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HomeMy WebLinkAbout2001-1 - Granting Non-exclusive Solid Waste Franchises to CST Environmental, Inc. to Provide Solid Waste Collection Services Upon the City Streets and Within the City of Newport Beach.ORDINANCE NO. 2001 -1 AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF NEWPORT BEACH GRANTING NON - EXCLUSIVE SOLID WASTE FRANCHISES TO CST ENVIRONMENTAL, INC. TO PROVIDE SOLID WASTE COLLECTION SERVICES UPON THE CITY STREETS AND WITHIN THE CITY OF NEWPORT BEACH The City Council of the City of Newport Beach does ordain as follows: SECTION 1: Findings A. 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. B. The City Charter and Chapter 12.63 establish requirements and procedures to grant a franchise to provide solid waste handling services within the City of Newport Beach. C. In compliance with the City Charter a duly noticed public hearing was held on February 13, 2001, to consider the granting of a franchise to CST Environmental, Inc. D. Having considered all oral and documentary evidence presented at the public hearing, the City Council has determined that the granting of a non - exclusive franchise is in the public interest. SECTION 2: Definitions All words, terms, phrases in this Ordinance shall have the meanings set forth in Section 12.63.020 of Chapter 12.63 of the Newport Beach Municipal Code. SECTION 3: Franchise Agreements A. Grant of Franchises There is hereby granted to the enterprises listed below (hereinafter, "Franchisee ") a non - exclusive franchise to operate, maintain and provide solid waste handling services along, across and over the public streets, alleys, public ways and public places dedicated for public use in the City: (a) CST Environmental, Inc. 1 B Non exclusive Grant The right to use City streets alleys public ways and places for the purposes set forth in this Ordinance shall not be exclusive and the City reserves the right to grant a similar use of streets alleys public ways and places to any person at any time during the term of this franchise C Term of Franchises The term of the franchise per Section 2 of the Franchise Agreement ( Agreement ) attached hereto as Exhibit A Commercial Solid Waste Collection Franchise Agreement between the City of Newport Beach and CST Environmental Inc which is hereby adopted approved and incorporated into this Ordinance by reference shall commence at 12 01 a m on March 15 2001 and expire on January 9 2006 The franchise shall take effect on the date specified above provided that the grantee has filed written notice of acceptance in accordance with the requirement of Section 4 of this Ordinance D Franchise Fees (1) During the term of the Agreement Franchisee shall pay to City franchise fees for the privilege of providing commercial solid waste handling services in the City of Newport Beach and use of public streets right of ways and places for such purposes Fees shall be in the following amounts Franchisee shall pay to the City 10 5% (ten and one half percent) of the Franchisee s gross receipts The franchise fee shall increase by l% (one percent) each January during the term of the Agreement Thereafter the franchise fee will be capped at 10 5% for the life of the Agreement Franchise fee payments shall be paid quarterly and shall be computed and paid on the basis of paid receipts received by the Franchisee for all solid waste handling services provided by the Franchisee within the City One half of one percent (0 5 %) of the franchise fee shall be attributable to the maintenance and implementation of the City s Source Reduction and Recycling Element (SRRE) and shall be separately accounted for and used only for the costs stated in Public Revenue Code Section 41901 or any successor provisions (2) Franchisee shall pay to the City Environmental Liability Fund on a quarterly basis 5 5% of gross receipts for all commercial solid waste handling services provided by the Franchisee in the City Payment shall be made concurrently with the payment of the franchise fee and the filing of reports specified in Section 4 and Section 6 of the Agreements 2 E Inclusion of Franchise Documents Franchisee shall comply with and shall be bound by all of the terms provisions and conditions contained in the City Charter this Ordinance Chapter 12 63 of the Newport Beach Municipal Code and the Franchise Agreement SECTION 4 Effective Date This Ordinance shall become effective 30 days from and after the date of its adoption provided however franchises granted by this Ordinance shall not become effective unless and until the grantee files written acceptance of the franchise with the City Clerk and delivers to the City all bonds and insurance policies required to be furnished in accordance with the requirements of Chapter 1263 of the Newport Beach Municipal code and the Franchise Agreement The written acceptance shall be in form and substance as prescribed by the City Attorney and shall operate as an acceptance of each and every term condition and limitation contained in this Ordinance the Franchise Agreement Article XIII of the City Charter and Chapter 12 63 of the Newport Beach Municipal Code The grantee shall file written acceptance of the franchise no later than ten (10) days after the adoption of this Ordinance SECTION 5 CEQA Exemption The City Council of the City of Newport Beach finds that this Ordinance is categorically exempt under the California Code of Regulations Sections 15301 and 15308 defined as existing operations and facilities and as actions by regulatory agencies for protection of the environment respectively Use of the above exemption classifications are appropriate because