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COMMERCIAL SOLID WASTE COLLECTION
FRANCHISE AGREEMENT BETWEEN THE CITY OF
NEWPORT BEACH AND A- TROJAN DISPOSAL
This Nonexclusive Franchise Agreement for Commercial
Solid Waste Handling Services ( "Agreement" herein), is
entered into and executed by and between the CITY OF NEWPORT
BEACH, a municipal corporation, and Charter City organized
and existing under the laws of the State of California
( "City "), and A- TROJAN DISPOSAL ( "Franchisee ")
R E C I T A L S
This Agreement is entered into on the basis of the
following facts:
A. Franchisee has provided or is capable of
providing commercial solid waste collection services in the
City pursuant to a permit issued in accordance with the Newport
Beach Municipal Code ( "Code ").
B. City has duly adopted Ordinance No. 95 -63 which
has repealed the former Chapter 12.63 and added a new Chapter
12.63 of the Code and requires a franchise for all persons
providing commercial solid waste handling services for solid
waste generated in the City,
C. Article XIII of the City Charter, Chapter 12.63,
and Sections 49300 and 49500 -49523 of the Public Resources Code
authorize the City to enter into nonexclusive franchise
agreements for commercial solid waste handling services.
D. City contends that Franchisee has received
written notice from the City, pursuant to Public Resources Code
Sections 49520 and 49521, that commercial solid waste handling
services may be authorized under exclusive or nonexclusive
franchise, and that Franchisee was entitled to continue to
operate within the City only until its rights under a
commercial solid waste collection permit were terminated or
revoked. All such rights are terminated by this Agreement.
E. Pursuant to this Agreement, City desires to
authorize Franchisee to provide nonexclusive commercial solid
waste handling services within the City. Franchisee shall
furnish all personnel, equipment, and supplies necessary to
collect, transport, or otherwise remove and dispose of
residential solid waste and recyclable materials, as defined
herein, from commercial, institutional, or industrial premises
within the City.
F. The City Council has determined that the grant
of a nonexclusive franchise is in the public interest.
NOW, THEREFORE, CITY AND FRANCHISEE DO HEREBY AGREE AS
FOLLOWS:
SECTION 1. GRANT OF FRANCHISE
A. By Ordinance No. 95 -64, City has granted to Franchisee
a nonexclusive Franchise authorizing Franchisee to provide
commercial solid waste handling services for solid waste kept,
accumulated, or generated in the City of Newport Beach and to
use the public streets and rights of way for such purpose.
Franchisee acknowledges that the Franchise is not exclusive and
that the Franchise is subject to the provisions of Article XIII
of the City Charter, Ordinance No. 95 -64, Chapter 12.63 of the
Code, and the terms and conditions of this Agreement.
B. Upon the effective date of this Agreement, the
parties agree that any prior authorization relating to the
conduct of commercial solid waste handling services in the City
arising under and pursuant to any prior permit issued to
Franchisee shall be deemed to be terminated and of no further
force or effect.
SECTION 2. TERM OF FRANCHISE
Subject to Section 17 of this Agreement, the term of this
Agreement shall be from January 1, 1996, to December 31, 2005,
inclusive.
SECTION 3. DEFINITIONS
Unless otherwise defined, or if the use or context clearly
requires a different definition, all words, terms and phrases
in this Agreement and the derivations thereof shall have the
meanings set forth in Section 12.63.020 of the Code.
SECTION 4. FRANCHISE FEES
A. During the term of the Franchise, Franchisee shall
pay to City franchise fees for the privilege of providing
commercial solid waste handling services in the City of Newport
Beach and the use of public streets, right of ways and places
for such purposes. Fees shall be in the following amounts:
(1) Franchisee shall pay to the City 5.516 (five and
one half percent) of the gross receipts for all commercial
solid waste handling services provided by the Franchisee in the
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City for the first year of the franchise. The franchise fee
shall increase by 1% (one percent) per year for each of the
next succeeding five years of this Agreement. Thereafter, the
franchise fee will be capped at 10.5% for the life of the
Agreement.
(2) Franchise fee payments shall be paid quarterly
and shall be computed and paid on the basis of paid receipts
received by the Franchisee for all solid waste handling
services within the City.
(3) (one half of one percent) .5% of the franchise
fee shall be attributable to the maintenance and implementation
of the City's Source Reduction and Recycling Element "SRRE,"
and shall be separately accounted for, and used only for the
costs stated in Public Revenue Code Section 41901 or any
successor provision.
