HomeMy WebLinkAboutGoodwin EnterprisesNON-EXCLUSIVE FRANCHISE AGREEMENT BETWEEN THE CITY OF
NEWPORT BEACH AND GOODWIN ENTERPRISES INC., DBA DONNY
GOODWIN TRUCKING & GOODWIN CONST FOR COMMERCIAL
SOLID WASTE HANDLING SERVICES
This Non-exclusive Franchise Agreement for Commercial Solid Waste Handling
Services ("Agreement') is entered into this 9th day of November, 2017 ("Effective Date')
by and between the CITY OF NEWPORT BEACH, a California municipal corporation and
charter city organized and existing under the laws of the State of California ("City"), and
GOODWIN ENTERPRISES INC. DBA DONNY GOODWIN TRUCKING & GOODWIN
CONST, a California corporation ("Franchisee"), whose address is P.O. Box: 7388,
Capistrano Beach, California 92624, and is made with reference to the following:
RECITALS
This Agreement is entered into on the basis of the following facts:
A. Assembly Bill ("AB") 939 (the California Integrated Solid Waste
Management Act of 1989, hereinafter the "Act; Public Resources Code Sections 40000
et seq.) requires the City to divert from landfill disposal a minimum of fifty percent (50%)
of all municipal solid waste generated within the City.
B. In 2011, the Act was amended by AB 341 to establish a statewide goal of
diverting from landfills seventy-five percent (75%) of all municipal solid waste by 2020
and required the City, on or before July 1, 2012, to provide .a commercial recycling
program.
C. AB 341 also requires all businesses generating more than four (4) cubic
yards per week of commercial municipal solid waste and all multifamily dwellings of five
(5) units or more to arrange for recycling services by July 1, 2012.
D. In 2014, the Act was further amended by AB 1826 to require the City, on or
before January 1, 2016, to provide a diversion program for collection and diversion of
food scraps and green waste.
E. AB 1826 also requires commercial generators of certain quantities of food
scraps and green waste to participate in a diversion program beginning on a date between
April 1, 2016 and January 1, 2019, depending on the quantity of waste generated.
Additional smaller commercial generators may be required by CalRecycle to participate
on or after January 1, 2020.
F. The City has received written notification from CalRecycle of its intention to
enforce the deadlines for implementation of AB 341 and AB 1826 programs within the
City as required by,the Act; therefore, it is important that Franchisee implement and
maintain successful AB 341 an AB 1826 diversion programs for all commercial customers
as required by the Act, to the satisfaction of both the City and CalRecycle.
G. Pursuant to Article XIII of the City Charter, Code Chapter 12.63, and Public
Resources Code Sections 40059, 49300, and 49500 through 49523, or any successor
statutes, the City is authorized to enter into non-exclusive franchise agreements for
commercial solid waste handling services.
H. Pursuant to Code Chapter 12.63, Franchisee has filed a franchise
application with the City.
I. City has reviewed Franchisee's application and Franchisee has
represented it is capable of providing collection services for commercial recyclable
materials, food scraps, green waste, municipal solid waste, and/or construction and
demolition debris in the City.
J. Pursuant to this Agreement, City desires to authorize Franchisee to provide
those non-exclusive commercial collection, transportation, delivery, and disposal or
diversion services for recyclable materials, food scraps, green waste, construction and
demolition debris, and municipal solid waste, as requested in Franchisee's application
and for which Franchisee has demonstrated capability.
K. The City Council has determined that this grant of a non-exclusive franchise
is in the public interest.
NOW, THEREFORE, the City and Franchisee do hereby agree as follows:
SECTION 1. GRANT OF FRANCHISE
A. By Ordinance No. 2017-16, City has granted to Franchisee a non-exclusive
Franchise authorizing Franchisee to provide Commercial Solid Waste Handling Services
within all or any part of the City and to use the public streets and public right-of-ways for
such purpose. Franchisee acknowledges that the Franchise is not exclusive and that the
Franchise is subject to the all provisions of applicable law, including, but not limited to,
Article XIII of the City Charter, Ordinance No. 2017-16, Code Chapter 12.63, and the
terms and conditions of this Agreement.
B. Upon the Effective Date of this Agreement, the parties agree that any prior
authorization relating to the provision of Commercial Solid Waste Handling Services
within all or any part of the City arising under and pursuant to any prior franchise issued
to Franchisee shall be deemed to be terminated and of no further force or effect.
SECTION 2. TERM OF FRANCHISE
This Agreement shall commence on the Effective Date, and shall terminate on the
Termination Date, unless terminated earlier as set forth herein.
SECTION 3. DEFINITIONS
"Act" means the California Integrated Waste Management Act of 1989 (Public
Resources Code Sections 40000, et seq.) as amended and as implemented by
Non-exclusive Franchise Agreement Page 2
regulations of CalRecycle (or its successor agency) and the Air Resources Board (or its
successor agency).
"Alternative Daily Cover' or "ADC" means cover material other than earthen
material placed on the surface of the active face of a Municipal Solid Waste Landfill at the
end of each operating day to control vectors, flies, fires, odors, blowing litter and
scavenging. Prior to 2014, Green Waste was included in the list of CalRecycle-approved
ADC materials and use of Green Waste for this purpose was counted as "Diversion" for
purposes of the Act. AB 1594, passed and signed into law in 2014, phases out the use
of Green Waste as ADC effective January 1, 2020. As of January 1, 2020, no Green
Waste Collected within the City shall be used as ADC and Green Waste must be diverted
for processing such as mulching, Composting, as feedstock for Anaerobic Digestion or
other CalRecycle-approved means that counts as Diversion.
"Anaerobic Digestate" or "Digestate" means the material left at the conclusion of a
biological process that decomposes organic matter in an enclosed environment with little
or no oxygen, resulting in a biogas and a liquid/solid stream called Digestate (CCR
Section 17896.2(a)(6)). Any Digestate created from Green Waste, Food Scraps or other
organic materials Collected within the City must be further processed at a permitted
Composting Facility or utilized in another manner that is fully permitted and approved by
all federal, state and local regulatory agencies, including but not limited to CalRecycle,
and that is considered as "Diversion" by CalRecycle for purposes of the Act.
"Anaerobic Digestion" means a biological process that decomposes organic matter
in an environment with little or no oxygen, resulting in a biogas and a liquid/solid stream
called Anaerobic Digestate. Such activity takes place at an "Anaerobic Digestion Facility."
"Bin(s)" means open top rectangular containers with wheels, with attached plastic
or metal lids, used for storage of Municipal Solid Waste, Recyclable Materials, Green
Waste, Food Scraps, Construction and Demolition Debris or other materials that are
Collected by Franchisees or other Persons authorized to Collect and transport such
materials within City.
"Biomass Conversion Facility" means a facility which uses the controlled
combustion of the following materials (when separated from Municipal Solid Waste) to
produce electricity or heat: (1) agricultural crop residues; (2) bard, law, yard or garden
clippings (Green Waste); (3) leaves, silviculture residue, tree and brush prunings; (4)
wood, wood chips and wood waste; or (5) non -Recyclable pulp or non -Recyclable paper
(collectively, "Biomass Conversion"). Such a facility must exclusively burn biomass
materials listed herein, comply with all applicable federal, state and local air quality laws
and regulations, and test its residue (ash) regularly as required by state law and
regulations. If the ash is found to be hazardous, the facility must deliver that ash residue
to a Class I Hazardous Waste facility. A biomass facility may burn petroleum coke or
natural gas solely for the purpose of maintaining a particular temperature level, if so
permitted by federal, state and local laws. Processing of any materials Collected within
the City at a Biomass Conversion Facility shall only be allowed if: (a) said facility meets
all of the above requirements and all other federal, state and local laws and requirements;
Non-exclusive Franchise Agreement Page 3
and (b) only if such processing is allowed to count as "Diversion" by CalRecycle for
purposes of the Act.
"CalRecycle" means the California Department of Resources Recycling and
Recovery, the successor agency to the former California Integrated Waste Management
Board.
"Can" means a receptacle for Municipal Solid Waste, Recyclable Materials, Green
Waste, Food Scraps or wood provided by the Customer and Collected using manual
(instead of automated) means of Collection.
"Cart" means a plastic wheeled Container with a hinged lid used to store Municipal
Solid Waste, Recyclable Materials, Green Waste or Food Scraps that is Collected by an
automated or semi -automated vehicle.
"CERCLA" means the Comprehensive Environmental Response, Compensation
and Liability Act of 1980 (42 USC §9601 et seq.).
"City Council" means the City Council of the City of Newport Beach.
"City Manager," "Municipal Operations Director," "Finance Director," and 'Public
Works Director' mean the City Manager, Municipal Operations Director, Finance Director
and Public Works Director of the City or their designee.
Clean Materials Recovery Facility ("Clean MRF') means a materials recovery
facility ("MRF'), or that portion of a MRF, that processes Recyclable Materials that have
been separated from Municipal Solid Waste such as Single Material Recyclables and
Single Stream Recyclable Materials, containing no more than the maximum Residue or
contamination allowed by CalRecycle (10% Residue).
"Code" means the Newport Beach Municipal Code.
"Collect" or "Collection" means taking physical possession of Commercial Solid
Waste, or other materials, from Customers and transporting such materials by means of
a motor vehicle, or other means, to a MRF, Compost Facility, other Organics Processing
Facility, Construction and Demolition Debris Processing Facility, transfer station or
Landfill.
"Commercial Solid Waste" means Municipal Solid Waste, Recyclable Materials,
Green Waste, Food Scraps and Construction and Demolition Debris.
"Commercial Solid Waste Handling Services" means the services provided by
Franchisees pursuant to the terms and conditions of the Franchise and includes the
Collection, transportation, storage, transfer, Disposal, Diversion and/or Processing of
Municipal Solid Waste, Recyclable Materials, Green Waste, Food Scraps and/or
Construction and Demolition Debris by private solid waste enterprises, and includes,
without limitation, the placement of Commercial Solid Waste Containers on public
property.
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"Commercial Premises" means all occupied real property in the City used for
commercial purposes and not used for dwelling houses including, without limitation,
wholesale or retail establishments, restaurants, other food establishments, bars, stores,
shops, offices, mechanized manufacturing facilities, repair, research and development or
professional services, sports or recreational facilities, industrial facilities, and construction
and demolition sites; but shall not include property occupied by governmental agencies
or schools that do not consent to their inclusion or residential premises that receive
Commercial Solid Waste Handling Services. For purposes of the implementation of the
Diversion programs, reporting requirements, and the percentage Diversion requirements,
"Commercial Tons" shall include only Tons Collected from Commercial Premises in Carts
and Bins and shall not include any Tons Collected from Multifamily Containers. Tons
Collected from Multifamily Containers shall be reported separately.
"Compactor" means an enclosed rectangular or square metal container containing
a ramrod to condense and compress the contents, and is typically used to store Municipal
Solid Waste, Green Waste, Recyclable Materials, Food Scraps or Construction and
Demolition Debris. Compactors may be small (3 or 4 cubic yards) for use on smaller
Commercial Premises or large (10, 20, 30 or cubic yards) for use at large Commercial
Premises such as supermarkets, hotels, and large retail stores or at construction sites. A
special Roll Off vehicle equipped with hooks and a winch to pull the Compactor on to the
railed bed of the vehicle is used to Collect Compactors and transport them to a Landfill or
to a Processing Facility.
"Compost" means the product resulting from the controlled biological
decomposition of organic wastes which are separated from the Municipal Solid Waste
stream at the point of generation and includes Food Scraps, Green Waste, and wood that
are not hazardous wastes.
"Compost Facility" means a facility that processes one (1) or more of the following:
Food Scraps, Green Waste, wood and food -soiled fiber such as paper napkins and paper
towels, by means of outdoor windrow composting, aerated static pile composting, covered
composting, vermiculture or other outdoor composting methods or covered composting
with use of either finished compost or fiber, synthetic or other type(s) of cover(s) applied
to the compost piles.
"Composting" means the controlled microbial degradation of organic materials
yielding a safe and nuisance -free finished product called Compost, a soil amendment
suitable for incorporating into topsoil and for growing plants.
"Construction and Demolition Debris" means all inert material of every nature,
description or kind, which has resulted from the building or demolition of a structure,
pavements, sidewalks, curbs, gutters and other concrete structures, including all lumber
scraps, shingles, plaster, sheetrock, packaging, rubble, brick, stone, concrete, asphalt,
dirt, rock and other building material. A facility that accepts Construction and Demolition
Debris for separation and further processing to prepare materials for sale or re -use (such
as removing nails and screws from wood, or grinding of concrete and asphalt) and then
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markets the materials for re -use is a "Construction and Demolition Debris Processing
Facility."
"Container(s)" means any object designed and used to hold or store Municipal
Solid Waste, Recyclable Materials, Food Scraps, Green Waste, or Construction and
Demolition Debris to be Collected by Franchisees. Containers include Carts, Bins, open
top Roll Off Boxes, and Compactors.
"Contamination" means materials that are not specified for Collection in particular
Containers or for processing at either a Clean MRF or a Dirty MRF, which would either
interfere with such processing and/or reduce the quality and value of the Recovered
Materials. For example, for purposes of Collection, metals and plastics would constitute
"Contamination" if placed in a Food Scrap Container and tree trimmings would constitute
"Contamination" if placed in a Recyclable Materials Containers.
"Customer" means the owner, occupant, manager or user of premises at which
Municipal Solid Waste, Recyclable Materials, Green Waste, Food Scraps or Construction
and Demolition Debris are generated who requests and receives Commercial Solid Waste
Handling Services from one or more Franchisees. In the event a business, non-
residential property, Multifamily Dwelling or Commercial Premises shares Containers
and/or Commercial Solid Waste Handling Services, "Customer refers only to the entity
that arranges and pays for such service(s).
Dirty Materials Recovery Facility ("Dirty MRF') means a facility, or that certain
portion of a facility, that processes Processable Municipal Solid Waste to separate
Recyclable Materials, Green Waste, wood, Construction and Demolition Debris and other
Divertable materials for sale to end users. Franchisees shall not utilize any Dirty MRF
that has not been approved by City and that does not meet the standards and
requirements of Public Resources Code Section 42649 and all subsequent amendments,
rules, and regulations promulgated in furtherance thereof requiring a Dirty MRF to be a
source -separated comparable MRF.
"Disposal" means the final disposition of solid waste of Municipal Solid Waste at a
permitted landfill or transformation at a permitted facility, as transformation is defined and
limited by the Act other permitted solid waste disposal facility.
"Diversion" or "Divert" means any combination of Recycling, sorting, Composting
and other processing activities conducted at a Clean MRF, a Dirty MRF, a Compost
Facility, an Anaerobic Digestion Facility, a Biomass Conversion Facility, other organics
Processing Facility and a Construction and Demolition Debris Processing Facility in order
to use or market the materials for re -use, remanufacture, reconstitution or otherwise
return the materials to the economic marketplace and to prevent the materials from being
Disposed in a Landfill.
