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Home My WebLink About08 - Consolidated Disposal Service Non-exclusive Solid Waste Franchise AgreementCITY OF NEWPORT BEACH CITY COUNCIL STAFF REPORT Agenda Item No. 8 August 12, 2003 TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL FROM: General Services Department David E. Niederhaus, Director, 949 - 644 -3055, dniederhausaC-city.newport- beach.ca.us SUBJECT: Assignment of Consolidated Disposal Service Non - exclusive Solid Waste Franchise Agreement APPLICANT NAME: Consolidated Disposal Service, L.L.C. ISSUE: Should the City assign the Consolidated Disposal Service Non - exclusive Solid Waste Franchise Agreement to Republic Services, Inc., dba Briggeman Disposal, L.L.C., Consolidated Disposal Service, L.L.C., and Taormina Industries, L.L.C.? RECOMMENDATIONS: Adopt attached Resolution No. 2003 -_ assigning the City franchise agreement with Consolidated Disposal Service, L.L.C. to Republic Services, Inc., dba Briggeman Disposal, L.L.C., Consolidated Disposal Service, L.L.C., and Taormina Industries, L.L.C. Approve the attached Agreement to Assign the Consolidated Disposal Service, L.L.C. Non - exclusive Solid Waste Franchise Agreement to Republic Services, Inc., dba Briggeman Disposal, L.L.C., Consolidated Disposal Service, L.L.C., and Taormina Industries, L.L.C. DISCUSSION: Background: In 1997, the City awarded franchises to Zakaroff Services and Briggeman Disposal Services. In October 1999 Zakaroff Services notified the City that is had been acquired by Briggeman Disposal Services and requested that its franchise be terminated. In November of 1999, the City was further informed by Consolidated Disposal Service that Briggeman Disposal Services was a wholly owned entity of Consolidated Disposal Assignment of Franchises August 12, 2003 Page 2 Service and that the Briggeman Disposal Services franchise should be assigned to Consolidated Disposal Service, dba Briggeman Disposal Services. In a letter dated June 16, 2003, Consolidated Disposal Service asked the City to assign their non - exclusive commercial solid waste collection franchise to reflect its new corporate name and its affiliated dba's. After review by the City Attorney's Office, staff has prepared a resolution and agreement to execute the transfer. Per Chapter 12.63.130 of the City Municipal Code, the City Council has sole authority to grant, terminate, or assign any non - exclusive commercial solid waste collection franchise. The current agreement between the City of Newport Beach and Consolidated Disposal Service states that the Contractor may request assignment or transfer of this agreement to subsidiaries or affiliates of the company upon notice to the City. Staff has prepared a resolution and an agreement to assign the Consolidated Disposal Service agreement to Republic Services, Inc., dba Briggeman Disposal, L.L.C., Consolidated Disposal Service, L.L.C., and Taormina Industries, L.L.C. As part of the agreement, Republic Services, Inc., dba Briggeman Disposal, L.L.C., Consolidated Disposal Service, L.L.C., and Taormina Industries, L.L.C. agrees to assume all of the obligations, conditions and responsibilities for all operations of all predecessor entities and agrees to pay any and all outstanding franchise fees. The granting of the request does not affect any current nor past franchise fiscal obligations incurred by Consolidated Disposal Service. Prepared by: Jeri Hammond, Management Assistant Submitted by: David E. Niederhaus, Director Attachments: (A) Proposed Resolution No. 2003 - assigning the City's franchise agreement with Consolidated Disposal Service, L.L.C. to Republic Services, Inc., dba Briggeman Disposal, L.L.C., Consolidated Disposal Service, L.L.C., and Taormina Industries, L.L.C. Assignment of Franchises August 12, 2003 Page 3 (B) Agreement to assign the Consolidated Disposal Service, L.L.C. Non - exclusive Solid Waste Franchise Agreement to Republic Services, Inc., dba Briggeman Disposal, L.L.C., Consolidated Disposal Service, L.L.C., and Taormina Industries, L.L.C. RESOLUTION NO. 2003- A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF NEWPORT BEACH ASSIGNING THE COMMERCIAL SOLID WASTE FRANCHISE AGREEMENT BETWEEN THE CITY OF NEWPORT BEACH AND CONSOLIDATED DISPOSAL SERVICE, L.L.C. WHEREAS, on January 27, 1997 the City of Newport Beach entered into Commercial Solid Waste Collection Franchise Agreements with Zakaroff Services and Briggeman Disposal Services; and