B. Franchisee shall pay all required franchise fees to:
Administrative Services Director
City of Newport Beach
3300 Newport Boulevard
Newport Beach, CA 92659
C. Franchise fees shall be due and payable on the
thirtieth (30th) day of the month following the end of each
quarter. If franchise fees are not paid by Franchisee when
due, then in addition to the franchise fees, Franchisee shall
pay a late payment penalty in an amount equal to ten percent
(10 %) of the franchise fee that was not timely paid by
Franchisee. If Franchisee fails to pay delinquent franchise
fees within thirty (30) days of the date due, Franchisee shall
pay a second late payment penalty in an amount equal ten
percent (10 %) of the franchise fee outstanding after such
thirty day period. The second late payment penalty shall be in
addition to the first late payment penalty. In addition,
Franchisee shall pay interest on all unpaid franchise fees at
the rate of ten percent (10 %) per annum or the legal rate
allowed, whichever is less, from the date the franchise fees
were due and payable to the date actually paid. Franchisee
will be responsible for all billing and collection from all its
customer accounts.
D. If Franchisee remits franchise fees by personal
delivery to City, such franchise fees shall be deemed timely
paid only if delivered on or before the due date set forth in
Section 12.63.070 of the Code. If Franchisee remits franchise
fees by mail or other delivery service, such franchise fees
shall be deemed timely only if (1) the envelope containing the
franchise fee payment bears a postmark or receipt showing that
the payment was mailed or sent on or before the due date or (2)
Franchisee submits proof satisfactory to the Administrative
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Services Director that the franchise fee payment was in fact
deposited in the mail or sent on or before the due date.
E. For any quarter in which Franchisee determines that
any outstanding delinquent payment for commercial solid waste
handling services is uncollectible, Franchisee shall attach to
the report a list of the customers for which Franchisee has
written off the delinquent payment determined to be
uncollectible.
F. In the event Franchisee believes that it has paid
franchise fees in excess of the fees due to City, Franchisee
may submit a request for refund to the Administrative Services
Director on a form provided by the Director. If proof of
overpayment is satisfactory to the Director, the Director shall
refund to Franchisee any overpayment. Franchisee shall not
apply any overpayment as a credit against any other amounts
payable to City unless specifically so authorized by the
Administrative Services Director in writing.
G. Each franchise fee payment shall be accompanied by a
written statement described in Section 12.63.070 of the Code on
a form provided by the Administrative Services Director.
H. No maximum nor minimum service fee will be set by the
City. The fees will fluctuate with market demand.
SECTION 5. DISPOSAL OF COMMERCIAL SOLID WASTE
A. Franchisee shall dispose of solid waste collected or
transported by Franchisee only by taking such solid waste to a
landfill, transfer station, recycling facility or materials
recovery facility which is lawfully authorized to accept such
solid waste. Franchisee shall not dispose of solid waste by
depositing it on any land, (except a permitted recycling
facility) whether public or private, or in any river, stream or
other waterway, or in any sanitary sewer or storm drainage
system. Nothing in this Agreement shall be deemed or construed
as authorizing Franchisee to operate a landfill, recycling
center, or other solid waste disposal facility.
B. All solid waste, in addition to recyclables,
collected by Franchisee shall become the property of Franchisee
upon placement by the customer for collection. Franchisee
agrees that the City has the future right, at any time, to
direct that solid waste be delivered to a permitted disposal
facility designated by City. For example, the City may
exercise this right in order to save solid waste generators
money on disposal costs, to avoid disposal sites with potential
cleanup problems, or to meet the requirements for access to a
disposal site. Franchisee agrees to deliver the solid waste
which it collects to any disposal facility directed by the
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City. This exercise of "flow control" by the City shall be
made upon at least one hundred twenty (120) days prior written
notice to Franchisee. Franchisee represents and agrees that
since November 6, 1995, Franchisee has not entered and will not
enter into any agreements with a disposal facility for disposal
of any solid waste which it collects in the City for more than
one hundred twenty (120) days without the written consent of
the City. City shall not withhold its consent to any written
agreement which provides that the agreement may be terminated
by Franchisee at any time, without cause, upon 120 days notice.
C. Franchisee shall include as a condition to its
contractual agreement with its customers a provision
prohibiting disposal of hazardous solid waste in any of
Franchisees vehicles or disposal bins /containers, and other
equipment.
D. Franchisee shall implement a load check program that
includes at a minimum a visual check of all containers to be
emptied to protect against inclusion of hazardous waste and
shall prepare a written record of all hazardous waste
discovered during the process. The records shall comply with
all State and Federal Hazardous Waste Regulations, shall be
maintained for the length of the term of the Franchise, and
shall be made available to the City upon request.
