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Home My WebLink AboutTight Quarters, Inc.ACCEPTANCE OF NON-EXCLUSIVE FRANCHISE AGREEMENT FOR SOLID WASTE AND DIVERTIBLE MATERIALS HANDLING SERVICES WHEREAS, on September 8, 2020, the City Council of the City of Newport Beach ("City") adopted Ordinance No. 2020-20, entitled An Ordinance of the City Council of the City of Newport Beach, California, Granting The 2020 Non -Exclusive Franchise Agreement for Commercial Solid Waste and Divertible Materials Handling Services Within the City of Newport Beach, which granted Tight Quarters, Inc. ("Franchisee") a non-exclusive franchise to operate, maintain, and provide commercial solid waste handling services along, across and over City's public streets, ways, alleys and places ("Franchise"); WHEREAS, pursuant to City Charter Section 1303, any Franchise granted by the City shall not become effective unless and until written acceptance is filed by Franchisee with the City Clerk after adoption of the ordinance granting the franchise; and WHEREAS, Franchisee wishes to accept the Franchise granted by Ordinance No. 2020-20 by filing written acceptance thereof. NOW THEREFORE, Franchisee hereby accepts the Franchise granted by Ordinance No. 2020-20 and hereby agrees to comply, in all operations, with the provisions of the City Charter, Newport Beach Municipal Code Chapter 12.63, Ordinance No. 2020-20, the franchise agreement awarded pursuant to Ordinance No. 2020-20, and all applicable federal, state, and local laws. Franchisee agrees such acceptance operates as an abandonment of any such prior franchises, rights and privileges within City limits, as such limits shall at any time exist, and shall constitute a continuing agreement of Franchisee that if and when the City shall thereafter annex, or consolidate with, additional territory, any and all franchises, rights and privileges owned by Franchisee therein shall likewise be deemed to be abandoned within the limits of such territory. FRANCHISEE: Date:.' r Z G CITY CLERK'S VERIFICATION OF ACCEPTANCE By: Na/e:, Title: )0A0S,-,Z&"4 I, Leilani I. Brown, City Clerk, certify ,ttSia M-CILLZZ a ce of the Franchise granted by Ordinance No. 2020-20 was received by me on�a.m p. NON-EXCLUSIVE FRANCHISE AGREEMENT BETWEEN THE CITY OF NEWPORT BEACH AND TIGHT QUARTERS, INC. FOR COMMERCIAL SOLID WASTE AND DIVERTIBLE MATERIALS HANDLING SERVICES This Non-exclusive Franchise Agreement for Commercial Solid Waste and Divertible Materials Handling Services ("Agreement") is entered into this 8th day of October, 2020 ("Effective Date") by and between the City of Newport Beach, a California municipal corporation and charter city organized and existing under the laws of the State of California ("City"), and Tight Quarters, Inc., a California corporation ("Franchisee") (City and Franchisee may collectively be referred to as "Parties"), whose address is 2031 S. Anne Street, Santa Ana, California 92704 and is made with reference to the following: RECITALS This Agreement is entered into on the basis of the following facts: A. Assembly Bill ("AB") 939 (the California Integrated Solid Waste Management Act of 1989, hereinafter the "Act"; Public Resources Code Sections 40000 et seq.) requires the City to divert from landfill disposal a minimum of fifty percent (50%) of all municipal solid waste generated within the City. B. In 2011, the Act was amended by AB 341 to establish a statewide goal of diverting from landfills seventy-five percent (75%) of all municipal solid waste by 2020 and required the City, on or before July 1, 2012, to provide a commercial recycling program. C. AB 341 also requires all businesses generating more than four (4) cubic yards per week of commercial municipal solid waste and all multifamily dwellings of five (5) units or more to arrange for recycling services by July 1, 2012. D. In 2014, the Act was further amended by AB 1826 to require the City, on or before January 1, 2016, to provide a diversion program for collection and diversion of food scraps and green waste. E. AB 1826 also requires commercial generators of certain quantities of food scraps and green waste to participate in a diversion program beginning on a date between April 1, 2016 and January 1, 2019, depending on the quantity of waste generated. Some smaller commercial generators are required by CalRecycle to participate on or after January 1, 2020. F. The City has received written notification from CalRecycle of its intention to enforce the deadlines for implementation of AB 341 and AB 1826 programs within the City as required by the Act; therefore, it is important that Franchisee implement and maintain successful AB 341 an AB 1826 diversion programs for all commercial customers as required by the Act, to the satisfaction of both the City and CalRecycle. G. Pursuant to Article XIII of the City Charter, Code Chapter 12.63, and Public Resources Code Sections 40059, 49300, and 49500 through 49523, or any successor statutes, the City is authorized to enter into non-exclusive franchise agreements for commercial solid waste and divertible materials handling services. H. On October 10, 2017, the City Council of the City of Newport Beach ("City Council") adopted Ordinance No. 2017-16, An Ordinance of the City Council of the City of Newport Beach, California, Granting Non -Exclusive Solid Waste Franchises to Provide Commercial Solid Waste Handling Services Within the City of Newport Beach. I. As part of its adoption of Ordinance No. 2017-16, the City entered into a number of nonexclusive franchise agreements allowing solid waste haulers to operate in the City. J. On October 22, 2019, the City Council approved revisions to the nonexclusive franchise agreement with solid waste haulers to improve procedures for compliance with Assembly Bills 341 and 1826. The revised nonexclusive franchise agreement also extended the term for an additional two (2) years. K. Pursuant to Code Chapter 12.63, Franchisee has filed a franchise application with the City to operate under the new Nonexclusive Franchise Agreement for Commercial Solid Waste and Divertible Materials Handling Services. L. The Parties now wish to terminate the franchise agreement adopted pursuant to Ordinance No. 2017-16 and enter into a new Nonexclusive Franchise Agreement for Commercial Solid Waste and Divertible Materials Handling Services. M. City has reviewed Franchisee's application and Franchisee has represented it is capable of providing collection services for commercial recyclable materials, food scraps, green waste, municipal solid waste, and/or construction and demolition debris in the City. N. Pursuant to this Agreement, City desires to authorize Franchisee to provide those non-exclusive commercial services for collection, transportation, delivery, and disposal of Municipal Solid Waste and/or collection, transportation, processing and diversion of recyclable materials, food scraps, green waste, wood waste, and construction and demolition debris as requested in Franchisee's application and for which Franchisee has demonstrated capability. 0. The City Council has determined that this grant of a non-exclusive franchise is in the public interest. NOW, THEREFORE, the City and Franchisee do hereby agree as follows: SECTION 1. GRANT OF FRANCHISE A. By Ordinance No. 2020-20, City has granted to Franchisee a non-exclusive Franchise authorizing Franchisee to provide Commercial Franchise Services within all or any part of the City and to use the public streets and public right-of-ways for such purpose. Franchisee acknowledges that the Franchise is not exclusive and that the Franchise is Non-exclusive Franchise Agreement Page 2 subject to all provisions of applicable law, including, but not limited to, Article XIII of the City Charter, Ordinance No. 2020-20, Code Chapter 12.63, and the terms and conditions of this Agreement. B. Upon the Effective Date of this Agreement, the parties agree that any prior authorization relating to the provision of Commercial Franchise Services within all or any part of the City arising under and pursuant to any prior franchise issued to Franchisee shall be deemed to be abandoned and of no further force or effect except the Franchisee's obligation(s) to comply with the Diversion requirements set forth in Sections 12 through 15, the Continuing Obligations set forth in Section 23(J), or any other obligations specified in the franchise agreement granted pursuant to Ordinance No. 2017-16. SECTION 2. TERM OF FRANCHISE This Agreement shall commence on the Effective Date, and shall terminate on the Termination Date, unless terminated earlier as set forth herein. SECTION 3. DEFINITIONS "AB 341 Generator" means all Municipal Solid Waste generators required by AB 341 (Public Resources Code Section 41780.01) to divert Recyclable Materials generated on-site from Disposal including (A) all businesses located and operating within the City, and the responsible party, property owners, owners, operators, property managers, tenants and lessees of same, that generate four (4) or more cubic yards of Municipal Solid Waste per week; including but not limited to, retail stores, restaurants, offices, supermarkets, convenience stores, malls, strip malls, service businesses, hospitals, assisted living facilities, and federal, state and local government facilities; (B) Multifamily Dwellings consisting of five (5) or more units regardless of the amount of Municipal Solid Waste generated; (C) the City, its facilities, its non-residential properties, and (D) special events that take place in the City that generate four (4) or more cubic yards of municipal solid waste per event whether or not sponsored by the City. "AB 1826 Generator" means all food -generating businesses within the City, and the responsible parties, property owners, owners, operators, property managers, tenants and lessees of same, that generate four (4) or more cubic yards of Municipal Solid Waste per week and are required by AB 1826, as codified in Public Resources Code Section 42649.82, to divert all Food Scraps generated on-site from Disposal; including but not limited to, all restaurants, cafeterias, hospitals, and supermarkets; (B) all non -food - generating businesses and the responsible parties, property owners, owners, operators, property managers, tenants and lessees of same, that generate four (4) or more cubic yards of Municipal Solid Waste per week and that generate Green Waste and/or Wood Waste (C) all Multifamily Dwellings consisting of five (5) or more units regardless of the amount of Municipal Solid Waste generated; (D) federal, state and local government facilities, schools, the City, its facilities, and its non-residential properties; and (E) special events that take place within the City that generate four (4) or more cubic yards of municipal solid waste per event, whether or not sponsored by the City. As of the effective date of this Agreement, the threshold amount of Municipal Solid Waste provided for in Public Resources Code Section 42649.81 is four (4) or more cubic yards of Municipal Non-exclusive Franchise Agreement Page 3 Solid Waste per week on or after January 1, 2020. If CalRecycle changes the quantities of Municipal Solid Waste necessary to be considered an AB 1826 Generator, the definition of an AB 1826 Generator shall be automatically amended to reflect these new quantities. "Act" means the California Integrated Waste Management Act of 1989 (Public Resources Code Sections 40000, et seq.) as amended and as implemented by regulations of CalRecycle (or its successor agency) and the Air Resources Board (or its successor agency). "Alternative Daily Cover" or "ADC" means cover material other than earthen material placed on the surface of the active face of a Municipal Solid Waste Landfill at the end of each operating day to control vectors, flies, fires, odors, blowing litter and scavenging. Prior to 2014, Green Waste was included in the list of CalRecycle-approved ADC materials and use of Green Waste for this purpose was counted as "Diversion" for purposes of the Act. AB 1594, passed and signed into law in 2014, phases out the use of Green Waste as ADC effective January 1, 2020. As of January 1, 2020, no Green Waste Collected within the City will not be used as ADC and Green Waste must be diverted for processing such as mulching, Composting, as feedstock for Anaerobic Digestion or other CalRecycle-approved means that counts as Diversion. "Anaerobic Digestate" or "Digestate" means the material left at the conclusion of a biological process that decomposes organic matter in an enclosed environment with little or no oxygen, resulting in a biogas and a liquid/solid stream called Digestate (CCR Section 17896.2(a)(6)). Any Digestate created from Green Waste, Food Scraps or other organic materials Collected within the City must be further processed at a permitted Composting Facility or utilized in another manner that is fully permitted and approved by all federal, state and local regulatory agencies, including but not limited to CalRecycle, and that is considered as "Diversion" by CalRecycle for purposes of the Act. "Anaerobic Digestion" means a biological process that decomposes organic matter in an environment with little or no oxygen, resulting in a biogas and a liquid/solid stream called Anaerobic Digestate. Such activity takes place at an "Anaerobic Digestion Facility." "Bin(s)" means open top rectangular containers with wheels, with attached plastic or metal lids, used for storage of Municipal Solid Waste, Recyclable Materials, Green Waste, Food Scraps, Construction and Demolition Debris or other materials that are Collected by Franchisees or other Persons authorized to Collect and transport such materials within City. "Bioengineered Feedstock" means a mixture of materials utilized in Wastewater Treatment Plants (WWTP's) or publically-owned treatment works (POTW's) to produce biogas. (This process is also referred to as "wet anaerobic digestion.") Bioengineered Feedstock may include primary and secondary sludge, greases from the WWTP grease trap, and organic materials such as Food Scraps from businesses and households or other organic materials from industries that have been pre-treated and liquefied to the required consistency. Non-exclusive Franchise Agreement Page 4 "Bioengineered Feedstock Facility" means a Processing Facility that accepts Food Scraps and other Bioengineered Feedstock, chops, macerates or otherwise size -reduces the incoming materials, mixes the material with liquid and produces a slurry which is then transported or otherwise delivered to a Wastewater Treatment Plant or similar facility that uses Bioengineered Feedstock to produce methane, "CalRecycle" means the California Department of Resources Recycling and Recovery, the successor agency to the former California Integrated Waste Management Board. "Can" means a receptacle for Municipal Solid Waste, Recyclable Materials, Green Waste, Food Scraps or wood provided by the Customer and Collected using manual (instead of automated) means of Collection. "Cart" means a plastic wheeled Container with a hinged lid used to store Municipal Solid Waste, Recyclable Materials, Green Waste or Food Scraps that is Collected by an automated or semi -automated vehicle. "CERCLA" means the Comprehensive Environmental Response, Compensation and Liability Act of 1980 (42 USC §9601 et seq.). "City Council" means the City Council of the City of Newport Beach. "City Manager," "Finance Director," and "Public Works Director" mean the City Manager, Finance Director and Public Works Director of the City or their designee. Clean Materials Recovery Facility ("Clean MRF") means a materials recovery facility ("MRF"), or that portion of a MRF, that processes Recyclable Materials that have been separated from Municipal Solid Waste such as Single Material Recyclables and Single Stream Recyclable Materials, containing no more than the maximum Residue or contamination allowed by CalRecycle (10% Residue). "Code" means the Newport Beach Municipal Code. "Collect" or "Collection" means taking physical possession of Commercial Solid Waste, or other materials, from Customers and transporting such materials by means of a motor vehicle, or other means, to a MRF, Compost Facility, other Organics Processing Facility, Construction and Demolition Debris Processing Facility, transfer station or Landfill. "Commercial Franchise Services" means the services provided by Franchisees pursuant to the terms and conditions of the Franchise and includes the Collection, transportation, storage, and Disposal of Municipal Solid Waste and the Collection, transportation, Processing and Diversion of Processible Municipal Solid Waste, Recyclable Materials, Green Waste, Wood Waste, Food Scraps and/or Construction and Demolition Debris by private solid waste enterprises, and includes, without limitation, the placement of Commercial Solid Waste and Divertible Materials Containers on public property. Non-exclusive Franchise Agreement Page 5 "Commercial Premises" means all occupied real property in the City used for commercial purposes including, without limitation, wholesale or retail establishments, restaurants, other food establishments, bars, stores, shops, offices, mechanized manufacturing facilities, repair, research and development or professional services, sports or recreational facilities, industrial facilities, federal, state and local government facilities, schools, Multi -Family Dwellings that receive centralized Collection service and construction and demolition sites. "Compactor" means an enclosed rectangular or square metal container containing a ramrod to condense and compress the contents, and is typically used to store Municipal Solid Waste, Green Waste, Recyclable Materials, Food Scraps or Construction and Demolition Debris. Compactors may be small (3 or 4 cubic yards) for use on smaller Commercial Premises or large (10, 20, 30 or cubic yards) for use at large Commercial Premises such as supermarkets, hotels, and large retail stores or at construction sites. A special Roll Off vehicle equipped with hooks and a winch to pull the Compactor on to the railed bed of the vehicle is used to Collect Compactors and transport them to a Landfill or to a Processing Facility. "Compost" means the product resulting from the controlled biological decomposition of organic wastes which are separated from the Municipal Solid Waste stream at the point of generation and includes Food Scraps, Green Waste, and wood that are not hazardous wastes. "Compost Facility" means a facility that processes one (1) or more of the following: Food Scraps, Green Waste, wood and food -soiled fiber such as paper napkins and paper towels, by means of outdoor windrow composting, aerated static pile composting, covered composting, vermiculture or other outdoor composting methods or covered composting with use of either finished compost or fiber, synthetic or other type(s) of cover(s) applied to the compost piles. "Composting" means the controlled microbial degradation of organic materials yielding a safe and nuisance -free finished product called Compost, a soil amendment suitable for incorporating into topsoil and for growing plants. "Construction and Demolition Debris" means all inert material of every nature, description or kind, which has resulted from the building or demolition of a structure, pavements, sidewalks, curbs, gutters and other concrete structures, including all lumber scraps, shingles, plaster, sheetrock, packaging, rubble, brick, stone, concrete, asphalt, dirt, rock and other building material. A facility that accepts Construction and Demolition Debris for separation and further processing to prepare materials for sale or re -use (such as removing nails and screws from wood, or grinding of concrete and asphalt) and then markets the materials for re -use is a "Construction and Demolition Debris Processing Facility." "Container(s)" means any object designed and used to hold or store Municipal Solid Waste, Recyclable Materials, Food Scraps, Green Waste, or Construction and Demolition Debris to be Collected by Franchisees. Containers include Carts, Bins, open top Roll Off Boxes, and Compactors. Non-exclusive Franchise Agreement Page 6 "Contamination" means materials that are not specified for Collection in particular Containers or for processing at either a Clean MRF or a Dirty MRF, which would either interfere with such processing and/or reduce the quality and value of the Recovered Materials. For example, for purposes of Collection, metals and plastics would constitute "Contamination" if placed in a Food Scrap Container and tree trimmings would constitute "Contamination" if placed in a Recyclable Materials Container. "Customer" means the owner, occupant, manager or user of premises at which Municipal Solid Waste, Recyclable Materials, Green Waste, Wood Waste, Food Scraps or Construction and Demolition Debris are generated who requests and receives Commercial or Multifamily Collection services for Municipal Solid Waste and/or Divertible Materials from one or more Franchisees. In the event a business, non-residential property, Multifamily dwelling or Commercial Premises shares Containers and/or Collection services, "Customer" refers only to the entity that arranges and pays for such services. Dirty Materials Recovery Facility ("Dirty MRF") means a facility, or that certain portion of a facility, that processes Processable Municipal Solid Waste to separate Recyclable Materials, Green Waste, Wood Waste, Construction and Demolition Debris and other Divertible materials for sale to end users. Franchisees shall not utilize any Dirty MRF that has not been approved by City and that does not meet the standards and requirements of Public Resources Code Section 42649 and all subsequent amendments, rules, and regulations promulgated in furtherance thereof requiring a Dirty MRF to be a source -separated comparable MRF. "Disposal" means the final disposition of solid waste of Municipal Solid Waste at a permitted landfill or transformation at a permitted facility, as transformation is defined and limited by the Act other permitted solid waste disposal facility. "Diversion" or "Divert" means any combination of Recycling, sorting, Composting and other processing activities conducted at a Clean MRF, a Dirty MRF, a Compost Facility, an Anaerobic Digestion Facility, a Bioengineered Feedstock Facility, and/or a Construction and Demolition Debris Processing Facility in order to use or market the materials for re -use, remanufacture, reconstitution or otherwise return the materials to the economic marketplace and to prevent the materials from being Disposed in a Landfill. "Diversion Plan" or "the Plan" means a plan prepared for a Customer by Franchisee pursuant to Exhibit E, Section A 2 of this Franchise Agreement that describes in detail the Diversion Program(s) recommended by Franchisee to be implemented at Customer's premises. A Diversion Plan contains estimated quantities of Divertible Materials generated at the Customer's premises, recommended types and sizes of outside Containers for storage of Divertible Materials, recommended frequency of Collection; modifications to sizes, types and Collection frequency for Containers for Municipal Solid Waste to adjust for the separate storage and Collection of Divertible Materials, and plans for the flow of materials through Customer's premises, including the location and sizing of interior Containers required for separation and interim storage of Non-exclusive Franchise Agreement Page 7 Divertible Materials. Diversion Plans also contain projected costs and any projected cost savings to the Customer for implementing the Diversion Plan. "Diversion Program(s)," "Recycling Program(s)" and "Diversion Services" mean Recyclable Materials Collection, Green Waste Collection, Wood Waste Collection, Food Scraps Collection, Processable Municipal Solid Waste Collection, Construction and Demolition Debris Collection and subsequent processing of the Collected materials at a Clean MRF, a Dirty MRF, a Compost Facility, an Anaerobic Digestion Facility, a facility creating Engineered Feedstock for digestion at a wastewater treatment plant, a Construction and Demolition Debris Processing Facility and all other programs operated by Franchisees, the City, Residents, Customers or other Persons that have the effect of Diverting Municipal Solid Waste from Landfill Disposal. Diversion Programs includes, but is not limited to, all of the programs included in the City's SRRE and all of the programs included in this Agreement. "Divertible Materials" or "Divertible" means Recyclable Materials, Food Scraps, Green Waste, Wood Waste, Construction and Demolition Debris, electronic waste, universal waste and all other materials that can be diverted from Landfill Disposal. Divertible Materials includes, but is not limited to, all materials required to be diverted from Landfill Disposal by City, CalRecycle or any state or federal agency." "Edible Food For Human Consumption" or "Edible Food" means food that has been prepared but not served, and includes, but is not limited to: any appetizer, soup, salad, entr6e, dessert, raw fruit and vegetable, that may or may not have been sliced, grated, cooked, baked or otherwise prepared for consumption but not served, any packaged sandwich, salad, fruit and fruit salad and any other non -served food that meets state and local requirements as being edible for human consumption. "Effective Date" means the date upon which this Agreement is effective as set forth in the first paragraph of this Agreement. "Environmental Laws" means any and all present and future federal, state or local laws (whether common law, statute, rule, regulation or otherwise), permits, orders and any other requirements of Governmental Authorities relating to the environment or any "Hazardous Substance" or "Hazardous Substance Activity" as defined herein, including, without limitation, the Comprehensive Environmental Response, Compensation and Liability Act of 1980 (42 U.S.C. Sections 9601 et seq.) as amended from time to time and the applicable provisions of the California Health and Safety Code and California Water Code. "Food Scraps" means material resulting from the production, processing, preparation or cooking of food for human consumption that is separated from Municipal Solid Waste. Food scraps include surplus or unsold edible food, raw food left over after food preparation, leftover cooked food, as well as spoiled food such as vegetables and culls, and plate scrapings. Food scraps includes food -soiled paper that is mixed in with the food scraps. "Food Scraps" are Collected and transported to Food Scrap Processing Facilities which include Compost Facilities, Anaerobic Digestion Facilities, and Wastewater Treatment Plants utilizing Engineered Feedstock. Non-exclusive Franchise Agreement Page 8 "Food Soiled Paper" means paper towels, tissue products, paper napkins, paper plates and cups, coffee filters, tea bags, waxed paper, butcher paper, paper take-out boxes and containers, greasy pizza boxes, paper bags, cardboard and wax -coated cardboard produce boxes that are Contaminated with Food Scraps. Food Soiled Paper does not include polystyrene, aluminum foil, foil -lined wrap or diapers. "Franchise" or "Franchise Agreement" means this Agreement between the City and a Franchisee, granted pursuant to Agreement Section 1(A), providing Franchisee the right, for a specified period of time and pursuant to Article XIII of the City Charter, the Code, and the terms and conditions of this Agreement, to provide for the Collection and Diversion of Commercial Solid Waste Handling Services to Commercial Premises and Multifamily Dwellings within all or any part of the City of Newport Beach and to use the public streets and public right-of-ways for such purpose. Throughout this Agreement, the terms "Agreement," "Franchise" or "Franchise Services" may be used interchangeably unless otherwise specified or the context requires otherwise. "Franchisee" means the individual or business entity identified as "Franchisee" on the signature page of this Agreement. "Franchise Fee" means the fee or assessment imposed by the City on a Franchisee, which among other things, is intended to offset the City's expenses related to the administration of the Franchise Agreement, the Integrated Waste Management Program, the maintenance and implementation of the City's Source Reduction and Recycling Element, compliance with the California Integrated Waste Management Act, to compensate the City for damages to its streets, sidewalks, curbs and gutters and other infrastructure resulting from the Franchisee's exercise of its rights under the franchise, City's reporting requirements and other related expenses. "Generator" means a resident, an owner or responsible party for a Multifamily Dwelling, Commercial Premises, or business that Generates Municipal Solid Waste, Recyclable Materials, Green Waste, Food Scraps and/or Construction and Demolition Debris as a result of its business, commercial facility or property activity. Generator may also include tenants, property managers for facilities with leased space, employees and contractors of Generator. "Generate" means to bring into existence or create, or to use, maintain, or possess an item, material or product, the result of which such creation, bringing into existence, use, maintenance or possession is that the item, material or product first becomes, or is converted transformed, evolved or deemed as Municipal Solid Waste, Recyclable Materials, Food Scraps, Green Waste or Construction and Demolition Debris. "Green Waste" means any debris that is composed of organic material or plantlike matter, which is a result of seasonal variations, landscape or gardening activities. Green Waste includes, without limitation, grass clippings, leaves, shrubs, trees, branches, stumps, flowers, plant stalks and non -hazardous wood. Green Waste does not include Food Scraps. Non-exclusive Franchise Agreement Page 9 "Gross Receipts" means all money, whether paid by cash, check, debit or credit, or other consideration collected from Customers by Franchisee that relates in any way to Commercial Franchise Services provided by Franchisee to Customers, whether or not such services occur wholly or partially within the City, including, but not limited to, Collection, processing, removal, marketing and Diversion of Recyclable Materials, Green Waste, Food Scraps, Processable Municipal Solid Waste and Construction and Demolition Debris and Disposal of Non-Processable Municipal Solid Waste, Industrial Waste, trash, litter, as well as fuel surcharges. Gross receipts shall also include all money received by any Person other than the Franchisee, where the money was paid to the Person to avoid the Franchisee's obligations under this chapter and/or the Franchise. Gross Receipts shall not include (or if included there shall be deducted, but only to the extent they have been included) the following: (1) if any sales taxes are levied on the Franchisee's Commercial Franchise Services in the City, the amount of State sales taxes collected in connection with Franchisee's provision of such services in the City and remitted to the State pursuant to State law; (2) the amount of documented bad debt write- offs due to uncollectible accounts for Franchisee's Commercial Franchise Services in the City, not to exceed three percent (3%) of Gross Receipts; and (3) revenues collected for Franchisee's Commercial Franchise Services provided to the City through a written contract. "Hazardous Waste" or "Hazardous Substance" means any (a) chemical, compound, material, mixture or substance that is now or hereinafter defined or listed in, or otherwise classified pursuant to any Environmental Law as a "hazardous substance," "hazardous material," "hazardous waste," "extremely hazardous waste," "infectious waste," "toxic waste," "toxic pollutant," or any other formulation intended to define, list or classify substances by reason of deleterious properties or effect and (b) petroleum, petroleum by-products, natural gas, natural gas liquids, liquefied natural gas, synthetic gas usable for fuel (or mixtures of natural gas in such synthetic gas), ash, steam, drilling fluids, produced waters and other wastes associated with the exploration, development and production of crude oil, natural gas or geothermal resources. "Industrial Waste" means solid waste originating from mechanized manufacturing facilities, factories, refineries, construction and demolition projects, publicly operated treatment works, or solid waste placed in Commercial Solid Waste containers excluding hazardous waste. "Landfill" means a fully permitted disposal site that accepts Municipal Solid Waste that is in compliance with all Federal, State and local laws, regulations and permits conditions at the time Municipal Solid Waste is delivered and unloaded at the disposal site. "Multifamily Dwelling" mean housing projects containing or consisting of five (5) or more units, whether apartment houses, condominiums, townhomes, or mixed use projects, mixed use condominiums and rental housing, which use centralized Commercial Solid Waste Containers (including Bins, Carts and/or Compactors) for storage of Municipal Solid Waste, Recyclable Materials, Green Waste and/or Food Scraps. Multifamily Dwelling does not include single-family residences, duplexes, tri-plexes or four-plexes that receive individual Collection services for Municipal Solid Waste, Non-exclusive Franchise Agreement Page 10 Recyclable Materials, Green Waste and/or Food Scraps stored in wheeled carts. For purposes of the implementation of the Diversion programs, reporting requirements, and the percentage Diversion requirements, "Commercial Tons" shall include only Tons Collected from Multifamily Dwellings in Carts, Bins, Compactors or Roll Off Boxes and shall not include any Tons Collected from Containers Collected from Commercial Premises. Tons Collected from Containers Collected from Commercial Premises shall be reported separately. "Municipal Solid Waste" means all Processable Municipal Solid Waste and all Non- Processable Municipal Solid Waste, putrescible and nonputrescible solid and semisolid wastes, Generated in or upon, related to the occupancy of, remaining in or emanating from residential, commercial, and/or industrial premises, including, but not limited to, garbage, trash, refuse, rubbish, ashes, Industrial Waste, discarded home and industrial appliances, manure, vegetable or animal solid or semisolid wastes, and other solid and semisolid wastes. Municipal Solid Waste excludes Recyclable Materials, Green Waste, Food Scraps, Construction and Demolition Debris, liquid wastes, abandoned vehicles and hazardous, biohazardous and biomedical wastes. "Non-Processable Municipal Solid Waste" means putrescible and non-putrescible solid and semi-solid wastes Generated in or upon, related to the occupancy of, remaining or emanating from residential, Commercial, and/or industrial premises, that has been segregated or separated from Recyclable Materials, Food Scraps, Green Waste, wood and/or Construction and Demolition Debris such that the remaining constituents in the Non-Processable Municipal Solid Waste (such as broken glass, diapers, ashes, Industrial Waste, discarded Bulky Goods that cannot be re -used or dismantled for Recycling, manure, vegetable or animal solid or semi-solid wastes that remain after segregation of Food Scraps and Green Waste) cannot be diverted by reasonable economic or technologically available means. Non-Processable Municipal Solid Waste does not include Recyclable Materials, Green Waste, Food Scraps, wood, Construction and Demolition Debris, Bulky Goods or other materials that have been segregated for Diversion; liquid wastes; low level radioactive waste regulated under California Health and Safety Code Sections 20015, et seq.; abandoned vehicles and auto parts; hazardous, biohazardous and biomedical wastes. "Person" means an individual, firm, association, organization, partnership, corporation, business trust, joint venture, Limited Liability Company, the United States, the State of California, the County, municipality, special purpose district or any other business entity whatsoever. "Processable Municipal Solid Waste" means putrescible and non-putrescible solid and semi-solid wastes Generated in or upon, related to the occupancy of, remaining or emanating from residential, commercial, and/or industrial premises that can be sorted at a Dirty MRF to separate any Divertible Materials contained therein for Recycling. Processable Municipal Solid Waste may also contain non-divertible constituents including but not limited to, broken glass, diapers, ashes, Industrial Waste, discarded Bulky Goods that cannot be re -used or dismantled for Recycling, manure, vegetable or animal solid or semi-solid wastes that remain after segregation of Food Scraps and Green Waste, which Non-exclusive Franchise Agreement Page 11 cannot be separated or sorted out of the Processable Municipal Solid Waste by reasonable economic or technologically available means. "Processing Facility/Facilities" means a facility or facilities where the following activities are conducted: sorting, cleaning, treating, Composting and reconstituting Collected materials and returning these materials to the economic mainstream in the form of raw materials for new, reused or reconstituted products which meet the quality standards of the market place (activities are herein collectively defined as "Processing"). Processing Facilities include Materials Recovery Facilities (both Clean and Dirty MRF's as defined herein), Composting Facilities, Anaerobic Digestion Facilities, Wastewater Treatment Plants, Construction and Demolition Debris sorting facilities, and concrete and asphalt grinding facilities. Processing Facilities do not include waste -to -energy, thermal destruction or any type of Transformation facilities. "Recycle/Recycling" means the process of collecting, sorting, cleansing, treating, and reconstituting materials that would otherwise become Non-Processable Municipal Solid Waste, and returning them to the economic mainstream in the form of raw materials for new, reused, or reconstituted products which meet the quality standards used in the marketplace. Recycling does not include Transformation. "Recycling Facility" means a Recycling Materials Recovery Facility (either a Clean or Dirty MRF), a Construction and Demolition Debris sorting facility or a re -use facility that is fully permitted and operating in compliance with federal, state and local laws and regulations and includes Recycling Facilities that receive, process, and market Recyclable Materials that have been source separated by the Generator or segregated from Processable Municipal Solid Waste, such as Single -Material Recyclables and Single Stream Recyclable Materials. The Recycling Facility may be located at a landfill. "Recyclable Materials" means items in the solid waste stream which can be reused or processed into a form suitable for reuse consistent with the requirements of State law (i.e., AB 939). Recyclable materials include, but are not limited to, aluminum and tin cans, glass bottles, plastic bottles, plastic containers, newspaper, paper, printed materials, paper containers, cardboard and textiles. "Recycling Requirements" means the obligations imposed by or upon the City pursuant to State, Federal and local law, ordinance, resolution, policy, plan or program relative to Diverting all, or a portion, of the Municipal Solid Waste generated within the City including, without limitation, State mandates to Divert fifty percent (50%) of the Municipal Solid Waste Generated within the City, achievement of the per capita Diversion requirements in the Act, and the provision of City -approved Diversion services to all Customers. Recycling Requirements includes future changes to the Act that may require the City to Divert higher percentages of Municipal Solid Waste Generated within the City and/or to provide additional and/or enhanced or expanded Diversion Programs. "Residue" means the Non-Processable Municipal Solid Waste destined for Disposal in a Landfill, which remains after processing at a Processing Facility has taken place. Residue does not include Anaerobic Digestate. The percent of Residue is calculated by dividing the weight of the Residue by the weight of the total materials Non-exclusive Franchise Agreement Page 12 delivered for processing at the facility. State law and regulations govern the allowable amount of Residue that can be Generated by a Processing Facility. Franchisees shall not utilize Processing Facilities that exceed State -required maximum Residue Generation rates for any materials Collected within the City. "Responsible Party" means the individual or entity responsible for the Generator's management of solid waste and/or Recycling at the Generator's commercial premises, business, or non-residential property. "Roll Off Boxes" means large open top rectangular metal Containers used to store and transport Municipal Solid Waste, Recyclable Materials, Green Waste, Construction and Demolition Debris or other materials. "Single Material Recyclables" means those Recyclable Materials which satisfy each of the following requirements: (1) have been segregated from Processable Municipal Solid Waste for separate handling and Diversion by or for the Generator thereof; (2) have been further segregated or sorted so that various types of Recyclable Materials, such as glass, metals, paper, cardboard, plastics are not commingled; and (3) after such segregation, contain no more than five percent (5%) by weight (measured by each load being transported, Collected and/or Disposed) of any Residue or Contamination material which cannot be Recycled, Composted or similarly utilized, and which instead must be Disposed in a Landfill. "Single Stream Recyclable Materials" or "Single Stream Recyclables" means those Recyclable Materials collected as separated from Processable Municipal Solid Waste by the Generator or Customer and consisting of a mixture of metals, glass, plastics #1-7, and all paper from Residential Premises, Commercial Premises, Multifamily Dwellings and industrial premises. Single Stream Recyclable Materials are distinguished from Single -Material Recyclables, which consist of only a single type of material such as cardboard, separated from other Recyclable Materials. "Split Bins" means Bins that have a divider down the middle, dividing the Bin into two (2) separate compartments. Such Bins have separate locking lids for each side of the Bin that allows the Bin to be emptied one (1) side at a time. The lid on the side of the Bin that is for storage of Recyclable Materials is designed such that it allows for the placement of Recyclable Materials in the Bin without unlocking or opening the lid, and yet does not allow Recyclable Materials to spill out when the lid is closed and locked for the emptying of the MSW stored on the opposite side of the Bin. "SRRE" means the Source Reduction and Recycling Element of the Integrated Waste Management document for the City prepared and updated pursuant to the California Public Resources Code. "Term" means the finite amount of time that commences on the Effective Date and terminates on the Termination Date. "Termination Date" means October 7, 2027, Non-exclusive Franchise Agreement Page 13 "State" means the State of California. "Transformation" means incineration, pyrolysis, distillation, or biological conversion (other than Composting) to turn Municipal Solid Waste and/or organic materials into a fuel used to produce energy (example: waste -to -energy). Transformation does not include Composting, gasification, Biomass Conversion, or wet or dry Anaerobic Digestion. "Transformation Facility" means a facility using a Transformation process to turn Municipal Solid Waste and/or organic materials into a fuel used to produce energy. A Franchisee may only utilize Transformation for the quantity of Municipal Solid Waste allowed by CalRecycle to be counted as Diversion pursuant to the Act, as this may be changed in the future by legislation or regulations. The Act currently provides that a jurisdiction can only use Transformation to divert up to ten percent (10%) of the Municipal Solid Waste generated in the jurisdiction. Therefore, materials collected by a Franchisee and processed at a Transformation Facility shall be limited to ten percent (10%) of the Non-Processable Municipal Solid Waste Collected by the Franchisee within City. "Ton" means a short ton of two -thousand (2,000) pounds avoirdupois. "Wood Waste" means all non -hazardous wood material that is not painted with lead-based or other paints containing materials identified as hazardous waste, or treated with creosote or other hazardous materials. Wood Waste includes, but is not limited to, tree branches and other wood trimmings, dimensional lumber and other pieces of wood generated during the manufacture or processing of wood products. For wood generated from construction and/or demolition activities, see the definition of "Construction and Demolition Debris. SECTION 4. FRANCHISE FEES A. During the Term of this Franchise, Franchisee shall pay to City Franchise Fees for the privilege of providing Commercial Franchise Services in the City and for the use of public streets, right-of-ways and places for such purposes. The Franchise Fees that Franchisee shall pay to the City shall total sixteen percent (16%) of the gross receipts which are reasonably related to the value of Agreement for all Commercial Franchise Services provided by Franchisee in the City as follows - 1 . ollows: 1. Ten and one-half percent (10.5%) of the Gross Receipts for all Commercial Franchise Services provided by the Franchisee in the City ("Commercial Franchise Service Fee"), of which one half percent (.5%) shall be attributable to the maintenance and implementation of the City's SRRE, and shall be separately accounted for, and used only for the costs stated in Public Resources Code Section 41901 or any successor provision. 2. Five and one-half percent (5.5%) of the Gross Receipts for all Commercial Franchise Services provided by Franchisee in the City shall be paid into an Environmental Liability Fund, which shall be a separate fund established and maintained by City ("Environmental Liability Fund Fee"). Hereinafter, Environmental Liability Fund Fee and Commercial Franchise Fee shall be collectively referred to as "Fees." Non-exclusive Franchise Agreement Page 14 B. City and Franchisee acknowledge the potential environmental liability that may result from Commercial Franchise Services under Federal and State environmental protection laws and the Public Resources Code. City intends to take reasonable actions to obtain protection and indemnification against future environmental liability for Commercial Solid Waste and Divertible Materials generated within the City and the activities of Franchisee under this Agreement for handling such Commercial Solid Waste and Divertible Materials. To provide protection and indemnification to City for Franchisee's Commercial Franchise Services in the City, Franchisee agrees to collect from its customers an Environmental Liability Fund Fee for payment into the Environmental Liability Fund. The Environmental Liability Fund may be used by the City for any expense associated with this Franchise, including, but not limited to, the purchase of environmental liability insurance and paying all costs, expenses, and penalties that arise from or in any way relate to liability incurred by the City as a result of any act, negligence, or omission by the City, Franchisee, Franchisee Customer, or any of their respective officers, directors, shareholder members, volunteers, partners, employees, agents, subcontractors, suppliers, representatives or affiliates. The Environmental Liability Fund may also be used by the City to pay for any Disposal, Diversion, or Recycling activity required of the City, Franchisee, or any Generator under State, Federal or local law. The Fund shall not be commingled with or included in the City's General Fund. 1. The Fees shall be paid concurrently 2. Compliance with this Section shall not limit Franchisee's indemnification as set forth in Agreement Section 10; however, the indemnification provisions of Agreement Section 10 shall be secondary to the Environmental Liability Fund established by this Section or any insurance purchased by the Environmental Liability Fund. C. The Fees shall be paid on a calendar quarterly basis on forms prescribed by the Finance Director. D. All payments shall be made in lawful money of the United States of America and shall be paid to City in person or by United States' mail, or overnight mail service, at the Cashier's Office located at 100 Civic Center Drive, P.O. Box 1768, Newport Beach, California, 92658, or to such other address as City may from time to time designate in writing to Franchisee. If requested by City, Franchisee shall make payments electronically (at www.newportbeachca.gov) or by wire transfer (at Franchisee's cost). Franchisee assumes all risk of loss and responsibility for late charges and delinquency rates if payments are not timely received by City regardless of the method of transmittal. E. Franchisee hereby acknowledges that the late payment of Fees or other sums due hereunder will cause City to incur costs not contemplated by this Agreement, the exact amount of which is extremely difficult to ascertain. Such costs include, but are not limited to, processing and accounting charges. Accordingly, any payment of any sum to be paid by Franchisee not paid within five (5) calendar days of its due date shall be subject to a ten percent (10%) late charge plus interest on the amount due at the rate of Non-exclusive Franchise Agreement Page 15 ten percent (10%) per annum from the date due and payable by the terms of this Agreement until the same shall be paid. City and Franchisee agree that this late charge represents a reasonable estimate of such costs and expenses and is fair compensation to City for its loss suffered by such late payment by Franchisee. F. With the exception of October 30, 2020, Fees shall be due and payable on April 30, July 30, October 30 and January 30 of each calendar year of the Term. Any dates falling on a weekend or holiday may be paid the first business day following the weekend or holiday. Fees must be received by City, not merely postmarked, by or before the aforementioned dates. G. In the event Franchisee believes that it has paid Fees in excess of the Fees due to City, Franchisee may submit a request for refund to the Finance Director on a form provided by the Finance Director. If proof of overpayment is satisfactory to the Finance Director, the Finance 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 authorized by the Finance Director in writing. H. Each Franchise Fee and Environmental Liability Fund Fee payment shall be accompanied by a written statement described in Code Section 12.63.090, or any successor section, on a form provided by the Finance Director. No statement filed under this Section shall be conclusive as to the matters set forth in such statement, nor shall the filing of such statement preclude the City from collecting by appropriate action the sum that is actually due and payable. I. Franchisee may separately list the actual Franchise Fee rate and Environmental Liability Fund Fee rate as established by this Section, and any other fees required by this Agreement, on its invoices to its customers. In no case may the Franchise Fee rate or Environmental Liability Fund Fee rate listed by the Franchisee on the invoice exceed the actual Franchise Fee or Environmental Liability Fund Fee rates imposed by the City. SECTION 5. PERFORMANCE BOND/DEPOSIT A. Prior to the placement of any Container for Commercial Franchise Services on public or private property, Franchisee shall, to ensure compliance with the duties and obligations imposed by the provisions of the Code, State regulation, regulations adopted by the City Manager and this Agreement, either: (1) provide City with a cash deposit ("Deposit"); or (2) obtain, provide and maintain, at its own expense, a faithful performance bond ("Bond"). The amount of the Deposit and Bond shall be determined in the Public Works Director's sole and absolute discretion. B. If Franchisee decides to provide a Bond, the Bond shall be issued by an insurance organization or surety: (1) currently authorized by the Insurance Commissioner to transact business of insurance in the State of California; (2) listed as an acceptable surety in the latest revision of the Federal Register Circular 570; and (3) assigned a Policyholders' Rating A (or higher) and Financial Size Category Class VII (or larger) in accordance with the latest edition of Best's Key Rating Guide: Property -Casualty. The Non-exclusive Franchise Agreement Page 16 Bond shall be in the form attached hereto as Exhibit "A," which is incorporated herein by this reference. SECTION 6. DIVERSION AND DISPOSAL OF MUNICIPAL SOLID WASTE, RECYCLABLE MATERIALS, FOOD SCRAP AND GREEN WASTE A. Franchisee shall comply with all Diversion requirements imposed by law, ordinance, or regulation on City, Franchisee, and/or any Commercial Premises or Multifamily Dwelling. On a monthly basis, Franchisee shall Divert a minimum of fifty-five percent (55%) of all Processable Municipal Solid Waste, Recyclable Materials, Food Scraps and Green Waste Collected in the City by Franchisee. This Diversion requirement is separate from and in addition to any Diversion requirements set forth in Agreement Sections 7, 12, 13, 14 and 15. In the event new or additional Diversion requirements are imposed by law, ordinance or regulation on City, Franchisee, and/or any Commercial Premises or Multifamily Dwelling, the City shall have the right to require Franchisee to Divert additional Municipal Solid Waste, Recyclable Materials, Food Scraps, and/or Green Waste by providing Franchisee with thirty (30) calendar days written notice of the new Diversion requirements. Upon request of the Public Works Director, Franchisee shall provide all documents and information requested by the Public Works Director to prove that Franchisee has complied with this subsection, any applicable law, ordinance, regulation, or condition related to Recycling and Diversion of Municipal Solid Waste, Recyclable Materials, Food Scraps and/or Green Waste. B. Franchisee shall Dispose of all Non-Processable Municipal Solid Waste collected in the City, over which Franchisee has control, in accordance with the Franchise Hauler Acknowledgment, attached hereto as Exhibit "B" and incorporated herein by reference. Franchisee hereby accepts and agrees to abide by all terms of the Franchise Hauler Acknowledgment. If, during the Term of this Agreement, the City's Waste Disposal Agreement with Orange County expires, lapses, or is terminated, the Franchise Hauler Acknowledgement shall be null and void and Franchisee shall Dispose of Municipal Solid Waste Collected in the City only by taking it to a fully permitted Orange County certified/licensed landfill or to a fully permitted licensed transfer station, which is lawfully authorized to accept that specific type of solid waste material and has been approved by the City. C. Franchisee shall not Dispose of Municipal Solid Waste, Recyclable Materials, Food Scraps, or Green Waste by depositing it on any land except a permitted facility, whether public or private, or in any river, stream or other waterway, or in any sanitary sewer or storm drainage system. Nothing in this Agreement shall be deemed or construed as authorizing Franchisee to operate a Landfill, Recycling Facility, or other solid waste disposal facility in the City. D. If Franchisee violates the terms in Agreement Section 6(A) and/or Section 6(B) above, Franchisee agrees that the City has the future right to direct that all Municipal Solid Waste be delivered to a fully permitted Disposal facility designated by City and that Recyclable Materials, Food Scraps, Green Waste and/or Wood Waste be delivered to a fully permitted Processing Facility designated by City. This exercise of "flow control" by the City shall be made upon at least thirty (30) calendar days prior written notice to Non-exclusive Franchise Agreement Page 17 Franchisee, and written notice shall include the violation(s) prompting the City's action regarding "flow control." Failure to comply with the Recycling, Diversion, and/or Disposal requirements set forth in this Section shall be a material breach of this Agreement. E. Franchisee shall include as a condition to its contractual agreement with its Customers a provision prohibiting disposal of Hazardous Waste in any Container. F. 