HomeMy WebLinkAbout95-63 - Repealing Existing Chapter 12.63 in Its Entirety and Replacing It with A New Chapter 12.63•
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ORDINANCE NO. 95 -63
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY
OF NEWPORT BEACH REPEALING EXISTING CHAPTER
12.63 IN ITS ENTIRETY AND REPLACING IT WITH A
NEW CHAPTER 12.63
The City Council of the City of Newport Beach ordains as
follows:
SECTION 1: Ordinance 90 -37 adopting Chapter 12.63 of the
Newport Beach Municipal Code is hereby repealed in its entirety and
replaced with a new Chapter 12.63 to read as follows:
CHAPTER 12.63
SOLID WASTE MANAGEMENT
12.63.010 Purpose and Intent
12.63.020 Definitions
12.63.030 Franchise to Operator Required
12.63.040 Nonexclusive Franchise
12.63.050 Application for Franchise
12.63.060 Review of Application
12.63.070 Franchise Fees
12.63.080 Performance Deposit
12.63.090 Franchise Insurance
12.63.100 Indemnification
12.63.110 Collection and Containers
12.63.120 Franchise Term
12.63.125 Assignment
12.63.130 Termination
12.63.140 Exclusions
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12.63.150 Rights Reserved to City
12.63.010 Purpose and Intent. The City Council finds and
determines that it is necessary and appropriate to require
businesses that provide commercial solid waste handling services
within the City limits to obtain a franchise because:
A. The City has the authority to enact ordinances
regulating the collection of trash and garbage within its corporate
limits, including the right to gather and collect garbage itself,
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to grant exclusive or nonexclusive franchises to collect solid
waste, to regulate the activities of private collectors, or any
combination of these options.
B. State law requires the City to reduce the amount of
solid waste it sends to landfills by 25% by 1995 and by 50% by the
• year 2000. In September, 1990, the City conducted a waste
Characterization Study and subsequently adopted a Source Reduction
and Recycling Element (SRRE) in January, 1992, which details how
the City will meet its diversion goals. The City is required to
report to the State the amount of materials diverted from landfills
in compliance with State law.
C. In order to meet the requirements of State law,
including requirements for source reduction of solid waste stream,
diversion of solid waste from landfills and conservation of natural
resources, and provide protection to the City from possible
environmental liability, it is necessary to regulate the collection
of solid waste from residential and commercial premises through the
• requirements of a franchise.
D. The collection of solid waste generated within the
City is a vital public service and the storage, accumulation,
collection and disposal of solid waste and recyclables is a matter
of great public concern. Improper solid waste management would
subject the City to potential liability, damages and penalties,and
may create a public nuisance, air pollution, fire hazard, rat and
insect infestation and other problems affecting the public health,
and safety and welfare.
E. The placement of commercial refuse bins on streets
creates a potential for property damage, and personal injury as
well as City liability.
F. Nonexclusive franchises for the use of public
isstreets to provide commercial solid waste handling services are
necessary to protect the members of the public, private property
and avoid City liability. Nonexclusive franchises will promote
public health, safety and welfare by among other things promoting
permanence and stability among those businesses wishing to provide
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such service and accountability to the City for compliance with
current and future state mandates.
12.63.020 Definitions
For the purpose of this Chapter certain terms are defined
0 as follows:
(a) "City" shall mean the City of Newport Beach.
(b) "City Council" shall mean the City Council of the
City of Newport Beach.
(c) "City Manager," "General Services Director" and
"Administrative Service Director" shall mean the City Manager,
General Services Director and Administrative Services Director of
the City or their designee.
(d) "Collect" or "Collection" shall mean the operation
of gathering together and /or transporting by means of a motor
vehicle or other means, any solid waste or recyclable material.
(e) "Commercial Premises" shall mean all occupied real
• property in the City except property occupied by governmental
agencies which do not consent to their inclusion, and except
residential premises which receive solid waste collection services
using residential solid waste containers, and shall include without
limitation, multiple housing (including housing projects containing
or consisting of four or more units, whether apartment houses,
condominiums, or mixed condominiums and rental housing, and which
use commercial solid waste containers), wholesale or retail
establishments, restaurants, other food establishments, bars,
stores, shops, offices, mechanized manufacturing facilities,
repair, research and development or professional services, sports
or recreational facilities and construction and demolition sites.
(f) "Commercial Solid Waste Container" shall mean a
• state -of- the -art commercial refuse bin or refuse container with a
2, 3, 4, 6 or 8 cubic yard capacity, designed for mechanical pick-
up by collection vehicles and equipped with a lid, or where
appropriate for the premises being served, a 15, 35 or 40 cubic
yard roll -off body or compactor, and shall include other types of
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containers suitable for the storage and collection of solid waste
if approved in writing by the Director.