SECTION 6. REPORTS
A. Franchisee shall submit to City quarterly reports
stating the total amount of solid waste which Franchisee
collected in the City during the reportable quarter; the total
weight (in tons) of solid waste disposed of by Franchisee at
landfills and transfer stations during the reportable quarter;
and the total weight and the weight by material category (in
tons) of solid waste disposed of by Franchisee at recycling and
materials recovery facilities during the reportable quarter.
Such quarterly reports shall be prepared on the form attached
to this Agreement as EXHIBIT A or on such other form as
required by the General Services Director. Each quarterly
report shall be submitted on or before the 15th day of the
month following the end of the quarter (i.e. report due April
15 for first quarter of the year) and submitted to:
General Services Director
City of Newport Beach
3300 Newport Boulevard
Newport Beach, CA 92659
B. If the report required under subsection A is not
filed by the due date specified above, the report shall be
deemed delinquent. If the report remains delinquent for more
than fifteen (15) days, Franchisee shall pay to City a
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delinquent report charge in the amount of One Hundred Dollars
($100). If the report remains delinquent for more than forty -
five (45) days, Franchisee shall pay to City a delinquent
report charge in the amount of Five Hundred Dollars ($500).
Such delinquent report charges shall be in addition to any
franchise fees or other charges payable by Franchisee under
this Agreement.
SECTION 7. Commercial Solid Waste Collection Services
A. Frequency of Collection. Franchisee shall collect
all solid waste, including recyclable materials, as authorized
in this Agreement, on a schedule to be agreed upon between the
Franchisee and its customers. The schedule shall provide for
collection service at least once per week; provided, however,
that such schedule shall not permit the accumulation of solid
waste in quantities that are unreasonable or detrimental to the
public health or safety. Requests for collection from premises
with overflowing bins or containers, or from premises where
there have been missed pickups, shall be serviced with 24 hours
of any such request. If requested by the City at any time,
Franchisee's collection schedule shall be submitted to the City
for its approval.
B. Hours and Days of Collections. No collection of
solid waste from commercial premises within 500 feet of
occupied residential premises, motels or hotels shall be made
by Franchisee between the hours of 9:00 p.m., and 7:00 a.m. on
the next day, nor shall any of Franchisee's collection vehicles
be operated in any residential areas of the City between the
hours of 9:00 p.m. and 7:00 a.m. on the next day.
SECTION 8. ENVIRONMENTAL LIABILITY FUND
A. City and Franchisee acknowledge the potential
liability which can result from solid waste handling services
under Federal and State environmental laws. City intends to
take reasonable actions to obtain protection and
indemnification against future environmental liability for
solid waste generated within the City and the activities of
Franchisee under this Agreement for handling such solid waste.
To provide protection and indemnification to City for
Franchisee's solid waste handling activities in the City,
Franchisee agrees to collect from its customers a fee for
payment into an Environmental Liability Fund which shall be a
separate Fund established and maintained by City. The Fund
shall be used to either purchase insurance which will ensure
the City against environmental liability which may be imposed
upon City as a result of Franchisee's activities under this
franchise and /or shall to be used to defend and indemnify the
City if insurance is not available or cannot be provided at a
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cost acceptable to City. The Fund shall not be commingled with
or included in the City's General Fund.
B. Franchisee shall pay to the City Environmental
Liability Fund 5.5% of gross receipts for all commercial solid
waste handling services provided by the Franchisee in the City
during the prior reporting period. Payment shall be made
concurrently with the payment of the Franchise fees and the
filing of reports specified in Section 4 and 6 of this
Agreement.
C. Payments under paragraph B above may be adjusted by
City, on an annual basis, upon one hundred twenty (120) days
prior notice to Franchisee, as appropriate, to ensure that
total payments by all Franchisees into the Fund is maintained
at approximately two hundred twenty five thousand dollars
($225,000.00) a year. The fee may be decreased or waived as
deemed appropriate by City if subsequent changes in Federal and
State law diminish or eliminate liability of City under Federal
and State environmental laws.
D. Compliance with this obligation shall not limit
Franchisee's indemnification as set forth in Section 11,
however, the indemnification provisions of 11B shall be
secondary to the Fund established by this Section or any
insurance purchased with the funds provided.
SECTION 9. FRANCHISEE'S RECORDS
A. Franchisee shall keep and maintain books of account,
income statements and supporting documents of all business
transactions conducted by Franchisee in connection with the
commercial solid waste handling services of Franchisee under
this Agreement. Such records shall be kept at Franchisee's
place of business.
B. The books of account, income statements and
supporting documents shall be made available to City at
Franchisee's place of business during normal business hours
upon request or demand of the City Manager, City Administrative
Services Director, City Attorney, or other City officer,
employee or consultant authorized by any of these officers.
