HomeMy WebLinkAbout03 - Resolution of Intention to Conduct a Public Hearing to Grant New Non -Exclusive Solid Waste FranchisesQ �EwPpRT
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<,FORN'P City Council Staff Report
July 28, 2020
Agenda Item No. 3
TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL
FROM: David A Webb, Public Works Director - 949-644-3311,
dawebb@newportbeachca.gov
PREPARED BY: Micah Martin, Deputy Director of Public Works
PHONE: 949-644-3055
TITLE: Resolution No. 2020-70: Resolution of Intention to Conduct a Public
Hearing to Grant New Non -Exclusive Solid Waste Franchises
Following the City Council's review and approval of an amendment to the City's non-
exclusive solid waste franchise agreement on October 22, 2019, staff has received
several applications from franchise haulers expressing interest in obtaining a new
agreement. Staff requests City Council approval of a resolution of intent to conduct a
Public Hearing on August 25, 2020 to consider granting Non -Exclusive Solid Waste
Franchises to these applicants.
RECOMMENDATION:
a) Determine this action is exempt from the California Environmental Quality Act (CEQA)
pursuant to Sections 15060(c)(2) and 15060(c)(3) of the CEQA Guidelines because
this action will not result in a physical change to the environment, directly or indirectly;
and
b) Adopt Resolution No. 2020-70, A Resolution of the City Council of the City of Newport
Beach, California, Declaring its Intention to Conduct a Public Hearing to Consider
Granting Non -Exclusive Commercial Solid Waste and Divertible Materials Handling
Franchises.
FUNDING REQUIREMENTS:
There is no fiscal impact related to this item.
DISCUSSION:
The City utilizes a nonexclusive solid waste franchise system for the collection of
commercial solid waste throughout the City. This waste comes from multi -family
residential complexes, as well as retail, commercial, recreational, and industrial sources.
The collection of construction and demolition waste is also regulated in this system.
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Resolution No. 2020-70: Resolution of Intention to Conduct Public Hearing to
Grant New Non -Exclusive Solid Waste Franchises
July 28, 2020
Page 2
CalRecycle, the state agency regulating solid waste handling, diversion, and disposal,
has added significant new regulations over the past few years, primarily dealing with
commercial recycling and organics recycling for businesses generating large amounts of
this waste stream. Further, CalRecycle places significant reporting responsibilities on
local jurisdictions, requiring cities to document and illustrate the recycling programs in
place to disclose where standards are not being met. Finally, CalRecycle requires cities
to develop enforcement mechanisms as a tool to use to gain compliance with regulations.
The current active nonexclusive solid waste franchise agreements expire on
November 8, 2024. Staff and its solid waste consultant, EcoNomics, Inc., have worked
to develop an amended solid waste franchise agreement that retains our non-exclusive
system, provides better verification of hauler and generator recycling programs in place
in the City, and provides for a mechanism to address solid waste generators that are
reluctant to add diversion programs as required by state law.
At the October 22, 2019, City Council meeting, staff presented proposed amendments to
the existing Non -Exclusive Franchise Agreement for Commercial Solid Waste Handling
Services. Upon review, the City Council approved the new amended Non -Exclusive Solid
Waste Franchise Agreement, which includes a number of significant changes. Some key
changes include extending the agreement by two years in length to expire on November
8, 2026, updating insurance requirements, and including terms in the agreement that will
assist these franchise haulers in compliance with AB 341, AB 1826, and CALGreen
diversion requirements. These changes complement the recent Code amendments that
more clearly describe how franchise haulers working in cooperation with AB 341 and
AB 1826 can work to meet State mandated waste diversion requirements.
The City cannot require all current franchisees to execute this new amended franchise
agreement and it is likely that some franchisees will not sign the amended franchise.
Should they choose not to do so, their existing franchise will remain in effect until its
expiration in 2024. Upon approval of the resolution by City Council, the City will work
with individual franchisee applicants in preparing their new Non -Exclusive Commercial
Solid Waste Franchise Agreements for a first reading at a Public Hearing on August 25,
2020.
