HomeMy WebLinkAboutFederal DisposalCorporate Office: 1301 E. Orangethorpe Ave • Fullerton, CA 92831
Mailing Address: PO Box 14730 • Irvine, CA 92623-4730
Telephone: 714 773-5600 • Fax: 714 773-5608
March 11, 2015
Mike Pisani
City of Newport Beach
100 Civic Center Drive
Newport Beach, Ca 92660
Dear Mike,
Please be advised that Federal Disposal Service has closed and will no longer require the
franchise agreement with the City of Newport Beach.
Please let me know if you have any further questions.
Th y
D n ubin
Federal Disposal Service
•
AMENDMENT NO. 1
TO COMMERCIAL SOLID WASTE COLLECTION
NONEXCLUSIVE FRANCHISE AGREEMENT BETWEEN THE CITY OF
NEWPORT BEACH AND FEDERAL DISPOSAL
THIS AMENDMENT NO. I TO COMMERCIAL SOLID WASTE FRANCHISE
AGREEMENT, is entered into as of this 18th day of March, 2008, by and between the CITY OF
NEWPORT BEACH, a Municipal Corporation ("CITY"), and DONALD SHUBIN, DOING
BUSINESS AS ("DBA"), FEDERAL DISPOSAL, A SOLE PROPRIETORSHIP
("FRANCHISEE"), and is made with reference to the following:
RECITALS:
A. On March 1, 2007 CITY and FRANCHISEE entered into a Commercial Solid Waste
Nonexclusive Franchise Agreement, hereinafter referred to as "AGREEMENT".
B. The CITY is currently is currently in negotiations with the County of Orange over
the tipping fee charged for the disposal of solid waste. To obtain a more
favorable rate from the County of Orange for all Franchisees, the City must
require Franchisees to deliver all residual solid waste materials (materials that
are not delivered to a recycling facility) to a landfill/disposal site owned and/or
operated by the County of Orange.
C. CITY and FRANCHISEE mutually desire to amend AGREEMENT, hereinafter
referred to as "AMENDMENT NO. 1, as provided here below.
NOW, THEREFORE, it is mutually agreed by and between the undersigned parties as
follows:
1. Section 6(8) of the Agreement shall be amended to delete the first sentence and
replace it with the following:
"Franchisee shall dispose of solid waste collected or transported by Franchisee
only by taking such solid waste to a 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."
Section 6(c) of the Agreement shall be amended to delete the last sentence and
replace it with the following:
"Failure to comply with the recycling/diversion requirements and delivery/disposal
of materials in accordance to the designated certified/licensed facility shall be a
material breach of this agreement."
Except as expressly modified herein, all other provisions, terms, and covenants
set forth in AGREEMENT shall remain unchanged and shall be in full force and
effect.
H. Interpretation. The terms of this Agreement shall be construed in accordance with
the meaning of the language used and shall not be construed for or against either party by reason
of the authorship of this Agreement or any other rule of construction that might otherwise apply.
1. Equal Opportunity Employment. Franchisee represents that, it is an equal
opportunity employer and it shall not discriminate against any authorized subcontractor,
employee or applicant for employment because of race, religion, color, national origin, handicap,
ancestry, sex or age.
J. Compliance with Laws: Franchisee shall at its own cost and expense comply with
all statutes, ordinances, regulations ,and requirements of all governmental entities, including
federal, state, county or municipal, whether now in force or hereinafter enacted. Franchisee
agrees to obtain a business license from the City in accordance with the Code. The parties hereto
agree that the Franchise and this Agreement are the only authorizations to conduct solid waste
collection business in the City and that the issuance of a business license does not grant the
Franchisee a right to conduct solid waste collection or other business in the City.
K. Conflicts of Interest: Franchisee or its employees may be subject to the provisions
of the California Political Reform Act of 1974 (the "Act"), which (i) requires such persons to
disclose any financial interest that may foreseeably be materially affected by the work performed
under this Agreement, and (ii) prohibits such persons from making, or participating in making,
decisions that will foreseeably financially affect such interest.
If subject to the Act, Franchisee shall conform to all requirements of the Act. Failure to do so
constitutes a material breach and is grounds for immediate termination of this Agreement by
City. Franchisee shall indemnify and hold harmless City for any and all claims for damages
resulting from Franchisee's violation of this subsection.
[SIGNATURES ON FOLLOWING PAGE]
17
IN WITNESS WHEREOF, the parties hereto have executed this AMENDMENT NO. 1
on the date first above written.
APPROVED AS TO FORM:
City Attorney
for the City of Newport Beach
ATTEST:
B'(.
/)� ,
La V ohne Harkless,
City Clerk
CITY ggF NEWPORT E E
A Muf ior)wal CQ''porLtion
is
Edward D. Selich", Mayor
for the City of Newport Beach
FRANCHISEE:
By:
II�VIpVrate Off lcei)
Title: ('W�-,ou�-�
Print Name: P cln1\ \0� S kL'��k Y\
By:
(` financial Officer)
Title: I"'l�✓a�c �-
Print Name: 0oYtcc\J -(�k� 6-
ACCEPTANCE OF SOLID WASTE MANAGEMENT FRANCHISE
WHEREAS, on March 27, 2007, the City Council of the City of Newport Beach
adopted Ordinance No. 2007-7 entitled an Ordinance of the City Council of the City of
Newport Beach Granting a Non -Exclusive Solid Waste Franchise to Franchisees to
Provide Solid Waste Collection Services Upon the City Streets and Within the City of
Newport Beach; and
WHEREAS, the Charter of the City of Newport Beach, Section 1303, and
Ordinance No. 2007-7 provide that any franchise granted shall not become effective until
written acceptance is filed by the Grantee with the City Clerk. The acceptance shall be
filed within ten (10) days after the adoption of Ordinance No. 2007-7.
WHEREAS, the undersigned Grantee wishes to accept the grant of the Franchise.
NOW THEREFORE, zm a� 4 S6w6n hereby
accepts the grant of the Nonexclusive Franchise granted by Ordinance No. 2007-7 and
hereby agrees to comply with the provisions of the Newport Beach Charter, Chapter
12.63, Ordinance No. -2007-7 _ and the Franchise Agreement in all its operations pursuant
to the grant of the Franchise.
DATE: 4 31 0T Nenat "P4a54 SGrVrGG
HISE
BY: "h
NAME: .VOna �Sh ltibin
TITLE: Tris i jzri�
CITY CLERKS' S VERIFICATION OF ACCEPTANCE
I, LaVonne M. Harkless, City, Clerk certify that the above acce tance of Franchise was
received by me on , 2007, at ! �� , a.m p.m.
V,
CITY CLERK.
I
.hOFYi`A.
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed on the day
and year first written above.