The purpose of such inspection and /or audit shall be for
verification of the fees paid by Franchisee under this
Agreement, and the accuracy thereof; and for verification of
the amounts of solid waste reported by Franchisee pursuant to
this Agreement. To the extent authorized by law, Franchisee's
books of account, income statements and other documents
accessed by City shall be kept confidential.
C. Franchisee shall reimburse City for City's costs in
performance of an audit if, as a result of the audit it is
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determined:
i. there was any intentional misrepresentation by
Franchise with respect to the amount of franchise fees due to
the City; or
ii. there is a one thousand dollars ($1,000.00) or
greater discrepancy in the amount of franchise fees due to the
City.
Such reimbursement shall be paid by Franchisee WITHIN
THIRTY (30) days of the date City notifies Franchisee in
writing of the amount of City's costs.
SECTION 10. INSURANCE REQUIREMENTS
Without limiting the indemnification provided in Section
11, Franchisee shall obtain and shall maintain throughout the
term of this Agreement, at Franchisee's sole cost and expense,
insurance against claims for injuries to persons or damages to
property which may arise from or in connection with the
commercial solid waste handling services provided under this
Agreement by Franchisee, its agents, representatives, employees
or contractors.
A. Minimum Scope and Limits of Insurance.
Franchisee shall maintain at least the following minimum
insurance coverages:
1. Commercial General Liability: $1,000,000 combined
single limit per occurrence for bodily injury, personal injury
and property damage. The Commercial General Liability
insurance limit shall apply separately to this Agreement or the
general aggregate limit shall be twice the required occurrence
limit.
2. Automobile Liability: $2,000,000 combined single
limit per occurrence for bodily injury and property damage, and
shall include sudden and accidental coverage.
3. Workers' Compensation and Employers Liability:
Workers' Compensation statutory limits as required by the
California Labor Code and Employers Liability limits of
$1,000,000 per accident.
B. Deductibles and Self- Insured Retentions.
Any deductibles or self- insured retentions must be
declared to and approved by City's Risk Manager. At the option
of City either: the insurer shall reduce or eliminate such
deductibles or self- insured retentions as respects City, its
officers, employees, agents and contractors; or Franchisee
shall procure a bond guaranteeing payment of losses and related
investigations, claim administration and defense expenses in an
amount specified by City's Risk Manager.
C. Endorsements.
The required insurance policies are to contain, or be
endorsed to contain, he following provisions:
1. General Liability and Automobile Liability Coverages.
a. The City of Newport Beach, its officers,
employees, agents and contractors are to be covered as an
additional insured as respects: liability arising out of
activities performed by, or on behalf of Franchisee; products
and completed operations of Franchisee; premises owned, leased
or used by Franchisee; and automobiles owned, leased, hired or
borrowed by Franchisee. The coverage shall contain no special
limitations on the scope of protection afforded to City, its
officers, employees and agents and contractors.
b. Franchisee's insurance coverage shall be primary
insurance as respects City, its officers, employees, agents and
contractors. Any insurance or self - insurance maintained by
City, its officers, employees, agents or contractors shall be
excess of Franchisee's insurance and shall not contribute with
it.
C. Any failure to comply with reporting provisions
of the policies shall not affect coverage provided to City, its
officers, employees, agents or contracts.
d. Coverage shall state that Franchisee's insurance
shall apply separately to each insured against whom claim is
made or suit is brought, except with respect to the limits of
the insurer's liability.
2. All Coverages
Each insurance policy required by this Agreement
shall be endorsed to state that coverage shall not be
suspended, voided, canceled, or reduced in limits except after
thirty (30) days' prior written notice has been given to the
City.
D. Placement of Insurance.
Insurance shall be placed with an insurance company
certified to do business in the State of California, with
Best's rating A -VII or better, unless otherwise approved by the
City Risk Manager.
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E. Proof of Insurance.
Franchisee shall furnish City with certificates of
insurance and with original endorsements affecting coverage
required by this Agreement. The certificates and endorsements
for each insurance policy are to be signed by a person
authorized by that insurer to bind coverage on its behalf.
Proof of insurance shall be mailed or personally delivered to
the following address or to such other address as may be
directed in writing by the City's Risk Manager:
City of Newport Beach
Risk Manager
3300 Newport Boulevard
Newport Beach, CA 92659
F. Subcontractors.
Franchisee shall include all subcontractors as insureds
under Franchisee's policies or shall obtain separate
certificates and endorsements for each subcontractor,
G. Failure to Provide Insurance.
Franchisee agrees that if any policy of insurance required
by this Agreement is not maintained in full force and effect,
the City Manager may, in his sole discretion, suspend this
Agreement, immediately, until such time as the required
insurance is in effect and the required certificates and
endorsements are delivered to the City.
