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HomeMy WebLinkAboutS5-Public Services I . CITY OF SAN BERNARDINO - REQUEST FOR COUNCIL ACTION ~- (~. From: James R. Howell , Subject: Response to Norcal Proposal of June 26, 1997 Dept: Public Services cg(Q)~W Date: July 16, 1997 Synopsis of Previous Council Action: Recommended Motion: That the Mayor and Common Council receive and fIle Memorandum dated July 16, 1997 from James Howell, Director of Public Services, subject: Response to Norcal Proposal of June 26, 1997. hrL- Si nature Contact person: Director of Public Services Phone: 5140 Supporting data attached: Memorandum dated Julv 16. 1997 Ward: ALL FUNDING REQUIREMENTS: Amount N/A Source: Finance: Council Notes: Continued to tJ3/DQ/'17 Agenda Item No. .s-~ p//r7 55 .--" :.;-.- :-, .' CITY OF SAN BERNARDINO PUBLIC SERVICES DEPARTMENT INTER-OFFICE MEMORANDUM BY; SUBJECT: DATE: CC: MAYOR TOM MINOR; MEMBERS OF THE COMMON ~~Cn. JAMES R. HOWElL, DIRECTOR OF PUBUC SERVlC~} h. /;? LYNN MERRILL, ACTING SOLID W ASTE MANAGER:~ ~ RESPONSE TO NORCAL PROPOSAL OF JUNE 26, 1997 JULY 16, 1997 FRED wasON. CITY ADMJN1STRA TOR; JAMES PENMAN, CITY A TIORNEY TO: FROM: Staff has prepared the following information as follow.up to staff's verbal presentation to the Mayor and Common Council on Monday, July 14,),. 1. The City has used the County Landfill system since approximately 1960. 2. While the total amount of wastes generated within the City's corporate boundary is approximately 205,000 tons, the City's Refuse Division only handles approximately 110,000 tons per year for which the City pays a tipping fee. The remaining 95,000 tons of waste is handled by the franchised private haulers crack's Disposal, Cal's Disposal and Curran's) and individual businesses which self.haul their own wastes to the landfill. Norcal inflated the amount of tonnage directly under the City's control to make this offer appear attractive. The City's tonnage is estimated at 110,000 tons for FY97.98, and is expected to continue to decrease to approximately 80,000 tons by the year 2000 in response to increased recycling and waste diversion efforts. The City would see a reduction of approximately $330,000 per year in FY97.98 under the N oreal scenario at current tonnage. ' 3. The City has no fInancial interest in the ownership, management and operation of the County landfill system. The City is only a user of the system. Implying that the City is a "stakeholder/investor" in the County's system may imply liability/responsibility that the City does not currently have. The County is the sole owner of the landfill system and contracts with NorcallSan Bernardino for it's operation. 4. The City, in cooperation with other cities within the County and the Waste Systems Division of the County, has been involved in on-going discussions related to the participation and Service Agreement outlined to the Council by Norcal. Staff was recently authorized by the Mayor to expend $2,000 in order to participate with twelve other cities in preparing the Waste Disposal Agreement. The Mojave Desert and Mountain Solid Waste JP A has coordinated the hiring of a negotiator to prepare an agreement acceptable to the cities, and to have this negotiator represent their collective f" -. \" ,. .' '. interests at the negotiating table. The cities felt this action was necessary due to the extreme lack of the responsiveness of the County/Norcal regarding issues of concern for the cities. 5. While Norcal represents that this agreement is a "win-win" for both parties, the proposed reduction in tipping fee rates and the length of term are inconsistent with those offered in both Orange and Riverside Counties for in-county waste. For example, Riverside County has proposed offering rates as low as 527.50 per ton for a ten year period. Given this rate, the proposed Riverside County rate represents a rate reduction of $5.50 per ton less than the existing Norcal/San Bernardino rate of $33.00 per ton. Staff has continually maintained that further savings are available to the City, however the County refuses to acknowledge this cost pressure. Additional downward pressure on rates will occur as large landfills such as Eagle Mountain and Mesquite landfill. 6. A recent court decision in San Diego has established that the only contractual relationship between a city and a county operating the landfill, absent of a formal agreement, occurs at the scalehouse. While the County of San Bernardino has agreed to assume full liability for any environmental damage resulting from the operation of the landfills, this liability, as determined by this court decision, already rests with the County. While RCRAlCERCLA liability (Federal regulations) extends through to the users of the system, this liability exposure only occurs when the financial resources of the principal responsible party have been exhausted. At the present time, the City does not appear to have liability exposure from the County's system; enterin~ into the PSA a~reement as presented would increase this exposure. 7. While the County/Norcal Participation and Service Agreement (PSA) contains a "most favored nation" clause, such a clause was intended only to cover more favorable terms such as a lower tipping fee that may be secured by other parties at a later date. If the City adopted the PSA as presented, it may not be possible to unilaterally replace the PSA with the proposed WDA without concurrence of both parties. Staff continues to believe that the present course of negotiations will result in an agreement which is acceptable to both parties and which will result in a tipping fee in the range of 526 per ton. 8. While the savings proposed by Norcal would result in an estimated savings of approximately 5330,000 per year by lowering the tipping fee from 533.00 per ton, to 530.00 per ton the combination of a reduction in the tipping fee to 526 per ton and aggressive commercial recycling which reduces the amount of waste delivered to the County system from 110,000 tons to 80,000 tons may result in a total annual savings potential of approximately 51.55 million per year. 2 . WASTE SYSTEM DIVISION Entered into Record I' COUNTY OF SAN BERNARDINO P BLlC SERVICES GROUP 222 West Hospitality Lane, Second Floor' San Bernardino, CA 92415-0017 (909) 386-8722 . Fax (909) 386-8786 by II Agenda Item q~~ City Clerk/COC Secy City of San Bernardino GERRY NEWCOMBE Contract Administrator July 21, 1997 Mr. Fred Wilson City Administrator City of San Bernardino 300 North "D" Street San Bernardino, California 92418 Subject: Offer to Proceed with Latest Version of the County's Solid Waste PSA Agreement Pending a Final WDA with the Consortium of Cities Dear Mr. Wilson: In your council action on 14 July, you voted to include in your FY 97/98 budget the savings available to the City of approximately $330,000 per year by entering into a solid waste delivery agreement for the use of the County's landfills. The purpose of this letter is to submit the latest version (dated June 5, 1997) of the County's Participation and Service Agreement (PSA) and to address how it may transition to the Waste Delivery Agreement (WDA) that is now being drafted by a consortium of 15 cities. Because it is unclear how long it will take to complete the WDA negotiations, it is beneficial to the City to proceed with the PSA while the WDA develops so that the City can start to realize the budget savings. . Most-Favored Nation Clause: The enclosed PSA contains a "most favored nation clause" (Section 9.1, page 17) that allows a city that signs sooner to be able to get any more favorable provisions that a city that signs later may get. In the context here, the County staff would recommend that if the City of San Bernardino signs a PSA while the WDA is being developed, the City of San Bernardino can replace the PSA with the WDA when negotiations with the consortium of cities is completed. . Indemnification: It is the County's intent, and this PSA states (Section 7.1(a), page 11), that cities that sign the PSA would not be liable for landfill closure, postclosure and remediation costs. The County's offer of indemnification is made entirely in the spirit of a contract: the County agrees to accept the liability for the landfill system, no matter what any court would decide. The cities' committment of waste (revenue) provides the County with the' financial ability to provide this indemnification. With an assured waste stream, the County is fully funded for all of its estimated liabilities. With the above clarifications, County WSD offers to proceed with the City under a negotiated PSA while the WDA is being worked out by the consortium. We are prepared to meet with your City Attorney on this, and to take to the Board of Supervisors the PSA that results. Your $3 per ton rebate or discount can start as soon as both sides execute the PSA. T;~,~ :-.::.ELlY Ass(::;,:w! CO<Jn:y Adm'qistr1t<:H Pubiic S~t\,')CC~ Gf')UP KATHY A. DAVIS JON D. MIKELS. . Board of SupervIsors .. First District DENNIS HANSBERGER .. Second Dj"trict LARRY WALKER. .. . . , . JERRY EAVES. ., . . .. Fifth Oi;>trict cc: Tim Kelly. ASSIStant County Admlnistrat"" 7 j, ,;" Martin CzernIak, Nor# ~; Gerry Newc mbe Contract Administrator JAMES J. HLAWEK County Administrative Officer . Third District Fourth District R~P~ SOLID WASTE DELIVERY AGREEMENT This SOLID WASTE DELIVERY AGREEMENT (this "Agreement"), dated as of , 19_, is entered into by and between the County of San Bernardino, a political subdivision of the State of California (the "COUNTY"), and the City of , a general law or charter city and political subdivision of the State of California, located within the County of San Bernardino (the "CITY"). RECITALS: 1. The COUNTY operates the Disposal System (as defined below). 