LAVONNE M. HARKLESS
City Clerk
APPROVED AS TO FORM:
AAR6N C. HARP
Assistant City Attorney
;a
"CITY"
CITY OF NEWPORT BEACH, a Municipal
Corporation
BY:
STEVEN ROS S Y,
Mayor
"FRANCHISEE"
BY: & gi�\
NAME: PLnalcl %Lk6j n
(Print)
TITLE: ?k-eji Jeer, -
DATE: '4 1310 �
NAME:
(Print)
TITLE:
DATE:
ATTEST:
jog"�
" i.OVL
LAVONNE M. HARKLESS
City Clerk
APPROVED AS TO FORM:
AAR6N C. HARP
Assistant City Attorney
;a
"CITY"
CITY OF NEWPORT BEACH, a Municipal
Corporation
BY:
STEVEN ROS S Y,
Mayor
"FRANCHISEE"
BY: & gi�\
NAME: PLnalcl %Lk6j n
(Print)
TITLE: ?k-eji Jeer, -
DATE: '4 1310 �
NAME:
(Print)
TITLE:
DATE:
STATE OF CALIFORNIA }
COUNTY OF ORANGE } as.
CITY OF NEWPORT BEACH }
I, LaVonne M. Harkless, City Clerk of the City of Newport Beach, California, do
hereby certify that the whole number of members of the City Council is seven; that the foregoing
ordinance, being Ordinance No. 2007-7 was duly and regularly introduced before and adopted by the
City Council of said City at a regular meeting of said Council, duly and regularly held on the 27th
day of March 2007, and that the same was so passed and adopted by the following vote, to wit:
Ayes: Henn, Curry, Selich, Webb, Daigle; Gardner, Mayor Rosansky
Noes: None
Absent: None
Abstain: None
IN WITNESS WHEREOF, I have hereunto subscribed my name and affixed the
official seal of said City this 28th day of March 2007.
(Seal)
r
City Clerk
City of Newport Beach, California
CERTIFICATE OF PUBLICATION
STATE OF CALIFORNIA }
COUNTY OF ORANGE
CITY OF NEWPORT BEACH }
I, LAVONNE M. HARKLESS, City Clerk of the City of Newport Beach; California, do hereby
certify that Ordinance No. 2007-7 has been duly and regularly published according to law and the
order of the City Council of said City and that same was so published in The Daily Pilot, a daily
newspaper of general circulation on the following date, to wit: March 31, 2007.
2007.
In witness whereof, I have hereunto subscribed my name this day of
City Clerk
City of Newport Beach, California
• •
COMMERCIAL SOLID WASTE COLLECTION
NONEXCLUSIVE FRANCHISE AGREEMENT BETWEEN THE CITY OF
NEWPORT BEACH AND SOLID WASTE HAULERS LISTED IN EXHIBIT A.
This Nonexclusive Franchise Agreement for Commercial Solid Waste Handling, Services
("Agreement") is entered into this I" day of March 2007 ("Effective Date") by and between the
CITY OF NEWPORT BEACH, a municipal corporation and Charter City organized and existing
under the laws of the State of California ("City"), and Federal Disposal Service, a California
Corporation, whose address is P.O. Box 14730, Irvine, California, 92623 ("Franchisee") and is
made with reference to the following:
RECITALS
This Agreement, is entered into on the basis of the following facts:
A. Franchisee has provided or is capable of providing commercial solid waste
collection services in the City.
B. Pursuant to Article XIII of the City Charter, Chapter 12.63 of the City of Newport
Beach Municipal Code ("Code"), and Sections 49300 and 49500-49523 of the Public Resources
Code, the City is authorized to enter into nonexclusive franchise agreements for commercial
solid waste handling services.
C. Pursuant to this Agreement, City desires to authorize Franchisee to provide
nonexclusive commercial solid waste handling services within the City. Franchisee shall furnish
all personnel, equipment, and supplies necessary to collect, transport, or otherwise remove and
dispose of solid waste and recyclable materials from commercial, institutional, or industrial
premises within the City.
D. The City Council has determined that the grant of a nonexclusive franchise is in
the public interest.
NOW, THEREFORE, CITY AND FRANCHISEE DO HEREBY AGREE AS
FOLLOWS:
SECTION 1. GRANT OF FRANCHISE
A. By Ordinance No. 2007-7, City has granted to Franchisee a nonexclusive
franchise authorizing Franchisee to provide commercial solid waste handling services for solid
waste kept, accumulated, or generated in the City of Newport Beach and to use the public streets
and public right-of-ways for such purpose ("Franchise"). Franchisee acknowledges that the
Franchise is not exclusive and that the Franchise is subject to the provisions of Article XIII of the
City Charter, Ordinance No. 2007-7, Chapter 12.63 of the Code, and the terms and conditions of
this Agreement.
B. Upon the Efective Date of this Agreement, theparties agree that any prior
authorization relating to the conduct of commercial solid waste handling services in the City
arising under and pursuant to any prior franchise issued to Franchisee shall be deemed to be
terminated and of no further force or effect.
SECTION 2. TERM OF FRANCHISE
The term of this Agreement shall commence on the Effective Date, and shall terminate on
the 1 st day of March; 2017 (`Termination Date"), unless terminated earlier as set forth herein
(`Term").
SECTION 3. DEFINITIONS
Unless otherwise defined herein, or if the use or context clearly requires a different
definition, all words, terms and phrases in this Agreement and the derivations thereof shall have
the meanings set, forth in Section 12.63 .020 of the Code.
SECTION 4. FRANCHISE FEES
A. During the tern of the Franchise, Franchisee shall pay to City franchise fees for
the privilege of providing commercial solid waste handling services in the City of Newport
Beach and for the use of public streets, right-of-ways and places for such purposes. The
franchise fee that Franchisee shall pay to the City shall be ten and a half percent (10.5%) of the
gross receipts for all commercial solid waste handling services provided by the Franchisee in the
City of Newport Beach (`Franchise Fees"). One half percent (.5%) of the Franchise Fee shall be
attributable to the maintenance and implementation of the City's Source Reduction and Recycling
Element "SRRE," and shall be separately accounted for; and used only for the costs stated in
Public Resources Code Section 41901 or any successor provision.
B Franchise Fees shall be paid quarterly on forms prescribed by the Administrative
Services Director.
C. Franchisee shall pay all required'Franchise Fees to:
City of Newport Beach
Attn: Administrative Services Director
3300 Newport. Boulevard
Newport Beach, CA 92658
D. Franchise Fees shall be due and payable on the thirtieth (30th) day of the month
following the end of each quarter. Because the Effective Date for this Agreement is starting in
the middle of a quarter, the first payment of the Franchise Fees due and payable to the City from
the Effective Date to the end of the first quarter (i.e. March 31, 2007) will be due and payable on
the thirtieth (30th) day of April 2007.