(g) "Commercial Solid Waste Handling Services" shall
mean the collection, transportation, storage, transfer, disposal or
processing of solid waste by private solid waste enterprises, and
• shall include, without limitation, the placement of commercial
solid waste containers on public property.
(h) "Container" shall mean. any vessel, tank, receptacle,
box or bin used or intended to be used in the storage or collection
of recyclable materials or in the process of recycling, or for the
purpose of holding solid waste for storage or collection.
(i) "Franchise" or "Franchise Agreement" shall mean the
right to provide commercial solid waste handling services to
commercial premises within all or any part of the City, granted by
the City Council pursuant to the City Charter and this Chapter.
(j) "Franchisee" shall mean the private solid waste
enterprise who provides commercial solid waste handling services
within the City under a franchise granted by the City Council.
0 (k) "Garbage" shall mean kitchen and table wastes, and
animal or vegetable wastes that attends or results from the
storage, preparation, cooking, or handling of food or edible
items.
(1) "Green Waste" shall mean lawn clippings, leaves,
weeds, and wood materials from trees and shrubs.
(m) "Hazardous Waste" shall mean and include waste
defined as hazardous by Health and Safety Code Section 25117: (1)
a waste or combination of wastes, which because of its quantity,
concentration, or physical, chemical or infectious characteristics
may either (a) cause or significantly contribute to an increase in
mortality or an increase in serious irreversible or incapacitating
reversible illness, or (b) pose a substantial present or potential
hazard to human health or environment when improperly treated,
stored, transported or disposed of, or otherwise managed; (2) a
waste which meets any of the criteria for the identification of a
hazardous waste adopted by the California Environmental Protection
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Agency's Division of Toxic Substances Control pursuant to Health
and Safety Code Section 25141. Hazardous waste includes extremely
and acutely hazardous waste, unless expressly provided otherwise.
(n) "Industrial Waste" shall mean solid waste
originating from mechanized manufacturing facilities, factories,
• refineries, construction and demolition projects, publicly operated
treatment works, or solid waste placed in commercial solid waste
containers excluding hazardous waste.
(o) "Person" shall mean an individual, firm,
partnership, corporation, joint venture, limited liability company,
or any other business entity.
(p) "Recycling Requirements" The term "recycling
requirements" shall mean the obligations imposed by or upon the
City pursuant to state law, ordinance, resolution, policy, plan or
program relative to recycling all, or a portion, of the solid waste
stream generated within the City including, without limitation,
State mandates to recycle twenty -five percent (25 %) of residential
• and commercial refuse by 1995 and fifty percent (5026) of
residential and commercial refuse by 2000, and the provision of
City- approved recycling services to all customers.
(q) "Rubbish" shall mean nonputrescible solid waste such
as ashes, paper, cardboard, yard waste, wood, glass, bedding,
crockery, plastics, ferrous and non - ferrous metals, rubber and
rubber by- products, textiles, inert products, and litter.
(r) "Solid Waste" shall mean all putrescible and
nonputrescible solid and semisolid wastes, generated in or upon,
related to the occupancy of, remaining in or emanating from
residential, commercial, industrial premises, including garbage,
trash, refuse, paper, rubbish, ashes, industrial wastes, green
waste, demolition and construction wastes, discarded home and
• industrial appliances, manure, vegetable or animal solid or
semisolid wastes, and other solid and semisolid wastes. This
excludes liquid wastes, abandoned vehicles, and hazardous,
biohazardous and biomedical wastes.
(s) "Solid Waste Enterprise" The term "solid waste
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enterprise" shall mean any individual, firm, partnership,
corporation, joint venture, limited liability company or other
business entity providing commercial solid waste handling services
in the City.
(t) "SRRE" shall mean the Source Reduction and
• Recycling Element of the Integrated Waste Management Document for
the City prepared and updated pursuant to the California Public
Resources Code.
(u) "State" shall mean the State of California.
(v) "Waste Characterization Study" The term "Waste
Characterization Study" shall mean the Waste Characterization Study
and /or the Source Reduction and Recycling Element adopted by the
City.
12.63.030 Franchise to Operate Required
No person shall provide commercial solid waste handling
services or conduct a solid waste enterprise in the City without
• having first been awarded a Franchise and entered into a Franchise
Agreement with the City. The Franchise Agreement shall include
terms and conditions for the commercial solid waste handling
services in the City. The Franchise shall be in addition to any
business license or permit otherwise required by City. All
Franchisees shall comply with all of the requirements of the City
Charter, the Ordinance granting the Franchise, the Franchise
Agreement and this Chapter.
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12.63.040 Nonexclusive Franchise.
Franchises shall be nonexclusive. No provision of this
Chapter shall be deemed to require or allow restricting the number
of franchises to one or to any particular number.