2. The COUNTY wishes to enter into an agreement with the CITY to accept all of the CITY'S Acceptable Waste (as defined below) in the Disposal System, and the CITY desires to deliver or caused to be delivered the Acceptable Waste generated within its boundaries to the Disposal System for the term and subject to the provisions of this Agreement (the "Participation Commitment"). 3. The parties wish to set forth the terms and conditions under which the CITY will be obligated to deliver or cause to be delivered Acceptable Waste to the Disposal System and the COUNTY will be obligated to accept such Acceptable Waste. 4. 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 and more predictable and reliable long-term disposal service. 5. The COUNTY has determined that the execution of this Agreement by the COUNTY 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. AGREEMENT: NOW THEREFORE, in consideration of the foregoing recitals and other good and valuable consideration, the receipt and adequacy of which is hereby acknowledged, the parties hereto hereby agree as follows. 1 103635.02 06/05/97 Section 1. DEFINED TERMS. As used in this Agreement, capitalized terms shall have the meanings set forth in Exhibit A. Section 2. TERM OF AGREEMENT. This Agreement shall be entered into as of the date first written above and shall continue for a period of twenty-five (25) years (the "Term"), except if earlier terminated pursuant to the terms of this Agreement. Section 3. COVENANTS AND AGREEMENTS OF THE CITY. 3.1 Delivery 'of Acceptable Waste. During the Term of this Agreement, the CITY shall, pursuant to and in conformity with the terms and conditions of this Agreement, deliver or cause to be delivered all Acceptable Waste to a Facility or Facilities within the Disposal System. 3.2 Development and Enforcement of a Solid Waste Program. Promptly upon the execution of this Agreement and during the Term, the CITY shall establish, implement and carry out a waste flow enforcement program which is sufficient to ensure compliance with its Participation Commitment. Such a program may include, to the extent necessary and appropriate in the circumstances, but shall not be limited to: - (a) Except as provided in Section 3.2(b) and subject to the provisions of Section 3.4 below, licensing, permitting and contracting with Commercial Haulers (on an exclusive or non-exclusive basis) for the delivery of Acceptable Waste to the COUNTY Facility [such Commercial Haulers would than beCITY Haulers]; (b) With respect to any Commercial Self Hauler hauling Acceptable Waste for itself and no other entity or person, CITY shall use its reasonable best efforts to cause such Commercial Self Haulers to deliver Acceptable Waste to the appropriate COUNTY Facility and shall not take any action to facilitate the disposal of such Acceptable Waste outside the Disposal System; (c) Taking such enforcement actions as may be reasonably necessary to ensure compliance with the Participation Commitment; and (d) To the extent such action is made necessary as a result of a Force Majeure Event or unenforceability of any provision hereof, such alternative action as may be necessary to effect the goals of this Agreement. 2 103635.02 06/05/97 3.3 Good Faith. The CITY shall use good faith and its best efforts to preserve, protect and defend its right and power to enter into, comply with, implement and enforce the provisions of this Agreement in accordance with the terms herewith against any challenge thereto, legal or otherwise (including any lawsuits by or against the CITY, whether as plaintiff or defendant), by any person (other than the COUNTY) based upon breach of Agreement, violation of law or any other theory. 3.4 Amendment and Adoption of City Disposal Agreements. (a) As soon as practicable, the CITY shall use its reasonable best efforts to adopt or amend any and all City Disposal Agreements if such adoption or amendment shall be necessary or required for the CITY to fully perform its obligations hereunder to direct the delivery of all Acceptable Waste to the Disposal System in accordance with the provisions of this Agreement. (b) During the Term, the CITY shall not enter into, issue, extend or adopt any City Disposal Agreement which is materially inconsistent with the provisions of this Agreement. (c) In the event that, despite the CITY's reasonable best efforts to do so, the CITY is unable within one hundred and twenty (120) days after the execution hereof to adopt or amend any City Disposal Agreement and such inability materially adversely affects the CITY's ability to fulfill its obligations hereunder, the CITY shall promptly notify the COUNTY in writing of such inability, describing the efforts undertaken by the CITY to so adopt or amend its City Disposal Agreements. Upon receipt of such notice (or upon the one hundred and twentieth (120th) day after the execution of this Agreement, if the COUNTY is entitled to receive such notice and the CITY fails to provide the notice required in this Section 3.4(c)), the COUNTY shall have ninety (90) days to determine if the COUNTY desires to terminate this Agreement. If the COUNTY elects to terminate this Agreement under the terms of this Section 3.4(c), it shall give written notice of such determination to the CITY within the ninety (90) day period provided for in this Section 3.4(c). In the event of the termination of this Agreement by the COUNTY under the terms of this Section: (i) Neither party shall have any rights against, or obligation to, the other, except to the extent arising from an event or events which occur prior to the date of termination. (ii) Notwithstanding any other provision of this Agreement, including Section 3.4(c)(i) above, in no 3 103635.02 06/05/97 event will the CITY obtain any right of indemnification from the COUNTY under the provisions of Section 7.1 (a)(i) of this Agreement. 3.5 Disposal Facilities: Material Recovery Facilities. Except as provided in this Section 3.5, the CITY shall not own or operate, either directly or indirectly, or utilize any Facility for the handling, processing or disposal of the CITY's Acceptable Waste. Notwithstanding the forgoing, the CITY may own, operate or utilize any MRF for the handling or processing, but not disposal, of Solid Waste provided that the City comply with each of the following covenants: (a) Qualification. Any Solid Waste which is diverted from Disposal System and handled or processed by the MRF must qualify under the terms of Public Resources Code section 41780, for consideration in meeting the required 25/50% reduction in the waste stream of the CITY or must not be capable of being disposed of in a Class III Solid Waste landfill. (b) Delivery of Residue. Except as provided in Exhibit S, all residual derived from CITY's Solid Waste from such a MRF that is Acceptable Waste shall be delivered to the Disposal System, and the COUNTY shall treat such Acceptable Waste as being received from the CITY pursuant to the terms of this Agreement, even if said Acceptable Waste is directly delivered to the Disposal System by the entity operating such MRF. (c) Delivery of Inert Waste. Nothing in this Section 35 shall in any way adversely affect the CITY or any entity operating a MRF from delivering inert waste to an appropriate inert-only waste facility, provided that such inert waste is acceptable at such facility and that the COUNTY has not offered to accept such inert waste at a fee equal to or lower than that of the inert-only waste facility. (d) Disposal Agreements. As soon as practicable, the CITY shall use its best efforts to amend any ana all City Disposal Agreements with or relating to each such MRF if such amendment is necessary for the CITY to comply with any of the provisions of this Section 3.. 3.6 Self-Haulers. The CITY shall use its reasonable best efforts to encourage the use of the Disposal System by Self-Haulers (such as by providing information to the CITY residents that indicates that they are entitled and encouraged to use the Disposal System as a result of the CITY's entering into this Agreement), and shall not take any action to facilitate the disposal of Self-Hauled Waste outside the Disposal System. 4 103635 02 06/05/97 3.7 Compliance with Applicable Laws. The CITY agrees to carry out and fulfill its responsibilities under this Agreement and Applicable Law so as to permit full and timely compliance by the COUNTY with all Applicable Laws and its covenants and agreements under this Agreement and with the State of California and other third parties. 3.8 Other Facilities. Subject to the exercise of its responsibilities under CEQA, the CITY agrees to cooperate with the COUNTY regarding the expansion of the COUNTY's Landfill Facility. 3.9 Hazardous Substances. The CITY shall not knowingly deliver or cause to be delivered Hazardous Substances to the Disposal System. The CITY covenants and warrants that it will require each CITYI Hauler and Commercial Self Hauler, in its agreement with such CITYI Hauler or Commercial Self Hauler, or by other appropriate means, to have a specific program in place for the detection and removal of Hazardous Substances from all Solid Waste and refuse to be delivered to the Disposal System, including Hazardous Substances generated in households. In the event that Hazardous Substances are delivered or caused to be delivered by the CITY to the Disposal System, but are not knowingly delivered or caused to be delivered by CITY, the CITY will not be in breach of this Agreement; however; (i) the CITY will continue to have whatever responsibility/liability it has for the such Hazardous Substances to the same extent it would have in the absence of this Agreement; and (ii) the indemnification of the CITY by the COUNTY provided for in Section 7.1 (a)(i) will not be applicable in regards to any action, claim or liability of any kind which flows from such Hazardous Substances. 