WHEREAS, on October 20, 1999 Zakaroff Services notified the City that is was acquired by Briggeman Disposal Services, Inc. and that it no longer operated in the City of Newport Beach. As a result, that City terminated the Zakaroff Franchise; and WHEREAS, on November 15, 1999 the City was informed by Consolidated Disposal Services that Briggeman Disposal Services, Inc., is a wholly owned entity of Consolidated Disposal Services, LLC and that the Briggeman Franchise should be assigned to Consolidated Disposal Service, LLC dba Briggeman Disposal Services. The assignment was approved by the CITY on November 22, 1999; and WHEREAS, the assets of Consolidated Disposal Service, L.L.C. have been transferred to Republic Services, Inc. who has agreed to assume all of the obligations, conditions and responsibilities for all operations of all predecessor entities operations under Franchises; and WHEREAS, without Republic Services, Inc's agreement to pay all outstanding fees and penalties as provided in the Agreement attached hereto as Exhibit "A" and incorporated herein by reference, the City Council would not approve assignment of the Franchise. NOW, THEREFORE, the City Council of City of Newport Beach resolves as follows: 1. The City Council hereby approves the assignment of the Consolidated Disposal Service, L.L.C. Franchise Agreement to Republic Services, Inc., dba Briggeman Disposal, L.L.C., Consolidated Disposal Service, L.L.C., and Taormina Industries, L.L.C. 2. The Agreement to Assign the Consolidated Disposal Service, L.L.C. Franchise Agreement to Republic Services, Inc., dba Briggeman Disposal, L.L.C., Consolidated Disposal Service, L.L.C., and Taormina Industries, L.L.C. attached hereto as Exhibit "A ", is hereby approved and the City Manager is authorized to execute the Agreement as written. ADOPTED this 12`" day of August, 2003. Dated: ATTEST: CITY CLERK M "CITY" CITY OF NEWPORT BEACH, A Municipal Corporation Steven Bromberg MAYOR EXHIBIT (A) AGREEMENT TO ASSIGN THE CONSOLIDATED DISPOSAL SERVICE NON - EXLCUSIVE FRANCHISE AGREEMENT TO REPUBLIC SERVICES, INC., DBA BRIGGEMAN DISPOSAL, LLC, CONSOLIDATED DISPOSAL SERVICE, L.L.C., AND TAORMINA INDUSTRIES, LLC This Agreement is entered into on this day, the day of August, 2003 and executed by and between the CITY OF NEWPORT BEACH, a municipal corporation ( "CITY "), AND REPUBLIC SERVICES, INC. RECITALS A. On January 27, 1997, the City of Newport Beach entered into Commercial Solid Waste Collection Franchise Agreements with Zakaroff Services ( "ZAKAROFF FRANCHISE ") and Briggeman Disposal Services ('BRIGGEMAN DISPOSAL SERVICE FRANCHISE "). These franchises will be referred to herein collectively as "FRANCHISES." B. On October 20, 1999 Zakaroff Services notified the City that it was acquired by Briggeman Disposal Services, Inc. and that it no longer operated in the City of Newport Beach. The City terminated the Zakaroff Franchise. C. On November 15, 1999 the CITY was informed by Consolidated Disposal Services that Briggeman Disposal Services, Inc., is a wholly owned entity of Consolidated Disposal Services, LLC and that the BRIGGEMAN FRANCHISE should be assigned to Consolidated Disposal Service, LLC, dba Briggeman Disposal Services. This assignment was approved by the CITY on November 22, 1999. B. The assets of Consolidated Disposal Service, LLC have been transferred to Republic Services, Inc. who has agreed to assume all of the obligations, conditions and responsibilities for all operations of all predecessor operations under Franchises. C. The CITY desires to clarify the operations of the FRANCHISE by assignment of the Consolidated Disposal Services, LLC Franchise to Republic Services, Inc., dba Briggeman Disposal, LLC, Consolidated Disposal Service, LLC, and Taormina Industries, LLC- NOW THEREFORE, the CITY and Republic Services, Inc., dba Briggeman Disposal, LLC, Consolidated Disposal Service, LLC, and Taormina Industries, LLC agree as follows: 1. Republic Services, Inc., dba Briggeman Disposal, LLC, Consolidated Disposal Service, LLC, and Taormina Industries, LLC hereby stipulates that the above - referenced recitals are true and accurate representations of the corporate status of Republic Services, Inc. Republic Services, Inc., dba Briggeman Disposal, LLC, Consolidated Disposal Service, LLC, and Taormina Industries, LLC agrees that the Consolidated Disposal Service and Republic Services, Inc., dba Briggeman Disposal, LLC, Consolidated Disposal Service, LLC, and Taormina Industries, LLC corporate entities operations have been merged with and transferred to the corporate entity, Republic Services, Inc., dba Briggeman Disposal, LLC, Consolidated Disposal Service, LLC, and Taormina Industries, LLC and Republic Services, Inc., dba Briggeman Disposal, LLC, Consolidated Disposal Service, LLC, and Taormina Industries, LLC has authorization and legal standing to execute this Agreement and to assume all responsibility of the FRANCHISES. 