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 and shall be maintained for the length of the Term of the Franchise and for a minimum period of three (3) years, or for any longer period required by law, after the Extended Termination Date. The records shall be made available to the City in Franchisee's monthly reports submitted pursuant to Agreement Section 16. G. This Agreement does not purport to grant Franchisee or City ownership over materials that Franchisee's Customers discard for pickup by Franchisee or that Franchisee handles under this Agreement. The right to possession or ownership of those materials shall be determined in accordance with law and any agreement between Franchisee and its Customers, and not as a result of this Agreement. Parties acknowledge that City has no ownership rights in Divertible Materials or revenue from sale thereof, except as provided in this Agreement. H. City makes no representations or warranties with respect to characterization of Municipal Solid Waste, Recyclable Materials, Food Scraps, or Green Waste within City. City expressly disclaims any representations and warranties, either express or implied, as to the merchantability or fitness of Municipal Solid Waste, Recyclable Materials, Food Scraps, or Green Waste for any particular purpose. SECTION 7. DIVERSION OF CONSTRUCTION AND DEMOLITION DEBRIS A. On a monthly basis, Franchisee shall Divert a minimum of sixty-five percent (65%) of all Construction and Demolition Debris collected in the City by Franchisee. This Diversion requirement shall be in addition to and separate from any Diversion requirements set forth in Agreement Section 6. Franchisee shall also comply with all requirements of Section 15. If new or additional Diversion requirements are imposed by law, ordinance or regulation on City, Franchisee, and/or any Commercial Premises or Multifamily Dwelling, the City shall have the right to require Franchisee to Divert additional Construction and Demolition Debris by providing Franchisee with ten (10) calendar days written notice of the new Diversion requirements. Upon request of the Public Works Director, Franchisee shall provide all documents and information requested by the Public Works Director to prove that Franchisee has complied with this subsection, any applicable law, ordinance, regulation, or condition related to Recycling and Diversion of Construction and Demolition Debris. B. Franchisee shall Dispose of, or oversee Disposal of, any Construction and Demolition Debris collected in the City by Franchisee, and not diverted pursuant to Non-exclusive Franchise Agreement Page 18 Agreement Section 7(A), in accordance with the Franchise Hauler Acknowledgment, attached hereto as Exhibit "B." Franchisee hereby accepts and agrees to abide by all terms of the Franchise Hauler Acknowledgment. If, during the Term of this Agreement, the City's Waste Disposal Agreement with Orange County expires, lapses or is terminated, the Franchise Hauler Acknowledgement shall be null and void and Franchisee shall Dispose of non -Diverted Construction and Demolition Debris collected by Franchisee in the City only by taking such debris to an Orange County certified/licensed landfill, State certified/licensed transfer station, State certified/licensed recycling facility or State certified/licensed materials recovery facility which is lawfully authorized to accept that specific type of solid waste material. Franchisee shall not dispose of Construction and Demolition Debris by depositing it on any land except a permitted facility, whether public or private, or in any river, stream or other waterway, or in any sanitary sewer or storm drainage system. C. If Franchisee violates the terms in Agreement Section 7(A) and/or Section 7(B) above, Franchisee agrees that the City has the future right to direct that Construction and Demolition Debris be delivered to a permitted processing and/or disposal facility designated by City. This exercise of "flow control" by the City shall be made upon at least thirty (30) calendar days prior written notice to Franchisee, and written notice shall include the violation(s) prompting the City's action regarding "flow control." Failure to comply with the Recycling, Diversion, and/or Disposal requirements set forth in this Section shall be a material breach of this Agreement. D. Franchisee shall include as a condition to its contractual agreement with its Customers a provision prohibiting disposal of Hazardous Waste in any Container. E. Franchisee shall implement, or require a third party to 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 local, State and Federal Hazardous Waste regulations, and shall be maintained for the length of the Term of the Franchise and for a minimum period of three (3) years, or for any longer period required by law, after the Extended Termination Date. The records shall be made available to the City upon request. F. This Agreement does not purport to grant Franchisee or City ownership over materials that Franchisee's Customers discard for pickup by Franchisee or that Franchisee handles under this Agreement. The right to possession or ownership of those materials shall be determined in accordance with law and any agreement between Franchisee and its customers, and not as a result of this Agreement. Parties acknowledge that City has no ownership rights in Recyclable Materials or revenue from sale thereof, except as provided in this Agreement. G. City makes no representations or warranties with respect to characterization of Construction and Demolition Debris within City. City expressly disclaims any representations and warranties, either express or implied, as to the merchantability or fitness of Construction and Demolition Debris for any particular purpose. Non-exclusive Franchise Agreement Page 19 SECTION 8. FRANCHISEE'S APPLICATION; RECORDS; AUDITS A. Application. Franchisee has submitted an application to City in substantially the same form as the template attached hereto as Exhibit "C" and incorporated herein by reference as a condition of entering into this Agreement. Franchisee hereby represents and warrants that all information contained in the application submitted to City, and any information submitted by Franchisee to City supplementary thereto, is true and correct and does not contain any untrue statement of a material fact nor omit a material fact that makes a statement contained therein misleading. B. Records. Franchisee shall maintain all records relating to Franchisee's Commercial Franchise Services provided hereunder including, but not limited to, Customer lists, billing records, accounts payable records, maps, service requests, cash receipts records, AB 939/341/1826 compliance records, tonnage reports, weight tickets and invoices from all Landfills, Processing Facilities, and Recycling Facilities utilized for Commercial Solid Waste collected within City, and all other documents and materials which reasonably relate to Franchisee's compliance with and performance of the provisions of this Agreement ("Records"), for the full Term of this Agreement and an additional period thereafter of not less than three (3) years, or any longer period required by law. Such Records shall be made available to City at Franchisee's regular place of business, but in no event outside the County of Orange. All Records shall be clearly identifiable, and Franchisee shall maintain record security sufficient to preserve records from destruction or damage from foreseeable events. Data maintained in an electronic medium shall be protected, and backed up, with a copy stored at a separate site from the original data. C. CERCLA Defense Records. City's ability to defend against CERCLA and related litigation is a matter of great importance. Franchisee shall maintain and preserve records establishing where Solid Waste Collected in the City was landfilled for the full Term of this Agreement and an additional period thereafter of not less than five (5) years, or any longer period required by law. At any time, including after the expiration of the Term, Franchisee shall provide copies of such records to City within three (3) business days of City's request. D. Inspection; Audit. On an annual or as -needed basis, City shall have the right, upon five (5) business days advance notice, to inspect Franchisee's Records and/or conduct, or to contract with an independent auditing firm to perform, an audit, at City's expense, of Franchisee's Records ("City Audit") to ensure compliance with the provisions of this Agreement. The City Audit shall include, without limitation, review and/or copying of Franchisee's cash receipts, books of account, Municipal Solid Waste and Divertible Materials tonnage reports, Collection, Disposal and Diversion records, and other related records, as well as those of each of its parent, subsidiary and/or affiliated companies, as appropriate. As part of the City Audit, Franchisee's Customer accounts and related records may be subject to review. While Franchisee will not be required to submit for copying detailed account records, such as Customer names, Non-exclusive Franchise Agreement Page 20 Franchisee shall make such records and information available for review in connection with the City Audit. The purpose of the City Audit shall be for: (a) verification of the Fees paid by Franchisee under this Agreement, and the accuracy thereof; (b) verification of the amounts of Municipal Solid Waste and Divertible Materials reported as Collected, processed, Diverted and Disposed by Franchisee pursuant to this Agreement; (c) verification of Recycling/Diversion program implementation efforts and actions taken by Franchisee pursuant to this Agreement; and (d) verification of such other information as is reasonably deemed appropriate by the Public Works Director to evaluate Franchisee's performance hereunder. E. Reimbursement. Franchisee shall reimburse City for all of City's costs in performance of an audit if, as a result of the audit, it is determined - 1 . etermined: 1. There was any intentional misrepresentation by Franchisee with respect to the amount of Fees due to the City; 2. There is a One Thousand and 00/100 Dollars ($1,000.00) or greater discrepancy in the amount of Fees due to the City. 3. There was any intentional misrepresentation by Franchisee with respect to Franchisee's Commercial Franchise Services and/or Franchisee's handling and transportation of Municipal Solid Waste and/or Divertible Materials or with regard to any information provided about Diversion; or 4. There is a discrepancy (whether intentional or not) in the number of Tons of Municipal Solid Waste, Recyclable Materials, Green Waste, Foods Scraps and/or Construction and Demolition Debris Collected, Recycled, processed and/or Disposed that equals or exceeds two percent (2%). Such reimbursement shall be paid by Franchisee within ten (10) calendar days of the date City notifies Franchisee in writing that Franchisee is liable to reimburse the City in conformance with this subsection and the amount of City's audit costs. SECTION 9. INSURANCE REQUIREMENTS Without limiting Franchisee's indemnification of City, and prior to commencement of the Effective Date of this Agreement, Franchisee shall obtain, provide copies to City and maintain at its own expense during the Term of this Agreement policies of insurance of the type and amounts described in the Insurance Requirements attached hereto as Exhibit "D" and incorporated herein by reference. SECTION 10. RESPONSIBILITY FOR DAMAGES AND INJURY/INDEMNIFICATION A. Franchisee Responsibility. Franchisee shall be solely responsible for any damages caused as a result of Franchisee's acts, negligence, or omissions including, but not limited to, injuries to or death of any person or damage to public and/or private Non-exclusive Franchise Agreement Page 21 property and damages to public improvements arising from or as a result of Franchisee's Commercial Franchise Services. B. General Indemnification. Franchisee shall indemnify, hold harmless, and defend City, and each of its past, present and future elected officials, officers, employees, agents, consultants, volunteers, affiliates, assignees, representatives, attorneys, subsidiaries, and affiliated entities and their respective successors, heirs and assigns (collectively, "Indemnified Parties") from and against any costs, expenses, damages, and losses, including actual attorneys' fees ("Losses") of any kind or character to any person or property arising directly or indirectly from or caused by any of the following: (i) any act, negligence, or omission of Franchisee or its respective officers, directors, shareholder members, partners, employees, agents, Franchisee's subcontractors, suppliers, representatives and affiliates ("Franchisee Representatives"); (ii) Franchisee's or Franchisee Representative's activities; (iii) any accident or casualty within or arising out of the performance of Franchisee's Commercial Franchise Services under this Franchise; (iv) any violation or alleged violation of any law, ordinance or statute now or hereafter enacted arising out of Commercial Recyclable Materials, Food Scraps, Green Waste, Wood Waste, Construction and Demolition Debris and/or Municipal Solid Waste services performed pursuant to the Franchise; (v) the negligence or willful misconduct of Franchisee or any of Franchisee Representatives in the performance of Franchisee's Commercial Franchise Services under the Franchise; and (vi) any breach of the Franchise. Franchisee shall not be required to indemnify, hold harmless and defend the Indemnified Parties from the sole negligence, active negligence or willful misconduct of the Indemnified Parties. Nothing in this indemnity shall be construed as authorizing any award of attorneys' fees in any action on or to enforce the terms of this Agreement. This indemnity shall apply to all claims and liability regardless of whether any insurance policies are applicable. The policy limits do not act as a limitation upon the amount of indemnification to be provided by the Franchisee. C. Hazardous Substances Indemnification. Franchisee shall indemnify the Indemnified Parties from and against all claims, actual damages including, but not limited to, special and consequential damages, natural resource damage, punitive damages, injuries, costs, response, remediation, and removal costs, losses, demands, debts, liens, liabilities, causes of action, suits, legal or administrative proceedings, interest, fines, charges, penalties and expenses attorneys' and expert witness fees and costs incurred 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, the Indemnified Parties or Franchisee arising directly or indirectly from or caused by any of the following: (i) the violation of any environmental laws or the failure to clean up and mitigate the consequences of the spill or release of any Hazardous Substance; and (ii) Franchisee's activities under this Agreement concerning any Hazardous Substance at any place where Franchisee stores or disposes of solid or Hazardous Waste pursuant to this Agreement, or preceding Agreements between City and Franchisee. The foregoing indemnity is intended to operate as an agreement pursuant to the Comprehensive Environmental Response, Compensation and Liability Act (42 U.S.C. Section 9607(e)) and any Non-exclusive Franchise Agreement Page 22 amendments thereto, and California Health and Safety Code Section 25364, or any successor statute, to insure, protect, hold harmless, and indemnify City from liability. D. AB 939 Indemnification. Franchisee agrees to meet all requirements of City's SRRE as to the portion of the Commercial Solid Waste stream Collected and/or handled by Franchisee. Franchisee agrees to protect, defend, indemnify, and hold the Indemnified Parties harmless against all fines or penalties imposed by CalRecycle, or other entity, arising from the failure of Franchisee to meet Act Diversion requirements with respect to the portion of the Commercial Solid Waste stream collected by Franchisee. E. AB 341 Indemnification. Franchisee agrees to meet all requirements of AB 341, specifically Public Resources Code Section 42649, or any successor statute, as to the portion of the Municipal Solid Waste and Recyclable Materials stream Collected and/or handled by Franchisee. Franchisee agrees to protect, defend, indemnify, and hold the Indemnified Parties harmless against all fines or penalties imposed by CalRecycle, or other entity, arising from the failure of Franchisee to meet AB 341 diversion and recycling requirements with respect to the Municipal Solid Waste and Divertible Materials Collected and/or handled by Franchisee. F. AB 1826 Indemnification. Franchisee agrees to meet all requirements of AB 1826, specifically Public Resources Code Section 42649.82, or any successor statute, as to the portion of the Food Scraps, Green Waste and Wood Waste streams Collected and/or handled by Franchisee. Franchisee agrees to protect, defend, indemnify, and hold the Indemnified Parties harmless against all fines or penalties imposed by CalRecycle, or other entity, arising from the failure of Franchisee to meet AB 1826 recycling requirements with respect to the Food Scraps and Green Waste collected and/or handled by Franchisee. G. Notice. City agrees to give notice to Franchisee when the City receives a claim for damages or other liability for which Franchisee has provided indemnification under this Section. SECTION 11. COMMERCIAL SOLID WASTE AND DIVERTIBLE MATERIALS COLLECTION SERVICES A. Authorized Collection Services. Franchisee may only provide those Commercial Franchise Services designated in Franchisee's application, or any amended application, and for which Franchisee has demonstrated compliance with Code Section 12.63.050, or any successor section. B. Frequency of Collection. Franchisee shall collect all Municipal Solid Waste and Divertible Materials from Commercial Premises and Multifamily Dwellings on a schedule to be agreed upon between Franchisee and its Customers, subject to the restrictions set forth in Agreement Section 11(C); provided, however, that such schedule complies with Code Subsections 6.04.110 and 6.04.120 and does not permit the accumulation of Commercial Solid Waste or Divertible Materials in quantities that are unreasonable or detrimental to the public health or safety. Requests for Collection from Customer Premises with overflowing Containers, or from Customer Premises where there Non-exclusive Franchise Agreement Page 23 have been missed pickups, shall be serviced within twenty-four (24) hours of any such request by the Customer or City. Should City receive a Customer complaint related to or arising from Franchisee's failure to collect Commercial Solid Waste and Divertible Materials as provided herein, Franchisee's Collection schedule shall be submitted to the City for review. C. Hours and Days of Collections. 1. Franchisee shall not collect Commercial Solid Waste or Divertible Materials in any area of the City after 6:30 p.m. and prior to 5:00 a.m. 2. Franchisee shall not Collect Commercial Solid Waste or Divertible Materials from any Commercial Premises or Multifamily Dwelling located within five hundred (500) feet of an occupied residential premise, motel or hotel, nor shall any of Franchisee's Collection vehicles be operated in any residential areas of the City except between the hours of 7:00 a.m. and 6:30 p.m., Monday through Friday, nor on any Saturday or Sunday, except between the hours of 8:00 a.m. and 6:00 p.m. 3. Franchisee shall neither operate its Collection vehicles nor Collect Commercial Solid Waste or Divertible Materials from any Commercial Premises, governmental facility, or Multifamily Dwelling located within five hundred (500) feet of a school, or other educational facility between the hours of 7:30 a.m. and 9:00 a.m. or 1:00 p.m. and 3:00 p.m., Monday through Friday. The limitations in Agreement Section 11(C)(3) notwithstanding, Franchisee's operation of Collection vehicles on any non- residential arterial roadway within the City are subject to Section 6.04.130(A) but shall not be prohibited or limited under this Agreement. 4. Commercial Solid Waste and Divertible Materials collection on Sundays shall be limited to Food Scraps and Municipal Solid Waste from Commercial Premises, which require Collection every day due to public health and safety concerns. 5. At Franchisee's request, the City shall provide maps illustrating the geographic limitations placed on Franchisee's Collection services pursuant to Agreement Section 11(C)(3) ("Maps"). City expressly disclaims any liability related to or arising from the accuracy of any Maps provided by City. City may update the Maps as needed, and Franchisee's failure to request or secure the Maps, or any updated Maps, shall not relieve Franchisee of any obligations under this Agreement. D. Containers. Franchisee shall provide the appropriate sized Containers to each Customer for storage of the Commercial Solid Waste and Divertible Materials Collected by Franchisee. Containers provided by Franchisee must be identified with Franchisee's name and be in the color identified by Franchisee in Franchisee's application. SECTION 12. AB 341 RECYCLING PROGRAM FOR COMMERCIAL PREMISES AND MULTIFAMILY DWELLINGS Non-exclusive Franchise Agreement Page 24 A. Diversion Program. The Act requires all AB 341 Generators to arrange for Recyclable Materials Collection services by July 1, 2012. The Act requires all cities to provide a commercial Recyclable Materials Collection Program for AB 341 Generators on or before July 1, 2012. Franchisee acknowledges these requirements and agrees that, subject to the restrictions contained in Agreement Section 11(A), for all AB 341 Generators that contract with or pay Franchisee to haul Municipal Solid Waste and/or Divertible Materials, Franchisee shall implement a Recyclable Materials Collection Program using one or more of the following.- 1. ollowing: 1. Provide Single Stream Recyclable Materials and (if applicable) Single Material Collection service on a weekly or more frequent basis. 2. Provide Collection of Recyclable Materials commingled with Municipal Solid Waste and process the Collected material at a City -approved Dirty MRF that yields Diversion results comparable to source separation. No Dirty MRF may be used for separation of AB 341 materials unless the Dirty MRF has been approved by City as meeting the standards and requirements of Public Resources Code Section 42649 and all rules, amendments and regulations promulgated in furtherance thereof. 3. If Franchisee observes that the AB 341 Generator has one (1) or more internal Programs that Divert Recyclable Materials, is self -hauling or backhauling Recyclable Materials, donating or selling Recyclable Materials to a third party, or is using a third party or other Franchisee to Collect Recyclable Materials, Franchisee shall report this to City and City, in its sole discretion, shall make a final determination as to the adequacy of the internal and/or third party Recyclable Materials Diversion Program(s). If the City finds the internal and/or third party Program(s) inadequate, Franchisee shall proceed to implement a Recyclable Materials Diversion Program to Divert all the remaining AB 341 Recyclable Materials generated by the AB 341 Generator as described in Exhibit E, which is incorporated herein by reference. B. Act Compliance. The Parties agree that provision of an AB 341 Diversion Program, as set forth in this Section 12 and in Exhibit "E," is of paramount importance for the City to comply with the Act. The Parties further agree that providing high quality Diversion Services, public education and technical assistance to AB 341 Generators to obtain their full participation in AB 341 Diversion Program is essential for Franchisee to implement an effective Diversion Program for each and every AB 341 Generator it serves. The Parties acknowledge that achievement of this requirement is integral to the City's compliance with the Act and that failure to implement said AB 341 Diversion Programs may cause City to be non-compliant with the Act and be grounds for termination of this Agreement. C. Program Implementation. Within ninety (90) calendar days of either: (1) the Effective Date of this Agreement, or (2) the date an AB 341 Generator initiates service with Franchisee to collect or transport Municipal Solid Waste and/or Divertible Materials, Non-exclusive Franchise Agreement Page 25 whichever is later, Franchisee shall implement a Recyclable Materials Diversion Program for said AB 341 Generator. For purposes of this Section 12, "implement" as provided herein shall mean Franchisee's completion of all of the steps and requirements in Exhibit E. SECTION 13. AB 1826 FOOD SCRAP DIVERSION PROGRAM FOR COMMERCIAL PREMISES A. Food Scrap Diversion Program. The Act requires AB 1826 Generators to implement Diversion Programs as follows. On or after January 1, 2017, all owners and responsible parties of Commercial Premises generating four (4) or more cubic yards of Food Scraps and/or Green Waste per week must arrange for Diversion Programs for those materials. On or after January 1, 2019, all owners and responsible parties of Commercial Premises generating four (4) or more cubic yards of Commercial Solid Waste per week must arrange for Diversion Programs for Food Scraps and Green Waste. The Act requires cities to provide a commercial Food Scrap Diversion Program for AB 1826 Food Scrap Generators on or before January 1, 2016. Franchisee acknowledges these requirements and agrees that, subject to the restrictions contained in Agreement Section 11(A), for all AB 1826 Food Scrap Generators that contract with or pay Franchisee to haul Municipal Solid Waste and/or Divertible Materials Franchisee shall implement a Food Scrap Diversion Program. The City will maintain a listing of all AB 1826 Food Scrap Generators. City expressly disclaims any liability related to or arising from the accuracy of any lists provided by City. Franchisee's failure to request or secure the list on an annual basis shall not relieve Franchisee of any obligations under this Section. Franchisee shall implement a Food Scrap Diversion Program using one or more of the following: 1. Provide source separated Food Scrap Collection service on a weekly or more frequent basis. 2. If Franchisee observes that the AB 1826 Food Scrap Generator has one (1) or more internal Food Scrap Diversion Programs, is self -hauling or backhauling Food Scraps, is donating or selling Food Scraps, is donating edible food for human consumption, and/or is using a third party or other Franchisee to Collect Food Scraps, Franchisee shall report this to City and City, in its sole discretion, shall make a final determination as to the adequacy of the internal and/or third party Food Scrap Diversion Program(s). If the City finds the internal and/or third party program(s) are inadequate, Franchisee shall proceed to implement a Diversion Program to Divert all the remaining AB 1826 Food Scraps generated by the AB 1826 Generator. B. Act Compliance. The parties agree that provision of a Food Scrap Diversion Program as described in this Section 13 and in Exhibit "E" is of paramount importance for the City to comply with the Act. The parties further agree that providing high quality Diversion Services, public education, and technical assistance to AB 1826 Food Scrap Generators to obtain their full participation in AB 1826 Diversion Programs is essential for Franchisee to implement an effective Food Scrap Diversion Program for each and every AB 1826 Food Scrap Generator it serves. The parties acknowledge that achievement of Non-exclusive Franchise Agreement Page 26 this requirement is integral to the City's compliance with the Act and that failure to implement said Diversion Program may cause City to be non-compliant with the Act and be grounds for termination of this Agreement. C. Program Implementation. Within ninety (90) calendar days of either: (1) the Effective Date of this Agreement; or (2) the date an AB 1826 Food Scrap Generator initiates service with Franchisee to Collect and/or transport Municipal Solid Waste and/or Divertible Materials , whichever is later, Franchisee shall implement a Food Scrap Diversion Program for said AB 1826 Food Scrap Generator. For purposes of this Section, Franchisee shall be found to have "implemented" a Food Scrap Diversion Program for an AB 1826 Food Scrap Generator only if Franchisee completes all of the steps and requirements in Exhibit E. SECTION 14. AB 1826 COMMERCIAL AND MULTIFAMILY GREEN WASTE AND WOOD WASTE COLLECTION PROGRAM. A. Act Requirements. The Act requires all AB 1826 Generators of Green Waste and/or Wood Waste to implement Diversion Programs as follows. All Commercial Premises and all Multifamily Dwellings generating four (4) or more cubic yards of Food Scraps and/or Green Waste and Wood Waste must arrange for Diversion Programs for Green Waste and Wood Waste on or before January 1, 2017. On or after January 1, 2019, all owners and responsible parties of Commercial Premises and Multifamily Dwellings generating four (4) or more cubic yards of Commercial Solid Waste per week are required to arrange for Diversion Programs for Green Waste and Wood Waste. The Act requires cities to provide Commercial and Multifamily Green Waste and Wood Waste Diversion Programs for AB 1826 Green Waste and Wood Waste Generators on or before January 1, 2016. Franchisee acknowledges these requirements and agrees that, subject to the restrictions contained in Agreement Section 11(A), for all AB 1826 Green Waste and Wood Waste Generators that contract with or pay Franchisee to haul Municipal Solid Waste and/or Divertible Materials, Franchisee shall implement a Green Waste and Wood Waste Diversion Program. (For wood generated by construction and demolition projects, the requirements of Sections 7 and 15 shall apply.) The City will maintain a listing of all AB 1826 Green Waste and Wood Waste Generators. City expressly disclaims any liability related to or arising from the accuracy of any lists provided by City. Franchisee's failure to request or secure the list on an annual basis shall not relieve Franchisee of any obligations under this Section. Franchisee shall implement a Green Waste and Wood Waste Diversion Program using one or more of the following: Provide source separated Green Waste and Wood Waste Collection service on a weekly or more frequent basis. Provide Collection of Green Waste and Wood Waste co -mingled with Municipal Solid Waste and process the Collected material at a City - approved Dirty MRF that yields Diversion results comparable to source separation. No Dirty MRF may be used for separation of AB 1826 Green Waste or Wood Waste materials unless the Dirty MRF has been approved by City as meeting the standards and Non-exclusive Franchise Agreement Page 27 requirements of Public Resources Code Section 42649 and all rules, amendments and regulations promulgated in furtherance thereof. 2. If Franchisee observes that the AB 1826 Green Waste and Wood Waste Generator has one (1) or more internal Green Waste and/or Wood Waste Diversion Program(s), is self -hauling or backhauling Green Waste and/or Wood Waste, is donating or selling Green Waste and/or Wood Waste, or is using a third party or other Franchisee to Collect Green Waste and/or Wood Waste, Franchisee shall report this to City and City, in its sole discretion, shall make a final determination as to the adequacy of the internal and/or third party Green Waste and/or Wood Waste Diversion Program(s). If the City finds the internal and/or third party program(s) are inadequate, Franchisee shall proceed to implement a Diversion Program to Divert all the remaining Green Waste and Wood Waste generated by the Customer. 3. If the AB 1826 Green Waste and Wood Waste Generator is using a landscaping company to haul away Green Waste and Wood Waste, Franchisee shall report this to the City and City, in its sole discretion, shall make a final determination as to the adequacy of the landscaper program to Divert all the Green Waste and Wood Waste. If the City finds the landscaper program to be inadequate and/or lacking the proper documentation of the end use for the Collected Green Waste and Wood Waste, Franchisee shall proceed to implement a Diversion Program to Divert all the Green Waste and Wood Waste generated by the AB 1826 Generator. All Green Waste and Wood Waste Collected by Franchisee shall be delivered to a permitted Green Waste and/or Wood Waste Processing Facility for Diversion. No Green Waste or Wood Waste Collected in City may be used as Alternative Daily Cover at a landfill as an end use. This prohibition includes Green Waste and Wood Waste processed at a permitted Processing Facility as well as the residue from such Facility. B. Act Compliance. The parties agree that provision of a Green Waste and Wood Waste Diversion Program as described in this Section 14 and in Exhibit "E" is of paramount importance for the City to comply with the Act. The parties further agree that providing high quality Diversion Services, public education, and technical assistance to AB 1826 Green Waste and Wood Waste Generators to obtain their full participation in AB 1826 Diversion Programs is essential for Franchisee to implement an effective Green Waste and Wood Waste Diversion Program for each and every AB 1826 Green Waste and Wood Waste Generator it serves. The parties acknowledge that achievement of this requirement is integral to the City's compliance with the Act and that failure to implement said Diversion Programs may cause City to be non-compliant with the Act and be grounds for termination of this Agreement. C. Program Implementation. Within ninety (90) calendar days of either: (1) the Effective Date of this Agreement; or (2) the date an AB 1826 Green Waste and Wood Non-exclusive Franchise Agreement Page 28 Waste Generator initiates service with Franchisee to Collect and/or transport Municipal Solid Waste and/or Divertible Materials, whichever is later, Franchisee shall implement a Green Waste and Wood Waste Diversion Program for said AB 1826 Green Waste and Wood Waste Generator. For purposes of this Section, Franchisee shall be found to have "implemented" a Green Waste and Wood Waste Diversion Program for an AB 1826 Green Waste and Wood Waste Generator only if Franchisee completes all of the steps and requirements in Exhibit E. SECTION 15. CONSTRUCTION AND DEMOLITION DEBRIS RECYCLING PROGRAM A. Act Requirements. The California Green Building Standards Code codified in the California Code of Regulations Title 24, Part 11, ("CalGreen") and adopted by reference in Code Section 15.11.010, requires mandatory diversion of Construction and Demolition Debris. Contractor shall comply with all requirements of CalGreen, as it may be amended from time to time. In the event CalGreen and the City's Construction and Demolition Debris diversion requirements differ, Franchisee shall comply with the highest Construction and Demolition Debris Diversion percentage. Further, City reserves the right to amend and/or expand its own Construction and Demolition Debris Recycling ordinance at any time during the Term. Contractor shall provide all services necessary to (a) inform Customers of, (b) support Customer compliance with, and (c) support City's enforcement of, the Construction and Demolition Debris Recycling requirements pursuant to CalGreen and the Code. B. Construction and Demolition Debris Diversion Program. Franchisee acknowledges these requirements and agrees that, subject to the restrictions contained in Agreement Section 11(A), for all Customers that contract with or pay Franchisee to haul Construction and Demolition Debris, Franchisee shall implement a Diversion Program as described and set forth in Exhibit "F" which is incorporated herein by reference. SECTION 16. REPORTING REQUIREMENTS. A. Monthly Reports. Franchisee shall submit monthly reports to the Public Works Director identifying, at a minimum, the following information: 1. The address of each facility serviced and the precise services provided to each address including, but not limited to, Commercial Franchise Services broken down by type (i.e., Recyclable Materials, Food Scraps, Green Waste, Wood Waste, Construction and Demolition Debris, and/or Municipal Solid Waste) presented in an Excel format acceptable to the City; 2. The frequency of Commercial Franchise Services provided to each address; 3. The number of containers by type and size at each address and the frequency of collection; Non-exclusive Franchise Agreement Page 29 4. The actual tonnage, by material category, collected per month in tons; 5. The location of the Landfill and/or Processing Facility to which the Municipal Solid Waste, Recyclable Materials, Green Waste, Wood Waste and/or Food Scraps were taken during the previous month and the Diversion rate achieved if the facility accepts mixed waste mate ria ls/Processable Municipal Solid Waste; 6. AB 341 and AB 1826 compliance information by Generators, including the total number of AB 341 and AB 1826 accounts serviced by the Franchisee, the total number of accounts that have a Recycling Program, Food Scrap Diversion Program, and/or Green Waste/Wood Waste Diversion Program provided by the Franchisee, the number of Customers with Franchisee -documented internal Diversion programs that comply with AB 1826 and AB 341, the number of Customers that comply with AB 341 or AB 1826 via a Clean or Dirty MRF, the number of Customers that do not have an AB 341 or AB 1826 -compliant Diversion program, and a description of outreach efforts for non-compliant Generators; 7. The "Exhibit E Tracking Document" described in subparts D, E and F of Exhibit E. 8. Such other tonnage or other information as requested by the Public Works Director including weight tickets and Diversion records. B. Form of Report. Monthly reports shall be included in the City provided electronic template. No other templates or formats will be accepted. Use of any alternate format or template shall result in the monthly report being considered incomplete and inaccurate and the Franchisee shall be subject to assessment of liquidated damages pursuant to Section 24(B) of the Franchise. C. Report Due Date. Each monthly report shall be submitted on or before the 25th day of the month following the end of the month. D. Submission. Franchisee shall submit each monthly report to: Public Works Director City of Newport Beach P.O. Box 1768 100 Civic Center Dr. Newport Beach, CA 92658 E. No Waiver. Franchisee shall file the monthly report required under Agreement Section 16(A) regardless of whether Franchisee has provided Commercial Franchise Services in the City during the reported month. F. Compliance. Franchisee shall comply with all Recycling and Diversion requirements imposed by law, ordinance, or regulation on the City. At the end of each calendar month, reports will be evaluated for compliance with City Recycling and Non-exclusive Franchise Agreement Page 30 Diversion requirements. Failure to comply with City Recycling and Diversion requirements shall be a material breach of this Agreement. SECTION 17. HAULER REPRESENTATIVE Franchisee shall designate, at a minimum, one (1) individual employed by Franchisee to assist City in implementing the Agreement's Recycling and Diversion programs, as applicable, and to manage all reporting requirements set forth herein ("Hauler Representative"). Franchisee shall provide City with the Hauler Representative's contact information, and the Hauler Representative shall be the primary contact for the City. The Hauler Representative shall respond to any City questions or concerns relating to or arising from Franchisee's performance under this Agreement within five (5) business days of City submitting such question or concern. SECTION 18. VEHICLES AND EQUIPMENT A. Containers. Any and all Containers provided to Customers for storage, Collection or transportation of Municipal Solid Waste, Recyclable Materials, Food Scraps, and/or Green Waste shall meet the requirements designated by the Public Works Director as well as State of California minimum standards for solid waste handling established under Public Resources Code Section 43020 and applicable health requirements, or any successor statutes or requirements. B. Identification. All Containers and vehicles used by Franchisee in the performance of Commercial Franchise Services shall be marked with Franchisee's name in letters which are not less than four inches (4") high and which are easily read by the general public. C. Equipment. 1. Maintenance; Records. Franchisee shall, at all times, provide such number of vehicles and such equipment as will be adequate for the Commercial Franchise 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 must pass annual "BIT" and brake inspections and Franchisee shall provide evidence of such to the Public Works Department upon request. Upon request by the City, Franchisee shall provide records from the most recent California Highway Patrol biennial inspection of the terminal(s) responsible for the maintenance and repair of equipment used in the City. All vehicles shall be properly maintained, kept clean and in good condition and repair, shall not leak any fluids, and shall be uniformly painted. All Commercial Solid Waste and Divertible Materials Containers used in the performance of this Agreement shall be kept clean and in good repair, shall not leak any fluids, and shall be uniformly painted in the color identified by Franchisee in Franchisee's application. All equipment required by City in the performance of this Agreement, including vehicle mirrors and the collision avoidance system, may be subject to inspection by the City upon twenty-four (24) hours' notice by the Public Works Director. All drivers employed by Franchisee and operating equipment in the City shall be properly licensed for the class of vehicle they drive, enrolled in the Non-exclusive Franchise Agreement Page 31 Department of Motor Vehicles Employee Pull Notice (EPN) program, and abide by all State and federal regulations for driver hours and alcohol and controlled substances testing. 2. Solid Waste and Divertible Materials Retention. Each vehicle shall be so constructed and used in a manner so that no rubbish, garbage, debris, oil, grease or other material will blow, fall, or leak out of the vehicle. All Municipal Solid Waste and Divertible Materials shall be transported by means of vehicles that are covered in such a manner as to securely contain all Solid Waste and Divertible Materials and to prevent such Municipal Solid Waste and Divertible Materials from projecting, blowing, falling or leaking out of the vehicles. Any Municipal Solid Waste or Divertible Materials dropped or spilled in Collection, transfer or transportation shall be immediately cleaned up by Franchisee. A broom and a shovel shall be carried 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 at all times. 3. Vehicle Mirrors. All equipment used by Franchisee for Commercial Franchise Services in the City with a gross vehicle weight rating of twenty-six thousand (26,000) pounds or more shall be equipped with a convex mirror on the front of each vehicle, adjusted so as to enable the operator to see all points on an imaginary horizontal line which: (a) Is three feet (3') above the road; (b) Is one foot (1') directly forward from the midpoint of the front of the vehicles; and (c) Extends the full width of the front of the vehicle. 4. Collision Avoidance System. All vehicles operated by Franchisee in the City shall include the best available collision avoidance system that is capable of detecting adjacent pedestrians and bicyclists. City reserves the right to inspect Franchisee's vehicles, at any time, to confirm that the installation and capability of Franchisee's collision avoidance system is consistent with Section 18(C)(4). On or before January 1 of each year, Franchisee shall submit to City a certification signed under penalty of perjury containing the following: List of any collection vehicle (including front loader, rear loader, side loader, and roll off vehicles and all "spares") of such vehicles that franchisee operate in the City. ii. Collision Avoidance System installed on each vehicle including name of system, manufacturer, date installed, name of Person who installed the system, name of Person(s) who Non-exclusive Franchise Agreement Page 32 tested the system to ensure proper installation and operation of system. 5. Storage. Franchisee shall not store any vehicle or equipment on any public street, public right-of-way or other public property in the City without obtaining a Temporary Street Closure Permit from the Public Works Department and prior written consent of the Public Works Development. 6. Compliance. Should the Public Works Director at any time give written 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 used again until inspected and authorized in writing by the Public Works Director. 7. City Standards. Placement of Containers and equipment shall be in accordance with the standards set by the City. 8. Equipment Standards. All equipment provided by Franchisee shall be in accordance with standards set by the Public Works Department. SECTION 19. ABANDONED CONTAINERS A. If Franchisee abandons any Commercial Solid Waste or Divertible Materials Container within the City, the City may remove the Container and/or dispose of the contents of the Container and recover its cost from Franchisee. B. For the purposes of this Section, "abandons" 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 12.63.140 of the Code, or any successor statute; 2. Franchisee's failure to remove the Container within ten (10) calendar days after the expiration or termination of the Franchise granted to Franchisee, except in the case where Franchisee has been granted an extension of the Term of said Franchise or Franchisee has been granted a subsequent franchise authorizing Franchisee to Collect and transport the type or types of Commercial Solid Waste for which the Container was used pursuant to this Agreement; or 3. Franchisee's failure to collect the Container and dispose of the contents of the Container within two (2) calendar days after the Public Works Director issues written notice to Franchisee to dispose of the contents. 4. Franchisee's failure to replace a Container that fails to comply with the City's aesthetic standards, as set forth in this Agreement, within five (5) calendar days of receiving written notice from the Public Works Director of non-compliance. Non-exclusive Franchise Agreement Page 33 SECTION 20. COMPLIANCE WITH LAW A. Franchisee shall perform all Commercial Franchise Services in accordance with applicable federal, state, and local law, including, but not limited to, Code Chapter 12.63, Article XIII of the City Charter, Ordinance No. 2020-20 and the terms and conditions of this Agreement. B. During the Term of this Agreement, Franchisee and City agree that the City's ordinances may be amended as provided herein, as provided in Chapter 12.63 or 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 obligations or requirements for Commercial Solid Waste management. Franchisee agrees to comply with any such amendment of the City's ordinances without the need to amend this Agreement. SECTION 21. PERMITS AND LICENSES A. Applicable 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. Payment of the Franchise Fee and Environmental Liability Fund Fee shall be in addition to any permit or license fees or business tax prescribed by the City for the same period. B. Orange County Landfill Account. Franchisee shall obtain and maintain for the Term of this Agreement an account with the Orange County landfills. If Franchisee disposes of any Municipal Solid Waste collected from the City at an Orange County landfill, the Franchisee shall utilize its landfill account only (no "cash" disposal). SECTION 22. PUBLIC EDUCATION ACTIVITIES A. Informational Materials. Each year during the Term of this Agreement, Franchisee shall transmit informational materials to all Customers and to such prospective Customers as it may select, informing them of the Commercial Franchise Services that are required of them under State law as well as Hazardous Waste Disposal requirements. B. Customer Compliance Notification. Each year during the Term of this Agreement, Franchisee shall notify all AB 1826 and AB 341 accounts for which it provides Commercial Franchise Services of the Customer's compliance obligations. C. Submission to City of Informational Materials. Franchisee's informational materials shall be provided to the Public Works Director upon request if, in City's sole and absolute discretion, such informational materials are necessary for City to comply with State reporting requirements. Non-exclusive Franchise Agreement Page 34 SECTION 23. SUSPENSION; TERMINATION; APPEAL A. City's Right to Suspend or Terminate. The Franchise granted to Franchisee may be suspended or terminated by the City Council pursuant to Code Section 12.63.140, or any successor statute. B. Notice of Default. Should the Public Works Director determine Franchisee has defaulted in the performance of any obligation hereunder, the Public Works Director may provide written notice to Franchisee of such default ("Default Notice"). The Public Works Director may, in the Default Notice, set a reasonable time within which Franchisee may cure such default. Unless a longer or shorter time is otherwise specified by the Public Works Director, a reasonable time for correction shall be thirty (30) calendar days from the date the Default Notice is issued. C. Public Works Director Review. Within ten (10) business days of the Public Works Director's issuance of the Default Notice, at the request of Franchisee, the Public Works Director will hold a meeting with Franchisee to discuss the failure(s) described in the Default Notice. Such request shall immediately suspend any deadlines set forth in Agreement Section 23(B) or the Default Notice. During Franchisee's meeting with the Public Works Director, Franchisee shall have an opportunity to present evidence explaining or justifying the failures described in the Default Notice. After the meeting, the Public Works Director will make a determination, in his or her sole discretion, as to whether to uphold the Default Notice, or any portion thereof, and shall issue such determination within five (5) business days of the meeting. Franchisee will have thirty (30) calendar days from the date the Public Works Director's determination is issued to cure the upheld Default Notice or portion thereof. D. Appeal to City Manager. Within five (5) business days of the Public Works Director issuing his/her determination, Franchisee may appeal the Public Works Director's determination, in writing, to the City Manager. City's receipt of such appeal request shall immediately suspend any deadlines set forth in Agreement Section 23(C). The City Manager will hold a meeting with Franchisee no more than ten (10) business days after receiving Franchisee's written appeal request. After the meeting, the City Manager will make a determination, in his or her sole discretion, as to whether to uphold the Default Notice, or any portion thereof, and shall issue such determination within five (5) business days of the meeting. The decision of the City Manager shall be final. Franchisee will have thirty (30) calendar days from the date the City Manager's determination is issued to cure the upheld Default Notice or any portion thereof. F. Failure to Timely Cure. If Franchisee fails to timely cure a Default Notice, or any portion thereof, then the applicable liquidated damages set forth in Agreement Section 24 shall be final and conclusive and the amount(s) shall be immediately due and payable. Franchisee's failure to timely cure three (3) Default Notices shall be a material breach of this Agreement. G. Audit Findings. Notwithstanding anything to the contrary, if Franchisee disagrees with City's audit findings, then Franchisee may, within ten (10) business days after service of the audit finding, appeal to the City Manager specifying the basis for its Non-exclusive Franchise Agreement Page 35 disagreement with City's audit findings. If Franchisee fails to timely request such an appeal, then the discrepancy determinations shall be final and conclusive and the violation shall be deemed established. H. Termination Without Right to Cure. City shall have the right of suspension or termination as a result of Franchisee's failure to timely cure any deficiency or default as set forth above, which right is in addition to City's right to terminate this Agreement without affording Franchisee an opportunity to cure in circumstances where Franchisee is determined to have materially breached this Agreement. Notwithstanding anything to the contrary, in the event of any material breach hereof, City shall have the right to terminate this Agreement without affording Franchisee the right to cure including, without limitation, any action, inaction or circumstance defined herein as a material breach and/or under any of the following circumstances which are hereby defined as material breaches: 1. If Franchisee conducts, or attempts to conduct, fraud upon City. 2. If Franchisee becomes insolvent, unable, or unwilling to pay its debts. 