"Diversion Programs" and "Diversion Services" mean Recyclable Materials
Collection, Green Waste Collection, Food Scraps Collection, Processable Municipal Solid
Waste Collection, wood Collection, Construction and Demolition Debris Collection and
subsequent processing of the Collected materials at a Clean MRF, a Dirty MRF, a
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Compost Facility, an Anaerobic Digestion Facility, a facility creating Engineered
Feedstock for digestion at a wastewater treatment plant, a Biomass Conversion Facility,
a Construction and Demolition Debris Processing Facility and all other programs operated
by Franchisees, the City, Residents, Customers or other Persons that have the effect of
Diverting Municipal Solid Waste from Landfill Disposal. Diversion Programs includes, but
is not limited to, all of the programs included in the City's SRRE and all of the programs
included in this Agreement.
"Effective Date" means the date upon which this Agreement is effective as set forth
in the first paragraph of this Agreement.
"Engineered Feedstock" means a mixture of materials utilized in wastewater
treatment plants to produce biogas. Engineered Feedstock may include organic materials
such as Food Scraps from households and Commercial Premises or other organic
materials from industries that have been pre-treated and liquefied to the required
consistency the reduction or elimination of municipal solid waste, recyclable materials,
food scrap, green waste, and construction and demolition debris from disposal.
"Environmental Laws" means any and all present and future federal, state or local
laws (whether common law, statute, rule, regulation or otherwise), permits, orders and
any other requirements of Governmental Authorities relating to the environment or any
"Hazardous Substance" or "Hazardous Substance Activity" as defined herein, including,
without limitation, the Comprehensive Environmental Response, Compensation and
Liability Act of 1980 (42 U.S.C. Sections 9601 et seq.) as amended from time to time and
the applicable provisions of the California Health and Safety Code and California Water
Code.
"Food Scraps" means material resulting from the production, processing,
preparation or cooking of food for human consumption that is separated from Municipal
Solid Waste. Food scraps include surplus or unsold edible food, raw food left over after
food preparation, leftover cooked food, as well as spoiled food such as vegetables and
culls, and plate scrapings. Food scraps includes food -soiled paper that is mixed in with
the food scraps. "Food Scraps' are Collected and transported to Food Scrap Processing
Facilities which include Compost Facilities, Anaerobic Digestion Facilities, Biomass
Conversion Facilities, and Wastewater Treatment Plants utilizing Engineered Feedstock.
"Food Soiled Paper" means paper towels, tissue products, paper napkins, paper
plates and cups, coffee filters, tea bags, waxed paper, butcher paper, paper take-out
boxes and containers, greasy pizza boxes, paper bags, cardboard and wax -coated
cardboard produce boxes that are Contaminated with Food Scraps. Food Soiled Paper
does not include polystyrene, aluminum foil, foil -lined wrap or diapers.
"Franchise" or "Franchise Agreement' means an agreement between the City and
a Franchisee, granted pursuant to Agreement Section 1(A), providing Franchisee the
right, for a specified period of time and pursuant to Article XIII of the City Charter, the
Code, and the terms and conditions of this Agreement, to provide Commercial Solid
Waste Handling Services to Commercial Premises and Multifamily Dwellings within all or
any part of the City of Newport Beach and to use the public streets and public right -of -
Non -exclusive Franchise Agreement Page 7
ways for such purpose. Throughout this Agreement, the terms "Agreement" and
"Franchise" may be used interchangeably unless otherwise specified or the context
requires otherwise.
"Franchisee" means the individual or business entity identified as "Franchisee" on
the signature page of this Agreement.
"Franchise Fee" means the fee or assessment imposed by the City on a
Franchisee, which among other things, is intended to offset the City's expenses related
to the administration of the Franchise Agreement, the Integrated Waste Management
Program, the maintenance and implementation of the City's Source Reduction and
Recycling Element, compliance with the California Integrated Waste Management Act, to
compensate the City for damages to its streets, sidewalks, curbs and gutters and other
infrastructure resulting from the Franchisee's exercise of its rights under the franchise,
City's reporting requirements and other related expenses.
"Generator" means a resident, an owner or responsible party for a Multifamily
Dwelling, Commercial Premises, or business that Generates Municipal Solid Waste,
Recyclable Materials, Green Waste, Food Scraps and/or Construction and Demolition
Debris as a result of its business, commercial facility or property activity. Generator may
also include tenants, property managers for facilities with leased space, employees and
contractors of Generator.
"Generate" means to bring into existence or create, or to use, maintain, or possess
an item, material or product, the result of which such creation, bringing into existence,
use, maintenance or possession is that the item, material or product first becomes, or is
converted transformed, evolved or deemed as Municipal Solid Waste, Recyclable
Materials, Food Scraps, Green Waste or Construction and Demolition Debris.
"Green Waste" means any debris that is composed of organic material or plantlike
matter, which is a result of seasonal variations, landscape or gardening activities. Green
Waste includes, without limitation, grass clippings, leaves, shrubs, trees, branches,
stumps, flowers, plant stalks and non -hazardous wood. Green Waste does not include
Food Scraps.
"Gross Receipts" means all money, whether paid by cash, check, debit or credit,
or other consideration collected from Customers by Franchisee that relates in any way to
Commercial Solid Waste Handling Services provided by Franchisee to Customers,
whether or not such services occur wholly or partially within the City, including, but not
limited to, Collection, processing, removal, marketing and Diversion of Recyclable
Materials, Green Waste, Food Scraps, Processable Municipal Solid Waste and
Construction and Demolition Debris and Disposal of Non-Processable Municipal Solid
Waste, Industrial Waste, trash, litter, as well as fuel surcharges. Gross receipts shall also
include all money received by any Person other than the Franchisee, where the money
was paid to the Person to avoid the Franchisee's obligations under this chapter and/or
the Franchise. Gross Receipts shall not include (or if included there shall be deducted,
but only to the extent they have been included) the following: (1) if any sales taxes are
levied on the Franchisee's Commercial Solid Waste Handling Services in the City, the
Non-exclusive Franchise Agreement Page 8
amount of State sales taxes collected in connection with Franchisee's provision of such
services in the City and remitted to the State pursuant to State law; (2) the amount of
documented bad debt write-offs due to uncollectible accounts for Franchisee's
Commercial Solid Waste Handling Services in the City, not to exceed three percent (3%)
of Gross Receipts; and (3) revenues collected for Franchisee's Commercial Solid Waste
Handling Services provided to the City through a written contract.
"Hazardous Waste" or "Hazardous Substance" means any (a) chemical,
compound, material, mixture or substance that is now or hereinafter defined or listed in,
or otherwise classified pursuant to any Environmental Law as a "hazardous substance,"
"hazardous material," "hazardous waste," "extremely hazardous waste," "infectious
waste," "toxic waste," "toxic pollutant," or any other formulation intended to define, list or
classify substances by reason of deleterious properties or effect and (b) petroleum,
petroleum by-products, natural gas, natural gas liquids, liquefied natural gas, synthetic
gas usable for fuel (or mixtures of natural gas in such synthetic gas), ash, Municipal Solid
Waste, steam, drilling fluids, produced waters and other wastes associated with the
exploration, development and production of crude oil, natural gas or geothermal
resources.
"Industrial Waste" means solid waste originating from mechanized manufacturing
facilities, factories, refineries, construction and demolition projects, publicly operated
treatment works, or solid waste placed in Commercial Solid Waste containers excluding
hazardous waste.
"Landfill" means a fully permitted disposal site that accepts Municipal Solid Waste
that is in compliance with all Federal, State and local laws, regulations and permits
conditions at the time Municipal Solid Waste is delivered and unloaded at the disposal
site.
"Multifamily Dwelling" mean housing projects containing or consisting of five (5) or
more units, whether apartment houses, condominiums, townhomes, or mixed use
projects, mixed use condominiums and rental housing, which use centralized Commercial
Solid Waste Containers (including Bins, Carts and/or Compactors) for storage of
Municipal Solid Waste, Recyclable Materials, Green Waste and/or Food Scraps.
Multifamily Dwelling does not include single family residences, duplexes, tri-plexes or
four-plexes that receive individual Collection services for Municipal Solid Waste,
Recyclable Materials, Green Waste and/or Food Scraps stored in wheeled carts. For
purposes of the implementation of the Diversion programs, reporting requirements, and
the percentage Diversion requirements, "Commercial Tons" shall include only Tons
Collected from Multifamily Dwellings in Carts, Bins, Compactors or Roll Off Boxes and
shall not include any Tons Collected from Containers Collected from Commercial
Premises. Tons Collected from Containers Collected from Commercial Premises shall
be reported separately.
"Municipal Solid Waste" means all Processable Municipal Solid Waste and all Non-
Processable Municipal Solid Waste, putrescible and nonputrescible solid and semisolid
wastes, Generated in or upon, related to the occupancy of, remaining in or emanating
from residential, commercial, and/or industrial premises, including, but not limited to,
Non-exclusive Franchise Agreement Page 9
garbage, trash, refuse, rubbish, ashes, Industrial Waste, discarded home and industrial
appliances, manure, vegetable or animal solid or semisolid wastes, and other solid and
semisolid wastes. Municipal Solid Waste excludes Recyclable Materials, Green Waste,
Food Scraps, Construction and Demolition Debris, liquid wastes, abandoned vehicles and
hazardous, biohazardous and biomedical wastes.
"Non-Processable Municipal Solid Waste" means putrescible and non-putrescible
solid and semi-solid wastes Generated in or upon, related to the occupancy of, remaining
or emanating from residential, Commercial, and/or industrial premises, that has been
segregated or separated from Recyclable Materials, Food Scraps, Green Waste, wood
and/or Construction and Demolition Debris such that the remaining constituents in the
Non-Processable Municipal Solid Waste (such as broken glass, diapers, ashes, Industrial
Waste, discarded Bulky Goods that cannot be re -used or dismantled for Recycling,
manure, vegetable or animal solid or semi-solid wastes that remain after segregation of
Food Scraps and Green Waste) cannot be diverted by reasonable economic or
technologically available means. Non-Processable Municipal Solid Waste does not
include Recyclable Materials, Green Waste, Food Scraps, wood, Construction and
Demolition Debris, Bulky Goods or other materials that have been segregated for
Diversion; liquid wastes; low level radioactive waste regulated under California Health
and Safety Code Sections 20015, et seq.; abandoned vehicles and auto parts; hazardous,
biohazardous and biomedical wastes.
"Person" means an individual, firm, association, organization, partnership,
corporation, business trust, joint venture, limited liability company, the United States, the
State of California, the County, municipality, special purpose district or any other business
entity whatsoever.
"Processable Municipal Solid Waste" means putrescible and non-putrescible solid
and semi-solid wastes Generated in or upon, related to the occupancy of, remaining or
emanating from residential, Commercial, and/or industrial premises that can be sorted at
a Dirty MRF to separate any divertable materials contained therein for Recycling.
Processable Municipal Solid Waste may also contain non-divertable constituents
including but not limited to, broken glass, diapers, ashes, Industrial Waste, discarded
Bulky Goods that cannot be re -used or dismantled for Recycling, manure, vegetable or
animal solid or semi-solid wastes that remain after segregation of Food Scraps and Green
Waste, which cannot be separated or sorted out of the Processable Municipal Solid
Waste by reasonable economic or technologically available means.
"Processing Facility/Facilities" means a facility or facilities where the following
activities are conducted: sorting, cleaning, treating, Composting and reconstituting
Collected materials and returning these materials to the economic mainstream in the form
of raw materials for new, reused or reconstituted products which meet the quality
standards of the market place (activities are herein collectively defined as "Processing").
Processing Facilities include Materials Recovery Facilities (both Clean and Dirty MRF's
as defined herein), Composting Facilities, Anaerobic Digestion Facilities, Wastewater
Treatment Plants, Construction and Demolition Debris sorting facilities, Biomass
Conversion Facilities, and concrete and asphalt grinding facilities. Processing Facilities
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do not include waste -to -energy, thermal destruction or any type of Transformation
facilities.
"Recycle/Recycling" means the process of collecting, sorting, cleansing, treating,
and reconstituting materials that would otherwise become Non-Processable Municipal
Solid Waste, and returning them to the economic mainstream in the form of raw materials
for new, reused, or reconstituted products which meet the quality standards used in the
marketplace. Recycling does not include Transformation.
"Recycling Facility" means a Recycling Materials Recovery Facility (either a Clean
or Dirty MRF), a Construction and Demolition Debris sorting facility or a re -use facility that
is fully permitted and operating in compliance with federal, state and local laws and
regulations and includes Recycling Facilities that receive, process, and market
Recyclable Materials that have been source separated by the Generator or segregated
from Processable Municipal Solid Waste, such as Single -Material Recyclables and Single
Stream Recyclable Materials. The Recycling Facility may be located at a landfill.
"Recyclable Materials" means items in the solid waste stream which can be reused
or processed into a form suitable for reuse consistent with the requirements of State law
(i.e., AB 939). Recyclable materials include, but are not limited to, aluminum and tin cans,
glass bottles, plastic bottles, plastic containers, newspaper, paper, printed materials,
paper containers, cardboard and textiles.
"Recycling Requirements" means the obligations imposed by or upon the City
pursuant to State, Federal and local law, ordinance, resolution, policy, plan or program
relative to Recycling all, or a portion, of the Municipal Solid Waste generated within the
City including, without limitation, State mandates to Divert fifty percent (50%) of the
Municipal Solid Waste Generated within the City, achievement of the per capita Diversion
requirements in the Act, and the provision of City -approved Recycling services to all
Customers. Recycling Requirements includes future changes to the Act that may require
the City to Divert higher percentages of Municipal Solid Waste Generated within the City
and/or to provide additional and/or enhanced or expanded Diversion Programs.
"Residue" means the Non-Processable Municipal Solid Waste destined for
Disposal in a Landfill, which remains after processing at a Processing Facility has taken
place. Residue does not include Anaerobic Digestate. The percent of Residue is
calculated by dividing the weight of the Residue by the weight of the total materials
delivered for processing at the facility. State law and regulations govern the allowable
amount of Residue that can be Generated by a Processing Facility. Franchisees shall
not utilize Processing Facilities that exceed State -required maximum Residue Generation
rates for any materials Collected within the City.
"Responsible Party" means the individual or entity responsible for the Generator's
management of solid waste and/or Recycling at the Generator's commercial premises,
business, or non-residential property.
Non-exclusive Franchise Agreement Page 11
'Roll Off Boxes' means large open top rectangular metal Containers used to store
and transport Municipal Solid Waste, Recyclable Materials, Green Waste, Construction
and Demolition Debris or other materials.
