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HomeMy WebLinkAbout19 - Termination of Non-Exclusive Solid Waste Collection Franchise with Ocean Waste & RecyclingTO: FROM: Mayor and City Council General Services Director City Council Agenda Item No. October 22, 2002 SUBJECT: Involuntary Termination of Non - Exclusive Solid Waste Collection Franchise with Ocean Waste and Recycling, LLC. Recommendation Conduct a public hearing. That the attached Resolution No. 2002 - Terminating the Non - exclusive Solid Waste Franchise between Ocean Waste and Recycling, LLC and the City of Newport Beach be adopted at the conclusion of the public hearing. Background For additional information, please refer to Item # 6 from the October 8, 2002 City Council agenda. Staff is recommending the termination of the Ocean Waste and Recycling's Non - exclusive Solid Waste Franchise based on their failure to submit the required quarterly recycling reports, failure to recycle solid waste collected, and failure to timely submit the proper franchise fees. Since this item was last presented to the City Council on October 8, 2002, Ocean Waste and Recycling (Ocean Waste) has made several attempts to submit the required and delinquent franchise fees. On September 27`h, the City received a payment of $1354.00, however no supporting paperwork was attached to describe what the payment was for. Staff assumes that this payment is for the Fourth Quarter of 2001. On October 1, 2002 a payment of $802.00 was submitted for the First Quarter of 2002 and on October 4, 2002 a payment of $765.00 was received for the Second Quarter of 2002. County landfill reports for the First and Second Quarters of 2002 indicate that Ocean Waste disposed of 2183.4 tons of Newport Beach solid waste. Staff estimates that this amount of solid waste should generate approximately $17,460.00 in franchise fees. This means that the payment submitted by Ocean Waste for the First and Second quarters of 2002 is approximately $15,900 short in addition to late fees and penalties that may be assessed. F:\USERS\GSVU Ha=ond\Sm R Reporl<V 02202_0uanTc=Pub1icHeanng.doc On October 8, 2002 staff met with Richard Siroonian of Ocean Waste to discuss the franchise fee deficiency and failure to submit any of the required recycling reports. Mr. Siroonian indicated that he felt that the County landfill figures were in error and that Ocean Waste had disposed of far fewer tons of Newport Beach solid waste than was recorded by the landfill. Mr. Siroonian informed staff that Ocean Waste trucks collect waste in Newport Beach, Irvine, and Costa Mesa and that the loads are collected together and then taken to the landfill. At that time, the driver of the Ocean Waste vehicle randomly chooses a jurisdiction between Newport Beach, Irvine, and Costa Mesa to assign the waste to. Mr. Siroonian also indicated that Ocean Waste has no way of quantifying the exact amount of solid waste collected in Newport Beach. Mixing of solid waste collected in Newport Beach is in violation of the franchise agreement. Ocean Waste is also in default of their franchise agreement for failure to submit the required quarterly recycling reports. The quarterly recycling report must state the total amount of solid waste that the franchisee collected in the City during the quarter; the total weight (in tons) o1.' solid waste disposed of by the franchisee at County landfills and private transfer stations; and the total weight and weight by material category (in tons) of solid waste disposed of by the franchisee at recycling and material recovery facilities during the reportable quarter. These: reports are due on or before the 15`h day of the month following the end of the quarter. As of this; date, Ocean Waste has failed to submit any of the required reports since the firm started business; in the City in 2001. Staff has also recently been made aware that Ocean Waste's General Liability insurance policy has expired as of September 28, 2002. Ocean Waste claims that this policy has been renewed, but has failed to present the current policy. On October 11, 2002, the insurance broker representing Ocean Waste contacted City staff to inform the City that the General Liability policy for Ocean Waste has been renewed without a lapse in coverage. The insurance broker informed staff that the certificates would be faxed and mailed to the City. As of this date, the renewal certificates have not been received. This is a repeat of a problem that occurred throughout 2001 and 2002 when Ocean Waste started refuse collection in the City without proper insurance. Since the City awarded Ocean Waste a franchise on June 12, 2001, Ocean Waste has failed to submit timely quarterly franchise fees and recycling reports as required by the Municipal Code and its franchise agreement with the City. In an attempt to remedy the