3.10 County Conditions. Etc. The CITY acknowledges that the acceptance, handling, processing and disposal of its Acceptable Waste at the Disposal System shall be subject to all Applicable Laws and other conditions, rules, policies and procedures now existing or hereafter adopted by or on behalf of the COUNTY relating to the acceptance, handling, processing and disposal of Acceptable Waste at the Disposal System. Such conditions, rules, policies and procedures include the following. (a) No Hazardous Substances shall be accepted, handled, processed or disposed of at the Disposal System. (b) Subject to the terms of this Agreement, the CITY shall pay the Disposal Fee to the COUNTY pursuant to the policies established by the COUNTY from time to time for the payment of such Solid Waste disposal fees. 5 103635 02 06/05/97 (c) The COUNTY and the CITY shall each supply such information and reports regarding the origin of Solid Waste delivered to the Disposal System as may be required under Applicable Law. 3.11 Contrary Actions. The CITY hereby agrees not to take any action nor to fail to take any action that may render the CITY's performance of its obligations under this Agreement impossible or otherwise materially adversely affect the CITY's ability to properly perform its obligations under this Agreement. Nothing in this Section 3.11 shall preclude the CITY from taking any action required by any state, federal or other governmental agency (other than the CITY). Section 4. OBLIGATIONS OF THE COUNTY. 4.1. Obligation to Acceot Acceptable Waste. During the Term of this Agreement and subject to the terms hereof, the COUNTY shall be obligated to Accept all Acceptable Waste delivered or caused to be delivered by the CITY to a Facility or Facilities within the Disposal System. The Facility to which Acceptable Waste shall be delivered or be caused to be delivered by CITY, and at which COUNTY shall be obligated to Accept such Acceptable Waste, is identified on the attached Exhibit B. 4.2. Full Facilities. (a) In the event that, for any reason whatsoever, any Disposal System Facility utilized by the CITY for the delivery of any part of its Acceptable Waste has insufficient daily permitted capacity to service the needs of the CITY for thirty (30) consecutive days (a "Full Facility"), then the COUNTY shall provide prompt written notice (an "Unavailability Notice") to the CITY: (i) describing the Facility which has become a Full Facility; and (ii) designating the next closest Facility in the Disposal System, if any, which has sufficient daily permitted capacity, if necessary, for the acceptance of the CITY's Acceptable Waste in the immediate future (the "Designated Facility"). (b) Within thirty (30) days of receipt of an Unavailability Notice, the CITY shall notify the COUNTY, in writing, of its unwillingness to deliver Acceptable Waste to the Designated Facility. If such written notice is not 6 103635.02 06/05/97 delivered, the CITY shall deliver, or cause to be delivered, the CITY's Acceptable Waste to such Designated Facility. (c) If the CITY delivers its written notice indicating its unwillingness to deliver Acceptable Waste to the Designated Facility, ~ the CITY and the COUNTY shall meet and agree on a mutually acceptable course of action. (d) If the CITY and the COUNTY are unable to agree within ninety (90) days of receipt of such Unavailability Notice (the "Meet and Confer Period"), the CITY may elect in writing to terminate this Agreement.. If the CITY elects in writing to terminate this Agreement, the date of termination shall be no sooner than thirty (30) days and no later than ninety (90) days from the end of the ninety (90) day Meet and Confer Period, unless the parties mutually agree to a different date of termination. If the CITY elects in writing to termination this Agreement, the CITY shall no longer be entitled to receive the Expense Reduction Payment provided for in Section 5.2 of this Agreement with respect to any Acceptable Waste delivered or caused to be delivered by CITY after end of the ninety (90) day Meet and Confer Period. (e) During the Meet and Confer Period the COUNTY shall have the right to match or better (after giving effect to the rebates to CITY under this Agreement) any QQ.lli!. ~ offer (including the cost of delivery and tipping fees) presented by the CITY to the COUNTY during the Meet and Confer Period. The determination of whether the COUNTY has matched or bettered any bona fide offer shall be made using the same criteria set forth in Section 8.2(b) of this Agreement; the resolution of any dispute with respect to the terms of a bona fide offer, whether the COUNTY has matched or bettered such bona fide offer and/or whether the CITY has the right to terminate this Agreement as provided in this Section 4.2 shall be made pursuant to the procedure set forth in Section 8.2(c). If the COUNTY matches or betters any bona fide offer than Section 5 of this Agreement, relating the Disposal Fee, shall be deemed, effective as of the end of the Meet and Confer Period, to have been amended as necessary to give effect to the COUNTY's matching or bettering of the bona fide offer. (f) If, (i) the COUNTY has not matched or bettered the terms of such QQ.lli!. fide offer, as provided in (e) above, and (ii) the CITY has not elected, in writing, to terminate this Agreement at the end of the Meet and Confer Period as provided in (d) above, then the CITY will be deemed to have continued this Agreement and to have agreed to deliver the CITY's Acceptable Waste to such Designated Facility. 7 103635.02 06/05/97 (g) This Agreement shall terminate immediately upon the CITY's receipt of an Unavailability Notice from the COUNTY, stating that no Facility within the Disposal System has sufficient daily permitted capacity for the acceptance of the CITY's Acceptable Waste in the immediate future. (h) Notwithstanding any other provision of this Agreement, the COUNTY hereby agrees to use its best efforts to provide Facilities to permit the COUNTY to continue to accept Acceptable Waste in the Disposal System as contemplated by this Agreement ,including, without limitation, affording the CITY such priority as may reasonably be necessary to permit CITY to continue to dispose of its Acceptable Waste in the Disposal System as contemplated hereby. (i) In any event, the CITY shall have no right to bring an action of any kind, in law or equity, seeking damages or specific performance respecting the termination of this Agreement pursuant to Section 4.2 hereof but shall have the right to the full benefit of the indemnity provided by COUNTY to CITY, as set forth in Section 7.1 hereof which provision shall survive such termination of this Agreement. 4.3. Alternative Means. If any event or circumstance (including a Force Majeure Event) impairs or precludes the COUNTY from complying with its material obligations under this Agreement by the means or methods then being employed by the COUNTY, then the COUNTY shall use its reasonable best efforts to implement alternative or substitute means and methods to enable it to lawfully comply with its material obligations under this Agreement. 4.4. Unincorporated Areas. Nothing in this Agreement shall prohibit or limit the right of COUNTY to accept Solid Waste generated within the unincorporated portions of the COUNTY for handling, processing or disposal in the Disposal System, regardless of whether the user of the Disposal System has a Participation Agreement with the COUNTY. The parties acknowledge that the Disposal Fee set forth herein is premised on the assumption that the COUNTY continues to receive an amount of Solid Waste in its Disposal System sufficient to allow for efficient operations and has the flexibility to accept any amount of in-county generated Solid Waste as the COUNTY deems necessary. 4.5. Waste From Outside the County. Nothing in this Agreement shall prohibit or limit the right of COUNTY to accept Solid Waste generated outside of the COUNTY for handling, processing or disposal in the Disposal System, provided that the COUNTY will not provide any such management, handling, processing and/or disposal services for Solid Waste generated outside of the COUNTY (a) if such actions would have a material adverse effect on the COUNTY'S ability to meet its obligations to 8 103635.02 06/05/97 the CITY under this Agreement, and (b) until the COUNTY has notified the City Committee of such transaction. 4.6. Contrary Actions. The COUNTY hereby agrees not to take any action nor to fail to take any action that may render the COUNTY's performance of its obligations under this Agreement impossible or otherwise materially adversely affect the COUNTY's ability to properly perform its obligations under this Agreement. Nothing in this Section 4.6 shall preclude the COUNTY from taking any action required by any state, federal or other governmental agency (other than the COUNTY). 4.7. Compliance with Applicable Laws. The COUNTY agrees to carry out and fulfill its responsibilities under this Agreement and Applicable Law so as to permit full and timely compliance by the CITY with all Applicable Laws and its covenants and agreements under this Agreement and with the State of California and other third parties. Section 5. DISPOSAL FEE. 5.1. Disposal Fee. The disposal fee to be charged to CITY for Acceptable Waste delivered or caused to be delivered by the CITY to the Disposal System, which Acceptable Waste is Accepted for disposal by the COUNTY, shall be the County Established Disposal Fee. Such County Established Disposal Fee shall be determined as described in the definition thereof, provided, however, that the City Committee shall have had an opportunity to review and comment on the establishment of such County Established Disposal Fee and each of components thereof. 