"Single Material Recyclables" means those Recyclable Materials which satisfy
each of the following requirements: (1) have been segregated from Processable
Municipal Solid Waste for separate handling and Diversion by or for the Generator
thereof; (2) have been further segregated or sorted so that various types of Recyclable
Materials, such as glass, metals, paper, cardboard, plastics are not commingled; and (3)
after such segregation, contain no more than five percent (5%) by weight (measured by
each load being transported, Collected and/or Disposed) of any Residue or
Contamination material which cannot be Recycled, Composted or similarly utilized, and
which instead must be Disposed in a Landfill.
"Single Stream Recyclable Materials" or "Single Stream Recyclables" means those
Recyclable Materials collected as separated from Processable Municipal Solid Waste by
the Generator or Customer and consisting of a mixture of metals, glass, plastics #1-7,
and all paper from Residential Premises, Commercial Premises, Multifamily Dwellings
and industrial premises. Single Stream Recyclable Materials are distinguished from
Single -Material Recyclables, which consist of only a single type of material such as
cardboard, separated from other Recyclable Materials.
"Split Bins" means Bins that have a divider down the middle, dividing the Bin into
two (2) separate compartments. Such Bins have separate locking lids for each side of
the Bin that allows the Bin to be emptied one (1) side at a time. The lid on the side of the
Bin that is for storage of Recyclable Materials is designed such that it allows for the
placement of Recyclable Materials in the Bin without unlocking or opening the lid, and yet
does not allow Recyclable Materials to spill out when the lid is closed and locked for the
emptying of the MSW stored on the opposite side of the Bin.
"SRRE" means the Source Reduction and Recycling Element of the Integrated
Waste Management document for the City prepared and updated pursuant to the
California Public Resources Code.
"Term" means the finite amount of time that commences on the Effective Date and
terminates on the Termination Date.
"Termination Date" means November 8, 2024.
"State" means the State of California.
"Transformation" means incineration, pyrolysis, distillation, or biological conversion
(other than Composting) to turn Municipal Solid Waste and/or organic materials into a fuel
used to produce energy (example: waste -to -energy). Transformation does not include
Composting, gasification, Biomass Conversion, or wet or dry Anaerobic Digestion.
"Transformation Facility" the means described herein to turn Municipal Solid Waste
and/or organic materials into a fuel used to produce energy. A Franchisee may only utilize
Non-exclusive Franchise Agreement Page 12
Transformation for the quantity of Municipal Solid Waste allowed by CalRecycle to be
counted as Diversion pursuant to the Act, as this may be changed in the future by
legislation or regulations. The Act currently provides that a jurisdiction can only use
Transformation to divert up to ten percent (10%) of the Municipal Solid Waste generated
in the jurisdiction. Therefore, materials collected by a Franchisee and processed at a
Transformation Facility shall be limited to ten percent (10%) of the Non-Processable
Municipal Solid Waste Collected by the Franchisee within City.
"Ton" means a short ton of two -thousand (2,000) pounds avoirdupois.
SECTION 4. FRANCHISE FEES
A. During the Term of this Franchise, Franchisee shall pay to City Franchise
Fees for the privilege of providing Commercial Solid Waste Handling Services in the City
and for the use of public streets, right-of-ways and places for such purposes. The
Franchise Fees that Franchisee shall pay to the City shall total sixteen percent (16%) of
the gross receipts for all Commercial Solid Waste Handling Services provided by
Franchisee in the City as follows:
1. Ten and one-half percent (10.5%) of the Gross Receipts for all
Commercial Solid Waste Handling Services provided by the Franchisee in the City
("Commercial Solid Waste Handling Fee"), of which one half percent (.5%) shall be
attributable to the maintenance and implementation of the City's SRRE, and shall be
separately accounted for, and used only for the costs stated in Public Resources Code
Section 41901 or any successor provision.
2. Five and one-half percent (5.5%) of the Gross Receipts for all
Commercial Solid Waste Handling Services provided by Franchisee in the City shall be
paid into an Environmental Liability Fund, which shall be a separate fund established and
maintained by City ("Environmental Liability Fund Fee'). Hereinafter, Environmental
Liability Fund Fee and Commercial Solid Waste Handling Fee shall be collectively
referred to as "Fees."
B. City and Franchisee acknowledge the potential environmental liability that
may result from Commercial Solid Waste Handling Services under Federal and State
environmental protection laws and the Public Resources Code. City intends to take
reasonable actions to obtain protection and indemnification against future environmental
liability for Commercial Solid Waste generated within the City and the activities of
Franchisee under this Agreement for handling such Commercial Solid Waste. To provide
protection and indemnification to City for Franchisee's Commercial Solid Waste Handling
Services in the City, Franchisee agrees to collect from its customers an Environmental
Liability Fund Fee for payment into the Environmental Liability Fund. The Environmental
Liability Fund may be used by the City for any expense associated with this Franchise,
including, but not limited to, the purchase of environmental liability insurance and paying
all costs, expenses, and penalties that arise from or in any way relate to liability incurred
by the City as a result of any act, negligence, or omission by the City, Franchisee,
Franchisee Customer, or any of their respective officers, directors, shareholder members,
volunteers, partners, employees, agents, subcontractors, suppliers, representatives or
Non-exclusive Franchise Agreement Page 13
affiliates. The Environmental Liability Fund may also be used by the City to pay for any
Disposal, Diversion, or Recycling activity required of the City, Franchisee, or any
Generator under State, Federal or local law. The Fund shall not be commingled with or
included in the City's General Fund.
1. The Fees shall be paid concurrently
2. Compliance with this Section shall not limit Franchisee's
indemnification as set forth in Agreement Section 10; however, the indemnification
provisions of Agreement Section 10 shall be secondary to the Environmental Liability
Fund established by this Section or any insurance purchased by the Environmental
Liability Fund.
C. The Fees shall be paid on a calendar quarterly basis on forms prescribed
by the Finance Director.
D. All payments shall be made in lawful money of the United States of America
and shall be paid to City in person or by United States' mail, or overnight mail service, at
the Cashier's Office located at 100 Civic Center Drive, P.O. Box 1768, Newport Beach,
California, 92658, or to such other address as City may from time to time designate in
writing to Franchisee. If requested by City, Franchisee shall make payments
electronically (at www.newportbeachca.gov) or by wire transfer (at Franchisee's cost).
Franchisee assumes all risk of loss and responsibility for late charges and delinquency
rates if payments are not timely received by City regardless of the method of transmittal.
E. Franchisee hereby acknowledges that the late payment of Fees or other
sums due hereunder will cause City to incur costs not contemplated by this Agreement,
the exact amount of which is extremely difficult to ascertain. Such costs include, but are
not limited to, processing and accounting charges. Accordingly, any payment of any sum
to be paid by Franchisee not paid within five (5) calendar days of its due date shall be
subject to a ten percent (10%) late charge plus interest on the amount due at the rate of
ten percent (10%) per annum from the date due and payable by the terms of this
Agreement until the same shall be paid. City and Franchisee agree that this late charge
represents a reasonable estimate of such costs and expenses and is fair compensation
to City for its loss suffered by such late payment by Franchisee.
F. With the exception of January 30, 2018, Fees shall be due and payable on
April 30, July 30, October 30 and January 30 of each calendar year of the Term. Any
dates falling on a weekend or holiday may
weekend or holiday. Fees must be received
the aforementioned dates.
be paid the first business day following the
by City, not merely postmarked, by or before
G. In the event Franchisee believes that it has paid Fees in excess of the Fees
due to City, Franchisee may submit a request for refund to the Finance Director on a form
provided by the Finance Director. If proof of overpayment is satisfactory to the Finance
Director, the Finance Director shall refund to Franchisee any overpayment. Franchisee
shall not apply any overpayment as a credit against any other amounts payable to City
unless specifically authorized by the Finance Director in writing.
Non-exclusive Franchise Agreement Page 14
H. Each Franchise Fee and Environmental Liability Fund Fee payment shall
be accompanied by a written statement described in Code Section 12.63.090, or any
successor section, on a form provided by the Finance Director. No statement filed under
this Section shall be conclusive as to the matters set forth in such statement, nor shall the
filing of such statement preclude the City from collecting by appropriate action the sum
that is actually due and payable.
I. Franchisee may separately list the actual Franchise Fee rate and
Environmental Liability Fund Fee rate as established by this Section, and any other fees
required by this Agreement, on its invoices to its customers. In no case may the Franchise
Fee rate or Environmental Liability Fund Fee rate listed by the Franchisee on the invoice
exceed the actual Franchise Fee or Environmental Liability Fund Fee rates imposed by
the City.
SECTION 5. PERFORMANCE BOND/DEPOSIT
A. Prior to the placement of any Container for Commercial Solid Waste
Handling Services on public or private property, Franchisee shall, to ensure compliance
with the duties and obligations imposed by the provisions of the Code, State regulation,
regulations adopted by the City Manager and this Agreement, either: (1) provide City with
a cash deposit ("Deposit"); or (2) obtain, provide and maintain, at its own expense, a
faithful performance bond ("Bond"). The amount of the Deposit and Bond shall be
determined in the Municipal Operations Director's sole and absolute discretion.
B. If Franchisee decides to provide a Bond, the Bond shall be issued by an
insurance organization or surety: (1) currently authorized by the Insurance Commissioner
to transact business of insurance in the State of California; (2) listed as an acceptable
surety in the latest revision of the Federal Register Circular 570; and (3) assigned a
Policyholders' Rating A (or higher) and Financial Size Category Class VII (or larger) in
accordance with the latest edition of Best's Key Rating Guide: Property -Casualty. The
Bond shall be in the form attached hereto as Exhibit 'A" which is incorporated herein by
this reference.
SECTION 6. DIVERSION AND DISPOSAL OF MUNICIPAL SOLID WASTE,
RECYCLABLE MATERIALS, FOOD SCRAP AND GREEN WASTE
A. Franchisee shall comply with all Diversion requirements imposed by law,
ordinance, or regulation on City, Franchisee, and/or any Commercial Premises or
Multifamily Dwelling. On a monthly basis, Franchisee shall Divert a minimum of fifty-five
percent (55%) of all Processable Municipal Solid Waste, Recyclable Materials, Food
Scraps and Green Waste Collected in the City by Franchisee. This Diversion requirement
is separate from and in addition to any Diversion requirements set forth in Agreement
Section 7. In the event new or additional Diversion requirements are imposed by law,
ordinance or regulation on City, Franchisee, and/or any Commercial Premises or
Multifamily Dwelling, the City shall have the right to require Franchisee to Divert additional
Municipal Solid Waste, Recyclable Materials, Food Scraps, and/or Green Waste by
providing Franchisee with thirty (30) calendar days written notice of the new Diversion
requirements. Upon request of the Municipal Operations Director, Franchisee shall
Non-exclusive Franchise Agreement Page 15
provide all documents and information requested by the Municipal Operations Director to
prove that Franchisee has complied with this subsection, any applicable law, ordinance,
regulation, or condition related to Recycling and Diversion of Municipal Solid Waste,
Recyclable Materials, Food Scraps and/or Green Waste.
B. Franchisee shall Dispose of all Non-processable Municipal Solid Waste
collected in the City, over which Franchisee has control, in accordance with the Franchise
Hauler Acknowledgment, attached hereto as Exhibit "B" and incorporated herein by
reference. Franchisee hereby accepts and agrees to abide by all terms of the Franchise
Hauler Acknowledgment. If, during the Term of this Agreement, the City's Waste Disposal
Agreement with Orange County expires, lapses, or is terminated, the Franchise Hauler
Acknowledgement shall be null and void and Franchisee shall Dispose of Municipal Solid
Waste Collected in the City only by taking it to a fully permitted Orange County
certified/licensed landfill or to a fully permitted licensed transfer station, which is lawfully
authorized to accept that specific type of solid waste material and has been approved by
the City.
C. Franchisee shall not Dispose of Municipal Solid Waste, Recyclable
Materials, Food Scraps, or Green Waste by depositing it on any land except a permitted
facility, whether public or private, or in any river, stream or other waterway, or in any
sanitary sewer or storm drainage system. Nothing in this Agreement shall be deemed or
construed as authorizing Franchisee to operate a Landfill, Recycling Facility, orother solid
waste disposal facility in the City.
D. If Franchisee violates the terms in Agreement Section 6(A) and/or Section
6(B) above, Franchisee agrees that the City has the future right to direct that all Municipal
Solid Waste, Recyclable Materials, Food Scraps, or Green Waste be delivered to a fully
permitted disposal facility designated by City. This exercise of "flow control" by the City
shall be made upon at least thirty (30) calendar days prior written notice to Franchisee,
and written notice shall include the violation(s) prompting the City's action regarding "flow
control." Failure to comply with the Recycling, Diversion, and/or Disposal requirements
set forth in this Section shall be a material breach of this Agreement.
E. Franchisee shall include as a condition to its contractual agreement with its
Customers a provision prohibiting disposal of Hazardous Waste in any Container.
F. Franchisee shall implement a load check program that includes, at a
minimum, a visual check of all Containers to be emptied to protect against inclusion of
Hazardous Waste and shall prepare a written record of all Hazardous Waste discovered
during the process. The records shall comply with all State and Federal Hazardous Waste
Regulations and shall be maintained for the length of the Term of the Franchise and for
a minimum period of three (3) years, or for any longer period required by law, after the
Extended Termination Date. The records shall be made available to the City in
Franchisee's monthly reports submitted pursuant to Agreement Section 16.
G. This Agreement does not purport to grant Franchisee or City ownership over
materials that Franchisee's Customers discard for pickup by Franchisee or that
Franchisee handles under this Agreement. The right to possession or ownership of those
Non-exclusive Franchise Agreement Page 16
materials shall be determined in accordance with law and any agreement between
Franchisee and its Customers, and not as a result of this Agreement. Parties
acknowledge that City has no ownership rights in Recyclable Materials or revenue from
sale thereof, except as provided in this Agreement.
H. City makes no representations or warranties with respect to
characterization of Municipal Solid Waste, Recyclable Materials, Food Scraps, or Green
Waste within City. City expressly disclaims any representations and warranties, either
express or implied, as to the merchantability or fitness of Municipal Solid Waste,
Recyclable Materials, Food Scraps, or Green Waste for any particular purpose.
SECTION 7. DIVERSION OF CONSTRUCTION AND DEMOLITION DEBRIS
A. On a monthly basis, Franchisee shall Divert a minimum of sixty-five percent
(65%) of all Construction and Demolition Debris collected in the City by Franchisee. This
Diversion requirement shall be in addition to and separate from any Diversion
requirements set forth in Agreement Section 6. If new or additional Diversion
requirements are imposed by law, ordinance or regulation on City, Franchisee, and/or
any Commercial Premises or Multifamily Dwelling, the City shall have the right to require
Franchisee to Divert additional Construction and Demolition Debris by providing
Franchisee with ten (10) calendar days written notice of the new Diversion requirements.