E. The parties hereto agree that Franchisee's failure to make Franchise Fee and
Environmental Liability Fund Fee, as set forth in Section 8 (hereinafter the Franchise Fee and
2
E. The parties hereto agree that Franchisee's failure to make Franchise Fee and
Environmental Liability Fund Fee, as set forth in Section 8 (hereinafter the Franchise Fee and
Environmental Liability Fund Fee shall collectively be referred to as "Fee(s)"), payments within
the time allowed will result in damages being sustained by City. Such damages are, and will
continue to be, impracticable and extremely difficult to determine. If Fees are not paid by
Franchisee when due then in addition to the Fees, Franchisee shall pay a late charge in an amount
equal to ten percent (10%) of the amount of the Fee that was not timely paid by Franchisee. If
Franchisee fails to pay delinquent Fees within thirty (30) days of the date due, Franchisee shall
pay a second (2°a) late charge in an amount equal ten percent (10%) on both the amount of the
Fee outstanding and the first late charge. The second (2"a) late charge shall be in addition to the
first (1st) late charge. Execution of this Agreement shall constitute agreement by the parties that
the late charges set forth in this subsection is the minimum value of the costs and actual damages
caused by the failure of the Franchisee to pay the Fees within the allotted time. Such sum is
liquidated damages and shall not be construed as a penalty.
In addition to the late charges imposed on Franchisee for failing to pay Fees in
accordance with this Agreement, Franchisee shall pay interest on the amount of Fees and late
charges due and owing at the rate of one and one-half percent (I %2 %) per month for each month
or portion of a month that the Fees and late charges remain unpaid.
F. In the event Franchisee believes that it has paid Fees in excess of the Fees due to
City, Franchisee may submit a request for refund to the Administrative Services Director on a
form provided by the Director. If proof of overpayment is satisfactory to the Director; the
Director shall refund to Franchisee any overpayment. Franchisee shall not apply any
overpayment as a credit against any other amounts payable to City unless specifically authorized
by the Administrative Services Director in writing.
G. Each Franchise Fee payment shall be accompanied by a written statement
described in Section 12.63.090 of the Code on a form provided by the Administrative Services
Director. No statement filed under this Section shall be conclusive as to the matters set forth in
such statement, nor shall the filing of such statement preclude the City from collecting by
appropriate action the sum that is actually due and payable.
H. Franchisee may separately list the actual Franchise Fee rate and Environmental
Liability Fund Fee rate as established by this Section, and any other fees required by this
Agreement, on its invoices to its customers. In no case may the Franchise Fee rate or
Environmental Liability Fund Fee rate listed by the Franchisee on the invoice exceed the actual
Franchise Fee or Environmental Liability Fund Fee rates imposed by the City.
SECTION 5. CASH DEPOSIT
Franchisee shall, prior to the placement of any commercial solid waste container on
public property, provide City with a cash deposit in the sum of Five Thousand, Dollars
($5,000.00) to ensure compliance with the duties and obligations imposed by the provisions of
the Code, regulations adopted by the City Manager or his designee and this Agreement.
3
• •
SECTION 6. DISPOSAL OF SOLID WASTE
A. Franchisee shall comply with all recycling and diversion requirements imposed by
law, ordinance, or regulation on the City and/or Franchisee. On a quarterly basis Franchisee shall
divert solid waste collected from landfills as follows: Year 1: fifty percent (50%); Year 2: fifty-
one percent (51%); Year 3: fifty-two percent (52%); Year 4: fifty-three percent (53%); Year 5;,
fifty-four percent (54%); Years 6-10: fifty-five percent (55%). In no event shall Franchisee
deposit more solid waste at any landfill during any calendar quarter than the required diversion
rate mandated by the City. In the event new or additional diversion requirements are imposed by
law, ordinance or regulation on City and/or Franchisee, the City shall have the right to require
Franchisee to divert additional solid waste from landfills by providing Franchisee with ten (10)
days written notice of the new diversion requirements. Upon request of the General Services
Director, Franchisee shall provide all documents and information requested by the General
Services Director to prove that Franchisee has complied with thissubsection, any applicable law,
ordinance, regulation, or condition related to recycling and diversion of solid waste.
B. Franchisee shall dispose of solid waste collected or transported by Franchisee only
by taking such solid waste to a State certified/licensed landfill, State certified/licensed transfer
station, State certified/licensed recycling facility or State certified/licensed materials recovery
facility which is lawfully authorized to accept that specific type of solid waste material.
Franchisee shall not dispose of solid waste by depositing it on any land, (except a permitted
facility) whether public or private, or in any river, stream or other waterway, or in any sanitary
sewer or storm drainage system. Nothing in this Agreement shall be deemed or construed as
authorizing Franchisee to operate a landfill, recycling center, or other solid waste disposal
facility.
C. All solid waste, in addition to recyclables, collected by Franchisee shall become
the property of Franchisee upon placement, by the customer for collection. If Franchisee violates
the terms in Section 6(A) and Section 6(B) above, Franchisee agrees that the City has the future
right to direct that solid waste be delivered to a permitted disposal facility designated by City.
This exercise of "flow control' by the City shall be made upon at least 30 days prior written
notice to Franchisee, and written notice shall include the violation(s) prompting the City's action
regarding "flow control." Failure to comply with the recycling/diversion requirements and
delivery/disposal of materials to a certified/licensed facility shall be a material breach of this
agreement.
D. Franchisee shall include as a condition to its contractual agreement with its
customers a provision prohibiting disposal of hazardous waste in any of Franchisees vehicles or
disposal bins/containers, and other equipment.
E. Franchisee shall implement a load check program that includes, at a minimum, a
visual cheek 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..
0
SECTION 7. REPORTS
A. Franchisee shall submit to City monthly reports stating the total amount (in tons)
of solid waste which Franchisee collected in the City of Newport Beach during the reportable
month; the total weight (in tons) of solid waste disposed of by Franchisee at landfills and transfer
stations which Franchisee collected in the City of Newport Beach during the reportable month;
the total weight and the weight by material category (in tons) of solid waste disposed of by
Franchisee at recycling and materials recovery facilities during the reportable month which
Franchisee collected in the City of Newport Beach; the name and location of all solid waste and
recycling facilities where City of Newport Beach materials were delivered; such other tonnage or
other information as requested by the General Services Director including weigh tickets,
recycling records; and any complaints received by the Franchisee. Such monthly reports shall be
prepared on such form as required by the General Services Director. Each monthly report shall
be submitted on or before the 15th day of the month following the end of the month (i.e. report
due April 15 for first month after the Effective Date) and submitted to:
General Services Director
City of Newport Beach
3300 Newport Blvd.
Newport Beach, CA 92663
B. If the report required under Subsection A is not filed by the due date specified
above, the report shall be deemed delinquent. If the report remains delinquent for more than
fifteen (15) days, Franchisee shall pay to City a delinquent report charge in the amount of One
Hundred Dollars ($100). If the report remains delinquent for more than forty-five (45) days,
Franchisee shall pay to City a delinquent report charge in the amount of Five Hundred Dollars
($500). Such delinquent report charges shall be in addition to any Franchise Fees or other
charges payable by Franchisee under this Agreement.