this Ordinance does not change nor expand existing solid waste operations and facilities within the City The Ordinance is also consistent with the goals of California State Assembly Bill 939 The California Solid Waste Management Act as well as the objectives of 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 6 Severability 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 thereof 3 Irrespective of the fact that any one or more sections subsections sentences clauses or phrases be declared unconstitutional SECTION 7 Adoption of Ordinance This Ordinance was Introduced at a regular meeting of the City Council of the City of Newport Beach held on the 23rd day of January 2001 and adopted on the 13th day of February 2001 by the following vote to wit AYES COUNCIL MEMBERS Heffernan. O'Neil, Ridgeway Clover Bromberg Proctor Mayor Adams NOES COUNCIL MEMBERS ABSTAINED COUNCIL MEMBERS ABSENT COUNCIL MEMEB doami.— %i( 7t2, MAYOR CITY CLERK k%MIS VSYSSUSEP.%GSWdE1dnd9 'JANUARY WC i IFn hacOrdr 2 6D 4 R ACCEPTANCE OF SOLID WASTF MANAGFMFNT FRANCHISE WHEREAS on Q'i 3)0 i , the City Council of the City of Newport Beach adopted Ordinance No acot t entitled an Ordmancc of the City Council of the City of Ncwport Beach Granting a NonexcIusrve Franchisc to Provide Solid Waste Collccuon Sernccs Upon the City Streets and within the City of Newport Bcach and WHEREAS the Charter of the City of Ncwport Beach Sccuon 1303 and Ordmancc No provide that any franchise grantcd shall not become effective until wnttcn acceptance is filed by the Grantee with the City Clerk The acceptance shall be filcd within tcn (10) days after the adoption of Ordmancc No a00/ WHEREAS the undersigned Grantee wishes to acccpt the grant of the Franchisc NOW THEREFORE CST Environmental Inc hcreby accepts the grant of the Nonexclusrvc Franchise grantcd by Ordinance No 40.9 / and hcreby agrecs to comply with the provisions of the Ncwport Beach Charter Chapter 12 63 Ordmancc No and the Franchise Agreemcnt in all its operations pursuant to the grant of the Franchise DATE CST Environmental Inc M Chelstowski TITLE Vice President CITY CLERKS S VERIFICATION OF ACCEPTANCE I LaVonne M Harkless Cit Clerk certify that the abovc acccptance of I ranchise was rccerved by me on at { co a m Afffi) CITY CLERK 5 COMMERCIAL SOI ID WASTF COI 1 FCTION FRANCHISEE AGREEMFNT BFTWEEN THH CI I Y OF NP WPORT BP ACH AND CST Environmental, Inc This Nonexclusive Franchise Agreement for Commercial Solid Waste Handling Services ( Agreement herein) is entered into Ind executed by and between the CITY Or NI WPORT BEACH a municipal corporation and Charter City organized and exisUu, under the laµs of the State ofCaliforma ( City ) and CST Environmental ( Franchisee ) Inc RECITAI S 1 his Abrccment is entered into on the basis of the folloti ml, facts A Franchisee has provided or is capable of prodding commercial solid «astc collection services in the City pursuant to a permit issued in accordance with the Newport Beach Municipal Code( Code ) B City has duly adopted Ordinance No 95 63 which has repealed the former Chapter 12 63 and added a new Chapter 12 63 of the Code and requires a franchise for all persons pro), idmg commercial solid waste handling services for solid waste generated in the City C Article X111 of the City Charter Chapter 12 63 and Sections 49300 and 49500 49523 of the Public Resources Code authonze the City to enter into nonexclusive franchise agreements for commercial solid waste handlmb services D Pursuant to this Agreement City desires to authorize franchisee to provide noncxclusrve commercial solid waste handling services within the City Franchisee shall fumisli all personnel equipment and supplies necessary to collect transport or otherwise remove and dispose of residential solid waste and recyclable materials as defined herein from commercial institutional or industrial premises within the City E The City Council has determined that the grant of a noncxclusrve franchise is in the public interest NOW THERE 'ORE Cl l Y AND FRANCHISEE DO HEREBY AGREE AS FOI l OWS SF C PION 1 GRANT OF FRANCHISE A By Ordinance No and I City has granted to Franchisee a non exclusive Franchise authon71ng Franchisee to provide commercial solid waste handling services for solid waste kept accumulated or generated in the City of Newport Beach and to use the public streets and rights of way for such purpose rranchISLc acknowledges that the Franchise is not exclusive and that the Franchise is subject to the provisions of Article MIT of the City Charter Ordinance Nom r Chapter 12 63 of the Code and the terns and conditions of this Agreement B Upon the effective date of this Agreement the panics agree that any pnor authorization relating to the conduct of commercial solid waste handling services in the City arising under and pursuant to any prior permit issued to Franchisee shall be deemed to be terminated and of no further force or effect SECTION 2 TERM OF F RANCHISE Subject to Section 17 of this Agreement the term of this Agreement shall be from February 22 2001 to January 9 2006 inclusn c SECTION 3 DFFINI I IONS Unlcss otherwise defined or if the use or context clearly requires a different definition all words terms and phrases in this Agreement and the derivations thereof shall have the meanings set forth in Section 12 63 020 of the Code SFCTION 4 FRANCHISE FEES A Dunng the term of the Franchise Franchisee shall pay to City franchise fees for the privilege of providinb commercial solid waste handling services in the City of Newport Beach and the use of public streets nbht of ways and places for such purposes Fees shall be in the following amounts (l) Franchisee