Upon request of the Municipal Operations Director, Franchisee shall provide all
documents and information requested by the Municipal Operations Director to prove that
Franchisee has complied with this subsection, any applicable law, ordinance, regulation,
or condition related to Recycling and Diversion of Construction and Demolition Debris.
B. Franchisee shall Dispose of, or oversee Disposal of, any Construction and
Demolition Debris collected in the City by Franchisee, and not diverted pursuant to
Agreement Section 7(A), in accordance with the Franchise Hauler Acknowledgment,
attached hereto as Exhibit "B." Franchisee hereby accepts and agrees to abide by all
terms of the Franchise Hauler Acknowledgment. If, during the Term of this Agreement,
the City's Waste Disposal Agreement with Orange County expires, lapses or is
terminated, the Franchise Hauler Acknowledgement shall be null and void and
Franchisee shall Dispose of Construction and Demolition Debris collected by Franchisee
in the City only by taking such debris to an Orange County certified/licensed landfill, State
certified/licensed transfer station, State certified/licensed recycling facility or State
certified/licensed materials recovery facility which is lawfully authorized to accept that
specific type of solid waste material. Franchisee shall not dispose of Construction and
Demolition Debris by depositing it on any land except a permitted facility, whether public
or private, or in any river, stream or other waterway, or in any sanitary sewer or storm
drainage system.
C. If Franchisee violates the terms in Agreement Section 7(A) and/or Section
7(B) above, Franchisee agrees that the City has the future right to direct that Construction
and Demolition Debris be delivered to a permitted processing and/or disposal facility
designated by City. This exercise of "flow control" by the City shall be made upon at least
thirty (30) calendar days prior written notice to Franchisee, and written notice shall include
the violation(s) prompting the City's action regarding "flow control." Failure to comply with
Non-exclusive Franchise Agreement Page 17
the Recycling, Diversion, and/or Disposal requirements set forth in this Section shall be
a material breach of this Agreement.
D. Franchisee shall include as a condition to its contractual agreement with its
Customers a provision prohibiting disposal of Hazardous Waste in any Container.
E. Franchisee shall implement, or require a third party to implement, a load
check program that includes, at a minimum, a visual check of all Containers to be emptied
to protect against inclusion of Hazardous Waste and shall prepare a written record of all
Hazardous Waste discovered during the process. The records shall comply with all local,
State and Federal Hazardous Waste regulations, and shall be maintained for the length
of the Term of the Franchise and for a minimum period of three (3) years, or for any longer
period required by law, after the Extended Termination Date. The records shall be made
available to the City upon request.
F. This Agreement does not purport to grant Franchisee or City ownership over
materials that Franchisee's Customers discard for pickup by Franchisee or that
Franchisee handles under this Agreement. The right to possession or ownership of those
materials shall be determined in accordance with law and any agreement between
Franchisee and its customers, and not as a result of this Agreement. Parties
acknowledge that City has no ownership rights in Recyclable Materials or revenue from
sale thereof, except as provided in this Agreement.
G. City makes no representations or warranties with respect to
characterization of Construction and Demolition Debris within City. City expressly
disclaims any representations and warranties, either express or implied, as to the
merchantability or fitness of Construction and Demolition Debris for any particular
purpose.
SECTION 8. FRANCHISEE'S APPLICATION; RECORDS; AUDITS
A. Application. Franchisee shall submit an application to City in substantially
the same form as the template attached hereto as Exhibit "C" and incorporated herein by
reference. Franchisee hereby represents and warrants that all information contained in
the application submitted to City, and any information submitted by Franchisee to City
supplementary thereto, is true and correct and does not contain any untrue statement of
a material fact nor omit a material fact that makes a statement contained therein
misleading.
B. Records. Franchisee shall maintain all records relating to Franchisee's
Commercial Solid Waste Handling Services provided hereunder including, but not limited
to, Customer lists, billing records, accounts payable records, maps, service requests,
cash receipts records, AB 939/341/1826 compliance records, tonnage reports, weight
tickets and invoices from all Landfills, Processing Facilities, and Recycling Facilities
utilized for Commercial Solid Waste collected within City, and all other documents and
materials which reasonably relate to Franchisee's compliance with and performance of
the provisions of this Agreement ("Records"), for the full Term of this Agreement and an
additional period thereafter of not less than three (3) years, or any longer period required
Non-exclusive Franchise Agreement Page 18
by law. Such Records shall be made available to City at Franchisee's regular place of
business, but in no event outside the County of Orange. All Records shall be clearly
identifiable, and Franchisee shall maintain record security sufficient to preserve records
from destruction or damage from foreseeable events. Data maintained in an electronic
medium shall be protected, and backed up, with a copy stored at a separate site from the
original data.
C. CERCLA Defense Records. City's ability to defend against CERCLA and
related litigation is a matter of great importance. Franchisee shall maintain and preserve
records establishing where Solid Waste Collected in the City was landfilled for the full
Term of this Agreement and an additional period thereafter of not less than five (5) years,
or any longer period required by law. At any time, including after the expiration of the
Term, Franchisee shall provide copies of such records to City within three (3) business
days of City's request.
D. Inspection; Audit. On an annual or as -needed basis, City shall have the
right, upon five (5) business days advance notice, to inspect Franchisee's Records
and/or conduct, or to contract with an independent auditing firm to perform, an audit, at
City's expense, of Franchisee's Records ("City Audit") to ensure compliance with the
provisions of this Agreement. The City Audit shall include, without limitation, review
and/or copying of Franchisee's cash receipts, books of account, Commercial Solid
Waste tonnage reports, Collection, Disposal and Diversion records, and other related
records, as well as those of each of its parent, subsidiary and/or affiliated companies, as
appropriate. As part of the City Audit, Franchisee's Customer accounts and related
records may be subject to review. While Franchisee will not be required to submit for
copying detailed account records, such as Customer names, Franchisee shall make
such records and information available for review in connection with the City Audit. The
purpose of the City Audit shall be for: (a) verification of the Fees paid by Franchisee
under this Agreement, and the accuracy thereof; (b) verification of the amounts of
Commercial Solid Waste reported as collected, processed, diverted and disposed by
Franchisee pursuant to this Agreement; (c) verification of Recycling/Diversion program
implementation efforts and actions taken by Franchisee pursuant to this Agreement; and
(d) verification of such other information as is reasonably deemed appropriate by the
Municipal Operations Director to evaluate Franchisee's performance hereunder.
E. Reimbursement. Franchisee shall reimburse City for all of City's costs in
performance of an audit if, as a result of the audit, it is determined:
1. There was any intentional misrepresentation by Franchisee with
respect to the amount of Fees due to the City;
2. There is a One Thousand and 00/100 Dollars ($1,000.00) or greater
discrepancy in the amount of Fees due to the City.
3. There was any intentional misrepresentation by Franchisee with
respect to Franchisee's Commercial Solid Waste Handling Services and/or Franchisee's
Non-exclusive Franchise Agreement Page 19
handling and transportation of Commercial Solid Waste or with regard to any information
provided about Diversion; or
4. There is a discrepancy (whether intentional or not) in the number of
Tons of Municipal Solid Waste, Recyclable Materials, Green Waste, Foods Scraps and/or
Construction and Demolition Debris Collected, Recycled, processed and/or Disposed that
equals or exceeds two percent (2%).
Such reimbursement shall be paid by Franchisee within ten (10) calendar days of
the date City notifies Franchisee in writing that Franchisee is liable to reimburse the City
in conformance with this subsection and the amount of City's audit costs.
SECTION 9. INSURANCE REQUIREMENTS
Without limiting Franchisee's indemnification of City, and prior to commencement
of the Effective Date of this Agreement, Franchisee shall obtain, provide copies to City
and maintain at its own expense during the Term of this Agreement policies of insurance
of the type and amounts described in the Insurance Requirements attached hereto as
Exhibit "D" and incorporated herein by reference.
SECTION 10. RESPONSIBILITY FOR DAMAGES AND INJURY/INDEMNIFICATION
A. Franchisee Responsibility. Franchisee shall be solely responsible for any
damages caused as a result of Franchisee's acts, negligence, or omissions including, but
not limited to, injuries to or death of any person or damage to public and/or private
property and damages to public improvements arising from or as a result of Franchisee's
Commercial Solid Waste Handling Services.
B. General Indemnification. Franchisee shall indemnify, hold harmless, and
defend City, and each of its past, present and future elected officials, officers, employees,
agents, consultants, volunteers, affiliates, assignees, representatives, attorneys,
subsidiaries, and affiliated entities and their respective successors, heirs and assigns
(collectively, "Indemnified Parties') from and against any costs, expenses, damages, and
losses, including actual attorneys' fees ("Losses") of any kind or character to any person
or property arising directly or indirectly from or caused by any of the following: (i) any act,
negligence, or omission of Franchisee or its respective officers, directors, shareholder
members, partners, employees, agents, Franchisee's subcontractors, suppliers,
representatives and affiliates ("Franchisee Representatives"); (ii) Franchisee's or
Franchisee Representative's activities; (iii) any accident or casualty within or arising out
of the performance of Franchisee's Commercial Solid Waste Handling Services under
this Franchise; (iv) any violation or alleged violation of any law, ordinance or statute now
or hereafter enacted arising out of commercial recyclable materials, food scraps, green
waste, construction and demolition debris and/or municipal solid waste handling services
performed pursuant to the Franchise; (v) the negligence or willful misconduct of
Franchisee or any of Franchisee Representatives in the performance of Franchisee's
Commercial Solid Waste Handling Services under the Franchise; and (vi) any breach of
the Franchise.
Non-exclusive Franchise Agreement Page 20
Franchisee shall not be required to indemnify, hold harmless and defend the
Indemnified Parties from the sole negligence, active negligence or willful misconduct of
the Indemnified Parties. Nothing in this indemnity shall be construed as authorizing any
award of attorneys' fees in any action on or to enforce the terms of this Agreement. This
indemnity shall apply to all claims and liability regardless of whether any insurance
policies are applicable. The policy limits do not act as a limitation upon the amount of
indemnification to be provided by the Franchisee.
C. Hazardous Substances Indemnification. Franchisee shall indemnify the
Indemnified Parties from and against all claims, actual damages including, but not limited
to, special and consequential damages, natural resource damage, punitive damages,
injuries, costs, response, remediation, and removal costs, losses, demands, debts, liens,
liabilities, causes of action, suits, legal or administrative proceedings, interest, fines,
charges, penalties and expenses attorneys' and expert witness fees and costs incurred
in connection with defending against any of the foregoing or in enforcing this indemnity of
any kind whatsoever paid, incurred or suffered by, or asserted against, the Indemnified
Parties or Franchisee arising directly or indirectly from or caused by any of the following:
(i) the violation of any environmental laws or the failure to clean up and mitigate the
consequences of the spill or release of any Hazardous Substance; and (ii) Franchisee's
activities under this Agreement concerning any Hazardous Substance at any place where
Franchisee stores or disposes of solid or Hazardous Waste pursuant to this Agreement,
or preceding Agreements between City and Franchisee. The foregoing indemnity is
intended to operate as an agreement pursuant to the Comprehensive Environmental
Response, Compensation and Liability Act (42 U.S.C. Section 9607(e)) and any
amendments thereto, and California Health and Safety Code Section 25364, or any
successor statute, to insure, protect, hold harmless, and indemnify City from liability.
D. AB 939 Indemnification. Franchisee agrees to meet all requirements of
City's SRRE as to the portion of the Commercial Solid Waste stream Collected and/or
handled by Franchisee. Franchisee agrees to protect, defend, indemnify, and hold the
Indemnified Parties harmless against all fines or penalties imposed by the California
Integrated Waste Management Board, CalRecycle, or other entity, arising from the failure
of Franchisee to meet Act Diversion requirements with respect to the portion of the
Commercial Solid Waste stream collected by Franchisee.
E. AB 341 Indemnification. Franchisee agrees to meet all requirements of AB
341, specifically Public Resources Code Section 42649, or any successor statute, as to
portion of the Municipal Solid Waste and Recyclable Materials stream Collected and/or
handled by Franchisee. Franchisee agrees to protect, defend, indemnify, and hold the
Indemnified Parties harmless against all fines or penalties imposed by the California
Integrated Waste Management Board, CalRecycle, or other entity, arising from the failure
of Franchisee to meet AB 341 diversion and recycling requirements with respect to the
Municipal Solid Waste and Recyclable Materials Collected and/or handled by Franchisee.
F. AB 1826 Indemnification. Franchisee agrees to meet all requirements of AB
1826, specifically Public Resources Code Section 42649.82, or any successor statute, as
to the portion of the Food Scraps and Green Waste stream Collected and/or handled by
Franchisee. Franchisee agrees to protect, defend, indemnify, and hold the Indemnified
Non-exclusive Franchise Agreement Page 21
Parties harmless against all fines or penalties imposed by the California Integrated Waste
Management Board, CalRecycle, or other entity, arising from the failure of Franchisee to
meet AB 1826 recycling requirements with respect to the Food Scraps and Green Waste
collected and/or handled by Franchisee.
G. Notice. City agrees to give notice to Franchisee when the City receives a
claim for damages or other liability for which Franchisee has provided indemnification
under this Section.
SECTION 11. COMMERCIAL SOLID WASTE COLLECTION SERVICES
A. Authorized Collection Services. Franchisee may only provide those
Commercial Solid Waste Handling Services designated in Franchisee's application, or
any amended application, and for which Franchisee has demonstrated compliance with
Code Section 12.63.050, or any successor section.
B. Frequency of Collection. Franchisee shall collect all Commercial Solid
Waste from Commercial Premises and Multifamily Dwellings on a schedule to be agreed
upon between Franchisee and its Customers, subject to the restrictions set forth in
Agreement Section 11(C); provided, however, that such schedule complies with Code
Subsection 6.04.140 and does not permit the accumulation of Commercial Solid Waste
in quantities that are unreasonable or detrimental to the public health or safety. Requests
for Collection from Customer Premises with overflowing Containers, or from Customer
Premises where there have been missed pickups, shall be serviced within twenty-four
(24) hours of any such request by the Customer or City. Should City receive a Customer
complaint related to or arising from Franchisee's failure to collect Commercial Solid Waste
as provided herein, Franchisee's Collection schedule shall be submitted to the City for
review.
C. Hours and Days of Collections.
1. Franchisee shall not collect Commercial Solid Waste in any area of
the City after 6:30 p.m. and prior to 5:00 a.m.
2. Franchisee shall not Collect Commercial Solid Waste from any
Commercial Premises or Multifamily Dwelling located within five hundred (500) feet of an
occupied residential premise, motel or hotel, nor shall any of Franchisee's Collection
vehicles be operated in any residential areas of the City except between the hours of 7:00
a.m. and 6:30 p.m., Monday through Friday, nor on any Saturday or Sunday, except
between the hours of 8:00 a.m. and 6:00 p.m.