situation, staff has repeatedly contacted Ocean Waste by phone, US mail, and in person for compliance, but have been unable to collect the required reports and franchise fees. The attached History of Ocean Waste and Recycling outlines the numerous contacts that staff has had or attempted to have with Ocean Waste. During the past twenty months, staff estimates that over 60 hours of staff time has been spent in an attempt to get Ocean Waste in compliance with their franchise agreement and the Municipal Code. Staff has contacted the City of Costa Mesa and determined that Ocean Waste is operating in the same manner in Costa Mesa. Staff from Costa Mesa states that they had had difficulties in collecting recycling surcharges and recycling reports from Ocean Waste during the duration of their permit. In addition, Ocean Waste is failing to comply with the terms of their conditional use permit by storing their vehicles and equipment behind an existing business. F:\USERSIGSVVHam nd\SGffRepor kl02202 OceanTem PublicHeadng.doc Discussion Section 12.63.130 of the City of Newport Beach Municipal Code gives the City Council the right to terminate any non - exclusive franchise. The City Council may, after conducting a public hearing, terminate or suspend a franchise if it finds that the franchisee has violated any provisions of the ordinance granting the franchise or its franchise agreement, including failing to timely pay all franchise fees or failing to file required reports. In the case of Ocean Waste, the franchisee has failed to timely pay the entire amount of quarterly franchise fees owed and also has failed to file any of the required recycling reports. During this period, Ocean Waste has operated refuse collection routes within the City. As required by Section 12.63.130(E) of the City of Newport Beach Municipal Code, the decision to suspend or terminate a franchise shall contain findings of fact, a determination of the issues presented, and shall be final and conclusive. Any suspension of a nonexclusive franchise shall state specific conditions upon which the non - exclusive franchise may be reinstated or terminated. The attached resolution will terminate Ocean Waste's Non - Exclusive Solid Waste Franchise and set specific conditions upon which the non - exclusive franchise may be reinstated. To reinstate Ocean Waste's Non - Exclusive Solid Waste Franchise, Ocean Waste must submit past quarterly recycling reports, including documentation of waste disposed of and recycled, to the City of Newport Beach. Proof of recycling must also accompany these reports. The tonnage listed on these recycling reports must coincide with the amount of waste recorded by the Orange County landfill system as being disposed of by Ocean Waste. Ocean Waste must submit recycling reports for the Fourth Quarter of 2001 and the First and Second Quarters of 2002. Ocean Waste must also submit a Solid Waste Franchise Statement to accompany the franchise fee payment that was received on September 27, 2002 in the amount of $1354.00. The Solid Waste Franchise Statement is to be submitted to the Administrative Services Department, Revenue Division. Staff will be able to use this statement to audit the amount of waste hauled by Ocean Waste in comparison to the amount of waste reported by the Orange County landfill system. Staff currently monitors twenty franchised haulers that operate within the City of Newport Beach. All haulers, with the exception of Ocean Waste, have submitted their franchise fees and recycling reports in a timely manner. Ocean Waste has only begun to be responsive to staff requests after a Notice of Intent to Terminate dated September 19, 2002, was delivered to Ocean Waste. As the attached record reflects, this is the third time a notice of termination has been needed. If Ocean Waste continues to operate within the City of Newport Beach after their franchise agreement has been terminated, staff will issue an administrative citation to Ocean Waste. In addition, staff reserves the right to employ the assistance of the Police Department to ensure that Ocean Waste is not operating within the City without a valid franchise agreement. FAUSERSU'iSWHam ond\SmffRepom\ 102202 _OceanTemiPublicHeanng.doc In summary, staff strongly recommends the termination of the Non - Exclusive Solid Waste Franchise with Ocean Waste based on the above findings and a clear and decided lack of cooperation on the part of Ocean Waste. A copy of this report has been provided to Ocean Waste. Very respectfully, David E. Niederhaus Attachment: (1) History of Ocean Waste and Recycling (2) Resolution No. 2002 - Resolution to Terminate the Non - Exclusive Solid Waste Franchise with Ocean Waste and Recycling, LLC. F: \USERS \GSVVHammond\SMff Repom\ 102202 _OceanTemd'ublicHearing.doc History of Ocean Waste and Recycling Page I of 4 History