3. If Franchisee fails to materially comply with any insurance or indemnification requirement set forth in this Agreement; provided, however, that Franchisee shall have a reasonable opportunity to cure any default relating to the Franchisee's failure to provide the City with proof of insurance, so long as such insurance is in effect at all times. 4. If City is required to pay any fine or penalty, which Franchisee is required by the terms hereof to pay, yet which Franchisee fails, refuses, neglects or is unable to timely pay. 5. If Franchisee fails to submit Records thirty (30) calendar days or more following a written request by City, or its designated representative for Records disclosure. 6. Franchisee fails to meet the Diversion requirements of this Agreement or pursuant to applicable laws. I. Removal of Commercial Solid Waste and Divertible Materials Containers: Customer Notification. In the event this Franchise is terminated or expires without a grant of a subsequent franchise allowing Franchisee to continue performing Commercial Franchise Services in City, then within ten (10) calendar days of such termination or expiration Franchisee shall: 1. Remove all of Franchisee's Municipal Solid Waste and Divertible Materials Containers from all Franchisee's Collection service locations and properly dispose of all Municipal Solid Waste in such containers and deliver all Divertible Materials to Processing Facilities for Diversion within the time period specified by the City Council; and Non-exclusive Franchise Agreement Page 36 2. Submit to the Public Works Director a list of the names and addresses of Generators in the City for which Franchisee provided Commercial Franchise Services as of the date of termination or expiration (i.e., Franchisee's City of Newport Beach customer list); or 3. Send written notification to each Solid Waste Generator, AB 341 Generator and AB 1826 Generator on Franchisee's customer list that Franchisee is no longer authorized to provide Commercial Franchise Services in the City. Such notification shall be in the form provided by the Public Works Director and shall be personally delivered or shall be sent by first class mail, postage prepaid, to the customers' billing addresses. Franchisee shall submit to the Public Works Director an affidavit, signed under penalty of perjury, stating that the required notification has been provided by Franchisee to all of Franchisee's City Customers. J. Continuinq Obliqations. Upon Agreement termination, suspension or expiration: 1. Franchisee shall have no right or authority to engage in Commercial Franchise Services in the City, subject to the provisions of Sections 49520-49524 of the Public Resources Code, or any successor statutes. 2. Franchisee shall remain liable to City for any and all Franchise Fees and Environmental Liability Fund Fees that would otherwise be payable by Franchisee, for any and all liquidated damages, late charges and/or interest assessed. 3. Franchisee shall have a continuing obligation to submit to City all reports and records required by this Agreement. Franchisee's obligation shall survive this Agreement shall continue for such period of time as required by this Agreement or applicable law. 4. Franchisee shall allow the Commercial Solid Waste Generators, AB 341 Generators and AB 1826 Generators served by Franchisee to arrange for Commercial Franchise Services with another Franchise Holder or Person authorized to perform such services, without penalty or liability for breach of contract on the part of the generators, for such period of time as Franchisee is not authorized to perform such services because of termination or suspension. 5. Franchisee shall have a continuing obligation to provide the indemnifications required in this Agreement. Such indemnifications include, but are not limited to, the Hazardous Materials indemnification and AB 939, AB 341, and AB 1826 indemnifications asset forth in Agreement Section 10. SECTION 24. CITY'S REMEDIES A. The City incurred considerable time and expense procuring this Agreement to secure an improved level and quality of Recycling and compliance with State Diversion mandates. Non-exclusive Franchise Agreement Page 37 B. Liquidated Damages. The Parties agree the following liquidated damages schedule represents a reasonable estimate of the amount of damages, considering all the circumstances existing on the date of this Agreement, including the relationship of the sums to the range of harm to City that reasonably could be expected in anticipation that proof of actual damages would be costly or inconvenient: Applicable Failure(s)* Damages Section(s) 6(A), 7(A)� Comply with City -mandated Diversion Two hundred fifty requirements within thirty (30) calendar dollars ($250) per days of notification by City business day until compliant 6(B), 7(B) Deliver Commercial Solid Waste as Two hundred fifty designated dollars ($250) per truck delivery 8(B) Provide requested records Two hundred fifty dollars ($250) per business day until completed 11(A) Provide only those Commercial Two hundred fifty Franchise Services for which Franchisee dollars ($250) has applied 11(C) Collect at unauthorized locations and/or Two hundred fifty during unauthorized hours five (5) or dollars ($250) more times in a twelve (12) month period 11(D) Label Containers; paint vehicles and/or Fifty dollars ($50) Containers corporate color per business day until corrected 12(A), 12(C), Implement AB 341 Diversion Program One thousand Exhibit E, Parts A, including Tasks 1-16 in Exhibit E, Part A dollars ($1,000) per B and C within the timeframe in Franchise occurrence Section 12C. Comply with the requirements of Exhibit E, Parts B and C within ninety (90) days of the events described in Part B, or within ninety (90) days of a previously operating AB 341 Program malfunctioning as required by Part C. 13(A), 13(C), Implement AB 1826 Food Scrap One thousand Exhibit E, Parts A, Diversion Program including Tasks 1-16 dollars ($1,000) B and C in Exhibit E, Part A, within the timeframe in Franchise Section 13C. Comply with Non-exclusive Franchise Agreement Page 38 the requirements of Exhibit E, Parts B and C within ninety (90) days of the events described in Part B or within ninety (90) days of a previously operating Food Scrap Diversion Program malfunctioning as required by Part C. 14(A), 14(C), Implement AB 1826 Green Waste and Five hundred dollars Exhibit E, Parts A, Wood Waste Diversion Program ($500) B and C including Tasks 1-16 in Exhibit E, Part A, within the timeframe in Franchise Section 14C. Comply with the requirements of Exhibit E, Parts B and C within ninety (90) days of the events described in Part B or within ninety (90) days of a previously operating Green Waste and Wood Waste Diversion Program malfunctioning as required by Part C. 15(B) Implement Construction and Demolition Diversion Program One thousand dollars ($1,000) 16(A), 16(B), 16(E) Submit complete and accurate monthly One hundred dollars reports ($100) per business day until corrected or completed 16(C) Submit timely monthly reports One hundred dollars ($100) — if not submitted when due Five hundred dollars ($500) — if not submitted Min thirty (30) calendar days after due date 17 Designate qualified Hauler Fifty dollars ($50) Representative; Failure of Hauler per business day Representative to timely respond to City until completed 18(C) Secure or maintain vehicles or vehicle One hundred dollars equipment ($100) per business day until completed Non-exclusive Franchise Agreement Page 39 19 Remove, replace, or collect abandoned Fifty dollars ($50) Container(s) per business day until completed *Unless otherwise designated, reference to "failure(s)" refers to each occurrence of specified breach (such as for each Customer or each Customer record entry or complaint) and not for aggregate occurrences of those breaches (such as for all Customers on a given route or day). C. City's Remedies Cumulative. The rights and remedies of City set forth herein shall be in addition to any and all other rights and privileges City may have, and shall not be deemed to limit any such other rights or privileges of City under this Agreement or by virtue of any law. By placing its initials below, each party specifically confirms: (1) the accuracy of the statements made in Agreement Section 24; and (2) it has had ample opportunity to consult with legal counsel and obtain an explanation of liquidated damage provisions prior to signing this Agreement. FRANCHISEE CITY Initial Here: Yve— Initial Here: 4k.0'111, SECTION 25. CONFIDENTIAL INFORMATION. A. Confidential Information. In the performance of this Agreement or in contemplation thereof, the parties and their respective employees and agents may have access to private or confidential information owned or controlled by the other party and such information may contain proprietary details and disclosures. All information and data identified in writing as proprietary or confidential by either party ("Confidential Information") and so acquired by the other party or its employees or agents under this Agreement or in contemplation thereof shall be and shall remain the disclosing party's exclusive property. The recipient of Confidential Information shall use all reasonable efforts (which in any event shall not be less than the efforts the recipient takes to ensure the confidentiality of its own proprietary and other confidential information) to keep, and have its employees and agents keep, any and all Confidential Information confidential, and shall not copy, or publish or disclose it to others, nor authorize its employees, agents or anyone else to copy or disclose it to others, without the disclosing party's written approval; nor shall the recipient make use of the Confidential Information except for the purposes of executing its obligations hereunder, and (except as provided for herein) shall return the Confidential Information and data to the first party at its request. The City's duty to maintain confidentiality as described hereunder shall be subject to the laws of the State of California. B. Excluded Information. The foregoing conditions will not apply to information or data which is, or which becomes generally known to the public by publication or by any means other than a breach of duty on the part of the recipient hereunder, is information Non-exclusive Franchise Agreement Page 40 previously known to the recipient, is information independently developed by or for the recipient or is information generally released by the owning party without restriction. C. Public Records Request. Should City receive a public records request, or otherwise be directed by any governmental authority to disclose any or all Confidential Information in City's possession, custody or control, City shall promptly provide notice to Franchisee of such request to allow Franchisee an opportunity to prevent disclosure. D. Right to Injunctive Relief. Because of the unique nature of the Confidential Information, the parties agree that each party may suffer irreparable harm in the event that the other party fails to comply with any of its obligations under this Section, and that monetary damages may be inadequate to compensate either party for such breach. Accordingly, the parties agree that either party will, in addition to any other remedies available to it at law or in equity, be entitled to seek injunctive relief to enforce the terms of this Section. SECTION 26. ASSIGNMENT Franchisee shall not assign, sell, subcontract, transfer or otherwise delegate its authority to perform any portion of the Commercial Franchise Services or obligations under the Franchise without prior express consent of the City Council. This prohibition includes any transfer of ownership or control of Franchisee, or the conveyance of a majority of Franchisee's stock to a new controlling interest. City's consent shall not be unreasonably withheld. SECTION 27. 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: Public Works Director City of Newport Beach P.O. Box 1768 100 Civic Center Dr. Newport Beach, CA 92660 To Franchisee: Tight Quarters, Inc. 2031 S. Anne Street Santa Ana, CA 92704 Notice shall be deemed effective on the date personally served or, if mailed, three (3) calendar days after the date deposited in the mail. B. Integrated Agreement. This Agreement represents the full and complete understanding of every kind or nature whatsoever between the City and Franchisee, and all preliminary negotiations and other agreements of any kind or nature are merged Non-exclusive Franchise Agreement Page 41 herein. No verbal agreement or implied covenant shall be held to vary the provisions herein. C. Amendments. This Agreement supersedes all prior agreements and understandings 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 writing and signed by both parties. D. Recitals. The Parties acknowledge that the Recitals are true and correct and are hereby incorporated by reference into this Agreement. E. Applicable Law. The laws of the City, State of California, and applicable Federal law, shall govern this Agreement and all matters relating to it and any action brought relating to this Agreement shall be adjudicated in a court of competent jurisdiction in the County of Orange. F. Authority. The parties signing below represent and warrant that they have the requisite authority to bind the entities on whose behalf they are signing. G. Severability. If any term or portion of this Agreement is held to be invalid, illegal, or otherwise unenforceable by a court of competent jurisdiction, the remaining provisions of this Agreement shall continue in full force and effect. H. Waiver. A waiver by either party of any breach, of any term, covenant or condition contained herein shall not be deemed to be a waiver of any subsequent breach of the same or any other term, covenant or condition contained herein, whether of the same or a difference character. I. Interpretation. The terms of this Agreement shall be construed in accordance with the meaning of the language used and shall not be construed for or against either party by reason of the authorship of this Agreement or any other rule of construction that might otherwise apply. J. Equal Opportunity Employment. Franchisee represents that it is an equal opportunity employer and it shall not discriminate against any authorized subcontractor, employee or applicant for employment because of race, religion, color, national origin, handicap, ancestry, sex or age or any other impermissible basis under law. K. Compliance with Laws. Franchisee shall at its own cost and expense comply with all statutes, ordinances, regulations and requirements of all governmental entities, including federal, state, county or municipal, whether now in force or hereinafter enacted. Franchisee agrees to obtain a business license from the City in accordance with the Code. The parties hereto agree that the Franchise and this Agreement are the only authorizations to conduct Commercial Franchise Services in the City and that the issuance of a business license does not grant the Franchisee a right to conduct Commercial Franchise Services or other business in the City. Non-exclusive Franchise Agreement Page 42 L. Conflicts of Interest. Franchisee and its employees may be subject to the provisions of the California Political Reform Act of 1974 (the "California Political Reform Act"), which (i) requires such persons to disclose any financial interest that may foreseeably be materially affected by the work performed under this Agreement, and (ii) prohibits such persons from making, or participating in making, decisions that will foreseeably financially affect such interest. If subject to the California Political Reform Act, Franchisee shall conform to all requirements of the California Political Reform Act. Failure to do so constitutes a material breach and is grounds for immediate termination of this Agreement by City. Franchisee shall indemnify and hold harmless City for any and all claims for damages resulting from Franchisee's violation of this subsection. M. Conflicts or Inconsistencies. In the event there are any conflicts or inconsistencies between this Agreement and the Scope of Services or any other attachments attached hereto, the terms of this Agreement shall govern. N. No Attorneys' Fees. In the event of any dispute or legal action arising under this Agreement, the prevailing party shall not be entitled to attorneys' fees. O. Counterparts. This Agreement may be executed in two (2) or more counterparts, each of which shall be deemed an original and all of which together shall constitute one (1) and the same instrument. [SIGNATURES ON FOLLOWING PAGE] Non-exclusive Franchise Agreement Page 43 IN WITNESS WHEREOF, the parties have caused this Agreement to be executed on the day and year written below. APPROVED AS TO FORM: CITY ATTORNEY'S OFFICE Date: -�/�ZnZo B 1�. � _�� y� , Aaron C. Harp G`M 00%W; IV City Attorney ATTEST: /n� Date: Z1� 0� By: Leilani I. Brown City Clerk CITY OF NEWPORT BEACH, a California municipal corporation Date: �"��""/�zoz© Will O'Neill Mayor FRANCHISEE: Tight Quarters, Inc., a California corporation Date: By: Xlfefd Cottam resident Date: o Zo Monica Cottam Secretary [END OF SIGNATURES] Attachments: Exhibit A — Faithful Performance Bond Exhibit B — Franchise Hauler Acknowledgement Exhibit C — Franchisee Application Template Exhibit D — Insurance Requirements Exhibit E — Required Tasks for Implementation of Diversion Programs Exhibit F — Construction and Demolition Debris Diversion Program Non-exclusive Franchise Agreement Page 44 EXHIBIT A CITY OF NEWPORT BEACH BOND NO. 36KO11129 FAITHFUL PERFORMANCE BOND The premium charges on this Bond is $ 15o WHEREAS, the City of Newport Beach, State of California, has awarded to Tight Quarters, Inc., a California corporation hereinafter designated as the "Principal," a Non- exclusive Franchise for Commercial Solid Waste and Divertible Materials Handling Services ("Franchise Agreement") in the City of Newport Beach, in strict conformity with the Franchise Agreement on file with the office of the City Clerk of the City of Newport Beach, which is incorporated herein by this reference. WHEREAS, Principal has executed or is about to execute the Franchise Agreement and the terms thereof require the furnishing of a Bond for the faithful performance of the Franchise Agreement. NOW, THEREFORE, we, the Principal, and Liberty Mutual , duly authorized to transact business under the laws of the State of California as Surety (hereinafter "Surety', are held and firmly bound unto the City of Newport Beach, in the sum of Seven Thousand Five Hundred Dollars and 00/100 ($7,500.00) lawful money of the United States of America, to be paid to the City of Newport Beach, its successors, and assigns; for which payment well and truly to be made, we bind ourselves, our heirs, executors and administrators, successors, or assigns, jointly and severally, firmly by these present. THE CONDITION OF THIS OBLIGATION IS SUCH, that if the Principal, or the Principal's heirs, executors, administrators, successors, or assigns, fail to abide by, and well and truly keep and perform any or all the services, covenants, conditions, and agreements in the Franchise Agreement documents and any alteration thereof made as therein provided on its part, to be kept and performed at the time and in the manner therein specified, and in all respects according to its true intent and meaning, or fails to indemnify, defend, and save harmless the City of Newport Beach, its officers, employees and agents, as therein stipulated, then, Surety will faithfully perform the same, in an amount not exceeding the sum specified in this Bond; otherwise this obligation shall become null and void. As a part of the obligation secured hereby, and in addition to the face amount specified in this Performance Bond, there shall be included costs and reasonable expenses and fees, including reasonable attomey's fees, incurred by City, only in the event City is required to bring an action in law or equity against Surety to enforce the obligations of this Bond. Surety, for value received, stipulates and agrees that no change, extension of time, alterations or additions to the terms of the Franchise Agreement or to the services to be performed thereunder shall in any way affect its obligations on this Bond, and it does Faithful Performance Bond Page A-1 hereby waive notice of any such change, extension of time, alterations or additions of the Agreement or to the services or to the specifications. This Faithful Performance Bond shall be extended and maintained by the Principal in full force and effect for seven (7) years following the date Principal is granted the Franchise Agreement by City. In the event that the Principal executed this bond as an individual, it is agreed that the death of any such Principal shall not exonerate the Surety from its obligations under this Bond. IN WITNESS WHEREOF, this instrument has be n duly executed by the Principal and Surety above named, on the 12— day of 20 �20. %�A� 6uAA4*J Name of Contractor (Principal) L li;�� r-/ y,,xIrvw L Name of Surety Authorized Agent Signature 77P t e/7V.DQ ue 5cvTi+ /fid, .�r,, ,�10/1�& Address of Surety .524 4.28�0� Print Name and Title '7/Lj- 4/a—)aaga Telephone APPROVED AS TO FORM: CITY ATTORNEY'S OFFICE Date: (�j) BY 2 jAaro C. Harp orney NOTARY ACKNOWLEDGMENTS OF CONTRACTOR AND SURETY MUST BE ATTACHED Faithful Performance Bond Page A-2 ACKNOWLEDGMENT A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document. State of California County of O, ) On j� �/�Iry►,jy' Sj .�Q before me, Sandra Perez, Notary Public (insert name and title of the officer) personally appeared 4040A A7"Vl who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. sANORAPEREz / COMM. #2229269 CO NOTARY PUBUC-CAUFORNIAZ 1` ORANGE COUNTY M ( // 1 / p My Comm. Expires February 2l, 2022 Signature (Seal) ACKNOWLEDGMENT A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document. State of California County of QUA ) On �`�(� before me, Jenna F. Gonzalez - Notary Public (insert name and title of the officer) personally appeared meug-h 1✓1 M tlbtec ✓t , who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. Signatu (Seal) JENNA FCOMM # NZAL Z cin a = NOTARY PUBLIC -CALIFORNIA ORANGE COUNTY 21, 2022 My Comm. Expires FebUuM This Power of Attorney limits the acts of those named herein, and they have no authority to bind the Company except in the manner and to the extent herein stated. The Ohio Casualty Insurance Company POWER OF ATTORNEY Surety Bond Number. 36KO11129/989931 C Principal: Tight Quarters Inc Bond Amount: ( $7,500.00 )Seven Thousand Five Hundred Dollars And Zero Cents KNOW ALL PERSONS BY THESE PRESENTS: that The Ohio Casualty Insurance Company, a corporation duly organized under the laws of the State of New Hampshire (herein collectively called the "Company"), pursuant to and by authority herein set forth, does hereby name, constitute and appoint, Martin Mullan all in the city of Cypress , state of California each individually if there be more than one named, its true and lawful attorney-in-fact to make, execute, seal, acknowledge and deliver, for and on its behalf as surety and as its act and deed, any and all undertakings, bonds, recognizances and other surety obligations, in pursuance of these presents and shall be as binding upon the Companies as if they have been duly signed by the president and attested by the secretary of the Company in their own proper persons. IN WITNESS WHEREOF, this Power of Attorney has been subscribed by an authorized officer or official of the Company and the corporate seal of the Company has been affixed thereto this 26th day of September , 2016 . P 11 INS& The Ohio Casualty Insurance Company Q Po'cb9yc+ 0 1919 SOhAMP°'a`,d� By: r David M. Carey, Assistant Secretary STATE OF PENNSYLVANIA COUNTY OF MONTGOMERY " 0 On this 26th day of September 2016 , before me personally appeared David M. Carey, who acknowledged himself to be the Assistant Secretary of The Ohio m Casualty Insurance Company and that he, as such, being authorized so to do, execute the foregoing instrument for the purposes therein contained by signing on behalf of the C > corporations by himself as duly authorized officer. IN WITNESS WHEREOF, I have hereunto subscribed my name and affixed my notarial seal at King of Prussia, Pennsylvania, on the day and year first above written. N O 9P PAST i Q��MONW�IF�� COMMONWEALTH OF PENNSYLVANIA y h� u i 'y Notarial Seal *' OF Teresa Pastelle, Notary Public R Upper Marion Twp., Montgomery County By: la4& a).. c�, �a�Q' My Commission Expires March 28, 2017 m ` Fry u0��o Member, Pennsylvania Associa8on of Notaries Teresa Pastella, Notary Public d oThis Power of Attorney is made and executed pursuant to and by authority of the following By-law and Authorizations of The Ohio Casualty Insurance Company, which is now in full E ai force and effect reading as follows: >, ARTICLE IV — OFFICERS — Section 12. Power of Attorney. Any officer or other official of the Corporation authorized for that purpose in writing by the Chairman or the President, and subject to such limitation as the Chairman or the President may prescribe, shall appoint such attomeys-in-fact, as may be necessary to act in behalf of the Corporation to make, execute, seal, acknowledge and deliver as surety any and all undertakings, bonds, recognizances and other surety obligations. Such attorneys -in -fact, subject to the limitations set p forth in their respective powers of attorney, shall have full power to bind the Corporation by their signature and executed, such instruments shall be as binding as if signed by the 0 President and attested to by the Secretary. Any power or authority granted to any representative or attorney-in-fact under the provisions of this article may be revoked at any time by the Board, the Chairman, the President or by the officer or officers granting such power or authority. Certificate of Designation — The President of the Company, acting pursuant to the Bylaws of the Company, authorizes David M. Carey, Assistant Secretary to appoint such attorneys -in -fact as may be necessary to act on behalf of the Company to make, execute, seal, acknowledge and deliver as surety any and all undertakings, bonds, recognizances and other surety obligations. Authorization — By unanimous consent of the Company's Board of Directors, the Company consents that facsimile or mechanically reproduced signature of any assistant secretary of the Company, wherever appearing upon a certified copy of any power of attorney issued by the Company in connection with surety bonds, shall be valid and binding upon the Company with the same force and effect as though manually affixed. I, Renee C. Llewellyn, the undersigned, Assistant Secretary, of The Ohio Casualty Insurance Company do hereby certify that the original power of attorney of which the foregoing is a full, true and correct copy of the Power of Attorney executed by said Company, is in full force and effect and has not been revoked. IN TESTIMONY WHEREOF, I have hereunto set my hand and affixed the seals of said Company thiis, Puo1upo p yc+ r m 0 1919 y i `.v, o OHAMPg�,dif Hyl * LMS-14910DA 12/13 18th day of October 2020 By: A� Renee C. Llewellyn, Assistant Secretary R h d� L 3 a> o id c d0 3 F- OU) O.W N E rte+ Q 4- O CM >E ed �o 0 E Eli EXHIBIT B FRANCHISE HAULER ACKNOWLEDGEMENT THIS FRANCHISE HAULER ACKNOWLEDGMENT is entered into as of this 8th day of October, 2020 (the "Acknowledgment"), by and between the City of Newport Beach, a charter city and municipal corporation (the "City"), and Tight Quarters, Inc., a California corporation (the "Franchise Hauler"). WITNESSETH WHEREAS, the City and the Franchise Hauler have heretofore entered into an agreement entitled NONEXCLUSIVE FRANCHISE AGREEMENT BETWEEN THE CITY OF NEWPORT BEACH AND TIGHT QUARTERS, INC. FOR COMMERCIAL SOLID WASTE AND DIVERTIBLE MATERIALS HANDLING SERVICES (the "Franchise"); and WHEREAS, the Franchise provides for the collection and disposal of certain municipal commercial solid waste as described therein ("Franchise Waste") generated within the City; and WHEREAS, the County of Orange (the "County") owns, manages and operates a sanitary landfill disposal system for municipal solid waste generated within the County; and WHEREAS, the City and the County have heretofore entered into a Waste Disposal Agreement as of 2009, and subsequent Amendment to the Waste Disposal Agreement dated April 28, 2016 (collectively, the "Disposal Agreement"), determining that the execution of such Disposal Agreement will serve the public health, safety and welfare of the residents of the City and County, by maintaining public ownership and stewardship over the Orange County Landfill Disposal System (the "Disposal System"),- and WHEREAS, under the Disposal Agreement, the County has agreed to provide long-term disposal of all municipal solid waste generated within the City and the City has agreed to exercise all legal, and contractual power which it possesses from time to time to deliver or cause the delivery of such waste to the Disposal System; and WHEREAS, the provisions of the Waste Disposal Agreement which guarantee capacity for the long term disposal of waste at specified rates generated in the City provide significant benefits to the Franchise Hauler; and WHEREAS, notwithstanding any Franchise provisions to the contrary, the Franchise Hauler explicitly acknowledges the aforementioned benefits to the City, the County and the Franchise Hauler in providing for the disposal of all Franchise Waste to the Disposal System; and WHEREAS, the City and the Franchise Hauler desire to enter into this Acknowledgment to assure that the City and the Franchise Hauler will be entitled to the benefits of the Waste Disposal Agreement and to assure conformity with the waste Franchise Hauler Acknowledgement Page B-1 delivery obligations which have been agreed to by the City under the Disposal Agreement through the delivery of waste by the Franchise Hauler to the Disposal System; and WHEREAS, the Franchise Hauler's agreement to deliver Franchise Waste to the Disposal System under this Acknowledgment is given in consideration of the Franchise Hauler's right to receive the Contract Rate for such disposal as provided in the Disposal Agreement. NOW, THEREFORE, in consideration of the premises and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties hereto, intending to be legally bound hereby, agree as follows: 1. Capitalized terms used and not otherwise defined herein are used as defined in the Disposal Agreement. 2. The Franchise Hauler hereby waives any right which it may possess under applicable law to contest on any ground, constitutional, statutory, case law, administrative or otherwise, (a) the right, power or authority of the County or the City to enter into or perform their respective obligations under the Disposal Agreement, (b) the enforceability against the County or the City of the Disposal Agreement, or (c) the right, power or authority of the City to deliver or cause the delivery of all Controllable Waste to the Designated Disposal Facility in accordance with this Acknowledgment. 3. The City and the Franchise Hauler each hereby represent that this Acknowledgment has been duly authorized by all necessary action of their respective governing bodies. 4. The Franchise Hauler shall deliver or cause to be delivered all Controllable Waste (including all residue from the processing by any means, wherever conducted, of Controllable Waste) to the Disposal System, and shall otherwise assist the City in complying with its obligations under the Waste Disposal Covenant in Section 3.1 of the Disposal Agreement. 5. The Franchise Hauler shall not haul Controllable Waste to any materials recovery facility, composting facility, intermediate processing facility, recycling center, transfer station or other waste handling or management facility unless the contract or other agreement or arrangement between the Franchise Hauler and the operator of such facility is sufficient in the opinion of the County to assure that the Residue from such facility constituting City Acceptable Waste (or Tonnage equivalencies) and the City Acceptable Waste transferred by such facility shall be delivered to the Designated Disposal Facility in compliance with the Waste Disposal Covenant. Franchise Hauler Acknowledgement Page B-2 6. The Franchise Hauler shall pay the Contract Rate imposed by the County at the Designated Disposal Facility for the disposal of all Controllable Waste, which rate shall be subject to potential adjustment necessary to reflect the circumstances set forth in the Disposal Agreement. 7. Nothing in this Acknowledgment is intended to restrict any right or responsibility explicitly given the Franchise Hauler in the Franchise to recycle City Acceptable Waste, except as provided in paragraph 5 above with respect to Residue from any such recycling operations. 8. The obligations of the Franchise Hauler under this Acknowledgment shall apply notwithstanding any provision of the Franchise which may conflict herewith. 9. This Acknowledgment may be enforced by the City by any available legal means. In any enforcement action by the City, the burden of proof shall be on the Franchise Hauler to demonstrate compliance herewith. 10. This Acknowledgment shall be in full force and effect and shall be legally binding upon the City and Franchise Hauler from the date hereof and shall continue in full force and effect until the earlier of (i) the end of the term of the Franchise or (ii) the end of the term of the Disposal Agreement. 11. The City and Hauler agree that the County shall be an express third party beneficiary of this Acknowledgment, and shall be entitled to independently enforce the obligations of the Franchise Hauler hereunder. 12. Franchise Hauler agrees to assist the County in verifying tonnage collected by the Franchise Hauler and providing information required by the County. Franchise Hauler will provide upon request refuse tonnage collected within the County, and outside the County (if relevant to confirming tonnage origination), separated by jurisdiction, by load type (residential, commercial, roll -off box), and by facility to which it was delivered (specify which landfill or transfer station). Franchise Hauler will provide customer service levels and route lists. Franchise Hauler will cooperate with County audits to verify reported origin of tonnage by making records and personnel available to the County and/or its auditors. Franchise Hauler Acknowledgement Page B-3 EXHIBIT C FRANCHISE APPLICATION TEMPLATE Franchisee Application Template Page C-1 Fa�WPORr o u C,4Poa��P CITY OF NEWPORT BEACH SOLID WASTE AND DIVERTIBLE MATERIALS FRANCHISE INFORMATION AND APPLICATION 2020 UPDATE Requirements for Solid Waste and Divertible Materials Franchise Section 12.63.030 of the Newport Beach Municipal Code states: No person shall provide commercial solid waste handling services or conduct a solid waste enterprise in the City without having first been awarded a franchise and entered into a franchise agreement with the City. The franchise agreement shall include terms and conditions for the commercial solid waste handling services in the City. The franchise shall be in addition to any business license or permit otherwise required by the City. All the franchisees shall comply with all of the requirements of the City Charter, the ordinance granting the franchise, the franchise agreement and this chapter. Procedure for Obtaining a Solid Waste and Divertible Materials Franchise Application. Solid Waste Franchise applicants are required to: • Submit the written application in a complete form, including all attachments; • Pay a non-refundable application fee of $884.00; • Provide an insurance certificate(s) evidencing coverage that meets requirements listed in the franchise agreement and insert the certificates as Attachment 5 to the application. • Carefully review the 2020 Non -Exclusive Franchise Agreement. CityApproval Process. Municipal Operations Division staff will review the application for completeness and evaluate the submitted collection and diversion plans. Following this analysis, staff will notify the applicant of any deficiencies in the application. If there are no deficiencies, the City will include your firm in a resolution of intent presented to the City Council at the March 10, 2020 meeting. Upon approval of the resolution by the City Council, the City will prepare the franchise agreement for signature by your company and email a copy of the franchise to your company. Prior to the City sending the final version of the franchise to your company for signature, the City will 1) fill in your company's corporate name and address as shown in Section 1 of this application and 2) incorporate this completed application as Exhibit C to the franchise agreement. Your company will be required to download, print, and execute two (2) original, paper -versions of the signed franchise agreement and submit them to the City by March 27, 2020 (hand delivery or priority/overnight delivery is recommended). The City must have the signed franchise agreement from your company in hand prior to City Council consideration of your franchise. After the resolution of intent is approved by the City Council, a separate Ordinance granting the new 2020 franchises will be considered by the City Council on April 28, 2020. A second reading of the Ordinance will be scheduled for the May 12, 2020 City Council meeting. If approved, the new � �EwPoRr City of Newport Beach `,�oa�•" Solid Waste Franchise Application franchise will become effective 30 days after the second reading of the Ordinance. Please note that by the terms of the new 2020 franchise and the Ordinance, once the agreement is signed by your company, approved and signed by the City, and the Ordinance becomes effective (which will be 30 days after the second reading of the Ordinance), any existing or prior franchise agreement between your company and the City will be automatically terminated simultaneously with the new 2020 franchise becoming effective. Where to Find More Information Applicants should review Chapter 12.63 of the Newport Beach Municipal Code (see link below) and the complete information included in the application packet. Applicants should also review Sections 6.04 and 6.06 of the Newport Beach Municipal Code which contain additional solid waste and divertible materials collection and handling requirements. For more information, the applicant may contact the Municipal Operations Division at (949) 644-3055. https://www.codepublishing.com/CA/NewportBeach/#!/NewportBeachI2/NewportBeach 1263 ht ml# 12.63 Where to Send a Completed Application Please do not bind or place the application in a protective covering. Applicants should retain a copy of completed materials for their records. Please submit the completed application, including application fee payment, to: City of Newport Beach Municipal Operations Division 100 Civic Center Drive Newport Beach, CA 92660 Alternatively, the application may be hand delivered to the Municipal Operations Department administrative office: City of Newport Beach Corporation Yard 592 Superior Avenue, Building A Newport Beach, CA 92663 To expedite the City's processing of your company's franchise application, you may submit an electronic version of your application to the following email address provided a paper copy, with the application fee, is concurrently mailed or delivered to one of the two addresses noted above: khincklevnnewportbeachca. gov Authorized Signatories 4 City of Newport Beach u z C941poft �P Solid Waste Franchise Application Items below only apply if entering into this Agreement as a Corporation, LLC or with a Fictitious Business Name ("DBA'): 1. Corporations. If the Contractor is a corporation (including any non-profit corporation), two (2) officers of the corporation (on the Board of Directors) must sign the contract (Corp. Code § 313). One officer from column A and one officer from column B must sign. It is permissible for one signatory to hold two officer titles. In this instance, one signature is sufficient if both titles are listed. A. President Any Vice President Chairman of the Board B. Secretary Chief Financial Officer Any Assistant Secretary Any Assistant Treasurer If the corporation cannot provide the above signatures, it may have one officer sign only if an authorizing resolution from the Board of Directors is also provided (Corp Code § 314). 2. Limited Liability Company. If the limited liability company has officers, see the requirements applicable to corporations above. If the limited liability company has members and managers, as opposed to officers, two (2) managers/members must sign or one managing member may sign if the articles of organization provide that such member has authority to execute documents on behalf of the limited liability company (Corp Code § 17703.01(b)(2) and (d)). 3. Fictitious Business Name. If doing business under a Fictitious Business Name (i.e., FBN or DBA), please provide a copy of the fictitious business name statement filed with the County. These documents must be included in the application, as they will be required for developing the franchise agreement. Business Tax Certificate (aka Business License) All persons operating a solid waste enterprise in Newport Beach must apply to the City's Revenue Division and receive a City Business Tax Certificate to begin and/or continue operations. A valid Business License issued by the City of Newport Beach must be submitted with the application as Attachment 1. For more information, please see www.newportbeachca.gov/business Public Information Information provided by the applicant(s) for a Solid Waste and Divertible Materials Franchise will be made available for public review unless otherwise exempted by law. i City of Newport Beach �4�',Foa�•P Solid Waste Franchise Application Section 1: Company Information Legal Name and DBA*: Individual Business Address*: ❑ Business Phone: Business Email ❑ Contact name: Phone Limited partnership Email: Newport Beach Business License # (include copy of current license as Attachment 1): Tier 2 (Construction and Demolition) Website: *These will be used to prepare the 2020 non-exclusive franchise agreement for signature by your company. Please provide the exact corporate or legal name under which your company will sign the actual franchise agreement. Section 2: Type of Organization Section 3: Desired Franchise Tier 1 (MSW and Divertible Materials Individual MSW ❑ Dirty MRF Processing ❑ ❑ (owner/operator) ❑ Limited partnership ❑ Joint venture Tier 2 (Construction and Demolition) E. Limited liability Unincorporated 11 Husband and wife ❑ ❑ association other than a company partnership ❑ Corporation ❑ Business trust ❑ Public agency ❑ General partnership ❑ Co-partners Section 3: Desired Franchise Tier 1 (MSW and Divertible Materials ❑ MSW ❑ Dirty MRF Processing ❑ Source -separated Dry Rec clables ❑ Food Scraps ❑ Green / Wood Waste ❑ Tier 2 (Construction and Demolition) E. Section 4: Name of Signatories Corporate Resolution Needed Yes No N/A Name Title ❑ ❑ ❑ Corporate Resolution Needed Yes No N/A Name Title ❑ 11 ❑ agWPO�'T s City of Newport Beach 'IFOM .P Solid Waste Franchise Application Section 5: Solid Waste Collection and Recycling Plans Applicants must complete a listing of solid waste collection and diversion plans (Attachment 2) The form must include, at a minimum, each waste stream; the type/sizes of containers to be utilized; description of how waste is processed; a listing of any facility where material may be taken; and the ultimate disposition of any non-processible portions of the waste stream. ❑ I have completed Attachment 2 and included it in this application packet. Section 6: List of Vehicles to Be Utilized Under the Franchise and Certification of Installed L;omsion Avoiaance S stems for j:acu Vehicle Applicants must list all vehicles to be used in performing services in the City in Attachment 3. Further, Applicants must certify that they have installed the collision avoidance system(s) on all vehicles in service within the City as required by Section 18.0 4. Note: All vehicles must meet the equipment standards listed in the 2020 franchise agreement, including, but not limited to, those listed in Section 18 of the aareement. 1 ❑ I have completed Attachment 3 and included it in this application packet. Section 7: Vehicle and Container Color Scheme The franchise agreement reuires all vehicles and containers to be painted uniform colors. Color of vehicles: Color of containers: Section 8: Designation of Hauler Representative The franchise agreement requires that waste haulers designate a Hauler Representative to assist in managing your recycling and diversion programs and mange reporting requirements. This person will also be the main contact for City staff and the hauler's customers in Newport Beach. Please provide the following information on the hauler -representative: Name: Title/position: Direct phone number: Email address: Section 9: Additional information Required with Submission of Franchise Application 1. The applicant must complete Form 200/200D/200P as appropriate, describing officers, partners, etc., having legal responsibility for the franchise agreement. ❑ I have completed the Form 200/200D/200P and included it as Attachment 4 to this application packet. 2. A current insurance certificate conforming to the requirements listed in the franchise agreement, including the applicable endorsements. 111 have included the applicable insurance certificates as Attachment 5 to this application packet. 3. The applicant hereby represents that he/she read the 2020 non-exclusive franchise agreement and the company has the experience, capability, and all required vehicles, personnel, and equipment to provide the services indicated in Section 3 of this application. 4. If your company has not conducted solid waste handling services in the City of Newport Beach for the past three (3) years, please provide information from the previous calendar year including tonnage collected by activity (residential, commercial, industrial, construction and demolition); corresponding revenue for each activity; tonnage recycled or caused to be recycled by applicant's collection, transportation, and/or disposition of materials collected and categorized by method of recycling, material types recycled, and the tonnage disposed by facility utilized; and a listing of all California jurisdictions where your firm was authorized to provide, and did provide, collection services. ❑ Our firm has not provided solid waste services to Newport beach in the past three years. I have included the requested documentation as Attachment 6. ❑ Our firm has conducted solid waste handling services in the City of Newport Beach within the past three 3 ears. aEW�RT z City of Newport Beach C,"FOR Solid Waste Franchise Application Section 10: Accounting Practices Disclosures In the past year, have you or your firm: 1. Maintained all books of account pursuant to generally accepted accounting principles (GAAP)? ❑ Yes ❑ No ❑ N/A 2. Generated all income stateme�tther a cash or accrual accounting method? ❑ Yes ❑ No 1 ❑ N/A 3. Truthfully and accurately reported all tonnage and/or the disposition of all materials collected in any jurisdiction where you are authorized to perform solid waste services? ❑ Yes 1 ❑ No 1 ❑ N/A Section 11: Authorized Signature(s) of Applicant THE UNDERSIGNED HEREBY DECLARES THAT THE INFORMATION INCLUDED ON THIS APPLICATION IS TRUE AND CORRECT AND THAT THE APPLICANT HAS READ AND UNDERSTOOD HIS OR HER OBLIGATIONS UNDER ANY FRANCHISE OBTAINED BASED ON THIS APPLICATION. A. If the applicant is a sole proprietor, the application shall be signed by the proprietor. B. If the application is a partnership, the application shall be signed by each partner. C. If the application is a firm, association, corporation, county, city, public agency, or other governmental entity, the application shall be signed by the chief executive officer or the individual legally responsible for representing the agency. D. The applicant(s) affirms that all facts and representations contained in this application and supporting documents are true and correct. (Signature ) (Title) (Date) (Signature ) (Title) (Date) (Signature) (Title) (Date) � aEvva°Rr @� City of Newport Beach a C4��FUM1��P Solid Waste Franchise Application Attachment l: Copy of Valid City of Newport Beach Business License 2 c E 0 U 0 o � o � U C a o O �z A 0 0 � L � ISI � •.. 3 � � V O W O � � L 0 L a V1 O u x° 4. O �A •a � o QU E� 3� 4: L 2 O 0 U EACfy O d e o w d c � y z � a � O CL a � � � v°��i.�°c i 3� yr1Oia m �I s g S a v 6 N ? a 3 a F a p E o '� a i i �p " 5 �¢ v Y � �s C a 3� d � y e jr a c > � E m 3 E. a 3 a E E >° z W ° ��`1 m 1 w d c � y z � a � a � � � m �I s g S � v 6 N ? a in F a Attachment 4: Form 200 and Form 200P ,SEW Pp� s City of Newport Beach n C9�p0.�it Solid Waste Franchise Application City of Newport Beach Solid Waste Franchise Application — Information Attachment 5: Insurance Certificates EXHIBIT D INSURANCE REQUIREMENTS 1. Provision of Insurance. Without limiting Franchisee's indemnification of City, and prior to commencement of Work, Franchisee shall obtain, provide and maintain at its own expense during the term of this Agreement, policies of insurance of the type and amounts described below and in a form satisfactory to City. Franchisee agrees to provide insurance in accordance with requirements set forth here. If Franchisee uses existing coverage to comply and that coverage does not meet these requirements, Franchisee agrees to amend, supplement or endorse the existing coverage. 2. Acceptable Insurers. All insurance policies shall be issued by an insurance company currently authorized by the Insurance Commissioner to transact business of insurance in the State of California, with an assigned policyholders' Rating of A- (or higher) and Financial Size Category Class VII (or larger) in accordance with the latest edition of Best's Key Rating Guide, unless otherwise approved by the City's Risk Manager. 