3. Franchisee shall neither operate its Collection vehicles nor Collect
Commercial Solid Waste from any Commercial Premises, governmental facility, or
Multifamily Dwelling located within five hundred (500) feet of a school, community center,
church or other educational facility between the hours of 7:30 a.m. and 9:00 a.m. or 1:00
p.m. and 3:00 p.m., Monday through Friday. The limitations in Agreement Section
11(C)(3) notwithstanding, Franchisee's operation of Collection vehicles on East and West
Non-exclusive Franchise Agreement Page 22
Coast Highway, Jamboree Road, MacArthur Boulevard, San Joaquin Hills Road and
Newport Coast Drive shall not be prohibited or limited under this Agreement.
4. Commercial Solid Waste collection on Sundays shall be limited to
Food Scraps and Municipal Solid Waste from Commercial Premises, which require
Collection every day due to public health and safety concerns.
5. At Franchisee's request, the City shall provide maps illustrating the
geographic limitations placed on Franchisee's Collection services pursuant to Agreement
Section 11(C)(3) ("Maps"). City expressly disclaims any liability related to or arising from
the accuracy of any Maps provided by City. City may update the Maps as needed, and
Franchisee's failure to request or secure the Maps, or any updated Maps, shall not relieve
Franchisee of any obligations under this Agreement.
D. Containers. Franchisee shall provide the appropriate sized Containers to
each Customer for storage of the Commercial Solid Waste Collected by Franchisee.
Containers provided by Franchisee must be identified with Franchisee's name and be in
the color identified by Franchisee in Franchisee's application.
SECTION 12. AB 341 RECYCLING PROGRAM FOR COMMERCIAL PREMISES AND
MULTIFAMILY DWELLINGS
A. Recycling Program. The Act requires all owners or responsible parties of
Commercial Premises generating four (4) or more cubic yards of Commercial Solid Waste
per week and all Multifamily Dwellings ("AB 341 Generator") to arrange for Recycling
services by July 1, 2012. The Act requires all cities to provide a commercial Recycling
program for AB 341 Generators on or before July 1, 2012. Franchisee acknowledges
these requirements and agrees that, subject to the restrictions contained in Agreement
Section 11(A), for all AB 341 Generators that contract with or pay Franchisee to haul
Municipal Solid Waste and/or Recyclable Materials, Franchisee shall implement a
recycling program as described and set forth in Exhibit "E," which is incorporated herein
by reference ("Recycling Program").
B. Act Compliance. The parties agree that provision of a Recycling Program,
as set forth in Exhibit "E," is of paramount importance for the City to comply with the Act.
The parties further agree that providing high quality Recycling services, public education
and technical assistance to AB 341 Generators to obtain their participation in AB 341
requirements is essential for Franchisee to implement an effective Recycling Program for
AB 341 Generators. The parties acknowledge that achievement of this requirement is
integral to the City's compliance with the Act and that failure to implement said Recycling
Program may cause City to be non-compliant with the Act and be grounds for termination
of this Agreement.
C. Program Implementation. Within ninety (90) calendar days of either: (1) the
Effective Date of this Agreement; or (2) the date an AB 341 Generator initiates service
with Franchisee to collect or transport Municipal Solid Waste and/or Recyclable Materials,
whichever is earlier, Franchisee shall implement a Recycling Program for said AB 341
Non-exclusive Franchise Agreement Page 23
Generator. For purposes of this Section, Franchisee shall be found to have
"implemented" a Recycling Program only if Franchisee completes all of the following:
1. Franchisee has contacted the AB 341 Generator and explained the
requirements in the Act for the AB 341 Generator to have in place a Recycling Program
as of July 1, 2012.
2. Franchisee has provided the appropriate type(s) and size(s) of
Containers to the AB 341 Generator's premises.
3. Franchisee is collecting the Recyclable Materials from the AB 341
Generator at the frequency of collection needed to adequately service the AB 341
Generator and, at a minimum, is performing services consistent with Agreement Section
11(B).
4. Franchisee has provided public education and training materials to
the AB 341 Generator explaining: (a) the requirements of the Act; (b) the operation of the
Recycling Program; and (c) what materials may be placed in the Recycling container(s).
5. Franchisee has responded to the AB 341 Generator's questions and
to any complaints and has successfully resolved all questions and complaints.
D. Waiver. Franchisee may obtain a waiver from the City with regard to
implementation of a Recycling Program for a specific AB 341 Generator in the event said
generator is already diverting one hundred percent (100%) of Recyclable Materials
generated by the AB 341 Generator using one or more of the following methods:
1. The AB 341 Generator is donating or selling its Recyclable Materials
to a third party.
2. The AB 341 Generator is self -hauling its Recyclable Materials to a
recycler or to a Processing Facility.
3. The AB 341 Generator has subscribed to an AB 341 -compliant
Diversion program through another Franchise hauler in the City.
If AB 341 Generator uses any of the aforementioned diversion methods
Franchisee shall submit a written statement to City describing the type(s) of Recyclable
Materials being diverted by the AB 341 Generator, the number and type of containers
being used, the method of Collection and the ultimate destination to which the Recyclable
Materials are being delivered. Upon the City's verification that the information submitted
by Franchisee meets the requirements for a waiver, the City may grant such waiver.
SECTION 13. AB 1826 FOOD SCRAP DIVERSION PROGRAM FOR COMMERCIAL
PREMISES
A. Food Scrap Diversion Program. The Act requires, on or after January 1,
2017, all owners and responsible parties of Commercial Premises generating four (4) or
Non-exclusive Franchise Agreement Page 24
more cubic yards of Food Scraps and/or Green Waste per week to arrange for Recycling
services for those materials. The Act further requires, on or after January 1, 2019, all
owners and responsible parties of Commercial Premises generating four (4) or more
cubic yards of Commercial Solid Waste per week to arrange for Recycling services for
Food Scraps and Green Waste (hereinafter, owners and responsible parties of
Commercial Premises subject to either the 2017 or 2019 Act requirements are collectively
referred to as "Food Scrap Generators"). Finally, the Act requires cities to provide a
commercial Recycling program for Food Scrap Generators. Franchisee acknowledges
these requirements and agrees that, subject to the restrictions contained in Agreement
Section 11(A), for all Food Scrap Generators subject to AB 1826 that contract with or pay
Franchisee to haul Food Scraps, Franchisee shall implement a diversion program as
described and set forth in Exhibit "F" and incorporated herein by reference ("Food Scrap
Diversion Program"). The City will maintain a listing of all Food Scrap Generators subject
to AB 1826. City expressly disclaims any liability related to or arising from the accuracy
of any lists provided by City. Franchisee's failure to request or secure the list on an annual
basis shall not relieve Franchisee of any obligations under this Section.
B. Act Compliance. The parties agree that provision of a Food Scrap Diversion
program as described in Exhibit "F" is of paramount importance for the City to comply with
the Act. The parties further agree that providing high quality Diversion services, public
education, and technical assistance to Food Scrap Generators to obtain their participation
in AB 1826 Diversion requirements is essential for Franchisee to implement an effective
Food Scrap Diversion Program for all Food Scrap Generators. The parties acknowledge
that achievement of this requirement is integral to the City's compliance with the Act and
that failure to implement said Diversion program may cause City to be non-compliant with
the Act.
C. Program Implementation. Within ninety (90) calendar days of either: (1) the
Effective Date of this Agreement; or (2) the date a Food Scrap Generator subject to AB
1826 initiates service with Franchisee to Collect and/or transport Food Scraps, whichever
is earlier, Franchisee shall implement a Food Scrap Diversion Program for said Food
Scrap Generator. For purposes of this Section, Franchisee shall be found to have
"implemented" a Food Scrap Diversion Program for a Food Scrap Generator only if
Franchisee completes all of the following:
1. Franchisee has contacted the Food Scrap Generator and explained
the requirements in the Act for the Food Scrap Generator.
2. Franchisee has provided the appropriate type(s) and size(s) of
Containers to the Food Scrap Generator's premises as set forth in Exhibit "F."
3. Franchisee is collecting Food Scraps from the Food Scrap Generator
at the frequency of collection needed to adequately service the Food Scrap Generator
and, at a minimum, is performing services consistent with Section 11.B.
4. Franchisee has provided public education and training materials to
any Food Scrap Generators explaining (a) the requirements of the Act, (b) the operation
Non-exclusive Franchise Agreement Page 25
of the Food Scrap Diversion Program, and (c) what materials may be placed in the Food
Scrap Container(s).
5. Franchisee has responded to the Customer's questions and
complaints and has successfully resolved all questions and complaints.
D. Waiver. Franchisee may obtain a waiver from the City with regard to
implementation of a Food Scrap Diversion Program for a specific Food Scrap Generator
if said generator is diverting one hundred percent (100%) of Food Scraps being generated
using one or more of the following methods:
The Food Scrap Generator is donating or selling its Food Scraps to
a third party.
2. The Food Scrap Generator is self -hauling its Food Scraps to a
recycler or to a Processing Facility.
3. The Food Scrap Generator is processing the Food Scraps onsite.
4. The Food Scrap Generator is donating surplus edible Food Scraps
for human consumption.
5. The Food Scrap Generator has subscribed to an AB 1826 -compliant
Food Scrap Recycling Program through another Franchise hauler in the City.
If the Food Scrap Generator uses any of the aforementioned diversion methods
and is diverting one hundred percent (100%) of Food Scraps being generated, Franchisee
shall submit a written statement to City describing the type(s) of Food Scraps being
Diverted by the Food Scrap Generator, the number and type of containers being used,
the method of collection and the ultimate destination to which the recyclable materials are
being delivered. Upon the City's verification that the information submitted by Franchisee
meets the requirements for a waiver, the City shall grant such waiver.
SECTION 14. AB 1826 COMMERCIAL AND MULTIFAMILY GREEN WASTE
COLLECTION PROGRAM.
A. Act Requirements. The Act requires all Commercial Premises generating
four (4) or more cubic yards of Food Scraps and/or Green Waste to arrange for Recycling
services for Green Waste on or before January 1, 2017.
B. Green Waste Program. Franchisee acknowledges these requirements and
agrees, subject to the restrictions contained in Agreement Section 11(A), that Franchisee
shall provide the following Green Waste collection program at all Commercial Premises
and Multifamily Dwellings that generate Green Waste and do not have Green Waste
hauled away by a landscape or gardening service:
Non-exclusive Franchise Agreement Page 26
I . Containers to Be Provided. Franchisee shall provide appropriate
sized Containers to each Commercial Premises and Multifamily Dwelling for storage of
all Green Waste generated by the Customer on a weekly basis.
2. Weekly Service. Not less than once per week, and more frequently
as required to collect all of the Green Waste generated by each Commercial Premises
and Multifamily Dwelling, Franchisee shall Collect all such materials that have been
placed for Collection in Containers for each designated material.
3. Waiver. If a Commercial Premises or Multifamily Dwelling has all
Green Waste hauled away by a landscaper or gardening service or if another Franchisee
is collecting and diverting one hundred percent (100%) of Green Waste from the
Commercial Premises or Multifamily Dwelling, Franchisee is not required to provide
Green Waste Collection services to that property. In such event, Franchisee shall obtain
a signed self -reporting form stating the name, address, telephone number, business
license number, and contact person for the landscaper, gardening service(s), or
Franchisee providing such service. The form shall include the Processing Facility where
the Green Waste is delivered, which must be a City -approved Processing Facility.
SECTION 15. CONSTRUCTION AND DEMOLITION DEBRIS RECYCLING PROGRAM
A. Act Requirements. The 2016 California Green Building Standards Code
requires sixty-five percent (65%) Diversion of Construction and Demolition Debris.
B. Construction and Demolition Debris Recycling Program. Franchisee
acknowledges these requirements and agrees that, subject to the restrictions contained
in Agreement Section 11(A), for all Customers that contract with or pay Franchisee to
haul Construction and Demolition Debris, Franchisee shall implement a diversion
program as described and set forth in Exhibit "G" and incorporated herein by reference.
SECTION 16. REPORTING REQUIREMENTS.
A. Monthly Reports. Franchisee shall submit monthly reports to the Municipal
Operations Director identifying, at a minimum, the following information:
1. The address of each facility serviced and the precise services
provided to each address including, but not limited to, Commercial Solid Waste Handling
Services broken down by type (i.e., Recyclable Materials, Food Scraps, Green Waste,
Construction and Demolition Debris, and/or Municipal Solid Waste) presented in an Excel
format acceptable to the City;
2. The frequency of Commercial Solid Waste Handling Services
provided to each address;
3. The number of containers by type and size at each address and the
frequency of collection;
Non-exclusive Franchise Agreement Page 27
4. The tonnage, by material category, collected per month by volume in
cubic yards (Tons) and measured by the size of applicable Containers of and removed
by them within the City during the previous month;
5. The location of the Landfill and/or Recycling Facility to which the
Municipal Solid Waste, Recyclable Materials, Green Waste and/or Food Scraps were
taken during the previous month and the diversion rate achieved if the facility accepts
mixed waste materials/Processable Municipal Solid Waste;
6. AB 341 and AB 1826 compliance information by Generators,
including the total number of AB 341 and AB 1826 accounts serviced by the Franchisee,
the total number of accounts that have a Recycling Program, Food Scrap Diversion
Program, and/or Green Waste Recycling provided by the Franchisee, the number of
Customers with Franchisee -documented internal Diversion programs that comply with AB
1826 and AB 341, the number of Customers that comply with AB 341 or AB 1826 via a
Clean or Dirty MRF, the number of Customers that do not have an AB 341 or AB 1826 -
compliant Diversion program, and a description of outreach efforts for non-compliant
Generators;
7. A narrative summary of all outreach efforts to implement AB 341 and
AB 1826 Diversion programs at non-compliant Generators' premises including dates of
interactions, a description of the nature of the interactions, Generator objections, a log of
all new Recycling of Food Scrap Container deliveries during the reporting period, a log of
contamination incidents;
8. Such other tonnage or other information as requested by the
Municipal Operations Director including weight tickets and Recycling records.
B. Form of Report. Monthly reports shall be prepared in an Excel template, or
other format approved in writing by the Municipal Operations Director.
C. Report Due Date. Each monthly report shall be submitted on or before the
25th day of the month following the end of the month.
D. Submission. Franchisee shall submit each monthly report to:
Municipal Operations Director
City of Newport Beach
P.O. Box 1768
100 Civic Center Drive
Newport Beach, CA 92658
E. No Waiver. Franchisee shall file the monthly report required under
Agreement Section 16(A) regardless of whether Franchisee has provided Commercial
Solid Waste Handling Services in the City during the reported month.
F. Compliance. Franchisee shall comply with all Recycling and Diversion
requirements imposed by law, ordinance, or regulation on the City. At the end of each
Non-exclusive Franchise Agreement Page 28
calendar month, reports will be evaluated for compliance with City Recycling and
Diversion requirements. Failure to comply with City Recycling and Diversion
requirements shall be a material breach of this Agreement.