shall pay to the City 10 5% (ten and one half percent) of the gross receipts for all commercial solid waste handling services pro%idcd by the Franchisee in the City for the first year of the franchise The franchise fee shall increase by l% (one percent) per year for each of the next succeeding four years of this Agreement Thereafter the franchise fee will be capped at 10 5% for the life of the Abrccmcnt (2) Franchise fee payments shall be paid quarterly and shall be computed and paid on the basis of paid receipts received by the Franchisee for all solid waste handling services µithm the City (3) (One half of one percent) 5% of the franchise fee shall be attributable to the maintenance and implementation of the City s Source Reduction and Recycling Element SRRE 2 'A and shall be separately accounted for and used only for the costs stated in Public Revenue Code Section 41901 or any successor provision B Franchisee shall pay all required franchise fees to Administrative Services Director City of Newport Beach 3300 Newport Boulevard Newport Beach CA 92659 C Franchise fees shall be due and payable on the thirtieth (30th) day of the month following the end of each quarter If franchise fees arc not paid by Franchisee when due then in addition to the franchise fees Franchisee shall pay a late payment penalty in an amount equal to ten percent (10 %) of the franchise fee that was not timely paid by Franchisee If Franchisee fails to pay delinquent franchise fees within thirty (30) days of the date due Franchisee shall pay a second late payment penalty in an amount equal ten percent (10 %) of the franchise fee outstanding after such thirty day period The second late payment penalty shall be in addition to the first late payment penalty In addition Franchisee shall pay interest on all unpaid franchise fees at the rate of ten percent (10 %) per annum or the legal rate allowed whichever is less from the date the franchise fees were due and payable to the date actually paid Franchisee will be responsible for all billing and collection from all its customer accounts D If Franchisee remits franchise fees by personal delivery to City such franchise fees shall be deemed timely paid only if delivered on or before the due date set forth in Section 12 63 070 of the Code If Franchisee remits franchise fees by mail or other delivery service such franchise fees shall be deemed timely only if (1) the envelope containing the franchise. fee payment bears a postmark or receipt showmb that the payment was mailed or sent on or before the due date or (2) Franchisee submits proof satisfactory to the Administrative Services Director that the franchise fee payment was in fact deposited in the mail or sent on or before the due date E For any quarter in which Francluscc determines that any outstanding delinquent payment for commercial solid waste handling services is uncollecnblc Franchisee shall attach to the report a list of the customers for which Franchisee has wntten off the delinquent payment determined to be uncollcctible r In the event Franchisee believes that it has paid franchise fees in excess of the fees due to City Franchisee may submit a request for refund to the Administrative Services Director on a form provided by the Director If proof of overpayment is satisfactory to the Director the Director shall refund to Franchisee any overpayment Franchisee shall not apply any overpayment as a credit against any other amounts payable to City unless specifically so authonred by the Administrative Services Director in writing G Each franchise fee payment shall be accompanied by a written statement described in Section 12 63 070 of the Code on a form provided by the Administrative Services Director H No maximum nor minimum service fee will be set by the City The fees will fluctuate with market demand 3 er SECTION 5 DISPOSAL OF COMMERCIAL SOLID WAS rE A Franchisee shall dispose of solid waste collected or transported by Franchisee only by taking such solid waste to a landfill transfer station recycling facility or materials recovery facility which is lawfully authorized to accept such solid waste Franchisee shall not dispose of solid waste by depositing, it on any land (except a permitted recycling facility) whether public or private or in any river stream or other waterway or in any sanitary sewer or storm drainag c system Nothing in this Agreement shall be deemed or construed as authorizing Franchisee to operate a landfill recycling center or other solid waste disposal facility B All solid waste in addition to rccyclables collected by Franchisee shall become the property of Franchisee upon placement by the customer for collection Franchisee agrees that the City has the future right at any time to direct that solid waste be delivered to a permitted disposal facility designated by City For example the City may exercise this right in order to save solid waste g cnerators money on disposal costs to avoid disposal sites with potential cleanup problems or to meet the requirements for access to a disposal site Franchisee agrees to deliver the solid waste which it collects to any disposal facility directed by the City This exercise of flow control by the City shall be made upon at least one hundred twenty (120) days prior written notice to Franchisee I ranchisee represents and agrees that since November 6 1995 Franchisee has not entered and will not enter into any agreements with a disposal facility for disposal of any solid waste which it collects in the City for more than one hundred twenty (120) days without the written consent of the City City shall not withhold its consent to any written agreement which provides that