3. Coverage Requirements. A. Workers' Compensation Insurance. Franchisee shall maintain Workers' Compensation Insurance, statutory limits, and Employer's Liability Insurance with limits of at least One Million Dollars ($1,000,000) each accident for bodily injury by accident and each employee for bodily injury by disease in accordance with the laws of the State of California, Section 3700 of the Labor Code. Franchisee shall submit to City, along with the certificate of insurance, a Waiver of Subrogation endorsement in favor of City, its City Council, boards and commissions, officers, agents, volunteers, employees, and any person or entity owning or otherwise in legal control of the property upon which Contractor performs the Project and/or Services contemplated by this Agreement. B. General Liability Insurance. Franchisee shall maintain commercial general liability insurance, and if necessary umbrella liability insurance, with coverage at least as broad as provided by Insurance Services Office form CG 00 01, in an amount not less than Two Million Dollars ($2,000,000) per occurrence, Four Million Dollars ($4,000,000) general aggregate and Four Million Dollars ($4,000,000) completed operations aggregate. The policy shall cover liability arising from premises, operations, products -completed operations, personal and advertising injury, and liability assumed under an insured contract (including the tort liability of another assumed in a business contract) with no endorsement or modification limiting the scope of coverage for liability assumed under a contract. C. Automobile Liability Insurance. Franchisee shall maintain automobile insurance at least as broad as Insurance Services Office form CA 00 01 covering bodily injury and property damage for all activities of the Franchisee arising out of or in connection with Work to be performed under this Agreement, including coverage for any owned, hired, non -owned or rented vehicles, in an amount not less than Ten Million Dollars ($10,000,000) combined single limit for each accident. Insurance Requirements Page D-1 D. Pollution Liability Insurance. Franchisee shall maintain pollution liability insurance covering all of the Franchisee's operations to include onsite and offsite coverage for bodily injury (including death and mental anguish), property damage, non - owned disposal site liability, defense costs, cleanup costs, and pollution conditions that arise from or in connection with the transportation (including loading and unloading) by or on behalf of the Franchisee, of any waste or waste materials. Coverage shall be provided for both sudden and accidental and gradual and continuous pollution events with limits no less than $5,000,000 each loss and $10,000,000 in the aggregate. The policy shall not exclude any hazardous materials for which there is an exposure. If all or any portion of the pollution liability coverage is available only on a claims -made basis, then a 10 -year extended reporting period shall also be purchased. The policy shall not contain any provision or exclusion (including any so-called "insured versus insured" exclusion or "cross -liability" exclusion) the effect of which would be to prevent, bar, or otherwise preclude any insured or additional insured under the policy from making a claim which would otherwise be covered by such policy on the grounds that the claim is brought by an insured or additional insured against an insured or additional insured under the policy. 4. Other Insurance Requirements. The policies are to contain, or be endorsed to contain, the following provisions: A. Waiver of Subrogation. All insurance coverage maintained or procured pursuant to this Agreement shall be endorsed to waive subrogation against City, its City Council, boards and commissions, officers, agents, volunteers, employees, and any person or entity owning or otherwise in legal control of the property upon which Franchisee performs the Services contemplated by this Agreement or shall specifically allow Franchisee or others providing insurance evidence in compliance with these requirements to waive their right of recovery prior to a loss. Franchisee hereby waives its own right of recovery against City, and shall require similar written express waivers from each of its subcontractors. B. Additional Insured Status. All liability policies including general liability, excess liability, pollution liability, and automobile liability, but not including professional liability (if required), shall provide or be endorsed to provide that City a its City Council, boards and commissions, officers, agents, volunteers, employees, and any person or entity owning or otherwise in legal control of the property upon which Franchisee performs the Services contemplated by this Agreement shall be included as additional insureds under such policies. C. Primary and Non Contributory. All liability coverage shall apply on a primary basis and shall not require contribution from any insurance or self-insurance maintained by City. D. Notice of Cancellation. All policies shall provide City with thirty (30) days notice of cancellation (except for nonpayment for which ten (10) days notice is required) or nonrenewal of coverage for each required coverage. 5. Additional Agreements Between the Parties. The parties hereby agree to the following: A. Evidence of Insurance. Franchisee shall provide certificates of insurance to City as evidence of the insurance coverage required herein, along with a Insurance Requirements Page D-2 waiver of subrogation endorsement for workers' compensation and other endorsements as specified herein for each coverage. Insurance certificates and endorsement must be approved by City's Risk Manager prior to commencement of performance. Current certification of insurance shall be kept on file with City at all times during the term of this Agreement. The certificates and endorsements for each insurance policy shall be signed by a person authorized by that insurer to bind coverage on its behalf. At least fifteen (15) days prior to the expiration of any such policy, evidence of insurance showing that such insurance coverage has been renewed or extended shall be filed with the City. If such coverage is cancelled or reduced, Franchisee shall, within ten (10) days after receipt of written notice of such cancellation or reduction of coverage, file with the City evidence of insurance showing that the required insurance has been reinstated or has been provided through another insurance company or companies. City reserves the right to require complete, certified copies of all required insurance policies, at any time. B. City's Right to Revise Requirements. The City reserves the right at any time during the term of this Agreement to change the amounts and types of insurance required by giving the Franchisee sixty (60) days advance written notice of such change. C. Right to Review Subcontracts. Franchisee agrees that upon request, all contracts with subcontractors or others with whom Franchisee enters into contracts with on behalf of City will be submitted to City for review. Failure of City to request copies of such contracts will not impose any liability on City, or its employees. Franchisee shall require and verify that all subcontractors maintain insurance meeting all the requirements stated herein, and Franchisee shall ensure that City is an additional insured on insurance required from subcontractors. For CGL coverage, subcontractors shall provide coverage with a format at least as broad as CG 20 38 04 13. D. Enforcement of Contract Provisions. Franchisee acknowledges and agrees that any actual or alleged failure on the part of the City to inform Franchisee of non-compliance with any requirement imposes no additional obligations on the City nor does it waive any rights hereunder. E. Requirements not Limiting. Requirements of specific coverage features or limits contained in this Section are not intended as a limitation on coverage, limits or other requirements, or a waiver of any coverage normally provided by any insurance. Specific reference to a given coverage feature is for purposes of clarification only as it pertains to a given issue and is not intended by any party or insured to be all inclusive, or to the exclusion of other coverage, or a waiver of any type. F. Self-insured Retentions. Any self-insured retentions must be declared to and approved by City. City reserves the right to require that self-insured retentions be eliminated, lowered, or replaced by a deductible. Self-insurance will not be considered to comply with these requirements unless approved by City. G. City Remedies for Non Compliance. If Franchisee or any subcontractor fails to provide and maintain insurance as required herein, then City shall have the right but not the obligation, to purchase such insurance, to terminate this Agreement, or to suspend Franchisee's right to proceed until proper evidence of insurance is provided. Any amounts paid by City shall, at City's sole option, be deducted from amounts payable to Franchisee or reimbursed by Franchisee upon demand. Insurance Requirements Page D-3 H. Timely Notice of Claims. Franchisee shall give City prompt and timely notice of claims made or suits instituted that arise out of or result from Franchisee's performance under this Agreement, and that involve or may involve coverage under any of the required liability policies. City assumes no obligation or liability by such notice, but has the right (but not the duty) to monitor the handling of any such claim or claims if they are likely to involve City. I. Franchisee's Insurance. Franchisee shall also procure and maintain, at its own cost and expense, any additional kinds of insurance, which in its own judgment may be necessary for its proper protection and prosecution of the Franchise. Insurance Requirements Page D-4 ,L, I Q, . , , I.:,, I - w., I EXHIBIT E REQUIRED TASKS FOR IMPLEMENTATION OF DIVERSION PROGRAMS A. For purposes of complying with Sections 12 through 14 of this Agreement Franchisee shall complete all of the following to the satisfaction of the City: 1. Franchisee has contacted the Authorized Customer Representative. For purposes of this section, the "Authorized Customer Representative" is the Person who subscribes to and pays for any service provided by the Franchisee and/or for any Municipal Solid Waste Collection or Diversion Services provided by any other entity. The Authorized Customer Representative may be the owner or on-site manager; or if Customer is a corporation with multiple locations and centralized decision-making, the manager with decision-making authority; or in the case of a broker or waste arranger, the Authorized Customer Representative is the Person who has the decision-making authority to subscribe to and pay for Municipal Solid Waste Collection and Diversion Services. Franchisee shall provide written notice of the requirements of the Act and the City Code for the Customer to have in place specified Diversion Program(s) as of the date(s) applicable to that Customer. If applicable, Franchisee shall also provide written notice of the requirements of CalGreen. 2. Franchisee shall estimate the quantities of Municipal Solid Waste, Recyclable Materials, Food Scraps (for businesses), Green Waste/Wood and any other Divertible Materials generated by the Customer, calculate the appropriate number and size of Containers required for storage, calculate the recommended frequency of service to optimize cost for the Customer, prepare a written Diversion Plan containing estimated costs and recommended levels of service, and submit the Plan to the Authorized Customer Representative. Franchisee shall discuss the Plan with the Authorized Customer Representative and obtain the Authorized Customer Representative's approval to implement the finalized Diversion Plan. 3. If the Customer is generating Food Scraps, Franchisee shall provide the Authorized Customer Representative with information on the available edible food donation programs in City including coordinators, vendors and non-profit agencies, as directed by City, and shall factor any applicable edible food donation opportunities into the calculations for sizing of Food Scrap Containers and frequency of Food Scrap Collection service. Franchisee shall cooperate fully and in good faith with all edible food donation efforts of City, all third parties and Customer. 4. If the Customer is already Diverting Recyclable Materials and/or Food Scraps using an in-house program, backhauling, on site processing, self - hauling, or donating or selling materials to a third party, Franchisee shall notify City so City can obtain a completed and signed "Self -Certification Form" for that program. Franchisee shall record the notification to City on the "Exhibit E Tracking Document" described in subpart D herein. City will obtain a completed Self - Required Tasks For Implementation Of Diversion Programs Page E-1 Certification Form, evaluate the information provided and take steps to verify the in-house program(s). City will inform the Franchisee of City's decision regarding the adequacy of the in-house program(s). (i) In the event City notifies the Franchisee that the in-house program(s) are inadequate, Franchisee shall comply with all the requirements contained in Sections 12, 13, 14 and in this Exhibit E to fully implement all Diversion Programs required by this Franchise. (ii) In the event City notifies the Franchisee that some, but not all, of the in-house program(s) are adequate, (a) Franchisee shall be relieved from its responsibility to implement the Diversion Programs targeting materials that are being Diverted by the City -verified in-house program(s) for a period of 12 months; and (b) Franchisee shall comply with all the requirements contained in this Exhibit E to fully implement all Diversion Programs for Recyclable Materials, Food Scraps, Green Waste and Wood Waste not adequately Diverted through the City -verified in-house program(s). At the end of twelve (12) months, Franchisee shall submit a written request to City to determine whether the Customer filed a new Self -Certification Form and whether the City has determined that any of the Customer's in- house program(s) are adequate. If so, Franchisee shall record this in the Exhibit E Tracking Document and shall be relieved from its responsibility to implement the Diversion Programs targeting materials that are being Diverted by the City -verified in-house program(s) for an additional period of 12 months. Franchisee shall continue to provide and maintain all Diversion Programs required by this Franchise for which there is no City -verified in-house program(s). This process shall be repeated by Franchisee annually as long as the Customer is served by the Franchisee at the same premises. In the event a Customer ceases operation of any or all of its in-house program(s) and/or the City makes a determination that any or all of the previously City -verified in-house program(s) are no longer operating or are no longer adequate, then Franchisee shall comply with all the requirements contained in Sections 12, 13, 14 and in this Exhibit E to fully implement all Diversion Programs required by this Franchise. (iii) In the event City notifies the Franchisee that the in-house program(s) are adequate, Franchisee shall be relieved from its responsibility to implement the Diversion Programs targeting materials that are being Diverted by the City -verified in-house program(s) for a period of 12 months. At the end of twelve (12) months, Franchisee shall submit a written request to City to determine whether the Customer filed a new Self -Certification Form and whether the City has determined that the in-house program(s) are adequate. If the City determines any or all of the in-house programs are adequate, Franchisee shall record this in the Exhibit E Tracking Document and shall be relieved from its Required Tasks For Implementation Of Diversion Programs Page E-2 responsibility to implement the Diversion Programs targeting materials that are being Diverted by the City -verified in-house program(s) for an additional period of 12 months. Franchisee shall continue to provide and maintain all Diversion Programs required by this Franchise for which there is no City -verified in-house program(s). This process shall be repeated by Franchisee annually as long as the Customer is served by the Franchisee at the same premises. In the event a Customer ceases operation of any or all of its in-house program(s) and/or the City makes a determination that any or all of the in-house program(s) are no longer adequate, then Franchisee shall comply with all the requirements contained in Sections 12, 13, 14 and in this Exhibit E to fully implement all Diversion Programs required by this Franchise. 5. If the Customer is using a landscaping company to haul away Green Waste/Wood, Franchisee shall notify City so City can obtain a completed and signed "Landscaper Self -Certification Diversion Form" for Green Waste/Wood at that Premises. Franchisee shall record the notification to City on the Exhibit E Tracking Document. City will obtain a completed Self -Certification Form, and take' steps to verify the landscaper program(s). City will inform the Franchisee of City's decision regarding the adequacy of the landscaper program(s). (i) In the event City notifies the Franchisee that the landscaper program(s) are inadequate, Franchisee shall comply with all the requirements contained in Section 14 and in this Exhibit E to fully implement all Diversion Programs for Green Waste/Wood required by this Franchise. (ii) In the event City notifies the Franchisee that some, but not all, of the landscaper program(s) are adequate, (a) Franchisee shall be relieved from its responsibility to implement the Diversion Programs targeting Green Waste and/or Wood Waste that is being Diverted by the City -verified landscaper program(s) for a period of 12 months; and (b) Franchisee shall comply with all the requirements contained In Section 14 and in this Exhibit E to fully implement all Diversion Programs for Green Waste and/or Wood Waste not adequately Diverted through the City -verified landscaper program(s). At the end of twelve (12) months, Franchisee shall submit a written request to City to determine whether the Customer filed a new "Landscaper Self -Certification Form" and whether the City has determined that any or all of the Customer's landscaper program(s) are adequate. If the City has determined that any or all of the in-house program(s) are adequate, Franchisee shall record this in the Exhibit E Tracking Document and shall be relieved from its responsibility to implement the Diversion Programs targeting Green Waste and/or Wood Waste that are being Diverted by the City -verified landscaper program(s) for an additional period of twelve (12) months. Franchisee shall continue to provide and maintain all Diversion Programs required by this Required Tasks For Implementation Of Diversion Programs Page E-3 Franchise for which there is no City -verified in-house program(s). This process shall be repeated by Franchisee annually as long as the Customer is served by the Franchisee at the same premises. In the event a Customer ceases operation of any or all of its landscaper program(s) and/or the City makes a determination that any or all of the previously City -verified landscaper program(s) are no longer operating or are no longer adequate, then Franchisee shall comply with all the requirements contained in Section 14 and in this Exhibit E to fully implement all Diversion Programs for Green Waste and Wood Waste required by this Franchise. (iii) In the event City notifies the Franchisee that the landscaper program(s) are adequate, Franchisee shall be relieved from its responsibility to implement the Diversion Programs targeting Green Waste and Wood Waste that are being Diverted by the City -verified landscaper program(s) for a period of twelve (12) months. At the end of twelve (12) months, Franchisee shall submit a written request to City to determine whether the Customer filed a new "Landscaper Self -Certification Form" and whether the City has determined that the landscaper program(s) are adequate. If so, Franchisee shall record this in the Exhibit E Tracking Document and shall be relieved from its responsibility to implement the Diversion Programs targeting Green Waste and Wood Waste that are being Diverted by the City - verified landscaper program(s) for an additional period of twelve (12) months. This process shall be repeated by Franchisee annually as long as the Customer is served by the Franchisee at the same premises. In the event a Customer ceases operation of its landscaper program(s) and/or the City makes a determination that the landscaper program(s) are no longer adequate, then Franchisee shall comply with all the requirements contained in Section 14 and in this Exhibit E to fully implement all Diversion Programs for Green Waste and Wood Waste required by this Franchise. 6. In the event Franchisee has taken all required actions and completed all required tasks in Steps 1 through 5 herein, and the Authorized Customer Representative has refused the service or has refused to implement all of the recommended programs in the Diversion Plan(s) prepared by the Franchisee, the Franchisee shall notify the City of the Customer's refusal. The Franchisee shall request that the City or its agent accompany the Franchisee on a site visit to the Customer's premises to meet with the Authorized Customer Representative to explain the requirements of the Act and the City Code that require implementation of the Diversion Program(s) described in the Plan prepared by the Franchisee and submitted to the Authorized Customer Representative in Step 2. If, after a site visit with the City and the Franchisee, the Authorized Customer Representative continues to refuse to implement the recommended Diversion Program(s) contained in the Plan submitted to the Authorized Customer Representative in Step 2, the Franchisee shall include details about the meeting date, attendees, and the Customer's decision in Franchisee's next monthly Exhibit E Tracking Required Tasks For Implementation Of Diversion Programs Page E-4 Document submittal. Franchisee shall fully and completely cooperate with, and reinforce, City's efforts to enforce the City Code and to obtain the Authorized Customer Representative's approval to implement the required Diversion Program(s). 7. In the event City is successful in obtaining the recalcitrant Authorized Customer Representative's approval to implement the required Diversion Program(s), City will notify the Franchisee and the Franchisee shall proceed to implement the Diversion Program(s) as described in the Diversion Plan prepared in Step 2 hereof, by completing implementation Steps 1 through 16 of this Exhibit E. 8. In the event the Customer initially approved the Diversion Program plan prepared by the Franchisee in Step 2, and Franchisee has completed Steps 3, 4 and 5, Franchisee shall proceed to implement Steps 9 through 16. 9. Franchisee shall deliver the appropriate type(s) and size(s) of Containers to the Customer's premises for storage of Single Material Recyclables and Single Stream Recyclable Materials. In the case of a Food Scrap Generator, Franchisee shall also provide the appropriate type(s) and size(s) of Containers for storage and collection of Food Scraps. If the Customer is generating Green Waste/Wood the Franchisee shall provide the appropriate type(s) and size(s) of Containers for storage and collection of Green Waste/Wood. 10. Franchisee shall Collect the Recyclable Materials, Food Scraps, and Green Waste/Wood (as applicable) from the Customer's Containers at the frequency of Collection required to prevent litter, vectors, odors and Contamination of Divertible Materials in Containers and is, at a minimum, performing Collection of Recyclable Materials and Green Waste/Wood at least once each week. In the case of a Food Scrap Generator, Franchisee is Collecting the Food Scraps one (1) to six (6) times each week as needed to prevent litter, vectors, odors and Contamination of Divertible Materials in Containers. 11. Franchisee shall evaluate and reduce the level of the Customer's Municipal Solid Waste Collection service to complement the separate Collection of Recyclable Materials, Green Waste/Wood and Food Scraps. Franchisee shall check back with the Authorized Customer Representative and make at least two (2) additional on-site visits to determine if the initial sizing of the Containers and frequency of service is optimal for the Customer. Franchisee shall recommend appropriate adjustments as needed to the Authorized Customer Representative and implement all adjustments agreed to by the Authorized Customer Representative. 12. Franchisee has provided employee education and training materials to the Customer (or in the case of Multifamily Dwellings, Gated Communities, HOA's and mobile home parks, to all management) explaining (a) the requirements of the Act and of the City Code, (b) the operation of each Diversion Program and (c) specifically what Divertible Materials may be placed in the Recycling Required Tasks For Implementation Of Diversion Programs Page E-5 Container(s) and the Green Waste/Wood Containers and what materials are to be placed in the Municipal Solid Waste Container(s). In the case of a Food Scrap generator, Franchisee shall explain what Food Scrap materials are to be placed in the Food Scrap Container. Employee/management training shall include at least one on-site training conducted by the Franchisee for all management and all employees of Customer. If there are multiple shifts, or if management and/or employees work on different days, Franchisee shall conduct multiple trainings until all management and employees have been trained. Internal containers for the Divertible Materials are to be provided by the Customer, pursuant to the City Code. If directed by the City, Franchisee shall provide City -approved training posters, signage, and stickers/labels for the internal Containers showing what materials are allowed in each. Franchisee shall provide training and training materials in English and in any other language requested by the Authorized Customer Representative. 13. Franchisee shall make at least two (2) follow-up site visits to confirm the Diversion Program(s) is/are operating optimally within the first two weeks after program initiation. (These site visits are in addition to the site checks to confirm Municipal Solid Waste quantities and optimization of Municipal Solid Waste service described in Step 11 above.) Franchisee shall respond to the Customer's questions and to any complaints and shall promptly and successfully resolve all questions and complaints. 14. Within ninety (90) days after implementation of each Diversion Program at the premises of the Customer, Franchisee shall ensure that the programs are operating effectively such that the Municipal Solid Waste Container(s) at the premises contain no more than twenty percent (20%) Recyclable Materials and Food Scraps (combined), and the Recyclable Materials Container(s) contain no more than ten percent (10%) Municipal Solid Waste and Food Scraps, combined (if the Customer generates Food Scraps). If the Customer is participating in the Food Scrap Diversion Program, the Food Scrap Container(s) shall contain no more than ten percent (10%) of any non-food materials. If these performance standards are not being achieved, Franchisee shall work with the Customer, Authorized Customer Representative, owner(s), manager(s) and employees as needed to re-train, troubleshoot and otherwise provide technical assistance to ensure the Contamination standards described herein are met. 15. Franchisee shall conduct a minimum of one (1) annual on-site review of the Diversion Plan prepared for the Customer in Step 2, and of each Diversion Program at each Customer, and conduct and annual re-training for all employees, residents and tenants (that meets all of the requirements listed for the initial training required in Step 12). Franchisee has conducted troubleshooting for each Diversion Program and ensure that each Diversion Program is robust and successfully Diverting the targeted materials within the Contamination limits identified in Step 14. 16. In the event the Customer has a functioning Diversion Program that has been implemented by the Franchisee through the completion of all required actions and tasks in steps 1 through 15 and the Diversion Program(s) is not Required Tasks For Implementation Of Diversion Programs Page E-6 successfully Diverting all targeted Material(s) and/or is not meeting the Contamination performance standards in Step 14, the non-compliant Customer shall be reported to City on the Exhibit E Tracking Document in the section labeled "Non -Compliant Customers Referred to City for Compliance Action Under Newport Beach Municipal Code". City will contact the Customer concerning the requirements of the Act and the City Code. This may include warnings to the Customer, Notice of Violation, fines and/or other enforcement actions. If the Authorized Customer Representative agrees to take all necessary steps to fully implement the Diversion Program(s) as required by the Act and the City Code, City will refer the Customer back to the Franchisee for additional on-site work, training of the Customer's management and employees, troubleshooting and all Steps in this Exhibit E required to achieve full implementation of the program(s). In such event, the Customer shall be removed from the list of "Non -Compliant Customers Referred to City for Compliance Action Under Newport Beach Municipal Code" in the Exhibit E Tracking Document. If the Authorized Customer Representative continues to refuse to take the steps necessary to fully implement one or more of the required Diversion Programs after City action, the Customer will remain on the Non -Compliant Customer list. In the City's sole discretion, upon receipt of written notice by the City, the Franchisee may be relieved of the responsibility to implement the Diversion Program(s) specified by City, at that non-compliant Customer's premises. B. In the event there is a change of ownership, management or other change resulting in cessation of a Diversion Program(s) or causing any one of the steps herein to not be fully complied with at all times, Franchisee shall repeat all steps necessary to establish or re-establish a fully implemented Diversion Program. Franchisee shall complete re-establishment of a fully implemented Diversion Program within ninety (90) days of either (i) discovering any malfunction in the Program, or (ii) City or Customer reporting a problem to Franchisee, whichever is earlier. C. For each Diversion Program required by this Franchise for each Customer, Franchisee shall be responsible for maintaining fully implemented, successfully operating program(s) as described herein, for as long as the Customer is served by the Franchisee. In the event a program malfunctions or is not operating optimally at any time, Franchisee shall repeat all steps included in this Exhibit E that are necessary to re-establish a fully implemented Diversion Program. Franchisee shall accomplish this within ninety (90) days of either (i) discovering any sub -optimal functioning of the Program, or (ii) City or Customer reporting such sub -optimal functioning to Franchisee, whichever is earlier. D. Franchisee shall submit, as part of Franchisee's monthly reports described in Section 16 of the Franchise, a monthly report describing the status of each step listed herein for each type of Diversion Program, for each Customer and shall include details for each step as follows: • Details of all Customer interactions for the month (and for prior months) including telephone calls, texts, e-mails, site visits, Authorized Representative and/or other persons contacted Required Tasks For Implementation Of Diversion Programs Page E-7 • Dates of all such contacts • Photos from the site visits and assessments conducted • Photos of any internal Diversion Programs being conducted by the Customer • Customer objections • Log of contamination incidents • Franchisee staff/representative(s) making the contacts • Franchisee lead staff person responsible for each Customer's Diversion Program implementation. With regard to Customers with fully implemented, successfully operating Diversion Programs, the Exhibit E Tracking Document shall include any changes in the program(s) during the preceding month (change of Containers, Container sizes, frequency of Collection) and shall also list the date of Franchisee's next planned site visit to that Customer's premises. This portion of the monthly report shall be called the "Exhibit E Tracking Document". E. The Exhibit E Tracking Document shall be filled in on the City -provided electronic template. No other templates or formats will be accepted. Use of any alternate format or template shall result in the monthly report being considered incomplete and inaccurate and the Franchisee shall be subject to assessment of liquidated damages pursuant to Section 24B of the Franchise. F. Each monthly report shall also include a copy of the Diversion Plan(s) prepared by Franchisee for Customers as described in Step 2 of this Exhibit E, during the preceding month. When Containers for any Diversion Program are delivered, changed or removed, the number, sizes and types of Containers delivered, changed or removed shall be noted in the Exhibit E Tracking Document along with the frequency of service for each Container. All changes in frequency of Collection service for a Diversion Program shall also be noted in the Exhibit E Tracking Document. G. The City Code provides a process for Customers to request a waiver from the requirements to implement Diversion Program(s) due to lack of available space and/or de minimus quantity(ies) of Divertible Materials. In the event a Customer served by Franchisee has applied for such a waiver, Franchisee shall note this in the Exhibit E Tracking Document. If the waiver is approved by the City, Franchisee shall confirm this with City and shall record this in the Exhibit E Tracking Document. Franchisee shall be relieved of its duty to provide the Diversion Program(s) that are specified in the waiver granted by the City, for the effective dates of the waiver. Annually thereafter, thirty (30) days prior to the termination date of the waiver, (or in the event of a waiver of less than twelve months, thirty (30) days prior to the termination date of the waiver) Franchisee shall submit a written request to City to determine whether Required Tasks For Implementation Of Diversion Programs Page E-8 the Customer applied for, and was granted a new waiver for another twelve (12) month (or shorter) period. If so, Franchisee shall record this in the Exhibit E Tracking Document and shall be relieved of its duty to provide the Diversion Program(s) that are specified in the new waiver granted by the City for the period the new waiver is effective. This process shall be repeated by Franchisee thirty (30) days prior to the expiration date of each waiver, as long as the Customer is served by the Franchisee at the same premises. In the event a Customer's request for a waiver is denied by the City, Franchisee shall comply with all the requirements contained in Sections 12, 13 and 14 and in this Exhibit E to fully implement all Diversion Programs required by this Franchise. Required Tasks For Implementation Of Diversion Programs Page E-9 EXHIBIT F CONSTRUCTION AND DEMOLITION DEBRIS DIVERSION PROGRAM Franchisee shall provide all services necessary to support Customer compliance with, and City's enforcement of, the California Green Building Standards Code requirements for Diversion of Construction and Demolition Debris. Franchisee's Construction and Demolition Debris Diversion Program shall include, but not be limited to.- (A) o: (A) Informing all Customers requesting Construction and Demolition Debris hauling services of the requirements of the California Green Building Standards Code; (B) Providing Containers and/or Bins, Roll Off Boxes, and Compactors as needed for storage and transport of single -material Construction and Demolition Debris, and commingled Construction and Demolition Debris; (C) Providing Collection service for all Containers on a timely basis, which, at a minimum, complies with Section 11 of the Agreement; and (D) Working and coordinating with Customer, or customer's recycling coordinator, to ensure a smooth and effective Diversion program and the Diversion of a minimum of sixty- five percent (65%) of all Construction and Demolition Debris generated at each of Customer's job sites (or a higher percentage Diversion if required by the California Green Building Standards Code) for which Franchisee is providing Construction and Demolition Debris Collection service. Franchisee shall inform Customers utilizing Containers and/or Bins and Roll Off Boxes on a temporary basis, that materials being generated must be Diverted pursuant to the requirements of City Code and the California Green Building Standards Code. Construction and Demolition Debris Diversion Program Page F-1 NON-EXCLUSIVE FRANCHISE AGREEMENT BETWEEN THE CITY OF NEWPORT BEACH AND TIGHT QUARTERS, INC. FOR COMMERCIAL SOLID WASTE HANDLING SERVICES This Non-exclusive Franchise Agreement for Commercial Solid Waste Handling Services ("Agreement") is entered into this 9th day of November, 2017 ("Effective Date") by and between the CITY OF NEWPORT BEACH, a California municipal corporation and charter city organized and existing under the laws of the State of California ("City"), and TIGHT QUARTERS, INC., a California corporation ("Franchisee"), whose address is 2031 South Anne Street, Santa Ana, California 92704, and is made with reference to the following: RECITALS This Agreement is entered into on the basis of the following facts: A. Assembly Bill ("AB") 939 (the California Integrated Solid Waste Management Act of 1989, hereinafter the "Act"; Public Resources Code Sections 40000 et seq.) requires the City to divert from landfill disposal a minimum of fifty percent (50%) of all municipal solid waste generated within the City. B. In 2011, the Act was amended by AB 341 to establish a statewide goal of diverting from landfills seventy-five percent (75%) of all municipal solid waste by 2020 and required the City, on or before July 1, 2012, to provide a commercial recycling program. C. AB 341 also requires all businesses generating more than four (4) cubic yards per week of commercial municipal solid waste and all multifamily dwellings of five (5) units or more to arrange for recycling services by July 1, 2012. D. In 2014, the Act was further amended by AB 1826 to require the City, on or before January 1, 2016, to provide a diversion program for collection and diversion of food scraps and green waste. E. AB 1826 also requires commercial generators of certain quantities of food scraps and green waste to participate in a diversion program beginning on a date between April 1, 2016 and January 1, 2019, depending on the quantity of waste generated. Additional smaller commercial generators may be required by CalRecycle to participate on or after January 1, 2020. F. The City has received written notification from CalRecycle of its intention to enforce the deadlines for implementation of AB 341 and AB 1826 programs within the City as required by the Act; therefore, it is important that Franchisee implement and maintain successful AB 341 an AB 1826 diversion programs for all commercial customers as required by the Act, to the satisfaction of both the City and CalRecycle. G. Pursuant to Article XIII of the City Charter, Code Chapter 12.63, and Public Resources Code Sections 40059, 49300, and 49500 through 49523, or any successor statutes, the City is authorized to enter into non-exclusive franchise agreements for commercial solid waste handling services. H. Pursuant to Code Chapter 12.63, Franchisee has filed a franchise application with the City. I. City has reviewed Franchisee's application and Franchisee has represented it is capable of providing collection services for commercial recyclable materials, food scraps, green waste, municipal solid waste, and/or construction and demolition debris in the City. J. Pursuant to this Agreement, City desires to authorize Franchisee to provide those non-exclusive commercial collection, transportation, delivery, and disposal or diversion services for recyclable materials, food scraps, green waste, construction and demolition debris, and municipal solid waste, as requested in Franchisee's application and for which Franchisee has demonstrated capability. K. The City Council has determined that this grant of a non-exclusive franchise is in the public interest. NOW, THEREFORE, the City and Franchisee do hereby agree as follows: SECTION 1. GRANT OF FRANCHISE A. By Ordinance No. 2017-16, City has granted to Franchisee a non-exclusive Franchise authorizing Franchisee to provide Commercial Solid Waste Handling Services within all or any part of the City and to use the public streets and public right-of-ways for such purpose. Franchisee acknowledges that the Franchise is not exclusive and that the Franchise is subject to the all provisions of applicable law, including, but not limited to, Article XIII of the City Charter, Ordinance No. 2017-16, Code Chapter 12.63, and the terms and conditions of this Agreement. B. Upon the Effective Date of this Agreement, the parties agree that any prior authorization relating to the provision of Commercial Solid Waste Handling Services within all or any part of the City arising under and pursuant to any prior franchise issued to Franchisee shall be deemed to be terminated and of no further force or effect. SECTION 2. TERM OF FRANCHISE This Agreement shall commence on the Effective Date, and shall terminate on the Termination Date, unless terminated earlier as set forth herein. SECTION 3. DEFINITIONS "Act" means the California Integrated Waste Management Act of 1989 (Public Resources Code Sections 40000, et seq.) as amended and as implemented by regulations of CalRecycle (or its successor agency) and the Air Resources Board (or its successor agency). Non-exclusive Franchise Agreement Page 2 "Alternative Daily Cover" or "ADC' means cover material other than earthen material placed on the surface of the active face of a Municipal Solid Waste Landfill at the end of each operating day to control vectors, flies, fires, odors, blowing litter and scavenging. Prior to 2014, Green Waste was included in the list of CalRecycle-approved ADC materials and use of Green Waste for this purpose was counted as "Diversion" for purposes of the Act. AB 1594, passed and signed into law in 2014, phases out the use of Green Waste as ADC effective January 1, 2020. As of January 1, 2020, no Green Waste Collected within the City shall be used as ADC and Green Waste must be diverted for processing such as mulching, Composting, as feedstock for Anaerobic Digestion or other CalRecycle-approved means that counts as Diversion. "Anaerobic Digestate" or "Digestate" means the material left at the conclusion of a biological process that decomposes organic matter in an enclosed environment with little or no oxygen, resulting in a biogas and a liquid/solid stream called Digestate (CCR Section 17896.2(a)(6)). Any Digestate created from Green Waste, Food Scraps or other organic materials Collected within the City must be further processed at a permitted Composting Facility or utilized in another manner that is fully permitted and approved by all federal, state and local regulatory agencies, including but not limited to CalRecycle, and that is considered as "Diversion" by CalRecycle for purposes of the Act. "Anaerobic Digestion" means a biological process that decomposes organic matter in an environment with little or no oxygen, resulting in a biogas and a liquid/solid stream called Anaerobic Digestate. Such activity takes place at an "Anaerobic Digestion Facility." "Bin(s)" means open top rectangular containers with wheels, with attached plastic or metal lids, used for storage of Municipal Solid Waste, Recyclable Materials, Green Waste, Food Scraps, Construction and Demolition Debris or other materials that are Collected by Franchisees or other Persons authorized to Collect and transport such materials within City. "Biomass Conversion Facility" means a facility which uses the controlled combustion of the following materials (when separated from Municipal Solid Waste) to produce electricity or heat: (1) agricultural crop residues; (2) bard, law, yard or garden clippings (Green Waste); (3) leaves, silviculture residue, tree and brush prunings; (4) wood, wood chips and wood waste; or (5) non -Recyclable pulp or non -Recyclable paper (collectively, "Biomass Conversion"). Such a facility must exclusively burn biomass materials listed herein, comply with all applicable federal, state and local air quality laws and regulations, and test its residue (ash) regularly as required by state law and regulations. If the ash is found to be hazardous, the facility must deliver that ash residue to a Class I Hazardous Waste facility. A biomass facility may burn petroleum coke or natural gas solely for the purpose of maintaining a particular temperature level, if so permitted by federal, state and local laws. Processing of any materials Collected within the City at a Biomass Conversion Facility shall only be allowed if: (a) said facility meets all of the above requirements and all other federal, state and local laws and requirements; and (b) only if such processing is allowed to count as "Diversion" by CalRecycle for purposes of the Act. Non-exclusive Franchise Agreement Page 3 "CalRecycle" means the California Department of Resources Recycling and Recovery, the successor agency to the former California Integrated Waste Management Board. "Can" means a receptacle for Municipal Solid Waste, Recyclable Materials, Green Waste, Food Scraps or wood provided by the Customer and Collected using manual (instead of automated) means of Collection. "Cart" means a plastic wheeled Container with a hinged lid used to store Municipal Solid Waste, Recyclable Materials, Green Waste or Food Scraps that is Collected by an automated or semi -automated vehicle. "CERCLA" means the Comprehensive Environmental Response, Compensation and Liability Act of 1980 (42 USC §9601 et seq.). "City Council" means the City Council of the City of Newport Beach. "City Manager," "Municipal Operations Director," "Finance Director," and "Public Works Director" mean the City Manager, Municipal Operations Director, Finance Director and Public Works Director of the City or their designee. Clean Materials Recovery Facility ("Clean MRF") means a materials recovery facility ("MRF"), or that portion of a MRF, that processes Recyclable Materials that have been separated from Municipal Solid Waste such as Single Material Recyclables and Single Stream Recyclable Materials, containing no more than the maximum Residue or contamination allowed by CalRecycle (10% Residue). "Code" means the Newport Beach Municipal Code. "Collect" or "Collection" means taking physical possession of Commercial Solid Waste, or other materials, from Customers and transporting such materials by means of a motor vehicle, or other means, to a MRF, Compost Facility, other Organics Processing Facility, Construction and Demolition Debris Processing Facility, transfer station or Landfill. "Commercial Solid Waste" means Municipal Solid Waste, Recyclable Materials, Green Waste, Food Scraps and Construction and Demolition Debris. "Commercial Solid Waste Handling Services" means the services provided by Franchisees pursuant to the terms and conditions of the Franchise and includes the Collection, transportation, storage, transfer, Disposal, Diversion and/or Processing of Municipal Solid Waste, Recyclable Materials, Green Waste, Food Scraps and/or Construction and Demolition Debris by private solid waste enterprises, and includes, without limitation, the placement of Commercial Solid Waste Containers on public property. "Commercial Premises" means all occupied real property in the City used for commercial purposes and not used for dwelling houses including, without limitation, Non-exclusive Franchise Agreement Page 4 wholesale or retail establishments, restaurants, other food establishments, bars, stores, shops, offices, mechanized manufacturing facilities, repair, research and development or professional services, sports or recreational facilities, industrial facilities, and construction and demolition sites; but shall not include property occupied by governmental agencies or schools that do not consent to their inclusion or residential premises that receive Commercial Solid Waste Handling Services. For purposes of the implementation of the Diversion programs, reporting requirements, and the percentage Diversion requirements, "Commercial Tons" shall include only Tons Collected from Commercial Premises in Carts and Bins and shall not include any Tons Collected from Multifamily Containers. Tons Collected from Multifamily Containers shall be reported separately. "Compactor" means an enclosed rectangular or square metal container containing a ramrod to condense and compress the contents, and is typically used to store Municipal Solid Waste, Green Waste, Recyclable Materials, Food Scraps or Construction and Demolition Debris. Compactors may be small (3 or 4 cubic yards) for use on smaller Commercial Premises or large (10, 20, 30 or cubic yards) for use at large Commercial Premises such as supermarkets, hotels, and large retail stores or at construction sites. A special Roll Off vehicle equipped with hooks and a winch to pull the Compactor on to the railed bed of the vehicle is used to Collect Compactors and transport them to a Landfill or to a Processing Facility. "Compost" means the product resulting from the controlled biological decomposition of organic wastes which are separated from the Municipal Solid Waste stream at the point of generation and includes Food Scraps, Green Waste, and wood that are not hazardous wastes. "Compost Facility" means a facility that processes one (1) or more of the following: Food Scraps, Green Waste, wood and food -soiled fiber such as paper napkins and paper towels, by means of outdoor windrow composting, aerated static pile composting, covered composting, vermiculture or other outdoor composting methods or covered composting with use of either finished compost or fiber, synthetic or other type(s) of cover(s) applied to the compost piles. "Composting" means the controlled microbial degradation of organic materials yielding a safe and nuisance -free finished product called Compost, a soil amendment suitable for incorporating into topsoil and for growing plants. "Construction and Demolition Debris" means all inert material of every nature, description or kind, which has resulted from the building or demolition of a structure, pavements, sidewalks, curbs, gutters and other concrete structures, including all lumber scraps, shingles, plaster, sheetrock, packaging, rubble, brick, stone, concrete, asphalt, dirt, rock and other building material. A facility that accepts Construction and Demolition Debris for separation and further processing to prepare materials for sale or re -use (such as removing nails and screws from wood, or grinding of concrete and asphalt) and then markets the materials for re -use is a "Construction and Demolition Debris Processing Facility." Non-exclusive Franchise Agreement Page 5 "Container(s)" means any object designed and used to hold or store Municipal Solid Waste, Recyclable Materials, Food Scraps, Green Waste, or Construction and Demolition Debris to be Collected by Franchisees. Containers include Carts, Bins, open top Roll Off Boxes, and Compactors. "Contamination" means materials that are not specified for Collection in particular Containers or for processing at either a Clean MRF or a Dirty MRF, which would either interfere with such processing and/or reduce the quality and value of the Recovered Materials. For example, for purposes of Collection, metals and plastics would constitute "Contamination" if placed in a Food Scrap Container and tree trimmings would constitute "Contamination" if placed in a Recyclable Materials Containers. "Customer" means the owner, occupant, manager or user of premises at which Municipal Solid Waste, Recyclable Materials, Green Waste, Food Scraps or Construction and Demolition Debris are generated who requests and receives Commercial Solid Waste Handling Services from one or more Franchisees. In the event a business, non- residential property, Multifamily Dwelling or Commercial Premises shares Containers and/or Commercial Solid Waste Handling Services, "Customer" refers only to the entity that arranges and pays for such service(s). Dirty Materials Recovery Facility ("Dirty MRF") means a facility, or that certain portion of a facility, that processes Processable Municipal Solid Waste to separate Recyclable Materials, Green Waste, wood, Construction and Demolition Debris and other Divertable materials for sale to end users. Franchisees shall not utilize any Dirty MRF that has not been approved by City and that does not meet the standards and requirements of Public Resources Code Section 42649 and all subsequent amendments, rules, and regulations promulgated in furtherance thereof requiring a Dirty MRF to be a source -separated comparable MRF. "Disposal" means the final disposition of solid waste of Municipal Solid Waste at a permitted landfill or transformation at a permitted facility, as transformation is defined and limited by the Act other permitted solid waste disposal facility. "Diversion" or "Divert" means any combination of Recycling, sorting, Composting and other processing activities conducted at a Clean MRF, a Dirty MRF, a Compost Facility, an Anaerobic Digestion Facility, a Biomass Conversion Facility, other organics Processing Facility and a Construction and Demolition Debris Processing Facility in order to use or market the materials for re -use, remanufacture, reconstitution or otherwise return the materials to the economic marketplace and to prevent the materials from being Disposed in a Landfill. "Diversion Programs" and "Diversion Services" mean Recyclable Materials Collection, Green Waste Collection, Food Scraps Collection, Processable Municipal Solid Waste Collection, wood Collection, Construction and Demolition Debris Collection and subsequent processing of the Collected materials at a Clean MRF, a Dirty MRF, a Compost Facility, an Anaerobic Digestion Facility, a facility creating Engineered Feedstock for digestion at a wastewater treatment plant, a Biomass Conversion Facility, a Construction and Demolition Debris Processing Facility and all other programs operated Non-exclusive Franchise Agreement Page 6 by Franchisees, the City, Residents, Customers or other Persons that have the effect of Diverting Municipal Solid Waste from Landfill Disposal. Diversion Programs includes, but is not limited to, all of the programs included in the City's SRRE and all of the programs included in this Agreement. "Effective Date" means the date upon which this Agreement is effective as set forth in the first paragraph of this Agreement. "Engineered Feedstock" means a mixture of materials utilized in wastewater treatment plants to produce biogas. Engineered Feedstock may include organic materials such as Food Scraps from households and Commercial Premises or other organic materials from industries that have been pre-treated and liquefied to the required consistency the reduction or elimination of municipal solid waste, recyclable materials, food scrap, green waste, and construction and demolition debris from disposal. "Environmental Laws" means any and all present and future federal, state or local laws (whether common law, statute, rule, regulation or otherwise), permits, orders and any other requirements of Governmental Authorities relating to the environment or any "Hazardous Substance" or "Hazardous Substance Activity" as defined herein, including, without limitation, the Comprehensive Environmental Response, Compensation and Liability Act of 1980 (42 U.S.C. Sections 9601 et seq.) as amended from time to time and the applicable provisions of the California Health and Safety Code and California Water Code. "Food Scraps" means material resulting from the production, processing, preparation or cooking of food for human consumption that is separated from Municipal Solid Waste. Food scraps include surplus or unsold edible food, raw food left over after food preparation, leftover cooked food, as well as spoiled food such as vegetables and culls, and plate scrapings. Food scraps includes food -soiled paper that is mixed in with the food scraps. "Food Scraps" are Collected and transported to Food Scrap Processing Facilities which include Compost Facilities, Anaerobic Digestion Facilities, Biomass Conversion Facilities, and Wastewater Treatment Plants utilizing Engineered Feedstock. "Food Soiled Paper" means paper towels, tissue products, paper napkins, paper plates and cups, coffee filters, tea bags, waxed paper, butcher paper, paper take-out boxes and containers, greasy pizza boxes, paper bags, cardboard and wax -coated cardboard produce boxes that are Contaminated with Food Scraps. Food Soiled Paper does not include polystyrene, aluminum foil, foil -lined wrap or diapers. "Franchise" or "Franchise Agreement" means an agreement between the City and a Franchisee, granted pursuant to Agreement Section 1(A), providing Franchisee the right, for a specified period of time and pursuant to Article XIII of the City Charter, the Code, and the terms and conditions of this Agreement, to provide Commercial Solid Waste Handling Services to Commercial Premises and Multifamily Dwellings within all or any part of the City of Newport Beach and to use the public streets and public right-of- ways for such purpose. Throughout this Agreement, the terms "Agreement" and "Franchise" may be used interchangeably unless otherwise specified or the context requires otherwise. Non-exclusive Franchise Agreement Page 7 "Franchisee" means the individual or business entity identified as "Franchisee" on the signature page of this Agreement. "Franchise Fee" means the fee or assessment imposed by the City on a Franchisee, which among other things, is intended to offset the City's expenses related to the administration of the Franchise Agreement, the Integrated Waste Management Program, the maintenance and implementation of the City's Source Reduction and Recycling Element, compliance with the California Integrated Waste Management Act, to compensate the City for damages to its streets, sidewalks, curbs and gutters and other infrastructure resulting from the Franchisee's exercise of its rights under the franchise, City's reporting requirements and other related expenses. "Generator" means a resident, an owner or responsible party for a Multifamily Dwelling, Commercial Premises, or business that Generates Municipal Solid Waste, Recyclable Materials, Green Waste, Food Scraps and/or Construction and Demolition Debris as a result of its business, commercial facility or property activity. Generator may also include tenants, property managers for facilities with leased space, employees and contractors of Generator. "Generate" means to bring into existence or create, or to use, maintain, or possess an item, material or product, the result of which such creation, bringing into existence, use, maintenance or possession is that the item, material or product first becomes, or is converted transformed, evolved or deemed as Municipal Solid Waste, Recyclable Materials, Food Scraps, Green Waste or Construction and Demolition Debris. "Green Waste" means any debris that is composed of organic material or plantlike matter, which is a result of seasonal variations, landscape or gardening activities. Green Waste includes, without limitation, grass clippings, leaves, shrubs, trees, branches, stumps, flowers, plant stalks and non -hazardous wood. Green Waste does not include Food Scraps. "Gross Receipts" means all money, whether paid by cash, check, debit or credit, or other consideration collected from Customers by Franchisee that relates in any way to Commercial Solid Waste Handling Services provided by Franchisee to Customers, whether or not such services occur wholly or partially within the City, including, but not limited to, Collection, processing, removal, marketing and Diversion of Recyclable Materials, Green Waste, Food Scraps, Processable Municipal Solid Waste and Construction and Demolition Debris and Disposal of Non-Processable Municipal Solid Waste, Industrial Waste, trash, litter, as well as fuel surcharges. Gross receipts shall also include all money received by any Person other than the Franchisee, where the money was paid to the Person to avoid the Franchisee's obligations under this chapter and/or the Franchise. Gross Receipts shall not include (or if included there shall be deducted, but only to the extent they have been included) the following: (1) if any sales taxes are levied on the Franchisee's Commercial Solid Waste Handling Services in the City, the amount of State sales taxes collected in connection with Franchisee's provision of such services in the City and remitted to the State pursuant to State law; (2) the amount of documented bad debt write-offs due to uncollectible accounts for Franchisee's Non-exclusive Franchise Agreement Page 8 Commercial Solid Waste Handling Services in the City, not to exceed three percent (3%) of Gross Receipts; and (3) revenues collected for Franchisee's Commercial Solid Waste Handling Services provided to the City through a written contract. "Hazardous Waste" or "Hazardous Substance" means any (a) chemical, compound, material, mixture or substance that is now or hereinafter defined or listed in, or otherwise classified pursuant to any Environmental Law as a "hazardous substance," "hazardous material," "hazardous waste," "extremely hazardous waste," "infectious waste," "toxic waste," "toxic pollutant," or any other formulation intended to define, list or classify substances by reason of deleterious properties or effect and (b) petroleum, petroleum by-products, natural gas, natural gas liquids, liquefied natural gas, synthetic gas usable for fuel (or mixtures of natural gas in such synthetic gas), ash, Municipal Solid Waste, steam, drilling fluids, produced waters and other wastes associated with the exploration, development and production of crude oil, natural gas or geothermal resources. "Industrial Waste" means solid waste originating from mechanized manufacturing facilities, factories, refineries, construction and demolition projects, publicly operated treatment works, or solid waste placed in Commercial Solid Waste containers excluding hazardous waste. "Landfill" means a fully permitted disposal site that accepts Municipal Solid Waste that is in compliance with all Federal, State and local laws, regulations and permits conditions at the time Municipal Solid Waste is delivered and unloaded at the disposal site. "Multifamily Dwelling" mean housing projects containing or consisting of five (5) or more units, whether apartment houses, condominiums, townhomes, or mixed use projects, mixed use condominiums and rental housing, which use centralized Commercial Solid Waste Containers (including Bins, Carts and/or Compactors) for storage of Municipal Solid Waste, Recyclable Materials, Green Waste and/or Food Scraps. Multifamily Dwelling does not include single family residences, duplexes, tri-plexes or four-plexes that receive individual Collection services for Municipal Solid Waste, Recyclable Materials, Green Waste and/or Food Scraps stored in wheeled carts. For purposes of the implementation of the Diversion programs, reporting requirements, and the percentage Diversion requirements, "Commercial Tons" shall include only Tons Collected from Multifamily Dwellings in Carts, Bins, Compactors or Roll Off Boxes and shall not include any Tons Collected from Containers Collected from Commercial Premises. Tons Collected from Containers Collected from Commercial Premises shall be reported separately. "Municipal Solid Waste" means all Processable Municipal Solid Waste and all Non- Processable Municipal Solid Waste, putrescible and nonputrescible solid and semisolid wastes, Generated in or upon, related to the occupancy of, remaining in or emanating from residential, commercial, and/or industrial premises, including, but not limited to, garbage, trash, refuse, rubbish, ashes, Industrial Waste, discarded home and industrial appliances, manure, vegetable or animal solid or semisolid wastes, and other solid and semisolid wastes. Municipal Solid Waste excludes Recyclable Materials, Green Waste, Non-exclusive Franchise Agreement Page 9 Food Scraps, Construction and Demolition Debris, liquid wastes, abandoned vehicles and hazardous, biohazardous and biomedical wastes. "Non-Processable Municipal Solid Waste" means putrescible and non-putrescible solid and semi-solid wastes Generated in or upon, related to the occupancy of, remaining or emanating from residential, Commercial, and/or industrial premises, that has been segregated or separated from Recyclable Materials, Food Scraps, Green Waste, wood and/or Construction and Demolition Debris such that the remaining constituents in the Non-Processable Municipal Solid Waste (such as broken glass, diapers, ashes, Industrial Waste, discarded Bulky Goods that cannot be re -used or dismantled for Recycling, manure, vegetable or animal solid or semi-solid wastes that remain after segregation of Food Scraps and Green Waste) cannot be diverted by reasonable economic or technologically available means. Non-Processable Municipal Solid Waste does not include Recyclable Materials, Green Waste, Food Scraps, wood, Construction and Demolition Debris, Bulky Goods or other materials that have been segregated for Diversion; liquid wastes; low level radioactive waste regulated under California Health and Safety Code Sections 20015, et seq.; abandoned vehicles and auto parts; hazardous, biohazardous and biomedical wastes. "Person" means an individual, firm, association, organization, partnership, corporation, business trust, joint venture, limited liability company, the United States, the State of California, the County, municipality, special purpose district or any other business entity whatsoever. "Processable Municipal Solid Waste" means putrescible and non-putrescible solid and semi-solid wastes Generated in or upon, related to the occupancy of, remaining or emanating from residential, Commercial, and/or industrial premises that can be sorted at a Dirty MRF to separate any divertable materials contained therein for Recycling. Processable Municipal Solid Waste may also contain non-divertable constituents including but not limited to, broken glass, diapers, ashes, Industrial Waste, discarded Bulky Goods that cannot be re -used or dismantled for Recycling, manure, vegetable or animal solid or semi-solid wastes that remain after segregation of Food Scraps and Green Waste, which cannot be separated or sorted out of the Processable Municipal Solid Waste by reasonable economic or technologically available means. "Processing Facility/Facilities" means a facility or facilities where the following activities are conducted: sorting, cleaning, treating, Composting and reconstituting Collected materials and returning these materials to the economic mainstream in the form of raw materials for new, reused or reconstituted products which meet the quality standards of the market place (activities are herein collectively defined as "Processing"). Processing Facilities include Materials Recovery Facilities (both Clean and Dirty MRF's as defined herein), Composting Facilities, Anaerobic Digestion Facilities, Wastewater Treatment Plants, Construction and Demolition Debris sorting facilities, Biomass Conversion Facilities, and concrete and asphalt grinding facilities. Processing Facilities do not include waste -to -energy, thermal destruction or any type of Transformation facilities. Non-exclusive Franchise Agreement Page 10 "Recycle/Recycling" means the process of collecting, sorting, cleansing, treating, and reconstituting materials that would otherwise become Non-Processable Municipal Solid Waste, and returning them to the economic mainstream in the form of raw materials for new, reused, or reconstituted products which meet the quality standards used in the marketplace. Recycling does not include Transformation. "Recycling Facility" means a Recycling Materials Recovery Facility (either a Clean or Dirty MRF), a Construction and Demolition Debris sorting facility or a re -use facility that is fully permitted and operating in compliance with federal, state and local laws and regulations and includes Recycling Facilities that receive, process, and market Recyclable Materials that have been source separated by the Generator or segregated from Processable Municipal Solid Waste, such as Single -Material Recyclables and Single Stream Recyclable Materials. The Recycling Facility may be located at a landfill. "Recyclable Materials" means items in the solid waste stream which can be reused or processed into a form suitable for reuse consistent with the requirements of State law (i.e., AB 939). Recyclable materials include, but are not limited to, aluminum and tin cans, glass bottles, plastic bottles, plastic containers, newspaper, paper, printed materials, paper containers, cardboard and textiles. "Recycling Requirements" means the obligations imposed by or upon the City pursuant to State, Federal and local law, ordinance, resolution, policy, plan or program relative to Recycling all, or a portion, of the Municipal Solid Waste generated within the City including, without limitation, State mandates to Divert fifty percent (50%) of the Municipal Solid Waste Generated within the City, achievement of the per capita Diversion requirements in the Act, and the provision of City -approved Recycling services to all Customers. Recycling Requirements includes future changes to the Act that may require the City to Divert higher percentages of Municipal Solid Waste Generated within the City and/or to provide additional and/or enhanced or expanded Diversion Programs. "Residue" means the Non-Processable Municipal Solid Waste destined for Disposal in a Landfill, which remains after processing at a Processing Facility has taken place. Residue does not include Anaerobic Digestate. The percent of Residue is calculated by dividing the weight of the Residue by the weight of the total materials delivered for processing at the facility. State law and regulations govern the allowable amount of Residue that can be Generated by a Processing Facility. Franchisees shall not utilize Processing Facilities that exceed State -required maximum Residue Generation rates for any materials Collected within the City. "Responsible Party" means the individual or entity responsible for the Generator's management of solid waste and/or Recycling at the Generator's commercial premises, business, or non-residential property. "Roll Off Boxes" means large open top rectangular metal Containers used to store and transport Municipal Solid Waste, Recyclable Materials, Green Waste, Construction and Demolition Debris or other materials. Non-exclusive Franchise Agreement Page 11 "Single Material Recyclables" means those Recyclable Materials which satisfy each of the following requirements: (1) have been segregated from Processable Municipal Solid Waste for separate handling and Diversion by or for the Generator thereof; (2) have been further segregated or sorted so that various types of Recyclable Materials, such as glass, metals, paper, cardboard, plastics are not commingled; and (3) after such segregation, contain no more than five percent (5%) by weight (measured by each load being transported, Collected and/or Disposed) of any Residue or Contamination material which cannot be Recycled, Composted or similarly utilized, and which instead must be Disposed in a Landfill. "Single Stream Recyclable Materials" or "Single Stream Recyclables" means those Recyclable Materials collected as separated from Processable Municipal Solid Waste by the Generator or Customer and consisting of a mixture of metals, glass, plastics #1-7, and all paper from Residential Premises, Commercial Premises, Multifamily Dwellings and industrial premises. Single Stream Recyclable Materials are distinguished from Single -Material Recyclables, which consist of only a single type of material such as cardboard, separated from other Recyclable Materials. "Split Bins" means Bins that have a divider down the middle, dividing the Bin into two (2) separate compartments. Such Bins have separate locking lids for each side of the Bin that allows the Bin to be emptied one (1) side at a time. The lid on the side of the Bin that is for storage of Recyclable Materials is designed such that it allows for the placement of Recyclable Materials in the Bin without unlocking or opening the lid, and yet does not allow Recyclable Materials to spill out when the lid is closed and locked for the emptying of the MSW stored on the opposite side of the Bin. "SRRE" means the Source Reduction and Recycling Element of the Integrated Waste Management document for the City prepared and updated pursuant to the California Public Resources Code. "Term" means the finite amount of time that commences on the Effective Date and terminates on the Termination Date. "Termination Date" means November 8, 2024. "State" means the State of California. "Transformation" means incineration, pyrolysis, distillation, or biological conversion (other than Composting) to turn Municipal Solid Waste and/or organic materials into a fuel used to produce energy (example: waste -to -energy). Transformation does not include Composting, gasification, Biomass Conversion, or wet or dry Anaerobic Digestion. "Transformation Facility" the means described herein to turn Municipal Solid Waste and/or organic materials into a fuel used to produce energy. A Franchisee may only utilize Transformation for the quantity of Municipal Solid Waste allowed by CalRecycle to be counted as Diversion pursuant to the Act, as this may be changed in the future by legislation or regulations. The Act currently provides that a jurisdiction can only use Transformation to divert up to ten percent (10%) of the Municipal Solid Waste generated Non-exclusive Franchise Agreement Page 12 in the jurisdiction. Therefore, materials collected by a Franchisee and processed at a Transformation Facility shall be limited to ten percent (10%) of the Non-Processable Municipal Solid Waste Collected by the Franchisee within City. "Ton" means a short ton of two -thousand (2,000) pounds avoirdupois. SECTION 4. FRANCHISE FEES A. During the Term of this Franchise, Franchisee shall pay to City Franchise Fees for the privilege of providing Commercial Solid Waste Handling Services in the City and for the use of public streets, right-of-ways and places for such purposes. The Franchise Fees that Franchisee shall pay to the City shall total sixteen percent (16%) of the gross receipts for all Commercial Solid Waste Handling Services provided by Franchisee in the City as follows: 1. Ten and one-half percent (10.5%) of the Gross Receipts for all Commercial Solid Waste Handling Services provided by the Franchisee in the City ("Commercial Solid Waste Handling Fee"), of which one half percent (.5%) shall be attributable to the maintenance and implementation of the City's SRRE, and shall be separately accounted for, and used only for the costs stated in Public Resources Code Section 41901 or any successor provision. 2. Five and one-half percent (5.5%) of the Gross Receipts for all Commercial Solid Waste Handling Services provided by Franchisee in the City shall be paid into an Environmental Liability Fund, which shall be a separate fund established and maintained by City ("Environmental Liability Fund Fee"). Hereinafter, Environmental Liability Fund Fee and Commercial Solid Waste Handling Fee shall be collectively referred to as "Fees." B. City and Franchisee acknowledge the potential environmental liability that may result from Commercial Solid Waste Handling Services under Federal and State environmental protection laws and the Public Resources Code. City intends to take reasonable actions to obtain protection and indemnification against future environmental liability for Commercial Solid Waste generated within the City and the activities of Franchisee under this Agreement for handling such Commercial Solid Waste. To provide protection and indemnification to City for Franchisee's Commercial Solid Waste Handling Services in the City, Franchisee agrees to collect from its customers an Environmental Liability Fund Fee for payment into the Environmental Liability Fund. The Environmental Liability Fund may be used by the City for any expense associated with this Franchise, including, but not limited to, the purchase of environmental liability insurance and paying all costs, expenses, and penalties that arise from or in any way relate to liability incurred by the City as a result of any act, negligence, or omission by the City, Franchisee, Franchisee Customer, or any of their respective officers, directors, shareholder members, volunteers, partners, employees, agents, subcontractors, suppliers, representatives or affiliates. The Environmental Liability Fund may also be used by the City to pay for any Disposal, Diversion, or Recycling activity required of the City, Franchisee, or any Generator under State, Federal or local law. The Fund shall not be commingled with or included in the City's General Fund. Non-exclusive Franchise Agreement Page 13 The Fees shall be paid concurrently. 2. Compliance with this Section shall not limit Franchisee's indemnification as set forth in Agreement Section 10; however, the indemnification provisions of Agreement Section 10 shall be secondary to the Environmental Liability Fund established by this Section or any insurance purchased by the Environmental Liability Fund. C. The Fees shall be paid on a calendar quarterly basis on forms prescribed by the Finance Director. D. All payments shall be made in lawful money of the United States of America and shall be paid to City in person or by United States' mail, or overnight mail service, at the Cashier's Office located at 100 Civic Center Drive, P.O. Box 1768, Newport Beach, California, 92658, or to such other address as City may from time to time designate in writing to Franchisee. If requested by City, Franchisee shall make payments electronically (at www.newportbeachca.gov) or by wire transfer (at Franchisee's cost). Franchisee assumes all risk of loss and responsibility for late charges and delinquency rates if payments are not timely received by City regardless of the method of transmittal. E. Franchisee hereby acknowledges that the late payment of Fees or other sums due hereunder will cause City to incur costs not contemplated by this Agreement, the exact amount of which is extremely difficult to ascertain. Such costs include, but are not limited to, processing and accounting charges. Accordingly, any payment of any sum to be paid by Franchisee not paid within five (5) calendar days of its due date shall be subject to a ten percent (10%) late charge plus interest on the amount due at the rate of ten percent (10%) per annum from the date due and payable by the terms of this Agreement until the same shall be paid. City and Franchisee agree that this late charge represents a reasonable estimate of such costs and expenses and is fair compensation to City for its loss suffered by such late payment by Franchisee. F. With the exception of January 30, 2018, Fees shall be due and payable on April 30, July 30, October 30 and January 30 of each calendar year of the Term. Any dates falling on a weekend or holiday may be paid the first business day following the weekend or holiday. Fees must be received by City, not merely postmarked, by or before the aforementioned dates. G. In the event Franchisee believes that it has paid Fees in excess of the Fees due to City, Franchisee may submit a request for refund to the Finance Director on a form provided by the Finance Director. If proof of overpayment is satisfactory to the Finance Director, the Finance 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 authorized by the Finance Director in writing. H. Each Franchise Fee and Environmental Liability Fund Fee payment shall be accompanied by a written statement described in Code Section 12.63.090, or any successor section, on a form provided by the Finance Director. No statement filed under this Section shall be conclusive as to the matters set forth in such statement, nor shall the Non-exclusive Franchise Agreement Page 14 filing of such statement preclude the City from collecting by appropriate action the sum that is actually due and payable. I. Franchisee may separately list the actual Franchise Fee rate and Environmental Liability Fund Fee rate as established by this Section, and any other fees required by this Agreement, on its invoices to its customers. In no case may the Franchise Fee rate or Environmental Liability Fund Fee rate listed by the Franchisee on the invoice exceed the actual Franchise Fee or Environmental Liability Fund Fee rates imposed by the City. SECTION 5. PERFORMANCE BOND/DEPOSIT A. Prior to the placement of any Container for Commercial Solid Waste Handling Services on public or private property, Franchisee shall, to ensure compliance with the duties and obligations imposed by the provisions of the Code, State regulation, regulations adopted by the City Manager and this Agreement, either: (1) provide City with a cash deposit ("Deposit"); or (2) obtain, provide and maintain, at its own expense, a faithful performance bond ("Bond"). The amount of the Deposit and Bond shall be determined in the Municipal Operations Director's sole and absolute discretion. B. If Franchisee decides to provide a Bond, the Bond shall be issued by an insurance organization or surety: (1) currently authorized by the Insurance Commissioner to transact business of insurance in the State of California; (2) listed as an acceptable surety in the latest revision of the Federal Register Circular 570; and (3) assigned a Policyholders' Rating A (or higher) and Financial Size Category Class VII (or larger) in accordance with the latest edition of Best's Key Rating Guide: Property -Casualty. The Bond shall be in the form attached hereto as Exhibit 'A" which is incorporated herein by this reference. SECTION 6. DIVERSION AND DISPOSAL OF MUNICIPAL SOLID WASTE, RECYCLABLE MATERIALS, FOOD SCRAP AND GREEN WASTE A. Franchisee shall comply with all Diversion requirements imposed by law, ordinance, or regulation on City, Franchisee, and/or any Commercial Premises or Multifamily Dwelling. On a monthly basis, Franchisee shall Divert a minimum of fifty-five percent (55%) of all Processable Municipal Solid Waste, Recyclable Materials, Food Scraps and Green Waste Collected in the City by Franchisee. This Diversion requirement is separate from and in addition to any Diversion requirements set forth in Agreement Section 7. In the event new or additional Diversion requirements are imposed by law, ordinance or regulation on City, Franchisee, and/or any Commercial Premises or Multifamily Dwelling, the City shall have the right to require Franchisee to Divert additional Municipal Solid Waste, Recyclable Materials, Food Scraps, and/or Green Waste by providing Franchisee with thirty (30) calendar days written notice of the new Diversion requirements. Upon request of the Municipal Operations Director, Franchisee shall provide all documents and information requested by the Municipal Operations Director to prove that Franchisee has complied with this subsection, any applicable law, ordinance, regulation, or condition related to Recycling and Diversion of Municipal Solid Waste, Recyclable Materials, Food Scraps and/or Green Waste. Non-exclusive Franchise Agreement Page 15 B. Franchisee shall Dispose of all Non-processable Municipal Solid Waste collected in the City, over which Franchisee has control, in accordance with the Franchise Hauler Acknowledgment, attached hereto as Exhibit "B" and incorporated herein by reference. Franchisee hereby accepts and agrees to abide by all terms of the Franchise Hauler Acknowledgment. If, during the Term of this Agreement, the City's Waste Disposal Agreement with Orange County expires, lapses, or is terminated, the Franchise Hauler Acknowledgement shall be null and void and Franchisee shall Dispose of Municipal Solid Waste Collected in the City only by taking it to a fully permitted Orange County certified/licensed landfill or to a fully permitted licensed transfer station, which is lawfully authorized to accept that specific type of solid waste material and has been approved by the City. C. Franchisee shall not Dispose of Municipal Solid Waste, Recyclable Materials, Food Scraps, or Green Waste by depositing it on any land except a permitted facility, whether public or private, or in any river, stream or other waterway, or in any sanitary sewer or storm drainage system. Nothing in this Agreement shall be deemed or construed as authorizing Franchisee to operate a Landfill, Recycling Facility, or other solid waste disposal facility in the City. D. If Franchisee violates the terms in Agreement Section 6(A) and/or Section 6(B) above, Franchisee agrees that the City has the future right to direct that all Municipal Solid Waste, Recyclable Materials, Food Scraps, or Green Waste be delivered to a fully permitted disposal facility designated by City. This exercise of "flow control" by the City shall be made upon at least thirty (30) calendar days prior written notice to Franchisee, and written notice shall include the violation(s) prompting the City's action regarding "flow control." Failure to comply with the Recycling, Diversion, and/or Disposal requirements set forth in this Section shall be a material breach of this Agreement. E. Franchisee shall include as a condition to its contractual agreement with its Customers a provision prohibiting disposal of Hazardous Waste in any Container. F. 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 and shall be maintained for the length of the Term of the Franchise and for a minimum period of three (3) years, or for any longer period required by law, after the Extended Termination Date. The records shall be made available to the City in Franchisee's monthly reports submitted pursuant to Agreement Section 16. G. This Agreement does not purport to grant Franchisee or City ownership over materials that Franchisee's Customers discard for pickup by Franchisee or that Franchisee handles under this Agreement. The right to possession or ownership of those materials shall be determined in accordance with law and any agreement between Franchisee and its Customers, and not as a result of this Agreement. Parties acknowledge that City has no ownership rights in Recyclable Materials or revenue from sale thereof, except as provided in this Agreement. Non-exclusive Franchise Agreement Page 16 H. City makes no representations or warranties with respect to characterization of Municipal Solid Waste, Recyclable Materials, Food Scraps, or Green Waste within City. City expressly disclaims any representations and warranties, either express or implied, as to the merchantability or fitness of Municipal Solid Waste, Recyclable Materials, Food Scraps, or Green Waste for any particular purpose. SECTION 7. DIVERSION OF CONSTRUCTION AND DEMOLITION DEBRIS A. On a monthly basis, Franchisee shall Divert a minimum of sixty-five percent (65%) of all Construction and Demolition Debris collected in the City by Franchisee. This Diversion requirement shall be in addition to and separate from any Diversion requirements set forth in Agreement Section 6. If new or additional Diversion requirements are imposed by law, ordinance or regulation on City, Franchisee, and/or any Commercial Premises or Multifamily Dwelling, the City shall have the right to require Franchisee to Divert additional Construction and Demolition Debris by providing Franchisee with ten (10) calendar days written notice of the new Diversion requirements. Upon request of the Municipal Operations Director, Franchisee shall provide all documents and information requested by the Municipal Operations Director to prove that Franchisee has complied with this subsection, any applicable law, ordinance, regulation, or condition related to Recycling and Diversion of Construction and Demolition Debris. B. Franchisee shall Dispose of, or oversee Disposal of, any Construction and Demolition Debris collected in the City by Franchisee, and not diverted pursuant to Agreement Section 7(A), in accordance with the Franchise Hauler Acknowledgment, attached hereto as Exhibit "B." Franchisee hereby accepts and agrees to abide by all terms of the Franchise Hauler Acknowledgment. If, during the Term of this Agreement, the City's Waste Disposal Agreement with Orange County expires, lapses or is terminated, the Franchise Hauler Acknowledgement shall be null and void and Franchisee shall Dispose of Construction and Demolition Debris collected by Franchisee in the City only by taking such debris to an Orange County certified/licensed landfill, State certified/licensed transfer station, State certified/licensed recycling facility or State certified/licensed materials recovery facility which is lawfully authorized to accept that specific type of solid waste material. Franchisee shall not dispose of Construction and Demolition Debris by depositing it on any land except a permitted facility, whether public or private, or in any river, stream or other waterway, or in any sanitary sewer or storm drainage system. C. If Franchisee violates the terms in Agreement Section 7(A) and/or Section 7(B) above, Franchisee agrees that the City has the future right to direct that Construction and Demolition Debris be delivered to a permitted processing and/or disposal facility designated by City. This exercise of "flow control" by the City shall be made upon at least thirty (30) calendar days prior written notice to Franchisee, and written notice shall include the violation(s) prompting the City's action regarding "flow control." Failure to comply with the Recycling, Diversion, and/or Disposal requirements set forth in this Section shall be a material breach of this Agreement. Non-exclusive Franchise Agreement Page 17 D. Franchisee shall include as a condition to its contractual agreement with its Customers a provision prohibiting disposal of Hazardous Waste in any Container. E. Franchisee shall implement, or require a third party to 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 local, State and Federal Hazardous Waste regulations, and shall be maintained for the length of the Term of the Franchise and for a minimum period of three (3) years, or for any longer period required by law, after the Extended Termination Date. The records shall be made available to the City upon request. F. This Agreement does not purport to grant Franchisee or City ownership over materials that Franchisee's Customers discard for pickup by Franchisee or that Franchisee handles under this Agreement. The right to possession or ownership of those materials shall be determined in accordance with law and any agreement between Franchisee and its customers, and not as a result of this Agreement. Parties acknowledge that City has no ownership rights in Recyclable Materials or revenue from sale thereof, except as provided in this Agreement. G. City makes no representations or warranties with respect to characterization of Construction and Demolition Debris within City. City expressly disclaims any representations and warranties, either express or implied, as to the merchantability or fitness of Construction and Demolition Debris for any particular purpose. SECTION 8. FRANCHISEE'S APPLICATION; RECORDS; AUDITS A. Application. Franchisee shall submit an application to City in substantially the same form as the template attached hereto as Exhibit "C" and incorporated herein by reference. Franchisee hereby represents and warrants that all information contained in the application submitted to City, and any information submitted by Franchisee to City supplementary thereto, is true and correct and does not contain any untrue statement of a material fact nor omit a material fact that makes a statement contained therein misleading. B. Records. Franchisee shall maintain all records relating to Franchisee's Commercial Solid Waste Handling Services provided hereunder including, but not limited to, Customer lists, billing records, accounts payable records, maps, service requests, cash receipts records, AB 939/341/1826 compliance records, tonnage reports, weight tickets and invoices from all Landfills, Processing Facilities, and Recycling Facilities utilized for Commercial Solid Waste collected within City, and all other documents and materials which reasonably relate to Franchisee's compliance with and performance of the provisions of this Agreement ("Records"), for the full Term of this Agreement and an additional period thereafter of not less than three (3) years, or any longer period required by law. Such Records shall be made available to City at Franchisee's regular place of business, but in no event outside the County of Orange. All Records shall be clearly identifiable, and Franchisee shall maintain record security sufficient to preserve records Non-exclusive Franchise Agreement Page 18 from destruction or damage from foreseeable events. Data maintained in an electronic medium shall be protected, and backed up, with a copy stored at a separate site from the original data. C. CERCLA Defense Records. City's ability to defend against CERCLA and related litigation is a matter of great importance. Franchisee shall maintain and preserve records establishing where Solid Waste Collected in the City was landfilled for the full Term of this Agreement and an additional period thereafter of not less than five (5) years, or any longer period required by law. At any time, including after the expiration of the Term, Franchisee shall provide copies of such records to City within three (3) business days of City's request. D. Inspection; Audit. On an annual or as -needed basis, City shall have the right, upon five (5) business days advance notice, to inspect Franchisee's Records and/or conduct, or to contract with an independent auditing firm to perform, an audit, at City's expense, of Franchisee's Records ("City Audit") to ensure compliance with the provisions of this Agreement. The City Audit shall include, without limitation, review and/or copying of Franchisee's cash receipts, books of account, Commercial Solid Waste tonnage reports, Collection, Disposal and Diversion records, and other related records, as well as those of each of its parent, subsidiary and/or affiliated companies, as appropriate. As part of the City Audit, Franchisee's Customer accounts and related records may be subject to review. While Franchisee will not be required to submit for copying detailed account records, such as Customer names, Franchisee shall make such records and information available for review in connection with the City Audit. The purpose of the City Audit shall be for: (a) verification of the Fees paid by Franchisee under this Agreement, and the accuracy thereof; (b) verification of the amounts of Commercial Solid Waste reported as collected, processed, diverted and disposed by Franchisee pursuant to this Agreement; (c) verification of Recycling/Diversion program implementation efforts and actions taken by Franchisee pursuant to this Agreement; and (d) verification of such other information as is reasonably deemed appropriate by the Municipal Operations Director to evaluate Franchisee's performance hereunder. E. Reimbursement. Franchisee shall reimburse City for all of City's costs in performance of an audit if, as a result of the audit, it is determined: 1. There was any intentional misrepresentation by Franchisee with respect to the amount of Fees due to the City; 2. There is a One Thousand and 00/100 Dollars ($1,000.00) or greater discrepancy in the amount of Fees due to the City. 3. There was any intentional misrepresentation by Franchisee with respect to Franchisee's Commercial Solid Waste Handling Services and/or Franchisee's handling and transportation of Commercial Solid Waste or with regard to any information provided about Diversion; or Non-exclusive Franchise Agreement Page 19 4. There is a discrepancy (whether intentional or not) in the number of Tons of Municipal Solid Waste, Recyclable Materials, Green Waste, Foods Scraps and/or Construction and Demolition Debris Collected, Recycled, processed and/or Disposed that equals or exceeds two percent (2%). Such reimbursement shall be paid by Franchisee within ten (10) calendar days of the date City notifies Franchisee in writing that Franchisee is liable to reimburse the City in conformance with this subsection and the amount of City's audit costs. SECTION 9. INSURANCE REQUIREMENTS Without limiting Franchisee's indemnification of City, and prior to commencement of the Effective Date of this Agreement, Franchisee shall obtain, provide copies to City and maintain at its own expense during the Term of this Agreement policies of insurance of the type and amounts described in the Insurance Requirements attached hereto as Exhibit "D" and incorporated herein by reference. SECTION 10. RESPONSIBILITY FOR DAMAGES AND INJURY/INDEMNIFICATION A. Franchisee Responsibility. Franchisee shall be solely responsible for any damages caused as a result of Franchisee's acts, negligence, or omissions including, but not limited to, injuries to or death of any person or damage to public and/or private property and damages to public improvements arising from or as a result of Franchisee's Commercial Solid Waste Handling Services. B. General Indemnification. Franchisee shall indemnify, hold harmless, and defend City, and each of its past, present and future elected officials, officers, employees, agents, consultants, volunteers, affiliates, assignees, representatives, attorneys, subsidiaries, and affiliated entities and their respective successors, heirs and assigns (collectively, "Indemnified Parties") from and against any costs, expenses, damages, and losses, including actual attorneys' fees ("Losses") of any kind or character to any person or property arising directly or indirectly from or caused by any of the following: (i) any act, negligence, or omission of Franchisee or its respective officers, directors, shareholder members, partners, employees, agents, Franchisee's subcontractors, suppliers, representatives and affiliates ("Franchisee Representatives"); (ii) Franchisee's or Franchisee Representative's activities; (iii) any accident or casualty within or arising out of the performance of Franchisee's Commercial Solid Waste Handling Services under this Franchise; (iv) any violation or alleged violation of any law, ordinance or statute now or hereafter enacted arising out of commercial recyclable materials, food scraps, green waste, construction and demolition debris and/or municipal solid waste handling services performed pursuant to the Franchise; (v) the negligence or willful misconduct of Franchisee or any of Franchisee Representatives in the performance of Franchisee's Commercial Solid Waste Handling Services under the Franchise; and (vi) any breach of the Franchise. Franchisee shall not be required to indemnify, hold harmless and defend the Indemnified Parties from the sole negligence, active negligence or willful misconduct of the Indemnified Parties. Nothing in this indemnity shall be construed as authorizing any Non-exclusive Franchise Agreement Page 20 award of attorneys' fees in any action on or to enforce the terms of this Agreement. This indemnity shall apply to all claims and liability regardless of whether any insurance policies are applicable. The policy limits do not act as a limitation upon the amount of indemnification to be provided by the Franchisee. C. Hazardous Substances Indemnification. Franchisee shall indemnify the Indemnified Parties from and against all claims, actual damages including, but not limited to, special and consequential damages, natural resource damage, punitive damages, injuries, costs, response, remediation, and removal costs, losses, demands, debts, liens, liabilities, causes of action, suits, legal or administrative proceedings, interest, fines, charges, penalties and expenses attorneys' and expert witness fees and costs incurred 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, the Indemnified Parties or Franchisee arising directly or indirectly from or caused by any of the following: (i) the violation of any environmental laws or the failure to clean up and mitigate the consequences of the spill or release of any Hazardous Substance; and (ii) Franchisee's activities under this Agreement concerning any Hazardous Substance at any place where Franchisee stores or disposes of solid or Hazardous Waste pursuant to this Agreement, or preceding Agreements between City and Franchisee. The foregoing indemnity is intended to operate as an agreement pursuant to the Comprehensive Environmental Response, Compensation and Liability Act (42 U.S.C. Section 9607(e)) and any amendments thereto, and California Health and Safety Code Section 25364, or any successor statute, to insure, protect, hold harmless, and indemnify City from liability. D. AB 939 Indemnification. Franchisee agrees to meet all requirements of City's SRRE as to the portion of the Commercial Solid Waste stream Collected and/or handled by Franchisee. Franchisee agrees to protect, defend, indemnify, and hold the Indemnified Parties harmless against all fines or penalties imposed by the California Integrated Waste Management Board, CalRecycle, or other entity, arising from the failure of Franchisee to meet Act Diversion requirements with respect to the portion of the Commercial Solid Waste stream collected by Franchisee. E. AB 341 Indemnification. Franchisee agrees to meet all requirements of AB 341, specifically Public Resources Code Section 42649, or any successor statute, as to portion of the Municipal Solid Waste and Recyclable Materials stream Collected and/or handled by Franchisee. Franchisee agrees to protect, defend, indemnify, and hold the Indemnified Parties harmless against all fines or penalties imposed by the California Integrated Waste Management Board, CalRecycle, or other entity, arising from the failure of Franchisee to meet AB 341 diversion and recycling requirements with respect to the Municipal Solid Waste and Recyclable Materials Collected and/or handled by Franchisee. F. AB 1826 Indemnification. Franchisee agrees to meet all requirements of AB 1826, specifically Public Resources Code Section 42649.82, or any successor statute, as to the portion of the Food Scraps and Green Waste stream Collected and/or handled by Franchisee. Franchisee agrees to protect, defend, indemnify, and hold the Indemnified Parties harmless against all fines or penalties imposed by the California Integrated Waste Management Board, CalRecycle, or other entity, arising from the failure of Franchisee to Non-exclusive Franchise Agreement Page 21 meet AB 1826 recycling requirements with respect to the Food Scraps and Green Waste collected and/or handled by Franchisee. G. Notice. City agrees to give notice to Franchisee when the City receives a claim for damages or other liability for which Franchisee has provided indemnification under this Section. SECTION 11. COMMERCIAL SOLID WASTE COLLECTION SERVICES A. Authorized Collection Services. Franchisee may only provide those Commercial Solid Waste Handling Services designated in Franchisee's application, or any amended application, and for which Franchisee has demonstrated compliance with Code Section 12.63.050, or any successor section. B. Frequency of Collection. Franchisee shall collect all Commercial Solid Waste from Commercial Premises and Multifamily Dwellings on a schedule to be agreed upon between Franchisee and its Customers, subject to the restrictions set forth in Agreement Section 11(C); provided, however, that such schedule complies with Code Subsection 6.04.140 and does not permit the accumulation of Commercial Solid Waste in quantities that are unreasonable or detrimental to the public health or safety. Requests for Collection from Customer Premises with overflowing Containers, or from Customer Premises where there have been missed pickups, shall be serviced within twenty-four (24) hours of any such request by the Customer or City. Should City receive a Customer complaint related to or arising from Franchisee's failure to collect Commercial Solid Waste as provided herein, Franchisee's Collection schedule shall be submitted to the City for review. C. Hours and Days of Collections. 1. Franchisee shall not collect Commercial Solid Waste in any area of the City after 6:30 p.m. and prior to 5:00 a.m. 2. Franchisee shall not Collect Commercial Solid Waste from any Commercial Premises or Multifamily Dwelling located within five hundred (500) feet of an occupied residential premise, motel or hotel, nor shall any of Franchisee's Collection vehicles be operated in any residential areas of the City except between the hours of 7:00 a.m. and 6:30 p.m., Monday through Friday, nor on any Saturday or Sunday, except between the hours of 8:00 a.m. and 6:00 p.m. 3. Franchisee shall neither operate its Collection vehicles nor Collect Commercial Solid Waste from any Commercial Premises, governmental facility, or Multifamily Dwelling located within five hundred (500) feet of a school, community center, church or other educational facility between the hours of 7:30 a.m. and 9:00 a.m. or 1:00 p.m. and 3:00 p.m., Monday through Friday. The limitations in Agreement Section 11(C)(3) notwithstanding, Franchisee's operation of Collection vehicles on East and West Coast Highway, Jamboree Road, MacArthur Boulevard, San Joaquin Hills Road and Newport Coast Drive shall not be prohibited or limited under this Agreement. Non-exclusive Franchise Agreement Page 22 4. Commercial Solid Waste collection on Sundays shall be limited to Food Scraps and Municipal Solid Waste from Commercial Premises, which require Collection every day due to public health and safety concerns. 