of Ocean Waste and Recycling 2/18/01 — Ocean Waste and Recycling submitted a Solid Waste Nonexclusive Franchise Application 5/4/01 - Insurance certificates submitted to Cal - Surance for approval Not approved 518101 - Revised Insurance certificates submitted to Cal - Surance for approval Not approved 5/8/01 - Contacted Pete Wintrich of Roger Stone Insurance (Oceans Broker) to discuss insurance requirements 5115101 - Pete Wintrich of Roger Stone Insurance sent fax asking for approval from Lauren Farley for non - admitted insurance carrier Message forwarded to Lauren Farley 5/22/01 - Introduction of Franchise Application at City Council Meeting 5/30/01 - Cal - Surance reviews revised insurance certificates Not approved Missing additional insured wording, primary and non - contributory wording and Worker's Compensation insurance 5/30/01 - Faxed Cal - Surance checklist to Pete Wintrich 6/12/01 - Award of Non - Exclusive Solid Waste Collections Franchise Agreement 8/8/01 - Faxed Pete Wintrich regarding current insurance deficiencies 9/7/01 - Russ Valovick from Roger Stone Insurance sent fax regarding the status of Non - admitted carriers 9/12/01 - Contacted Lauren Farley regarding the 9/7/01 fax from Russ Valovick 9/13/01 - Lauren Farley approved non - admitted carriers 9/18/01 - Called Mr. Valovick, left message 11:15 am 10/18/01 - Called Candy Julian, left message — call not returned 10/26/01 - Called Candy Julian, left message — call not returned History of Ocean Waste and Recycling Page 7 of 4 11/9/01 - Faxed Mr. Valovick a copy of the checklist that our broker uses to approve insurance 12/14/01 - Faxed Mr. Valovick a current list of insurance deficiencies 1/7/02- Faxed Candy Julian a current list of insurance deficiencies 1/9/02- Contacted Flemming March regarding business license for Ocean Waste 1/10/02- General Services Director sent certified letter to Ocean Waste describing the insurance deficiencies Ocean Waste ordered to immediately cease all operations within the City Ocean Waste ignores order and continues to operate 1/16/02- Candy Julian delivers copies of updated insurance certificates 1/16/02- Received fax from Pete Wintrich Request for State Fund to bind coverage of Workers Compensation on 1/16/02 1/16/02- Ocean Waste pays for first business license Staff meets with Candy Julian at City Corporation Yard 1/23/02 - Roger Stone Insurance issues updated Automobile Liability policy 3/5/02- Insurance Quotation issued to Olympic Insurance Agency from State Fund for Workers Compensation 4/1/02- Letter sent to Ocean Waste requesting 1st Quarter Recycling Report 4/21/02 - Received letter from Roger Stone Insurance including General Liability and Automobile Liability Insurance Policies Still missing Worker's Compensation and certifications 5/10/02 - Roger Stone Insurance mailed most current certifications for Automobile Liability Policy 5/13/02 - City Manager signs "Notice of Suspension of Non - Exclusive Franchise and Notice of Intent to Terminate Franchise and Public Hearing Re: Same Scheduled for June 25, 2002" Letter is delivered by personal delivery 5/15/02 - Russ Valovick sends letter to Candy Julian stating that as the insurance documents become available, they will be sent to the City atm: Homer L. Bludau History of Ocean Waste and Recycling Page 3 of 4 5/16/02 - Roger Stone Insurance confirms with Cal - Surance that the Automobile Liability policy is now acceptable Still missing General Liability and Worker's Compensation 5/17/02 - Meet with Candy Julian In receipt of General Liability, Automobile Liability and Worker's Compensation Policies All are faxed to Cal - Surance for approval 5/21/01 — Letter sent from Roger Stone to Ocean Waste with carbon copy to the City stating that documents are on the way 5/23/02- Commercial Liability policy received "ALL INSURANCE NOW CURRENT AND APPROVED" 6/14/02- Letter sent regarding past due I" Quarter Recycling Report 7/1/02- Letter sent to Ocean Waste requesting 2 "d Quarter Recycling Report 8/12/02- Second Notice sent to Ocean Waste requesting 2 n Quarter Recycling Report 9/19/02- Letter sign by City Manager sent to Ocean Waste notifying Ocean Waste of the Citv's intent to terminate for failure to submit franchise fees and quarterly reports 9/27/02- Ocean Waste submits $802.00 for 1s` Quarter Franchise Fees 9/28/02- General Liability policy for Ocean Waste expires without renewal 10/4/02- Ocean Waste submits $765.00 for 2 "d Quarter Franchise Fees 10/7/02- Staff contacts Ocean Waste by phone to determine physical location to deliver copy of staff report Person answering phone directs staff to 3419 Via Lido #259 and states that someone will be there to receive paperwork Staff visits 3419 Via Lido and determines it is a post office box Staff discovers that the physical address of Ocean Waste is 946 17`h St. in Costa