5.2. Commitment. Return of Portion of Disposal Fee for Waste Flow (a) In consideration of the commitment by the CITY to deliver its Acceptable Waste to the Disposal System pursuant to this Agreement, the COUNTY agrees to return to the CITY the amount of Three Dollars ($3) per Ton ["Expense Reduction Payment"] (as adjusted pursuant to Section 5.2(b) hereof) of the County Established Disposal Fee paid by the CITY (or by a CITY Hauler relating to the CITY's Acceptable Waste collected and disposed of) to the COUNTY. (b) The Three Dollar $3 Expense Reduction Payment provided for in Section 5.2(a) hereof shall be adjusted (upward or downward) annually on each anniversary date hereof in an amount equal to the percentage increase or decrease in the County Established Disposal Fee in effect on such date as 9 103635.02 06/05/97 compared with the County Established Disposal Fee on the preceding anniversary date. (c) Such Expense Reduction Payment shall be paid to the CITY quarterly in arrears within sixty (60) days of the end of each calendar quarter. (d) The Expense Reduction Payment provided for in this Section 5.2 relates only to Acceptable Waste delivered by any CITY Hauler (including the CITY) to the Disposal System which is Accepted for disposal, and does not apply to other waste generated within the CITY which is Self-Hauled to the Disposal System. The Expense Reduction Payement reflects the reduced cost of providing Solid Waste handling services for the CITY's Acceptable Waste delivered to the Disposal System by a CITY Hauler, because the Participation Commitment contained in this Agreement allows the COUNTY to better plan for the resources necessary to provide the handling, processing and disposal capacity and operational assistance necessary to accommodate the Solid Waste flow and, additionally, to better plan the acquisition and financing of any necessary equipment or other capital costs relating to the handling, processing and disposing of Solid Waste into the Disposal System. Section 6. FORCE MAJEURE. 6.1. Occurrence of Force Maieure Event: Notice. If the occurrence of a Force Majeure Event renders any party hereto wholly or partially unable to carry out its material obligations under this Agreement (after reasonable diligence on the part of the affected party to correct or mitigate such event), such affected party shall give to the unaffected party prompt written notice (a "Force Majeure Notice") of the Force Majeure Event with a description of the circumstances surrounding such Force Majeure Event. UPO[l delivery of the Force Majeure Notice, the obligations of the affected party shall be suspended during the continuance of such Force Majeure Event, but only to the extent that such obligations are affected by the Force Majeure Event; provided. however, that financial inability of either party hereto to perform its obligations hereunder shall not be deemed to be a Force Majeure Event. 6.2. Obligation to Resume Obligations. After the delivery of the Force Majeure Notice, the party so excused from performance during the occurrence of such Force Majeure Event shall promptly, diligently and in good faith take all reasonable actions required to enable it to commence or resume performance of its obligations under this Agreement. Without limiting the generality of the foregoing, such affected party shall take all actions necessary to obtain any temporary restraining orders, preliminary or permanent injunctions, approvals, licenses or permits needed to 10 103635.02 06/05/97 enable such affected party to commence or resume performance of its obligations under this Agreement as promptly as is reasonably possible. 6.3. Obligation to Notify. After the delivery of the Force Majeure Notice, the party so excused from performance during the occurrence of such Force Majeure Event shall keep the other party notified and informed of all actions taken by such affected party pursuant to Section 6.2 above and shall allow such other party to participate in all such actions if such other party so elects and if such participation is permissible under Applicable Law. Section 7. INDEMNIFICATION AND INSURANCE. 7.1. Indemnification. (a) County Indemnity. The COUNTY shall indemnify, save and hold harmless the CITY from and against (i) any claims asserted against the CITY for closure, post-closure or remediation activities required under Applicable Law at any Facility in the Disposal System, to the extent arising from any Acceptable Waste disposed by the CITY or any CITY Hauler at such Facility; (ii) any claims, liabilities, damages, costs or expenses arising from any breach of this Agreement by the COUNTY; and (iii) any personal injury or property damage arising directly or indirectly to the CITY or any CITY Hauler as a result of the COUNTY's (or its contract operator's) actions or omissions relating to the delivery of the CITY's Acceptable Waste to the Disposal System by the CITY or the affected CITY Hauler, as the case may be. The COUNTY'S indemnification obligations under this Section 7.1 (a) shall survive termination of this Agreement, except: (i) to the extent that this Agreement is terminated based on a breach hereof by the CITY.; (ii) as otherwise provided in this Agreement. (b) City Indemnity. The CITY shall indemnify, save and hold harmless the COUNTY from and against any claims, liabilities, damages, costs or expenses asserted against or incurred by the COUNTY arising from (i) any breach of this Agreement by the CITY (including without limitation, regarding the CITY'S Participation Commitment); and (ii) any personal injury or property damage arising, directly or indirectly, from the delivery by the CITY or any CITY Hauler of the CITY's Acceptable Waste to the Disposal System. 7.2. Insurance. Without in any way affecting the indemnity provided in Section 7.1(b), above, and in addition thereto, the CITY shall secure and maintain (and require the CITY Hauler, if any, to secure and maintain),throughout the term of the Agreement the following types of insurance with limits as shown (as used in 11 103635.02 06/05/97 this Section 7.2, "Insured" shall refer to the CITY and/or the CITY Hauler, as the case may be): Workers' Compensation- A program of Workers' Compensation Insurance or a state-approved Self-Insurance Program in an amount and form to meet all applicable requirements of the Labor Code of the State of California, including Employer's Liability with $250,000 limits, covering all persons providing services on behalf of the CITY and all risks to such persons under this Agreement. Comprehensive General and Automobile Liability Insurance- This coverage to include the contractual Agreementlliability coverage under this Agreement and automobile liability coverage for owned, hired and non-owned vehicles. The policy shall have combined single limits for bodily injury and property damage of not less than one million dollars ($1,000,000.00). Additional Named Insured- All policies, except for the Workers' Compensation, Errors and Omissions and Professional Liability policies shall contain additional endorsements naming the County and its officers, employees, agehts and volunteers as additional named insured with respect to liabilities arising out of the performance of services hereunder. Waiver of Subrogation Rights- Insured shall require the carriers of the above required coverages to waive all rights of subrogation against the County, its officers, employees, agents, and volunteers. Policies Primary and Non-Contributory- All policies required above are to be primary and non-contributory with any insurance or self-insurance programs carried or administered by the County. Proof of Coverage- CITY shall immediately furnish certificates of insurance to the County's Service Coordinator, evidencing the insurance coverage, including endorsements, above required prior to the commencement of performance of services hereunder, which certificates shall provide that such insurance shall not be terminated or expire without thirty (30) days written notice to the COUNTY, and the Insured shall maintain such insurance from the time the Insured commences performance of services hereunder until the completion of such services. Within sixty (60) days of the commencement of this Agreement, the CITY shall furnish certified copies of the policies and all endorsements. 12 103635.02 06/05/97 Insurance Review- The above insurance requirements are subject to annual review by the County, with the results of such review to be provided to CITY on or before the anniversary date of this Agreement. The County's Risk Manager is authorized, but not required, to reduce or waive any of the above insurance requirements whenever the Risk Manager determines that any of the above insurance is not available, is unreasonably priced, or is not needed to protect the interests of the County. In additional, if the Risk Manager determines at any annual review that heretofore unreasonably priced or unavailable types of insurance coverage or coverage limits become reasonably priced, or is not needed to protect the interests of the County. In addition, if the risk manager determines at any annual review that heretofore unreasonably priced or unavailable types of insurance coverage or coverage limits become reasonably priced or available, the Risk manager is authorized, but not required, to change the above insurance requirements to require additional types of insurance coverage or higher coverage limits, provided that any such change is reasonable in light of past claims against the County, inflation, or any other item reasonably related to the County's risk. Any such reduction or waiver for the entire term of the Agreement and any change requiring additional types of insurance coverage or higher coverge limits must be made by amendment to this Agreement. CITY agrees to execute any such amendment within thirty (30) days of receipt. The Insured shall also carry such other insurance as may be required by law. Section 8. BREACH, ENFORCEMENT AND TERMINATION. 