ENVIRONMENTAL REVIEW:
Staff recommends the City Council find this action is not subject to the California
Environmental Quality Act (CEQA) pursuant to Sections 15060(c)(2) (the activity will not
result in a direct or reasonably foreseeable indirect physical change in the environment)
and 15060(c)(3) (the activity is not a project as defined in Section 15378) of the CEQA
Guidelines, California Code of Regulations, Title 14, Chapter 3, because it has no
potential for resulting in physical change to the environment, directly or indirectly.
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Resolution No. 2020-70: Resolution of Intention to Conduct Public Hearing to
Grant New Non -Exclusive Solid Waste Franchises
July 28, 2020
Page 3
NOTICING:
The agenda item has been noticed according to the Brown Act (72 hours in advance of
the meeting at which the City Council considers the item).
ATTACHMENTS:
Attachment A — Resolution No. 2020-70
Attachment B — Sample Agreement
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ATTACHMENT A
RESOLUTION NO. 2020-70
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
NEWPORT BEACH, CALIFORNIA, DECLARING ITS
INTENTION TO CONDUCT A PUBLIC HEARING TO
CONSIDER GRANTING NON-EXCLUSIVE COMMERCIAL
SOLID WASTE AND DIVERTIBLE MATERIALS HANDLING
FRANCHISES
WHEREAS, the City Council of the City of Newport Beach ("City") finds and
determines that the collection of municipal solid waste and divertible materials, including
recyclable materials, food scraps, green waste, wood waste, construction and demolition
debris, and all other materials that can be diverted from landfill disposal (collectively
"Commercial Solid Waste") generated within the City is a vital public service;
WHEREAS, the City Council further finds and determines that the collection,
transportation, storage, and disposal of municipal solid waste and the collection,
transportation, processing, and diversion of processable municipal solid waste and
divertible materials ("Commercial Franchise Services") is a matter of great public concern
because improper control of such matters subjects the City to potential liability, damages
and penalties, and may create a public nuisance, air pollution, fire hazard, infestation and
other problems affecting the public health, safety and welfare;
WHEREAS, the non-exclusive franchises for the use of public streets to provide
Commercial Franchise Services promotes the public health, safety and welfare by
providing permanence and stability among those businesses wishing to provide such
service and accountability to the City for compliance with current and future state
mandates;
WHEREAS, in 2017, the City Council adopted a model non-exclusive commercial
solid waste franchise agreement for private solid waste haulers and, thereafter, entered
into franchise agreements with a number of commercial solid waste franchise haulers
("2017 Franchise"), effective through November 8, 2024;
WHEREAS, although the 2017 Franchise does not expire until November 8, 2024,
on October 22, 2019, the City Council approved a new model franchise agreement in
compliance with Assembly Bill 1826 and Assembly Bill 341 ("2020 Franchise"), that
expires in the year 2027;
WHEREAS, the City has since received applications from 2017 Franchise holders
and new applicants that wish to perform work under the 2020 Franchise;
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Resolution No. 2020 -
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WHEREAS, pursuant to Article XIII of the City Charter, Chapter 12.63 (Solid Waste
Management) of the Newport Beach Municipal Code ("NBMC"), and California 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 Franchise Services with private solid waste haulers;
WHEREAS, pursuant to City Charter Section 1301 (Granting of Franchise), the
City Council, prior to granting any franchise, shall pass a resolution declaring its intention
to grant same, stating the name of the proposed grantee(s), the character of the franchise,
and the terms and conditions upon which it is proposed to be granted; and
WHEREAS, such resolution shall fix and set forth the day, hour and place when
and where any persons having any interest therein or any objection to the granting thereof
may appear before the City Council and be heard thereon.