C. Franchisee shall comply with all recycling and diversion requirements imposed by
law, ordinance, or regulation on the City. Monthly reports stating the total amount (in tons) of
solid waste which Franchisee landfilled, recycled and collected should accurately reflect the
diversion rate required by the City (Year 1- 50%, Year 2- 51 %, Year 3- 52%, Year 4- 53%, Year
5- 54%, Years 6-10- 55%). At the end of each quarter, monthly reports will be evaluated for
compliance with City diversion requirements. Failure to comply with the recycling and diversion
requirements shall be a material breach of this Agreement.
SECTION 8. ENVIRONMENTAL LIABILITY FUND FEE
A. City and Franchisee acknowledge the potential liability which can result from
commercial solid waste handling services under Federal and State environmental laws. City
intends to take reasonable actions to obtain protection and indemnification against future
environmental liability for solid waste generated within the City of Newport Beach and the
activities of Franchisee under this Agreement for handling such solid waste. To provide
protection and indemnification to City for Franchisee's solid waste handling activities in the City
of Newport Beach, Franchisee agrees to collect from its customers a fee for payment into an
Environmental Liability Fund which shall be a separate Fund established and maintained by City.
E
The Fund shall be used to purchase insurance which will insure the City against environmental,
liability which may be imposed upon City as a result of Franchisee's activities under this
Franchise and/or shall be used to pay environmental liability costs and expenses arising from or
related in any way to commercial solid waste handling services. The Fund shall not be
commingled with or included in the City's General Fund.
B. The fee that Franchisee shall pay to the City Environmental Liability Fund shall
be five and a half percent (5.5%) of the gross receipts for all commercial solid waste handling
services provided by the Franchisee in the City of Newport Beach ("Environmental Liability
Fund Fee(s)"). Payment of the Environmental Liability Fund Fee shall be made concurrently
with the payment of the Franchise Fees specified in Section 4 of this Agreement. Franchisee
agrees to pay late charges and interest as provided in Section 4(E) of this Agreement if
Franchisee fails to pay the Environmental Liability Fund Fee within the time frames set forth
herein.
C. Compliance with this obligation shall not limit Franchisee's indemnification as set
forth in Section 11, however, the indemnification provisions of 1l(C) shall be secondary to the
Fund established by this Section or any insurance purchased with the funds provided.
SECTION 9. FRANCHISEE'S RECORDS
A. Franchisee shall keep and maintain books of account, income statements, tonnage
reports and supporting documents and all other documents that relate in any way to business
transactions conducted by Franchisee in connection with the commercial solid waste handling
services of Franchisee under this Agreement during the Term, of this Agreement and for a
minimum period of three (3) years, or for any longer period required by law, after the
Termination Date. Such records shall be kept at Franchisee's place of business and shall be
clearly identifiable
B. Franchisee shall allow a representative of City to examine, audit and make
transcripts or copies of the books of account, income statements, tonnage reports and supporting
documents, and all other documents that relate in any way to business transactions conducted by
Franchisee in connection with the commercial solid waste handling services of Franchisee under
this Agreement at Franchisee's place of business during normal business hours within three (3)
working days of the City Manager, or his designees request or demand to inspect and/or audit
these records. The purpose of such inspection and/or audit shall be for verification of the Fees
paid by Franchisee under this Agreement, and the accuracy thereof; and for verification of the
amounts of solid waste reported by Franchisee pursuant to this Agreement. Franchisee's books of
account, income statements, tonnage reports and other documents accessed by City shall be kept
confidential unless these documents are deemed necessary by City to enforce the terms of this
Agreement or are required to be produced pursuant to any applicable law.
C. The parties agree that Franchisee's failure to provide its records in accordance
with City's request to examine, audit and make transcripts or copies of the books of account,
income statements, tonnage reports and supporting documents in accordance with Subsection. B
above, shall be considered a material breach of this Agreement and will result in damages being
2
sustained by City. Such damages are, and will continue to be; impracticable and extremely
difficult to determine. The parties agree that if Franchisee fails to provide its records in
accordance with Subsection B above, the City may, in its discretion terminate this Agreement
and/or charge a late charge in the amount of Two Hundred Fifty and No/100 Dollars ($250.00)
for each working day that Franchisee does not provide said records. Execution of this Agreement
shall constitute agreement by the parties that the late charge set forth in this subsection is the
minimum value of the costs and actual damages caused by the failure of the Franchisee to
provide records in accordance with Subsection B above. Such sum is liquidated damages and
shall not be construed as a penalty.
D. Franchisee shall reimburse City for City's costs in performance of an audit if, as a
result of the audit it is determined:
I . There was any intentional misrepresentation by Franchisee with respect to
the amount of Fees due to the City; or
2. There is a one thousand dollars ($1,000.00) or greater discrepancy in the
amount of Fees due to the City.
Such reimbursement shall be paid by Franchisee within thirty (30) days of the date City
notifies Franchisee in writing that the Franchisee is liable to reimburse the City in conformance
with this subsection and the amount of City s audit costs.
E. If Franchisee refuses to provide City's auditor with its records as required by
Subsection B above or disagrees with City's audit findings, then Franchisee may, within ten (10)
days after written request by City's designated representative for records disclosure, or within ten
(10) days after service of the audit finding, appeal the imposition of late charge or the audit
findings by filing a written appeal with the City Council specifying the basis of Franchisee's
failure to provide records, or the reason for its disagreement with City's audit findings. If
Franchisee fails to timely request such an appeal to the City Council, then the late charges and/or
discrepancy determinations shall be final and conclusive and the amounts shall become
immediately due and payable and/or the violation shall be deemed established.
SECTION 10. INSURANCE REQUIREMENTS
Without limiting Franchisee's indemnification of City, Franchisee shall obtain, provide
and maintain at its own expense during the term of this Agreement, a policy or policies of
liability insurance of the type and amounts described below and in a form satisfactory to City.
A. Certificates of Insurance. Franchisee shall provide certificates of insurance with
original endorsements to City as evidence of the insurance coverage required herein. Insurance
certificates must be approved by City's Risk Manager prior to commencement of the Franchise.
Current certification of insurance shall be kept on file with City. at all times during the term of
this Agreement.
B. Signature. A person authorized by the insurer to bind coverage on its behalf shall
sign certification of all required policies.