the agreement may be terminated by Franchisee at any time without cause upon 120 days notice C Franchisee shall include as a condition to its contractual agreement with its customers a provision prohibiting disposal of hazardous solid waste in any of Franchisees vehicles or disposal bins /containers and other equipment D Franchisee shall implement a load check program that includes at a minimum a visual check of all containers to be emptied to protect against inclusion of hazardous waste and shall prepare a written record of all hazardous waste discovered during the process The records shall comply with all State and Federal Hazardous Waste Regulations shall be maintained for the lenbth of the term of the Franchise and shall be made available to the City upon request SFCTION 6 REPORTS A Franchisee shall submit to City quarterly reports stating the total amount of solid waste which Franchisee collected in the City during the reportable quarter the total weight (in tons) of solid waste disposed of by Franchisee at landfills and transfer stations during the reportable quarter and the total weight and the weq lit 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 shall be prepared on the form attached to this Agreement as EXHIBIT A or on such other form as required by the General Services Director Each quarterly report shall be submitted on or before the 15th day of the month following the end of the quarter (i a report due April 15 for first quarter of the year) and submitted to 0 General Services Director City of Newport Beach 3300 Newport Boulevard Newport Beach CA 92659 B If the report required under subsection A is not filed by the due date specified above the report shall be deemed delinquent If the report remains delinquent for more than fifteen (15) days I ranchisee shall pay to City a delinquent report charge in the amount of One Hundred Dollars ($100) If the report remains delinquent for more than forty five (45) days Franchisee shall pay to City a delinquent report charge in the amount of Five Hundred Dollars ($500) Such delinquent report charges shall be to addition to any franchise fees or other charges payable by I ranchisee under this Agreement SECTION 7 COMMERCIAL SOLID WASTE COLLECTION SFRVICFS A frequency of Collection Franchisee shall collect all solid waste including recyclable materials as authorized in this Agreement on a schedule to be agreed upon between the Franchisee and its customers The schedule shall provide for collection service at least once per week provided however that such schedule shall not permit the accumulation of solid waste in quantities that are unreasonable or detrimental to the public health or safety Requests for collection from premises with overflowing bins or containers or from premises where there have been missed pickups shall be serviced with 24 hours of any such request If requested by the City at any time Franchisees collection schedule shall be submitted to the City for its approval B Hours and Days of Collections No collection of solid waste from commercial premises within 500 feet of occupied residential premises motels or hotels shall be made by Franchisee between the hours of 9 00 p m and 7 00 a m on the next day nor shall any of Franchisees collection vehicles be operated in any residential areas of the City between the hours of 9 00 p m and 7 00 a m on the next day SFCTION 8 ENVIRONMENTAI LIABILITY FUND A City and Franchisee acknowledge the potential liability which can result from solid waste handling services under Federal and State environmental laws City intends to take reasonable actions to obtain protection and indemnification against future environmental liability for solid waste generated within the City and the activities of franchisee under this Agreement for handling such solid waste To provide protection and indemnification to City for Franchisee s solid waste handling activities in the City Franchisee agrees to collect from its customers a fee for payment into an Environmental Liability Fund which shall be a separate Fund established and maintained by City The Fund shall be used to either purchase insurance which will ensure the City against environmental liability which may be imposed upon City as a result of Franchisee s activities under this franchise and/or shall to be used to defend and indemnify the City if insurance is not available or cannot be provided at a cost acceptable to City The Fund shall not be commingled with or included in the City's General Fund 5 B Franchisee shall pay to the City Environmental Liability Fund 5 5% of gross receipts for all commercial solid waste handling services provided by the Franchisee in the City during the prior reporting period Payment shall be made concurrently with the payment of the I ranchise fees and the fihnb of reports specified in Section 4 and G of this Agreement C Payments under parabraph B above may be adjusted by City on an annual basis upon one hundred twenty (120) days prior notice to Franchise. as appropriate to Lnsun, that total payments by all Franchisees into the Fund is maintained at approximately two hundred twenty five thousand dollars ($225 000 00) a year The fee may be decreased or waived as deemed appropriate by City if subsequent changes in federal and State law diminish or eliminate liability of City under Federal and State environmental laws D Compliance with this obligation shall not limit Franchisees indemnification as set forth in Section I I however the indemnification provisions of I I B shall be secondary to the fund established by this Section or any insurance purchased with the funds provided SECTION 9 FRANCHISEES RP CORDS A