NOW, THEREFORE, be it resolved by the City Council of the City of Newport
Beach that:
Section 1: The City Council hereby declares its intention to grant non-exclusive
franchises, subject to the following general terms and conditions ("Non-exclusive
Franchise"):
a. Effective date. October 8, 2020;
b. Franchise fees. Sixteen percent (16%) of gross monthly receipts. Five and
one-half percent (5.5%), shall be earmarked for the purposes of indemnifying and holding
the City harmless from environmental liability associated with the franchisee's operations
in the City. This portion of the franchise fee shall be paid into the City's Environmental
Liability Fund. One-half percent (0.5%) shall be attributable to the maintenance and
implementation of the City's Source Reduction and Recycling Element;
C. Term. October 8, 2020 to October 7, 2027;
d. Rates. The City shall not set franchisees' bin rates;
e. Indemnification. Franchisees shall indemnify and hold City harmless from
penalties and damages for failure to meet state recycling requirements with respect to the
portion of the Commercial Solid Waste stream collected by franchisees;
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Resolution No. 2020 -
Page 3 of 6
f. Diversion requirements. Franchisees shall divert a minimum of fifty-five
percent (55%), subject to increase as required by state law, of all processable municipal
solid waste, recyclable materials, food scraps and green waste collected by franchisee.
Franchisees shall divert a minimum of sixty-five percent (65%), subject to increase as
required by state law, of all construction and demolition debris collected by franchisees;
g. Disposal requirements. Franchisees shall dispose of Commercial Solid
Waste, not otherwise diverted, in Orange County landfills pursuant to the City's waste
disposal agreement with the County of Orange. City maintains the right to designate
disposal facilities to be used by franchisees;
h. Billing. Franchisees shall be responsible for all billing and collection for its
accounts;
Termination. Franchise shall not be revoked unless franchisee has
defaulted in the performance of any obligation of the 2020 Franchise, and the Franchise
may be terminated pursuant to Newport Beach Municipal Code Section 12.63.140;
j. Application requirements. Prior to obtaining the 2020 Franchise,
franchisees shall designate the specific Commercial Franchise Services for which it
desires to apply and shall demonstrate competence in and compliance with the City's
insurance, equipment, and diversion requirements with respect to those Commercial
Franchise Services;
k. Public education. Franchisees shall meet City's requirements to implement
recycling, diversion and source reduction public education activities;
I. Recycling/diversion programs. Franchisees shall implement and provide
recycling and diversion programs for all customers subject to California State Assembly
Bills 939, 341, and 1826, and the California Green Building Standards Code, codified in
the California Code of Regulations Title 24, Part 11, ("CALGreen");
M. Hauler representative. Franchisees shall designate a representative to
assist in implementing State -imposed recycling and diversion programs; and
n. Compliance. Franchisees shall comply with all state, federal laws and
regulations, terms and conditions of the franchise agreement, the City Charter and the
Newport Beach Municipal Code.
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Resolution No. 2020 -
Page 4 of 6
Section 2: The City intends to grant the 2020 Franchise to the following entities
(collectively, "Proposed Grantees"), which currently hold a 2017 Franchise and are
presently licensed and permitted to conduct business in the City:
a. Arakelian Enterprises, Inc. dba Athens Services;
b. CR&R Incorporated;
C. Direct Disposal;
d. Haul -Away Rubbish Service Co.;
e. Interior Removal Specialist, Inc.;
f. JD Demolition and Grading, Inc.;
g. Rainbow Disposal Co., Inc.;
h. Tight Quarters, Inc.
i. Universal Waste Systems, Inc.
j. Ware Disposal, Inc.; and
k. Waste Management Collection and Recycling, Inc. dba Waste Management
of Orange County.
Should any of the above entities be granted a 2020 Franchise, and accept such 2020
Franchise, the respective entity's 2017 Franchise shall be abandoned at such time the
2020 Franchise is granted pursuant to City Charter Section 1303.
Section 3: The City intends to grant the 2020 Franchise to the following entities
(collectively, "Proposed Grantees"), which do not currently hold a franchise with the City:
a. American Wrecking Inc.;
b. Dallaco, Inc. dba Pacific Coast Environmental;
c. Kevin Ray Demolition Inc.; and
d. L.A.L. Services, Inc.
