weighing. The Department shall operate and maintain permanent scales at the Disposal System as required by Applicable Law. The Department shall weigh all vehicles delivering waste by or on behalf of the City (whether or not the County accepts such waste) and prepare a daily weight record with regard to such delivery.

(C) Service Coordinator. The County and the Hauler each shall designate in writing thirty days prior to the expected Commencement Date a person to transmit instructions, receive information and otherwise coordinate service matters arising pursuant to this Agreement (each a “Service Coordinator”). Either Party may designate a successor or substitute Service Coordinator at any time by notice to the other Party.

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(D) Review of Records. Each Party may review the other Party’s books and records with respect to matters relevant to the performance by either Party under this Agreement or otherwise related to the operation of the Disposal System to the extent allowed under the California Public Records Act (interpreted as if the Parties to this Agreement were natural persons for purposes of the Public Records Act).

5.1 PROCEDURES FOR DELIVERY AND ACCEPTANCE OF IMPORTED ACCEPTABLE WASTE

Hauler shall deliver Imported Acceptable Waste to the Designated Landfill according to the conditions and procedures in Exhibits C-1& C-2. The Director and the Hauler may at any time during the terms of this agreement mutually agree to modify Exhibits C-1& C-2, provided such modifications are subject to the terms and conditions of this Agreement.

The Hauler shall bear all costs of collection, transfer, processing, transportation, taxes, permits, or impositions assessed by any governmental body which are related to the delivery of waste to the Disposal System.

5.2 UNACCEPTABLE OR PROHIBITED WASTE

The Hauler shall not deliver any waste to the Disposal System that is defined as Unacceptable Waste under this Agreement.

Only Imported Acceptable Waste may be delivered to Disposal System pursuant to this

Agreement. Hauler shall maintain adequate records and supporting source documents evidencing the origin of all waste delivered to Disposal System. Except as provided for in Section 5.3, delivery of Acceptable Waste originating within Orange County pursuant to the terms of this Agreement will constitute a material breach of this Agreement and may result in immediate termination of this Agreement for cause.

Hauler shall maintain records and supporting source documents that adequately identify the origin of all solid waste delivered to County Disposal System pursuant to this Agreement.

The records and source documents shall be maintained by the Hauler for a minimum of five (5) years. Documents shall be maintained at the Hauler’s offices.

County shall, through its duly authorized agents or representatives, have the right to examine and audit records and supporting source documents maintained by Hauler concerning the origin of waste delivered to the Disposal System at any and all reasonable times after thirty

(30) days written notice.

The full cost of the audit, as determined by County, shall be borne by Hauler if either or both of the following conditions exist:

1) The audit reveals an underpayment to the County of more than two percent (2%).

2) Hauler has failed to maintain true and complete books, records, accounts, and supporting source documents in accordance with this clause.

Otherwise, County shall bear the cost of the audit.

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5.3 MONTHLY ADJUSTMENT BETWEEN REVENUE CATEGORIES

Both parties recognize the inherent discrepancies in the system of allocating each truckload by category of in-County vs. importation as each truck leaves the transfer station. Due to the variables of incoming tonnage from many cities, extraction of recyclables, varying waste characterizations by city, complete accuracy of the outbound waste stream is not immediately available at the time the truck leaves the dock on its way to the landfill.

Waste origin is based on an estimate at the time the truck enters the landfill.

Discrepancies in allocation by revenue category (in-County vs. importation) will be apparent after each month is concluded and the actual allocations are determined by Hauler. Maximum tonnage adjustment the County will accept shall be five percent (5%) or less of all waste hauled by Hauler to the Landfill System for that given month. If a discrepancy is found, Hauler or County shall notify the other party within 60 days of the finding.

Acceptance of the findings shall be at the sole discretion of the County. The County shall modify tonnage accordingly based upon its findings and review of the discrepancy. The County shall calculate and assess supplemental charges in the event that a discrepancy results in an adjustment between revenue categories (in-County vs. importation) which may result in additional charges.

5.4 HAZARDOUS MATERIALS, SUBSTANCES OR WASTE

The Hauler shall not deliver Hazardous Materials, Hazardous Substances, or Hazardous Waste to the Disposal System. The Hauler’s program for detection and removal of Hazardous Materials/Waste or Unacceptable Waste from Acceptable Waste is included by reference to Exhibit D in this Agreement.

