HomeMy WebLinkAbout2022-21 - Granting Non-Exclusive Franchise Agreements for Commercial Solid Waste and Divertible Materials Handling Services Within the City of Newport BeachORDINANCE NO. 2022-21
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY
OF NEWPORT BEACH, CALIFORNIA, GRANTING
NON-EXCLUSIVE FRANCHISE AGREEMENTS FOR
COMMERCIAL SOLID WASTE AND DIVERTIBLE
MATERIALS HANDLING SERVICES WITHIN THE CITY
OF NEWPORT BEACH
WHEREAS, the City Council of the City of Newport Beach ("City Council") 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 of Newport Beach
("City") is a vital public service;
WHEREAS, the City Council further finds and determines 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 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 did 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 new applicants that
wish to perform work under the 2020 Franchise;
Ordinance No. 2022-21
Page 2 of 6
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 (Resolution of Intention.
Notice and Public Hearing), on August 23, 2022, the City Council adopted Resolution
No. 2022-55, providing notice of a public hearing to be held on September 27, 2022 to
grant the 2020 Franchise to the franchise haulers identified in the resolution;
WHEREAS, a public hearing was held on September 27, 2022, in the City Council
Chambers located at 100 Civic Center Drive, Newport Beach, California. A notice of time,
place and purpose of the public hearing was given in accordance with California
Government Code Section 54950 et seq. ("Ralph M. Brown Act") and Section 1301 of
the City Charter. Evidence, both written and oral, was presented to, and considered by,
the City Council at this public hearing;
WHEREAS, pursuant to Section 12.63.080 (Required Findings) of the NBMC,
the City Council finds, on the basis of the application, information, materials, and
testimony submitted, that:
• The applications submitted by Franchisees (defined herein) complies
with Chapter 12.63 (Solid Waste Management) of the NBMC;
• The Franchisees have not within the past three years: (1) had a
franchise terminated by the City; and/or (2) operated a solid waste
enterprise within the City without a franchise;
• Awarding the 2020 Franchise is in accordance with the objectives of
Chapter 12.63 (Solid Waste Management) of the NBMC;
• Granting the 2020 Franchise to Franchisees will not, under the
circumstances of the particular case, materially affect adversely the
health or safety of persons residing or working in the City or be
materially detrimental to the public welfare or injurious to property or
public improvements; and
Ordinance No. 2022-21
Page 3 of 6
• Franchisees have demonstrated sufficient experience, equipment and
a recycling plan and diversion program to safely comply with the
requirements of the 2020 Franchise; and
WHEREAS, having considered all oral and documentary evidence presented at
the public hearing, the City Council determines that the granting of the 2020 Franchise
to Franchisees is in the public interest.
NOW THEREFORE, the City Council of the City of Newport Beach ordains as
follows:
Section 1: There is hereby granted to each entity listed below (collectively,
"Franchisees"), which do not currently hold a franchise with the City, the 2020 Franchise
attached hereto as Attachment 1:
a. Al Rivera Gardening & Landscape;
b. American Dream Construction Clean Up, Corp; and
C. Key Disposal, Inc.
Section 2: Franchisees' right to use City's public streets, ways, alleys and
places for the purposes set forth in this ordinance, is not exclusive and the City reserves
the right to grant a similar use of public streets, ways, alleys and places to any person at
any time from the effective date of this ordinance until the expiration of the 2020
Franchise on October 7, 2027.
Section 3: Franchisees shall comply with and shall be bound by all terms,
provisions and conditions contained in the City Charter and the NBMC including, but not
limited to, Chapters 6.04 (Garbage, Refuse and Cuttings), 6.06 (State Mandated
Municipal Solid Waste Diversion Programs), and 12.63 (Solid Waste Management),
Resolution No. 2022-55, this ordinance, and the 2020 Franchise attached hereto as
Attachment 1.
Ordinance No. 2022-21
Page 4 of 6
Section 4: The 2020 Franchise granted under this ordinance shall take effect
on November 10, 2022, and shall expire October 7, 2027, unless terminated earlier
pursuant to the terms of the agreement. Notwithstanding the effective date above, the
2020 Franchise granted by this ordinance shall not become effective unless and until
the Franchisee files written acceptance of the 2020 Franchise with the City Clerk and
delivers to the City all bonds and insurance policies required to be furnished in
accordance with the requirements of Chapter 12.63 of the NBMC and the 2020
Franchise. The written acceptance shall be in form and substance as prescribed by the
City Attorney and shall operate as an acceptance of each and every term, condition and
limitation contained in this ordinance, the 2020 Franchise, Article XIII (Franchises) of the
City Charter, Resolution No. 2022-55, and Chapter 12.63 (Solid Waste Management) of
the NBMC. A Franchisee shall file written acceptance of the 2020 Franchise no later
than ten (10) days after the adoption of this ordinance.
Section 5: During the term of the 2020 Franchise, Franchisee shall pay to City
franchise fees for the privilege of providing Commercial Solid Waste and Divertible
Materials Handling Services in the City of Newport Beach and use of public streets,
ways, alleys and places for such purposes. Franchise fee payments shall be paid
quarterly and shall be computed and paid on the basis of paid receipts received by the
Franchisee for all Commercial Solid Waste and Divertible Materials Handling Services
provided by the Franchisee within the City. Franchise fees shall total sixteen percent
(16%) of Franchisee's gross receipts as follows:
(a) Franchisee shall pay to the City ten and one-half percent (10.5%) of
the Franchisee's gross receipts, of which one-half of one percent (0.5%) shall be
attributable for the preparation, adoption, and implementation of an integrated waste
management plan consistent with of the City's Source Reduction and Recycling
Element; and
(b) Franchisee shall pay to the City Environmental Liability Fund five
and one-half percent (5.5%) of Franchisee's gross receipts for the City to, among other
things, take reasonable actions to obtain protection and indemnification from
environmental liability associated with the franchisee's operations in the City as set forth
in the 2020 Franchise.
Section 6: The City Council authorizes the Mayor and City Clerk to execute
the attached 2020 Franchise in substantially the same form as the attached.
Ordinance No. 2022-21
Page 5 of 6
Section 7: The recitals provided in this ordinance are true and correct and are
incorporated into the substantive portion of this ordinance.
Section 8: If any section, subsection, sentence, clause or phrase of this
ordinance is, for any reason, held to be invalid or unconstitutional, such decision shall
not affect the validity or constitutionality of the remaining portions of this ordinance. The
City Council hereby declares that it would have passed this ordinance, and each
section, subsection, sentence, clause or phrase hereof, irrespective of the fact that any
one or more sections, subsections, sentences, clauses, or phrases be declared invalid
or unconstitutional.
Section 9: The City Council of the City of Newport Beach finds that this
ordinance is not a project subject to the California Environmental Quality Act ("CEQA")
in accordance with Sections 15060(c)(2), 15060(c)(3), 15061(b)(3) and 15308 of the
California Code of Regulations Title 14, Division 6, Chapter 3. The City Council further
finds that this ordinance is categorically exempt under Sections 15301 and 15308,
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 neither this ordinance nor the 2020 Franchise changes or expands
existing solid waste operations and facilities within the City. This ordinance is also
consistent with the goals of California State Assembly Bills 939, 341, and 1826, The
California Solid Waste Management Act, CALGreen, as well as the objectives of the
City's Source Reduction and Recycling Element.
Section 10: The Mayor shall sign and the City Clerk shall attest to the passage
of this ordinance. The City Clerk shall cause the ordinance, or a summary thereof, to be
published pursuant to City Charter Section 414. This ordinance shall be effective thirty
(30) calendar days after its adoption.
Ordinance No. 2022-21
Page 6 of 6
This ordinance was introduced at a regular meeting of the City Council of the City
of Newport Beach, held on the 27th day of September 2022, and adopted on the 11 th
day of October 2022, by the following vote, to -wit:
AYES: Mayor Muldoon, Mayor Pro Tern Blom, Council Member Avery, Council
Member Brenner, Council Member Dixon, Council Member Duffield,
Council Member O'Neill
NAYS:
ABSENT:
ATTEST:
09m,
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O
LEILANI I. BROWN, bTY CLERK �.
APPROVED AS TO FORM:
CITY ATTORNEY'S OFFICE
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AARON C. HARP, CITY ATTORNEY
Attachment: Agreement Template for 2020 Non -Exclusive Franchise Agreement for
Commercial Solid Waste and Divertible Materials Handling Services
NON-EXCLUSIVE FRANCHISE AGREEMENT BETWEEN THE CITY OF
NEWPORT BEACH AND FOR COMMERCIAL
SOLID WASTE AND DIVERTIBLE MATERIALS HANDLING SERVICES
This Non-exclusive Franchise Agreement for Commercial Solid Waste and
Divertible Materials Handling Services ("Agreement") is entered into this _ day of
, 2022 ("Effective Date's 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's (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. Some
smaller commercial generators are required by CalRecycle to participate on or after
January 1, 2020.