7
C. Acceptable Insurers. All insurance policies shall be issued by an insurance
company currently authorized by the Insurance Commissioner to transact business of insurance in
the State of California, with an assigned policyholders' Rating of A (or higher) and Financial
Size Category Class VII (or larger) in accordance with the latest edition of Best's Key Rating
Guide, unless otherwise approved by the City's Risk Manager.
D. Coverage Requirements.
1. Workers' Compensation Coverage. Franchisee shall maintain Workers'
Compensation Insurance and one million dollars ($1,000,000) Employer's Liability Insurance for
his or her employees in accordance with the laws of the State of California. Any notice of
cancellation or non -renewal of all Workers' Compensation policies must be received by City at
least thirty (30) calendar days (10 calendar days written notice of non-payment of premium) prior
to such change. The insurer shall agree to waive all rights of subrogation against City, its
officers, agents; employees and volunteers for losses arising from work performed by Franchisee
that relates in any way to this Agreement.
2. General Liability Coverage. Franchisee shall maintain commercial general
liability insurance in an amount not less than one million dollars ($1,000,000) per occurrence for
bodily injury, personal injury, and property damage, including without limitation, contractual
liability. If commercial general liability insurance or other form with a general aggregate limit is
used, either the general aggregate limit shall apply separately to the work to be performed under
this Agreement, or the general aggregate limit shall be at least twice the required occurrence
limit.
3. Automobile Liability Coverage. Franchisee shall maintain automobile
insurance covering bodily injury and property damage for all activities of the Franchisee arising
out of or in connection with work to be performed under this Agreement; including coverage for
any owned, hired, non -owned or rented vehicles, in an amount not less than two million dollars
($2,000,000) combined single limit for each occurrence.
E. Endorsements. Each general liability and automobile liability insurance policy
shall be endorsed with the following specific language;
1. The City, its elected or appointed officers, officials, employees, agents and
volunteers are to be covered as additional insureds with respect to liability arising out of work
performed by or on behalf of the Franchisee.
2. This policy shall be considered primary insurance as respects to City; its
elected or appointed officers, officials employees, agents and volunteers as respects to all claims,
losses, or liability arising directly or indirectly from the Franchisee's operations or services
provided to City. Any insurance maintained by City, including any self-insured retention City
may have, shall be considered excess insurance only and not contributory with the insurance
provided hereunder.
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3. This insurance shall act for each insured and additional insured as though a
separate policy had been written for each, except with respect to the limits of liability of the
insuring company.
4. The insurer waives all rights of subrogation against City, its elected or
appointed officers, officials, employees, agents and volunteers.
5. Any failure to comply with reporting provisions of the policies shall not
affect coverage provided to City, its elected or appointed officers, officials, employees, agents or
volunteers.
6. The insurance provided by this policy shall not be suspended, voided,
canceled, or reduced in coverage or in limits, by either party except after thirty (30) calendar days
(10 calendar days written notice of non-payment of premium) written notice has been received by
City.
F. Timely Notice of Claims. Franchisee shall give City prompt and timely notice of
claim(s) made or suit instituted arising out of or resulting from Franchisee's performance under
this Agreement.
G. Additional Insurance. Franchisee shall also procure and maintain, at its own cost
and expense, any additional kinds of insurance, which in its own judgment may be necessary for
its proper protection and prosecution of the work.
SECTION 11. RESPONSIBILITY FOR DAMAGESAND INJURYANDEMNIFICATION
A. Franchisee Responsibility. Franchisee shall be responsible for any damages
caused as a result of Franchisees acts or omissions including, but not limited to injuries to or
death of any person or damage to public and/or private property and damages public
improvements as a result of Franchisees placement and retrieval of the commercial solid waste
containers.
B. General Indemnification. Franchisee shall indemnify, hold harmless, and defend
City, and each of its past, present and future elected officials, officers, employees, agents,
consultants, volunteers, affiliates, assignees, representatives, attorneys, subsidiaries, and
affiliated entities and their respective successors, heirs and assigns (collectively, "Indemnified
Parties") harmless for, from and against any costs, expenses, damages, and losses, including
actual attorneys fees ("Losses") of any kind or character to any person or property arising directly
or indirectly from or caused by any of the following; (i) any act or omission of Franchisee or its
respective officers, directors, shareholder members, partners, employees, agents, contractors,
subcontractors, suppliers, representatives and affiliates ("Franchisee Representatives"); (ii)
Franchisee's or Franchisee Representative's activities; (iii) any accident or casualty within or
arising out, of the services/work performed under the Franchise and/or this Agreement; (iv) any
violation or alleged violation of any law, ordinance or statute now or hereafter enacted arising out
of services/work performed pursuant to the Franchise and/or this Agreement; (v) the negligence
or willful misconduct of Franchisee or any of Franchisee representatives in the performance of
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the services/work under the Franchise and/or this Agreement; and (vi) any breach of the .
Franchise and/or this Agreement.
Franchisee shall not be required to indemnify, hold harmless and defend the Indemnified
Parties from the sole negligence, active negligence or willful misconduct of the Indemnified
Parties. Nothing in this indemnity shall be construed as authorizing any award of attorney's fees
in any action on or to enforce the terms of this Agreement. This indemnity shall apply to all
claims and liability regardless of whether any insurance policies are applicable. The policy limits
do not act as a limitation upon the amount of indemnification to be provided by the Franchisee.
C. Hazardous Substances Indemnification, Franchisee shall indemnify the
Indemnified Parties from and against all claims, actual damages including, but not limited to,
special and consequential damages, natural resource damage, punitive damages, injuries, costs;
response, remediation, and removal costs, losses; demands, debts, liens, liabilities, causes of
action, suits, legal or administrative proceedings, interest, fines, charges, penalties and expenses
attorneys' and expert witness fees and costs incurred in connection with defending against any of
the foregoing or in enforcing this indemnity of any kind whatsoever paid, incurred or suffered by,
or asserted against, the Indemnified Parties or Franchisee arising directly or indirectly from or
caused by any of the following: (i) the violation of any Environmental Laws or the failure to clean
up and mitigate the consequences of the spill or release of any Hazardous Substance; and (ii)
Franchisee's activities under this Agreement concerning any Hazardous Substance at any place
where Franchisee stores or disposes of solid or hazardous waste pursuant to this Agreement, or
preceding Agreements between City and Franchisee. The foregoing indemnity is intended to
operate as an agreement pursuant to the Comprehensive Environmental Response, Compensation
and Liability Act 42. U.S.C. Section 9607(e) and any amendments thereto; California Health and
Safety Code Section 25364, to insure, protect, hold harmless, and indemnify City from liability.