8.1. Remedies for Breach. (a) In the event that (i) a party hereto (the "Breaching Party") breaches any of its obligations under this Agreement and such breach continues for sixty (60) days after written notice (the "Breach Notice") by the other party hereto (the "Non-Breaching Party") of such breach and such breach is not excused by a Force Majeure Event, or (b) any representation made by such Breaching Party herein is untrue in any material respect at the time that such representation was made (any of such events being a "Breach"), the Non-Breaching Party shall have the right to bring any action or actions at law or in equity (including an action or actions for injunctive relief, mandamus and specific performance) for damages or to enforce the payment of any amounts due by the Breaching Party to the Non-Breaching Party or the performance of any obligations to be performed by the Breaching Party hereunder. Except as otherwise provided in Sections 8.2 and 8.3 below, neither party shall have the right to terminate this Agreement due to a Breach of this Agreement. 13 103635.02 06/05/97 (b) As used herein, "a Breach of a material obligation" includes, without limit: Ii) By the COUNTY: (A) Non acceptance of Acceptable Waste in violation of the terms of this Agreement. (B) Non payment of Expense Reduction Payment in violation of the terms of this Agreement. IC) Failure to provide indemnity in violation of the terms of this Agreement. Iii) By the CITY: (A) Non delivery of Acceptable Waste in violation of the terms of thisAgreement. (B) Failure to provide indemnity in violation of the terms of this Agreement. 8.2. Rights of Termination by the City. (a) The CITY shall have no right to terminate this Agreement due to a Breach by the COUNTY described in Section 8.1 hereof, unless the Breach is of a material obligation and: (i) The CITY shall have delivered the Breach Notice to the COUNTY, describing the nature of the Breach, stating that the Breach is material, and the Breach shall not have been cured within the time period set forth in the Breach Notice, and, further the CITY shall have delivered a written notice to the County ("Termination Notice") stating that the CITY will exercise its right to terminate this Agreement as a result of such material Breach 14 103635.02 06/05/97 unless such Breach is corrected within a reasonable period of time not more than sixty (60) days from the COUNTY's receipt of such Termination Notice, and the COUNTY shall not have corrected or diligently taken steps to correct such material Breach within such reasonable period of time; provided, however, that the CITY shall not have the right to terminate this Agreement, and the COUNTY shall have such additional time as is necessary to cure such material Breach, if such material Breach is capable of being cured by the COUNTY and the COUNTY is diligently pursuing a cure during such additional time; and (ii) The COUNTY shall have not challenged by appropriate legal or administrative proceedings the CITY's assertion that the COUNTY is in material Breach of this Agreement within such reasonable period of time from the COUNTY'S receipt of the Termination Notice described in the immediately preceding clause. (b) In the event that the CITY receives a written bona ~ offer by an unrelated third party to the CITY for the disposal of the CITY's Acceptable Waste at an alternative disposal facility, then the CITY may terminate this Agreement provided that each of the following requirements is satisfied: (i) that the County Established Disposal Fee, less the Expense Reduction Payment provided to the CITY pursuant to Section 5.2 hereof, is greater than 110% of the Alternative System Disposal Fee available to the CITY for the disposal of its Acceptable Waste at the alternative disposal facility for a period of time greater than five (5) years [the "Effective Period of the Alternative System Disposal Fee"].; (ii) that the other terms and conditions of the written bona fide offer are no more onerous or restrictive on the CITY than those contained in this Agreement; (iii) that the CITY delivers to the COUNTY a written notice of its intention to terminate this Agreement pursuant to the terms of this Section 8.2(b) ["Section 8.2(b) Notice"], setting out its intended date of termination, and having attached a copy of the signed QQlli!. 15 103635.02 06/05/97 reasonable period of time; provided however. that the COUNTY shall not have the right to terminate this Agreement, and the CITY shall have such additional time as is necessary to cure such material Breach, if such material Breach is capable of being cured by the CITY and the CITY is diligently pursuing a cure during such additional time; and (b) The CITY shall have not challenged by appropriate legal or administrative proceedings the COUNTY's assertion that the CITY is in material Breach of this Agreement within such reasonable period of time from the CITY'S receipt of the Termination Notice described in the immediately preceding clause. 8.4. Waiver. No action or failure to act of the COUNTY or the CITY under this Agreement shall constitute a waiver by either party of the other party's compliance with any term or provision of this Agreement. No course of dealing or delay by the COUNTY or the CITY in exercising any right, power or remedy under this Agreement shall operate as a waiver thereof or otherwise prejudice such party's rights, powers and remedies. No single or partial exercise of (or failure to exercise) any right, power or remedy of the COUNTY or the CITY under this Agreement shall preclude any other or further exercise thereof of the exercise of any other right, power or remedy. The rights and remedies provided herein are cumulative and not exclusive of each other or of any rights or remedies which any party would otherwise have. Section 9. MORE BENEFICIAL PROVISIONS; SHARING OF COST SAVINGS. 9.1. Other Users Within the County. If, after the execution of Agreement, another municipal user of the Disposal System which is located within the COUNTY negotiates a more advantageous agreement for the disposal of Solid Waste generated in the COUNTY by such user, other than pursuant to provisions similar to Sections 4.2 and 8.2(b), the COUNTY will, if reasonably possible, amend this Agreement at the request of the CITY to include the same, more favorable clauses of such agreement, to the extent applicable and provided that such amendment shall also include any more onerous terms. 9.2. Other Users Outside the County. If, after the execution of Agreement, another municipal user of the Disposal System which is located outside of the COUNTY negotiates a more advantageous agreement for the disposal of Solid Waste generated outside the COUNTY by such user, the COUNTY shall confer with the CITY in good faith to determine the appropriate share, if any, of any costs savings to . the Disposal System which should inure to the benefit of the CITY; provided, however, that in the absence of an agreement between the parties with respect to such determination, the COUNTY shall, in good faith, independently determine such appropriate share of any such cost savings which should inure to the benefit of the 17 103635.02 06/05/97 CITY. Nothing in this Section shall be deemed to permit the COUNTY to enter into any such agreement that would reasonably be anticipated to materially adversely affect the COUNTY's ability to provided the necessary Disposal System capacity for the COUNTY to meet its obligations set forth in this Agreement. Section 10. COORDINATION AND PARTICIPATION. 10.1. Service Coordinator. Thirty (30) days prior to the expected commencement date of the delivery of Acceptable Waste by the CITY to a Facility in the Disposal System, the COUNTY and the CITY shall each designate in writing 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. 10.2. City Committee. The COUNTY shall form a committee comprised of a representative of all CITIES executing a Solid Waste Delivery Agreement, including a representative of the CITY (the "City Committee"), to meet periodically in order to consider and make recommendations to the COUNTY with respect to operational and technical issues relating to the operation of the Facilities comprising the Disposal System and the establishment of the County Established Disposal Fee, including, without limitation, review of any and all permitting activities necessary to ensure continued capacity within the Disposal System for the COUNTY to reasonably meet its obligations as provided in this Agreement. Notwithstanding the foregoing, in the event that more than five (5) cities have executed Participation Agreements, the City Committee shall comprise 5 members elected by the cities, each city having executed a Participation Agreement having 1 vote for each five year term of such Participation Agreement. 