SECTION 11. INDEMNIFICATION
Franchisee, as a condition of the Franchise shall
indemnify the City as follows:
A. General Liability: Franchisee shall indemnify,
defend and hold harmless the City, its officers, employees and
agents, with respect to any loss, liability, injury or damage
that arises out of, or is in any way related to, the acts or
omissions of Franchisee, its employees, officers and agents in
the performance of any activity, function or duty authorized
by, or required under the terms of, the Franchise, except
Franchisee shall not be required to indemnify City in
connection with the negligence or willful acts or omissions of
the City, its officers, agents or employees.
B. Hazardous Substances Indemnification: Franchisee
shall indemnify City, defend with counsel approved by City,
protect and hold harmless City, its officers, employees,
agents, assigns, and any successor or successors to City's
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interest from and against all claims, actual damages including,
but not limited to, special and consequential damages, natural
resource damage, punitive damages, injuries, costs, response,
remediation, and removal costs, losses, demands, debts, liens,
liabilities, causes of action, suits, legal or administrative
proceedings, interest, fines, charges, penalties and expenses
attorneys' and expert witness fees and costs incurred in
connection with defending against any of the foregoing or in
enforcing this indemnity of any kind whatsoever paid, incurred
or suffered by, or asserted against, City or its officers,
employees, agents or Franchisee arising from or attributable tc
Franchisee's activities under this Agreement concerning any
hazardous substances or hazardous waste at any place where
Franchisee stores or disposes of solid or hazardous waste
pursuant to this franchise agreement, or preceding agreements
between City and Franchisee. The foregoing indemnity is
intended to operate as an agreement pursuant to the
Comprehensive Environmental Response, Compensation and
Liability Act 42. U.S.C. Section 9607(e) and any amendments
thereto; California Health and Safety Code Section 25364, to
insure, protect, hold harmless, and indemnify City from
liability.
C. AB939 Indemnification: Franchisee agrees to meet all
requirements of City's Source Reduction and Recycling Element
as to the portion of the solid waste stream handled by
Franchisee. Franchisee agrees to protect, defend, indemnify,
and hold City harmless against all fines or penalties imposed
by the California Integrated Waste Management Board with
respect to the portion of the commercial waste stream collected
by Franchisee.
D. City agrees to give notice to Franchisee when the
City receives a claim for damages or other liability for which
Franchisee has provided indemnification under this Section.
SECTION 12. VEHICLES AND EQUIPMENT
A. Any and all containers provided to customers of
Franchisee for storage, collection or transportation of
commercial solid wastes shall meet the requirements of Section
12.63.110 of Chapter 12.63 of the Code as well as State of
California minimum standards for solid waste handling
established under Public Resources Code Section 43020 and
applicable health requirements.
B. All containers and all vehicles used by Franchisee in
the performance of commercial solid waste handling services
shall be marked with Franchisee's name and telephone number in
letters which are not less than four inches (4 ") high or which
are easily read by the general public.
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C. Equipment.
(1) Franchisee shall, at all times, provide such
number of vehicles and such equipment as will be adequate for
the collection, transportation and disposal services which it
is authorized to provide under this Agreement. All vehicles
utilized by Franchisee in the performance of this Agreement
shall be registered with the California Department of Motor
Vehicles. All vehicles shall be properly maintained, kept
clean and in good repair, and shall be uniformly painted. All
commercial solid waste containers used in the performance of
this Agreement shall be kept clean and in good repair and shall
be uniformly painted to the satisfaction of the General
Services Director. All vehicles and equipment used by
Franchisee in the performance of this Agreement may be subject
to inspection by the City on a semi - annual basis.
(2) Each vehicle shall be so constructed and used
that no rubbish, garbage, debris, oil, grease or other material
will blow, fall, or leak out of the vehicle. All solid waste
shall be transported by means of vehicles which are covered in
such a manner as to securely contain all solid waste and to
prevent such solid waste from projecting, blowing, falling or
leaking out of the vehicles. Any solid waste dropped or
spilled in collection, transfer or transportation shall be
immediately cleaned up by Franchisee. A broom and a shovel
shall be carried at all times on each vehicle for this purpose.
In addition, each collection vehicle shall be equipped with
trash bags, masking tape and notice of non - collection tags for
the purpose of separating hazardous waste for return to the
generator. A communications device such as a two -way radio or
a cellular telephone shall also be maintained on each vehicle.
(3) Franchisee shall not store any vehicle or
equipment on any public street or other public property in the
City without the prior written consent of the General Services
Director.