F. The City has received written notification from CalRecycle of its intention to
enforce the deadlines for implementation of AB 341 and AB 1826 programs within the
City as required by the Act; therefore, it is important that Franchisee implement and
maintain successful AB 341 an AB 1826 diversion programs for all commercial customers
as required by the Ad, to the satisfaction of both the City and CalRecycle.
G. Pursuant to Article XII I of the City Charter, Code Chapter 12.63, and Public
Resources Code Sections 40059, 49300, and 49500 through 49523, or any successor
statutes, the City is authorized to enter into non-exclusive franchise agreements for
commercial solid waste and divertible materials handling services.
H. On October 10, 2017, the City Council of the City of Newport Beach ("City
Council") adopted Ordinance No. 2017-16, An Ordinance of the City Council of the City
of Newport Beach, California, Granting Non -Exclusive Solid Waste Franchises to
Provide Commercial Solid Waste Handling Services Within the City of Newport Beach.
I. As part of its adoption of Ordinance No. 2017-16, the City entered into a
number of nonexclusive franchise agreements allowing solid waste haulers to operate in
the City.
J. On October 22, 2019, the City Council approved revisions to the
nonexclusive franchise agreement with solid waste haulers to improve procedures for
compliance with Assembly Bills 341 and 1826. The revised nonexclusive franchise
agreement also extended the tens for an additional two (2) years.
K. Pursuant to Code Chapter 12.63, Franchisee has filed a franchise
application with the City to operate under the new Nonexclusive Franchise Agreement for
Commercial Solid Waste and Divertible Materials Handling Services.
L. The Parties now wish to terminate the franchise agreement adopted
pursuant to Ordinance No. 2017-16 and enter into a new Nonexclusive Franchise
Agreement for Commercial Solid Waste and Divertible Materials Handling Services.
ALTERNATIVE, IF THEY DO NOT HAVE A CURRENT FRANCHISE
AGREEMENT, THEN L. WOULD READ, "The Parties now wish to enter into a
Nonexclusive Franchise Agreement for Commercial Solid Waste and Divertible Materials
Handling Services."
M. City has reviewed Franchisee's application and Franchisee has
represented it is capable of providing collection services for commercial recyclable
materials, food scraps, green waste, municipal solid waste, and/or construction and
demolition debris in the City.
N. Pursuant to this Agreement, City desires to authorize Franchisee to provide
those non-exclusive commercial services for collection, transportation, delivery, and
disposal of Municipal Solid Waste and/or collection, transportation, processing and
diversion of recyclable materials, food scraps, green waste, wood waste, and construction
and demolition debris as requested in Franchisee's application and for which Franchisee
has demonstrated capability.
0. The City Council has determined that this grant of a non-exclusive franchise
is in the public interest.
Non-exclusive Franchise Agreement Page 2
NOW, THEREFORE, the City and Franchisee do hereby agree as follows:
SECTION 1. GRANT OF FRANCHISE
A. By Ordinance No. 2020-20, City has granted to Franchisee a non-exclusive
Franchise authorizing Franchisee to provide Commercial Franchise Services within all or
any part of the City and to use the public streets and public right-of-ways for such purpose.
Franchisee acknowledges that the Franchise is not exclusive and that the Franchise is
subject to all provisions of applicable law, including, but not limited to, Article XIII of the
City Charter, Ordinance No. 2020-20, Code Chapter 12.63, and the terms and conditions
of this Agreement
B. Upon the Effective Date of this Agreement, the parties agree that any prior
authorization relating to the provision of Commercial Franchise Services within all or any
part of the City arising under and pursuant to any prior franchise issued to Franchisee
shall be deemed to be abandoned and of no further force or effect except the Franchisee's
obligation(s) to comply with the Diversion requirements set forth in Sections 12 through
15, the Continuing Obligations set forth in Section 23(J), or any other obligations specified
in the franchise agreement granted pursuant to Ordinance No. 2017-16.
SECTION 2. TERM OF FRANCHISE
This Agreement shall commence on the Effective Date, and shall terminate on the
Termination Date, unless terminated earlier as set forth herein.
SECTION 3. DEFINITIONS
"AB 341 Generator' means all Municipal Solid Waste generators required by AB
341 (Public Resources Code Section 41780.01) to divert Recyclable Materials generated
on -site from Disposal including (A) all businesses located and operating within the City,
and the responsible party, property owners, owners, operators, property managers,
tenants and lessees of same, that generate four (4) or more cubic yards of Municipal Solid
Waste per week; including but not limited to, retail stores, restaurants, offices,
supermarkets, convenience stores, malls, strip malls, service businesses, hospitals,
assisted living facilities, and federal, state and local government facilities; (B) Multifamily
Dwellings consisting of five (5) or more units regardless of the amount of Municipal Solid
Waste generated; (C) the City, its facilities, its non-residential properties, and (D) special
events that take place in the City that generate four (4) or more cubic yards of municipal
solid waste per event whether or not sponsored by the City.
"AB 1826 Generator" means all food -generating businesses within the City, and
the responsible parties, property owners, owners, operators, property managers, tenants
and lessees of same, that generate four (4) or more cubic yards of Municipal Solid Waste
per week and are required by AB 1826, as codified in Public Resources Code Section
42649.82, to divert all Food Scraps generated on -site from Disposal; including but not
limited to, all restaurants, cafeterias, hospitals, and supermarkets; (B) all non -food -
generating businesses and the responsible parties, property owners, owners, operators,
property managers, tenants and lessees of same, that generate four (4) or more cubic
Non-exclusive Franchise Agreement Page 3
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
Sold Waste per week on or after January 1, 2020. If CalRecycle changes the quantities
of Municipal Solid Waste necessary to be considered an AB 1826 Generator, the
definition of an AB 1826 Generator shall be automatically amended to reflect these new
quantities.
"Act" means the California Integrated Waste Management Act of 1989 (Public
Resources Code Sections 40000, et seq.) as amended and as implemented by
regulations of CalRecycle (or its successor agency) and the Air Resources Board (or its
successor agency).
"Alternative Daily Cover" or "ADC' means cover material other than earthen
material placed on the surface of the active face of a Municipal Solid Waste Landfill at the
end of each operating day to control vectors, flies, fires, odors, blowing litter and
scavenging. Prior to 2014, Green Waste was included in the list of CalRecycle-approved
ADC materials and use of Green Waste for this purpose was counted as "Diversion" for
purposes of the Act. AB 1594, passed and signed into law in 2014, phases out the use
of Green Waste as ADC effective January 1, 2020. As of January 1, 2020, no Green
Waste Collected within the City will not be used as ADC and Green Waste must be
diverted for processing such as mulching, Composting, as feedstock for Anaerobic
Digestion or other CalRecycle-approved means that counts as Diversion.
"Anaerobic Digestate" or "Digestate" means the material left at the conclusion of a
biological process that decomposes organic matter in an enclosed environment with little
or no oxygen, resulting in a biogas and a liquid/solid stream called Digestate (CCR
Section 17896.2(a)(6)). Any Digestate created from Green Waste, Food Scraps or other
organic materials Collected within the City must be further processed at a permitted
Composting Facility or utilized in another manner that is fully permitted and approved by
all federal, state and local regulatory agencies, including but not limited to CalRecycle,
and that is considered as "Diversion" by CalRecycle for purposes of the Act.
"Anaerobic Digestion" means a biological process that decomposes organic matter
in an environment with little or no oxygen, resulting in a biogas and a liquid/solid stream
called Anaerobic Digestate. Such activity takes place at an "Anaerobic Digestion Facility."
"Bin(s)" means open top rectangular containers with wheels, with attached plastic
or metal lids, used for storage of Municipal Solid Waste, Recyclable Materials, Green
Waste, Food Scraps, Construction and Demolition Debris or other materials that are
Collected by Franchisees or other Persons authorized to Collect and transport such
materials within City.
Non-exclusive Franchise Agreement Page
"Bioengineered Feedstock" means a mixture of materials utilized in Wastewater
Treatment Plants (WWIP's) or publicelly-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
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.
Non-exclusive Franchise Agreement Page 5
"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 Processble 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.
"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 outdoorwindrow 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,
Non-exclusive Franchise Agreement Page 6
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.
"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.
Non-exclusive Franchise Agreement Page 7
"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
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
Non-exclusive Franchise Agreement Page 8
the applicable provisions of the California Health and Safety Code and California Water
Code.
"Food Scraps' means material resulting from the production, processing,
preparation or cooking of food for human consumption that is separated from Municipal
Solid Waste. Food scraps include surplus or unsold edible food, raw food left over after
food preparation, leftover cooked food, as well as spoiled food such as vegetables and
culls, and plate scrapings. Food scraps includes food -soiled paper that is mixed in with
the food scraps. "Food Scraps" are Collected and transported to Food Scrap Processing
Facilities which include Compost Facilities, Anaerobic Digestion Facilities, and
Wastewater Treatment Plants utilizing Engineered Feedstock.