10.3. Exchange of Information. The parties hereto shall exchange such information as necessary to allow each party to perform its obligations hereunder. Without limiting the forgoing: (a) Increases of Acceptable Waste. On or before March 1 of each year, and any other appropriate time during the year, the CITY shall inform the COUNTY in writing of any anticipated increase or decrease, of more than five per cent (5%), in the Acceptable Waste to be delivered to the Disposal System during current fiscal year and in the next fiscal year and the reason for such anticipated change. The CITY hereby informs COUNTY that on as of the date of the execution of this Agreement, it currently anticipates that it will deliver to the Disposal System approximately _ Tons per day of Acceptable Waste. 18 103635.02 06/05/97 (b) Change in Disposal System. On or before March 1 of each year, and at any other appropriate time during the year, the COUNTY shall inform the CITY, in writing, of any anticipated change expected to take place during the current fiscal year or in the next fiscal year relating to the composition or operation of the Disposal System which will have a significant effect on the CITY's or any CITY Hauler's use of the Disposal System. For example, and not by means of limitation, the COUNTY shall inform the CITY of the impending closure of any Facility used by the CITY or any CITY Hauler, the opening or expansion of a new Facility used or likely to by used by the CITY or a CITY Hauler, or a major change in the manner of accepting, handling, processing and/or disposing of Acceptable Waste. Section 11. REPRESENTATIONS AND WARRANTIES OF THE CITY. The CITY hereby represents and warrants as follows: 11.1. Power and Authority. The CITY is a general law or charter city validly existing under the laws of the State of California and has the power, authority and ability to deliver or cause the delivery of Acceptable Waste to the Disposal System and to perform its obligations under this Agreement. 11.2. Execution and Delivery. The execution, delivery and performance by the CITY of this Agreement has been duly authorized by all necessary governmental or other action, and has been executed and delivered by a duly authorized representative of the CITY. 11.3. No Conflict. Except as listed on Schedule 11.3 hereto, neither the execution and delivery of this Agreement nor the compliance by the CITY with the terms hereof will result in a breach of or violation of, or default under, the terms or conditions of any mortgage, indenture, lease, Agreement or other agreement or instrument under which the CITY is a party or is bound or affected. 11.4. Litigation. Except as set forth on Schedule 11.4 hereto, there are no actions (including, without limitation, derivative actions), suits, arbitrations, governmental or other proceedings pending or, to the knowledge of the CITY, threatened against or affecting the CITY at law or in equity, which, if adversely determined, would have a material adverse effect on validity or enforceability of this Agreement or any other agreement or instrument to be entered into by the CITY in connection with this Agreement or the transactions contemplated hereby, or which would materially and adversely affect the performance by the CITY of its obligations hereunder or under any such other agreement or instrument. 19 103635.02 06/05/97 Section 12. REPRESENTATIONS AND WARRANTIES OF THE COUNTY. The COUNTY hereby represents and warrants as follows. 12.1. Power and Authority. The COUNTY is a political subdivision of the State of California validly existing under the laws of the State of California and has the power, authority and ability to accept the delivery of Acceptable Waste at the Disposal System and to perform its obligations under this Agreement. 12.2. Execution and Delivery. The execution, delivery and performance by the COUNTY of this Agreement has been duly authorized by all neces- sary governmental or other action, and has been executed and delivered by a duly authorized representative of the COUNTY. 12.3. No Conflict. Except as listed on Schedule 12.3 hereto, neither the execution and delivery of this Agreement nor the compliance by the COUNTY with the terms hereof will result in a breach of or violation of, or default under, the terms or conditions of any mortgage, indenture, lease, Agreement or other agreement or instrument under which the COUNTY is a party or is bound or affected. 12.4. Litigation. Except as set forth on Schedule 12.4 hereto, there are no actions (including, without limitation, derivative actions), suits, arbitrations, governmental or other proceedings pending or, to the knowledge of the COUNTY, threatened against or affecting the COUNTY at law or in equity, which, if adversely determined, would have a material adverse effect on validity or enforceability of this Agreement or any other agreement or instrument to be entered into by the COUNTY in connection with this Agreement or the transactions contemplated hereby, or which would materially and adversely affect the performance by the COUNTY of its obligations hereunder or under any such other agreement or instrument. Section 13. MISCELLANEOUS. 13.1. Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of California applicable to Agreements made and to be performed entirely within that State. 13.2. Jury Trial Waiver. Forum. The CITY and the COUNTY hereby waive their respective right to trial by jury of any cause of action, claim, counterclaim or cross-complaint in any action, proceeding and/or hearing brought by either the CITY against COUNTY or by COUNTY against the CITY on any matter whatsoever arising out of, or in any way connected with, this Agreement, the relationship of CITY and COUNTY, or any claim of injury or damage, or the 20 103635.02 06/05/97 enforcement of any remedy under any law, statute, or regulation, emergency or otherwise, now or hereafter in effect. It is the express intention of the parties that all legal actions and proceedings related to this Agreement or to the Disposal System or to any rights or any relationship between the parties arising therefrom shall be solely and exclusively initiated and maintained in the state or federal courts located within the State of California having appropriate jurisdiction. 13.3. Notices.. Any notice, demand, request, consent, approval, or communication that either party desires or is required to give to the other party, or any other person shall be in writing and either served personally, sent by prepaid, first- class mail or faxed. Any such notice, demand, request, consent, approval, or communication that either party desires or is required to give to the other party shall be addressed, or faxed, to the other party at the address, or fax number, as the case may be, set forth below. Either party may change its address or fax number by notifying the other party of the change. Notice shall be deemed communicated: if mailed, two (2) COUNTY business days from the time of mailing if mailed as provided in this paragraph; or if faxed, on the day shown on the confirmation of the fax transmission. COUNTY's address: Waste System Division 222 West Hospitality Lane 2nd Floor San Bernardino, CA 92415-0017 FAX Number: (909) 386-8786 Attention: Agreement Administrator CITY's address: CITY OF Office of the City Manager FAX Number: ( Attention: ) 13.4. Non-Severability. In the event that a substantive provision of this Agreement shall be determined to be invalid, illegal, or unenforceable in any respect, the parties hereto shall negotiate in good faith such amendments, modifications, or supplements to this Agreement or such other appropriate action as shall, to the maximum extent practicable in light of such determination, implement and give effect to the intentions of the parties as reflected herein. If negotiations in good faith fail, the party(ies) losing all or part of its benefit of the bargain shall have the right to terminate the Agreement. 21 103635.02 06/05/97 13.5. Survival. The obligations of the parties which, by their nature, continue beyond the term of this Agreement, will survive the termination of this Agreement. Except as otherwise specifically set forth in this Agreement, the respective rights and obligations set forth in the following Sections shall survive termination of this Agreement: Sections 7,13.1, and 13.2 13.6. Entitlement to Subsequent Notices. No notice to, or demand on, the parties for notice of an event not herein legally required to be given shall in itself create the right in the parties to any other notice or demand in the same similar or other circumstance. 13.7. Entire Agreement. This Agreement embodies the entire Agreement and understanding between the parties relating to the subject matter hereto and may be modified only by written Agreement signed by all of the parties. 13.8. Time is of the Essence. Except as otherwise specifically provided, time is of the essence of each provision of this Agreement which specifies a time within which performance is to occur. In the absence of any specified time for performance, performance may be made within a reasonable time. 13.9. Covenants and Conditions. All provisions, whether covenants or conditions, on the part of either party shall be deemed to be both covenants and conditions. 13.10. Consent. Whenever consent or approval of either party is required, that party shall not unreasonably withhold such consent or approval. 13.11. Exhibits and Schedules. All exhibits and schedules referred to are attached to this Agreement and incorporated by reference. 