5. At Franchisee's request, the City shall provide maps illustrating the geographic limitations placed on Franchisee's Collection services pursuant to Agreement Section 11(C)(3) ("Maps"). City expressly disclaims any liability related to or arising from the accuracy of any Maps provided by City. City may update the Maps as needed, and Franchisee's failure to request or secure the Maps, or any updated Maps, shall not relieve Franchisee of any obligations under this Agreement. D. Containers. Franchisee shall provide the appropriate sized Containers to each Customer for storage of the Commercial Solid Waste Collected by Franchisee. Containers provided by Franchisee must be identified with Franchisee's name and be in the color identified by Franchisee in Franchisee's application. SECTION 12. AB 341 RECYCLING PROGRAM FOR COMMERCIAL PREMISES AND MULTIFAMILY DWELLINGS A. Recycling Program. The Act requires all owners or responsible parties of Commercial Premises generating four (4) or more cubic yards of Commercial Solid Waste per week and all Multifamily Dwellings ("AB 341 Generator") to arrange for Recycling services by July 1, 2012. The Act requires all cities to provide a commercial Recycling program for AB 341 Generators on or before July 1, 2012. Franchisee acknowledges these requirements and agrees that, subject to the restrictions contained in Agreement Section 11(A), for all AB 341 Generators that contract with or pay Franchisee to haul Municipal Solid Waste and/or Recyclable Materials, Franchisee shall implement a recycling program as described and set forth in Exhibit "E," which is incorporated herein by reference ("Recycling Program"). B. Act Compliance. The parties agree that provision of a Recycling Program, as set forth in Exhibit "E," is of paramount importance for the City to comply with the Act. The parties further agree that providing high quality Recycling services, public education and technical assistance to AB 341 Generators to obtain their participation in AB 341 requirements is essential for Franchisee to implement an effective Recycling Program for AB 341 Generators. The parties acknowledge that achievement of this requirement is integral to the City's compliance with the Act and that failure to implement said Recycling Program may cause City to be non-compliant with the Act and be grounds for termination of this Agreement. C. Program Implementation. Within ninety (90) calendar days of either: (1) the Effective Date of this Agreement; or (2) the date an AB 341 Generator initiates service with Franchisee to collect or transport Municipal Solid Waste and/or Recyclable Materials, whichever is earlier, Franchisee shall implement a Recycling Program for said AB 341 Generator. For purposes of this Section, Franchisee shall be found to have "implemented" a Recycling Program only if Franchisee completes all of the following: Non-exclusive Franchise Agreement Page 23 1. Franchisee has contacted the AB 341 Generator and explained the requirements in the Act for the AB 341 Generator to have in place a Recycling Program as of July 1, 2012. 2. Franchisee has provided the appropriate type(s) and size(s) of Containers to the AB 341 Generator's premises. 3. Franchisee is collecting the Recyclable Materials from the AB 341 Generator at the frequency of collection needed to adequately service the AB 341 Generator and, at a minimum, is performing services consistent with Agreement Section 11(B). 4. Franchisee has provided public education and training materials to the AB 341 Generator explaining: (a) the requirements of the Act; (b) the operation of the Recycling Program; and (c) what materials may be placed in the Recycling container(s). 5. Franchisee has responded to the AB 341 Generator's questions and to any complaints and has successfully resolved all questions and complaints. D. Waiver. Franchisee may obtain a waiver from the City with regard to implementation of a Recycling Program for a specific AB 341 Generator in the event said generator is already diverting one hundred percent (100%) of Recyclable Materials generated by the AB 341 Generator using one or more of the following methods: The AB 341 Generator is donating or selling its Recyclable Materials to a third party. 2. The AB 341 Generator is self -hauling its Recyclable Materials to a recycler or to a Processing Facility. 3. The AB 341 Generator has subscribed to an AB 341 -compliant Diversion program through another Franchise hauler in the City. If AB 341 Generator uses any of the aforementioned diversion methods Franchisee shall submit a written statement to City describing the type(s) of Recyclable Materials being diverted by the AB 341 Generator, the number and type of containers being used, the method of Collection and the ultimate destination to which the Recyclable Materials are being delivered. Upon the City's verification that the information submitted by Franchisee meets the requirements for a waiver, the City may grant such waiver. SECTION 13. AB 1826 FOOD SCRAP DIVERSION PROGRAM FOR COMMERCIAL PREMISES A. Food Scrap Diversion Program. The Act requires, on or after January 1, 2017, all owners and responsible parties of Commercial Premises generating four (4) or more cubic yards of Food Scraps and/or Green Waste per week to arrange for Recycling services for those materials. The Act further requires, on or after January 1, 2019, all owners and responsible parties of Commercial Premises generating four (4) or more Non-exclusive Franchise Agreement Page 24 cubic yards of Commercial Solid Waste per week to arrange for Recycling services for Food Scraps and Green Waste (hereinafter, owners and responsible parties of Commercial Premises subject to either the 2017 or 2019 Act requirements are collectively referred to as "Food Scrap Generators"). Finally, the Act requires cities to provide a commercial Recycling program for Food Scrap Generators. Franchisee acknowledges these requirements and agrees that, subject to the restrictions contained in Agreement Section 11(A), for all Food Scrap Generators subject to AB 1826 that contract with or pay Franchisee to haul Food Scraps, Franchisee shall implement a diversion program as described and set forth in Exhibit "F" and incorporated herein by reference ("Food Scrap Diversion Program"). The City will maintain a listing of all Food Scrap Generators subject to AB 1826. City expressly disclaims any liability related to or arising from the accuracy of any lists provided by City. Franchisee's failure to request or secure the list on an annual basis shall not relieve Franchisee of any obligations under this Section. B. Act Compliance. The parties agree that provision of a Food Scrap Diversion program as described in Exhibit "F" is of paramount importance for the City to comply with the Act. The parties further agree that providing high quality Diversion services, public education, and technical assistance to Food Scrap Generators to obtain their participation in AB 1826 Diversion requirements is essential for Franchisee to implement an effective Food Scrap Diversion Program for all Food Scrap Generators. The parties acknowledge that achievement of this requirement is integral to the City's compliance with the Act and that failure to implement said Diversion program may cause City to be non-compliant with the Act. C. Program Implementation. Within ninety (90) calendar days of either: (1) the Effective Date of this Agreement; or (2) the date a Food Scrap Generator subject to AB 1826 initiates service with Franchisee to Collect and/or transport Food Scraps, whichever is earlier, Franchisee shall implement a Food Scrap Diversion Program for said Food Scrap Generator. For purposes of this Section, Franchisee shall be found to have "implemented" a Food Scrap Diversion Program for a Food Scrap Generator only if Franchisee completes all of the following: 1. Franchisee has contacted the Food Scrap Generator and explained the requirements in the Act for the Food Scrap Generator. 2. Franchisee has provided the appropriate type(s) and size(s) of Containers to the Food Scrap Generator's premises as set forth in Exhibit "F." 3. Franchisee is collecting Food Scraps from the Food Scrap Generator at the frequency of collection needed to adequately service the Food Scrap Generator and, at a minimum, is performing services consistent with Section 11.13. 4. Franchisee has provided public education and training materials to any Food Scrap Generators explaining (a) the requirements of the Act, (b) the operation of the Food Scrap Diversion Program, and (c) what materials may be placed in the Food Scrap Container(s). Non-exclusive Franchise Agreement Page 25 5. Franchisee has responded to the Customer's questions and complaints and has successfully resolved all questions and complaints. D. Waiver. Franchisee may obtain a waiver from the City with regard to implementation of a Food Scrap Diversion Program for a specific Food Scrap Generator if said generator is diverting one hundred percent (100%) of Food Scraps being generated using one or more of the following methods: The Food Scrap Generator is donating or selling its Food Scraps to a third party. 2. The Food Scrap Generator is self -hauling its Food Scraps to a recycler or to a Processing Facility. 3. The Food Scrap Generator is processing the Food Scraps onsite. 4. The Food Scrap Generator is donating surplus edible Food Scraps for human consumption. 5. The Food Scrap Generator has subscribed to an AB 1826 -compliant Food Scrap Recycling Program through another Franchise hauler in the City. If the Food Scrap Generator uses any of the aforementioned diversion methods and is diverting one hundred percent (100%) of Food Scraps being generated, Franchisee shall submit a written statement to City describing the type(s) of Food Scraps being Diverted by the Food Scrap Generator, the number and type of containers being used, the method of collection and the ultimate destination to which the recyclable materials are being delivered. Upon the City's verification that the information submitted by Franchisee meets the requirements for a waiver, the City shall grant such waiver. SECTION 14. AB 1826 COMMERCIAL AND MULTIFAMILY GREEN WASTE COLLECTION PROGRAM. A. Act Requirements. The Act requires all Commercial Premises generating four (4) or more cubic yards of Food Scraps and/or Green Waste to arrange for Recycling services for Green Waste on or before January 1, 2017. B. Green Waste Program. Franchisee acknowledges these requirements and agrees, subject to the restrictions contained in Agreement Section 11(A), that Franchisee shall provide the following Green Waste collection program at all Commercial Premises and Multifamily Dwellings that generate Green Waste and do not have Green Waste hauled away by a landscape or gardening service: 1. Containers to Be Provided. Franchisee shall provide appropriate sized Containers to each Commercial Premises and Multifamily Dwelling for storage of all Green Waste generated by the Customer on a weekly basis. Non-exclusive Franchise Agreement Page 26 2. Weekly Service. Not less than once per week, and more frequently as required to collect all of the Green Waste generated by each Commercial Premises and Multifamily Dwelling, Franchisee shall Collect all such materials that have been placed for Collection in Containers for each designated material. 3. Waiver. If a Commercial Premises or Multifamily Dwelling has all Green Waste hauled away by a landscaper or gardening service or if another Franchisee is collecting and diverting one hundred percent (100%) of Green Waste from the Commercial Premises or Multifamily Dwelling, Franchisee is not required to provide Green Waste Collection services to that property. In such event, Franchisee shall obtain a signed self -reporting form stating the name, address, telephone number, business license number, and contact person for the landscaper, gardening service(s), or Franchisee providing such service. The form shall include the Processing Facility where the Green Waste is delivered, which must be a City -approved Processing Facility. SECTION 15. CONSTRUCTION AND DEMOLITION DEBRIS RECYCLING PROGRAM A. Act Requirements. The 2016 California Green Building Standards Code requires sixty-five percent (65%) Diversion of Construction and Demolition Debris. B. Construction and Demolition Debris Recycling Program. Franchisee acknowledges these requirements and agrees that, subject to the restrictions contained in Agreement Section 11(A), for all Customers that contract with or pay Franchisee to haul Construction and Demolition Debris, Franchisee shall implement a diversion program as described and set forth in Exhibit "G" and incorporated herein by reference. SECTION 16. REPORTING REQUIREMENTS. A. Monthly Reports. Franchisee shall submit monthly reports to the Municipal Operations Director identifying, at a minimum, the following information: 1. The address of each facility serviced and the precise services provided to each address including, but not limited to, Commercial Solid Waste Handling Services broken down by type (i.e., Recyclable Materials, Food Scraps, Green Waste, Construction and Demolition Debris, and/or Municipal Solid Waste) presented in an Excel format acceptable to the City; 2. The frequency of Commercial Solid Waste Handling Services provided to each address; 3. The number of containers by type and size at each address and the frequency of collection; 4. The tonnage, by material category, collected per month by volume in cubic yards (Tons) and measured by the size of applicable Containers of and removed by them within the City during the previous month; Non-exclusive Franchise Agreement Page 27 5. The location of the Landfill and/or Recycling Facility to which the Municipal Solid Waste, Recyclable Materials, Green Waste and/or Food Scraps were taken during the previous month and the diversion rate achieved if the facility accepts mixed waste materials/Processable Municipal Solid Waste; 6. AB 341 and AB 1826 compliance information by Generators, including the total number of AB 341 and AB 1826 accounts serviced by the Franchisee, the total number of accounts that have a Recycling Program, Food Scrap Diversion Program, and/or Green Waste Recycling provided by the Franchisee, the number of Customers with Franchisee -documented internal Diversion programs that comply with AB 1826 and AB 341, the number of Customers that comply with AB 341 or AB 1826 via a Clean or Dirty MRF, the number of Customers that do not have an AB 341 or AB 1826 - compliant Diversion program, and a description of outreach efforts for non-compliant Generators; 7. A narrative summary of all outreach efforts to implement AB 341 and AB 1826 Diversion programs at non-compliant Generators' premises including dates of interactions, a description of the nature of the interactions, Generator objections, a log of all new Recycling of Food Scrap Container deliveries during the reporting period, a log of contamination incidents; 8. Such other tonnage or other information as requested by the Municipal Operations Director including weight tickets and Recycling records. B. Form of Report. Monthly reports shall be prepared in an Excel template, or other format approved in writing by the Municipal Operations Director. C. Report Due Date. Each monthly report shall be submitted on or before the 25th day of the month following the end of the month. D. Submission. Franchisee shall submit each monthly report to: Municipal Operations Director City of Newport Beach P.O. Box 1768 100 Civic Center Drive Newport Beach, CA 92658 E. No Waiver. Franchisee shall file the monthly report required under Agreement Section 16(A) regardless of whether Franchisee has provided Commercial Solid Waste Handling Services in the City during the reported month. F. Compliance. Franchisee shall comply with all Recycling and Diversion requirements imposed by law, ordinance, or regulation on the City. At the end of each calendar month, reports will be evaluated for compliance with City Recycling and Diversion requirements. Failure to comply with City Recycling and Diversion requirements shall be a material breach of this Agreement. Non-exclusive Franchise Agreement Page 28 SECTION 17. HAULER REPRESENTATIVE On or before January 1, 2018, Franchisee shall designate, at a minimum, one (1) individual employed by Franchisee to assist City in implementing the Agreement's Recycling and Diversion programs, as applicable, and to manage all reporting requirements set forth herein ("Hauler Representative"). Franchisee shall provide City with the Hauler Representative's contact information, and the Hauler Representative shall be the primary contact for the City. The Hauler Representative shall respond to any City questions or concerns relating to or arising from Franchisee's performance under this Agreement within five (5) business days of City submitting such question or concern. SECTION 18. VEHICLES AND EQUIPMENT A. Containers. Any and all Containers provided to Customers for storage, Collection or transportation of Municipal Solid Waste, Recyclable Materials, Food Scraps, and/or Green Waste shall meet the requirements designated by the Municipal Operations Director as well as State of California minimum standards for solid waste handling established under Public Resources Code Section 43020 and applicable health requirements, or any successor statutes or requirements. B. Identification. All Containers and vehicles used by Franchisee in the performance of Commercial Solid Waste Handling Services shall be marked with Franchisee's name in letters which are not less than four inches (4") high and which are easily read by the general public. C. Equipment. 1. Maintenance; Records. Franchisee shall, at all times, provide such number of vehicles and such equipment as will be adequate for the Commercial Solid Waste Handling 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 must pass annual "BIT" and brake inspections and Franchisee shall provide evidence of such to the Municipal Operations Department upon request. Upon request by the City, Franchisee shall provide records from the most recent California Highway Patrol biennial inspection of the terminal(s) responsible for the maintenance and repair of equipment used in the City. All vehicles shall be properly maintained, kept clean and in good repair, and shall be uniformly painted. All Commercial Solid Waste Containers used in the performance of this Agreement shall be kept clean and in good repair and shall be uniformly painted in the color identified by Franchisee in Franchisee's application. All equipment required by City in the performance of this Agreement, including vehicle mirrors and the collision avoidance system, may be subject to inspection by the City upon twenty-four (24) hours' notice by the Municipal Operations Director. All drivers employed by Franchisee and operating equipment in the City shall be properly licensed for the class of vehicle they drive, enrolled in the Department of Motor Vehicles Employee Pull Notice (EPN) program, and abide by all State and federal regulations for driver hours and alcohol and controlled substances testing. Non-exclusive Franchise Agreement Page 29 2. Solid Waste Retention. Each vehicle shall be so constructed and used in a manner so that no rubbish, garbage, debris, oil, grease or other material will blow, fall, or leak out of the vehicle. All Commercial Solid Waste shall be transported by means of vehicles that are 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 Commercial Solid Waste dropped or spilled in Collection, transfer or transportation shall be immediately cleaned up by Franchisee. A broom and a shovel shall be carried 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 at all times. 3. Vehicle Mirrors. On or before January 1, 2018, all equipment used by Franchisee for Commercial Solid Waste Handling Services in the City with a gross vehicle weight rating of twenty-six thousand (26,000) pounds or more shall be equipped with a convex mirror on the front of each vehicle, adjusted so as to enable the operator to see all points on an imaginary horizontal line which: (a) Is three feet (3') above the road; (b) Is one foot (1') directly forward from the midpoint of the front of the vehicles; and (c) Extends the full width of the front of the vehicle. 4. Collision Avoidance System. On or before January 1, 2019, all vehicles operated by Franchisee in the City shall have a collision avoidance system installed that is capable of detecting adjacent pedestrians and bicyclists. City reserves the right to inspect Franchisee's vehicles, at any time, to confirm that the installation and capability of Franchisee's collision avoidance system is consistent with Agreement Section 18(C)(4). 5. Storage. Franchisee shall not store any vehicle or equipment on any public street, public right-of-way or other public property in the City without obtaining a Temporary Street Closure Permit from the Public Works Department and prior written consent of the Municipal Operations Director. 6. Compliance. Should the Municipal Operations Director at any time give written 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 used again until inspected and authorized in writing by the Municipal Operations Director. 7. Public Works Standards. Placement of Containers and equipment shall be in accordance with the standards set by the Public Works Director. Non-exclusive Franchise Agreement Page 30 SECTION 19. ABANDONED CONTAINERS A. If Franchisee abandons any Commercial Solid Waste Container within the City, the City may remove the Container and/or dispose of the contents of the Container and recover its cost from Franchisee. B. For the purposes of this Section, "abandons" 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 12.63.140 of the Code, or any successor statute; 2. Franchisee's failure to remove the Container within ten (10) calendar days after the expiration or termination of the Franchise granted to Franchisee, except in the case where Franchisee has been granted an extension of the Term of said Franchise or Franchisee has been granted a subsequent franchise authorizing Franchisee to Collect and transport the type or types of Commercial Solid Waste for which the Container was used pursuant to this Agreement; or 3. Franchisee's failure to collect the Container and dispose of the contents of the Container within five (5) calendar days after the Municipal Operations Director issues written notice to Franchisee to dispose of the contents. 4. Franchisee's failure to replace a Container that fails to comply with the City's aesthetic standards, as set forth in this Agreement, within five (5) calendar days of receiving written notice from the Municipal Operations Director of non-compliance. SECTION 20. COMPLIANCE WITH LAW A. Franchisee shall perform all Commercial Solid Waste Handling Services in accordance with applicable federal, state, and local law, including, but not limited to, Code Chapter 12.63, Article XIII of the City Charter, Ordinance No. 2017-16 and the terms and conditions of this Agreement. B. During the Term of this Agreement, Franchisee and City agree that the City's ordinances may be amended as provided herein, as provided in Chapter 12.63 or 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 obligations or requirements for Commercial Solid Waste management. Franchisee agrees to comply with any such amendment of the City's ordinances without the need to amend this Agreement. SECTION 21. PERMITS AND LICENSES A. Applicable 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. Payment of the Franchise Fee and Environmental Liability Fund Fee shall be in Non-exclusive Franchise Agreement Page 31 addition to any permit or license fees or business tax prescribed by the City for the same period. B. Orange County Landfill Account. Franchisee shall obtain and maintain for the Term of this Agreement an account with the Orange County landfills. If Franchisee disposes of any Commercial Solid Waste collected from the City at an Orange County landfill, the Franchisee shall utilize its landfill account only (no "cash" disposal). SECTION 22. PUBLIC EDUCATION ACTIVITIES A. Informational Materials. Each year during the Term of this Agreement, Franchisee shall transmit informational materials to all Customers and to such prospective Customers as it may select, informing them of the Commercial Solid Waste Handling Services that are required of them under State law as well as Hazardous Waste Disposal requirements. B. Customer Compliance Notification. Each year during the Term of this Agreement, Franchisee shall notify all AB 1826 and AB 341 accounts for which it provides Commercial Solid Waste Collection Services of the Customer's compliance obligations. C. Submission to City of Informational Materials. Franchisee's informational materials shall be provided to the Municipal Operations Director upon request if, in City's sole and absolute discretion, such informational materials are necessary for City to comply with State reporting requirements. SECTION 23. SUSPENSION; TERMINATION; APPEAL A. City's Right to Suspend or Terminate. The Franchise granted to Franchisee may be suspended or terminated by the City Council pursuant to Code Section 12.63.140, or any successor statute. B. Notice of Default. Should the Municipal Operations Director determine Franchisee has defaulted in the performance of any obligation hereunder, the Municipal Operations Director may provide written notice to Franchisee of such default ("Default Notice"). The Municipal Operations Director may, in the Default Notice, set a reasonable time within which Franchisee may cure such default. Unless a longer or shorter time is otherwise specified by the Municipal Operations Director, a reasonable time for correction shall be thirty (30) calendar days from the date the Default Notice is issued. C. Municipal Operations Director Review. Within ten (10) business days of the Municipal Operations Director's issuance of the Default Notice, at the request of Franchisee, the Municipal Operations Director will hold a meeting with Franchisee to discuss the failure(s) described in the Default Notice. Such request shall immediately suspend any deadlines set forth in Agreement Section 23(B) or the Default Notice. During Franchisee's meeting with the Municipal Operations Director, Franchisee shall have an opportunity to present evidence explaining or justifying the failures described in the Default Notice. After the meeting, the Municipal Operations Director will make a determination, in his or her sole discretion, as to whether to uphold the Default Notice, or Non-exclusive Franchise Agreement Page 32 any portion thereof, and shall issue such determination within five (5) business days of the meeting. Franchisee will have thirty (30) calendar days from the date the Municipal Operations Director's determination is issued to cure the upheld Default Notice or portion thereof. D. Appeal to City Manager. Within five (5) business days of the Municipal Operations Director issuing his/her determination, Franchisee may appeal the Municipal Operation Director's determination, in writing, to the City Manager. City's receipt of such appeal request shall immediately suspend any deadlines set forth in Agreement Section 23(C). The City Manager will hold a meeting with Franchisee no more than ten (10) business days after receiving Franchisee's written appeal request. After the meeting, the City Manager will make a determination, in his or her sole discretion, as to whether to uphold the Default Notice, or any portion thereof, and shall issue such determination within five (5) business days of the meeting. The decision of the City Manager shall be final. Franchisee will have thirty (30) calendar days from the date the City Manager's determination is issued to cure the upheld Default Notice or any portion thereof. F. Failure to Timely Cure. If Franchisee fails to timely cure a Default Notice, or any portion thereof, then the applicable liquidated damages set forth in Agreement Section 24 shall be final and conclusive and the amount(s) shall be immediately due and payable. Franchisee's failure to timely cure three (3) Default Notices shall be a material breach of this Agreement. G. Audit Findings. Notwithstanding anything to the contrary, if Franchisee disagrees with City's audit findings, then Franchisee may, within ten (10) business days after service of the audit finding, appeal to the City Manager specifying the basis for its disagreement with City's audit findings. If Franchisee fails to timely request such an appeal, then the discrepancy determinations shall be final and conclusive and the violation shall be deemed established. H. Termination Without Right to Cure. City shall have the right of suspension or termination as a result of Franchisee's failure to timely cure any deficiency or default as set forth above, which right is in addition to City's right to terminate this Agreement without affording Franchisee an opportunity to cure in circumstances where Franchisee is determined to have materially breached this Agreement. Notwithstanding anything to the contrary, in the event of any material breach hereof, City shall have the right to terminate this Agreement without affording Franchisee the right to cure including, without limitation, any action, inaction or circumstance defined herein as a material breach and/or under any of the following circumstances which are hereby defined as material breaches: If Franchisee conducts, or attempts to conduct, fraud upon City. 2. If Franchisee becomes insolvent, unable, or unwilling to pay its debts. 3. If Franchisee fails to materially comply with any insurance or indemnification requirement set forth in this Agreement; provided, however, that Franchisee shall have a reasonable opportunity to cure any default relating to the Non-exclusive Franchise Agreement Page 33 Franchisee's failure to provide the City with proof of insurance, so long as such insurance is in effect at all times. 4. If City is required to pay any fine or penalty, which Franchisee is required by the terms hereof to pay, yet which Franchisee fails, refuses, neglects or is unable to timely pay. 5. If Franchisee fails to submit Records thirty (30) calendar days or more following a written request by City, or its designated representative for Records disclosure. 6. Franchisee fails to meet the Diversion requirements of this Agreement or pursuant to applicable laws. I. Removal of Commercial Solid Waste Containers; Customer Notification. In the event this Franchise is terminated or expires without a grant of a subsequent franchise allowing Franchisee to continue performing Commercial Solid Waste Handling Services in City, then within ten (10) calendar days of such termination or expiration Franchisee shall: 1. Remove all of Franchisee's Commercial Solid Waste containers from all Franchisee's collection service locations and properly dispose of all Commercial Solid Waste in such containers within the time period specified by the City Council; and 2. Submit to the Municipal Operations Director a list of the names and addresses of Generators in the City for which Franchisee provided Commercial Solid Waste Handling Services as of the date of termination or expiration (i.e., Franchisee's City of Newport Beach customer list); or 3. 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 the City. Such notification shall be in the form provided by the Municipal Operations Director and shall be personally delivered or shall be sent by first class mail, postage prepaid, to the customers' billing addresses. Franchisee shall submit to the Municipal Operations Director an affidavit, signed under penalty of perjury, stating that the required notification has been provided by Franchisee to all of Franchisee's City Customers. J. Continuing Obligations. Upon Agreement termination, suspension or expiration: 1. Franchisee shall have no right or authority to engage in Commercial Solid Waste Handling Services in the City, subject to the provisions of Sections 49520- 49524 of the Public Resources Code, or any successor statutes. 2. Franchisee shall remain liable to City for any and all Franchise Fees and Environmental Liability Fund Fees that would otherwise be payable by Franchisee, for any and all liquidated damages, late charges and/or interest assessed. Non-exclusive Franchise Agreement Page 34 3. Franchisee shall have a continuing obligation to submit to City all reports and records required by this Agreement. Franchisee's obligation shall survive this Agreement shall continue for such period of time as required by this Agreement or applicable law. 4. Franchisee shall allow the Commercial Solid Waste Generators served by Franchisee to arrange for Commercial Solid Waste Handling Services with a Commercial Solid Waste enterprise collector authorized to perform such services, without penalty or liability for breach of contract on the part of the generators, for such period of time as Franchisee is not authorized to perform such services because of termination or suspension. 5. Franchisee's shall have a continuing obligation to provide the indemnifications required in this Agreement. Such indemnifications include, but are not limited to, the Hazardous Materials indemnification and AB 939/AB 341/AB 1829 indemnification as set forth in Agreement Section 10. SECTION 24. CITY'S REMEDIES A. The City incurred considerable time and expense procuring this Agreement to secure an improved level and quality of Recycling and compliance with State Diversion mandates. B. Liquidated Damages. The Parties agree the following liquidated damages schedule represents a reasonable estimate of the amount of damages, considering all the circumstances existing on the date of this Agreement, including the relationship of the sums to the range of harm to City that reasonably could be expected in anticipation that proof of actual damages would be costly or inconvenient: Applicable Failure(s)* Damages Section(s) 6(A), 7(A)z_..M..._...,rv_ _. Comply with City -mandated Diversion Two hundred fifty requirements within thirty (30) calendar dollars ($250) per days of notification by City business day until compliant 6(B), 7(B) Deliver Commercial Solid Waste as Two hundred fifty designated dollars ($250) per truck delivery 8(B) Provide requested records Two hundred fifty dollars ($250) per business day until completed Non-exclusive Franchise Agreement Page 35 11(A) Provide only those Commercial Solid Two hundred fifty Waste Handling Services for which dollars ($250) Franchisee has applied 11(C) Collect at unauthorized locations and/or Two hundred fifty during unauthorized hours five (5) or dollars ($250) more times in a twelve (12) month period 11(D) Label Containers; paint vehicles and/or Fifty dollars ($50) Containers corporate color per business day until corrected 12(A), 12(C) Establish or Implement Recycling One thousand Program dollars ($1,000) per occurrence 13(A), 13(C) Establish or Implement Food Scrap One thousand Diversion Program dollars ($1,000) 13(A), 13(C) Establish or Implement Green Waste Five hundred dollars Diversion Program ($500) 13(A), 13(C) Establish or Implement Construction and One thousand Demolition Diversion Program dollars ($1,000) 16(A), 16(B), 16(E) Submit complete and accurate monthly One hundred dollars reports ($100) per business day until corrected or completed 16(C) Submit timely monthly reports One hundred dollars ($100) — if not submitted when due Five hundred dollars ($500) — if not submitted w/in thirty (30) calendar days after due date 17 Designate qualified Hauler Fifty dollars ($50) Representative; Failure of Hauler per business day Representative to timely respond to City until completed 18(C) Secure or maintain vehicles or vehicle One hundred dollars equipment ($100) per business day until completed Non-exclusive Franchise Agreement Page 36 19 Remove, replace, or collect abandoned Fifty dollars ($50) Container(s) per business day until completed *Unless otherwise designated, reference to "failure(s)" refers to each occurrence of specified breach (such as for each Customer or each Customer record entry or complaint) and not for aggregate occurrences of those breaches (such as for all Customers on a given route or day). C. City's Remedies Cumulative. The rights and remedies of City set forth herein shall be in addition to any and all other rights and privileges City may have, and shall not be deemed to limit any such other rights or privileges of City under this Agreement or by virtue of any law. By placing its initials below, each party specifically confirms: (1) the accuracy of the statements made in Agreement Section 24; and (2) it has had ample opportunity to consult with legal counsel and obtain an explanation of liquidated damage provisions prior to signing this Agreement. FRANCHISEE Initial Here: CITY itial Here/ --4 SECTION 25. CONFIDENTIAL INFORMATION. A. Confidential Information. In the performance of this Agreement or in contemplation thereof, the parties and their respective employees and agents may have access to private or confidential information owned or controlled by the other party and such information may contain proprietary details and disclosures. All information and data identified in writing as proprietary or confidential by either party ("Confidential Information") and so acquired by the other party or its employees or agents under this Agreement or in contemplation thereof shall be and shall remain the disclosing party's exclusive property. The recipient of Confidential Information shall use all reasonable efforts (which in any event shall not be less than the efforts the recipient takes to ensure the confidentiality of its own proprietary and other confidential information) to keep, and have its employees and agents keep, any and all Confidential Information confidential, and shall not copy, or publish or disclose it to others, nor authorize its employees, agents or anyone else to copy or disclose it to others, without the disclosing party's written approval; nor shall the recipient make use of the Confidential Information except for the purposes of executing its obligations hereunder, and (except as provided for herein) shall return the Confidential Information and data to the first party at its request. The City's duty to maintain confidentiality as described hereunder shall be subject to the laws of the State of California. B. Excluded Information. The foregoing conditions will not apply to information or data which is, or which becomes generally known to the public by publication or by any Non-exclusive Franchise Agreement Page 37 means other than a breach of duty on the part of the recipient hereunder, is information previously known to the recipient, is information independently developed by or for the recipient or is information generally released by the owning party without restriction. C. Public Records Request. Should City receive a public records request, or otherwise be directed by any governmental authority to disclose any or all Confidential Information in City's possession, custody or control, City shall promptly provide notice to Franchisee of such request to allow Franchisee an opportunity to prevent disclosure. D. Right to Injunctive Relief. Because of the unique nature of the Confidential Information, the parties agree that each party may suffer irreparable harm in the event that the other party fails to comply with any of its obligations under this Section, and that monetary damages may be inadequate to compensate either party for such breach. Accordingly, the parties agree that either party will, in addition to any other remedies available to it at law or in equity, be entitled to seek injunctive relief to enforce the terms of this Section. SECTION 26. ASSIGNMENT Franchisee shall not assign, sell, subcontract, transfer or otherwise delegate its authority to perform any portion of the Commercial Solid Waste Handling Services or obligations under the Franchise without prior express consent of the City Council. This prohibition includes any transfer of ownership or control of Franchisee, or the conveyance of a majority of Franchisee's stock to a new controlling interest. City's consent shall not be unreasonably withheld. SECTION 27. 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: Municipal Operations Director City of-Newportt Beach P.O. Box 1768 100 Civic Center Drive Newport Beach, CA 92660 To Franchisee: Tight Quarters, Inc. Attn: Angelica Lamas 2031 South Anne Street Santa Ana, CA 92704 Notice shall be deemed effective on the date personally served or, if mailed, three (3) calendar days after the date deposited in the mail. B. Integrated Agreement. This Agreement represents the full and complete understanding of every kind or nature whatsoever between the City and Franchisee, and Non-exclusive Franchise Agreement Page 38 all preliminary negotiations and other agreements of any kind or nature are merged herein. No verbal agreement or implied covenant shall be held to vary the provisions herein. C. Amendments. This Agreement supersedes all prior agreements and understandings 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 writing and signed by both parties. D. Recitals. The Parties acknowledge that the Recitals are true and correct and are hereby incorporated by reference into this Agreement. E. Applicable Law. The laws of the City, State of California, and applicable Federal law, shall govern this Agreement and all matters relating to it and any action brought relating to this Agreement shall be adjudicated in a court of competent jurisdiction in the County of Orange. F. Authority. The parties signing below represent and warrant that they have the requisite authority to bind the entities on whose behalf they are signing. G. Severability. If any term or portion of this Agreement is held to be invalid, illegal, or otherwise unenforceable by a court of competent jurisdiction, the remaining provisions of this Agreement shall continue in full force and effect. H. Waiver. A waiver by either party of any breach, of any term, covenant or condition contained herein shall not be deemed to be a waiver of any subsequent breach of the same or any other term, covenant or condition contained herein, whether of the same or a difference character. I. Interpretation. The terms of this Agreement shall be construed in accordance with the meaning of the language used and shall not be construed for or against either party by reason of the authorship of this Agreement or any other rule of construction that might otherwise apply. J. Equal Opportunity Employment. Franchisee represents that it is an equal opportunity employer and it shall not discriminate against any authorized subcontractor, employee or applicant for employment because of race, religion, color, national origin, handicap, ancestry, sex or age or any other impermissible basis under law. K. Compliance with Laws. Franchisee shall at its own cost and expense comply with all statutes, ordinances, regulations and requirements of all governmental entities, including federal, state, county or municipal, whether now in force or hereinafter enacted. Franchisee agrees to obtain a business license from the City in accordance with the Code. The parties hereto agree that the Franchise and this Agreement are the only authorizations to conduct Commercial Solid Waste Handling Services in the City and that the issuance of a business license does not grant the Franchisee a right to conduct Commercial Solid Waste Handling Services or other business in the City. Non-exclusive Franchise Agreement Page 39 L. Conflicts of Interest. Franchisee and its employees may be subject to the provisions of the California Political Reform Act of 1974 (the "California Political Reform Act"), which (i) requires such persons to disclose any financial interest that may foreseeably be materially affected by the work performed under this Agreement, and (ii) prohibits such persons from making, or participating in making, decisions that will foreseeably financially affect such interest. If subject to the California Political Reform Act, Franchisee shall conform to all requirements of the California Political Reform Act. Failure to do so constitutes a material breach and is grounds for immediate termination of this Agreement by City. Franchisee shall indemnify and hold harmless City for any and all claims for damages resulting from Franchisee's violation of this subsection. M. Conflicts or Inconsistencies. In the event there are any conflicts or inconsistencies between this Agreement and the Scope of Services or any other attachments attached hereto, the terms of this Agreement shall govern. N. No Attorneys' Fees. In the event of any dispute or legal action arising under this Agreement, the prevailing party shall not be entitled to attorneys' fees. O. Counterparts. This Agreement may be executed in two (2) or more counterparts, each of which shall be deemed an original and all of which together shall constitute one (1) and the same instrument. [SIGNATURES ON FOLLOWING PAGE] Non-exclusive Franchise Agreement Page 40 IN WITNESS WHEREOF, the parties have caused this Agreement to be executed on the day and year written below. APPROVED AS TO FORM: CITY ATTORNEY'S OFFICE Date: lo/ tip Aaron C. rp City Attorne ATTEST: Date: it. �. By: aav� ), Leilani I. Brown City Clerk � -1 FOR CITY OF NEWPORT BEACH, a California munici al corporatio Date: 1 K6vin Muldoon Mayor FRANCHISEE: TIGHT QUARTERS, INC., a California orporati Date: By: To ord-ent . Cottam Pres Date: 2 7 By: tZ i/ ►/•t • .fi Secretary [END OF SIGNATURES] Attachments: Exhibit A — Faithful Performance Bond Exhibit B — Franchise Hauler Acknowledgement Exhibit C — Franchisee Application Template Exhibit D — Insurance Requirements Exhibit E — Recycling Program Exhibit F — Food Scrap Diversion Program Exhibit G — Construction and Demolition Debris Recycling Program Non-exclusive Franchise Agreement Page 41 IW:/:11=311r_1 CITY OF NEWPORT BEACH BOND NO. FAITHFUL PERFORMANCE BOND The premium charges on this Bond is $ WHEREAS, the City of Newport Beach, State of California, has awarded to TIGHT QUARTERS, INC., a California corporation, hereinafter designated as the "Principal," a non-exclusive franchise for commercial solid waste handling services ("Franchise Agreement") in the City of Newport Beach, in strict conformity with the Franchise Agreement on file with the office of the City Clerk of the City of Newport Beach, which is incorporated herein by this reference. WHEREAS, Principal has executed or is about to execute the Franchise Agreement and the terms thereof require the furnishing of a Bond for the faithful performance of the Franchise Agreement. NOW, THEREFORE, we, the Principal, and , duly authorized to transact business under the laws of the State of California as Surety (hereinafter "Surety"), are held and firmly bound unto the City of Newport Beach, in the sum of Seven Thousand Five Hundred Dollars and 00/100 ($7,500.00) lawful money of the United States of America, to be paid to the City of Newport Beach, its successors, and assigns; for which payment well and truly to be made, we bind ourselves, our heirs, executors and administrators, successors, or assigns, jointly and severally, firmly by these present. THE CONDITION OF THIS OBLIGATION IS SUCH, that if the Principal, or the Principal's heirs, executors, administrators, successors, or assigns, fail to abide by, and well and truly keep and perform any or all the services, covenants, conditions, and agreements in the Franchise Agreement documents and any alteration thereof made as therein provided on its part, to be kept and performed at the time and in the manner therein specified, and in all respects according to its true intent and meaning, or fails to indemnify, defend, and save harmless the City of Newport Beach, its officers, employees and agents, as therein stipulated, then, Surety will faithfully perform the same, in an amount not exceeding the sum specified in this Bond; otherwise this obligation shall become null and void. As a part of the obligation secured hereby, and in addition to the face amount specified in this Performance Bond, there shall be included costs and reasonable expenses and fees, including reasonable attorneys fees, incurred by City, only in the event City is required to bring an action in law or equity against Surety to enforce the obligations of this Bond. Surety, for value received, stipulates and agrees that no change, extension of time, alterations or additions to the terms of the Franchise Agreement or to the services to be performed thereunder shall in any way affect its obligations on this Bond, and it does Faithful Performance Bond Page A-1 hereby waive notice of any such change, extension of time, alterations or additions of the Agreement or to the services or to the specifications. This Faithful Performance Bond shall be extended and maintained by the Principal in full force and effect for five (5) years following the date Principal is granted the Franchise Agreement by City. In the event that the Principal executed this bond as an individual, it is agreed that the death of any such Principal shall not exonerate the Surety from its obligations under this Bond. IN WITNESS WHEREOF, this instrument has been duly executed by the Principal and Surety above named, on the l,rr 1, l i 4" Name of Contractor (Principal) Name of Surety Address of Surety Telephone APPROVED AS TO FORM: CITY ATTORNEY'S OFFICE Date: /o/iKli-i Aaron C. aro City Attorn day of 120 L4M �011relfr A h ed Signature/Title Authorized Agent Signature Print Name and Title NOTARY ACKNOWLEDGMENTS OF CONTRACTOR AND SURETY MUST BE ATTACHED Faithful Performance Bond Page A-2 ACKNOWLEDGMENT A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document. State of Cali ornia County of ) ss. On ;i LM,V� 'a 9 1 20before me, c )�j L&r-a , � x �✓I �� t c Notary Public, personally appeared �:tA c3rj `I 44n j/'k- , who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signatures(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. LINETTEKLUCAs COMM. WSW NOTARY PUBLIC OCAL FORNIA 4 Orme Canty o cow exam s•vwi ow U. r -pa L WAR ARAM ig a re (seal) ACKNOWLEDGMENT A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document. State of California County of }ss. On 20 before me, , Notary Public, personally appeared proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signatures(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. Signature (seal) Faithful Performance Bond Page A-3 FAW AmTrust Surety An AmTrust Financial Company Tuesday, December 04, 2018 BOND TRANSACTION REPORT INDEMNITY COMPANY OF CALIFORNIA Producer: 200737 Bowermaster & Associates Insurance Agency Inc PO Box 6026 Cypress CA 90630 Obligee: A989931C City Of Newport Beach P O Box 1768 Newport Beach CA 92658 Bond Amount: Contract Amount: Gross Amount: Surcharge Amount: Surcharge %: Bond Number: 989931C $7,500.00 $0.00 $750.00 $0.00 0.00 Type Of Bond: Misc. Indemnity Remarks: Auto Renewal Principal: A989931C Tight Quarters Inc 2031 S Anne Street Santa Ana CA 92704 Term From: Term To: Date Of Issue: Date Effective: 10/18/2018 10/18/2019 10/18/1989 10/18/2018 Developers Surety and Indemnity Company F1 Indemnity Company of California AmTrust Surety CorePointe Insurance Company „ 17771 Cowan, Suite 100 • Irvine, California 92614 (949) 263-3300 Phone - (800) 251-1955 Fax www_AmTrustSurety com ATTACHED TO AND FORMING A PART OF: Bond No.: 989931C Principal: Tight Quarters, Inc. 2031 S. Anne Street Santa Ana, CA 92704 Obligee: City of Newport Beach P.O. Box 1768 Newport Beach, CA 92658 Surety: Developers Surety and Indemnity Company 17771 Cowan, Suite 100 Irvine, CA 92614 Effective October 18 2017 it is agreed that: Amend penalty FROM $3000 TO $7500 Nothing herein contained shall be held to vary, waive, alter, or extend any of the terms, conditions, agreements or warranties of the above mentioned bond, other than stated as above. Provided, however, that the liability of the company under the attached bond as changed by this order shall not be cumulative. Signed, sealed this ID -1184' (Special] (kev. (J7;15) 7th day of November 20 17 Surety: Developers Surety and Indemnity Company . ......... .. ........ -- ---- -------------- --------- --------- Tina Dionne, Attorney -In -Fact POWER OF ATTORNEY FOR DEVELOPERS SURETY AND INDEMNITY COMPANY INDEMNITY COMPANY OF CALIFORNIA PO Box 19725, IRVINE, CA 92623 (949) 263-3300 KNOW ALL BY THESE PRESENTS that except as expressly limited, DEVELOPERS SURETY AND INDEMNITY COMPANY and INDEMNITY COMPANY OF CALIFORNIA, do each hereby make, constitute and appoint: ***Ronny Rubens -Garcia, Thomas H. Tyrell, Tina Dionne, Sornchai Chansila, Emily D. Brown, jointly or severally*** as their true and lawful Attomey(s)-in-Fact, to make, execute, deliver and acknowledge, for and on behalf of said corporations, as sureties, bonds, undertakings and contracts of suretyship giving and granting unto said Attorney(s)-in-Fact full power and authority to do and to perform every act necessary, requisite or proper to be done in connection therewith as each of said corporations could do, but reserving to each of said corporations full power of substitution and revocation, and all of the acts of said Attorney(s)-fn-Fact, pursuant to these presents, are hereby ratified and confirmed. This Power of Attorney is granted and is signed by facsimile under and by authority of the following resolutions adopted by the respective Boards of Directors of DEVELOPERS SURETY AND INDEMNITY COMPANY and INDEMNITY COMPANY OF CALIFORNIA, effective as of January 1st, 2008. RESOLVED, that a combination of any two of the Chairman of the Board, the President, Executive Vice -President. Senior Vice -President or any Vice President of the corporations be, and that each of them hereby is, authorized to execute this Power of Attorney, qualifying the attorneys) named in the Power of Attorney to'execute, on behalf of the corporations, bonds, undertakings and contracts of suretyship; and that the Secretary or any Assistant Secretary of either of the corporations be, and each of them hereby is, authorized to attest the execution of any such Power of Attorney; RESOLVED, FURTHER, that the signatures of such officers may be affixed to any such Power of Attorney or to any certificate relating thereto by facsimile, and any such Power of Attomey or certificate bearing such facsimile signatures shall be valid and binding upon the corporations when so affixed and in the future with respect to any bond, undertaking or contract of suretyship to which it is attached. IN WITNESS WHEREOF, DEVELOPERS SURETY AND INDEMNITY COMPANY and INDEMNITY COMPANY OF CALIFORNIA have severally caused these presents to be signed by their respective officers and attested by their respective Secretary or Assistant Secretary this 6th day of February, 2017. I By: _ _� _ . _ /1L d 1,r AND b,."",,� ��aPhfti'Y 0 Daniel Young, Senior Vice -President --` yJ c°Pao�r� F� G �?,Pop � [, 193fi {' r�r QCT By: iso`r scK7 Mark Lansdon, Vice-Presidentrro ; ,•,,o•.....