"Food Soiled Paper" means paper towels, tissue products, paper napkins, paper
plates and cups, coffee fillers, tea bags, waxed paper, butcher paper, paper take-out
boxes and containers, greasy pizza boxes, paper bags, cardboard and wax -coated
cardboard produce boxes that are Contaminated with Food Scraps. Food Soiled Paper
does not include polystyrene, aluminum foil, foil -lined wrap or diapers.
"Franchise" or "Franchise Agreement" means this Agreement between the City and
a Franchisee, granted pursuant to Agreement Section 1(A), providing Franchisee the
right, for a specified period of time and pursuant to Article XIII of the City Charter, the
Code, and the terms and conditions of this Agreement, to provide for the Collection and
Diversion of Commercial Solid Waste Handling Services to Commercial Premises and
Multifamily Dwellings within all or any part of the City of Newport Beach and to use the
public streets and public right-of-ways for such purpose. Throughout this Agreement, the
terms "Agreement," "Franchise" or "Franchise Services" may be used interchangeably
unless otherwise specified or the context requires otherwise.
"Franchisee" means the individual or business entity identified as "Franchisee" on
the signature page of this Agreement.
"Franchise Fee" means the fee or assessment imposed by the City on a
Franchisee, which among other things, is intended to offset the City's expenses related
to the administration of the Franchise Agreement, the Integrated Waste Management
Program, the maintenance and implementation of the City's Source Reduction and
Recycling Element, compliance with the California Integrated Waste Management Act, to
compensate the City for damages to its streets, sidewalks, curbs and gutters and other
infrastructure resulting from the Franchisee's exercise of its rights under the franchise,
City's reporting requirements and other related expenses.
"Generator" means a resident, an owner or responsible party for a Multifamily
Dwelling, Commercial Premises, or business that Generates Municipal Solid Waste,
Recyclable Materials, Green Waste, Food Scraps and/or Construction and Demolition
Debris as a result of its business, commercial facility or property activity. Generator may
also include tenants, property managers for facilities with leased space, employees and
contractors of Generator.
Non-exclusive Franchise Agreement Page 9
"Generate" means to bring into existence or create, or to use, maintain, or possess
an Rem, material or product, the result of which such creation, bringing into existence,
use, maintenance or possession is that the Rem, material or product first becomes, or is
converted transformed, evolved or deemed as Municipal Solid Waste, Recyclable
Materials, Food Scraps, Green Waste or Construction and Demolition Debris.
"Green Waste" means any debris that is composed of organic material or plantlike
matter, which is a result of seasonal variations, landscape or gardening activities. Green
Waste includes, without limitation, grass clippings, leaves, shrubs, trees, branches,
stumps, flowers, plant stalks and non -hazardous wood. Green Waste does not include
Food Scraps.
"Gross Receipts" means all money, whether paid by cash, check, debit or credit,
or other consideration collected from Customers by Franchisee that relates in any way to
Commercial 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.
Non-exclusive Franchise Agreement Page 10
"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.
"Muthfamiy Dwelling" mean housing projects containing or consisting of five (5) or
more units, whether apartment houses, condominiums, townhomes, or mixed use
projects, mixed use condominiums and rental housing, which use centralized Commercial
Solid Waste Containers (including Bins, Carts and/or Compactors) for storage of
Municipal Solid Waste, Recyclable Materials, Green Waste and/or Food Scraps.
Multifamily Dwelling does not include single-famiy 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,
Non-exclusive Franchise Agreement Page 11
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-diverible constituents including
but not limited to, broken glass, diapers, ashes, Industrial Waste, discarded Bulky Goods
that cannot be re -used or dismantled for Recycling, manure, vegetable or animal solid or
semi -solid wastes that remain after segregation of Food Scraps and Green Waste, which
cannot be separated or sorted out of the Processable Municipal Solid Waste by
reasonable economic or technologically available means.
"Processing Facility/Facilities" means a facility or facilities where the following
activities are conducted: sorting, cleaning, treating, Composting and reconstituting
Collected materials and returning these materials to the economic mainstream in the form
of raw materials for new, reused or reconstituted products which meet the quality
standards of the market place (activities are herein collectively defined as "Processing").
Processing Facilities include Materials Recovery Facilities (both Clean and Dirty MRF's
as defined herein), Composting Facilities, Anaerobic Digestion Facilities, Wastewater
Treatment Plants, Construction and Demolition Debris sorting facilities, 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
Non-exclusive Franchise Agreement Page 12
City including, without limitation, State mandates to Divert fifty percent (50%) of the
Municipal Solid Waste Generated within the City, achievement of the per capita Diversion
requirements in the Act, and the provision of City -approved Diversion services to all
Customers. Recycling Requirements includes future changes to the Act that may require
the City to Divert higher percentages of Municipal Solid Waste Generated within the City
and/or to provide additional and/or enhanced or expanded Diversion Programs.
"Residue" means the Non-Processable Municipal Solid Waste destined for
Disposal in a Landfill, which remains after processing at a Processing Facility has taken
place. Residue does not include Anaerobic Digestate. The percent of Residue is
calculated by dividing the weight of the Residue by the weight of the total materials
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
Non-exclusive Franchise Agreement Page 13
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.
"Tenn" means the finite amount of time that commences on the Effective Date and
terminates on the Termination Date.
"Termination Date" means October 7.2027.
"State" means the State of California.
"Transformation" means incineration, pyrolysis, distillation, or biological conversion
(other than Composting) to turn Municipal Solid Waste and/or organic materials into a fuel
used to produce energy (example: waste -to -energy). Transformation does not include
Composting, gasification, Biomass Conversion, or wet or dry Anaerobic Digestion.
"Transformation Facility" means a facility using a Transformation process to turn
Municipal Solid Waste and/or organic materials into a fuel used to produce energy. A
Franchisee may only utilize Transformation for the quantity of Municipal Solid Waste
allowed by CalRecycle to be counted as Diversion pursuant to the Act, as this may be
changed in the future by legislation or regulations. The Act currently provides that a
jurisdiction can only use Transformation to divert up to ten percent (10%) of the Municipal
Solid Waste generated in the jurisdiction. Therefore, materials collected by a Franchisee
and processed at a Transformation Facility shall be limited to ten percent (10%) of the
Non-Processable Municipal Solid Waste Collected by the Franchisee within City.
"Ton" means a short ton of two -thousand (2,000) pounds avoirdupois.
"Wood Waste" means all non -hazardous wood material that is not painted with
lead -based or other paints containing materials identified as hazardous waste, or treated
with creosote or other hazardous materials. Wood Waste includes, but is not limited to,
tree branches and other wood trimmings, dimensional lumber and other pieces of wood
generated during the manufacture or processing of wood products. For wood generated
from construction and/or demolition activities, see the definition of "Construction and
Demolition Debris.
SECTION 4. FRANCHISE FEES
A. During the Term of this Franchise, Franchisee shall pay to City Franchise
Fees for the privilege of providing Commercial Franchise Services in the City and for the
use of public streets, right-of-ways and places for such purposes. The Franchise Fees
that Franchisee shall pay to the City shall total sixteen percent (16%) of the gross receipts
which are reasonably related to the value of Agreement for all Commercial Franchise
Services provided by Franchisee in the City as follows:
Non-exclusive Franchise Agreement Page 14
1. Ten and one-half percent (10.5%) of the Gross Receipts for all
Commercial Franchise Services provided by the Franchisee in the City ("Commercial
Franchise Service Fee', of which one half percent (.5%) shall be attributable to the
maintenance and implementation of the City's SRRE, and shall be separately accounted
for, and used only for the costs stated in Public Resources Code Section 41901 or any
successor provision.
2. Five and one-half percent (5.5%) of the Gross Receipts for all
Commercial Franchise Services provided by Franchisee in the City shall be paid into an
Environmental Liability Fund, which shall be a separate fund established and maintained
by City ("Environmental Liability Fund Fee'. Hereinafter, Environmental Liability Fund
Fee and Commercial Franchise Fee shall be collectively referred to as "Fees."
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.
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 Cashiers Office located at 100 Civic Center Drive, P.O. Box 1768, Newport Beach,
Non-exclusive Franchise Agreement Page 15
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.newportheachca.gov) or by wire transfer (at Franchisee's cost).
Franchisee assumes all risk of loss and responsibility for late charges and delinquency
rates if payments are not timely received by City regardless of the method of transmittal.
E. Franchisee hereby acknowledges that the late payment of Fees or other
sums due hereunder will cause City to incur costs not contemplated by this Agreement,
the exact amount of which is extremely difficult to ascertain. Such costs include, but are
not limited to, processing and accounting charges. Accordingly, any payment of any sum
to be paid by Franchisee not paid within five (5) calendar days of its due date shall be
subject to a ten percent (10%) late charge plus interest on the amount due at the rate of
ten percent (10%) per annum from the date due and payable by the terms of this
Agreement until the same shall be paid. City and Franchisee agree that this late charge
represents a reasonable estimate of such costs and expenses and is fair compensation
to City for its loss suffered by such late payment by Franchisee.
F. With the exception of October 30, 2020, Fees shall be due and payable on
April 30, July 30, October 30 and January 30 of each calendar year of the Term. Any
dates falling on a weekend or holiday may be paid the first business day following the
weekend or holiday. Fees must be received by City, not merely postmarked, by or before
the aforementioned dates.