As used herein, the term "Environmental Laws" shall mean "any and all present and
future federal, state or local laws (whether common law, statute, rule, regulation or otherwise),
permits, orders and any other requirements of Governmental Authorities relating to the
environment or any "Hazardous Substance" or "Hazardous Substance Activity" (as defined
herein) (including, without limitation, the Comprehensive Environmental Response,
Compensation and Liability Act of 1980 (42 U.S.C. §§ 9601 et seq.) as amended from time to
time and the applicable provisions of the California Health and Safety Code and California Water
Code).
As used herein, the term "Hazardous Substance" shall mean "any (a) chemical,
compound, material, mixture or substance that is now or hereinafter defined or listed in, or
otherwise classified pursuant to any Environmental Law as a "hazardous substance", "hazardous
material," "hazardous waste," "extremely hazardous waste," "infectious waste," "toxic waste,"
"toxic pollutant," or any other formulation intended to define, list or classify substances by
reason of deleterious properties or affect and (b) petroleum, petroleum by-products, natural gas,
natural gas liquids, liquefied natural gas, synthetic gas usable for fuel (or mixtures of natural gas
in such synthetic gas), ash, municipal solid waste, steam, drilling fluids, produced waters and
other wastes associated with the exploration, development and production of crude oil, natural
gas or geothermal resources."
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D. AB939 Indemnification. Franchisee agrees to meet all requirements of City's
Source Reduction and Recycling, Element as to the portion of the solid waste stream handled by
Franchisee. Franchisee agrees to protect, defend, indemnify, and hold City harmless against all
fines or penalties imposed by the California Integrated Waste Management Board, or other entity,
arising from the failure of Franchisee to meet the Integrated Waste Management Act diversion
requirements with respect to the portion of the commercial waste stream collected by Franchisee.
E. Notice. City agrees to give notice to Franchisee when the City receives a claim
for damages or other liability for which Franchisee has provided indemnification under this
Section.
SECTION12. COMMERCIAL SOLID WASTE COLLECTION SERVICES
A. Frequency of Collection. Franchisee shall collect all solid waste, including
recyclable materials, as authorized in this Agreement, on a schedule to be agreed upon between
the Franchisee and its customers. The schedule shall provide for collection service at least once
per week; provided, however, that such schedule shall not permit the accumulation of solid waste
in quantities that are unreasonable or detrimental to the public health or safety. Requests for
collection from premises with overflowing bins or containers, or from premises where there have
been missed pickups, shall be serviced within 24 hours of any such request by the customer or
City. If requested by the City at any time, Franchisee's collection schedule shall be submitted to
the City for its approval.
B. Hours and Days of Collections. No collection of solid waste shall occur in any
area of the City after 6:30 p.m. and prior to 5:00 a.m. No collection of solid waste from
commercial premises within 500 feet of occupied residential premises, motels or hotels shall be
made by Franchisee, nor shall any of Franchisee's collection vehicles be operated in any
residential areas of the City except between the hours of 7:00 a.m. and 6:30 p.m., Monday
through Friday, nor on any Saturday or Sunday, except between the hours of 8:00 a.m. and 6:00
p.m. Collection on Sundays shall be limited to the disposal of commercial waste from
commercial premises which require collection every day due to public health and safety
concerns.
SECTION 13. VEHICLES AND EQUIPMENT
A. Any and all containers provided to customers of Franchisee for storage, collection
or transportation of commercial solid wastes shall meet the requirements designated by the
General Services Director as well as State of California minimum standards for solid waste
handling established under Public Resources Code Section 43020 and applicable health
requirements.
B. All containers and all vehicles used by Franchisee in the performance of
commercial solid waste handling services shall be marked with Franchisee's name and telephone
number in letters which are not less than four inches (4") high or which are easily read by the
general public.
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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 must pass the required periodic `BIT" inspection and Franchisee shall
provide evidence of such to the General Services Department as requested. Upon request by the
City, Franchisee shall provide records from the most recent California Highway Patrol biennial
inspection of the terminal(s) responsible for the maintenance and repair of equipment used in the
City. All vehicles shall be properly maintained, kept clean and in good repair, and shall be
uniformly painted. All commercial solid waste containers used in the performance of this
Agreement shall be kept clean and in good repair and shall be uniformly painted to the
satisfaction of the General Services Director. All vehicles and equipment used by Franchisee in
the performance of this Agreement may be subject to inspection by the City upon twenty-four
(24) hours notice by the General Services Director. All drivers employed by Franchisee and
operating equipment in the City shall be properly licensed for the class of vehicle they drive,
enrolled in the Department of Motor Vehicles Employee Pull Notice (EPN) program, and abide
by all State and federal regulations for driver hours and alcohol and controlled substances testing.
2. Each vehicle shall be so constructed and used in a manner so that no
rubbish, garbage, debris, oil, grease or other material will blow; fall, or leak out of the vehicle.
All solid waste shall be transported by means of vehicles which are covered in such a manner as
to securely contain all solid waste and to prevent such solid waste from projecting, blowing,
falling or leaking out of the vehicles. Any solid waste dropped or spilled in collection, transfer or
transportation shall be immediately cleaned up by Franchisee. A broom and a shovel shall be
carried at all times on each vehicle for this purpose. In addition, each collection vehicle shall be
equipped with trash bags, masking tape and notice of non -collection tags for the purpose of
separating hazardous waste for return to the generator. A communications device such as a'two-
way radio or a cellular telephone shall also be maintained on each vehicle at all times.
3 Franchisee shall not store any vehicle or equipment on any public street,
public right-of-way or other public property in the City of Newport Beach without obtaining a
Temporary Street Closure Permit from the Public Works Department and prior written consent of
the General Services Director.
4. Should the General Services Director at any time give written notification
to Franchisee that any vehicle does not comply with the standards hereunder, the vehicle shall be
promptly removed from service by Franchisee and not used again until inspected and authorized
in writing by General Services Director.
5. Placement of containers and equipment shall be in accordance with the
standards set by the Director of Public Works and in accordance with the standards set forth in
Exhibit A which is incorporated herein by this reference. Any deviation from the standards set
by the Director of Public Works or the standards set forth in Exhibit A shall require written
approval from the Public Works Director.
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SECTION 14. ABANDONED CONTAINERS
A. If Franchisee abandons any commercial solid waste container within the City of
Newport Beach, the City may remove the container and/or dispose of the contents of the
container.
B. If City is required to remove a roll -off or compactor container abandoned by
Franchisee and/or disposes of the contents of any container abandoned by Franchisee, City may
charge Franchisee for City's costs incurred in such removal/disposal and for City's costs of
storage of the container. Franchisees who are engaged in providing roll -off containers shall
maintain a Five Thousand Dollars and No Cents ($5,000:00) cash deposit with City Revenue
Division to reimburse City for such costs within ten (10) days of the date of City's invoice for
such costs.