Franchisee shall keep and maintain books of account income statements and supporting documents of all business transactions conducted by Franchisee in connection with the commercial solid waste handling services of Franchisee under this Agreement Such records sliall be kept at franchisee s place of business B The books of account income statements and supporting documents sliall be made available to City at Franchisee s place of business during normal business hours upon request or demand of the City Manager City Administrative Services Din.ctor City Attorney or other City officer employee or consultant authorized by any of these officers The purpose of such inspection and/or audit shall be for verification of the fees paid by Franchisee under tlus Agreement and the accuracy thereof and for verification of the amounts of solid waste reported by Franchisee pursuant to this Agreement To the extent authorized by law Franchisees books of account income statements and other documents accessed by City shall be kept confidential C Franchisee shall reimburse City for City costs in performance of an audit if as a result of the audit it is determined i There was any intentional misrepresentation by Franchise with respect to the amount of franclusc fees due to the City or u There is a one thousand dollars ($1 000 00) or brcater discrepancy in the amount of franchise fees due to the City Such reimbursement shall be paid by franchisee WITHIN THIR 1 Y (30) days of the date City notifies Franchisee in wntmg of the amount of City s costs 6 SECTION 10 INSURANCF REQUIREMFNIS Without limiting the indemnification provided in Section 11 Franchisee shall obtain and shall maintain throughout the term of this Agreement at Franchisees sole cost and expense insurance against claims for injuries to persons or damages to property which may arise from or in connection with the commercial solid waste handling services provided under this Agreemcnt by Franchisee its agents representatives employees or contractors A Minimum Scope and Limits of Insurance Franchisee shall maintain at least the following minimum insurance coverages I Commercial General Liability $1 000 000 combined single limit per occurrence for bodily injury personal injury and property damage The Commercial General Liability insurance limit shall apply separately to this Agreement or the general abgrcbate limit shall be twice the required occurrence limit 2 Automobile Liability $2 000 000 combined single limit per occurrence for bodily injury and property damage and shall include sudden and accidental coverage 3 Workers Compensation and Employers Liability Workers Compensation statutory limits as required by the California Labor Code and Employers Liability limits of $1000 000 per accident B Deductibles and Self Insured Retentions Any deductibles or self insured retentions must be declared to and approved by City s Risk Manager At the option of City either the insurer shall reduce or eliminate such deductibles or self insured retentions as respects City its officers employees agents and contractors or Franchisee shall procure a bond guaranteeing payment of losses and related investigations claim administration and defense expenses in an amount specified by City s Risk Manager C Endorsements The required insurance policies are to contain or be endorsed to contain lie followmb provisions General Liability and Automobile Liability Coverages a The City of Newport Beach its officers employees agents and contractors arc to be covered as an additional insured as respects liability ansmg out of activities performed by or on behalf of Franchisee products and completed operations of Franchisce premises owned leased or used by Franchisee and automobiles owned leased hired or borrowed by Franchisee The coverage shall contain no special limitations on the scope of protection afforded to City its officers employees and agents and contractors b Franchiscc s insurance coverage shall be primary insurance as respects City its officers employees agents and contractors Any insurance or self insurance maintained by City 7 f its officers employees agents or contractors shall be excess of 1 ranehiscc s insurance and shall not contribute with it e Any failure to comply with reportml, provisions of the policies shall not affect coverage provided to City its officers employees agents or contracts d Coverage shall state that Franchisee s insurance shall apply separately to each insured against %%hom claim is made or suit is brought except with respect to the limits of the insurer s liability 2 All Coverages Each insurance policy required by this Agreement shall be endorsed to state that coverage shall not be suspended voided canceled or reduced in limits except after thirty (30) days pnor wntten notice has been given to the City D Placement of Insurance Insurance shall be placed with an insurance company certified to do business in the State of California with Best s rating A VII or better unless otherwise approved by the City Risk Manager E Proof of Insurance Franchisee shall furnish City with certificates of insurance and with ongmal endorsements affecting coverage required by this Agreement The certificates and endorsements for each insurance policy are to be signed by a person authorized by that insurer to bind coverage on its bL.lialf Proof of insurance shall be mailed or personally delivered to the following address or to such other address as may be directed in wntrng by the City s Risk Manager City of Newport Beach Risk Manager 3300 Newport Boulevard Newport Beach CA 92659 r Subcontractors Franchisee shall include all subcontractors as insureds under Franchisee s