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Resolution No. 2020 -
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Section 4: The City Council shall conduct a public hearing on August 25, 2020
at 4:00 p.m., or as soon thereafter as is practical, in the City Council Chambers located at
100 Civic Center Drive, Newport Beach, California, to consider granting the Proposed
Grantees the 2020 Franchise. Persons who have an interest in or objection to the
granting of the 2020 Franchise to the Proposed Grantees may appear before the City
Council and be heard at that date and time.
Section 5: The City Council of the City of Newport Beach finds the adoption of
this resolution is categorically exempt from the California Environmental Quality Act
("CEQA") under Sections 15301 and 15308 of the California Code of Regulations set forth
in Title 14, Division 6, Chapter 3 which exempts "existing operations and facilities" and
"actions by regulatory agencies for protection of the environment." Application of Sections
15301 and 15308 is appropriate because the resolution does not change nor expand
existing solid waste operations and facilities within the City. This resolution is also
consistent with the goals of California State Assembly Bills 939, 341, and 1826, The
Califomia Solid Waste Management Act, CALGreen, as well as the objectives of the City's
Source Reduction and Recycling Element.
Section 6: The recitals provided above are true and correct and are
incorporated into the substantive portion of this resolution.
Section 7: If any section, subsection, sentence, clause or phrase of this
resolution is, for any reason, held to be invalid or unconstitutional, such decision shall not
affect the validity or constitutionality of the remaining portions of this resolution. The City
Council hereby declares that it would have passed this resolution, and each section,
subsection, sentence, clause or phrase thereof, irrespective of the fact that any one or
more sections, subsections, sentences, clauses, or phrases be declared invalid or
unconstitutional.
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Resolution No. 2020 -
Page 6 of 6
Section 8: Pursuant to City Charter Section 1301, this resolution shall be
published in the City's official newspaper within fifteen (15) days of its adoption and at
least ten (10) days prior to August 25, 2020.
ADOPTED this 28th day of July, 2020.
Will O'Neill
Mayor
ATTEST:
Leilani I. Brown
City Clerk
APPROVED AS TO FORM:
CITY ATTORNEY'S OF I E
Aaro C. Harp
City Attorney
Wei
ATTACHMENT B
AMENDED AND RESTATED NON-EXCLUSIVE FRANCHISE AGREEMENT
BETWEEN THE CITY OF NEWPORT BEACH AND
FOR COMMERCIAL SOLID WASTE AND DIVERTIBLE MATERIALS
HANDLING SERVICES
This Amended and Restated Non-exclusive Franchise Agreement for Commercial
Solid Waste and Divertible Materials Handling Services ("Amended Agreement") is
entered into this day of November, 201_ ("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
, a [insert name and type of business entity e.g.
corporation, LLC, partnership] ("Franchisee") (City and Franchisee may collectively be
referred to as "Parties"), whose address is
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
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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. 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 services for collection, transportation, delivery, and
disposal of Municipal Solid Waste and/or collection, transportation, processing and
diversion services for 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.
K. The City Council has determined that this grant of a non-exclusive franchise
is in the public interest.
L. On October 10, 2017, the City Council of the City of Newport Beach 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 and Divertible Materials Handling Services Within the City of Newport Beach.
M. As part of its adoption of Ordinance No. 2017-16, the City entered into a
number of nonexclusive franchise agreements with solid waste haulers that serve
commercial businesses in the City.
N. The Parties enter into this Amended and Restated Agreement to
incorporate procedures for compliance with Assembly Bills 341 and 1826.
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 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
subject to all provisions of applicable law, including, but not limited to, Article XIII of the
Amended and Restated Non-exclusive Franchise Agreement Page 2
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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 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 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
"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
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.
Amended and Restated Non-exclusive Franchise Agreement Page 3
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"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 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.
"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.
"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
Amended and Restated Non-exclusive Franchise Agreement Page 4
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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.
Amended and Restated Non-exclusive Franchise Agreement Page 5
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"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.
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"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
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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,
entree, 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
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Facilities which include Compost Facilities, Anaerobic Digestion 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 this Amended Restated Franchise
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,
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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 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
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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,
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
Amended and Restated Non-exclusive Franchise Agreement Page 11
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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, 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
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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.