• -Fla*,. A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document. State of California County of Orange On February 6, 2017 _ before me, Lucille Raymond, Notary Public Date V Here Insert Name and Title of the Ofter personally appeared _ Daniel Young and Mark Lansdon Namels) of Signers)^. ------ who proved to me on the basis of satisfactory evidence to be the person(s) whose names) is/are subscribed to the within instrument and acknowledged to me that helshe/they executed the same in his/her/their authorized �YY capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of LUCILLE RAYMOND which the person(s) acted, executed the instrument. Commission i 20619.5 'r Notary Public • California I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is Orarw County true and correct. wr My COMM. Ex irei Oct 13 2016 WITNESS my hand and official seal. ly.nd, Place Notary Seal Above SignatureLucille Notary Public CERTIFICATE The undersigned, as Secretary or Assistant Secretary of DEVELOPERS SURETY AND INDEMNITY COMPANY or INDEMNITY COMPANY OF CALIFORNIA, does hereby certify that the foregoing Power of Attorney remains in full force and has not been revoked and, furthermore, that the provisions of the resolutions of the respective Boards of Directors of said corporations set forth in the Power of Ahomey are in force as of the date of this Certificate. Y November 2017 ,grAND/^0.,, This Certificate is executed in the City of Irvine, California, this 71h da of y.6�y y. l , 1936 = �, { Cassie J. rrisford. Assistant S tary : o ; O v7•04C1F0�R�P••D; "sC ts'�Rta�s. ATS -1002 (02/17) '•�� •* t`�•'� ' EXHIBIT B FRANCHISE HAULER ACKNOWLEDGEMENT THIS FRANCHISE HAULER ACKNOWLEDGMENT, entered into as of November 9, 2017 (the "Acknowledgment"), by and between the City of Newport Beach, a charter city and municipal corporation (the "City"), and TIGHT QUARTERS, INC., a California corporation (the "Franchise Hauler"). WITNESSETH WHEREAS, the City and the Franchise Hauler have heretofore entered into an agreement entitled NONEXCLUSIVE FRANCHISE AGREEMENT BETWEEN THE CITY OF NEWPORT BEACH AND TIGHT QUARTERS, INC. FOR COMMERCIAL SOLID WASTE HAULING SERVICES (the "Franchise"); and WHEREAS, the Franchise provides for the collection and disposal of certain municipal commercial solid waste as described therein ("Franchise Waste") generated within the City; and WHEREAS, Orange County (the "County") owns, manages and operates a sanitary landfill disposal system for municipal solid waste generated within the County; and WHEREAS, the City and the County have heretofore entered into a Waste Disposal Agreement as of 2009, and subsequent Amendment to the Waste Disposal Agreement dated April 28, 2016 (collectively, the "Disposal Agreement"), determining that the execution of such Disposal Agreement will serve the public health, safety and welfare of the residents of the City and County, by maintaining public ownership and stewardship over the Orange County Landfill Disposal System (the "Disposal System"); and WHEREAS, under the Disposal Agreement, the County has agreed to provide long-term disposal of all municipal solid waste generated within the City and the City has agreed to exercise all legal, and contractual power which it possesses from time to time to deliver or cause the delivery of such waste to the Disposal System; and WHEREAS, the provisions of the Waste Disposal Agreement which guarantee capacity for the long term disposal of waste at specified rates generated in the City provide significant benefits to the Franchise Hauler; WHEREAS, notwithstanding any Franchise provisions to the contrary, the Franchise Hauler explicitly acknowledges the aforementioned benefits to the City, the County and the Franchise Hauler in providing for the disposal of all Franchise Waste to the Disposal System; and WHEREAS, the City and the Franchise Hauler desire to enter into this Acknowledgment to assure that the City and the Franchise Hauler will be entitled to the benefits of the Waste Disposal Agreement and to assure conformity with the waste Franchise Hauler Acknowledgement Page B-1 delivery obligations which have been agreed to by the City under the Disposal Agreement through the delivery of waste by the Franchise Hauler to the Disposal System; and WHEREAS, the Franchise Hauler's agreement to deliver Franchise Waste to the Disposal System under this Acknowledgment is given in consideration of the Franchise Hauler's right to receive the Contract Rate for such disposal as provided in the Disposal Agreement. NOW, THEREFORE, in consideration of the premises and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties hereto, intending to be legally bound hereby, agree as follows: 1. Capitalized terms used and not otherwise defined herein are used as defined in the Disposal Agreement. 2. The Franchise Hauler hereby waives any right which it may possess under applicable law to contest on any ground, constitutional, statutory, case law, administrative or otherwise, (a) the right, power or authority of the County or the City to enter into or perform their respective obligations under the Disposal Agreement, (b) the enforceability against the County or the City of the Disposal Agreement, or (c) the right, power or authority of the City to deliver or cause the delivery of all Controllable Waste to the Designated Disposal Facility in accordance with this Acknowledgment. 3. The City and the Franchise Hauler each hereby represent that this Acknowledgment has been duly authorized by all necessary action of their respective governing bodies. 4. The Franchise Hauler shall deliver or cause to be delivered all Controllable Waste (including all residue from the processing by any means, wherever conducted, of Controllable Waste) to the Disposal System, and shall otherwise assist the City in complying with its obligations under the Waste Disposal Covenant in Section 3.1 of the Disposal Agreement. 5. The Franchise Hauler shall not haul Controllable Waste to any materials recovery facility, composting facility, intermediate processing facility, recycling center, transfer station or other waste handling or management facility unless the contract or other agreement or arrangement between the Franchise Hauler and the operator of such facility is sufficient in the opinion of the County to assure that the Residue from such facility constituting City Acceptable Waste (or Tonnage equivalencies) and the City Acceptable Waste transferred by such facility shall be delivered to the Designated Disposal Facility in compliance with the Waste Disposal Covenant. Franchise Hauler Acknowledgement Page B-2 6. The Franchise Hauler shall pay the Contract Rate imposed by the County at the Designated Disposal Facility for the disposal of all Controllable Waste, which rate shall be subject to potential adjustment necessary to reflect the circumstances set forth in the Disposal Agreement. 7. Nothing in this Acknowledgment is intended to restrict any right or responsibility explicitly given the Franchise Hauler in the Franchise to recycle City Acceptable Waste, except as provided in paragraph 5 above with respect to Residue from any such recycling operations. 8. The obligations of the Franchise Hauler under this Acknowledgment shall apply notwithstanding any provision of the Franchise which may conflict herewith. 9. This Acknowledgment may be enforced by the City by any available legal means. In any enforcement action by the City, the burden of proof shall be on the Franchise Hauler to demonstrate compliance herewith. 10. This Acknowledgment shall be in full force and effect and shall be legally binding upon the City and Franchise Hauler from the dated hereof and shall continue in full force and effect until the earlier of (i) the end of the term of the Franchise or (ii) the end of the term of the Disposal Agreement. 11. The City and Hauler agree that the County shall be an express third party beneficiary of this Acknowledgment, and shall be entitled to independently enforce the obligations of the Franchise Hauler hereunder. 12. The Hauler agrees to assist the County in verifying tonnage collected by the Franchise Hauler and providing information required by the County. Hauler will provide upon request refuse tonnage collected within the County, and outside the County (if relevant to confirming tonnage origination), separated by jurisdiction, by load type (residential, commercial, roll -off box), and by facility to which it was delivered (specify which landfill or transfer station). Hauler will provide customer service levels and route lists. Hauler will cooperate with County audits to verify reported origin of tonnage by making records and personnel available to the County and/or its auditors. Franchise Hauler Acknowledgement Page B-3 EXHIBIT C FRANCHISE APPLICATION TEMPLATE Franchisee Application Template Page C-1 City of Newport Beach �rM1� Solid Waste Franchise Application Hauler Information Legal Name & DBA: Business Address: Business Phone; Business email: Contact Name: Phone: Email: Newport Beach Business License#; Exp; Type of Organization (Check One) F�IndlviduaI (Owner/Operator) Limited Partnership Joint Venture Husband and Wife FILimited Liability Company FlUnincorporated Association - Corporation Business Trust other than aPartnership General Partnership FICo-Partners L1 Public Agency Desired Franchise: Tier I (Mixed Solid Waste) Mixed Waste ❑ "Dirty MRF" Processing Source Separated Dry Recyclables ❑ Food Scraps ❑ Green / Wood Waste ❑ Tier 11 (Construction & Demolition) M Name of Signatories Corp Resolution Needed Yes. No N/A Name Name ~...� Title Yes No N/A F Name Title S IId�Waste Collection Recycling Plans Applicants must complete a listing of solid waste collection and diversion plans (Attachment 1), The form must include, at a minimum, each waste stream; the types/sizes ofcontalners to be utilized; description of how waste is processed; a listing of any facility where material may be taken; and the ultimate disposition of any non-processible portion of the waste stream. List of Vehicles to Be Utilized Under the Franchise Applicants must list all vehicles to be used in performing services in the City (Attachment 2). Note: All vehicles must meet the equipment standards listed In the "Vehicles and Equipment" section of the franchise agreement. The franchise Agreement requires all vehicles and containers to be painted uniform colors. Color of Vehicles: Color of Containers: Designation of Hauler Representative Tile franchise requires that waste haulers designate a Hauler Representative to assist in managing your recycling and diversion programs and managage reporting requirements. This person will also be the main contact for City staff and the hauler's customers in Newport Beach. Please provide the following Information on the Hauler Representative: . Name: Title/Position: Direct Phone Number: Additional Information Required with Submission of Franchise Application 1. The applicant must complete Form 200/200D/200P as appropriate, describing officers, partners, etc., having legal responsibility for the franchise agreement. 2. A current Insurance certificate conforming to the requirements listed In the franchise agreement, Including the applicable endorsements. 3. If your company has not conducted solid waste hauling services in the City of Newport Beach for the past three (3) years, please provide information from the previous calendar year including tonnage collected.by activity (residential, commercial, industrial, construction and demolition); corresponding revenue for each activity; tonnage recycled or caused to be recycled by applicant's collection, transportation, and/or disposition of materials collected and categorized by method of recycling, material type recycled, and the,tonnage disposed by facility utilized.. In the past year, have you or your firm: Maintained all books of account pursuant to generally accepted accounting principles (GAAP)? Yes No I N/A Generated all income statements using either a cash or accrual accounting method? Yes No N/A . Truthfully and accurately reported all tonnage and/or the disposition of all materials collected in any jurisdiction where you are authorized to perform solid waste services? Yes , No N/A . u AUTHORIZED SIGNATURE(S) OF APPLICANT THE UNDERSIGNED ASSURES THAT THE INFORMATION PROVIDED ON THIS APPLICATION IS TRUE AND CORRECT AND THAT THE APPLICANT HAS READ AND UNDERSTOOD HIS OR HER OBLIGATIONS UNDER ANY FRANCHISE OBTAINED BASED ON THIS APPLICATION. A. If the applicant is a sole proprietor, the application shall be signed by the proprietor. B. If the applicant is a partnership, the application shall be signed by each partner. C. If the application Is a firm, association, corporation, county, city, public agency, or other governmental entity, the application shall be signed by the chief executive officer or the Individual legally responsible for representing the agency. D. The applicants) affirms that the facts contained In this application and supporting documents are true and correct. (Signature) (Title) (Date) (Signature) (Title) (Date) (Signature) (Title) (Date) City of Newport Beach NON-EXCLUSIVE SOLID WASTE FRANCHISE APPLICATION ADMINISTRATIVE ORGANIZATION & DELEGATION INFORMATION - CORPORATIONS (Form 200 — 2017) INSTRUCTIONS: This form most be updated and submitted to the City each time there is a change in officers or change In the corporation. CORPORATION Name (as listed with the Secretary of State) Chief Executive officer Incorporation Dale Place of Incorporation Principal office of business: Address City Zip Code Telephone Contact Person Title Telephone Names and addresses of all persons who own ten per cent (10%) or more of stock In corporation. Governing Board of Directors a. Number of Board Members c. Frequency of Meetings b: Term of Office d, Method of Selection Board Officers and Members USE A SEPARATE SHEET FOR ADDITIONAL NAMES Office Name Business Address & City & Zip Code Telephone Number Term Expiration President Vice -President Secretary Treasurer 1,1{Ile+ City of Newport Beach NON-EXLUSIVE SOLID WASTE FRANCHISE APPLICATION ADMINISTRATIVE ORGANIZATION & DELEGATION INFORMATION - CORPORATIONS PARTNERSHIPS, SOLE PROPRIETOR, AND OTHER ASSOCIATIONS (Form 200P — 2017) PARTNERSHIPS 1. Attach a copy of the partnership agreement 2. Partners Type of Partnership Name Business Address, City and Zip Code 1st Partner r ~ Gonnre! ❑ Limited ❑ General 2nd Partner ❑ Limited 3rd Partner General LlmiNd El General 41h Partner [J -Limned Contact Person 711le Telephone # SOLE PROPRIETOR/OTHER ASSOCIATIONS Sole Proprletorsfother associations must also provide a list of all person(s) legally responslblo for the organization, the contact porson, and appropriate legal +u documents (fictitious name statement, business license) which set forth legal responsibility of the organization and accountability for opening the program. Use the following space or attach a separate sheet, `c fL c CL c I E V 1 d E E E, E a c cc �c c e y L L F C4 4 � � Cm � v P D N O O V S H N m Ooi n O m m ?y ro v 12 3 Ey O m y p I H 3 x; l x 1A LL S C } •g� C •�� 6 E z �a CL IA o E ++ i dA a a d G m O. u G N z LL a 6 al v 3 -o a 'o u L v m N m O CL 3 43)Z w - O ice+ m V Q. 2 4 EXHIBIT D INSURANCE REQUIREMENTS 1. Provision of Insurance. Without limiting Franchisee's indemnification of City, and prior to commencement of Work, Franchisee shall obtain, provide and maintain at its own expense during the term of this Agreement, policies of insurance of the type and amounts described below and in a form satisfactory to City. Franchisee agrees to provide insurance in accordance with requirements set forth here. If Franchisee uses existing coverage to comply and that coverage does not meet these requirements, Franchisee agrees to amend, supplement or endorse the existing coverage. 2. Acceptable Insurers. All insurance policies shall be issued by an insurance company currently authorized by the Insurance Commissioner to transact business of insurance in the State of California, with an assigned policyholders' Rating of A- (or higher) and Financial Size Category Class VII (or larger) in accordance with the latest edition of Best's Key Rating Guide, unless otherwise approved by the City's Risk Manager. 3. Coverage Requirements. A. Workers' Compensation Insurance. Franchisee shall maintain Workers' Compensation Insurance, statutory limits, and Employer's Liability Insurance with limits of at least One Million Dollars ($1,000,000) each accident for bodily injury by accident and each employee for bodily injury by disease in accordance with the laws of the State of California, Section 3700 of the Labor Code. Franchisee shall submit to City, along with the certificate of insurance, a Waiver of Subrogation endorsement in favor of City, its officers, officials, employees and agents. B. General Liability Insurance. Franchisee shall maintain commercial general liability insurance, and if necessary umbrella liability insurance, with coverage at least as broad as provided by Insurance Services Office form CG 00 01, in an amount not less than One Million Dollars ($1,000,000) per occurrence, Two Million Dollars ($2,000,000) general aggregate and Two Million Dollars ($2,000,000) completed operations aggregate. The policy shall cover liability arising from premises, operations, products -completed operations, personal and advertising injury, and liability assumed under an insured contract (including the tort liability of another assumed in a business contract) with no endorsement or modification limiting the scope of coverage for liability assumed under a contract. C. Automobile Liability Insurance. Franchisee shall maintain automobile insurance at least as broad as Insurance Services Office form CA 00 01 covering bodily injury and property damage for all activities of the Franchisee arising out of or in connection with Work to be performed under this Agreement, including coverage for any owned, hired, non -owned or rented vehicles, in an amount not less than One Million Dollars ($1,000,000) combined single limit for each accident. 4. Other Insurance Requirements. The policies are to contain, or be endorsed to contain, the following provisions: Insurance Requirements Page D-1 A. Waiver of Subrogation. All insurance coverage maintained or procured pursuant to this Agreement shall be endorsed to waive subrogation against City, its elected or appointed officers, agents, officials, employees and volunteers or shall specifically allow Franchisee or others providing insurance evidence in compliance with these requirements to waive their right of recovery prior to a loss. Franchisee hereby waives its own right of recovery against City, and shall require similar written express waivers from each of its subcontractors. B. Additional Insured Status. All liability policies including general liability, excess liability, pollution liability, and automobile liability, but not including professional liability (if required), shall provide or be endorsed to provide that City and its officers, officials, employees, and agents shall be included as insureds under such policies. C. Primary and Non Contributory. All liability coverage shall apply on a primary basis and shall not require contribution from any insurance or self-insurance maintained by City. D. Notice of Cancellation. All policies shall provide City with thirty (30) days notice of cancellation (except for nonpayment for which ten (10) days notice is required) or nonrenewal of coverage for each required coverage. 5. Additional Agreements Between the Parties. The parties hereby agree to the following: A. Evidence of Insurance. Franchisee shall provide certificates of insurance to City as evidence of the insurance coverage required herein, along with a waiver of subrogation endorsement for workers' compensation and other endorsements as specified herein for each coverage. Insurance certificates and endorsement must be approved by City's Risk Manager prior to commencement of performance. Current certification of insurance shall be kept on file with City at all times during the term of this contract. City reserves the right to require complete, certified copies of all required insurance policies, at any time. B. City's Right to Revise Requirements. The City reserves the right at any time during the term of this Agreement to change the amounts and types of insurance required by giving the Franchisee ninety (90) days advance written notice of such change. C. Right to Review Subcontracts. Franchisee agrees that upon request, all contracts with subcontractors or others with whom Franchisee enters into contracts with on behalf of City will be submitted to City for review. Failure of City to request copies of such contracts will not impose any liability on City, or its employees. D. Enforcement of Contract Provisions. Franchisee acknowledges and agrees that any actual or alleged failure on the part of the City to inform Franchisee of non-compliance with any requirement imposes no additional obligations on the City nor does it waive any rights hereunder. E. Requirements not Limiting. Requirements of specific coverage features or limits contained in this Section are not intended as a limitation on coverage, limits or other requirements, or a waiver of any coverage normally provided by any insurance. Specific reference to a given coverage feature is for purposes of clarification Insurance Requirements Page D-2 only as it pertains to a given issue and is not intended by any party or insured to be all inclusive, or to the exclusion of other coverage, or a waiver of any type. F. Self-insured Retentions. Any self-insured retentions must be declared to and approved by City. City reserves the right to require that self-insured retentions be eliminated, lowered, or replaced by a deductible. Self-insurance will not be considered to comply with these requirements unless approved by City. G. City Remedies for Non Compliance. If Franchisee or any subcontractor fails to provide and maintain insurance as required herein, then City shall have the right but not the obligation, to purchase such insurance, to terminate this Agreement, or to suspend Franchisee's right to proceed until proper evidence of insurance is provided. Any amounts paid by City shall, at City's sole option, be deducted from amounts payable to Franchisee or reimbursed by Franchisee upon demand. H. Timely Notice of Claims. Franchisee shall give City prompt and timely notice of claims made or suits instituted that arise out of or result from Franchisee's performance under this Agreement, and that involve or may involve coverage under any of the required liability policies. City assumes no obligation or liability by such notice, but has the right (but not the duty) to monitor the handling of any such claim or claims if they are likely to involve City. I. Franchisee's Insurance. Franchisee shall also procure and maintain, at its own cost and expense, any additional kinds of insurance, which in its own judgment may be necessary for its proper protection and prosecution of the Franchise. Insurance Requirements Page D-3 CERTIFICATE OF INSURANCE CHECKLIST City of Newport Beach This checklist is comprised of requirements as outlined by the City of Newport Beach. * Date Received: 12/26/18 Date Completed: 2/6/19 Sent t Company/Person required to have certificate: Type of contract: Dept./Contact Received From: o: Joan Joan By: Jan Tight Quarters, Inc. Waste Hauler I. GENERAL LIABILITY EFFECTIVE/EXPIRATION DATE: 7/14/18 — 7/14/19 A. INSURANCE COMPANY: Nautilus Insurance Company B. AM BEST RATING (A-: VII or greater): A+ / XV INSURANCE COMPANY: Great Divide Insurance Company C. ADMITTED Company (Must be California Admitted): B. Is Company admitted in California? ❑ Yes ® No D. LIMITS (Must be $1 M or greater): What is limit provided? $1M/$2M$2M E. ADDITIONAL INSURED ENDORSEMENT — please attach ® Yes ❑ No F. PRODUCTS AND COMPLETED OPERATIONS (Must Is Company admitted in California? include): Is it included? (completed Operations status does ❑ No D. not apply to Waste Haulers or Recreation) ® Yes ❑ No G. ADDITIONAL INSURED FOR PRODUCTS AND UM, $2M min for Waste Haulers): What is limits provided? COMPLETED OPERATIONS ENDORSEMENT (completed Operations status does not apply to Waste Haulers) ® Yes ❑ No H. ADDITIONAL INSURED WORDING TO INCLUDE (The City its officers, officials, employees and volunteers): Is it N/A included? ® Yes ❑ No I. PRIMARY & NON-CONTRIBUTORY WORDING (Must be ® Yes ❑ No included): Is it included? ® Yes ❑ No J. CAUTION! (Confirm that loss or liability of the named insured ❑ No H. is not limited solely by their negligence) Does endorsement ® N/A ❑ Yes include "solely by negligence" wording? ❑ Yes ® No K. ELECTED SCMAF COVERAGE (RECREATION ONLY): ® N/A ❑ Yes ❑ No L. NOTICE OF CANCELLATION: ❑ N/A ® Yes ❑ No II. AUTOMOBILE LIABILITY EFFECTIVE/EXPIRATION DATE: 7/14/18 — 7/14/19 A. INSURANCE COMPANY: Great Divide Insurance Company B. AM BEST RATING (A-: VII or greater) A+ / XV C. ADMITTED COMPANY (Must be California Admitted): Is Company admitted in California? ® Yes ❑ No D. LIMITS - If Employees (Must be $1 M min. BI & PD and $500,000 UM, $2M min for Waste Haulers): What is limits provided? $1,000,000 E LIMITS Waiver of Auto Insurance / Proof of coverage (if individual) (What is limits provided?) N/A F. ADDITIONAL INSURED WORDING: ❑ N/A ® Yes ❑ No G. PRIMARY & NON-CONTRIBUTORY WORDING: ❑ N/A ® Yes ❑ No H. HIRED AND NON -OWNED AUTO ONLY: ® N/A ❑ Yes ❑ No I. NOTICE OF CANCELLATION: ❑ N/A ® Yes ❑ No III. WORKERS' COMPENSATION EFFECTIVE/EXPIRATION DATE: 1/1/19 -1/1/20 A. B. C. D. E. F. G. H. INSURANCE COMPANY: State Compensation Insurance Fund AM BEST RATING (A- : VII or greater): Not Rated ADMITTED Company (Must be California Admitted): WORKERS' COMPENSATION LIMIT: Statutory EMPLOYERS' LIABILITY LIMIT (Must be $1 M or greater) WAIVER OF SUBROGATION (To include): Is it included? SIGNED WORKERS' COMPENSATION EXEMPTION FORM: NOTICE OF CANCELLATION: ADDITIONAL COVERAGE'S THAT MAYBE REQUIRED IV. PROFESSIONAL LIABILITY V POLLUTION LIABILITY VI BUILDERS RISK HAVE ALL ABOVE REQUIREMENTS BEEN MET? IF NO, WHICH ITEMS NEED TO BE COMPLETED? ® Yes ❑ No ® Yes ❑ No $1,000,000 ® Yes ❑ No ® N/A ❑ Yes ❑ No ❑ N/A ® Yes ❑ No ® N/A ❑ Yes ❑ No ® N/A ❑ Yes ❑ No ® N/A ❑ Yes ❑ No ® Yes ❑ No Broker of record for the City of Newport Beach RISK MANAGEMENT APPROVAL REQUIRED (Non -admitted carrier rated less than Self Insured Retention or Deductible greater than $ ) ❑ N/A ❑ Yes ❑ No Reason for Risk Management approval/exception/waiver: Risk Management approval required for non -admitted General Liability carrier. 8/14/18 Risk Management approved use of non -admitted carrier. Approved: Risk Management " Subject to the terms of the contract. Date CERTIFICATE OF INSURANCE CHECKLIST City of Newport Beach This checklist is comprised of requirements as outlined by the City of Newport Beach. * Date Received: 9/8/17 Dept./Contact Received From: Joan Date Completed: 11/20/17 Sent to: Raymund/Joan By: Jan Company/Person required to have certificate: Tight Quarters Inc. Type of contract: All Other I. GENERAL LIABILITY EFFECTIVE/EXPIRATION DATE: 7/14/17 - 7/14/18 A. INSURANCE COMPANY: Interstate Fire & Casualty B. AM BEST RATING (A- : VII or greater): A+ / XV C. ADMITTED Company (Must be California Admitted): Is Company admitted in California? ❑ Yes ® No D. LIMITS (Must be $1 M or greater): What is limit provided? $1M/$2M E. ADDITIONAL INSURED ENDORSEMENT — please attach ® Yes ❑ No F. PRODUCTS AND COMPLETED OPERATIONS (Must include): Is it included? (completed Operations status does N/A F. not apply to Waste Haulers or Recreation) ® Yes ❑ No G. ADDITIONAL INSURED FOR PRODUCTS AND ❑ N/A ® Yes ❑ No G. COMPLETED OPERATIONS ENDORSEMENT (completed ❑ N/A ❑ Yes ® No H. Operations status does not apply to Waste Haulers) ® Yes ❑ No H. ADDITIONAL INSURED WORDING TO INCLUDE (The City its officers, officials, employees and volunteers): Is it included? ® Yes ❑ No 1. PRIMARY & NON-CONTRIBUTORY WORDING (Must be included): Is it included? ® Yes ❑ No J. CAUTION! (Confirm that loss or liability of the named insured is not limited solely by their negligence) Does endorsement include "solely by negligence" wording? ❑ Yes N No K. ELECTED SCMAF COVERAGE (RECREATION ONLY): ® N/A ❑ Yes ❑ No L. NOTICE OF CANCELLATION: ❑ N/A ® Yes ❑ No II. AUTOMOBILE LIABILITY EFFECTIVE/EXPIRATION DATE: 7/14/17 - 7/14/18 A. INSURANCE COMPANY: Interstate Fire & Casualty B. AM BEST RATING (A-: VII or greater) A+/XV C. ADMITTED COMPANY (Must be California Admitted): Is Company admitted in California? ❑ Yes ® No D. LIMITS - If Employees (Must be $1 M min. BI & PD and $500,000 UM, $2M min for Waste Haulers): What is limits provided? $1,000,000 E LIMITS Waiver of Auto Insurance / Proof of coverage (if individual) (What is limits provided?) N/A F. PRIMARY & NON-CONTRIBUTORY WORDING (For Waste Haulers only): ❑ N/A ® Yes ❑ No G. HIRED AND NON -OWNED AUTO ONLY: ❑ N/A ❑ Yes ® No H. NOTICE OF CANCELLATION: 0 N/A ® Yes ❑ No III. WORKERS' COMPENSATION EFFECTIVE/EXPIRATION DATE: 1/1/17 -1/1/18 A. INSURANCE COMPANY: ACE American Insurance Company B. AM BEST RATING (A-: VII or greater): A++ / XV C. ADMITTED Company (Must be California Admitted): ® Yes ❑ No D. WORKERS' COMPENSATION LIMIT: Statutory ® Yes ❑ No E. EMPLOYERS' LIABILITY LIMIT (Must be $1M or greater) $2,000,000 F. WAIVER OF SUBROGATION (To include): Is it included? ® Yes ❑ No G. SIGNED WORKERS' COMPENSATION EXEMPTION FORM: ® N/A ❑ Yes ❑ No H. NOTICE OF CANCELLATION: ❑ N/A ® Yes ❑ No ADDITIONAL COVERAGE'S THAT MAYBE REQUIRED IV. PROFESSIONAL LIABILITY V POLLUTION LIABILITY V BUILDERS RISK HAVE ALL ABOVE REQUIREMENTS BEEN MET? IF NO, WHICH ITEMS NEED TO BE COMPLETED? Ap 11/20/17 Agent of Alliant Insurance Services Date Broker of record for the City of Newport Beach ® N/A ❑ Yes ❑ No ® N/A ❑ Yes ❑ No ® N/A ❑ Yes ❑ No ® Yes ❑ No RISK MANAGEMENT APPROVAL REQUIRED (Non -admitted carrier rated less than Self Insured Retention or Deductible greater than $ ) ❑ N/A ® Yes ❑ No Reason for Risk Management approval/exception/waiver: Risk Management approval needed due to GL/Auto carrier being Non- Admitted. 9/11/17 Risk Management approved use of non -admitted General Liability & Auto Liability carrier. Approved: Risk Management Date * Subject to the terms of the contract. *A:I W1194 RECYCLING PROGRAM Franchisee shall provide an AB 341 Generator all services necessary to support compliance with, and City's enforcement of, AB 341 requirements for Recycling of Municipal Solid Waste and Recyclable Materials. Franchisee's Recycling Program shall include, but not be limited to: (A) Informing the AB 341 Generator of AB 341's Recycling requirements; (B) Providing public education and training materials to the AB 341 Generator explaining (1) the operation of the Recycling Program, and (2) the materials that may be placed in the Recycling Container(s). (C) Making available the following sizes and types of Containers for storage of Municipal Solid Waste and Recyclable Materials: thirty (35) gallon, sixty-five (65) gallon, or ninety- five (95) gallon Carts, two (2), three (3), four (4) and six (6) cubic yard Bins; and two (2), three (3), and four (4) cubic yard split bins; and compactors in the following sizes: three (3) cubic yard and four (4) cubic yard; (D) Consulting with AB 341 Generators to determine, provide, and distribute appropriate Containers, Bins, Roll Off Bins, or compactors; (E) Providing AB 341 Generators with wheeled carts or other Containers and/or Bins, Roll Off Boxes or compactors as necessary for the segregation and storage of Food Scraps to be diverted, which, at a minimum, complies with Section 11.D of the Agreement; (F) Working and coordinating with the AB 341 Generator, or its designee, to ensure a smooth and effective Recycling Program at each Commercial Premises and Multifamily Dwelling for which Franchisee is providing Municipal Solid Waste and/or Recyclable Materials collection; and (G) Processing collected Recyclable Materials and Processable Municipal Solid Waste at a City -approved Clean or Dirty MRF. Recycling Program Page E-1 EXHIBIT F FOOD SCRAP DIVERSION PROGRAM For those Food Scrap Generators subject to AB 1826, Franchisee shall provide all services necessary to support compliance with, and City's enforcement of, AB 1826 requirements for Diversion of Food Scraps. Franchisee's Food Scrap Diversion Program shall include, but not be limited to: (A) Informing the Food Scrap Generator of AB 1826's Food Scrap Diversion requirements; (B) Providing public education and training materials to the Food Scrap Generator explaining (1) the operation of the Recycling Program, and (2) the materials that may be placed in the Recycling Container(s). (C) Making available the following sizes and types of Containers for Food Scrap, storage: thirty (35) gallon, sixty-five (65) gallon, or ninety-five (95) gallon Carts, two (2), cubic yard Bins; and two (2) cubic yard Split Bins. (D) Consulting with Food Scrap Generators to determine, provide, and distribute appropriate Containers, Bins, Roll Off Bins, or compactors; (E) Providing Food Scrap Generators with wheeled carts or other Containers and/or Bins, Roll Off Boxes or compactors as necessary for the segregation and storage of Food Scraps to be diverted, which, at a minimum, complies with Section 11.D of the Agreement; and (F) Working and coordinating with the Food Scrap Generator, or its designee, to ensure a smooth and effective Food Scrap Diversion Program and the Diversion of substantially all Food Scraps generated at each Commercial Premises for which Franchisee is providing Food Scrap collection. Construction and Demolition Debris Recycling Program Page G-1 EXHIBIT G CONSTRUCTION AND DEMOLITION DEBRIS RECYCLING PROGRAM Franchisee shall provide all services necessary to support Customer compliance with, and City's enforcement of, the California Green Building Standards Code requirements for Diversion of Construction and Demolition Debris. Franchisee's Construction and Demolition Debris Recycling Program shall include, but not be limited to: (A) Informing all Customers requesting Construction and Demolition Debris hauling services of the requirements of the California Green Building Standards Code; (B) Providing Containers and/or Bins, Roll Off Boxes, and Compactors as needed for storage and transport of single -material Construction and Demolition Debris, and commingled Construction and Demolition Debris; (C) Providing Collection service of all Containers on a timely basis, which, at a minimum, complies with Section 11.D of the Agreement; and (D) Working and coordinating with Customer, or customer's recycling coordinator, to ensure a smooth and effective Recycling program and the Diversion of a minimum of sixty-five percent (65%) of all Construction and Demolition Debris generated at each of Customer's job sites for which Franchisee is providing Construction and Demolition Debris Collection service. Franchisee shall inform Customers utilizing Containers and/or Bins and Roll Off Boxes on a temporary basis, that materials being generated must be recycled pursuant to the requirements of City Code and the California Green Building Standards Code. Construction and Demolition Debris Recycling Program Page G-1 ACCEPTANCE OF NON-EXCLUSIVE SOLID WASTE MANAGEMENT FRANCHISE WHEREAS, on October 10, 2017, the City Council of the City of Newport Beach ("City") adopted Ordinance No. 2017-16, entitled An Ordinance of the City Council of the City of Newport Beach, California, Granting Non -Exclusive Solid Waste Franchises to Provide Commercial Solid Waste Handling Services with the City of Newport Beach, which granted Tight Quarters, Inc. ("Franchisee") a non-exclusive franchise to operate, maintain, and provide commercial solid waste handling services along, across and over City's public streets, ways, alleys and places ("Franchise"); WHEREAS, pursuant to City Charter Section 1303, any Franchise granted by the City shall not become effective unless and until written acceptance is filed by Franchisee with the City Clerk within ten (10) days after adoption of the ordinance granting the franchise; and WHEREAS, Franchisee wishes to accept the Franchise granted by Ordinance No. 2017-16 by filing written acceptance thereof. NOW THEREFORE, Franchisee hereby accepts the Franchise granted by Ordinance No. 2017- 16. Franchisee agrees such acceptance operates as an abandonment of any such prior franchises, rights and privileges within City limits, as such limits shall at any time exist, and shall constitute a continuing agreement of Franchisee that if and when the City shall thereafter annex, or consolidate with, additional territory, any and all franchises, rights and privileges owned by Franchisee therein shall likewise be deemed to be abandoned within the limits of such territory. Date: 10/20/17 CITY CLERK'S VERIFICATION OF ACCEPTANCE By: Name: An Lica Wmas Title: Office Manager I, Leilani Brown, City Clerk, certify that the above acceptance of the Franchise granted by Ordinance No. 2017-16 was received by me on October _3 2017, at �'2 a.m./(�.m,/ , �/ AMENDMENT NO. ONE TO COMMERCIAL SOLID WASTE COLLECTION NONEXCLUSIVE FRANCHISE AGREEMENT BETWEEN THE CITY OF NEWPORT BEACH AND TIGHT QUARTERS, INC. THIS AMENDMENT NO. ONE TO COMMERCIAL SOLID WASTE COLLECTION NONEXCLUSIVE FRANCHISE AGREEMENT ("Amendment No. One") is made and entered into as of this 28th day of February, 2017 ("Effective Date"), by and between the CITY OF NEWPORT BEACH, a California municipal corporation and charter city ("City"), and TIGHT QUARTERS, INC., a California corporation ("Franchisee"), whose address is 2031 S. Anne Street, Santa Ana, California 92704, and is made with reference to the following: RECITALS A. On March 1, 2007, City and Franchisee entered into a Nonexclusive Franchise Agreement for commercial solid waste collection services in the City ("Agreement"). B. The Agreement is set to expire on March 1, 2017. C. The parties desire to enter into this Amendment No. One to extend the term of the Agreement to November 8, 2017. NOW, THEREFORE, it is mutually agreed by and between the undersigned parties as follows: 1. TERM Section 2 of the Agreement is amended in its entirety and replaced with the following: "The term of this Agreement shall commence on the Effective Date, and shall terminate on November 8, 2017 ("Termination Date"), unless terminated earlier as set forth herein ("Term"). 2. INTEGRATED CONTRACT Except as expressly modified herein, all other provisions, terms, and covenants set forth in the Agreement shall remain unchanged and shall be in full force and effect. [SIGNATURES ON NEXT PAGE] Tight Quarters, Inc. Page 1 IN WITNESS WHEREOF, the parties have caused this Amendment No. One to be executed on the dates written below. APPROVED AS TO FORM: CITY ATTORNEY'S FFICE Date: Aaron• AA'W 2.1t.11 AttorneyCity ATTEST: � �' <�� Date: By: Leilani I. Brown v City Clerk U iO WANt r 1 CITY OF NEWPORT BEACH, a California municipal corporation Dater Dave ff City Manager FRANCHISEE:TIGHT QUARTERS, INC., a California corporation Date: By: .� Te or o am ief of Financial Officer [END OF SIGNATURES] Officer and Chief Tight Quarters, Inc. Page 2 COMMERCIAL SOLID WASTE COLLECTION NONEXCLUSIVE FRANCHISE AGREEMENT BETWEEN THE CITY OF NEWPORT BEACH AND SOLID WASTE HAULERS LISTED IN EXHIBIT A. This Nonexclusive Franchise Agreement for Commercial Solid Waste Handling Services ("Agreement") is entered into this I" day of March 2007 ("Effective Date") by and between the CITY OF NEWPORT BEACH, a municipal corporation and Charter City organized and existing under the laws of the State of California ("City"), and Tight Quarters, Inc., a California Corporation whose address is 2031 S. Anne Street, Santa Ana, California, 92704 ("Franchisee") and is made with reference to the following: RECITALS This Agreement is entered into on the basis of the following facts: A. Franchisee has provided or is capable of providing commercial solid waste collection services in the City. B. Pursuant to Article XIII of the City Charter, Chapter 12.63 of the City of Newport Beach Municipal Code ("Code"), and Sections 49300 and 49500-49523 of the Public Resources Code, the City is authorized to enter into nonexclusive franchise agreements for commercial solid waste handling services. C. Pursuant to this Agreement, City desires to authorize Franchisee to provide nonexclusive commercial solid waste handling services within the City. Franchisee shall furnish all personnel, equipment, and supplies necessary to collect, transport, or otherwise remove and dispose of solid waste and recyclable materials from commercial, institutional, or industrial premises within the City. D. The City Council has determined that the grant of a nonexclusive franchise is in the public interest. NOW, THEREFORE, CITY AND FRANCHISEE DO HEREBY AGREE AS FOLLOWS: SECTION 1. GRANT OF FRANCHISE A. By Ordinance No. 2007-7, City has granted to Franchisee a nonexclusive franchise authorizing 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 public right-of-ways for such purpose ("Franchise"). Franchisee acknowledges that the Franchise is not exclusive and that the Franchise is subject to the provisions of Article XIII of the City Charter, Ordinance No. 2007-7, Chapter 12.63 of the Code, and the terms and conditions of this Agreement. 1 B. Upon the Effective Date of this Agreement, the parties agree that any prior authorization relating to the conduct of commercial solid waste handling services in the City arising under and pursuant to any prior franchise issued to Franchisee shall be deemed to be terminated and of no further force or effect. SECTION 2. TERM OF FRANCHISE The term of this Agreement shall commence on the Effective Date, and shall terminate on the 1st day of March, 2017 ("Termination Date"), unless terminated earlier as set forth herein ("Term"). SECTION 3. DEFINITIONS Unless otherwise defined herein, 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. SECTION 4. FRANCHISE FEES A. During the term of the Franchise, Franchisee shall pay to City franchise fees for the privilege of providing commercial solid waste handling services in the City of Newport Beach and for the use of public streets, right-of-ways and places for such purposes. The franchise fee that Franchisee shall pay to the City shall be ten and a half percent (10.5%) of the gross receipts for all commercial solid waste handling services provided by the Franchisee in the City of Newport Beach ("Franchise Fees"). One half percent (.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 Resources Code Section 41901 or any successor provision. B Franchise Fees shall be paid quarterly on forms prescribed by the Administrative Services Director. C. Franchisee shall pay all required* Franchise Fees to: City of Newport Beach Attn: Administrative Services Director 3300 Newport Boulevard Newport Beach, CA 92658 D. Franchise Fees shall be due and payable on the thirtieth (30th) day of the month following the end of each quarter. Because the Effective Date for this Agreement is starting in the middle of a quarter, the first payment of the Franchise Fees due and payable to the City from the Effective Date to the end of the first quarter (i.e. March 31, 2007) will be due and payable on the thirtieth (30th) day of April 2007. E. The parties hereto agree that Franchisee's failure to make Franchise Fee and Environmental Liability Fund Fee, as set forth in Section 8 (hereinafter the Franchise Fee and 2 E. The parties hereto agree that Franchisee's failure to make Franchise Fee and Environmental Liability Fund Fee, as set forth in Section 8 (hereinafter the Franchise Fee and Environmental Liability Fund Fee shall collectively be referred to as "Fee(s)"), payments within the time allowed will result in damages being sustained by City. Such damages are, and will continue to be, impracticable and extremely difficult to determine. If Fees are not paid by Franchisee when due then in addition to the Fees, Franchisee shall pay a late charge in an amount equal to ten percent (10%) of the amount of the Fee that was not timely paid by Franchisee. If Franchisee fails to pay delinquent Fees within thirty (30) days of the date due, Franchisee shall pay a second (2nd) late charge in an amount equal ten percent (10%) on both the amount of the Fee outstanding and the first late charge. The second (2nd) late charge shall be in addition to the first (Is) late charge. Execution of this Agreement shall constitute agreement by the parties that the late charges set forth in this subsection is the minimum value of the costs and actual damages caused by the failure of the Franchisee to pay the Fees within the allotted time. Such sum is liquidated damages and shall not be construed as a penalty. In addition to the late charges imposed on Franchisee for failing to pay Fees in accordance with this Agreement, Franchisee shall pay interest on the amount of Fees and late charges due and owing at the rate of one and one-half percent (1% %) per month for each month or portion of a month that the Fees and late charges remain unpaid. F. In the event Franchisee believes that it has paid 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 authorized by the Administrative Services Director in writing. G. Each Franchise Fee payment shall be accompanied by a written statement described in Section 12.63.090 of the Code on a form provided by the Administrative Services Director. No statement filed under this Section shall be conclusive as to the matters set forth in such statement, nor shall the filing of such statement preclude the City from collecting by appropriate action the sum that is actually due and payable. H. Franchisee may separately list the actual Franchise Fee rate and Environmental Liability Fund Fee rate as established by this Section, and any other fees required by this Agreement, on its invoices to its customers. In no case may the Franchise Fee rate or Environmental Liability Fund Fee rate listed by the Franchisee on the invoice exceed the actual Franchise Fee or Environmental Liability Fund Fee rates imposed by the City. SECTION 5. CASH DEPOSIT Franchisee shall, prior to the placement of any commercial solid waste container on public property, provide City with a cash deposit in the sum of Five Thousand Dollars ($5,000.00) to ensure compliance with the duties and obligations imposed by the provisions of the Code, regulations adopted by the City Manager or his designee and this Agreement. 3 SECTION 6. DISPOSAL OF SOLID WASTE A. Franchisee shall comply with all recycling and diversion requirements imposed by law, ordinance, or regulation on the City and/or Franchisee. On a quarterly basis Franchisee shall divert solid waste collected from landfills as follows: Year 1: fifty percent (50%); Year 2: fifty- one percent (51%); Year 3: fifty-two percent (52%); Year 4: fifty-three percent (53%); Year 5: fifty-four percent (54%); Years 6-10: fifty-five percent (55%). In no event shall Franchisee deposit more solid waste at any landfill during any calendar quarter than the required diversion rate mandated by the City. In the event new or additional diversion requirements are imposed by law, ordinance or regulation on City and/or Franchisee, the City shall have the right to require Franchisee to divert additional solid waste from landfills by providing Franchisee with ten (10) days written notice of the new diversion requirements. Upon request of the General Services Director, Franchisee shall provide all documents and information requested by the General Services Director to prove that Franchisee has complied with this subsection, any applicable law, ordinance, regulation, or condition related to recycling and diversion of solid waste. B. Franchisee shall dispose of solid waste collected or transported by Franchisee only by taking such solid waste to a State certified/licensed landfill, State certified/licensed transfer station, State certified/licensed recycling facility or State certified/licensed materials recovery facility which is lawfully authorized to accept that specific type of solid waste material. Franchisee shall not dispose of solid waste by depositing it on any land, (except a permitted facility) whether public or private, or in any river, stream or other waterway, or in any sanitary sewer or storm drainage 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. C. All solid waste, in addition to recyclables, collected by Franchisee shall become the property of Franchisee upon placement by the customer for collection. If Franchisee violates the terms in Section 6(A) and Section 6(B) above, Franchisee agrees that the City has the future right to direct that solid waste be delivered to a permitted disposal facility designated by City. This exercise of "flow control' by the City shall be made upon at least 30 days prior written notice to Franchisee, and written notice shall include the violation(s) prompting the City's action regarding "flow control." Failure to comply with the recycling/diversion requirements and delivery/disposal of materials to a certified/licensed facility shall be a material breach of this agreement. D. Franchisee shall include as a condition to its contractual agreement with its customers a provision prohibiting disposal of hazardous waste in any of Franchisees vehicles or disposal bins/containers, and other equipment. E. 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 length of the term of the Franchise, and shall be made available to the City upon request. El SECTION 7. REPORTS A. Franchisee shall submit to City monthly reports stating the total amount (in tons) of solid waste which Franchisee collected in the City of Newport Beach during the reportable month; the total weight (in tons) of solid waste disposed of by Franchisee at landfills and transfer stations which Franchisee collected in the City of Newport Beach during the reportable month; 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 month which Franchisee collected in the City of Newport Beach; the name and location of all solid waste and recycling facilities where City of Newport Beach materials were delivered; such other tonnage or other information as requested by the General Services Director including weigh tickets, recycling records; and any complaints received by the Franchisee. Such monthly reports shall be prepared on such form as required by the General Services Director. Each monthly report shall be submitted on or before the 15th day of the month following the end of the month (i.e. report due April 15 for first month after the Effective Date) and submitted to: General Services Director City of Newport Beach 3300 Newport Blvd. Newport Beach, CA 92663 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, Franchisee 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 in addition to any Franchise Fees or other charges payable by Franchisee under this Agreement. C. Franchisee shall comply with all recycling and diversion requirements imposed by law, ordinance, or regulation on the City. Monthly reports stating the total amount (in tons) of solid waste which Franchisee landfilled, recycled and collected should accurately reflect the diversion rate required by the City (Year 1- 50%, Year 2- 51%, Year 3- 52%, Year 4- 53%, Year 5- 54%, Years 6-10- 55%). At the end of each quarter, monthly reports will be evaluated for compliance with City diversion requirements. Failure to comply with the recycling and diversion requirements shall be a material breach of this Agreement. SECTION 8. ENVIRONMENTAL LIABILITY FUND FEE A. City and Franchisee acknowledge the potential liability which can result from commercial 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 of Newport Beach 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 of Newport Beach, 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. 