SECTION 17. HAULER REPRESENTATIVE
On or before January 1, 2018, Franchisee shall designate, at a minimum, one (1)
individual employed by Franchisee to assist City in implementing the Agreement's
Recycling and Diversion programs, as applicable, and to manage all reporting
requirements set forth herein ("Hauler Representative"). Franchisee shall provide City
with the Hauler Representative's contact information, and the Hauler Representative shall
be the primary contact for the City. The Hauler Representative shall respond to any City
questions or concerns relating to or arising from Franchisee's performance under this
Agreement within five (5) business days of City submitting such question or concern.
SECTION 18. VEHICLES AND EQUIPMENT
A. Containers. Any and all Containers provided to Customers for storage,
Collection or transportation of Municipal Solid Waste, Recyclable Materials, Food Scraps,
and/or Green Waste shall meet the requirements designated by the Municipal Operations
Director as well as State of California minimum standards for solid waste handling
established under Public Resources Code Section 43020 and applicable health
requirements, or any successor statutes or requirements.
B. Identification. All Containers and vehicles used by Franchisee in the
performance of Commercial Solid Waste Handling Services shall be marked with
Franchisee's name in letters which are not less than four inches (4") high and which are
easily read by the general public.
C. Equipment.
1. Maintenance: Records. Franchisee shall, at all times, provide such
number of vehicles and such equipment as will be adequate for the Commercial Solid
Waste Handling Services, which it is authorized to provide under this Agreement. All
vehicles utilized by Franchisee in the performance of this Agreement shall be registered
with the California Department of Motor Vehicles. All vehicles must pass annual "BIT"
and brake inspections and Franchisee shall provide evidence of such to the Municipal
Operations Department upon request. Upon request by the City, Franchisee shall provide
records from the most recent California Highway Patrol biennial inspection of the
terminal(s) responsible for the maintenance and repair of equipment used in the City. All
vehicles shall be properly maintained, kept clean and in good repair, and shall be
uniformly painted. All Commercial Solid Waste Containers used in the performance of
this Agreement shall be kept clean and in good repair and shall be uniformly painted in
the color identified by Franchisee in Franchisee's application. All equipment required by
City in the performance of this Agreement, including vehicle mirrors and the collision
avoidance system, may be subject to inspection by the City upon twenty-four (24) hours'
notice by the Municipal Operations Director. All drivers employed by Franchisee and
operating equipment in the City shall be properly licensed for the class of vehicle they
Non-exclusive Franchise Agreement Page 29
drive, enrolled in the Department of Motor Vehicles Employee Pull Notice (EPN) program,
and abide by all State and federal regulations for driver hours and alcohol and controlled
substances testing.
2. Solid Waste Retention. Each vehicle shall be so constructed and
used in a manner so that no rubbish, garbage, debris, oil, grease or other material will
blow, fall, or leak out of the vehicle. All Commercial Solid Waste shall be transported by
means of vehicles that are covered in such a manner as to securely contain all solid waste
and to prevent such solid waste from projecting, blowing, falling or leaking out of the
vehicles. Any Commercial Solid Waste dropped or spilled in Collection, transfer or
transportation shall be immediately cleaned up by Franchisee. A broom and a shovel
shall be carried at all times on each vehicle for this purpose. In addition, each Collection
vehicle shall be equipped with trash bags, masking tape and notice of non -Collection tags
for the purpose of separating Hazardous Waste for return to the Generator. A
communications device such as a two-way radio or a cellular telephone shall also be
maintained on each vehicle at all times.
3. Vehicle Mirrors. On or before January 1, 2018, all equipment used
by Franchisee for Commercial Solid Waste Handling Services in the City with a gross
vehicle weight rating of twenty-six thousand (26,000) pounds or more shall be equipped
with a convex mirror on the front of each vehicle, adjusted so as to enable the operator
to see all points on an imaginary horizontal line which:
(a) Is three feet (3') above the road;
(b) Is one foot (1') directly forward from the midpoint of the front of
the vehicles; and
(c) Extends the full width of the front of the vehicle.
4. Collision Avoidance System. On or before January 1, 2019, all
vehicles operated by Franchisee in the City shall have a collision avoidance system
installed that is capable of detecting adjacent pedestrians and bicyclists. City reserves
the right to inspect Franchisee's vehicles, at any time, to confirm that the installation and
capability of Franchisee's collision avoidance system is consistent with Agreement
Section 18(C)(4).
5. Storage. Franchisee shall not store any vehicle or equipment on any
public street, public right-of-way or other public property in the City without obtaining a
Temporary Street Closure Permit from the Public Works Department and prior written
consent of the Municipal Operations Director.
6. Compliance. Should the Municipal Operations Director at any time
give written notification to Franchisee that any vehicle does not comply with the standards
hereunder, the vehicle shall be promptly removed from service by Franchisee and not
used again until inspected and authorized in writing by the Municipal Operations Director.
Non-exclusive Franchise Agreement Page 30
7. Public Works Standards. Placement of Containers and equipment
shall be in accordance with the standards set by the Public Works Director.
SECTION 19. ABANDONED CONTAINERS
A. If Franchisee abandons any Commercial Solid Waste Container within the
City, the City may remove the Container and/or dispose of the contents of the Container
and recover its cost from Franchisee.
B. For the purposes of this Section, "abandons" includes:
1. Franchisee's failure to remove the Container within the time period
specified by the City Council upon termination of the Franchise pursuant to Section
12.63.140 of the Code, or any successor statute;
2. Franchisee's failure to remove the Container within ten (10) calendar
days after the expiration or termination of the Franchise granted to Franchisee, except in
the case where Franchisee has been granted an extension of the Term of said Franchise
or Franchisee has been granted a subsequent franchise authorizing Franchisee to Collect
and transport the type or types of Commercial Solid Waste for which the Container was
used pursuant to this Agreement; or
3. Franchisee's failure to collect the Container and dispose of the
contents of the Container within five (5) calendar days after the Municipal Operations
Director issues written notice to Franchisee to dispose of the contents.
4. Franchisee's failure to replace a Container that fails to comply with
the City's aesthetic standards, as set forth in this Agreement, within five (5) calendar days
of receiving written notice from the Municipal Operations Director of non-compliance.
SECTION 20. COMPLIANCE WITH LAW
A. Franchisee shall perform all Commercial Solid Waste Handling Services in
accordance with applicable federal, state, and local law, including, but not limited to, Code
Chapter 12.63, Article XIII of the City Charter, Ordinance No. 2017-16 and the terms and
conditions of this Agreement.
B. During the Term of this Agreement, Franchisee and City agree that the
City's ordinances may be amended as provided herein, as provided in Chapter 12.63 or
as necessary to permit the City to comply with changes to federal, state, and local
legislative regulatory requirements, which may affect or alter City's obligations or
requirements for Commercial Solid Waste management. Franchisee agrees to comply
with any such amendment of the City's ordinances without the need to amend this
Agreement.
Non-exclusive Franchise Agreement Page 31
SECTION 21. PERMITS AND LICENSES
A. Applicable Permits and Licenses. Franchisee shall obtain and maintain, at
Franchisee's sole cost and expense, all permits and licenses applicable to Franchisee's
operations under the Franchise, which are required of Franchisee by any governmental
agency. Payment of the Franchise Fee and Environmental Liability Fund Fee shall be in
addition to any permit or license fees or business tax prescribed by the City for the same
period.
B. Orange County Landfill Account. Franchisee shall obtain and maintain for
the Term of this Agreement an account with the Orange County landfills. If Franchisee
disposes of any Commercial Solid Waste collected from the City at an Orange County
landfill, the Franchisee shall utilize its landfill account only (no "cash" disposal).
SECTION 22. PUBLIC EDUCATION ACTIVITIES
A. Informational Materials. Each year during the Term of this Agreement,
Franchisee shall transmit informational materials to all Customers and to such
prospective Customers as it may select, informing them of the Commercial Solid Waste
Handling Services that are required of them under State law as well as Hazardous Waste
Disposal requirements.
B. Customer Compliance Notification. Each year during the Term of this
Agreement, Franchisee shall notify all AB 1826 and AB 341 accounts for which it provides
Commercial Solid Waste Collection Services of the Customer's compliance obligations.
C. Submission to City of Informational Materials. Franchisee's informational
materials shall be provided to the Municipal Operations Director upon request if, in City's
sole and absolute discretion, such informational materials are necessary for City to
comply with State reporting requirements.
SECTION 23. SUSPENSION; TERMINATION; APPEAL
A. City's Right to Suspend or Terminate. The Franchise granted to
Franchisee may be suspended or terminated by the City Council pursuant to Code
Section 12.63.140, or any successor statute.
B. Notice of Default. Should the Municipal Operations Director determine
Franchisee has defaulted in the performance of any obligation hereunder, the Municipal
Operations Director may provide written notice to Franchisee of such default ("Default
Notice"). The Municipal Operations Director may, in the Default Notice, set a reasonable
time within which Franchisee may cure such default. Unless a longer or shorter time is
otherwise specified by the Municipal Operations Director, a reasonable time for correction
shall be thirty (30) calendar days from the date the Default Notice is issued.
C. Municipal Operations Director Review. Within ten (10) business days of
the Municipal Operations Director's issuance of the Default Notice, at the request of
Franchisee, the Municipal Operations Director will hold a meeting with Franchisee to
Non-exclusive Franchise Agreement Page 32
discuss the failure(s) described in the Default Notice. Such request shall immediately
suspend any deadlines set forth in Agreement Section 23(B) or the Default Notice. During
Franchisee's meeting with the Municipal Operations Director, Franchisee shall have an
opportunity to present evidence explaining or justifying the failures described in the
Default Notice. After the meeting, the Municipal Operations Director will make a
determination, in his or her sole discretion, as to whether to uphold the Default Notice, or
any portion thereof, and shall issue such determination within five (5) business days of
the meeting. Franchisee will have thirty (30) calendar days from the date the Municipal
Operations Director's determination is issued to cure the upheld Default Notice or portion
thereof.
D. Appeal to City Manager. Within five (5) business days of the Municipal
Operations Director issuing his/her determination, Franchisee may appeal the Municipal
Operation Director's determination, in writing, to the City Manager. City's receipt of such
appeal request shall immediately suspend any deadlines set forth in Agreement Section
23(C). The City Manager will hold a meeting with Franchisee no more than ten (10)
business days after receiving Franchisee's written appeal request. After the meeting, the
City Manager will make a determination, in his or her sole discretion, as to whether to
uphold the Default Notice, or any portion thereof, and shall issue such determination
within five (5) business days of the meeting. The decision of the City Manager shall be
final. Franchisee will have thirty (30) calendar days from the date the City Manager's
determination is issued to cure the upheld Default Notice or any portion thereof.
F. Failure to Timely Cure. If Franchisee fails to timely cure a Default
Notice, or any portion thereof, then the applicable liquidated damages set forth in
Agreement Section 24 shall be final and conclusive and the amount(s) shall be
immediately due and payable. Franchisee's failure to timely cure three (3) Default Notices
shall be a material breach of this Agreement.
G. Audit Findings. Notwithstanding anything to the contrary, if Franchisee
disagrees with City's audit findings, then Franchisee may, within ten (10) business days
after service of the audit finding, appeal to the City Manager specifying the basis for its
disagreement with City's audit findings. If Franchisee fails to timely request such an
appeal, then the discrepancy determinations shall be final and conclusive and the
violation shall be deemed established.
H. Termination Without Right to Cure. City shall have the right of suspension
or termination as a result of Franchisee's failure to timely cure any deficiency or default
as set forth above, which right is in addition to City's right to terminate this Agreement
without affording Franchisee an opportunity to cure in circumstances where Franchisee
is determined to have materially breached this Agreement. Notwithstanding anything to
the contrary, in the event of any material breach hereof, City shall have the right to
terminate this Agreement without affording Franchisee the right to cure including, without
limitation, any action, inaction or circumstance defined herein as a material breach and/or
under any of the following circumstances which are hereby defined as material breaches:
1. If Franchisee conducts, or attempts to conduct, fraud upon City.
Non-exclusive Franchise Agreement Page 33
2. If Franchisee becomes insolvent, unable, or unwilling to pay its
debts.
3. If Franchisee fails to materially comply with any insurance or
indemnification requirement set forth in this Agreement; provided, however, that
Franchisee shall have a reasonable opportunity to cure any default relating to the
Franchisee's failure to provide the City with proof of insurance, so long as such insurance
is in effect at all times.
4. If City is required to pay any fine or penalty, which Franchisee is
required by the terms hereof to pay, yet which Franchisee fails, refuses, neglects or is
unable to timely pay.
5. If Franchisee fails to submit Records thirty (30) calendar days or
more following a written request by City, or its designated representative for Records
disclosure.
6. Franchisee fails to meet the Diversion requirements of this
Agreement or pursuant to applicable laws.
I. Removal of Commercial Solid Waste Containers: Customer Notification.
In the event this Franchise is terminated or expires without a grant of a subsequent
franchise allowing Franchisee to continue performing Commercial Solid Waste Handling
Services in City, then within ten (10) calendar days of such termination or expiration
Franchisee shall:
1. Remove all of Franchisee's Commercial Solid Waste containers from
all Franchisee's collection service locations and properly dispose of all Commercial Solid
Waste in such containers within the time period specified by the City Council; and
2. Submit to the Municipal Operations Director a list of the names and
addresses of Generators in the City for which Franchisee provided Commercial Solid
Waste Handling Services as of the date of termination or expiration (i.e., Franchisee's
City of Newport Beach customer list); or
3. Send written notification to each solid waste generator on
Franchisee's customer list that Franchisee is no longer authorized to provide Commercial
Solid Waste Handling Services in the City. Such notification shall be in the form provided
by the Municipal Operations Director and shall be personally delivered or shall be sent by
first class mail, postage prepaid, to the customers' billing addresses. Franchisee shall
submit to the Municipal Operations Director an affidavit, signed under penalty of perjury,
stating that the required notification has been provided by Franchisee to all of
Franchisee's City Customers.
J. Continuing Obligations. Upon Agreement termination, suspension or
expiration:
Non-exclusive Franchise Agreement Page 34
Franchisee shall have no right or authority to engage in Commercial
Solid Waste Handling Services in the City, subject to the provisions of Sections 49520-
49524 of the Public Resources Code, or any successor statutes.
2. Franchisee shall remain liable to City for any and all Franchise Fees
and Environmental Liability Fund Fees that would otherwise be payable by Franchisee,
for any and all liquidated damages, late charges and/or interest assessed.
3. Franchisee shall have a continuing obligation to submit to City all
reports and records required by this Agreement. Franchisee's obligation shall survive this
Agreement shall continue for such period of time as required by this Agreement or
applicable law.