G. In the event Franchisee believes that it has paid Fees in excess of the Fees
due to City, Franchisee may submit a request for refund to the Finance Director on a form
provided by the Finance Director. If proof of overpayment is satisfactory to the Finance
Director, the Finance Director shall refund to Franchisee any overpayment. Franchisee
shall not apply any overpayment as a credit against any other amounts payable to City
unless specifically authorized by the Finance Director in writing.
H. Each Franchise Fee and Environmental liability Fund Fee payment shall
be accompanied by a written statement described in Code Section 12.63.090, or any
successor section, on a form provided by the Finance Director. No statement filed under
this Section shall be conclusive as to the matters set forth in such statement, nor shall the
filing of such statement preclude the City from collecting by appropriate action the sum
that is actually due and payable.
I. Franchisee may separately list the actual Franchise Fee rate and
Environmental Liability Fund Fee rate as established by this Section, and any other fees
required by this Agreement, on its invoices to its customers. In no case may the Franchise
Fee rate or Environmental Liability Fund Fee rate listed by the Franchisee on the invoice
exceed the actual Franchise Fee or Environmental Liability Fund Fee rates imposed by
the City.
SECTION 5. PERFORMANCE BOND/DEPOSIT
A. Prior to the placement of any Container for Commercial Franchise Services
on public or private property, Franchisee shall, to ensure compliance with the duties and
Non-exclusive Franchise Agreement Page 16
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 VI[ (or larger) in
accordance with the latest edition of Best's Key Rating Guide: Property -Casualty. The
Bond shall be in the form attached hereto as Exhibit "A," which is incorporated herein by
this reference.
SECTION 6. DIVERSION AND DISPOSAL OF MUNICIPAL SOLID WASTE,
RECYCLABLE MATERIALS, FOOD SCRAP AND GREEN WASTE
A. Franchisee shall comply with all Diversion requirements imposed by law,
ordinance, or regulation on City, Franchisee, and/or any Commercial Premises or
Multifamily Dwelling. On a monthly basis, Franchisee shall Divert a minimum of fifty-five
percent (55%) of all Processable Municipal Solid Waste, Recyclable Materials, Food
Scraps and Green Waste Collected in the City by Franchisee. This Diversion requirement
is separate from and in addition to any Diversion requirements set forth in Agreement
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
certifiedflicensed 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.
Non-exclusive Franchise Agreement Page 17
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 stone drainage system. Nothing in this Agreement shall be deemed or
construed as authorizing Franchisee to operate a Landfill, Recycling Facility, or other solid
waste disposal facility in the City.
D. If Franchisee violates the terms in Agreement Section 6(A) and/or Section
6(B) above, Franchisee agrees that the City has the future right to direct that all Municipal
Solid Waste be delivered to a fully permitted Disposal facility designated by City and that
Recyclable Materials, Food Scraps, Green Waste and/or Wood Waste be delivered to a
fully permitted Processing Facility designated by City. This exercise of 'flow control" by
the City shall be made upon at least thirty (30) calendar days prior written notice to
Franchisee, and written notice shall include the violation(s) prompting the City's action
regarding "flow control." Failure to comply with the Recycling, Diversion, and/or Disposal
requirements set forth in this Section shall be a material breach of this Agreement.
E. Franchisee shall include as a condition to its contractual agreement with its
Customers a provision prohibiting disposal of Hazardous Waste in any Container.
F. Franchisee shall implement a load check program that includes, at a
minimum, a visual check of all Containers to be emptied to protect against inclusion of
Hazardous Waste and shall prepare a written record of all Hazardous Waste discovered
during the process. The records shall comply with all State and Federal Hazardous Waste
Regulations and shall be maintained for the length of the Term of the Franchise and for
a minimum period of three (3) years, or for any longer period required by law, after the
Extended Termination Date. The records shall be made available to the City in
Franchisee's monthly reports submitted pursuant to Agreement Section 16.
G. This Agreement does not purport to grant Franchisee or City ownership over
materials that Franchisee's Customers discard for pickup by Franchisee or that
Franchisee handles under this Agreement. The right to possession or ownership of those
materials shall be determined in accordance with law and any agreement between
Franchisee and its Customers, and not as a result of this Agreement. Parties
acknowledge that City has no ownership rights in Divertible Materials or revenue from
sale thereof, except as provided in this Agreement.
H. City makes no representations or warranties with respect to
characterization of Municipal Solid Waste, Recyclable Materials, Food Scraps, or Green
Waste within City. City expressly disclaims any representations and warranties, either
express or implied, as to the merchantability or fitness of Municipal Solid Waste,
Recyclable Materials, Food Scraps, or Green Waste for any particular purpose.
SECTION 7. DIVERSION OF CONSTRUCTION AND DEMOLITION DEBRIS
A. On a monthly basis, Franchisee shall Divert a minimum of sbrty-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
Non-exclusive Franchise Agreement Page 18
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 Directorto prove that Franchisee has complied with this subsection, any applicable
law, ordinance, regulation, or condition related to Recycling and Diversion of Construction
and Demolition Debris.
B. Franchisee shall Dispose of, or oversee Disposal of, any Construction and
Demolition Debris collected in the City by Franchisee, and not diverted pursuant to
Agreement Section 7(A), in accordance with the Franchise Hauler Acknowledgment,
attached hereto as Exhibit "B." Franchisee hereby accepts and agrees to abide by all
terms of the Franchise Hauler Acknowledgment. If, during the Term of this Agreement,
the City's Waste Disposal Agreement with Orange County expires, lapses or is
terminated, the Franchise Hauler Acknowledgement shall be null and void and
Franchisee shall Dispose of 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 Tenn 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.
Non-exclusive Franchise Agreement Page 19
F. This Agreement does not purport to grant Franchisee or City ownership over
materials that Franchisee's Customers discard for pickup by Franchisee or that
Franchisee handles under this Agreement. The right to possession or ownership of those
materials shall be determined in accordance with law and any agreement between
Franchisee and its customers, and not as a result of this Agreement. Parties
acknowledge that City has no ownership rights in Recyclable Materials or revenue from
sale thereof, except as provided in this Agreement.
G. City makes no representations or warranties with respect to
characterization of Construction and Demolition Debris within City. City expressly
disclaims any representations and warranties, either express or implied, as to the
merchantability or fitness of Construction and Demolition Debris for any particular
purpose.
SECTION 8. FRANCHISEE'S APPLICATION; RECORDS; AUDITS
A. Application. Franchisee has submitted an application to City in substantially
the same form as the template attached hereto as Exhibit "C" and incorporated herein by
reference as a condition of entering into this Agreement. Franchisee hereby represents
and warrants that all information contained in the application submitted to City, and any
information submitted by Franchisee to City supplementary thereto, is true and correct
and does not contain any untrue statement of a material fact nor omit a material fact that
makes a statement contained therein misleading.
B. Records. Franchisee shall maintain all records relating to Franchisee's
Commercial Franchise Services provided hereunder including, but not limited to,
Customer lists, billing records, accounts payable records, maps, service requests, cash
receipts records, AB 939/341/1826 compliance records, tonnage reports, weight tickets
and invoices from all Landfills, Processing Facilities, and Recycling Facilities utilized for
Commercial Solid Waste collected within City, and all other documents and materials
which reasonably relate to Franchisee's compliance with and performance of the
provisions of this Agreement ("Records"), for the full Term of this Agreement and an
additional period thereafter of not less than three (3) years, or any longer period required
by law. Such Records shall be made available to City at Franchisee's regular place of
business, but in no event outside the County of Orange. All Records shall be clearty
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.
Non-exclusive Franchise Agreement Page 20
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 fine to perform, an audit, at
City's expense, of Franchisee's Records ("City Audit") to ensure compliance with the
provisions of this Agreement. The City Audit shall include, without limitation, review
and/or copying of Franchisee's cash receipts, books of account, Municipal Solid Waste
and Divertible Materials tonnage reports, Collection, Disposal and Diversion records,
and other related records, as well as those of each of its parent, subsidiary and/or
affiliated companies, as appropriate. As part of the City Audit, Franchisee's Customer
accounts and related records may be subject to review. While Franchisee will not be
required to submit for copying detailed account records, such as Customer names,
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.
Non-exclusive Franchise Agreement Page 21
SECTION 9. INSURANCE REQUIREMENTS
Without limiting Franchisee's indemnification of City, and prior to commencement
of the Effective Date of this Agreement, Franchisee shall obtain, provide copies to City
and maintain at its own expense during the Term of this Agreement policies of insurance
of the type and amounts described in the Insurance Requirements attached hereto as
Exhibit "D" and incorporated herein by reference.