The Hauler shall notify the Director in writing at least thirty (30) days prior to making any desired changes or modifications in Hauler’s hazardous materials removal program and shall not make any changes prior to County notification that the change or modification is consistent with County guidelines. Delivery of Hazardous Materials/Waste shall constitute a material breach of this Agreement and may result in immediate termination of this Agreement, subject to provisions of Section 8.4. Delivery of any quantity of industrial or commercial hazardous waste may be grounds for immediate termination with no opportunity for cure.

5.5 REDESIGNATION OF FACILITY OR TONNAGE REDUCTION

The County shall have the right to change the Designated Landfill at any time per the Director or designee’s direction upon the occurrence of an event that impacts its ability to accept Imported Acceptable Waste at the Designated Landfill, the County may suspend acceptance of a portion or all Imported Acceptable Waste for a period of time until operations return to a minimum level required to accept tonnage per the terms of this agreement. The County will make reasonable efforts to provide advance notice; however, emergency circumstances may require redesignation or reduction without prior notice.

If the County is unable to accept disposal of the Daily Maximum Allocation at the Designated Landfill for more than a period of one hundred twenty (120) operating days, Hauler may seek

4848-5194-9331.1 14 modification of the Agreement for the purpose of addressing any increased costs being incurred, or which will be incurred as a result of County’s inability to accept Imported Acceptable Waste at the Designated Landfill. However, at no point shall the Contract Rate be below the then applicable Waste Infrastructure System Enhancement (WISE) rate.

SECTION 6: REGULATORY COMPLIANCE

6.1 APPLICABLE LAW

Both Parties shall comply with Applicable Law at all times, throughout the Term of this

Agreement; and shall obtain and maintain any permits, licenses, or approvals which are required for the performance of the Party’s respective obligations under this Agreement.

6.2 COMPATIBILITY WITH THE ACT

The actions of the Hauler in entering into this Agreement shall be compatible with the goals, policies, and agreements of the Source Reduction and Recycling Element(s) (“SRREs”) of the jurisdiction(s) generating the waste which is to be accepted in the Disposal System.

6.3 DISPOSAL REPORTING

The Hauler shall supply all information necessary to comply with CalRecycle’s Recycling and Disposal Reporting System and the Orange County Disposal Reporting System, which is included in Exhibit E and incorporated by reference in this Agreement, and any other information required by the County to comply with the Act, or any other Applicable Law.

SECTION 7: BREACH, ENFORCEMENT AND TERMINATION

Failure to pay for Maximum Allocated Tonnage per the terms of this agreement constitutes a breach and is subject to immediate termination of the agreement at the County’s option. Upon termination, Hauler is responsible for payment of all outstanding balances within thirty (30) days.

7.1 TERMINATION FOR CONVENIENCE

Either Party may terminate for convenience with ninety (90) days written notice. If County requests termination, County shall pay Hauler as liquidated damages five hundred thousand dollars ($500,000.00). If Hauler requests termination, Hauler shall pay to County as liquidated damages one million dollars ($1,000,000.00).

7.2 TERMINATION DUE TO INCREASE IN ORANGE COUNTY WASTE OR LACK OF CAPACITY

Management of waste originating in Orange County takes precedence over Imported Acceptable Waste. Nothing in this Agreement shall be interpreted as limiting the County’s right to terminate the Agreement if County determines that Disposal System capacity being used by Hauler is needed to provide disposal services for waste originating in Orange County, as a result of an increase in disposal of in-County waste or lack of available Disposal System capacity.

County shall make all reasonable efforts to plan and maintain sufficient permitted capacity within its landfill disposal system to accommodate both in-County and Imported Acceptable Waste. County shall have the right to terminate this Agreement or reduce the Maximum Allocated Tonnage under the Agreement without penalty or payment of liquidated damages should in-County waste disposal increase or there is a lack of disposal capacity such that the

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County shall be in violation or in jeopardy of violating its permitted capacity on a regular basis.