policies or shall obtain separate certificates and endorsements for each subcontractor G Failure to Provide Insurance Franchisee agrees that if any policy of insurance required by this AbrecmLnt is not maintained in full force and effect the City Manager may in his sole discretion suspend this Agreement immediately until such time as the required insurance is in effect and the required certificates and endorsements are delivered to the City 91 SEC11ON 11 INDEMNIFICATION franchisee as a condition of the Franchise shall indemnify the City as follows A Gencral Liability Franchisee shall indemnify dcfend and hold harmless the City its officers cmployees and agcnts with respect to any loss liability injury or damage that arises out of or is in any way related to the acts or omissions of Aranchisce its cmployees officers and agents in the performance of any activity function or duty authorized by or required under the terms of the Franchise except franchisee shall not be required to mdcmmfy City in connection with the negligence or willful acts or omissions of the City its officers agents or employees B Hazardous Substances Indemnification Franchisee shall indemnify City defend with counsel approved by City protect and hold harmless City its officers employees agents assigns and any successor or successors to City s interest from and against all claims actual damagcs including but not limited to special and consequential damal,cs natural resource damage punitive damages mluncs costs response rcmediation and removal costs losses demands debts liens liabilities causes of action suits Icgal or administrative proceedings interest fines charges penalties and expenses attorneys and expert witness fees and costs mcurrcd in connection with defending against any of the foregoing or in enforcing this indemnity of any kind whatsoever paid incurred or suffered by or asserted against City or its officers cmployees agcnts or Franchisee ansmg from or attributable to Franchisee s activities under this Agreement conccmmg any hazardous substances or hazardous waste at any place where Franchisee stores or disposes of solid or hazardous waste pursuant to tlus franchise agreement or preceding agreements between City and franchisee The foregoing indemnity is intended to operate as an abrcemcnt pursuant to the Comprehensive Environmental Response Compensation and Liability Act 42 U S C Section 9607(c) and any amendments thereto California Health and Safcty Code Scction 25364 to insure protect hold harmless and indemnify City from liability C AB939 Indcmmficahon Franchisee agrees to meet all requirements of City s Sourcc Reduction and Recycling Element as to the portion of the solid waste stream handled by Franchisee Franchisee agrees to protect dcfend mdcmmfy and hold City harmless against all fines or penalties imposed by the Califorma Integrated Waste Management Board with respect to the portion of the commercial waste stream collected by Franchisee D City agrees to give notice to Franchisee when the City receives a claim for damagcs or other liability for which Franchisee has provided indemnification under this Section SECTION 12 VEHICI ES AND EQUIPMH NT A Any and all containers provided to customers of franchisee for storage collection or transportation of commercial solid wastes shall meet the requirements of Scction 12 63 110 of Chapter 12 63 of the Code as well as State of California minimum standards for solid waste handling established under Public Resources Code Section 43020 and applicable health requirements B All containers and all vehicles used by franchisee in the perforinancc of commercial solid waste handling services shall be marked with Franchisees name and telephone number in letters which are not less than four inches (4 ) high or which are easily read by the general public E C Equipment (1) Franchisee shall at all times provide such number of vehicles and such equipment as will be adequate for the collection transportation and disposal services which it is authorized to provide under this Agreement All vehicles utilized by Franchisee in the performance of this Agreement shall be registered with the California Department of Motor Vehicles All vehicles shall be properly maintained kept clean and in good repair and shall be uniformly painted All commercial solid waste containers uscd in the performance of this Agreement shall be kept clean and in good repair and shall be uniformly painted to the satisfaction of the General Services Director All vehicles and equipment uscd by Franchisee in the performance of this Abrcemcnt may be subject to inspection by the City on a semi annual basis (2) Each vehicle shall be so constructed and used that no rubbish garbage debris oil grease or other matcnal will blow fall or leak out of the vehicle All solid waste shall be transported by means of vehicles which arc covered in such a manner as to securely contain all solid waste and to prevent such solid waste from projecting blowing falling or leaking out of the vehicles Any solid waste dropped or spilled in collection transfer or transportation shall be immediately cleaned up by Franchisee A broom and a shovel shall be camcd at all times on each vehicle for this purpose In addition each collection vehicle shall be equipped with trash bags masking tape and notice of non collection tags for the purpose of separating hazardous waste for return to the generator A communications device such as a two way radio or a cellular telephone shall also be maintained on each vehicle (3) Franchisee shall not store any vehicle or equipment on any public street or other public property in the City without the prior written