SECTION 10. RESPONSIBILITY FOR DAMAGES AND INJURY/INDEMNIFICATION
A. Franchisee Responsibility. Franchisee shall be solely responsible for any
damages caused as a result of Franchisee's acts, negligence, or omissions including, but
not limited to, injuries to or death of any person or damage to public and/or private
property and damages to public improvements arising from or as a result of Franchisee's
Commercial 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 attomeys' 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 ail 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,
Non-exclusive Franchise Agreement Page 22
liabilities, causes of action, suits, legal or administrative proceedings, interest, fines,
charges, penalties and expenses attorneys' and expert witness fees and costs incurred
in connection with defending against any of the foregoing or in enforcing this indemnity of
any kind whatsoever paid, incurred or suffered by, or asserted against, the Indemnified
Parties or Franchisee arising directly or indirectly from or caused by any of the following:
(i) the violation of any environmental laws or the failure to clean up and mitigate the
consequences of the spill or release of any Hazardous Substance, and (ii) Franchisee's
activities under this Agreement concerning any Hazardous Substance at any place where
Franchisee stores or disposes of solid or Hazardous Waste pursuant to this Agreement,
or preceding Agreements between City and Franchisee. The foregoing indemnity is
intended to operate as an agreement pursuant to the Comprehensive Environmental
Response, Compensation and Liability Act (42 U.S.C. Section 9607(e)) and any
amendments thereto, and California Health and Safety Code Section 25364, or any
successor statute, to insure, protect, hold harmless, and indemnify City from liability.
D. AB 939 Indemnification. Franchisee agrees to meet all requirements of
City's SRRE as to the portion of the Commercial Solid Waste stream Collected and/or
handled by Franchisee. Franchisee agrees to protect, defend, indemnify, and hold the
Indemnified Parties harmless against all fines or penalties imposed by 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.
Non-exclusive Franchise Agreement Page 23
SECTION 11. COMMERCIAL SOLID WASTE AND DIVERTIBLE MATERIALS
COLLECTION SERVICES
A. Authorized Collection Services. Franchisee may only provide those
Commercial Franchise Services designated in Franchisee's application, or any amended
application, and for which Franchisee has demonstrated compliance with Code Section
12.63.050, or any successor section.
B. Frequency of Collection. Franchisee shall collect all Municipal Solid Waste
and Divertible Materials from Commercial Premises and Multifamily Dwellings on a
schedule to be agreed upon between Franchisee and its Customers, subject to the
restrictions set forth in Agreement Section 11(C); provided, however, that such schedule
complies with Code Subsections 6.04.110 and 6.04.120 and does not permit the
accumulation of Commercial Solid Waste or Divertible Materials in quantities that are
unreasonable or detrimental to the public health or safety. Requests for Collection from
Customer Premises with overflowing Containers, or from Customer Premises where there
have been missed pickups, shall be serviced within twenty-four (24) hours of any such
request by the Customer or City. Should City receive a Customer complaint related to or
arising from Franchisee's failure to collect Commercial Solid Waste and Divertible
Materials as provided herein, Franchisee's Collection schedule shall be submitted to the
City for review.
C. Hours and Days of Collections.
1. Franchisee shall not collect Commercial Solid Waste or Divertible
Materials in any area of the City after 6:30 p.m. and prior to 5:00 a.m.
2. Franchisee shall not Collect Commercial Solid Waste or Divertible
Materials from any Commercial Premises or Multifamily Dwelling located within five
hundred (500) feet of an occupied residential premise, motel or hotel, nor shall any of
Franchisee's Collection vehicles be operated in any residential areas of the City except
between the hours of 7:00 a.m. and 6:30 p.m., Monday through Friday, nor on any
Saturday or Sunday, except between the hours of 8:00 a.m. and 6:00 p.m.
3. Franchisee shall neither operate its Collection vehicles nor Collect
Commercial Solid Waste or Divertible Materials from any Commercial Premises,
governmental facility, or Multifamily Dwelling located within five hundred (500) feet of a
school, or other educational facility between the hours of 7:30 a.m. and 9:00 a.m. or 1:00
p.m. and 3:00 p.m., Monday through Friday. The limitations in Agreement Section
11(C)(3) notwithstanding, Franchisee's operation of Collection vehicles on any non-
residential arterial roadway within the City are subject to Section 6.04.130(A) but shall not
be prohibited or limited under this Agreement.
4. Commercial Solid Waste and Divertible Materials collection on
Sundays shall be limited to Food Scraps and Municipal Solid Waste from Commercial
Premises, which require Collection every day due to public health and safety concerns.
Non-exclusive Franchise Agreement Page 24
5. At Franchisee's request, the City shall provide maps illustrating the
geographic limitations placed on Franchisee's Collection services pursuant to Agreement
Section 11(C)(3) ("Maps'). City expressly disclaims any liability related to or arising from
the accuracy of any Maps provided by City. City may update the Maps as needed, and
Franchisee's failure to request or secure the Maps, or any updated Maps, shall not relieve
Franchisee of any obligations under this Agreement.
D. Containers. Franchisee shall provide the appropriate sized Containers to
each Customer for storage of the Commercial Solid Waste and Divertible Materials
Collected by Franchisee. Containers provided by Franchisee must be identified with
Franchisee's name and be in the color identified by Franchisee in Franchisee's
application.
SECTION 12. AB 341 RECYCLING PROGRAM FOR COMMERCIAL PREMISES AND
MULTIFAMILY DWELLINGS
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
Non-exclusive Franchise Agreement Page 25
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 noncompliant with the Act and be grounds for termination of this
Agreement.
C. Program Implementation. Within ninety (90) calendar days of either: (1) the
Effective Date of this Agreement; or (2) the date an AB 341 Generator initiates service
with Franchisee to collect or transport Municipal Solid Waste and/or Divertible Materials,
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
Non-exclusive Franchise Agreement Page 26
or backhauling Food Scraps, is donating or selling Food Scraps, is
donating edible food for human consumption, and/or is using a third
party or other Franchisee to Collect Food Scraps, Franchisee shall
report this to City and City, in its sole discretion, shall make a final
determination as to the adequacy of the internal and/or third party Food
Scrap Diversion Program(s). If the City finds the internal and/or third
party program(s) are inadequate, Franchisee shall proceed to
implement a Diversion Program to Divert all the remaining AB 1826
Food Scraps generated by the AB 1826 Generator.
B. Act Compliance. The parties agree that provision of a Food Scrap Diversion
Program as described in this Section 13 and in Exhibit "E" is of paramount importance for
the City to comply with the Act. The parties further agree that providing high quality
Diversion Services, public education, and technical assistance to AB 1826 Food Scrap
Generators to obtain their full participation in AB 1826 Diversion Programs is essential for
Franchisee to implement an effective Food Scrap Diversion Program for each and every
AB 1826 Food Scrap Generator it serves. The parties acknowledge that achievement of
this requirement is integral to the City's compliance with the Act and that failure to
implement said Diversion Program may cause City to be non -compliant with the Act and
be grounds for termination of this Agreement.
C. Program Implementation. Within ninety (90) calendar days of either: (1) the
Effective Date of this Agreement, or (2) the date an AB 1826 Food Scrap Generator
initiates service with Franchisee to Collect and/or transport Municipal Solid Waste and/or
Divertible Materials , whichever is later, Franchisee shall implement a Food Scrap
Diversion Program for said AB 1826 Food Scrap Generator. For purposes of this Section,
Franchisee shall be found to have "implemented" a Food Scrap Diversion Program for an
AB 1826 Food Scrap Generator only if Franchisee completes all of the steps and
requirements in Exhibit E.
SECTION 14. AB 1826 COMMERCIAL AND MULTIFAMILY GREEN WASTE AND
WOOD WASTE COLLECTION PROGRAM.
A. Act Requirements. The Act requires all AB 1826 Generators of Green
Waste and/or Wood Waste to implement Diversion Programs as follows. All Commercial
Premises and all Multifamily Dwellings generating four (4) or more cubic yards of Food
Scraps and/or Green Waste and Wood Waste must arrange for Diversion Programs for
Green Waste and Wood Waste on or before January 1, 2017. On or after January 1,
2019, all owners and responsible parties of Commercial Premises and Multifamily
Dwellings generating four (4) or more cubic yards of Commercial Solid Waste per week
are required to arrange for Diversion Programs for Green Waste and Wood Waste. The
Act requires cities to provide Commercial and Multifamily Green Waste and Wood Waste
Diversion Programs for AB 1826 Green Waste and Wood Waste Generators on or before
January 1, 2016. Franchisee acknowledges these requirements and agrees that, subject
to the restrictions contained in Agreement Section 11(A), for all AB 1826 Green Waste
and Wood Waste Generators that contract with or pay Franchisee to haul Municipal Solid
Waste and/or Divertible Materials, Franchisee shall implement a Green Waste and Wood
Waste Diversion Program. (For wood generated by construction and demolition projects,
Non-exclusive Franchise Agreement Page 27
the requirements of Sections 7 and 15 shall apply.) The City will maintain a listing of all
AB 1826 Green Waste and Wood Waste Generators. City expressly disclaims any liability
related to or arising from the accuracy of any lists provided by City. Franchisee's failure
to request or secure the list on an annual basis shall not relieve Franchisee of any
obligations under this Section. Franchisee shall implement a Green Waste and Wood
Waste Diversion Program using one or more of the following:
Provide source separated Green Waste and Wood Waste Collection service on a
weekly or more frequent basis.