13.12. Headings and Interpretation. The headings of the Sections of this Agreement are for convenience of reference only and shall not affect the meaning or construction of any provision hereof. This Agreement shall be interpreted as provided in Exhibit A. 13.13. Modifications. Amendments, modifications, and waivers to this Agreement shall be mutually agreed to in writing by the parties and approved by their respective legislative bodies. The parties acknowledge that this Agreement shall be amended as necessary in order to insure its compliance with the COUNTY INTEGRATED WASTE MANAGEMENT PLAN, as such Plan may be amended from time to time. 22 103635.02 06/05/97 13.14. Annexations. Successors and Assigns. This Agreement and the obligations of the CITY hereunder, including the Participation Commitment, shall extend to any territory annexed by the City and shall bind any successor or restructured Governmental Body which shall assume or succeed to the rights of the City under Applicable Law. 13.15. Title to Waste. As between the COUNTY and CITY, title to all Acceptable Waste delivered to the Disposal System shall not vest in County until such Acceptable Waste has been accepted by the County. 13.16. City Specific Provisions. Attached as Exhibit B to this Agreement is a set of terms and conditions related to this Agreement and binding upon the parties hereto and incorporated herein by reference. IN WITNESS WHEREOF, the parties executed this Agreement as of the date first written above. COUNTY OF SAN BERNARDINO: CITY: By Chairman, Board of Supervisors By Date Date SIGNED AND CERTIFIED THAT A COPY OF THIS DOCUMENT HAS BEEN DELIVERED TO THE CHAIRMAN OF THE BOARD EARLENE SPROAT, Clerk of the Board of Supervisors Clerk of the Board of the City of Date Date APPROVED AS TO LEGAL FORM: APPROVED AS TO LEGAL FORM: ALAN K. MARKS, County Counsel San Bernardino County, California CITY ATTORNEY, CITY OF By Deputy By 23 103635.02 06/05/97 103635.02 06/05/97 \ \ \ " \\ \ \ \ TABLE OF CONTENTS LIST OF EXHIBITS \ \ .\\ \ .\ \ \\ \ . \. 25 EXHIBIT A DEFINED TERMS "Acceptable Waste" means (i) all Solid Waste or refuse (as defined in Public Resources Code Section 40191) disposed by or collected from residential (single and multi-family), commercial, industrial, institutional or governmental (including municipal) facilities located within the boundaries of the CITY (as such boundaries now exist or are modified during the term of this Agreement), and (ii) the residual Solid Waste or refuse produced by all MRFs from all Solid Waste or refuse delivered or caused to be delivered by the CITY to such MRF pursuant to the terms of Section 3.5(b) hereof; provided, however, that Acceptable Waste shall not include any of the following: (a) Refuse which is not Solid Waste, including Hazardous Substances, liquid waste (as defined in San Bernardino County Code Section 33.0891 (a)), and nuclear or low level nuclear waste (as defined in Health and Safety Code section 25805); (b) Solid Waste which is not presently or at any time in the future acceptable for disposal at Class III landfills under any Applicable Law; (c) Solid Waste generated within the boundaries of the CITY which is Self Hauled or which is now or hereafter diverted through curb side recycling or composting programs or by private industry recycling or composting; provided, that such diverted refuse either (1) qualifies under the terms of Public Resources Code Section 41780 for consideration in meeting Othe required 25/50% reduction in the waste stream of the CITY, or (2) is not disposed of in a Class III Solid Waste landfill; (d) Solid Waste to the extent such waste is now or in the future not accepted for disposal in landfills comprising the Disposal System under San Bernardino County Ordinances or and filling policies, including due to the nature of the waste (e.g., tires, green waste, white goods or other discarded major household appliances) or due to the origination of such Solid Waste from outside of the County of San Bernardino; or (e) Solid Waste from a State institution, community service district, school district or other government entity located within the boundaries of the CITY if the CITY has no legal authority to require such governmental entity to have its Solid Waste collected by, and such 1 103637.02 06/04/97 , fide written offer, together with an audited statement of all of the costs and expenses comprising the Alternative System Disposal Fee associated with the utilization of the alternative disposal facility identified in the written bona fide offer (with such audited statement to be provided by a third party auditor reasonably acceptable to the COUNTY).; and (iv) that within ninety (90) days after its receipt of the written Section 8.2(b) Notice, the COUNTY fails to adjust either the County Established Disposal Fee or the Expense Reduction Payment or both so that, for a period of time which is equal to or greater than the Effective Period of the Alternative System Disposal Fee, in the aggregate the County Established Disposal Fee and the Expense Reduction Payment for the disposal of CITY's Acceptable Waste in the Disposal System is equal to or less than the Alternative System Disposal Fee. The CITY's Section 8.2(b) Notice shall be automatically rescinded if anyone or more of the requirements set forth in paragraph (i) through (iv), above, are not satisfied. (c) . Each of the parties agree that, in the event of a disagreement with respect to the terms of any QQng ~ offer, the determination of the Alternative System Disposal Fee or the right of the CITY to terminate this Agreement as provided in Section 8.2, the parties will submit to binding arbitration in accordance with the rules of the American Arbitration Association. Such arbitration shall be held in San Bernardino, California. 8.3. Rights of Termination by the County. The COUNTY shall have no right to terminate this Agreement due to a Breach by the CITY described in Section 8.1 hereof, unless the Breach is of a material obligation and: (a) The COUNTY shall have delivered the Breach Notice to the CITY, describing the nature of the Breach, stating that the Breach is material and the Breach shall not have been cured within the time period set forth in the Breach Notice and, further, that the COUNTY shall have delivered a written notice to the CITY ("Termination Notice") stating that the COUNTY will exercise its right to terminate this Agreement as a result of such material Breach unless such Breach is corrected within a reasonable period of time not more than sixty (60) days from the CITY's receipt of such Termination Notice, and the CITY shall not have corrected or diligently taken steps to correct such breach within such 16 103635.02 06/05/97 governmental entity refuses to have its Solid Waste collected by, the CITY or by a Commercial Hauler. "Accepted" waste or to "Accept" waste means, with respect to Acceptable Waste, the placement and cover of such Acceptable Waste by the COUNTY or its contractor. No action of any kind by the COUNTY or its contractor shall constitute any Hazardous Substance being Accepted by the COUNTY. "Agreement" means this Solid Waste Delivery Agreement between the CITY and the COUNTY, as the same may be amended or modified from time to time in accordance herewith. "Alternative System Disposal Fee" means the cost of delivering and disposing of the CITY's Acceptable Waste at the alternative disposal facility specified in the Section 8.2(b) Notice. This includes, without limit, the cost of construction and operation of the transfer station or other facility, if any, necessary or convenient to the utilization of such alternative disposal facility; all transportation costs associated with delivering the Acceptable Waste to the alternative disposal facility (including the acquisition costs of any required equipment and the fuel and other operation costs of same, together with the fully loaded personnel costs related to such transportation) which are in excess of the transportation costs associated with the delivery of Acceptable Waste to the Disposal System; and any disposal fees (including any local taxes, impact fees or host fees which are assessed as part of, or separately from, such disposal fees). "Applicable Law" means any Federal, State, county, city or other local law, regulation, rule, requirement, guideline, action, determination, order, ordinance, resolution, code or decree of any Governmental Body having jurisdiction at any time over, or in any way relating to, the siting, design, permitting, acquisition, construction, equipping, financing, ownership, possession, management, operation, maintenance, closure or post closure maintenance of the Disposal System or any Facility within the Disposal System,or the collection, transfer, handling, transportation or disposal of Acceptable Waste or Hazardous Substances or any other transaction or matter contemplated herein, including the California Integrated Waste Management Act of 1989 (Division 30 of the California Public Resources Code), the San Bernardino County Code, CERCLA, RCRA, CEQA, and any permit, license, approval, authorization, consent and entitlement of whatever kind and however described which is or may be required for the Disposal System or any Facility in the Disposal System under any Applicable Laws. "Breach" shall have the meaning set forth in Section 8.1 hereof. "Breach Notice" shall have the meaning set forth in Section 8.1 hereof. 