consent of the Gencral Services Director (4) Should the Gcneral Services Director at any time given wnttcn notification to Franchisee that any vehicle does not comply with the standards hereunder the vehicle shall be promptly removed from service by Franchisee and not again be so used until inspected and authorized in wntmg by the Gcneral Services Director SECTION 13 ABANDONED CONTAINERS A Franchisee shall comply with the regulations adopted by the City Managcr for placement of commercial solid waste containers on public property B If Franchisee abandons any commercial solid waste contamcr within the City the City may remove the container and/or dispose of the contents of the contamcr C If City is required to remove a roll off or compactor container abandoncd by Franchisee and/or disposes of the contents of any container abandoncd by Franchisee City may charge Franchisee for City s costs incurred in such removal /disposal and for City s costs of storage of the container Franchisees who are engaged in providing roll off containers shall maintain a $3 000 performance bond certificate of deposit or other form of security acceptable to the City with City Revcnue Division to reimburse City for such costs within ten (10) days of the date of City invoice for such costs 10 I D For the purposes of this Section abandoned includes (1) Franchisee s failure to remove the container within the time period specified by the City Council upon termination of the Franchise pursuant to Section 12 63 130 of the Code (2) Franchisees failure to remove the container within ten (10) working days after the expiration of the Franchise granted to rranchiscc except in the case µhere rranchiscc has been granted an extension of the term of said I ranchisc or Franchisee has been granted a subsequent franchise authonzmb Franchisee to collect and transport the type or types of solid waste for which the container was used pursuant to this Agreement (3) Franchisee s failure to collect the container and dispose of the contents of the container within five (5) days after City s Director of General Services issues written notice to Franchisee to dispose of the contents SFCTION 14 COMPLIANCE WITH LAW A Franchisee shall perform all solid waste handlmb services in accordance with applicable federal state and local law including Chapter 12 63 of the Code Article XIII of the City Charter Ordinance No 95 63 and in accordance with the terms and conditions of this Agreement B Over the course of the franchise term Franclusee and City agree that the City s ordinances may be amended as necessary to permit the City to comply with changes to federal state and local legislative regulatory requirements which may affect or alter City s solid waste handlinb obligations or requirements for solid waste management Franchisee abrccs to comply with any such amendment of the City s ordinances SECTION 15 PERMITS AND LICENSES Franchisee shall obtain and maintain at Franchisee s sole cost and expense all permits and licenses applicable to Franchisee s operations under the Franchise which are required of Franchisee by any governmental agency SECTION 16 PUBLIC FDUCATION ACTIVITIES A City and Franchisee shall cooperate in co sponsoring not more than one promotional event per year as mutually abreed upon in advance by the parties which is related to the implementation of commercial solid waste handling services and recycling services B Each year dunnb the tern of this Agreement on an annual basis 1 ranchise shall transmit promotional brochures or fliers to its commercial customers and to such prospective commercial customers as it may select informing them of the commercial solid waste handling services and recycling services which are provided by the Franchisee as well as hazardous waste disposal requirements 74 C All promotional brochures fliers or other information distnbuted by Franchisee hereunder shall be pnnted on recycled paper All such informational matcnals shall be approved in advance by the City s General Services Director SECTION 17 1 ERMINA'l ION AND SUSPENSION A The franchise granted to Franchisee may be terminated by the City Council pursuant to Section 12 63 130 of the Code B In the event the Franchise is terminated pursuant to Subsection A above or the term of this Agreement expires (1) Franchisee shall have no nght or authority to cngabc in commercial solid waste handling operations in the City of Newport Beach subject to the provisions of Sections 49520 49523 of the Public Resources Code (2) Franchisee shall however remain liable to City for any and all franchise fees that would otherwise be payable by Franchisee for any and all late payment charges and interest assessed pursuant to Section 4 of this Agreement and for any and all delinquent report charges assessed pursuant to Section 6 of this Agreement (3) Franchisee shall have a continuing obligation to submit to City all reports required by Section 6 of this Agreement which relates to commercial solid waste handling activities performed by Franchisee up to and including the date of termination suspension or expiration (4) Franchisee shalt allow the solid waste generators served by Franchisee to arrange for solid waste handling services with a solid waste cnterpnse collector authonzed to perform such services without penalty or liability for breach of contract on the part of the generators for such penod of time as Franchisee is not authonzed to perform such services because of termination or suspension (5) Franchisee agrees to continue to provide the mdemntficauons required in this contract after tts suspension or termination Such indemnifications include but are not limited to