Provide Collection of Green Waste and Wood Waste co -mingled with
Municipal Solid Waste and process the Collected material at a City -
approved Dirty MRF that yields Diversion results comparable to
source separation. No Dirty MRF may be used for separation of AB
1826 Green Waste or Wood Waste materials unless the Dirty MRF
has been approved by City as meeting the standards and
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 ARemative Daily Cover at a
Non-exclusive Franchise Agreement Page 28
landfill as an end use. This prohibition includes Green Waste and Wood Waste processed
at a permitted Processing Facility as well as the residue from such Facility.
B. Act Compliance. The parties agree that provision of a Green Waste and
Wood Waste Diversion Program as described in this Section 14 and in Exhibit "E" is of
paramount importance for the City to comply with the Act. The parties further agree that
providing high quality Diversion Services, public education, and technical assistance to
AB 1826 Green Waste and Wood Waste Generators to obtain their full participation in AB
1826 Diversion Programs is essential for Franchisee to implement an effective Green
Waste and Wood Waste Diversion Program for each and every AB 1826 Green Waste
and Wood Waste Generator it serves. The parties acknowledge that achievement of this
requirement is integral to the City's compliance with the Act and that failure to implement
said Diversion Programs may cause City to be non -compliant with the Act and be grounds
for termination of this Agreement.
C. Program Implementation. Within ninety (90) calendar days of either: (1) the
Effective Date of this Agreement; or (2) the date an AB 1826 Green Waste and Wood
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.
Non-exclusive Franchise Agreement Page 29
SECTION 16. REPORTING REQUIREMENTS.
A. Monthly Reports. Franchisee shall submit monthly reports to the Public
Works Director identifying, at a minimum, the following information:
1. The address of each facility serviced and the precise services
provided to each address including, but not limited to, Commercial Franchise Services
broken down by type (i.e., Recyclable Materials, Food Scraps, Green Waste, Wood
Waste, Construction and Demolition Debris, and/or Municipal Solid Waste) presented in
an Excel format acceptable to the City;
2. The frequency of Commercial Franchise Services provided to each
address;
3. The number of containers by type and size at each address and the
frequency of collection;
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 anv altemate
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.
Non-exclusive Franchise Agreement Page 30
C. Report Due Date. Each monthly report shall be submitted on or before the
25th day of the month following the end of the month.
D. Submission. Franchisee shall submit each monthly report to:
Public Works Director
City of Newport Beach
P.O. Box 1768
100 Civic Center Dr.
Newport Beach, CA 92658
E. No Waiver. Franchisee shall file the monthly report required under
Agreement Section 16(A) regardless of whether Franchisee has provided Commercial
Franchise Services in the City during the reported month.
F. Compliance. Franchisee shall comply with all Recycling and Diversion
requirements imposed by law, ordinance, or regulation on the City. At the end of each
calendar month, reports will be evaluated for compliance with City Recycling and
Diversion requirements. Failure to comply with City Recycling and Diversion
requirements shall be a material breach of this Agreement.
SECTION 17. HAULER REPRESENTATIVE
Franchisee shall designate, at a minimum, one (1) individual employed by
Franchisee to assist City in implementing the Agreement's Recycling and Diversion
programs, as applicable, and to manage all reporting requirements set forth herein
("Hauler Representative"). Franchisee shall provide City with the Hauler Representative's
contact information, and the Hauler Representative shall be the primary contact for the
City. The Hauler Representative shall respond to any City questions or concerns relating
to or arising from Franchisee's performance under this Agreement within five (5) business
days of City submitting such question or concern.
SECTION 18. VEHICLES AND EQUIPMENT
A. Containers. Any and all Containers provided to Customers for storage,
Collection or transportation of Municipal Solid Waste, Recyclable Materials, Food Scraps,
and/or Green Waste shall meet the requirements designated by the Public Works Director
as well as State of California minimum standards for solid waste handling established
under Public Resources Code Section 43020 and applicable health requirements, or any
successor statutes or requirements.
B. Identification. All Containers and vehicles used by Franchisee in the
performance of Commercial Franchise Services shall be marked with Franchisee's name
in letters which are not less than four inches (4') high and which are easily read by the
general public.
Non-exclusive Franchise Agreement Page 31
C. Equipment.
1. Maintenance: Records. Franchisee shall, at all times, provide such
number of vehicles and such equipment as will be adequate for the Commercial
Franchise Services, which it is authorized to provide under this Agreement. All vehicles
utilized by Franchisee in the performance of this Agreement shall be registered with the
California Department of Motor Vehicles. All vehicles must pass annual "BIT' and brake
inspections and Franchisee shall provide evidence of such to the Public Works
Department upon request Upon request by the City, Franchisee shall provide records
from the most recent California Highway Patrol biennial inspection of the terminal(s)
responsible for the maintenance and repair of equipment used in the City. All vehicles
shall be properly maintained, kept clean and in good condition and repair, shall not leak
any fluids, and shall be uniformly painted. All Commercial Solid Waste and Divertible
Materials Containers used in the performance of this Agreement shall be kept clean and
in good repair, shall not leak any fluids, and shall be uniformly painted in the color
identified by Franchisee in Franchisee's application. All equipment required by City in the
performance of this Agreement, including vehicle mirrors and the collision avoidance
system, may be subject to inspection by the City upon twenty-four (24) hours' notice by
the Public Works Director. All drivers employed by Franchisee and operating equipment
in the City shall be properly licensed for the class of vehicle they drive, enrolled in the
Department of Motor Vehicles Employee Pull Notice (EPN) program, and abide by all
State and federal regulations for driver hours and alcohol and controlled substances
testing.
2. Solid Waste and Divertible Materials Retention. Each vehicle shall
be so constructed and used in a manner so that no rubbish, garbage, debris, oil, grease
or other material will blow, fall, or leak out of the vehicle. All Municipal Solid Waste and
Divertible Materials shall be transported by means of vehicles that are covered in such a
manner as to securely contain all Solid Waste and Divertible Materials and to prevent
such Municipal Solid Waste and Divertible Materials from projecting, blowing, falling or
leaking out of the vehicles. Any Municipal Solid Waste or Divertible Materials dropped or
spilled in Collection, transfer or transportation shall be immediately cleaned up by
Franchisee. A broom and a shovel shall be carried at all times on each vehicle for this
purpose. In addition, each Collection vehicle shall be equipped with trash bags, masking
tape and notice of non -Collection tags for the purpose of separating Hazardous Waste
for return to the Generator. A communications device such as a two-way radio or a
cellular telephone shall also be maintained on each vehicle at all times.
3. Vehicle Mirrors. All equipment used by Franchisee for Commercial
Franchise Services in the City with a gross vehicle weight rating of twenty-six thousand
(26,000) pounds or more shall be equipped with a convex mirror on the front of each
vehicle, adjusted so as to enable the operator to see all points on an imaginary horizontal
line which:
(a) Is three feet (T) above the road;
(b) Is one foot (1) directly forward from the midpoint of the front of
the vehicles; and
Non-exclusive Franchise Agreement Page 32
(c) Extends the full width of the front of the vehicle.
4. Collision Avoidance System. All vehicles operated by Franchisee in
the City shall include the best available collision avoidance system that is capable of
detecting adjacent pedestrians and bicyclists. City reserves the right to inspect
Franchisee's vehicles, at any time, to confirm that the installation and capability of
Franchisee's collision avoidance system is consistent with Section 1 B(C)(4).
On or before January 1 of each year, Franchisee shall submit to City a
certification signed under penalty of perjury containing the following:
List of any collection vehicle (including front loader, rear
loader, side loader, and roll off vehicles and all "spares") of
such vehicles that franchisee operate in the City.
ii. Collision Avoidance System installed on each vehicle
including name of system, manufacturer, date installed, name
of Person who installed the system, name of Person(s) who
tested the system to ensure proper installation and operation
of system.
5. Storage. Franchisee shall not store any vehicle or equipment on any
public street, public right-of-way or other public property in the City without obtaining a
Temporary Street Closure Permit from the Public Works Department and prior written
consent of the Public Works Development.
6. Compliance. Should the Public Works Director at any time give
written notification to Franchisee that any vehicle does not comply with the standards
hereunder, the vehicle shall be promptly removed from service by Franchisee and not
used again until inspected and authorized in writing by the Public Works Director.
7. City Standards. Placement of Containers and equipment shall be in
accordance with the standards set by the City.
8. Equipment Standards. All equipment provided by Franchisee shall
be in accordance with standards set by the Public Works Department.
SECTION 19. ABANDONED CONTAINERS
A. If Franchisee abandons any Commercial Solid Waste or Divertible Materials
Container within the City, the City may remove the Container and/or dispose of the
contents of the Container and recover its cost from Franchisee.