2 103637.02 06/04/97 "Breaching Party" shall have the meaning set forth in Section 8.1 hereof. "CEQA" means the California Environmental Quality Act, codified at Cal. Pub. Res. Code Section 21000 et seq., and the regulations promulgated thereunder. "CERCLA" means the Comprehensive Environmental Responsibility Compensation and Liability Act, 42 U.S.C. Section 9601 et seq., and the regulations promulgated thereunder. "CITY" means the general law or charter city which is a party to this Agreement as set forth in the Preamble to the Agreement. "City Committee" shall have the meaning set forth in Section 10.2 hereof. "City Disposal Agreement(s)" means any franchise, contract, lease, loan agreement, indenture, resolution, ordinance, purchase contract, license, permit, or other agreement or obligation entered into or binding upon the CITY pertaining to, or affecting, the handling, hauling, transportation, collection or disposal of Solid Waste or refuse generated within the CITY. "CITY HAULER" means a Commercial Hauler with a City Disposal Agreement requiring the disposal of Acceptable Waste to the Disposal System, as well as the CITY itself to the extent Acceptable Waste is collected, transported and disposed of in the Disposal System by the CITY's municipal collection forces. . "Commercial Hauler" means any person who provides Acceptable Waste collection services within the CITY to third parties on a commercial basis, including the CITY if Acceptable Waste collection and transportation services are provided by the CITY's municipal collection forces. "Commercial Self Hauler" means any person: (i) engaged in a commercial enterprise other than the business of refuse collection or hauling: (ii) who provides for the collection, transportation and disposal of self generated Solid Waste which otherwise meets the definition of Acceptable Waste at a Solid Waste facility other than the CITY's MRF, if any; (iii) whose amount of self generated Solid Waste collected and disposed of is in excess of the quantities which would qualify the generator as a Self-Hauler under the applicable ordinances and regulations of the CITY; and (iv) who is therefore required by the applicable ordinances and regulations of the CITY to collect and transport such self generated Solid Waste pursuant to a license, permit, franchise or agreement with the CITY. 3 103637.02 06/04/97 "COUNTY" means the County of San Bernardino, a political subdivision of the State of California and a party to this Agreement. "County Established Disposal Fee" means the fee for the disposal of Acceptable Waste in the Disposal System set by the COUNTY Board of Supervisors as provided by Applicable Law, which fee comprises a portion that is based on a formulation contained in an agreement between the COUNTY and Norcal Waste Systems, Inc., a portion for the payment of certain Disposal System Obligations and a portion for the establishment of certain closure and other funds mandated by Applicable Law and other costs established by the COUNTY Board of Supervisors. Nothing in the Agreement, including, without limitation, the provision of Section 7.1, shall limit the COUNTY's ability to establish the County Established Disposal Fee as permitted by Applicable Law. "Designated Facility" shall have the meaning set forth in Section 4.2 hereof. "Disposal System" means all sanitary landfills and other Facilities now or at any time owned, leased, managed, operated by or under contract to the COUNTY for the acceptance, handling, processing and disposal of Acceptable Waste delivered by or on behalf of the CITY under this Agreement, including the Facilities listed on Schedule 1 attached hereto, and any expansion of any existing Facilities. "Disposal System Obligations" means any bonds, notes, certificates, agreements or other obligations issued or entered into by the COUNTY to finance the Disposal System or any capital improvement to the Disposal System. "Expense Reduction Payment" shall have the meaning set forth in Section 5.2(a) hereof. "Facility(ies)" means sanitary landfills and other Solid Waste transfer, transportation, storage, handling, processing and disposal facilities. "Force Majeure Event" means any act, event or condition, whether affecting the Disposal System, the COUNTY, the CITY or any of their respective haulers (including any CITY Hauler), contractors or suppliers to the extent that it materially and adversely affects the ability of the COUNTY or the CITY to perform its respective obligations under this Agreement (except for payment obligations), as long as such act, event or condition is beyond the reasonable control of such party and is not the result of the willful or negligent act, error or omission or failure to exercise reasonable diligence on the part of such party. Force Majeure Events may include, but shall not be limited to, the following: 4 103637.02 06/04/97 (i) acts of God, including landslide, lightening, earthquake, fire, explosion, flood, sabotage or similar occurrence, acts of a public enemy, extortion, war, blockade or insurrection, riot or civil disturbance; (ii) a change in Applicable Law; (iii) the failure of any Governmental Body or applicable private utility to provide and maintain utilities; (iv) the shortage of labor, services, materials or equipment due to a Force Majeure Event where the affected party is not able with reasonable diligence to obtain substitute labor, services, materials or equipment; or (vi) a public emergency or any condemnation or other taking by eminent domain of a Facility within the Disposal System or a Facility outside of the Disposal System and utilized by the COUNTY for its disposal capacity. "Force Majeure Notice" shall have the meaning set forth in Section 6.1 hereof. "Full Facility" shall have the meaning set forth in Section 4.2 hereof. "Governmental Body" means any Federal, State, county, city or regional legislative, executive, judicial or other governmental board, agency, authority, commission, administration, court or other official body, or any officer thereof acting within the scope of his or her authority. "Hazardous Substance(s)" means any petroleum, crude oil, asbestos or other substance, product, waste or other material of any nature whatsoever which is or becomes listed, regulated, or addressed pursuant to CERCLA; the Hazardous Materials Transportation Act, 49 U.S.C. Section 1801, et seq.; RCRA; the Toxic Substances Control Act, 15 U.S.C. Section 2601 et seq.; the Clean Water Act, 33 U.S.C. Section 1251, et seq.; the Hazardous Waste Control Act, California Health and Safety Code Section 25100, et seq.; the Hazardous Substance Account Act, California Health and Safety Code Section 25330, et seq.; the California Safe Drinking Water and Toxic Enforcement Act, California Health and Safety Code Section 25249.5, et seq.; California Health and Safety Code Section 25501 et seq. (Underground Storage of Hazardous Substances); the Hazardous Waste Management Act, California Health and Safety Code Section 25170.2, et seq.; California Health and Safety Code Section 25501, et seq. (Hazardous Materials Response Plans and Inventory); or the Porter-Cologne Water Quality Control Act, Water Code Section 13000, et seq., all as amended, or any other Applicable Law 5 103637.02 06/04/97 regulating, relating to or posing liability or standards of conduct concerning any hazardous, toxic or dangerous waste, substance or material, as now or at any time hereafter in effect. "MRF" means a material recovery facility operated, owned or utilized by the CITY for the handling or other processing of Solid Waste. "Non-Breaching Party" shall have the meaning set forth in Section 8.1 hereof. "Participation Commitment" shall have the meaning set forth in Recital 2 of the Agreement. "RCRA" means the Resource Conservation and Recovery Act, 42 U.S.C. Section 6901, et seq., and the regulations promulgated thereunder. "Self-Haulers" means individuals or entities: (i) not engaged in the business of refuse collection and hauling; (ii) who dispose of self generated Solid Waste which otherwise meets the definition of Acceptable Waste at a Solid Waste facility other than the CITY's MRF, if any; and (iii) whose amount of self generated Solid Waste collected and hauled does not exceed the limit provided by CITY ordinance and regulation such that a license, permit, franchise or agreement with CITY to haul such self generated Solid Waste would be required. "Self Hauled" means Solid Waste which otherwise meets the definition of Acceptable Waste which is disposed of by a Self-Hauler. "Service Coordinator" shall have the meaning set forth in Section 10.1 hereof. "Solid Waste" has the meaning as defined in Public Resources Code Section 40191. "Term" shall have the meaning set forth in Section 2 hereof. "Ton" means a short ton of 2,000 pounds. "Unavailability Notice" has the meaning as defined in Section 4.2(a) hereof. INTERPRETATION. In this Agreement, unless the context otherwise requires: 6 103637.02 06/04/97 1. Accounting Terms. All accounting terms used but not specifically defined herein shall be construed in accordance with, all accounting determinations hereunder to be made shall be prepared in accordance with generally acceptable accounting principles applied on a consistent basis. 1. ~. Except as otherwise specifically set forth herein, the following rules of interpretation shall apply to this Agreement: (a) . the singular includes the plural and the plural includes the singular; (b) "or" is not exclusive; (c) a reference to an agreement or other contract includes the exhibits and schedules thereto; (d) a reference to an agreement, instrument or document shall include such agreement, instrument or document as the same may be from time to time amended, modified, supplemented, replaced or extended in accordance with its terms; (e) a reference to a law includes any amendment or modification to such law; (f) a reference to a Person includes its permitted successors and permitted assigns; (g) the words "include," "includes" and "including" are not limiting; and (h) time is of the essence with respect to each and every provision hereof. 7 103637.02 06/04/97