(4) Should the General Services Director at any time
given written notification to Franchisee that any vehicle does
not comply with the standards hereunder, the vehicle shall be
promptly removed from service by Franchisee and not again be so
used until inspected and authorized in writing by the General
Services Director,
SECTION 13. ABANDONED CONTAINERS
A. Franchisee shall comply with the regulations adopted
by the City Manager for placement of commercial solid waste
containers on public property.
B. If Franchisee abandons any commercial solid waste
container within the City, the City may remove the container
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and /or dispose of the contents of the container.
C. If City is required to remove a roll -off or compactor
container abandoned by Franchisee and /or disposes of the
contents of any container abandoned by Franchisee, City may
charge Franchisee for City's costs incurred in such
removal /disposal and for City's costs of storage of the
container. Franchisees who are engaged in providing roll -off
containers shall maintain a $3,000 performance bond,
certificate of deposit or other form of security acceptable to
the City, with City Revenue Division to reimburse City for such
costs within ten (10) days of the date of City's invoice for
such costs.
D. For the purposes of this Section; "abandoned"
includes:
(1) Franchisee's failure to remove the container
within the time period specified by the City Council upon
termination of the Franchise pursuant to Section 12.63.130 of
the Code;
(2) Franchisee's failure to remove the container
within ten (10) working days after the expiration of the
Franchise granted to Franchisee, except in the case where
Franchisee has been granted an extension of the term of said
Franchise or Franchisee has been granted a subsequent Franchise
authorizing Franchisee to collect and transport the type or
types of solid waste for which the container was used pursuant
to this Agreement.
(3) Franchisee's failure to collect the container
and dispose of the contents of the container within five (5)
days after City's Director of General services issues written
notice to Franchisee to dispose of the contents.
SECTION 14. COMPLIANCE WITH LAW
A. Franchisee shall perform all solid waste handling
services in accordance with applicable federal, state, and
local law, including Chapter 12.63 of the Code, Article XIII of
the City Charter, Ordinance No.95 -63 and in accordance with the
terms and conditions of this Agreement.
B. Over the course of the franchise term, Franchisee and
City agree that the City's ordinances may be amended as
necessary to permit the City to comply with changes to federal,
state, and local legislative regulatory requirements, which may
affect or alter City's solid waste handling obligations or
requirements for solid waste management. Franchisee agrees to
comply with any such amendment of the City's ordinances.
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SECTION 15. PERMITS AND LICENSES
Franchisee shall obtain and maintain, at Franchisee's sole
cost and expense, all permits and licenses applicable to
Franchisee's operations under the Franchise which are required
of Franchisee by any governmental agency.
SECTION 16. PUBLIC EDUCATION ACTIVITIES
A. City and Franchisee shall cooperate in co- sponsoring
not more than one promotional event per year, as mutually
agreed upon in advance by the parties, which is related to the
implementation of commercial solid waste handling services and
recycling services.
B. Each year during the term of this Agreement, on an
annual basis, Franchise shall transmit promotional brochures or
fliers to its commercial customers, and to such prospective
commercial customers as it may select, informing them of the
commercial solid waste handling services and recycling services
which are provided by the Franchisee as well as hazardous waste
disposal requirements.
C. All promotional brochures, fliers or other
information distributed by Franchisee hereunder shall be
printed on recycled paper. All such informational materials
shall be approved in advance by the City's General Services
Director.
SECTION 17. TERMINATION AND SUSPENSION
A. The franchise granted to Franchisee may be terminated
by the City Council pursuant to Section 12.63.130 of the Code.
B. In the event the Franchise is terminated pursuant to
Subsection A above or the term of this Agreement expires:
(1) Franchisee shall have no right or authority to engage
in commercial solid waste handling operations in the City of
Newport Beach, subject to the provisions of Sections 49520-
49523 of the Public Resources Code.
(2) Franchisee shall, however, remain liable to City for
any and all franchise fees that would otherwise be payable by
Franchisee, for any and all late payment charges and interest
assessed pursuant to Section 4 of this Agreement, and for any
and all delinquent report charges assessed pursuant to Section
6 of this Agreement.
(3) Franchisee shall have a continuing obligation to
submit to City all reports required by Section 6 of this
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Agreement which relates to commercial solid waste handling
activities performed by Franchisee up to and including the date
of termination, suspension, or expiration.
(4) Franchisee shall allow the solid waste generators
served by Franchisee to arrange for solid waste handling
services with a solid waste enterprise collector authorized to
perform such services, without penalty or liability for breach
of contract on the part of the generators, for such period of
time as Franchisee is not authorized to perform such services
because of termination or suspension.