B. For the purposes of this Section, "abandons" includes:
Non-exclusive Franchise Agreement Page 33
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 Containerwithin ten (10) calendar
days after the expiration or termination of the Franchise granted to Franchisee, except in
the case where Franchisee has been granted an extension of the Term of said Franchise
or Franchisee has been granted a subsequent franchise authorizing Franchisee to Collect
and transport the type or types of Commercial Solid Waste for which the Container was
used pursuant to this Agreement; or
3. Franchisee's failure to collect the Container and dispose of the
contents of the Container within two (2) calendar days after the Public Works Director
issues written notice to Franchisee to dispose of the contents.
4. Franchisee's failure to replace a Container that fails to comply with
the City's aesthetic standards, as set forth in this Agreement, within five (5) calendar days
of receiving written notice from the Public Works Director of non-compliance.
SECTION 20. COMPLIANCE WITH LAW
A. Franchisee shall perform all Commercial Franchise Services in accordance
with applicable federal, state, and local law, including, but not limited to, Code Chapter
12.63, Article XIII of the City Charter, Ordinance No. 2020-20 and the terms and
conditions of this Agreement.
B. During the Term of this Agreement, Franchisee and City agree that the
City's ordinances may be amended as provided herein, as provided in Chapter 12.63 or
as necessary to permit the City to comply with changes to federal, state, and local
legislative regulatory requirements, which may affect or after City's obligations or
requirements for Commercial Solid Waste management. Franchisee agrees to comply
with any such amendment of the City's ordinances without the need to amend this
Agreement.
SECTION 21. PERMITS AND LICENSES
A. Aoolicable 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).
Non-exclusive Franchise Agreement Page 34
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 Customers compliance obligations.
C. Submission to City of Informational Materials. Franchisee's informational
materials shall be provided to the Public Works Director upon request if, in City's sole and
absolute discretion, such informational materials are necessary for City to comply with
State reporting requirements.
SECTION 23. SUSPENSION; TERMINATION; APPEAL
A. Citv'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).
Non-exclusive Franchise Agreement Page 35
The City Manager will hold a meeting with Franchisee no more than ten (10) business
days after receiving Franchisee's written appeal request. After the meeting, the City
Manager will make a determination, in his or her sole discretion, as to whether to uphold
the Default Notice, or any portion thereof, and shall issue such determination within five
(5) business days of the meeting. The decision of the City Manager shall be final.
Franchisee will have thirty (30) calendar days from the date the City Manager's
determination is issued to cure the upheld Default Notice or any portion thereof.
F. Failure to Timely Cure. If Franchisee fails to timely cure a Default
Notice, or any portion thereof, then the applicable liquidated damages set forth in
Agreement Section 24 shall be final and conclusive and the amount(s) shall be
immediately due and payable. Franchisee's failure to timely cure three (3) Default Notices
shall be a material breach of this Agreement.
G. Audit Findings. Notwithstanding anything to the contrary, If Franchisee
disagrees with City's audit findings, then Franchisee may, within ten (10) business days
after service of the audit finding, appeal to the City Manager specifying the basis for its
disagreement with City's audit findings. If Franchisee fails to timely request such an
appeal, then the discrepancy determinations shall be final and conclusive and the
violation shall be deemed established.
H. Termination Without Right to Cure. City shall have the right of suspension
or termination as a result of Franchisee's failure to timely cure any deficiency or default
as set forth above, which right is in addition to City's right to terminate this Agreement
without affording Franchisee an opportunity to cure in circumstances where Franchisee
is determined to have materially breached this Agreement. Notwithstanding anything to
the contrary, in the event of any material breach hereof, City shall have the right to
terminate this Agreement without affording Franchisee the right to cure including, without
limitation, any action, inaction or circumstance defined herein as a material breach and/or
under any of the following circumstances which are hereby defined as material breaches:
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.
Non-exclusive Franchise Agreement Page 36
5. If Franchisee fails to submit Records thirty (30) calendar days or
more following a written request by City, or its designated representative for Records
disclosure.
6. Franchisee fails to meet the Diversion requirements of this
Agreement or pursuant to applicable laws.
I. Removal of Commercial Solid Waste and Divertible Materials Containers
Customer Notification. In the event this Franchise is terminated or expires without a
grant of a subsequent franchise allowing Franchisee to continue performing Commercial
Franchise Services in City, then within ten (10) calendar days of such termination or
expiration Franchisee shall:
1. Remove all of Franchisee's Municipal Solid Waste and Divertible
Materials Containers from all Franchisee's Collection service locations and properly
dispose of all Municipal Solid Waste in such containers and deliver all Divertible Materials
to Processing Facilities for Diversion within the time period specified by the City Council;
and
2. Submit to the Public Works Director a list of the names and
addresses of Generators in the City forwhich 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
Feesand 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.
Non-exclusive Franchise Agreement Page 37
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.
SECTION 24. CITY'S REMEDIES
A. The City incurred considerable time and expense procuring this Agreement
to secure an improved level and quality of Recycling and compliance with State Diversion
mandates.
B. Liquidated Damages. The Parties agree the following liquidated damages
schedule represents a reasonable estimate of the amount of damages, considering all
the circumstances existing on the date of this Agreement, including the relationship of the
sums to the range of harm to City that reasonably could be expected in anticipation that
proof of actual damages would be costly or inconvenient:
Applicable Failure(s)* Damages
Section(s)
' 6(A), 7(A) Comply with City -mandated Diversion Two hundred fifty
requirements within thirty (30) calendar dollars ($250) per
days of notification by City business day until
compliant
6(B), 7(B)
Deliver Commercial Solid Waste as
Two hundred fifty
designated
dollars ($250) per
truck delivery
8(B)
Provide requested records
Two hundred fifty
dollars ($250) per
business day until
completed
11(A)
Provide only those Commercial
Two hundred fifty
Franchise Services for which Franchisee
dollars ($250)
has applied
11(C)
Collect at unauthorized locations and/or
Two hundred fifty
during unauthorized hours five (5) or
dollars ($250)
Non-exclusive Franchise Agreement Page 38
Containers corporate color per business day
until corrected
12(A), 12(C), Implement AB 341 Diversion Program One thousand
Exhibit E, Parts A, including Tasks 1-16 in Exhibit E, Part dollars ($1,000) per
Band C within the timeframe in Franchise occurrence
Section 12C. Comply with the
requirements of Exhibit E, Parts B and C
within ninety (90) days of the events
described in Part B, or within ninety (90)
days of a previously operating AB 341
Program malfunctioning as required by
Exhibit E, Parts A, Diversion Program including Tasks 1-16 dollars ($1,000)
B and C in Exhibit E, Part A, within the timeframe
in Franchise Section 13C. Comply with
the requirements of Exhibit E, Parts B
and C within ninety (90) days of the
events described in Part B or within
ninety (90) days of a previously
operating Food Scrap Diversion Program
malfunctioning as required by Part C.
14(A), 14(C),
Implement AB 1826 Green Waste and
Five hundred dollars
Exhibit E, Parts A,
Wood Waste Diversion Program
($500)
Band C
including Tasks 1-16 in Exhibit E, Part A,
within the timeframe in Franchise
Section 14C. Comply with the
requirements of Exhibit E, Parts B and C
within ninety (90) days of the events
described in Part B or within ninety (90)
days of a previously operating Green
Waste and Wood Waste Diversion
Program malfunctioning as required by
Part C.
15(B)
Implement Construction and Demolition
One thousand
Diversion Program
dollars ($1,000)
16(A),15(B),15(E)
Submit complete and accurate monthly
One hundred dollars
reports
($100) per business
day until corrected
or completed
Non-exclusive Franchise Agreement Page 39
17
18(C)
19
($100) — if not
submitted when due
Five hundred dollars
($500) — if not
submitted w!n thirty
(30) calendar days
after due date
Designate qualified Hauler Fifty dollars ($50)
Representative; Failure of Hauler per business day
Representative to timely respond to City until completed
Secure or maintain vehicles or vehicle
equipment
Remove, replace, or
One hundred dollar.
($100) per business
day until completed
per business day
until completed
*Unless otherwise designated, reference to "failure(s)" refers to each occurrence of
specified breach (such as for each Customer or each Customer record entry or complaint)
and not for aggregate occurrences of those breaches (such as for all Customers on a
given route or day).
C. City's Remedies Cumulative. The rights and remedies of City set forth
herein shall be in addition to any and all other rights and privileges City may have, and
shall not be deemed to limit any such other rights or privileges of City under this
Agreement or by virtue of any law.
By placing its initials below, each party specifically confirms:
(1) the accuracy of the statements made in Agreement Section 24; and
(2) it has had ample opportunity to consult with legal counsel and obtain an explanation
of liquidated damage provisions prior to signing this Agreement.