C. For the purposes of this Section, "abandoned" includes:
1. Franchisee's failure to remove the container within the time period
specified by the City Council upon termination of the Franchise pursuant to Section 12.63.140 of
the Code;
2. Franchisee's failure to remove the container within ten (10) working days
after the expiration of the Franchise granted to Franchisee, except in the case where Franchisee
has been granted an extension of the term of said Franchise or Franchisee has been granted a
subsequent franchise authorizing Franchisee to collect and transport the type or types of solid
waste for which the container was used pursuant, to this Agreement.
3. Franchisee's failure to collect the container and dispose of the contents of
the container within five (5) calendar days after City's Director of General Services issues
written notice to Franchisee to dispose of the contents.
SECTION 15. COMPLIANCE WITH LAW
A. Franchisee shall perform all commercial solid waste handling services in
accordance with applicable federal, state, and local law, including Chapter 12.63 of the Code,
Article XIII of the City Charter, Ordinance No. 200a-__2_ and in accordance with the terms and
conditions of this Agreement.
B. During the Term of this Agreement, Franchisee and City agree that the Citys
ordinances may be amended as provided herein, as provided in Chapter 12.63 or as necessary to
permit the City to comply with changes to federal, state, and local legislative regulatory
requirements, which may affect or alter City's solid waste handling obligations or requirements
for solid waste management. Franchisee agrees to comply with any such amendment of the City's
ordinances.
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SECTION 16. PERMITS AND LICENSES
Franchisee shall obtain and maintain, at Franchisee's sole cost and expense, all permits
and licenses applicable to Franchisee's operations under the Franchise which are required of
Franchisee by any governmental agency. Payment of Franchise Fees and Environmental Liability
Fund Fees shall be in addition to any permit or license fees or business tax prescribed by the City
for the same period.
Franchisee shall obtain and maintain for the Term of this Agreement an account with the
Orange County landfills. If Franchisee disposes of solid waste at an Orange County landfills, the
Franchisee shall only dispose of Newport Beach solid waste at Orange County landfills utilizing
their account (no "cash only" disposal).
SECTION 17. PUBLIC EDUCATION ACTIVITIES
A. City and Franchisee shall cooperate in co -sponsoring not more than one
promotional event per year, as mutually agreed upon in advance by the parties, which is related to
the implementation of commercial solid waste handling services and recycling services.
B. Each year during the term of this Agreement, on an annual basis, Franchise shall
transmit promotional brochures or fliers to its customers, and to such prospective customers as it
may select, informing them of the commercial solid waste handling services and recycling
services which are provided by the Franchisee as well as hazardous waste disposal requirements.
C. All promotional brochures, fliers or other information distributed by Franchisee
hereunder shall be printed on recycled paper. All such informational materials shall be approved
in advance by the City's General Services Director.
SECTION 18. TERMINATION AND SUSPENSION
A. The franchise granted to Franchisee may be terminated by the City Council
pursuant to Section 12.63.140 of the Code.
B. In the event the Franchise is terminated pursuant to Subsection A above or, the
term of this Agreement expires:
1. Franchisee shall have no right or authority to engage in commercial solid
waste handling operations in the City of Newport Beach, subject to the provisions of Sections
49520-49523 of the Public Resources Code.
2. Franchisee shall, however, remain liable to City for any and all Franchise
Fees and Environmental Liability Fund Fees that would otherwise be payable by Franchisee, for
any and all late charges and interest assessed pursuant to Section 4 of this Agreement, and for
any and all delinquent report/record charges assessed pursuant to Sections 7 or 9 of this
Agreement.
3. Franchisee shall have a continuing obligation to submit to City all reports
required by Sections 7 and 9 of this Agreement which relates to commercial solid waste handling
14
services performed by Franchisee up to and including the date of termination, suspension, or
expiration.
4. Franchisee shall allow the solid waste generators served by Franchisee to
arrange for commercial solid waste handling services with a solid waste enterprise collector
authorized to perform such services, without penalty or liability for breach of contract on the part
of the generators, for such period of time as Franchisee is not authorized to perform such services
because of termination or suspension.
5. Franchisee agrees to continue to provide the indemnifications required in
this contract after its suspension or termination. Such indemnifications include, but are not
limited to, the hazardous materials indemnification and AB939 indemnification as set forth in
Section 11.
C. In the event this Franchise ,i's terminated pursuant to Subsection A above, then
within the time period specified by the City Council, Franchisee shall remove all of Franchisee's
commercial solid waste containers, from all Franchisee's collection service locations and shall
properly dispose of all solid waste in such containers.
D. In the event the Franchise is terminated pursuant to Subsection A above or expires
without an extension of the term and without a grant of a subsequent franchise allowing
Franchisee to continue performing such services, then within ten (10) days of such termination or
expiration Franchisee shall either:
I. Submit to City's General Services Director a list of the names and
addresses of solid waste generators in Newport Beach for which Franchisee provided services as
of the date of termination or expiration (i.e. Franchisee's City of Newport Beach customer list);
or
2. Send written notification to each solid waste generator on Franchisee's
customer list that Franchisee is no longer authorized to provide commercial solid waste handling
services in the City of Newport Beach. Such notification shall be in the form provided by City's
General Services Director and shall be personally delivered or shall be sent by first class mail,
postage prepaid, to the customers' billing addresses. Franchisee shall submit to City's General
Services Director an affidavit, signed under penalty of perjury, stating that the required
notification has been provided by Franchisee to all of Franchisee's City of Newport Beach
customers.
SECTION 19. ASSIGNMENT
Franchisee shall not assign, sell, subcontract, transfer or otherwise delegate its authority
to perform any portion of the solid waste handling services or obligations under the Franchise
without prior express consent of the City Council. This prohibition includes any transfer of
ownership or control of Franchisee, or the conveyance of a majority of Franchisee's stock to a
new controlling interest. City's consent shall not be unreasonably withheld.
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SECTION 20. MISCELLANEOUS PROVISIONS
A. Notices. Except, as otherwise provided in this Agreement, all notices required by
this Agreement shall be given by personal service or by deposit in the United States mail, postage
pre -paid and return receipt requested, addressed to the parties as follows:
To: General Services Director
City of Newport Beach
3300 Newport Blvd.
Newport Beach, CA 92663
To Franchisee: Feder -0c1 I7lSwaj
P.0, Box w�so
T4 -0r , CA 9Q6,23
Notice shall be deemed effective on the date personally served or, if mailed, three
(3) days after the date deposited in the mails.
B. Integrated ted Agreement. This Agreement represents the full and complete understanding
of every kind or nature whatsoever between the City and Franchisee, and all preliminary
negotiations and other agreements of any kind or nature are merged herein. No verbal agreement,
or implied covenant, shall be held to vary the provisions herein.