5 I- r , The Fund shall be used to purchase insurance which will insure the City against environmental liability which may be imposed upon City as a result of Franchisee's activities under this Franchise and/or shall be used to pay environmental liability costs and expenses arising from or related in any way to commercial solid waste handling services. The Fund shall not be commingled with or included in the City's General Fund. B. The fee that Franchisee shall pay to the City Environmental Liability Fund shall be five and a half percent (5.5%) of the gross receipts for all commercial solid waste handling services provided by the Franchisee in the City of Newport Beach ("Environmental Liability Fund Fee(s)"). Payment of the Environmental Liability Fund Fee shall be made concurrently with the payment of the Franchise Fees specified in Section 4 of this Agreement. Franchisee agrees to pay late charges and interest as provided in Section 4(E) of this Agreement if Franchisee fails to pay the Environmental Liability Fund Fee within the time frames set forth herein. C. Compliance with this obligation shall not limit Franchisee's indemnification as set forth in Section 11, however, the indemnification provisions of 11(C) shall be secondary to the Fund established by this Section or any insurance purchased with the funds provided. SECTION 9. FRANCHISEE'S RECORDS A. Franchisee shall keep and maintain books of account, income statements, tonnage reports and supporting documents and all other documents that relate in any way to business transactions conducted by Franchisee in connection with the commercial solid waste handling services of Franchisee under this Agreement during the Term of this Agreement and for a minimum period of three (3) years, or for any longer period required by law, after the Termination Date. Such records shall be kept at Franchisee's place of business and shall be clearly identifiable B. Franchisee shall allow a representative of City to examine, audit and make transcripts or copies of the books of account, income statements, tonnage reports and supporting documents, and all other documents that relate in any way to business transactions conducted by Franchisee in connection with the commercial solid waste handling services of Franchisee under this Agreement at Franchisee's place of business during normal business hours within three (3) working days of the City Manager, or his designees request or demand to inspect and/or audit these records. The purpose of such inspection and/or audit shall be for verification of the Fees paid by Franchisee under this Agreement, and the accuracy thereof; and for verification of the amounts of solid waste reported by Franchisee pursuant to this Agreement. Franchisee's books of account, income statements, tonnage reports and other documents accessed by City shall be kept confidential unless these documents are deemed necessary by City to enforce the terms of this Agreement or are required to be produced pursuant to any applicable law. C. The parties agree that Franchisee's failure to provide its records in accordance with City's request to examine, audit and make transcripts or copies of the books of account, income statements, tonnage reports and supporting documents in accordance with Subsection B above, shall be considered a material breach of this Agreement and will result in damages being sustained by City. Such damages are, and will continue to be, impracticable and extremely difficult to determine. The parties agree that if Franchisee fails to provide its records in accordance with Subsection B above, the City may, in its discretion terminate this Agreement and/or charge a late charge in the amount of Two Hundred Fifty and No/100 Dollars ($250.00) for each working day that Franchisee does not provide said records. Execution of this Agreement shall constitute agreement by the parties that the late charge set forth in this subsection is the minimum value of the costs and actual damages caused by the failure of the Franchisee to provide records in accordance with Subsection B above. Such sum is liquidated damages and shall not be construed as a penalty. D. Franchisee shall reimburse City for City's costs in performance of an audit if, as a result of the audit it is determined: 1. There was any intentional misrepresentation by Franchisee with respect to the amount of Fees due to the City, or 2. There is a one thousand dollars ($1,000.00) or greater discrepancy in the amount of Fees due to the City. Such reimbursement shall be paid by Franchisee within thirty (30) days of the date City notifies Franchisee in writing that the Franchisee is liable to reimburse the City in conformance with this subsection and the amount of City's audit costs. E. If Franchisee refuses to provide City's auditor with its records as required by Subsection B above or disagrees with City's audit findings, then Franchisee may, within ten (10) days after written request by City's designated representative for records disclosure, or within ten (10) days after service of the audit finding, appeal the imposition of late charge or the audit findings by filing a written appeal with the City Council specifying the basis of Franchisee's failure to provide records, or the reason for its disagreement with City's audit findings. If Franchisee fails to timely request such an appeal to the City Council, then the late charges and/or discrepancy determinations shall be final and conclusive and the amounts shall become immediately due and payable and/or the violation shall be deemed established. SECTION 10. INSURANCE REQUIREMENTS Without limiting Franchisee's indemnification of City, Franchisee shall obtain, provide and maintain at its own expense during the term of this Agreement, a policy or policies of liability insurance of the type and amounts described below and in a form satisfactory to City. A. Certificates of Insurance. Franchisee shall provide certificates of insurance with original endorsements to City as evidence of the insurance coverage required herein. Insurance certificates must be approved by City's Risk Manager prior to commencement of the Franchise. Current certification of insurance shall be kept on file with City at all times during the term of this Agreement. B. Signature. A person authorized by the insurer to bind coverage on its behalf shall sign certification of all required policies. 7 C. Acceptable Insurers. All insurance policies shall be issued by an insurance company currently authorized by the Insurance Commissioner to transact business of insurance in the State of California, with an assigned policyholders' Rating of A (or higher) and Financial Size Category Class VII (or larger) in accordance with the latest edition of Best's Key Rating Guide, unless otherwise approved by the City's Risk Manager. D. Coverage Requirements. 1. Workers' Compensation Coverage. Franchisee shall maintain Workers' Compensation Insurance and one million dollars ($1,000,000) Employer's Liability Insurance for his or her employees in accordance with the laws of the State of California. Any notice of cancellation or non -renewal of all Workers' Compensation policies must be received by City at least thirty (30) calendar days (10 calendar days written notice of non-payment of premium) prior to such change. The insurer shall agree to waive all rights of subrogation against City, its officers, agents, employees and volunteers for losses arising from work performed by Franchisee that relates in any way to this Agreement. 2. General Liability Coverage. Franchisee shall maintain commercial general liability insurance in an amount not less than one million dollars ($1,000,000) per occurrence for bodily injury, personal injury, and property damage, including without limitation, contractual liability. If commercial general liability insurance or other form with a general aggregate limit is used, either the general aggregate limit shall apply separately to the work to be performed under this Agreement, or the general aggregate limit shall be at least twice the required occurrence limit. 3. Automobile Liability Coverage. Franchisee shall maintain automobile insurance covering bodily injury and property damage for all activities of the Franchisee arising out of or in connection with work to be performed under this Agreement, including coverage for any owned, hired, non -owned or rented vehicles, in an amount not less than two million dollars ($2,000,000) combined single limit for each occurrence. E. Endorsements. Each general liability and automobile liability insurance policy shall be endorsed with the following specific language: 1. The City, its elected or appointed officers, officials, employees, agents and volunteers are to be covered as additional insureds with respect to liability arising out of work performed by or on behalf of the Franchisee. 2. This policy shall be considered primary insurance as respects to City, its elected or appointed officers, officials, employees, agents and volunteers as respects to all claims, losses, or liability arising directly or indirectly from the Franchisee's operations or services provided to City. Any insurance maintained by City, including any self-insured retention City may have, shall be considered excess insurance only and not contributory with the insurance provided hereunder. N 3. This insurance shall act for each insured and additional insured as though a separate policy had been written for each, except with respect to the limits of liability of the insuring company. 4. The insurer waives all rights of subrogation against City, its elected or appointed officers, officials, employees, agents and volunteers. 5. Any failure to comply with reporting provisions of the policies shall not affect coverage provided to City, its elected or appointed officers, officials, employees, agents or volunteers. 6. The insurance provided by this policy shall not be suspended, voided, canceled, or reduced in coverage or in limits, by either party except after thirty (30) calendar days (10 calendar days written notice of non-payment of premium) written notice has been received by City. F. Timely Notice of Claims. Franchisee shall give City prompt and timely notice of claim(s) made or suit instituted arising out of or resulting from Franchisee's performance under this Agreement. G. Additional Insurance. Franchisee shall also procure and maintain, at its own cost and expense, any additional kinds of insurance, which in its own judgment may be necessary for its proper protection and prosecution of the work. SECTION 11. RESPONSIBILITY FOR DAMAGES AND INJURY/INDEMNIFICATION A. Franchisee Responsibility. Franchisee shall be responsible for any damages caused as a result of Franchisees acts or omissions including, but not limited to injuries to or death of any person or damage to public and/or private property and damages public improvements as a result of Franchisees placement and retrieval of the commercial solid waste containers. B. General Indemnification. Franchisee shall indemnify, hold harmless, and defend City, and each of its past, present and future elected officials, officers, employees, agents, consultants, volunteers, affiliates, assignees, representatives, attorneys, subsidiaries, and affiliated entities and their respective successors, heirs and assigns (collectively, "Indemnified Parties") harmless for, from and against any costs, expenses, damages, and losses, including actual attorneys fees ("Losses") of any kind or character to any person or property arising directly or indirectly from or caused by any of the following: (i) any act or omission of Franchisee or its respective officers, directors, shareholder members, partners, employees, agents, contractors, subcontractors, suppliers, representatives and affiliates ("Franchisee Representatives"); (ii) Franchisee's or Franchisee Representative's activities; (iii) any accident or casualty within or arising out of the services/work performed under the Franchise and/or this Agreement; (iv) any violation or alleged violation of any law, ordinance or statute now or hereafter enacted arising out of services/work performed pursuant to the Franchise and/or this Agreement; (v) the negligence or willful misconduct of Franchisee or any of Franchisee representatives in the performance of 9 the services/work under the Franchise and/or this Agreement; and (vi) any breach of the Franchise and/or this Agreement. Franchisee shall not be required to indemnify, hold harmless and defend the Indemnified Parties from the sole negligence, active negligence or willful misconduct of the Indemnified Parties. Nothing in this indemnity shall be construed as authorizing any award of attorney's fees in any action on or to enforce the terms of this Agreement. This indemnity shall apply to all claims and liability regardless of whether any insurance policies are applicable. The policy limits do not act as a limitation upon the amount of indemnification to be provided by the Franchisee. C. Hazardous Substances Indemnification. Franchisee shall indemnify the Indemnified Parties from and against all claims, actual damages including, but not limited to, special and consequential damages, natural resource damage, punitive damages, injuries, costs, response, remediation, and removal costs, losses, demands, debts, liens, liabilities, causes of action, suits, legal or administrative proceedings, interest, fines, charges, penalties and expenses attorneys' and expert witness fees and costs incurred 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, the Indemnified Parties or Franchisee arising directly or indirectly from or caused by any of the following: (i) the violation of any Environmental Laws or the failure to clean up and mitigate the consequences of the spill or release of any Hazardous Substance; and (ii) Franchisee's activities under this Agreement concerning any Hazardous Substance at any place where Franchisee stores or disposes of solid or hazardous waste pursuant to this Agreement, or preceding Agreements between City and Franchisee. The foregoing indemnity is intended to operate as an agreement pursuant to the Comprehensive Environmental Response, Compensation and Liability Act 42. U.S.C. Section 9607(e) and any amendments thereto; California Health and Safety Code Section 25364, to insure, protect, hold harmless, and indemnify City from liability. As used herein, the term "Environmental Laws" shall mean "any and all present and future federal, state or local laws (whether common law, statute, rule, regulation or otherwise), permits, orders and any other requirements of Governmental Authorities relating to the environment or any "Hazardous Substance" or "Hazardous Substance Activity" (as defined herein) (including, without limitation, the Comprehensive Environmental Response, Compensation and Liability Act of 1980 (42 U.S.C. §§ 9601 et seq.) as amended from time to time and the applicable provisions of the California Health and Safety Code and California Water Code). As used herein, the term "Hazardous Substance" shall mean "any (a) chemical, compound, material, mixture or substance that is now or hereinafter defined or listed in, or otherwise classified pursuant to any Environmental Law as a "hazardous substance", "hazardous material," "hazardous waste," "extremely hazardous waste," "infectious waste," "toxic waste," "toxic pollutant," or any other formulation intended to define, list or classify substances by reason of deleterious properties or affect and (b) petroleum, petroleum by-products, natural gas, natural gas liquids, liquefied natural gas, synthetic gas usable for fuel (or mixtures of natural gas in such synthetic gas), ash, municipal solid waste, steam, drilling fluids, produced waters and other wastes associated with the exploration, development and production of crude oil, natural gas or geothermal resources." D. AB939 Indemnification. Franchisee agrees to meet all requirements of City's Source Reduction and Recycling Element as to the portion of the solid waste stream handled by Franchisee. Franchisee agrees to protect, defend, indemnify, and hold City harmless against all fines or penalties imposed by the California Integrated Waste Management Board, or other entity, arising from the failure of Franchisee to meet the Integrated Waste Management Act diversion requirements with respect to the portion of the commercial waste stream collected by Franchisee. E. Notice. City agrees to give notice to Franchisee when the City receives a claim for damages or other liability for which Franchisee has provided indemnification under this Section. SECTION 12. COMMERCIAL SOLID WASTE COLLECTION SERVICES 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 within 24 hours of any such request by the customer or City. If requested by the City at any time, Franchisee's collection schedule shall be submitted to the City for its approval. B. Hours and Days of Collections. No collection of solid waste shall occur in any area of the City after 6:30 p.m. and prior to 5:00 a.m. No collection of solid waste from commercial premises within 500 feet of occupied residential premises, motels or hotels shall be made by Franchisee, nor shall any of Franchisee's collection vehicles be operated in any residential areas of the City except between the hours of 7:00 a.m. and 6:30 p.m., Monday through Friday, nor on any Saturday or Sunday, except between the hours of 8:00 a.m. and 6:00 p.m. Collection on Sundays shall be limited to the disposal of commercial waste from commercial premises which require collection every day due to public health and safety concerns. SECTION 13. VEHICLES AND EQUIPMENT A. Any and all containers provided to customers of Franchisee for storage, collection or transportation of commercial solid wastes shall meet the requirements designated by the General Services Director 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 performance of commercial solid waste handling services shall be marked with Franchisee's name and telephone number in letters which are not less than four inches (4") high or which are easily read by the general public. 11 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 must pass the required periodic "BIT" inspection and Franchisee shall provide evidence of such to the General Services Department as requested. Upon request by the City, Franchisee shall provide records from the most recent California Highway Patrol biennial inspection of the terminal(s) responsible for the maintenance and repair of equipment used in the City. All vehicles shall be properly maintained, kept clean and in good repair, and shall be uniformly painted. All commercial solid waste containers used 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 used by Franchisee in the performance of this Agreement may be subject to inspection by the City upon twenty-four (24) hours notice by the General Services Director. All drivers employed by Franchisee and operating equipment in the City shall be properly licensed for the class of vehicle they drive, enrolled in the Department of Motor Vehicles Employee Pull Notice (EPN) program, and abide by all State and federal regulations for driver hours and alcohol and controlled substances testing. 2. Each vehicle shall be so constructed and used in a manner so that no rubbish, garbage, debris, oil, grease or other material will blow, fall, or leak out of the vehicle. All solid waste shall be transported by means of vehicles which are 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 carried 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 at all times. 3. Franchisee shall not store any vehicle or equipment on any public street, public right-of-way or other public property in the City of Newport Beach without obtaining a Temporary Street Closure Permit from the Public Works Department and prior written consent of the General Services Director. 4. Should the General Services Director at any time give written 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 used again until inspected and authorized in writing by the General Services Director. S. Placement of containers and equipment shall be in accordance with the standards set by the Director of Public Works and in accordance with the standards set forth in Exhibit A which is incorporated herein by this reference. Any deviation from the standards set by the Director of Public Works or the standards set forth in Exhibit A shall require written approval from the Public Works Director. 12 SECTION 14. ABANDONED CONTAINERS A. If Franchisee abandons any commercial solid waste container within the City of Newport Beach, the City may remove the container and/or dispose of the contents of the container. B. If City is required to remove a roll -off or compactor container abandoned by Franchisee and/or disposes of the contents of any container abandoned 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 Five Thousand Dollars and No Cents ($5,000.00) cash deposit with City Revenue Division to reimburse City for such costs within ten (10) days of the date of City's invoice for such costs. C. 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 12.63.140 of the Code; 2. Franchisee's failure to remove the container within ten (10) working days after the expiration of the Franchise granted to Franchisee, except in the case where Franchisee has been granted an extension of the term of said Franchise or Franchisee has been granted a subsequent franchise authorizing 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) calendar days after City's Director of General Services issues written notice to Franchisee to dispose of the contents. SECTION 15. COMPLIANCE WITH LAW A. Franchisee shall perform all commercial solid waste handling 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. 200_1-_ -�_ and in accordance with the terms and conditions of this Agreement. B. During the Term of this Agreement, Franchisee and City agree that the City's ordinances may be amended as provided herein, as provided in Chapter 12.63 or 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 handling obligations or requirements for solid waste management. Franchisee agrees to comply with any such amendment of the City's ordinances. 13 SECTION 16. 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. Payment of Franchise Fees and Environmental Liability Fund Fees shall be in addition to any permit or license fees or business tax prescribed by the City for the same period. Franchisee shall obtain and maintain for the Term of this Agreement an account with the Orange County landfills. If Franchisee disposes of solid waste at an Orange County landfills, the Franchisee shall only dispose of Newport Beach solid waste at Orange County landfills utilizing their account (no "cash only" disposal). SECTION 17. PUBLIC EDUCATION ACTIVITIES A. City and Franchisee shall cooperate in co -sponsoring not more than one promotional event per year, as mutually agreed upon in advance by the parties, which is related to the implementation of commercial solid waste handling services and recycling services. B. Each year during the term of this Agreement, on an annual basis, Franchise shall transmit promotional brochures or fliers to its customers, and to such prospective 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. C. All promotional brochures, fliers or other information distributed by Franchisee hereunder shall be printed on recycled paper. All such informational materials shall be approved in advance by the City's General Services Director. SECTION 18. TERMINATION AND SUSPENSION A. The franchise granted to Franchisee may be terminated by the City Council pursuant to Section 12.63.140 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 right or authority to engage 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 and Environmental Liability Fund Fees that would otherwise be payable by Franchisee, for any and all late charges and interest assessed pursuant to Section 4 of this Agreement, and for any and all delinquent report/record charges assessed pursuant to Sections 7 or 9 of this Agreement. 3. Franchisee shall have a continuing obligation to submit to City all reports required by Sections 7 and 9 of this Agreement which relates to commercial solid waste handling 14 services performed by Franchisee up to and including the date of termination, suspension, or expiration. 4. Franchisee shall allow the solid waste generators served by Franchisee to arrange for commercial solid waste handling services with a solid waste enterprise collector authorized to perform such services, without penalty or liability for breach of contract on the part of the generators, for such period of time as Franchisee is not authorized to perform such services because of termination or suspension. 5. Franchisee agrees to continue to provide the indemnifications required in this contract after its suspension or termination. Such indemnifications include, but are not limited to, the hazardous materials indemnification and AB939 indemnification as set forth in Section 11. C. In the event this Franchise is terminated pursuant to Subsection A above, then within the time period specified by the City Council, Franchisee shall remove all of Franchisee's commercial solid waste containers, 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: 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.e. Franchisee's City of 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 the City of Newport Beach. Such notification shall be in the form 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. Franchisee shall submit to City's General Services Director an affidavit, signed under penalty of perjury, stating that the required notification has been provided by Franchisee to all of Franchisee's City of Newport Beach customers. SECTION 19. ASSIGNMENT Franchisee shall not assign, sell, subcontract, transfer or otherwise delegate its authority to perform any portion of the solid waste handling services or obligations under the Franchise without prior express consent of the City Council. This prohibition includes any transfer of ownership or control of Franchisee, or the conveyance of a majority of Franchisee's stock to a new controlling interest. City's consent shall not be unreasonably withheld. 15 SECTION 20. 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 Blvd. Newport Beach, CA 92663 To Franchisee: :P!94T wFFFERS INO. 2031 S. ANNE Sr. SANTA ANA, CA 92704 Notice shall be deemed effective on the date personally served or, if mailed, three (3) days after the date deposited in the mails. B. Integrated Agreement. This Agreement represents the full and complete understanding of every kind or nature whatsoever between the City and Franchisee, and all preliminary negotiations and other agreements of any kind or nature are merged herein. No verbal agreement or implied covenant shall be held to vary the provisions herein. C. Amendments. This Agreement supersedes all prior agreements and understandings 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 writing and signed by the party against whom the same is sought to be enforced. D. Applicable Law. The laws of the State of California, and applicable Federal law, shall govern this Agreement and all matters relating to it and any action brought relating to this Agreement shall be adjudicated in a court of competent jurisdiction in the County of Orange. E. Authori . The parties signing below represent and warrant that they have the requisite authority to bind the entities on whose behalf they are signing. F. Severability. If any term or portion of this Agreement is held to be invalid, illegal, or otherwise unenforceable by a court of competent jurisdiction, the remaining provisions of this Agreement shall continue in full force and effect. G. Waiver. A waiver by either party of any breach, of any term, covenant or condition contained herein shall not be deemed to be a waiver of any subsequent breach of the same or any other term, covenant or condition contained herein, whether of the same or a difference character. 16 H. Interpretation. The terms of this Agreement shall be construed in accordance with the meaning of the language used and shall not be construed for or against either party by reason of the authorship of this Agreement or any other rule of construction that might otherwise apply. I. Equal Opportunity Employment. Franchisee represents that it is an equal opportunity employer and it shall not discriminate against any authorized subcontractor, employee or applicant for employment because of race, religion, color, national origin, handicap, ancestry, sex or age. J. Compliance with Laws: Franchisee shall at its own cost and expense comply with all statutes, ordinances, regulations and requirements of all governmental entities, including federal, state, county or municipal, whether now in force or hereinafter enacted. 'Franchisee agrees to obtain a business license from the City in accordance with the Code. The parties hereto agree that the Franchise and this Agreement are the only authorizations to conduct solid waste collection business in the City and that the issuance of a business license does not grant the Franchisee a right to conduct solid waste collection or other business in the City. K. Conflicts of Interest: Franchisee or its employees may be subject to the provisions of the California Political Reform Act of 1974 (the "Act"), which (i) requires such persons to disclose any financial interest that may foreseeably be materially affected by the work performed under this Agreement, and (ii) prohibits such persons from making, or participating in malting, decisions that will foreseeably financially affect such interest. If subject to the Act, Franchisee shall conform to all requirements of the Act. Failure to do so constitutes a material breach and is grounds for immediate termination of this Agreement by City. Franchisee shall indemnify and hold harmless City for any and all claims for damages resulting from Franchisee's violation of this subsection. [SIGNATURES ON FOLLOWING PAGE] 17 IN WITNESS WHEREOF, the parties have caused this Agreement to be executed on the day and year first written above. ATTEST: LAVONNE M. HARKLESS City Clerk APPROVED AS TO FORM: "CITY" Z4,0,—, C , wt AARON C. HARP Assistant City Attorney CITY OF NEWPORT BEACH, a Municipal Corporation BY: STEVEN ROS SK , Mayor "FRANCHISEE" BY: NAME: '-�l G. -Ha - (Print) l �a' (Print) TITLE: r�S DATE: :4 NAME: (Print) TITLE: DATE: ACCEPTANCE OF SOLID WASTE MANAGEMENT FRANCHISE WHEREAS, on March 27, 2007, the City Council of the City of Newport Beach adopted Ordinance No. 2007-7 entitled an Ordinance of the City Council of the City of Newport Beach Granting a Non -Exclusive Solid Waste Franchise to Franchisees to Provide Solid Waste Collection Services Upon the City Streets and Within the City of Newport Beach; and WHEREAS, the Charter of the City of Newport Beach, Section 1303, and Ordinance No. 2007-7_ provide that any franchise granted shall not become effective until written acceptance is filed by the Grantee with the City Clerk. The acceptance shall be filed within ten (10) days after the adoption of Ordinance No. 2007-7. WHEREAS, the undersigned Grantee wishes to accept the grant of the Franchise. NOW THEREFORE, T;a4 ta, c.v-le(r5 J VAC . hereby accepts the grant of the Nonexcl�Franchise granted by Ordinance No. 2007-7 and hereby agrees to comply with the provisions of the Newport Beach Charter, Chapter 12.63, Ordinance No. 2007-7_ and the Franchise Agreement in all its operations pursuant to the grant of the Franchise. DATE: -( " ko % C, TITLE: Pr'gs. CITY CLERKS'S VERIFICATION OF ACCEPTANCE I, LaVonne M. Harkless, ity Clerk, certify that the above acceptance of Franchise was received by me on/S', 2007, at 4/%.a-0 , a.m.0 ��v f CITY CLERK 1:009. 19 FRANCHISE EXTENSION AGREEMENT BETWEEN THE CITY OF NEWPORT BEACH AND TIGHT QUARTERS, INC. This Franchise Extension Agreement is entered into between the City of Newport Beach ("City") and Tight Quarters, Inc. ("Tight") this 13th day of December, 2005, with regards to the following facts: RECITALS WHEREAS, by approving Ordinance No. 97-4 on or about January 27, 1997, the City granted Tight a non-exclusive franchise to provide solid waste collection services ("Franchise") and entered into a solid waste franchise agreement ("Franchise Agreement") with Tight. The Franchise and Franchise Agreement will expire on March 1, 2006; and WHEREAS, City and Tight desire to extend the Franchise and Franchise Agreement until March 1, 2007 to allow for additional time for negotiations to consider the renewal of the Franchise and Franchise Agreement. NOW THEREFORE, the Parties agree as follows: The Franchise and Franchise Agreement shall be extended to March 1, 2007. During said extension, the terms and conditions of the current Franchise and Franchise Agreement shall remain in full force and effect without modification. 2. Nothing herein shall be deemed or construed as a waiver, release or surrender of any right that either party may have under any applicable law. Nothing herein shall waive, release or otherwise relieve Tight from any Franchise and/or Franchise Agreement breaches or violations, if any exist, or other violations of law, if any, and the grant of this Franchise and Franchise Agreement extension shall not be utilized by Tight for any purpose other than to extend, and document the extension, of the Franchise and Franchise Agreement through March 1, 2007. IN WITNESS WHEREOF, the parties hereto have caused this Franchise Extension Agreement to be executed in duplicate on the date and year first written herein. CITY OF NEWPORT BEACH, A Mun' 'pal Corporation 5 Homer Bludau, CAfy Manager APPROVED AS TO FORM: Aaron C. Harp, Assistant City Attorney TIGHT QUARTERS, INC. A California Corpo atio By. :v Name: ` r �tm Title: eS! By: _ Name: Title: ATTEST- By:��By: J&7uc /;%. ALIX" LaVonne Harkless, City Clerk [END SIGNATURES] ACCEPTANCE OF SOLID WASTE MANAGEMENT FRANCHISE WHEREAS, on January 27, 1997, the City Council of the City of Newport Beach adopted Ordinance No. 97- 4 entitled an Ordinance of the City Council of the City of Newport Beach Granting Nonexclusive Franchises to Provide Solid Waste Collection Services Upon the City Streets and within the City of Newport Beach; and WHEREAS, the Charter of the City of Newport Beach, Section 1303, and Ordinance No. 97- 4 provide that any franchise granted shall not become effective until written acceptance is filed by the Grantee with the City Clerk. The acceptance shall be filed within ten (10) days after the adoption of Ordinance No. 97- 4. WHEREAS, the undersigned Grantee wishes to accept the grant of the Franchise. NOW THEREFORE, Tight Quarters, Inc. hereby accepts the grant of the Nonexclusive Franchise granted by Ordinance No. 97- 4 and hereby agrees to comply with the provisions of the Newport Beach Charter, Chapter 12.63, Ordinance No. 97- 4 and the Franchise Agreement in all its operations pursuant to the grant of the Franchise. DATE: 02-06-97//-- r FRANCHISEE BY: PRESIDENT TITLE CITY CLERK'S VERIFICATION OF ACCEPTANCE I, LaVonne M. Harkless, City Cler, certify that the above acceptance of Franchise was received by me on 9 , 1997, at 4," 5-S , a.m` CITY CLERK COMMERCIAL SOLID WASTE COLLECTION FRANCHISE AGREEMENT BETWEEN THE CITY OF NEWPORT BEACH AND TIGHT QUARTERS, INC. This Nonexclusive Franchise Agreement for Commercial Solid Waste Handling Services ("Agreement" herein), is entered into and executed by and between the CITY OF NEWPORT BEACH, a municipal corporation, and Charter City organized and existing under the laws of the State of California ("City"), and Tight Quarters, Inc. ("Franchisee"). R E C I T A L S This Agreement is entered into on the basis of the following facts: A. Franchisee has provided or is capable of providing commercial solid waste 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 providing commercial solid waste handling services for solid waste generated in the City, C. Article XIII of the City Charter, Chapter 12.63, and Sections 49300 and 49500-49523 of the Public Resources Code authorize the City to enter into nonexclusive franchise agreements for commercial solid waste handling services. D. City contends that Franchisee has received written notice from the City, pursuant to Public Resources Code Sections 49520 and 49521, that commercial solid waste handling services may be authorized under exclusive or nonexclusive franchise, and that Franchisee was entitled to continue to operate within the City only until its rights under a commercial solid waste collection permit were terminated or revoked. All such rights are terminated by this Agreement. E. Pursuant to this Agreement, City desires to authorize Franchisee to provide nonexclusive commercial solid waste handling services within the City. Franchisee shall furnish all personnel, equipment, and supplies necessary to collect, transport, or otherwise remove and dispose of residential solid waste and recyclable materials, as defined 11 herein, from commercial, institutional, or industrial premises within the City. F. The City Council has determined that the grant of a nonexclusive franchise is in the public interest. NOW, THEREFORE, CITY AND FRANCHISEE DO HEREBY AGREE AS FOLLOWS: SECTION 1. GRANT OF FRANCHISE A. By Ordinance No. 97- 4, City has granted to Franchisee a nonexclusive Franchise authorizing 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. Franchisee acknowledges that the Franchise is not exclusive and that the Franchise is subject to the provisions of Article XIII of the City Charter, Ordinance No. 97- 4, Chapter 12.63 of the Code, and the terms and conditions of this Agreement. B. Upon the effective date of this Agreement, the parties agree that any prior 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 FRANCHISE Subject to Section 17 of this Agreement, the term of this Agreement shall be from March 1, 1997, to February 28, 2006, inclusive. SECTION 3. DEFINITIONS Unless 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. SECTION 4. FRANCHISE FEES A. During the term of the Franchise, Franchisee shall pay to City franchise fees for the privilege of providing commercial solid waste handling services in the City of Newport Beach and 2 the use of public streets, right of ways and places for such purposes. Fees shall be in the following amounts: (1) Franchisee shall pay to the City 6.5% (six and one half percent) of the gross receipts for all commercial solid waste handling services provided by the Franchisee in the City for the first year of the franchise. The franchise fee shall increase by 1% (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 Agreement. (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 within 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," 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 are 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 3 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 showing 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 outstanding delinquent payment for handling services is uncollectible, the report a list of the customers written off the delinquent payment uncollectible. Franchisee determines that any commercial solid waste Franchisee shall attach to for which Franchisee has determined to be F. 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 authorized 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. SECTION 5. DISPOSAL OF COMMERCIAL SOLID WASTE 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 drainage 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 recyclables, collected by Franchisee shall become the property of Franchisee upon 10 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 generators 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. Franchisee 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 length of the term of the Franchise, and shall be made available to the City upon request. SECTION 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 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 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.e. report due April 15 for first quarter of the year) and submitted to: 5 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, Franchisee 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 in addition to any franchise fees or other charges payable by Franchisee under this Agreement. SECTION 7. Commercial Solid Waste Collection Services 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, Franchisee's 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 Franchisee's 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. SECTION 8. ENVIRONMENTAL 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. B. Franchisee shall pay to the City Environmental Liability Fund 5.50 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 Franchise fees and the filing of reports specified in Section 4 and 6 of this Agreement. C. Payments under paragraph B above may be adjusted by City, on an annual basis, upon one hundred twenty (120) days prior notice to Franchisee, as appropriate, to ensure 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 Franchisee's indemnification as set forth in Section 11, however, the indemnification provisions of 11B shall be secondary to the Fund established by this Section or any insurance purchased with the funds provided. SECTION 9. FRANCHISEE'S RECORDS 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 shall be kept at Franchisee's place of business. B. The books of account, income statements and supporting documents shall 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 Director, City 7 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 this 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, Franchisee's books of account, income statements and other documents accessed by City shall be kept confidential. C. Franchisee shall reimburse City for City's 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 franchise fees due to the City; or ii. there is a one thousand dollars ($1,000.00) or greater discrepancy in the amount of franchise fees due to the City. Such reimbursement shall be paid by Franchisee WITHIN THIRTY (30) days of the date City notifies Franchisee in writing of the amount of City's costs. SECTION 10. INSURANCE REQUIREMENTS Without limiting the indemnification provided in Section 11, Franchisee shall obtain and shall maintain throughout the term of this Agreement, at Franchisee's 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 Agreement 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: 1. 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 aggregate 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 $1,000,000 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, he following provisions: 1. General Liability and Automobile Liability Coverages. a. The City of Newport Beach, its officers, employees, agents and contractors are to be covered as an additional insured as respects: liability arising out of activities performed by, or on behalf of Franchisee; products and completed operations of Franchisee; 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. Franchisee's insurance coverage shall be primary insurance as respects City, its officers, employees, agents and contractors. Any insurance or self-insurance maintained by City, its officers, employees, agents or contractors shall be excess of Franchisee's insurance and shall not contribute with it. C. Any failure to comply with reporting 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 whom claim is made or suit is brought, except with respect to the limits of the insurer's liability. 2. All Coverages 61 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' prior written 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 original 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 behalf. Proof of insurance shall be mailed or personally delivered to the following address or to such other address as may be directed in writing by the City's Risk Manager: City of Newport Beach Risk Manager 3300 Newport Boulevard Newport Beach, CA 92659 F. 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 Insuran Franchisee agrees that if any policy of insurance required by this Agreement 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. SECTION 11. INDEMNIFICATION Franchisee, as a condition of the Franchise shall indemnify the City as follows: 10 A. General Liability: Franchisee shall indemnify, defend and hold harmless the City, its officers, employees and agents, 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 Franchisee, its employees, 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 indemnify 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 damages including, but not limited to, special and consequential damages, natural resource damage, punitive damages, injuries, costs, response, remediation, and removal costs, losses, demands, debts, liens, liabilities, causes of action, suits, legal or administrative proceedings, interest, fines, charges, penalties and expenses attorneys' and expert witness fees and costs incurred 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, employees, agents or Franchisee arising from or attributable to Franchisee's activities under this Agreement concerning any hazardous substances or hazardous waste at any place where Franchisee stores or disposes of solid or hazardous waste pursuant to this franchise agreement, or preceding agreements between City and Franchisee. The foregoing indemnity is intended to operate as an agreement pursuant to the Comprehensive Environmental Response, Compensation and Liability Act 42. U.S.C. Section 9607(e) and any amendments thereto; California Health and Safety Code Section 25364, to insure, protect, hold harmless, and indemnify City from liability. C. AB939 Indemnification: Franchisee agrees to meet all requirements of City's Source Reduction and Recycling Element as to the portion of the solid waste stream handled by Franchisee. Franchisee agrees to protect, defend, indemnify, and hold City harmless against all fines or penalties imposed by the California 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 damages or other liability for which Franchisee has provided indemnification under this Section. SECTION 12. VEHICLES AND EQUIPMENT 11 A. Any and all containers provided to customers of Franchisee for storage, collection or transportation of commercial solid wastes shall meet the requirements of Section 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 performance of commercial solid waste handling services shall be marked with Franchisee's name and telephone number in letters which are not less than four inches (4") high or which are easily read by the general public. 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 used 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 used by Franchisee in the performance of this Agreement 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 material will blow, fall, or leak out of the vehicle. All solid waste shall be transported by means of vehicles which are 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 carried 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 12 City without the prior written consent of the General Services Director. (4) Should the General Services Director at any time given written 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 writing by the General Services Director. SECTION 13. ABANDONED CONTAINERS A. Franchisee shall comply with the regulations adopted by the City Manager for placement of commercial solid waste containers on public property. B. If Franchisee abandons any commercial solid waste container within the City, the City may remove the container and/or dispose of the contents of the container. C. If City is required to remove a roll -off or compactor container abandoned by Franchisee and/or disposes of the contents of any container abandoned 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 Revenue Division to reimburse City for such costs within ten (10) days of the date of City's invoice for such costs. 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) Franchisee's failure to remove the container within ten (10) working days after the expiration of the Franchise granted to Franchisee, except in the case where Franchisee has been granted an extension of the term of said Franchise or Franchisee has been granted a subsequent Franchise authorizing 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. 13 SECTION 14. COMPLIANCE WITH LAW A. Franchisee shall perform all solid waste handling 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, Franchisee 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 handling obligations or requirements for solid waste management. Franchisee agrees 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 EDUCATION ACTIVITIES A. City and Franchisee shall cooperate in co -sponsoring not more than one promotional event per year, as mutually agreed upon in advance by the parties, which is related to the implementation of commercial solid waste handling services and recycling services. B. Each year during the term of this Agreement, on an annual basis, Franchise 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. C. All promotional brochures, fliers or other information distributed by Franchisee hereunder shall be printed on recycled paper. All such informational materials shall be approved in advance by the City's General Services Director. SECTION 17. TERMINATION AND SUSPENSION 14 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 right or authority to engage 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 shall allow the solid waste generators served by Franchisee to arrange for solid waste handling services with a solid waste enterprise collector authorized to perform such services, without penalty or liability for breach of contract on the part of the generators, for such period of time as Franchisee is not authorized to perform such services because of termination or suspension. (5) Franchisee agrees to continue to provide the indemnifications required in this contract after its suspension or termination. Such indemnifications include, but are not limited to, the hazardous materials indemnification and AB939 indemnification in Section 11. C. In the event this Franchise is terminated pursuant to Subsection A above, then within the time period 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. 15 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: (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.e. 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 form 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. Franchisee shall submit to City's General Services Director an affidavit, signed under penalty of perjury, 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 prior express written consent of the City Council. This prohibition includes any transfer of ownership or control of Franchisee, or the conveyance of a majority of Franchisee's stock to a new controlling interest. 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: Mr. Telford T. Cottam, President Tight Quarters, Inc. 2031 S. Anne Street Santa Ana, CA 92704 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 understandings 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 writing and signed by the party against whom the same is sought to be enforced. C. Applicable Law. This Agreement and the transactions herein contemplated shall be construed in accordance with an governed by the applicable laws of the State of California and of the United States. D. Authority. The parties signing below represent and warrant that they have the requisite authority to bind the entities on whose behalf they are signing. E. Conflicts: In the event of any conflict between the provisions of this Agreement and the provisions of Chapter 12.63 of the Code, the provisions of this Agreement shall control. F. Severability. If any provision of this Agreement is determined by a court of competent jurisdiction to be invalid or unenforceable, the remaining provisions shall not be affected unless their enforcement under the circumstances would be unreasonable, inequitable or would otherwise frustrate the purposes of this Agreement. 17 WITNESS THE EXECUTION OF THIS AGREEMENT ON THE DATE WRITTEN BELOW EACH SIGNATURE: LAVONNE M. HARKLESS, "CITY" CITY OF NEWPORT BEACH, a Municipal Corporation BY: CITY CLERK LJIN DEBAY, MAYO DATE: '4 ' /6) ' % APPM TO FORM: ROBIN CLAUSON Assistant City Attorney TIGHT r RS, C. BY: NAMF �iTelford T. Cottam Title: President Date: 1/28/97 DEN/AA ACCT.IITA_Iq_CE___Q_F___SQLID_WASTE_ MANAGEMENT_FRANCHI$-E Beach :iCIo prod, Ord, 1.n�3nC( No. ��'l (�•� t?I�lrlr l-(1 X111 „ i . O] . j 1 ,�j i l; NewIY)].1 Peac11 t1,1it !i{i.. lllt I t L'vC. 1. ; c11"Chi] 3es t -o Provl(-j(-, ,j,)11d. Waste_ Col.1..ect loll Uper) t. j;c I-1 ;:;t 2e(?Ls and WIL111 n P1le -iry of Newport I_;Pach; and 10JHL,REAS, the Charter of theCity of Ne�v�br� Bench, L)'ection 1.303, and Ordinance No. 95-64 provide that any franchise granted shall not beccalle effective until written acceptance is filed by the Grantee with the City Clerk. The acceptance shall be filed within Len (10) days after the adoption of Ordinance No. 95-64. WHEREAS, the undersigned Grantee wishes to accept the grant of the Franchise. NOW THEREFORE, TIGHT QUARTERS, INC. hereby accepts the grant of the Nonexclusive Franchise granted by Ordinance No. 95-64 and hereby agrees to comply with the provisions of the Newport Beach Charter, Chapter 12.63, Ordinance No. 95-64 and the Franchise Agreement in all its operations pursuant to the grant of the Franchise. DATE: 11-1-96 TIGHT QUARTERS, INC. FRANCHISEE BY: PRESIDENT CITY CI_,ERK'S VERIFICATION OF ACCEPTANCE I, LaVonne M. Harkless, Citv acc(-� lance of Franchise 19 9 6, a t 'A��__�_ CITY CI,,I;RK Clerk, cet 1-1 fy wasreceived `S'(1,a.M. .nl. that I- he above by me o; ; ��v PO �T ° CITY OF, NEWPORT 13FAC 1 n UP0 I MX >t+- �"� Sohd Waste Nonetc'lusive l�ranchi.tit�lppliion TIGHT QUARTERS, INC. 714 557-7901 iusin��;s Name i�usiness Phone 2031 S. ANNE ST. SANTA ANA, CA 92704 N,lailing Address City Zip LIST THE NAME AND PHONE NUMBER OF TWO INDIVIDUALS WHO CAN BE REACHED IN CASE OF EMERGENCY OTHER THAN NORMAL BUSINESS HOURS: TELFORD COTTAM Emergency Contact Name DAN POWERS Emergency Contact Name 714 645-1878 Emergency Phone 714 538-5915 Emergency Phone INDICATE THE TYPE OF BUSINESS YOU CONDUCT IN THE CITY OF NEWPORT BEACH (check one): This business does not include installing refuse containers on public property. X TWs business includes installing refuse containers on public property. (Performance Bond Liability Insurance required) Please attach.- Acceptance ttach:Acceptance of Solid Waste Management Franchise Completed Franchise Agreements Certificate(s) of Insurance This application completed by: TELFORD T. COTTAM 11-1-96 Applicant Name Date Rehu-n this completed application to City of Newport Beach P.O_ Box 1768, Newport lic'ach, CA 92658-8915 Please direct questions regarding Solid Waste Nonexclusive I�ranchise applications to Glen i"verroad, Revenue Manager, (714) 644-3141 3300 Newport Boulevard, Newt>ort Beach