12.63.050 Application for Franchise.
Any person who intends to obtain a franchise pursuant to
this Chapter shall apply to the City by filing with the General
Services Director, a verified application containing the following
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information:
a. Name and address of applicant.
b. If the applicant is a partnership, corporation,
association, trust or other business entity, the names and
addresses of the owners and officers and their percentage of
ownership, if a corporation, the date and place of incorporation,
main offices, majority stock holders and names and addresses of
parent and subsidiary companies.
C. A list of all vehicles, including license plate
numbers and vehicle identification numbers, to be used in
connection with solid waste handling services.
d. Evidence that the applicant has or can provide all
required insurance and affirmation of indemnification.
e. Evidence that books and accounts of all revenue and
income arising out of its operations are kept in a manner which
conforms with generally accepted accounting principles.
f. A report of solid waste handling activities for the
prior calendar year to include tonnage collected and recycled in
separate categories.
g. Such further information as the director may
reasonably require to evaluate and process an application.
12.63.060 Review of Application.
Upon receiving an application, containing all the
information described in this Chapter which is both complete and in
a form acceptable to the General Services Director, the Director
shall process the application in accordance with the provisions of
this Chapter and Article XIII of Charter of the City of Newport
Beach.
12.63.070 Franchise Fees.
A. Franchisee shall pay quarterly to the City during
the term of the franchise a fixed percentage of the quarterly gross
receipts of the Franchisee derived from the Franchisee's solid
waste handling services within the City. The Franchisee fee shall
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be in the amounts and paid in the manner set forth in the Ordinance
granting the franchise.
B. Pursuant to Division 30, Part 3, Chapter 8 of the
Public Resources Code Section 41900 et seq., or any successor
provision, the Ordinance granting the franchise shall prescribe a
• specific percentage of the fee for preparing, adopting and
implementing an integrated waste management plan consistent with
the SRRE. That portion of the fee shall be separately accounted
for and shall be used only for the costs stated in Public Revenues
Code Section 41901 or any successor provision.
C. Franchise fees shall be due and payable on the
thirtieth day of the month following the end of each quarter. The
Franchisee shall pay the required franchise fee to the City's
Director of Administrative Services. Each payment shall be
accompanied by a written statement, verified by the Franchisee or
a duly authorized representative of the Franchisee, showing in such
form and detail as the Administrative Services Director may
• prescribe, the calculation of the franchise fee payable by the
Franchisee and such other information as may be required as
material to a determination of the amount due.
D. No statement filed under this Section shall be
conclusive as to the matters set forth in such statement, nor shall
the filing of such statement preclude the City from collecting by
appropriate action the sum that is actually due and payable.
E. The payment to the City by the Franchisee pursuant
to this chapter shall be in addition to any license fee or business
tax prescribed by the City for the same period.
12.63.080 Performance Deposit.
Franchisee shall, prior to the placement of any
• commercial solid waste container on public property, Provide City
with a performance bond, certificate of deposit, or other form of
security acceptable to the City, in the sum of three thousand
dollars ($3,000.00) to insure compliance with the duties and
obligations imposed by the provisions of this Chapter, regulations
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adopted by the City Manager, and the Franchise Agreement.
12.63.090 Franchise Insurance.
Each Franchisee shall provide at its own expense,
insurance as required in the Franchise Agreement.
is12.63.100 Indemnification.
Each Franchisee shall indemnify, defend and hold harmless
the City, City Council and each member thereof, its officers,
employees and agents from any liability or financial loss arising
from the operation of its franchise as required in the Franchise
Agreement.
12.63.110 Collection and Containers.
Franchisee shall comply with the Franchise Agreement and
the regulations adopted by the City Manager relating to the
frequency and hours of collection, the size, placement and care of
• containers and special collections.
12.63.120 Franchise Term.
Any franchise awarded pursuant to this Chapter shall be
for a term not to exceed ten (10) years. At any time within six
months prior to the expiration date of any franchise, a Franchisee
may submit a new application to extend the franchise term. The
City may extend a franchise for a term and upon such terms and
conditions as the City and the Franchisee may mutually agree.
Nothing contained the provisions of the Franchise Agreement or this
Chapter shall obligate the City to extend the term of any
franchise.
• 12.63.125 Assignment.
Franchisee shall not assign, sell, subcontract, transfer
or otherwise delegate its authority to perform any portion of the
solid waste handling services or obligations under the Franchise
without prior express written consent of the City Council. This
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prohibition includes any transfer of ownership or control of
Franchisee, or the conveyance of a majority of Franchisee's stock
to a new controlling interest.
12.63.130 Termination.
• any nonexc lusive A. The City Council shall have the right to terminate
franchise pursuant to this section.