Mesa, however office is empty Staff calls Ocean Waste and determines that phone number is an exchange Staff leaves message with Candy Julian by telephone — call not returned 10/8/02- Staff visits 946 17`h St. to deliver copy of staff report to Richard Siroonian Siroonian claims that he is being unfairly pursued Siroonian claims that he has never received any request for recycling reports Siroonian calls Jeremy Hammond and asks for a copy of the Franchise Agreement Hisloro of Oman Waste and Recycling Page 4 of 4 Siroonian visits Hammond at City Corporation Yard to pick up a copy of the Franchise Agreement and blank recycling reports Siroonian informs Hammond that Ocean Waste has paid all fees and will submit recycling reports Siroonian informs Hammond that CWS, a solid waste company, is operating illegally within the City Siroonian claims that General Liability policy was renewed two weeks ago 10/11/02 - Richard Siroonian called and asked what the City was doing regarding CWS Informed staff that Insurance is up to date Russ Valovick from Roger Stone Insurance called to verify current insurance information Candy Julian called to confirm that Valovick had made contact with staff Data: Tonnages reported through the County of Orange Landfill system: Ocean Waste 2nd Qtr 2001: 146.50 tons 3rd Qtr 2001: 230.11 tons 4' Qtr 2001: 520.90 tons Is' Qtr 2002: 1095.53 tons 2nd Qtr 2002: 1087.97 tons RESOLUTION NO. 2002- A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF NEWPORT BEACH TERMINATING THE NON - EXCLUSIVE SOLID WASTE COLLECTION FRANCHISE BETWEEN OCEAN WASTE AND RECYCLING, LLC AND THE CITY OF NEWPORT BEACH WHEREAS, Article XIII of the City Charter and Sections 49500 through 49523 of the Public Resources Code authorize the City to enter into non - exclusive franchise agreements for commercial solid waste handling services with private solid waste enterprises. WHEREAS, the City Charter and Chapter 12.63.130 give the City Council the right to terminate a solid waste handling franchise if it finds, after a public hearing, that the franchisee has violated any provision of its franchise agreement or any provision of the Newport Beach Municipal Code. WHEREAS, Ocean Waste and Recycling, LLC (hereinafter "Ocean Waste ") was awarded a Non - Exclusive Solid Waste Franchise on June 12, 2001 and entered in a Commercial Solid Waste Collection Franchise Agreement (hereinafter "Franchise Agreement ") with the City on or about that date. WHEREAS, Section 4 of the Franchise Agreement and Section 12.63.070 of the Newport Beach Municipal Code requires franchisees to pay quarterly franchise fees to the City for the privilege of providing commercial solid waste handling services in the City and for the use of public streets, rights of ways and place for such purposes. WHEREAS, Section 6 of the Franchise Agreement requires Ocean Waste to submit quarterly reports to the General Services Director stating, among other things, the total amount of solid waste that franchisee collected in the City during the quarter, and the total weight by material category (in tons) of solid waste disposed of by franchisee at recycling and materials recovery facilities during the quarter. Such reports are due on or before the 15th day of the month following the end of the quarter. WHEREAS, Section 10 of the Franchise Agreement requires that Ocean Waste obtain and maintain throughout the term of the agreement adequate insurance, including commercial general liability insurance, automobile liability insurance, and workers' compensation insurance. WHEREAS, on or about May 13, 2002, after working with Ocean Waste for nearly a year, the City notified Ocean Waste that the City Manager had suspended its 1 franchise for failure to produce proof of insurance as required under the Franchise Agreement. The City Manager also notified Ocean Waste that the City intended to terminate the Franchise Agreement for failure for this reason, and that a public hearing before the City Council on the matter had been scheduled for June 25, 2002. WHEREAS, prior to this public hearing, Ocean Waste finally provided the proof of insurance that staff had been working to obtain from it for nearly a year. WHEREAS, on or about September 19, 2002, the City Manager sent a letter to Ocean Waste notifying the company that the City intended to terminate its franchise agreement — this time for failure to pay franchise fees and for failure to file the required solid waste collection and recycling reports. In this letter, the City Manager notified Ocean Waste that a resolution to set a public hearing on the matter had been placed on the City Council Agenda of October 8, 2002. WHEREAS, at the City Council meeting on October 8, 2002, the Council adopted Resolution of Intention No. 2002 -66, which indicated that the City intended to terminate Ocean Waste's non - exclusive solid waste collection franchise agreement, and set a public hearing on the matter for October 22, 2002. WHEREAS, on or about September 27, 2002, the City received a payment from Ocean Waste of $1,354.00; however, no supporting paperwork was attached to this payment to indicate what the payment was for. WHEREAS, on or about October 1, 2002, Ocean Waste submitted a payment orf $802.00 to the City for franchise fees for the first quarter of 2002. These fees were due: on April 30, 2002. On October 4, 2002, Ocean Waste submitted a payment of $765.00 for franchise fees for the second quarter of 2002, which were due on July 30. WHEREAS, according to County landfill reports for the first and second quarters of 2002, Ocean Waste disposed of 2,183.4 tons of Newport Beach solid waste. Under the terms of Ocean Waste's Franchise Agreement with the City, this amount of solid waste should generate approximately $17,460.00 in franchise fees for the City of Newport Beach. Thus, the payment submitted by Ocean Waste for the first and second) quarters of 2002 is approximately $15,900.00 short, not including late fees and penalties, which are due pursuant to Section 4(C) of the Franchise Agreement. WHEREAS, Ocean Waste's General Liability insurance policy expired as of September 28, 2002 and as of October 15, 2002, Ocean Waste had failed to produce: written proof that it had renewed this policy. 2 WHEREAS, in compliance with the City Charter and Municipal Code, a duly noticed public hearing was held on October 22, 2002, to consider the termination of the Ocean Waste franchise. SECTION 1: Findings of Fact The City Council of the City of Newport Beach hereby finds as follows: 1. Ocean Waste has repeatedly failed to submit timely and sufficient quarterly franchise fees in violation of Section 4 of its Franchise Agreement and Section 12.63.070 of the Newport Beach Municipal Code. 2. As of October 15, 2002, Ocean Waste had failed to submit the quarterly recycling reports for the second, third and fourth quarters of 2001 and the first and second quarters of 2002 in violation of Section 6 of its Franchise Agreement. NOW, THEREFORE, the City Council of the City of Newport Beach resolves as follows: SECTION 2: Termination of Franchise Agreement A. The City Council hereby approves the termination of the Franchise Agreement with Ocean Waste, effective immediately, as a result of Ocean Waste's: 1. Failure to timely pay all franchise fees as required by Section 4 of the Franchise Agreement; and 2. Failure to submit reports required under Section 6 of the Franchise Agreement. B. Ocean Waste shall cease to operate solid waste handling and collection services within the limits of the City of Newport Beach. C. Ocean Waste shall be liable for payment to the City of all applicable fees associated with its performance of solid waste collection services performed during the term of its Franchise Agreement, including, but not limited to: 1. Current and outstanding franchise fees; 2. All applicable late payment charges and interest, pursuant to Sections 4(C) and 17 of the Franchise Agreement; and 3. All applicable delinquent report charges associated with filing late quarterly reports, pursuant to Sections 6 and 17 of the Franchise Agreement. 3 D. Ocean Waste shall have 15 calendar days to remove any and all containers located within the City. E. Ocean Waste shall not initiate future solid waste collection services within the City, limits unless and until its franchise is reinstated by the City Council. SECTION 3: Reinstatement of Franchise After submitting the requirements outlined in subsection C of Section 2 of this Resolution in their entirety, including the complete payment of all outstanding franchise fees, delinquent payment fees and interest, and submission of all outstanding quarterly recycling reports, Ocean Waste shall be eligible for possible reinstatement of its franchise. To complete the reinstatement process, Ocean Waste must submit to tho City a completed Franchise Agreement application package accompanied by current certificates of insurance and endorsements, as required by the Franchise Agreement. After review of the Franchise Agreement application package and insurance documents, staff shall submit the application package to the City Council for review. At that time, the City Council shall set a date for a public hearing on the matter to consider the reinstatement of the Franchise Agreement. SECTION 4: Effective Date This Resolution shall become effective immediately. ADOPTED this 22nd day of October, 2002. Tod W. Ridgeway, Mayor F1 1 f L1_ • � SEW PpR� O 6 �� a c1p FO0.N�� City Council Agenda Item No. 6 October 8, 2002 TO: Mayor and City Council 1 ci FROM: General Services Director SUBJECT: Involuntary Termination of Non- Exclusive Solid Waste Collection Franchise with Ocean Waste and