4. Franchisee shall allow the Commercial Solid Waste Generators
served by Franchisee to arrange for Commercial Solid Waste Handling Services with a
Commercial Solid Waste enterprise collector authorized to perform such services, without
penalty or liability for breach of contract on the part of the generators, for such period of
time as Franchisee is not authorized to perform such services because of termination or
suspension.
5. Franchisee's shall have a continuing obligation to provide the
indemnifications required in this Agreement. Such indemnifications include, but are not
limited to, the Hazardous Materials indemnification and AB 939/AB 341/AB 1829
indemnification as set forth in Agreement Section 10.
SECTION 24. CITY'S REMEDIES
A. The City incurred considerable time and expense procuring this Agreement
to secure an improved level and quality of Recycling and compliance with State Diversion
mandates.
B. Liquidated Damages. The Parties agree the following liquidated damages
schedule represents a reasonable estimate of the amount of damages, considering all
the circumstances existing on the date of this Agreement, including the relationship of the
sums to the range of harm to City that reasonably could be expected in anticipation that
proof of actual damages would be costly or inconvenient:
Applicable Failure(s)* Damages
Section(s)
6(A), 7(A) Comply with City -mandated Diversion Two hundred fifty
requirements within thirty (30) calendar dollars ($250) per
days of notification by City business day until
compliant
6(B), 7(B) Deliver Commercial Solid Waste as Two hundred fifty
designated dollars ($250) per
truck delivery
Non-exclusive Franchise Agreement Page 35
M
11(A)
11(C)
11(D)
Provide requested records
Provide only those Commercial Solid
Waste Handling Services for which
Franchisee has applied
Collect at unauthorized locations and/or
during unauthorized hours five (5) or
more times in a twelve (12) month period
Label Containers; paint vehicles and/or
Containers corporate color
12(A), 12(C) Establish or Implement Recycling
Program
Two hundred fifty
dollars ($250) per
business day until
completed
Two hundred fifty
dollars ($250)
Two hundred fifty
dollars ($250)
Fifty dollars ($50)
per business day
until corrected
One thousand
dollars ($1,000) per
occurrence
Five hundred dollars
($500) — if not
submitted Win thirty
(30) calendar days
after due date
Non-exclusive Franchise Agreement Page 36
13(A), 13(C)
Establish or Implement Food Scrap
One thousand
Diversion Program
dollars ($1,000)
13(A), 13(C)
Establish or Implement Green Waste
Five hundred dollars
Diversion Program
($500)
13(A), 13(C)
Establish or Implement Construction and
One thousand
Demolition Diversion Program
dollars ($1,000)
16(A), 16(B), 16(E)
Submit complete and accurate monthly
One hundred dollars
reports
($100) per business
day until corrected
or completed
16(C)
Submit timely monthly reports
One hundred dollars
($100) — if not
submitted when due
Five hundred dollars
($500) — if not
submitted Win thirty
(30) calendar days
after due date
Non-exclusive Franchise Agreement Page 36
17 Designate qualified Hauler
Fifty dollars ($50)
Representative; Failure of Hauler
per business day
Representative to timely respond to City
until completed
18(C) Secure or maintain vehicles or vehicle
One hundred dollars
equipment
($100) per business
day until completed
19 Remove, replace, or collect abandoned
Fifty dollars ($50)
Container(s)
per business day
until completed
*Unless otherwise designated, reference to "failure(s)" refers to each occurrence of
specified breach (such as for each Customer or each Customer record entry or complaint)
and not for aggregate occurrences of those breaches (such as for all Customers on a
given route or day).
C. City's Remedies Cumulative. The rights and remedies of City set forth
herein shall be in addition to any and all other rights and privileges City may have, and
shall not be deemed to limit any such other rights or privileges of City under this
Agreement or by virtue of any law.
By placing its initials below, each party specifically confirms:
(1) the accuracy of the statements made in Agreement Section 24; and
(2) it has had ample opportunity to consult with legal counsel and obtain an explanation
of liquidated damage provisions prior to signing this Agreement.
FRANCHISEE CITY
Initial Here: Initial Here:
SECTION 25. CONFIDENTIAL INFORMATION.
A. Confidential Information. In the performance of this Agreement or in
contemplation thereof, the parties and their respective employees and agents may have
access to private or confidential information owned or controlled by the other party and
such information may contain proprietary details and disclosures. All information and
data identified in writing as proprietary or confidential by either party ("Confidential
Information") and so acquired by the other party or its employees or agents under this
Agreement or in contemplation thereof shall be and shall remain the disclosing party's
exclusive property. The recipient of Confidential Information shall use all reasonable
efforts (which in any event shall not be less than the efforts the recipient takes to ensure
the confidentiality of its own proprietary and other confidential information) to keep, and
have its employees and agents keep, any and all Confidential Information confidential,
and shall not copy, or publish or disclose it to others, nor authorize its employees, agents
or anyone else to copy or disclose it to others, without the disclosing party's written
approval; nor shall the recipient make use of the Confidential Information except for the
Non-exclusive Franchise Agreement Page 37
purposes of executing its obligations hereunder, and (except as provided for herein) shall
return the Confidential Information and data to the first party at its request. The City's
duty to maintain confidentiality as described hereunder shall be subject to the laws of the
State of California.
B. Excluded Information. The foregoing conditions will not apply to information
or data which is, or which becomes generally known to the public by publication or by any
means other than a breach of duty on the part of the recipient hereunder, is information
previously known to the recipient, is information independently developed by or for the
recipient or is information generally released by the owning party without restriction.
C. Public Records Request. Should City receive a public records request, or
otherwise be directed by any governmental authority to disclose any or all Confidential
Information in City's possession, custody or control, City shall promptly provide notice to
Franchisee of such request to allow Franchisee an opportunity to prevent disclosure.
D. Right to Iniunctive Relief. Because of the unique nature of the Confidential
Information, the parties agree that each party may suffer irreparable harm in the event that
the other party fails to comply with any of its obligations under this Section, and that
monetary damages may be inadequate to compensate either party for such breach.
Accordingly, the parties agree that either party will, in addition to any other remedies
available to it at law or in equity, be entitled to seek injunctive relief to enforce the terms of
this Section.
SECTION 26. ASSIGNMENT
Franchisee shall not assign, sell, subcontract, transfer or otherwise delegate its
authority to perform any portion of the Commercial Solid Waste Handling Services or
obligations under the Franchise without prior express consent of the City Council. This
prohibition includes any transfer of ownership or control of Franchisee, or the conveyance
of a majority of Franchisee's stock to a new controlling interest. City's consent shall not
be unreasonably withheld.
SECTION 27. MISCELLANEOUS PROVISIONS
A. Notices. Except as otherwise provided in this Agreement, all notices required
by this Agreement shall be given by personal service or by deposit in the United States
mail, postage pre -paid and return receipt requested, addressed to the parties as follows:
To: Municipal Operations Director
City of Newport Beach
P.O. Box 1768
100 Civic Center Drive
Newport Beach, CA 92660
Non-exclusive Franchise Agreement Page 38
To Franchisee: Goodwin Enterprises, Inc. DBA Donny Goodwin
Trucking & Goodwin Const
Attn: Donny Goodwin
P.O. Box: 7388
Capistrano Beach, CA 92624
Notice shall be deemed effective on the date personally served or, if mailed, three
(3) calendar days after the date deposited in the mail.
B. Integrated Agreement. This Agreement represents the full and complete
understanding of every kind or nature whatsoever between the City and Franchisee, and
all preliminary negotiations and other agreements of any kind or nature are merged
herein. No verbal agreement or implied covenant shall be held to vary the provisions
herein.
C. Amendments. This Agreement supersedes all prior agreements and
understandings between the parties and may not be modified or terminated orally, and
no modification, termination or attempted waiver of any of the provisions hereof shall be
binding unless in writing and signed by both parties.
D. Recitals. The Parties acknowledge that the Recitals are true and correct and
are hereby incorporated by reference into this Agreement.
E. Applicable Law. The laws of the City, State of California, and applicable Federal
law, shall govern this Agreement and all matters relating to it and any action brought
relating to this Agreement shall be adjudicated in a court of competent jurisdiction in the
County of Orange.
F. Authority. The parties signing below represent and warrant that they have the
requisite authority to bind the entities on whose behalf they are signing.
G. Severability. If any term or portion of this Agreement is held to be invalid,
illegal, or otherwise unenforceable by a court of competent jurisdiction, the remaining
provisions of this Agreement shall continue in full force and effect.
H. Waiver. A waiver by either party of any breach, of any term, covenant or
condition contained herein shall not be deemed to be a waiver of any subsequent breach
of the same or any other term, covenant or condition contained herein, whether of the
same or a difference character.
I. Interpretation. The terms of this Agreement shall be construed in accordance
with the meaning of the language used and shall not be construed for or against either
party by reason of the authorship of this Agreement or any other rule of construction that
might otherwise apply.
J. Equal Opportunity Employment. Franchisee represents that it is an equal
opportunity employer and it shall not discriminate against any authorized subcontractor,
Non-exclusive Franchise Agreement Page 39
employee or applicant for employment because of race, religion, color, national origin,
handicap, ancestry, sex or age or any other impermissible basis under law.
K. Compliance with Laws. Franchisee shall at its own cost and expense comply
with all statutes, ordinances, regulations and requirements of all governmental entities,
including federal, state, county or municipal, whether now in force or hereinafter enacted.
Franchisee agrees to obtain a business license from the City in accordance with the Code.
The parties hereto agree that the Franchise and this Agreement are the only
authorizations to conduct Commercial Solid Waste Handling Services in the City and that
the issuance of a business license does not grant the Franchisee a right to conduct
Commercial Solid Waste Handling Services or other business in the City.
L. Conflicts of Interest. Franchisee and its employees may be subject to the
provisions of the California Political Reform Act of 1974 (the "California Political Reform
Act"), which (i) requires such persons to disclose any financial interest that may
foreseeably be materially affected by the work performed under this Agreement, and (ii)
prohibits such persons from making, or participating in making, decisions that will
foreseeably financially affect such interest. If subject to the California Political Reform
Act, Franchisee shall conform to all requirements of the California Political Reform Act.
Failure to do so constitutes a material breach and is grounds for immediate termination
of this Agreement by City. Franchisee shall indemnify and hold harmless City for any and
all claims for damages resulting from Franchisee's violation of this subsection.
M. Conflicts or Inconsistencies. In the event there are any conflicts or
inconsistencies between this Agreement and the Scope of Services or any other
attachments attached hereto, the terms of this Agreement shall govern.
N. No Attorneys' Fees. In the event of any dispute or legal action arising under
this Agreement, the prevailing party shall not be entitled to attorneys' fees.
O. Counterparts. This Agreement may be executed in two (2) or more
counterparts, each of which shall be deemed an original and all of which together shall
constitute one (1) and the same instrument.
[SIGNATURES ON FOLLOWING PAGE]
Non-exclusive Franchise Agreement Page 40
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed
on the day and year written below.
APPROVED AS TO FORM:
CITY ATTORNEY'S OFFICE
0
Aaron C. Harp/ \ LAM knliuIrr
City Attorney ( 1
ATTEST:' I�I�
Date:
By:
Leilani I. Brown
City Clerk
Attachments:
CITY OF NEWPORT BEACH,
a California municipal corpora]
Date: U. • 11,
/.
BiSRy: L/
in Mu7ayor
FRANCHISEE: GOODWIN
ENTERPRISES INC. DBA DONNY
GOODWIN TRUCKING & GOODWIN
CONST, a California corporation
Donny Goodwin
President
Date: 11 r0 -; /n
BA .
�D —
L e to Goodwin
Vice President / Secretary
[END OF SIGNATURES]
Exhibit A — Faithful Performance Bond
Exhibit B — Franchise Hauler Acknowledgement
Exhibit C — Franchisee Application Template
Exhibit D — Insurance Requirements
Exhibit E — Recycling Program
Exhibit F — Food Scrap Diversion Program
Exhibit G — Construction and Demolition Debris Recycling Program
Non-exclusive Franchise Agreement Page 41
EXHIBIT A
CITY OF NEWPORT BEACH
BOND NO.
FAITHFUL PERFORMANCE BOND
The premium charges on this Bond is $
WHEREAS, the City of Newport Beach, State of California, has awarded to
GOODWIN ENTERPRISES INC. DBA DONNY GOODWIN TRUCKING & GOODWIN
CONST, a California corporation, hereinafter designated as the "Principal," a non-
exclusive franchise for commercial solid waste handling services ("Franchise
Agreement") in the City of Newport Beach, in strict conformity with the Franchise
Agreement on file with the office of the City Clerk of the City of Newport Beach, which is
incorporated herein by this reference.
WHEREAS, Principal has executed or is about to execute the Franchise
Agreement and the terms thereof require the furnishing of a Bond for the faithful
performance of the Franchise Agreement.
NOW, THEREFORE, we, the Principal, and
duly authorized to
transact business under the laws of the State of California as Surety (hereinafter
"Surety"), are held and firmly bound unto the City of Newport Beach, in the sum of Seven
Thousand Five Hundred Dollars and 00/100 ($7,500.00) lawful money of the United
States of America, to be paid to the City of Newport Beach, its successors, and assigns;
for which payment well and truly to be made, we bind ourselves, our heirs, executors and
administrators, successors, or assigns, jointly and severally, firmly by these present.
THE CONDITION OF THIS OBLIGATION IS SUCH, that if the Principal, or the
Principal's heirs, executors, administrators, successors, or assigns, fail to abide by, and
well and truly keep and perform any or all the services, covenants, conditions, and
agreements in the Franchise Agreement documents and any alteration thereof made as
therein provided on its part, to be kept and performed at the time and in the manner
therein specified, and in all respects according to its true intent and meaning, or fails to
indemnify, defend, and save harmless the City of Newport Beach, its officers, employees
and agents, as therein stipulated, then, Surety will faithfully perform the same, in an
amount not exceeding the sum specified in this Bond; otherwise this obligation shall
become null and void.
As a part of the obligation secured hereby, and in addition to the face amount
specified in this Performance Bond, there shall be included costs and reasonable
expenses and fees, including reasonable attorneys fees, incurred by City, only in the
event City is required to bring an action in law or equity against Surety to enforce the
obligations of this Bond.
Surety, for value received, stipulates and agrees that no change, extension of time,
alterations or additions to the terms of the Franchise Agreement or to the services to be
performed thereunder shall in any way affect its obligations on this Bond, and it does
Faithful Performance Bond Page A-1
hereby waive notice of any such change, extension of time, alterations or additions of the
Agreement or to the services or to the specifications.
This Faithful Performance Bond shall be extended and maintained by the Principal
in full force and effect for five (5) years following the date Principal is granted the
Franchise Agreement by City.
In the event that the Principal executed this bond as an individual, it is agreed that
the death of any such Principal shall not exonerate the Surety from its obligations under
this Bond.