B. A notice of intent to terminate a nonexclusive
franchise shall be personally delivered or mailed, at the
discretion of the General Services Director, to the Franchisee at
the Franchisee's address of record, shall state grounds for
suspension or termination and shall give the Franchisee notice of
the time, date and place of a hearing before the City Council,
which shall be convened no more than 60 days after the date of
notice, subject to continuance with the consent of the parties.
C. The hearing shall be conducted and closed, and
decision rendered thereon within 60 days after the date of the
• hearing.
D. The City Council shall have the right to terminate
or suspend any nonexclusive franchise agreement granted pursuant to
this Chapter if the Council finds, after hearing, that:
1. The Franchisee has failed to comply with, or to
do anything required of the Franchisee by this Chapter, or that
Franchisee has violated any provision of the Ordinance granting the
franchise, including, but without limitation, failure to timely pay
all Franchisee fees, or file required reports, or has violated any
provision of the Franchise Agreement or any federal, state or local
law or regulation applicable to Franchisees operations under the
franchise; or
2. Any provision of this Chapter or of the
• Franchise Agreement is repealed or becomes or is declared to be
invalid, and the City Council expressly finds that such provision
constitutes a material consideration to the grant or continuation
of such nonexclusive franchise.
E. The decision to suspend or terminate shall contain
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findings of fact, a determination of the issues presented and shall
be final and conclusive. Any suspension of a non - exclusive
franchise shall state specific conditions upon which the
nonexclusive franchise may be reinstated or terminated.
• 12.63.140 Exclusions.
A. Gardener's Exclusion. No provision of this Chapter
shall prevent a gardener, tree trimmer or person providing a
similar service from collecting yard waste, as an incidental
portion of providing such gardening, tree trimming or similar
service.
B. Commercial Recycler Exclusion for Source Separated
Recyclables.
1. No provisions of this Chapter shall prevent a
recycling business from contracting to collect source separated
recyclables at a commercial premise. "Source separated
recyclables" within the meaning of this Subsection shall mean
• recyclables which have been separated by the commercial business on
its premises from solid waste for the purpose of sale or donation,
which have not been mixed with or contain more than incidental or
minimal solid waste, and which do not have a negative market value.
This exclusion does not apply if the material collected is hauled
to a landfill or transfer station (as defined in Public Resources
Code Section 40200) for disposition. Any recycling business
qualifying for the exclusion shall meet all other requirements to
operate in the City, including, but not limited to, a business
license."
12.63.150 Rights Reserved to City.
A. There is hereby reserved to the City every right and
• power, and the exercise thereof, which is reserved or authorized by
any provision of any lawful ordinance or resolution of the City,
whether enacted before or after the effective date of this Chapter.
B. Neither the granting of any nonexclusive franchise
or any provision of any nonexclusive franchise shall constitute a
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waiver of or a bar to the exercise of any governmental right or
power of the City.
C. There is hereby expressly reserved to the City
Council the power and authority to amend any section of this
Chapter so as to require additional or greater standards on the
• part of the Franchisee.
SECTION 4: The City Council of the City of Newport Beach
finds that this Ordinance is categorically exempt under the
California Code of Regulations Section 15301 defined as "existing
operations and facilities" and Section 15308 defined as "actions by
regulatory agencies for protection of the environment." Use of
this classification is appropriate because this Ordinance does not
change or expand existing solid waste operations and facilities
within the City and because the Ordinance furthers and strengthens
the City diversion requirements under State law and the City's
Source Reduction and Recycling Element (SRRE) . The City Manager is
• authorized to execute and the City Clerk to file a Notice of
Exemption with the Orange County Clerk.
SECTION 5: That if any section, subsection, sentence
clause or phrase of this Ordinance is, for any reason, held to be
invalid or unconstitutional, such decision shall not affect the
validity or constitutionality of the remaining portions of this
Ordinance. The City Council hereby declares that it would have
passed this Ordinance, and each section, subsection, clause or
phrase hereof, irrespective of the fact that any one to more
sections, subsections, sentences clauses and phrases be declared
unconstitutional.
SECTION 6: The Mayor shall sign and the City Clerk shall
• attest to the passage of this ordinance. The City Clerk shall
cause the same to be published once in the official newspaper of
the City, and it shall be effective thirty (30) days after its
adoption.
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SECTION 7: This ordinance was introduced at a regular
meeting of the City Council of the City of Newport Beach, held on
the 13th day of November , 1995, and adopted on the 27th day of
November , 1995, by the following vote, to wit:
• AYES, COUNCILMEMBERS GLOVER, EDWARDS,
DEBAY, COX, WATT
NOES, COUNCILMEMBERS HEDGES
ABSTAINED COUNCIIXENMERS O'NEIL
ABSENT COUNCILMEMBERS NONE
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ATTEST:
de \ordinan \new1263.ord
MAYOR,
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