Recycling, LLC. Recommendation Adopt the attached Resolution of Intention (Resolution No. 2002 -_j to Terminate the Non - Exclusive Solid Waste Franchise with Ocean Waste and Recycling, LLC, and setting a public hearing on the matter for October 22, 2002. • Background Article XIII of the City Charter (Granting of Franchises) and Chapter 12.63 of the Municipal Code (Solid Waste Management) establish requirements and procedures to grant a franchise to provide solid waste handling services within the City. There are currently twenty solid waste franchisees operating under separate agreements to collect and transport solid waste generated within the City limits. There is no limit on the number of franchises that Council may approve. Such a policy permits competitive, service - oriented refuse operations. As part of the franchise system, Ocean Waste and Recycling, LLC (Ocean Waste) was awarded a franchise on June 12, 2001. Before staff could obtain the necessary documents, Ocean Waste began full -scale refuse collection operations. For the next eleven months, staff pursued Ocean Waste by phone, by US mail, and in person to obtain the insurance policies required by the franchise agreement. In May of 2002, staff was forced to notify Ocean Waste that their franchise agreement was temporarily suspended until the insurance documents were received by the City. Shortly after notification of the suspension, Ocean Waste produced the proper insurance documents required by the franchise agreement. The franchise agreement also requires the submission of quarterly recycling reports and franchise fees. Franchise fees are due and payable on the thirtieth (301h) day of the month following the end of each calendar quarter. The franchise fees are billed and accounted for by the Revenue • Division of the Administrative Services Department. The recycling reports state the total amount of solid waste that the franchisee collected in the City during the reporting quarter. The recycling reports are used by the City to track solid waste and recyclables transported out of the F:WSERS\GSWHam ond\SuffRepom \100802 OceanTennFinalAm City and also in the preparation of the annual report submitted to the California Integrated Waste • Management Board. Since the City awarded Ocean Waste a franchise on June 12, 2001, Ocean Waste has failed to submit quarterly franchise fees and recycling reports as required by the Municipal Code and its franchise agreement with the City. In an attempt to remedy the situation, again staff has repeatedly contacted Ocean Waste by phone, US mail, and in person for compliance, but have been unable to collect the required reports and franchise fees. On September 19, 2002, the City Manager sent a letter to Ocean Waste notifying the Ocean Waste that a Notice of Intent to Terminate its Non - Exclusive Franchise Agreement for failure to comply with the terms and conditions of its franchise agreement had been placed on the City Council Agenda of October 8, 2002. Discussion Section 12.63.130 of the City of Newport Beach Municipal Code gives the City Council the right to terminate any non - exclusive franchise. The City Council may, after conducting a public hearing, terminate or suspend a franchise if it finds that the franchisee has violated any provisions of the ordinance granting the franchise or its franchise agreement, including failing to timely pay all franchise fees or failing to file required reports. In the case of Ocean Waste, the franchisee has failed to pay any quarterly franchise fees since it was awarded its franchise in June 2001 and also has failed to file any required recycling reports during that period. During; this period, Ocean Waste has operated refuse collection routes within the City. • County landfills track all waste that enters the landfill system and allocates the waste to each jurisdiction that produced the waste. According to County landfill records through the first quarter of 2002, Ocean Waste hauled 2,030 tons of material from the City of Newport Beach to the landfill. Using this amount of waste transported by Ocean Waste, staff is able to estimate that approximately $16,240 in franchise fees are owed through the first quarter of 2002. Staff also estimates another $12,000 are owed for the second quarter of 2002, assuming that the tonnage between the first and second quarter remains consistent. Staff is also concerned that Ocean Waste is hauling debris directly to the landfill instead of taking it to a recycling facility. The Non Exclusive Franchise that is awarded by the City of Newport Beach requires that a minimum of 25% of all waste that is collected is recycled. Without the documentation that is provided in the required quarterly reports, staff has no way to prove that this waste is being recycled. Without proof that this large tonnage of waste is