FRANCHISEE CITY
Initial Here: 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
Non-exclusive Franchise Agreement Page 40
data identified in writing as proprietary or confidential by either party ("Confidential
Information") and so acquired by the other party or its employees or agents under this
Agreement or in contemplation thereof shall be and shall remain the disclosing party's
exclusive property. The recipient of Confidential Information shall use all reasonable
efforts (which in any event shall not be less than the efforts the recipient takes to ensure
the confidentiality of its own proprietary and other confidential information) to keep, and
have its employees and agents keep, any and all Confidential Information confidential,
and shall not copy, or publish or disclose it to others, nor authorize its employees, agents
or anyone else to copy or disclose it to others, without the disclosing party's written
approval; nor shall the recipient make use of the Confidential Information except for the
purposes of executing its obligations hereunder, and (except as provided for herein) shall
return the Confidential Information and data to the first party at its request. The City's
duty to maintain confidentiality as described hereunder shall be subject to the laws of the
State of California.
B. Excluded Information. The foregoing conditions will not apply to information
or data which is, or which becomes generally known to the public by publication or by any
means other than a breach of duty on the part of the recipient hereunder, is information
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.
Xlgl Zvi
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:
Non-exclusive Franchise Agreement Page 41
To: Public Works Director
City of Newport Beach
P.O. Box 1768
100 Civic Center Dr.
Newport Beach, CA 92660
To Franchisee:
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. AuthoritV. 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.
Non-exclusive Franchise Agreement Page 42
J. Equal Opportunity Employment. Franchisee represents that it is an equal
opportunity employer and it shall not discriminate against any authorized subcontractor,
employee or applicant for employment because of race, religion, color, national origin,
handicap, ancestry, sex or age or any other impermissible basis under law.
K. Compliance with Laws. Franchisee shall at its own cost and expense comply
with all statutes, ordinances, regulations and requirements of all governmental entities,
including federal, state, county or municipal, whether now in force or hereinafter enacted.
Franchisee agrees to obtain a business license from the City in accordance with the Code.
The parties hereto agree that the Franchise and this Agreement are the only
authorizations to conduct Commercial Franchise Services in the City and that the
issuance of a business license does not grant the Franchisee a right to conduct
Commercial Franchise Services or other business in the City.
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 attomeys' fees.
O. Counterparts. This Agreement may be executed in two (2) or more
counterparts, each of which shall be deemed an original and all of which together shall
constitute one (1) and the same instrument.
[SIGNATURES ON FOLLOWING PAGE]
Non-exclusive Franchise Agreement Page 43
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed
on the day and year written below.
APPROVED AS TO FORM: CITY OF NEWPORT BEACH,
CITY ATTORNEY'S OFFICE a California municipal corporation
By: By:
Aaron C. Harp Will O'Neill
City Attorney Mayor
ATTEST: FRANCHISEE:
Date: Date.
By: By.
Leilani I. Brown
City Clerk
M
[END OF SIGNATURES]
Attachments: Exhibit A— Faithful Performance Bond
Exhibit B — Franchise Hauler Acknowledgement
Exhibit C — Franchisee Application Template
Exhibit D — Insurance Requirements
Exhibit E — Required Tasks for Implementation of Diversion Programs
Exhibit F — Construction and Demolition Debris Diversion Program
Non-exclusive Franchise Agreement Page 44
EXHIBIT A
CITY OF NEWPORT BEACH
BOND NO.
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 terns thereof require the furnishing of a Bond for the faithful
performance of the Franchise Agreement.
NOW, THEREFORE, we, the Principal, and
duly authorized to
transact business under the laws of the State of California as Surety (hereinafter
"Surety"), are held and firmly bound unto the City of Newport Beach, in the sum of Seven
Thousand Five Hundred Dollars and 00/100 ($7,500.00) lawful money of the United
States of America, to be paid to the City of Newport Beach, its successors, and assigns;
for which payment well and truly to be made, we bind ourselves, our heirs, executors and
administrators, successors, or assigns, jointly and severally, firmly by these present.
THE CONDITION OF THIS OBLIGATION IS SUCH, that if the Principal, or the
Principal's heirs, executors, administrators, successors, or assigns, fail to abide by, and
well and truly keep and perform any or all the services, covenants, conditions, and
agreements in the Franchise Agreement documents and any alteration thereof made as
therein provided on its part, to be kept and performed at the time and in the manner
therein specked, 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 specked 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
specked 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 oftime,
alterations or additions to the terms of the Franchise Agreement or to the services to be
performed thereunder shall in any way affect its obligations on this Bond, and it does
Faithful Performance Bond Page A-1
hereby waive notice of any such change, extension of time, alterations or additions of the
Agreement or to the services or to the specifications.
This Faithful Performance Bond shall be extended and maintained by the Principal
in full force and effect for seven (7) years following the date Principal is granted the
Franchise Agreement by City.
In the event that the Principal executed this bond as an individual, it is agreed that
the death of any such Principal shall not exonerate the Surety from its obligations under
this Bond.
IN WITNESS WHEREOF, this instrument has been duty 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
0
Aaron C. Harp
City Attorney
Authorized SignatureTtle
Authorized Agent Signature
Print Name and Title
NOTARYACKNOWLEDGMENTS OF
CONTRACTOR AND SURETY MUST BE ATTACHED
Faithful Performance Bond Page A-2
ACKNOWLEDGMENT
A notary public or other officer completing this
certificate verifies only the identity of the individual who
signed the document to which this certificate is
attached, and not the truthfulness, accuracy, or validity
of that document.
State of California
County of 1 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/herttheir 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/shetthey executed the same
in his/herttheir authorized capacity(ies), and that by his/herttheir signatures(s) on the instrument
the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing
paragraph is true and correct.
WITNESS my hand and official seal.
Signature (seal)
Faithful Performance Bond Page A-3
EXHIBIT B
FRANCHISE HAULER ACKNOWLEDGEMENT
THIS FRANCHISE HAULER ACKNOWLEDGMENT is entered into as of this _
day of , 2022 (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
AND DIVERTIBLE MATERIALS HANDLING SERVICES (the "Franchise"); and
WHEREAS, the Franchise provides for the collection and disposal of certain
municipal commercial solid waste as described therein ("Franchise Waste") generated
within the City; and
WHEREAS, the County of Orange (the "County") owns, manages and operates a
sanitary landfill disposal system for municipal solid waste generated within the County;
and
WHEREAS, the City and the County have heretofore entered into a Waste
Disposal Agreement as of 2009, and subsequent Amendment to the Waste Disposal
Agreement dated April 28, 2016 (collectively, the "Disposal Agreement'), determining that
the execution of such Disposal Agreement will serve the public health, safety and welfare
of the residents of the City and County, by maintaining public ownership and stewardship
over the Orange County Landfill Disposal System (the "Disposal System"); and
WHEREAS, under the Disposal Agreement, the County has agreed to provide
long-term disposal of all municipal solid waste generated within the City and the City has
agreed to exercise all legal, and contractual power which it possesses from time to time
to deliver or cause the delivery of such waste to the Disposal System; and
WHEREAS, the provisions of the Waste Disposal Agreement which guarantee
capacity for the long term disposal of waste at specified rates generated in the City
provide significant benefits to the Franchise Hauler; and
WHEREAS, notwithstanding any Franchise provisions to the contrary, the
Franchise Hauler explicitly acknowledges the aforementioned benefits to the City, the
County and the Franchise Hauler in providing for the disposal of all Franchise Waste to
the Disposal System; and
WHEREAS, the City and the Franchise Hauler desire to enter into this
Acknowledgment to assure that the City and the Franchise Hauler will be entitled to the
benefits of the Waste Disposal Agreement and to assure conformity with the waste
Franchise Hauler Acknowledgement Page B-1
STATE OF CALIFORNIA }
COUNTY OF ORANGE } ss.
CITY OF NEWPORT BEACH
I, Leilani I. Brown, City Clerk of the City of Newport Beach, California, do hereby certify that the
whole number of members of the City Council is seven; that the foregoing ordinance, being Ordinance
No. 2022-21 was duly introduced on the 27th day of September, 2022, at a regular meeting, and adopted
by the City Council at a regular meeting duly held on the 11th day of October, 2022, and that the same
was so passed and adopted by the following vote, to wit:
AYES: Mayor Kevin Muldoon, Mayor Pro Tern Noah Blom, Council Member Brad Avery, Council
Member Joy Brenner, Council Member Diane Dixon, Council Member Duffy Duffield,
Council Member Will O'Neill
NAYS: None
IN WITNESS WHEREOF, I have hereunto subscribed my name and affixed the official seal of
said City this 121h day of October, 2022.
STATE OF CALIFORNIA }
COUNTY OF ORANGE }
CITY OF NEWPORT BEACH }
Leilani I. Brown, VIMC
City Clerk
City of Newport Beach, California
1-1 FoR�
CERTIFICATE OF PUBLICATION
ss.
I, LEILANI I. BROWN, City Clerk of the City of Newport Beach, California, do hereby certify that
Ordinance No. 2022-21 has been duly and regularly published according to law and the order of the City
Council of said City and that same was so published in The Daily Pilot, a newspaper of general circulation
on the following dates:
Introduced Ordinance: October 1, 2022
Adopted Ordinance: October 15, 2022
In witness whereof, I have hereunto subscribed my name this day of October, 2022.
ti
A&Pc114m�
Leilani I. Brown, MM
City Clerk
City of Newport Beach, California