(5) Franchisee agrees to continue to provide the
indemnifications required in this contract after its
suspension or termination. Such indemnifications
include, but are not limited to, the hazardous
materials indemnification and AB939 indemnification
in Section 11.
C. In the event this Franchise is terminated pursuant to
Subsection A above, then within the time period specified by
the City Council, Franchisee shall remove all of Franchisee's
commercial solid waste containers, and all of such containers
used by Franchisee's subcontractors in performance of solid
waste handling services pursuant to the Franchise, from all
Franchisee's collection service locations and shall properly
dispose of all solid waste in such containers.
D. In the event the Franchise is terminated pursuant to
Subsection A above or expires without an extension of the term
and without a grant of a Subsequent Franchise allowing
Franchisee to continue performing such services, then within
ten (10) days of such termination or expiration Franchisee
shall either:
(1) Submit to City's General Services Director a list of
the names and addresses of solid waste generators in Newport
Beach for which Franchisee provided services as of the date of
termination or expiration (i.e. Franchisee's Newport Beach
customer list); or
(2) Send written notification to each solid waste
generator on Franchisee's customer list that Franchisee is no
longer authorized to provide commercial solid waste handling
services in Newport Beach. Such notification shall be in the
form provided by City's General Services Director and shall be
personally delivered or shall be sent by first class mail,
postage prepaid, to the customers' billing addresses.
Franchisee shall submit to City's General Services Director an
affidavit, signed under penalty of perjury, stating that the
required notification has been provided by Franchisee to all of
Franchisee's Newport Beach customers.
15
SECTION 18. ASSIGNMENT
Franchisee shall not assign, sell, subcontract, transfer
or otherwise delegate its authority to perform any portion of
the solid waste handling services or obligations under the
Franchise without prior express written consent of the City
Council. This prohibition includes any transfer of ownership
or control of Franchisee, or the conveyance of a majority of
Franchisee's stock to a new controlling interest. City's
consent shall not be unreasonably withheld.
SECTION 19. MISCELLANEOUS PROVISIONS
A. Notices. Except as otherwise provided in this
Agreement, all notices required by this Agreement shall be
given by personal service or by deposit in the United States
mail, postage pre -paid and return receipt requested, addressed
to the parties as follows:
To: General Services Director
City of Newport Beach
3300 Newport Boulevard
Newport Beach, CA 92659
To Franchisee: A- TROJAN DISPOSAL
5600 Alhambra Avenue
Los Angeles, CA 90032
Notice shall be deemed effective on the date personally
served or, if mailed, three days after the date deposited in
the mails.
B. Amendments. This Agreement supersedes all prior
agreements and understandings between the parties and may not
be modified or terminated orally, and no modification,
termination or attempted waiver of any of the provisions hereof
shall be binding unless in writing and signed by the party
against whom the same is sought to be enforced.
C. Applicable Law. This Agreement and the transactions
herein contemplated shall be construed in accordance with an
governed by the applicable laws of the State of California and
of the United States.
D. Authority. The parties signing below represent and
warrant that they have the requisite authority to bind the
entities on whose behalf they are signing.
E. Conflicts: In the event of any conflict between the
provisions of this Agreement and the provisions of Chapter
12.63 of the Code, the provisions of this Agreement shall
control.
16
F. Severability. If any provision of this Agreement is
determined by a court of competent jurisdiction to be invalid
or unenforceable, the remaining provisions shall not be
affected unless their enforcement under the circumstances would
be unreasonable, inequitable or would otherwise frustrate the
purposes of this Agreement.
WITNESS THE EXECUTION OF THIS AGREEMENT ON THE DATE
WRITTEN BELOW EACH SIGNATURE:
ATTEST
"CITY"
CITY OF NEWPORT BEACH, a Municipal
Corporation
BY
RAGGIO, Y CLERK JOHN HEDGE MAYOR
DATE:
AP TV AS TO FORM:
R6tIN CLAUSON
Assistant City Attorney
11 -21 -95
wb \a9r \wastec1n..a9t
17
"FRANCHISEE"
A -TR D OSA
BY:
NAME : L) ✓� gadA Ck \1 k ut
Title:
Date: -A klq
ACCEPTANCE OF SOLID WASTE MANAGEMENT FRANCHISE
WHEREAS, on November 27, 1995, the City Council of the City of
Newport Beach adopted Ordinance No. 95 -64 entitled an Ordinance of
the City Council of the City of Newport Beach Granting Nonexclusive
Franchises to Provide Solid Waste Collection Services Upon the City
Streets and within the City of Newport Beach; and
WHEREAS, the Charter of the City of Newport Beach, Section
1303, and Ordinance No. 95 -64 provide that any franchise granted
shall not become effective until written acceptance is filed by the
Grantee with the City Clerk. The acceptance shall be filed within
ten (10) days after the adoption of Ordinance No. 95 -64.