7.3 REDUCTION AND/OR SHIFT OF TONNAGE DUE TO INCREASE IN ORANGE COUNTY WASTE

Should in-County waste disposal increase, or Disposal System capacity be limited such that the County shall be in violation or in jeopardy of violating its permitted capacity and County determines that it is necessary to reduce or shift the Maximum Allocated Tonnage or Maximum Daily Allocation delivered by Hauler, the County shall have the authority to reduce and/or shift tonnage at the Designated Landfill. If the reduction in Maximum Allocated Tonnage is reduced beyond a ninety (90) day period, the Hauler and County shall negotiate in good faith to determine an amended Maximum Allocated Tonnage and annual rate based on the per ton rate within section 4.2. However, at no point shall the Contract Rate be below the then applicable Waste Infrastructure System Enhancement (WISE) rate. If Parties cannot come to agreement about a mutually acceptable rate, either Party can terminate the Agreement without incurring liquidated damages.

7.4 TERMINATION FOR CAUSE

Immediate termination will be exercised if the Hauler is determined to be in violation of Applicable Law and fails to cure as provided in Section 8.4 of this Agreement. The County is not liable for any damages incurred by the Hauler due to early termination under this section 7.5, including, but not limited to, consequential damages.

7.5 TERMINATION OTHER

If the County is ordered by a court of competent jurisdiction to cease providing Disposal Services under the terms and conditions of this Agreement, either Party may immediately terminate this Agreement. In such event, County will not be liable for any damages of any kind whatsoever due to the termination of this Agreement, the inability to provide Disposal Services or in any way resulting from the court order. The obligations to indemnify and defend contained in Section 8.2 of this Agreement do not impose any obligation on either Party to indemnify or defend the other Party, if that Party is named in such a legal challenge.

7.6 DISPUTE RESOLUTION

Parties agree to mediate any dispute(s) or claim(s) between them arising out of this

Agreement or any resulting transaction before resorting to court action. Mediation is a process in which parties attempt to resolve a dispute by submitting it to an impartial, neutral mediator who is authorized to facilitate the resolution of the dispute but who is not empowered to impose a settlement on the parties. Mediation fee, if any, shall be divided equally among the parties involved. Mediator selected shall be acceptable to both Parties. Before the mediation begins, the Parties agree to sign a document limiting the admissibility in any civil action of anything said, any admissions made, and any documents prepared, in the course of mediation, consistent with Evidence Code Section 1152. If any Party commences a court action based on a dispute or claim to which this Paragraph applies without first attempting to resolve the matter through mediation, then in the discretion of the judge, the Party shall not be entitled to recover Attorney’s fees even if they would otherwise be available to the Party in any such court action.

SECTION 8: GENERAL CONDITIONS

8.1 UNCONTROLLABLE CIRCUMSTANCES

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Each Party will excuse performance by the other in the event of delays caused by Uncontrollable Circumstances.

8.2 INDEMNIFICATION

(A) Generally. The Hauler shall defend with counsel approved in writing by County, indemnify, and hold harmless the County, its officers, agents and employees (“Indemnified Parties”) from any and all claims, demands, damages, costs, expenses, judgments, or liabilities arising out of this Agreement or connected with the performance, failure to perform or attempted performance of provisions hereof, including, but not limited to (1) any act or omission to act on the part of the Hauler or its agents, employees, or Subcontractors, except to the extent such liabilities are due to the negligence or willful act of the Indemnified Parties, (2) the collection, transportation, handling, storage, or disposal (by the Hauler or its agents, employees, or subcontractors) of discarded materials, (3) any claim for any finders or brokerage fee or other commission resulting from any services alleged to have been rendered to or performed on behalf of the Hauler with respect to this Agreement or any of the transactions contemplated hereby, (4) the performance or non-performance of the Hauler’s obligations under this Agreement, except to the extent such liabilities are due to the negligence or willful act of the Indemnified Parties, and

(5) Hauler’s failure to comply with Applicable Law.