the hazardous matenals indemnification and AB939 indemnification in Section I 1 C In the event this Franchise is terminated pursuant to Subsection A above then within the time penod specified by the City Council Franchisee shall remove all of Franchisee s commercial solid waste containers and all of such containers used by franchisee s subcontractors in performance of solid waste handling services pursuant to the Franchise from all Franchisee s collection service locations and shall properly dispose of all solid waste in such containers D In the event the Franchise is terminated pursuant to Subsection A above or expires without an extension of the term and without a grant of a Subsequent Franchise allowing Franchisee to continue performing such services then within ten (10) days of such termination or expiration Franchisee shall either 12 P (1) Submit to City s General Services Director a list of the names and addresses of solid waste generators in Newport Beach for which Franchisee provided services as of the date of termination or expiration (i a Franchisee s Newport Beach customer list) or (2) Send written notification to each solid waste generator on Franchisee s customer list that Franchisee is no longer authorized to provide commercial solid waste handling services in Newport Beach Such notification shall be in the forth provided by City s General Services Director and shall be personally delivered or shall be sent by first class mail postage prepaid to the customers billing addresses rranchiscc shall submit to City s General Services Director an affidavit sibncd under penalty of penury stating that the required notification has been provided by Franchisee to all of Franchisee s Newport Beach customers SECTION 18 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 pnor express wntten consent of the City Council This prohibition includes any transfer of ownership or control of Franchisee or the conveyance of a majority of Franchisees stock to a new controlling interest City s consent shall not be unreasonably withheld SECTION 19 MISCELLANEOUS PROVISIONS A Notices Except as otherwise provided in this Agreement all notices required by this Agreement shall be given by personal service or by deposit in the United States mail postage pre paid and return receipt requested addressed to the parties as follows To General Services Director City of Newport Beach 3300 Newport Boulevard Newport Beach CA 92659 To Franchisee CST Environmental, Inc 404 North Berry Street Brea, CA 92821 -3104 Notice shall be deemed effective on the date personally served or if mailed three days after the date deposited in the mails B Amendments This Agreement supersedes all prior agreements and understandml,s between the parties and may not be modified or terminated orally and no modification termination or attempted waiver of any of the provisions hereof shall be binding unless in wnting and signed by the party against whom the same is sought to be enforced 13 " C Apphcablc Law This Abrcemcnt and the transactions herein contemplated shall be construcd in accordance with an govcmcd by the apphcablc laws of the Statc of California and of the United Statcs D Authority The parties sibmnb below rcprescnt and warrant that they have the requisite authority to bind the entities on whosc behalf they are sibmnb E Conflicts In the event of any conflict bctwecn the provisions of this Agreemcnt and the provisions of Chaptcr 12 63 of the Codc the provisions of this Agrccmcnt shall control F Sevcrabihty If any provision of this Agrcemcnt is determined by a court of competent jurisdiction to be invalid or uncnforceablc the remammb provisions shall not be affcctcd unless their enforcement under the circumstances would be unreasonable inequitable or would otherwise frustrate the purposes of this Agreement 14 w r WITNESS THE EXECUTION OF THIS AGREEMENT ON THE DATE WRITTEN BELOW EACH SIGNATURE CITY CITY OF NFWPORT BEACH a Municipal Corporation LAVONNE M HARKLESS City Clcrk BY �— �.( 7&2, Mayor DATE o? //41 E'/ APPROV AS TO FORM ROBIN LAUSON FRAN( HISEE Assistant City Attomcy ('ST Fnvi rnmmantnl Tn, CUMPANY NA NAME 'Joseph Chelstowski (Print) TITLE Vice President DATE F 1Lxn (,S \"VCR MD U1 , R f.. R c 1 9%H I n v W d% Ira h un1 A dx 15 STATE OF CALIFORNIA } COUNTY OF ORANGE CITY OF NEWPORT BEACH } I, LAVONNE M. HARKLESS, City Clerk of the City of Newport Beach, California, do hereby certify that the whole number of members of the City Council is seven; that the foregoing ordinance, being Ordinance No. 2001 -1 was duly and regularly introduced before and adopted by the City Council of said City at a regular meeting of said Council, duly and regularly held on the 13th day of February 2001, and that the same was so passed and adopted by the following vote, to wit: Ayes: Heffernan, O'Neil, Ridgeway, Glover, Bromberg, Proctor, Mayor Adams Noes: None Absent: None Abstain: None IN WITNESS WHEREOF, I have hereunto subscribed my name and affixed the official seal of said City this 14th day of February 2001. (Seal) City Clerk City of Newport Beach, California CERTIFICATE OF PUBLICATION STATE OF CALIFORNIA } COUNTY OF ORANGE } as. CITY OF NEWPORT BEACH } I, LAVONNE M. HARKLESS, City Clerk of the City of Newport Beach, California, do hereby certify that Ordinance No. 2001 -1 has been duly and regularly published according to law and the order of the City Council of said City and that same was so published in The Daily Pilot, a daily newspaper of general circulation on the following date, to wit: February 17, 2001. In witness whereof, I have hereunto subscribed my name this �'� day of 2001. �. City Clerk City of Newport Beach, California