2. By signing this Agreement, Consolidated Disposal Service, LLC has surrendered all rights to operate solid waste collection services within the CITY limits and will hereafter operate all solid waste collection services under the name of Republic Services, Inc., dba Briggeman Disposal, LLC, Consolidated Disposal Service, LLC, and Taormina Industries, LLC. 3. CITY hereby consents to the assignment of the CONSOLIDATED DISPOSAL SERVICE FRANCHISE from Consolidated Disposal Service, LLC to Republic Services, Inc., dba Briggeman Disposal, LLC, Consolidated Disposal Service, LLC, and Taormina Industries, LLC (hereinafter referred to as Franchise Agreement). Republic Services, Inc., dba Briggeman Disposal, LLC, Consolidated Disposal Service, LLC, and Taormina Industries, LLC agrees to the following conditions of assignment: (a) All terms and conditions of the Franchise Agreement shall remain in full force and effect and the full and complete obligation of Republic Services, Inc., dba Briggeman Disposal, LLC, Consolidated Disposal Service, LLC, and Taormina Industries, LLC. Republic Services, Inc., dba Briggeman Disposal, LLC, Consolidated Disposal Service, LLC, and Taormina Industries, LLC agrees to fully comply with all terms and conditions of the Franchise Agreement. (b) Republic Services, Inc., dba Briggeman Disposal, LLC, Consolidated Disposal Service, LLC, and Taormina Industries, LLC agrees that all solid waste collected by Republic Services, Inc., dba Briggeman Disposal, LLC, Consolidated Disposal Service, LLC, 2 and Taormina Industries, LLC will be disposed of per the provisions of the Franchise Agreement at a location identified by City. (c) Republic Services, Inc., dba Briggeman Disposal, LLC, Consolidated Disposal Service, LLC, and Taormina Industries, LLC agrees that the Franchise Agreement shall terminate on January 9, 2006 and no extension of the Agreement is granted by this Assignment. (d) Republic Services, Inc., dba Briggeman Disposal, LLC, Consolidated Disposal Service, LLC, and Taormina Industries, LLC shall pay to CITY any and all deficient franchise fees, or other fees, or penalties, or obligations incurred under the FRANCHISES, as provided in #4, below. 4. Republic Services, Inc., dba Briggeman Disposal, LLC, Consolidated Disposal Service, LLC, and Taormina Industries, LLC shall be liable for payment to CITY of all applicable fees and penalties associated with the Consolidated Disposal Service Franchise and all solid waste collection services performed by or under the name of Consolidated Disposal Service, LLC or Republic Services, Inc., dba Briggeman Disposal, LLC, Consolidated Disposal Service, LLC, and Taormina Industries, LLC or any other predecessor or subsidiary entities under the FRANCHISES during the term of Franchises through and including September 10, 2002. Republic Services, Inc., dba Briggeman Disposal, LLC, Consolidated Disposal Service, LLC, and Taormina Industries, LLC agrees that liability shall include, but not be limited to, the following: (a) All current and outstanding franchise fees; (b) All applicable charges associated with late payment of franchise fees pursuant to Section 4 of the FRANCHISES; (c) All applicable charges associated with reporting delinquencies pursuant to Section 6 of the FRANCHISES; 5. Republic Services, Inc., dba Briggeman Disposal, LLC, Consolidated Disposal Service, LLC, and Taormina Industries, LLC agrees to submit any outstanding Disposal Reports per Section 6 of the FRANCHISES. 6. The Board of Directors of Republic Services, Inc., dba Briggeman Disposal, LLC, Consolidated Disposal Service, LLC, and Taormina Industries, LLC has authorized execution of this Agreement. 3 WITNESS THE EXECUTION OF THIS AGREEMENT ON THE DATE WRITTEN BELOW EACH SIGNATURE: Dated: ATTEST LaVonne Harkless City Clerk APPROVED AS TO FORM: ROBIN CLAUSON Assistant City Attorney CITY OF NEWPORT BEACH, a Municipal Corporation M Homer Bludau City Manager REPUBLIC SERVICES, INC. in 7M17, -3