C. Amendments. This Agreement supersedes all prior agreements and
understandings between the parties and may not be modified or terminated orally, and no
modification, termination or attempted waiver of any of the provisions hereof shall be binding
unless in writing and signed by the party against whom the same is sought to be enforced.
D. Applicable Law. The laws of the State of California, and applicable Federal law,
shall govern this Agreement and all matters relating to it and any action brought relating to this
Agreement shall be adjudicated in a court of competent jurisdiction in the County of Orange.
E. Authori . The parties signing below represent and warrant that they have the
requisite authority to bind the entities on whose behalf they are signing.
F. Severabilitv. If any term or portion of this Agreement is held to be invalid, illegal,
or otherwise unenforceable by a court of competent jurisdiction, the remaining provisions of this
Agreement shall continue in full force and effect.
G. Waiver. A waiver by either party of any breach, of any term, covenant, or
condition contained herein shall not be deemed to be a waiver of any subsequent breach of the
same or any other term, covenant or condition contained herein, whether of the same or a
difference character.
FRANCHISE EXTENSION AGREEMENT
BETWEEN
THE CITY OF NEWPORT BEACH AND FEDERAL DISPOSAL
This Franchise Extension Agreement is entered into between the City of Newport Beach ("City") and
Federal Disposal ("Federal") this 131h day of December, 2005, with regards to the following facts:
RECITALS
WHEREAS, by approving Ordinance No. 95-64 on or about November 27, 1995, the City granted
Federal a non-exclusive franchise to provide solid waste collection services ("Franchise") and entered
into a solid waste franchise agreement ("Franchise Agreement") with Federal. The Franchise and
Franchise Agreement will expire on January 1, 2006; and
WHEREAS, City and Federal desire to extend the Franchise and Franchise Agreement until March 1,
2007 to allow for additional time for negotiations to consider the renewal of the Franchise and
Franchise Agreement.
NOW THEREFORE, the Parties agree as follows:
The Franchise and Franchise Agreement shall be extended to March 1, 2007. During said
extension, the terms and conditions of the current Franchise and Franchise Agreement shall
remain in full force and effect without modification.
2. Nothing herein shall be deemed or construed as a waiver, release or surrender of any right that
either party may have under any applicable law. Nothing herein shall waive, release or
otherwise relieve Federal from any Franchise and/or Franchise Agreement breaches or
violations, if any exist, or other violations of law, if any, and the grant of this Franchise and
Franchise Agreement extension shall not be utilized by Federal for any purpose other than to
extend, and document the extension, of the Franchise and Franchise Agreement through March
1, 2007.
IN WITNESS WHEREOF, the parties hereto have caused this Franchise Extension Agreement to be
executed in duplicate on the date and year first written herein.
CITY OF NEWPORT BEACH,
A Muni ipaI Corporation
O� d
Homer Biudau, Cit Manager
APPROVED AS TO FORM:
Aaron C. C. Harp,
Assistant City Attorney
FEDERAL DISPOSAL
- f
�ay, _ iii
ATTEST:
:A
�<� 1-n
LaVonne Harkless,
City Clerk
[END SIGNATURES]
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COMMERCIAL SOLID WASTE COLLECTION
FRANCHISE AGREEMENT BETWEEN THE CITY OF
NEWPORT BEACH AND FEDERAL 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 FEDERAL 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.
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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 5.5% (five and
one half percent) of the gross receipts for all commercial
solid waste handling services provided by the Franchisee in the
K
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
(1026) 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 (1,0!c) 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. I -f 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
7
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
0
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
7
determined•
i. there was any intentional misrepresentation by
Franchise with respect to the amount of franchise fess 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
1.1
11
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
shall be endorsed to state that
suspended, voided, canceled, or
thirty (30) days' prior written
City.
D. Placement of Insurance.
required by this Agreement
coverage shall not be
reduced in limits except after
notice has been given to the
Insurance shall be placed with an
certified to do business in the State
Best's rating A -VII or better, unless
City Risk Manager.
0
insurance company
of California, with
otherwise approved by the
•
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
10
0
interest from and against all claims, actual damages including,
but not limited to, special and consequential damages, natural
resource damage, punitive damages, injuries, costs, response,
remediation, and removal costs, losses, demands, debts, liens,
liabilities, causes of action, suits, legal or administrative
proceedings, interest, fines, charges, penalties and expenses
attorneys' and expert witness fees and costs incurred in
connection with defending against any of the foregoing or in
enforcing this indemnity of any kind whatsoever paid, incurred
or suffered by, or asserted against, City or its officers,
employees, agents or Franchisee arising from or attributable to
Franchisee's activities under this Agreement concerning any
hazardous substances or hazardous waste at any place where
Franchisee stores or disposes of solid or hazardous waste
pursuant to this franchise agreement, or preceding agreements
between City and Franchisee. The foregoing indemnity is
intended to operate as an agreement pursuant to the
Comprehensive Environmental Response, Compensation and
Liability Act 42. U.S.C. Section 9607(e) and any amendments
thereto; California Health and Safety Code Section 25364, to
insure, protect, hold harmless, and indemnify City from
liability.
C. AB939 Indemnification: Franchisee agrees to meet all
requirements of City's Source Reduction and Recycling Element
as to the portion of the solid waste stream handled by
Franchisee. Franchisee agrees to protect, defend, indemnify,
and hold City harmless against all fines or penalties imposed
by the California Integrated Waste Management Board with
respect to the portion of the commercial waste stream collected
by Franchisee.
D. City agrees to give notice to Franchisee when the
City receives a claim for damages or other liability for which
Franchisee has provided indemnification under this Section.
SECTION 12. VEHICLES AND EQUIPMENT
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.
11
s 0
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
12
•
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 N0.95-63 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.
13
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
14
9
0
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.
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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: FEDERAL DISPOSAL
P.O. Sox 18556
Irvine, CA 92713
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
12.63of 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
FA
REV." �,Krepmn I
!4=1
WANDA •.
APPROVED AS O FORM:
IN CLAUSON
Assistant City Attorney
11-21-95
wb\agr\wastecln.agt
17
"CITY"
CITY OF NEWPORT BEACH, a Municipal
Corporation
BY: -Ut �
-,)
JOHN HEDGES,
MAYOR
DATE: 1—a �
"FRANCHISEE"
FEDERAL 707,BY:l
NAME:
Title: (fJ9���
Date
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, FEDERAL DISPOSAL SERVICE 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.
f
FRANCHISEE Don Shubin
DATE: December 6, 1995
BY: President
TITLE
CITY CLERK'S VERIFICATION OF ACCEPTANCE
I, Wanda Raggio, City Clerk, certiPy that the above acceptance of
Franchise was received by me on?�yyLi.� ��1995, at
a. mC-M
CITY CLERK
de\acceptsw.doc