(B) CERCLA Indemnification. The Hauler shall indemnify and defend with counsel approved by the County, and hold harmless the County, its officers, employees, agents, assigns and any successor or successors to the County’s interest from and against all claims, actual damages (including but not limited to special and consequential damages), natural resource damage, punitive damages, injuries, costs, response remediation and removal costs, losses, demands, debts, liens, liabilities, causes of action, suits, legal or administrative proceedings, interest, fines, charges, penalties and expenses (including but not limited to attorney’s and expert witness fees and costs incurred in connection with defending against any of the foregoing or in enforcing this indemnity) of any kind whatsoever (collectively “Liabilities”) paid, incurred or suffered by, or asserted against, the County or its officers, employees, agents or contractors arising from or attributable to any repair, cleanup or detoxification, or preparation and implementation of any removal, remedial, response, closure of other plan (regardless of whether undertaken due to governmental action) concerning any Hazardous Waste at any place where Hauler stores or disposes of municipal Solid Waste pursuant to this Agreement to the extent that such claims, damages, costs, losses, demands, debts, liens, liabilities, causes of action, suits, legal or administrative proceedings, interest, fines, charges, penalties and expenses are caused by any of the following: (1) the negligence or willful misconduct of the Hauler; (2) the collection, handling, processing, or disposal by the Hauler of any materials or waste, including hazardous substances or materials, which are generated by, or collected from waste Generators to which the Hauler provides services pursuant to this Agreement; (3) the failure of the Hauler to undertake hazardous waste and materials training procedures required by law with respect to its employees or Subcontractors; or (4) the improper or negligent handling, processing or disposal by the Hauler of hazardous waste or materials which (i) the Hauler inadvertently collects from waste Generators to which the Hauler provides services pursuant to this Agreement and (ii) which the Hauler identifies as Hazardous Waste prior to its disposal. The Hauler shall not, however, be required to reimburse or indemnify the County and its officers, agents, employees, attorneys, administrators, affiliates, representatives, servants, insurers, successors, and heirs to the extent any such claims, damages, costs, losses, demands, debts, liens, liabilities, causes of action, suits, 4848-5194-9331.1 17 legal or administrative proceedings, interest, fines, charges, penalties and expenses are due to the negligence or other wrongful conduct of such Party. The County acknowledges that the mere presence of household hazardous waste in the waste which is collected by the Hauler pursuant to this Agreement shall not constitute negligence nor in and of itself create any liability on the part of the Hauler absent any of the circumstances described in clauses (1) through (4) of the preceding sentence.

8.3 INSURANCE

Hauler shall maintain insurance coverage as described hereunder effective the first day of and in full force throughout the full Term of this Agreement. Insurers providing coverage as required by this Agreement shall be acceptable to County and must be authorized to do business in the State of California.

Certificates of insurance shall be furnished in duplicate, evidencing Hauler’s coverage of

Workers’ Compensation Insurance, Comprehensive General Liability, and Comprehensive Auto Liability; such certificates shall show the insurer’s name, policy number, limit of coverage, and the period of the policy and cancellation conditions of these specifications. Such certificates shall state that coverage thereunder shall not be terminated until thirty (30) days written notice is given to the Director of cancellation or reduction in coverage; allow for severability of interest of County; and be primary and non-contributing with insurance maintained or self-insured by County.

The County of Orange shall be added as an additional named insured on all of the above-described policies, as they pertain to the operations of the named insured performed under this Agreement for the County. Entire limits of liability maintained must be certified but in no event shall limits be less than specified herein below:

Coverage Minimum Limits Commercial General Liability $5,000,000 per occurrence $5,000,000 aggregate Automobile Liability including coverage $10,000,000 per occurrence for owned, non-owned and hired vehicles Workers Compensation Statutory Employers Liability Insurance $1,000,000 per occurrence

Required Coverage Forms The Commercial General Liability coverage shall be written on Insurance Services Office

(ISO) form CG 00 01, or a substitute form providing liability coverage at least as broad.

The Business Auto Liability coverage shall be written on ISO form CA 00 01, CA 00 05, CA 0012, CA 00 20, or a substitute form providing coverage at least as broad.

In accordance with Section 3700 of the California Labor Code, every employer is required to secure payment of compensation to his employees for the work under this Agreement, shall take out and maintain during the life of this Agreement, Workers’ Compensation Insurance for all of its employees at the site of the work under this Agreement. Workers’ Compensation Insurance Policy shall include a waiver of all rights

4848-5194-9331.1 18 of subrogation against the County.

8.4 CURE

If either Party fails to perform any of its obligations hereunder, that Party shall have five

(5) business days from receipt of written notice of default from the other Party within which to cure such default. However, delivery of industrial or commercial hazardous waste or failure to maintain a Household Hazardous Waste (HHW) Management Program pursuant to Section 5.4 may be grounds for immediate termination without opportunity to cure. Such default may be subject to termination pursuant to Section 7.3. In the case of a default by Hauler involving HHW under Section 5.4, Hauler shall cure the default within twenty-four (24) hours of written notice of the default in compliance with applicable laws and regulations, including County ordinances and established procedures.