WHEREAS, the undersigned Grantee wishes to accept the grant of
the Franchise.
NOW THEREFORE, R –T�b lSr r-4 d hereby
accepts the grant of the Nonexclusive Franchise granted by
ordinance No. 95 -64 and hereby agrees to comply with the provisions
of the Newport Beach Charter, Chapter 12.63, Ordinance No. 95 -64
and the Franchise Agreement in all its operations pursuant to the
grant of the Franchise.
DATE : ) Z 0 1
6x% 4C
F— RAN�ISEE
,I
BY:
I LE }vr.
CITY CLERK'S VERIFICATION OF ACCEPTANCE
I, Wanda Raggio, City Clerk, certify that the� above acceptance of
Franchise =eived by me on 1995, at
,a. /p.m.
r
S-
TY CLERK
de\acceptev.doc
RE: ACCEPTANCE OF SOLID WASTE MANAGEMENT FRANCHISE
DEAR MS. RAGGIO:
PLEASE BE ADVISED THAT A— TROJAN DISPOSAL HAS INADVERTENTLY FAILED
TO RETURN THE ABOVE REFERENCED .FORM TO YOUR, OFFICE IN A TIMELY
MANNER...
'MR. AGAMALIAN, THE PRINCIPAL `OWNER AND PRESIDENT OF A- TROJAN
DISPOSAL,'. WAS OUT OF. .TOWN FOR AN EXTENDED': PERIOD OF .TIME.'THEREFORE, HE' DID NOT HAVE ,A SUFFICIENT AMOUNT-OF TIME 'TO.REVIEW
THE.PACKAGE UNTIL AFTER THE DATE IT WAS TO- BE EXECUTED AND RETURNED.
TO THE CITY.
GIVEN THE EXTREMELY SHORT TIME FRAME FROM WHICH TO RESPOND AS WELL
AS THE ABOVE. EXTENUATING CIRCUMSTANCES,-IT IS MY UNDERSTANDING THAT '
MS..CLAUSON WELL PROVIDE YOU WITH`A SUPP.LEMENTAL'STAFF..REPORT'TO BE
ATTACHED TO OUR* ."ACCEPTANCE" RECOMMENDING] THAT HE CITY COUNCIL.
APPROVE SAME ON JANUARY.8, 1996..
PLEASE DO NOT HESITATE TO- CONTACT ME'PERSONALLY, IF'THERE ARE ANY
QUESTIONS OR COMMENTS.
THANK YOU, IN ADVANCE, FOR YOUR COURTESY AND COOPERATION.
5600 Alhambra Ave. • Los Angeles, CA 90032 • (818) 444 -1373! (213) 223 -7777 (714) 998 -2259 • FAX (213) 223 -0147. -
'
pmt. Id on recycled stock
ACCEPTANCE OF SOLID WASTE MANAGEMENT FRANCHISE
WHEREAS, on November 27, 1995, the City Council of the City of
Newport Beach adopted Ordinance No. 95 -64 entitled an Ordinance of
the City Council of the City of Newport Beach Granting Nonexclusive
Franchises to Provide Solid Waste Collection Services Upon the City
Streets and within the City of Newport Beach; and
WHEREAS, the Charter of the City of Newport Beach, Section
1303, and Ordinance No. 95 -64 provide that any franchise granted
shall not become effective until written acceptance is filed by the
Grantee with the City Clerk. The acceptance shall be filed within
ten (10) days after the adoption of Ordinance No. 95-64.
WHEREAS, the undersigned Grantee wishes to accept the grant of
the Franchise.
NOW THEREFORE, R `Tr`� CLUX 6'6V ,( �, _S< , hereby
accepts the grant of the Nonexclusive Franchise granted by
Ordinance No. 95 -64 and hereby agrees to comply with the provisions
of the Newport Beach Charter, Chapter 12.63, Ordinance No. 95 -64
and the Franchise Agreement in all its operations pursuant to the
grant of the Franchise.
DATE : ) 2-- I 'fi d_t G V� L SJOSi d C
FRAM ISEE
BY: '�a'
I LE r�y
CITY CLERK'S VERIFICATION OF ACCEPTANCE
T, Wanda Raggio, City Clerk, certify that the above acceptance of
Franchise �aseived by me on / /D� ®��r -�P�L �� 1995, at
a. (p.m.
�� r
TY CLERK
de %acceptsw.doc