"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.
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"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" 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
for all Commercial Franchise Services provided by Franchisee in the City as follows:
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
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by City ("Environmental Liability Fund Fee"). Hereinafter, Environmental Liability Fund
Fee and Commercial Franchise Fee shall be collectively referred to as "Fees."
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
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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
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
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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
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
Amended and Restated Non-exclusive Franchise Agreement Page 17
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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 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.
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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.
Amended and Restated Non-exclusive Franchise Agreement Page 18
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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 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
Amended and Restated Non-exclusive Franchise Agreement Page 19
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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 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
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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 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. 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
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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 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
Amended and Restated Non-exclusive Franchise Agreement Page 22
3-31
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 6.04.120 and 6.04.130 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
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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, 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.
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.
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SECTION 12. AB 341 RECYCLING PROGRAM FOR COMMERCIAL PREMISES AND
MULTIFAMILY DWELLINGS
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. 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.
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C. Program Implementation. Within ninety (90) calendar days of either: (1) the
Effective Date of this Amended Agreement; or (2) the date an AB 341 Generator initiates
service with Franchisee to collect or transport Municipal Solid Waste and/or Divertible
Materials, 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
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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
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 Amended 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
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.
Amended and Restated Non-exclusive Franchise Agreement Page 27
3-36
1. 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
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 the provision of a Green Waste and
Wood Waste Diversion Program as described in this Section 15 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
Amended and Restated Non-exclusive Franchise Agreement Page 28
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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 Amendment No. One; or (2) the date an AB 1826 Green Waste and
Wood 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;
Amended and Restated Non-exclusive Franchise Agreement Page 29
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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;
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 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/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
Amended and Restated Non-exclusive Franchise Agreement Page 30
3-39
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
Diversion requirements. Failure to comply with City Recycling and Diversion
requirements shall be a material breach of this Agreement.
SECTION 17. HAULER REPRESENTATIVE
On or before February 1, 2020, 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 repair, and shall be uniformly
painted. All Commercial Solid Waste and Divertible Materials Containers used in the
Amended and Restated Non-exclusive Franchise Agreement Page 31
3-40
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 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 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. On or before January 1, 2018, 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. On or before January 1, 2019, 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:
Amended and Restated Non-exclusive Franchise Agreement Page 32
3-41
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.
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
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 Community Development Department and
prior written consent of the Director of Community 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. Community Development Department Standards. Placement of
Containers and equipment shall be in accordance with the standards set by the Director
of the Community Development Department.
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
Amended and Restated Non-exclusive Franchise Agreement Page 33
3-42
3. Franchisee's failure to collect the Container and dispose of the
contents of the Container within five (5) 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.
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. 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.
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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.
Amended and Restated Non-exclusive Franchise Agreement Page 34
3-43
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.
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
Amended and Restated Non-exclusive Franchise Agreement Page 35
3-44
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:
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:
Amended and Restated Non-exclusive Franchise Agreement Page 36
3-45
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
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. Continuing Obligations. 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 as set forth in Agreement Section 10.
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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
Section(s)
6(A), 7(A)
Failure(s)*
Damages
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
designated
8(B)
Provide requested records
Two hundred fifty
dollars ($250) per
truck delivery
Two hundred fifty
dollars ($250) per
business day until
completed
Provide only those Commercial Two hundred fifty
Franchise Services for which Franchisee dollars ($250)
has applied
11(C) Collect at unauthorized locations and/or
during unauthorized hours five (5) or
more times in a twelve (12) month period
11(D) Label Containers; paint vehicles and/or
Containers corporate color
12(A), 12(C),
Exhibit E, Parts A,
B and C
Implement AB 341 Diversion Program
including Tasks 1-16 in Exhibit E, Part A
within the timeframe in Franchise
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 Dreviouslv ogeratina AB 341
Amended and Restated Non-exclusive Franchise Agreement
Two hundred fifty
dollars ($250)
Fifty dollars ($50)
per business day
until corrected
One thousand
dollars ($1,000) per
occurrence
Page 38
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13(A), 13(C),
Exhibit E, Parts A,
B and C
14(A), 14(C),
Exhibit E, Parts A,
B and C
Program malfunctioning as required by
Part C.