8.5 NON-ASSIGNMENT OF AGREEMENT

Hauler may not assign this Agreement or any of the rights or obligations under this

Agreement without the prior written consent of the County, which may be withheld at the County’s sole discretion. Any person or entity to whom this Agreement is assigned must expressly agree to be bound by all obligations of Hauler. Hauler will remain liable to County for all obligations under this Agreement notwithstanding any assignment made pursuant to this clause.

Hauler may deliver solid waste collected by Hauler or any other entity under subcontract to Hauler, provided said waste does not originate within Orange County and originates within a municipality or special Hauler which has implemented an approved Household Hazardous Waste Collection Program and has fully implemented its SRRE.

8.6 NON-DISCRIMINATION

In performance of the terms of this Agreement, Hauler shall not engage in discrimination in the employment of persons because of race, creed, color, religion, national origin, age, disability, marital status, sexual orientation, or gender. Violation of this provision may result in the imposition of penalties referred to in Labor Code Section 1735 or other applicable state and federal regulations.

8.7 SEVERABILITY AND SURVIVAL

If any of the provisions contained in this Agreement are held for any reason to be invalid, illegal, or unenforceable in any respect, such invalidity, illegality, or unenforceability will not affect any other provision, and this Agreement shall be construed as if such invalid, illegal, or unenforceable provision had never been contained herein.

8.8 SOLE AND ONLY AGREEMENT

This Agreement constitutes the sole and only Agreement between the Parties with respect to the importation of solid waste to the Disposal System and correctly sets forth the obligations of each Party. Any representations or Agreements not specifically contained in this Agreement are null and void.

8.9 AMENDMENTS

Neither this Agreement nor any provision hereof may be changed, modified, amended, or

4848-5194-9331.1 19 waived except by written Agreement duly authorized and executed by both Parties.

8.10 NOTICES

Any notice required or permitted by this Agreement shall be in writing and sufficiently given if delivered in person or sent by certified or registered mail, postage prepaid, to the notice address of the respective Parties set forth in 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. The present addresses of the Parties are:

COUNTY

OC Waste & Recycling Attn: Director Location for Direct Deliveries and Certified Mail:

601 N. Ross, St., 5th Floor Santa Ana, CA 92701

HAULER

8.11 GOVERNING LAW AND VENUE

This Agreement has been negotiated and executed in the State of California and shall be governed by and construed under the laws of the State of California, without reference to conflict of laws provisions. In the event of any legal action to enforce or interpret this Contract, the sole and exclusive venue shall be a court of competent jurisdiction located in Orange County, California, and the Parties hereto agree to and do hereby submit to the jurisdiction of such court, notwithstanding Code of Civil Procedure Section 394. Furthermore, the Parties specifically agree to waive any and all rights to request that an action be transferred for trial to another venue.

8.12 HEADINGS

The various headings and numbers herein, the grouping of provisions of this Agreement into separate clauses and paragraphs, and the organization hereof are for the purpose of convenience only and shall not limit or otherwise affect the meaning hereof.

8.13 CALENDAR DAYS

Any reference to the word “day” or “days” herein shall mean calendar day or calendar days, respectively, unless otherwise expressly provided.

8.14 ATTORNEY FEES

In any action or proceeding to enforce or interpret any provision of this Agreement, or where any provision hereof is validly asserted as a defense, each Party shall bear its own attorney’s fees, costs and expenses.

8.15 INTERPRETATION

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This Agreement has been negotiated at arm’s length and between persons sophisticated and knowledgeable in the matters dealt with in this Agreement. In addition, each Party has been represented by experienced and knowledgeable independent legal counsel of their own choosing, or has knowingly declined to seek such counsel despite being encouraged and given the opportunity to do so. Each Party further acknowledges that they have not been influenced to any extent whatsoever in executing this Agreement by any other Party hereto or by any person representing them, or both. Accordingly, any rule of law (including California Civil Code Section 1654) or legal decision that would require interpretation of any ambiguities in this Agreement against the Party that has drafted it is not applicable and is waived. The provisions of this Agreement shall be interpreted in a reasonable manner to affect the purpose of the Parties and this Agreement.

8.16 AUTHORITY

The Parties to this Agreement represent and warrant that this Agreement has been duly authorized and executed and constitutes the legally binding obligation of their respective organization or entity, enforceable…