being; recycled, the City runs the risk of loosing its good faith effort towards the annual recycling; mandate of AB 939. As required by Section 12.63.130(E) of the City of Newport Beach Municipal Code, the decision to suspend or terminate a franchise shall contain findings of fact, a determination of the issues presented, and shall be final and conclusive. Any suspension of a nonexclusive franchise shall state specific conditions upon which the non - exclusive franchise may be reinstated or terminated. C� F:\ USERS \GS'✓UHannond \SUlrRepom \100802 OceanTcmFinalAm • The attached resolution will set an October 22, 2002 date for a public hearing to terminate the Non - Exclusive Solid Waste Franchise with Ocean Waste. At the conclusion of the public hearing, the City Council will be able to terminate the Non - Exclusive Solid Waste Franchise and set any specific conditions upon which the non - exclusive franchise may be reinstated. • L J A copy of this report has been provided to Ocean Waste. Very respectfully, David E. Niederhaus Attachment: (1) Resolution No. 2002 - Resolution of Intent to Terminate the Non - Exclusive Solid Waste Franchise with Ocean Waste and Recycling, LLC and Setting a Public Hearing On The Matter for October 22, 2002. F: \USERS\GSWHammondlSmff Repo is )OOS02_0ceanTe mFinal.dw RESOLUTION NO. 2002- • A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF NEWPORT BEACH DECLARING ITS INTENTION TO TERMINATE THE NON - EXCLUSIVE SOLID WASTE FRANCHISE FOR OCEAN WASTE AND RECYCLING, LLC AND SETTING A PUBLIC HEARING ON THE MATTER FOR OCTOBER 22, 2002. WHEREAS, the City Council finds and determines that the collection of solid waste generated within the City is a vital public service and that the storage, accumulation, collection, and disposal of solid waste and recyclables is a matter of great public concern because improper control of such matters would subject the City to potential liability, damages and penalties and may create a public nuisance, air pollution, fire hazard, infestation, and other problems affecting the public health, safety and welfare; and, WHEREAS, non - exclusive franchises for the use of public streets to provide commercial solid waste hauling services will promote the public health, safety, and welfare by promoting permanence and stability among those businesses wishing to provide such service • and accountability to the City for compliance with current and future state mandates; and, WHEREAS, pursuant to Article XIII of the City Charter and pursuant to Sections 49500 through 49523 of the Public Resources Code, the City is authorized to enter into non - exclusive franchise agreements for commercial solid waste collection services with private solid waste haulers; and, WHEREAS, Ocean Waste and Recycling, LLC was awarded a Non - Exclusive Solid Waste Franchise on June 12, 2001 and entered into a Commercial Solid Waste Collection Franchise Agreement ( "Franchise Agreement') with the City on or about that date; and, WHEREAS, Section 4 of the Franchise Agreement requires Ocean Waste and Recycling LLC to pay quarterly franchise fees to the City for the privilege of providing commercial solid waste handling services in the City; and, WHEREAS, Section 6 of the Franchise Agreement requires Ocean Waste and Recycling LLC to submit quarterly reports to the General Services Director stating the total amount of solid waste that franchisee collected in the City during the quarter; the total weight (in tons) of • solid waste disposed of by franchisee at landfills and transfer stations; and the total weight and • the weight by material category (in tons) of solid waste disposed of by franchisee at recycling and materials recovery facilities during the reportable quarter. Such quarterly reports are due on or before the 15`s day of the month following the end of the quarter; and, WHEREAS, Ocean Waste and Recycling, LLC has failed to submit the quarterly reports and franchise fees as required by the Non - Exclusive Franchise Agreement. that: NOW, THEREFORE, be it resolved by the City Council of the City of Newport Beach 1. A public hearing shall be conducted on October 22, 2002, at 7:00 p.m., or as soon thereafter as practical, in the City Council Chambers, located at 3300 Newport Boulevard, Newport Beach, California, to consider the termination of the franchise agreement with Ocean Waste and Recycling, LLC. as a result of a. Failure to pay franchise fees as required by Section 4 of the Nonexclusive Franchise Agreement; and • b. Failure to submit the quarterly reports as required by Section 6 of the Non- Exclusive Franchise Agreement. 2. This Resolution of Intention shall be published in the City's official newspaper within 15 days of its adoption and at least 10 days prior to October 22, 2002. ATTEST: • CITY CLERK Adopted this 8th day October, 2002 2 MAYOR