Implement AB 1826 Food Scrap
Diversion Program including Tasks 1-16
in Exhibit E, Part A, within the timeframe
in Franchise Section 13C. 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 Food Scrap Diversion Program
malfunctioning as required by Part C.
Implement AB 1826 Green Waste and
Wood Waste Diversion Program
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.
One thousand
dollars ($1,000)
Five hundred dollars
($500)
15(B) Implement Construction and Demolition One thousand
Diversion Program dollars ($1,000)
16(A), 16(B), 16(E) Submit complete and accurate monthly
reports
16(C) Submit timely monthly reports
17 Designate qualified Hauler
Representative; Failure of Hauler
Representative to timely respond to
Amended and Restated Non-exclusive Franchise Agreement
One hundred dollars
($100) per business
day until corrected
or completed
One hundred dollars
($100) — if not
submitted when due
Five hundred dollars
($500) — if not
submitted Min thirty
(30) calendar days
after due date
Fifty dollars ($50)
per business day
until completed
Page 39
3-48
18(C) Secure or maintain vehicles or vehicle One hundred dollars
equipment ($100) per business
day until completed
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
Initial Here:
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
Amended and Restated Non-exclusive Franchise Agreement Page 40
3-49
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
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:
Amended and Restated Non-exclusive Franchise Agreement Page 41
3-50
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
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.
Amended and Restated Non-exclusive Franchise Agreement Page 42
3-51
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.
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]
Amended and Restated Non-exclusive Franchise Agreement Page 43
3-52
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:
Aaron C. Harp
City Attorney
ATTEST:
Date:
go
Leilani I. Brown
City Clerk
CITY OF NEWPORT BEACH,
a California municipal corporation
Date:
In
Mayor
FRANCHISEE:
Date:
Date:
[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
Amended and Restated Non-exclusive Franchise Agreement Page 44
3-53
W1:113 1 r_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
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
, 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
($ ) 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 attorney'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
3-54
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 day of 20
Name of Contractor (Principal)
Name of Surety
Address of Surety
Telephone
APPROVED AS TO FORM:
CITY ATTORNEY'S OFFICE
Date:
Aaron C. Harp
City Attorney
Authorized Signature/Title
Authorized Agent Signature
Print Name and Title
NOTARY ACKNOWLEDGMENTS OF
CONTRACTOR AND SURETY MUST BE ATTACHED
Faithful Performance Bond Page A-2
3-55
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
, 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.
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 }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
Faithful Performance Bond
(seal)
Page A-3
3-56
WA: 11 --111i
FRANCHISE HAULER ACKNOWLEDGEMENT
THIS FRANCHISE HAULER ACKNOWLEDGMENT is entered into as of
November 7, 2017 (the "Acknowledgment"), by and between the City of Newport Beach,
a charter city and municipal corporation (the "City"), and (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 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; 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
3-57
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
mM4 : i
3-58
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
3-59
EXHIBIT C
FRANCHISE APPLICATION TEMPLATE
[INTENTIONALLY LEFT BLANK]
Franchisee Application Template
Page C-1
3-60
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 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.
D. Pollution Liability Insurance. Franchisee shall maintain pollution
liability insurance covering all of the Franchisee's operations to include onsite and offsite
Insurance Requirements Page D-1
3-61
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 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 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
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.
Insurance Requirements Page D-2
3-62
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
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
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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
Divertable 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 -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).
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(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
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
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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
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
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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 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).
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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 delivere 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 Divertable
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 Divertable 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 Divertable Materials may be placed in the Recycling 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.
Required Tasks For Implementation Of Diversion Programs Page E-5
.:
Internal containers for the Divertable 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 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
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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
• 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.
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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 Divertable 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
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.
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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.
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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) 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.
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