IN WITNESS WHEREOF, this instrument has been duly executed by the Principal
and Surety above named, on the day of , 20
Name of Contractor (Principal)
Name of Surety
Address of Surety
Telephone
APPROVED AS TO FORM:
CITY ATTORNEY'S OFFICE
Date: ho/i&/i,
City Attorn
Authorize Signature/Title
Authorized Agent Signature
V)nnnu N)6inin) Pr�cjder0--
PrintName and Title
(AM
NOTARY ACKNOWLEDGMENTS OF
CONTRACTOR AND SURETY MUST BE ATTACHED
Faithful Performance Bond Page A-2
ACKNOWLEDGMENT
A notary public or other officer completing this
certificate verifies only the identity of the individual who
signed the document to which this certificate is
attached, and not the truthfulness, accuracy, or validity
of that document.
State of California
County of )ss'
On 20 before me,
Notary Public, personally appeared
who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are
subscribed to the within instrument and acknowledged to me that he/she/they executed the same
in his/her/their authorized capacity(ies), and that by his/her/their signatures(s) on the instrument
the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing
paragraph is true and correct.
WITNESS my hand and official seal.
Signature
ACKNOWLEDGMENT
A notary public or other officer completing this
certificate verifies only the identity of the individual who
signed the document to which this certificate is
attached, and not the truthfulness, accuracy, or validity
of that document.
(seal)
State of California
County of ) ss.
On 20 before me,
Notary Public, personally appeared
proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are
subscribed to the within instrument and acknowledged to me that he/she/they executed the same
in his/her/their authorized capacity(ies), and that by his/her/their signatures(s) on the instrument
the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing
paragraph is true and correct.
WITNESS my hand and official seal.
Signature (seal)
Faithful Performance Bond Page A-3
NO BOND REQUIRED:
NO BIN DELIVERY
EXHIBIT B
FRANCHISE HAULER ACKNOWLEDGEMENT
THIS FRANCHISE HAULER ACKNOWLEDGMENT, entered into as of November
9, 2017 (the "Acknowledgment"), by and between the City of Newport Beach, a charter
city and municipal corporation (the "City"), and GOODWIN ENTERPRISES INC. DBA
DONNY GOODWIN TRUCKING & GOODWIN CONST, a California corporation (the
"Franchise Hauler').
WITNESSETH
WHEREAS, the City and the Franchise Hauler have heretofore entered into an
agreement entitled NONEXCLUSIVE FRANCHISE AGREEMENT BETWEEN THE CITY
OF NEWPORT BEACH AND GOODWIN ENTERPRISES INC. DBA DONNY GOODWIN
TRUCKING & GOODWIN CONST FOR COMMERCIAL SOLID WASTE HAULING
SERVICES (the "Franchise"); and
WHEREAS, the Franchise provides for the collection and disposal of certain
municipal commercial solid waste as described therein ("Franchise Waste") generated
within the City; and
WHEREAS, Orange County (the "County") owns, manages and operates a
sanitary landfill disposal system for municipal solid waste generated within the County;
and
WHEREAS, the City and the County have heretofore entered into a Waste
Disposal Agreement as of 2009, and subsequent Amendment to the Waste Disposal
Agreement dated April 28, 2016 (collectively, the "Disposal Agreement"), determining that
the execution of such Disposal Agreement will serve the public health, safety and welfare
of the residents of the City and County, by maintaining public ownership and stewardship
over the Orange County Landfill Disposal System (the "Disposal System"); and
WHEREAS, under the Disposal Agreement, the County has agreed to provide
long-term disposal of all municipal solid waste generated within the City and the City has
agreed to exercise all legal, and contractual power which it possesses from time to time
to deliver or cause the delivery of such waste to the Disposal System; and
WHEREAS, the provisions of the Waste Disposal Agreement which guarantee
capacity for the long term disposal of waste at specified rates generated in the City
provide significant benefits to the Franchise Hauler;
WHEREAS, notwithstanding any Franchise provisions to the contrary, the
Franchise Hauler explicitly acknowledges the aforementioned benefits to the City, the
County and the Franchise Hauler in providing for the disposal of all Franchise Waste to
the Disposal System; and
Franchise Hauler Acknowledgement Page B-1
WHEREAS, the City and the Franchise Hauler desire to enter into this
Acknowledgment to assure that the City and the Franchise Hauler will be entitled to the
benefits of the Waste Disposal Agreement and to assure conformity with the waste
delivery obligations which have been agreed to by the City under the Disposal Agreement
through the delivery of waste by the Franchise Hauler to the Disposal System; and
WHEREAS, the Franchise Hauler's agreement to deliver Franchise Waste to the
Disposal System under this Acknowledgment is given in consideration of the Franchise
Hauler's right to receive the Contract Rate for such disposal as provided in the Disposal
Agreement.
NOW, THEREFORE, in consideration of the premises and for other good and
valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the
parties hereto, intending to be legally bound hereby, agree as follows:
1. Capitalized terms used and not otherwise defined herein are used as defined in
the Disposal Agreement.
2. The Franchise Hauler hereby waives any right which it may possess under
applicable law to contest on any ground, constitutional, statutory, case law,
administrative or otherwise, (a) the right, power or authority of the County or the
City to enter into or perform their respective obligations under the Disposal
Agreement, (b) the enforceability against the County or the City of the Disposal
Agreement, or (c) the right, power or authority of the City to deliver or cause the
delivery of all Controllable Waste to the Designated Disposal Facility in accordance
with this Acknowledgment.
3. The City and the Franchise Hauler each hereby represent that this
Acknowledgment has been duly authorized by all necessary action of their
respective governing bodies.
4. The Franchise Hauler shall deliver or cause to be delivered all Controllable Waste
(including all residue from the processing by any means, wherever conducted, of
Controllable Waste) to the Disposal System, and shall otherwise assist the City in
complying with its obligations under the Waste Disposal Covenant in Section 3.1
of the Disposal Agreement.
5. The Franchise Hauler shall not haul Controllable Waste to any materials recovery
facility, composting facility, intermediate processing facility, recycling center,
transfer station or other waste handling or management facility unless the contract
or other agreement or arrangement between the Franchise Hauler and the
operator of such facility is sufficient in the opinion of the County to assure that the
Residue from such facility constituting City Acceptable Waste (or Tonnage
equivalencies) and the City Acceptable Waste transferred by such facility shall be
Franchise Hauler Acknowledgement Page B-2
delivered to the Designated Disposal Facility in compliance with the Waste
Disposal Covenant.
6. The Franchise Hauler shall pay the Contract Rate imposed by the County at the
Designated Disposal Facility for the disposal of all Controllable Waste, which rate
shall be subject to potential adjustment necessary to reflect the circumstances set
forth in the Disposal Agreement.
7. Nothing in this Acknowledgment is intended to restrict any right or responsibility
explicitly given the Franchise Hauler in the Franchise to recycle City Acceptable
Waste, except as provided in paragraph 5 above with respect to Residue from any
such recycling operations.
8. The obligations of the Franchise Hauler under this Acknowledgment shall apply
notwithstanding any provision of the Franchise which may conflict herewith.
9. This Acknowledgment may be enforced by the City by any available legal means.
In any enforcement action by the City, the burden of proof shall be on the Franchise
Hauler to demonstrate compliance herewith.
10. This Acknowledgment shall be in full force and effect and shall be legally binding
upon the City and Franchise Hauler from the dated hereof and shall continue in full
force and effect until the earlier of (i) the end of the term of the Franchise or (ii) the
end of the term of the Disposal Agreement.
11. The City and Hauler agree that the County shall be an express third party
beneficiary of this Acknowledgment, and shall be entitled to independently enforce
the obligations of the Franchise Hauler hereunder.
12. The Hauler agrees to assist the County in verifying tonnage collected by the
Franchise Hauler and providing information required by the County. Hauler will
provide upon request refuse tonnage collected within the County, and outside the
County (if relevant to confirming tonnage origination), separated by jurisdiction, by
load type (residential, commercial, roll -off box), and by facility to which it was
delivered (specify which landfill or transfer station). Hauler will provide customer
service levels and route lists. Hauler will cooperate with County audits to verify
reported origin of tonnage by making records and personnel available to the
County and/or its auditors.
Franchise Hauler Acknowledgement Page B-3
EXHIBIT C
FRANCHISE APPLICATION TEMPLATE
Franchisee Application Template Page C-1
Io City of Newport Beach
�;Ya— Solid Waste Franchise Application
Hauler Information
Legal Name & DBA,
Business Address:
Business Phone:
Contact Name:
Email:
Type of Organization (Check One)
0Indlvidual (Owner/Operator)
Husband and Wife
❑Corpgratlon
❑General Partnership
Desired Franchise:
Tier I (Mixed Solid Waste)
❑
Mixed Waste
❑
"Dirty MRF" Processing
❑
Source Separated Dry Recyclables ❑
Food Scraps
p
Green/ Wood Waste
❑
Tier II (Construction & Demolition)
❑
Name of Signatories
Name
Name
Business email:
Phone:
Newport Beach Business License#: i— Exp:
r—ILlmited Partnership
❑Limited Liability Company
❑Business Trust
❑Co -Partners
Title
Title
❑ Jolnt Venture
❑ Unincorporated Association -
other than a Partnership
❑ Public Agency
Corp Resolution Needed
Yes. No N/A
❑❑❑
Yes N
❑ ❑o r]
Solid Waste Collection Recycling Plans
Applicants must complete a listing of solid waste collection and diversion plans (Attachment 1), The
form must include, at a minimum, each waste stream; the types/sizes of containers to be utilized;
description of how waste is processed; a listing of any facility where material may be taken; and fhe
ultimate disposition of any non-processible portion of the waste stream.
List of Vehicles to Be Utilized Under the Franchise
Applicants must list all vehicles to be used in performing services In the City (Attachment 2).
Note: All vehicles must meet the equipment standards listed In the "Vehicles and Equipment" section of
the franchise agreement.
The Franchise Agreement requires all vehicles and containers to be painted uniform colors.
Color of Vehicles:
Color of Containers:
Designation of Hauler Representative
The franchise requires that waste haulers designate a Hauler Representative to assist In managing your
recycling and diversion programs and managage reporting requlrements. This person will also be the
main contact for City staff and the hauler's customers In Newport Beach. Please provide the following
Information on the Hauler Representative:
Name:
Title/Position:
Direct Phone Number:
Additional Information Required with Submission of Franchise Application
2. The applicant must complete Form 200/200D/200P as appropriate, describing officers, partners,
etc., having legal responsibility for the franchise agreement.
2. A current Insurance certificate conforming to the requirements listed In the franchise agreement,
Including the applicable endorsements.
3. If your company has W conducted solid waste hauling services In the City of Newport Beach for
the past three (3) years, please provide information from the previous calendaryear including
tonnage collected.by activity (residential, commercial, industrial, construction and demolition);
corresponding revenue for each activity; tonnage recycled or caused to be recycled by applicant's
collection, transportation, and/or disposition of materials collected and categorized by method of
recycling, material type recycled, and the tonnage disposed byfaclllty utilized..
In the past year, have you or your firm:
Maintained all books of account pursuant to generally accepted accounting principles (GAAP)?
Yes No N/A
Generaied all Income statements using elther a cash or accrual accounting method?
Yes No O N/A
Truthfully and accurately reported all tonnage and/or the disposition of all materials collected In any
jurisdiction where you are authorized to Perform solid waste services?
Yes • No N/A . =
AUTHORIZED SIGNATUREW OF APPLICANT
THE UNDERSIGNED ASSURES THATTHE INFORMATION PROVIDED ON THIS APPLICATION IS TRUE AND
CORRECT AND THAT THE APPLICANT HAS READ AND UNDERSTOOD HIS OR HER OBLIGATIONS UNDER
ANY FRANCHISE OBTAINED BASED ON THIS APPLICATION.
A. If the applicant is a sole proprietor, the application shall be signed by the proprietor.
B. If the applicant Is a partnership, the application shall be signed by each partner.
C. If the application Is a firm, association, corporation, county, city, public agency, or other
governmental entity, the application shall be signed by the chief executive officer or the
Individual legally responsible for representing the agency.
D. The applicant(s) affirms that the facts contained In this application and supporting documents
are true and correct.
(Signature) (Title) (Date)
(Signature) (Title) (Date)
(Signature) (Title) (Date)
City of Newport Beach
NON-EXCLUSIVE SOLID WASTE FRANCHISE APPLICATION
ADMINISTRATIVE ORGANIZATION & DELEGATION INFORMATION - CORPORATIONS
(Form 200 — 2017)
INSTRUCTIONS: This form must be Updated and submitted to the City each time there is a change in officers or
change In the corporation.
CORPORATION
Name (as [is led wit It the Secretary of state) Chlof Exocutive Offlear
Incorporation Date Place of Incorporation
Principal office of business:
Address City Zip Code Telephone
Contact Person Title Telephone
Names aril addresses of all persons 0o own len per cent (10%) or more of stock In corporation.
Governing Board of Directors
a. Number of Board Members
c. Frequency of Meetings
b. Term of Office
d. Method of Selection
Board Officers and Members USE A SEPARATE SHEET FOR ADDITIONAL NAMES
-
Office
Name
Business Address & City & Zip Code—f
Telephone
Term
Number
Expiration
President
Vice•Presldent
Secretary
Treasurer
Odle,
City of Newport Beach
NON-EXLUSIVE SOLID WASTE FRANCHISE APPLICATION
ADMINISTRATIVE ORGANIZATION & DELEGATION INFORMATION - CORPORATIONS
PARTNERSHIPS, SOLE PROPRIETOR, AND OTHER ASSOCIATIONS
(Form 200P — 2017)
PARTNERSHIPS
1. Attach a copy of the partnership agreement
2. Partners --
Type of Partnership Name Business Address, City and Zip Code
let Partner
Li
,. El Limited
_
[] General
2nd Partner
❑ Limited
3rd PartnerGeneral
[J Limited
General
41h Partner
❑ Limited
Contact Person Mlle Telephone $
SOLE PROPRIETORIOTHER ASSOCIATIONS
Seta ProprletorsloNer associations must also protide a Ilst of all person(s) legally responsible for the organization, the contact porson, and appropriate legal
documents (ficll6ous name statement,business license) which set forth legal responsibility of the organization and accountability for opening the program.
Use the following space or attach a $eparate sheet.
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EXHIBIT D
INSURANCE REQUIREMENTS
1. Provision of Insurance. Without limiting Franchisee's indemnification of
City, and prior to commencement of Work, Franchisee shall obtain, provide and maintain
at its own expense during the term of this Agreement, policies of insurance of the type
and amounts described below and in a form satisfactory to City. Franchisee agrees to
provide insurance in accordance with requirements set forth here. If Franchisee uses
existing coverage to comply and that coverage does not meet these requirements,
Franchisee agrees to amend, supplement or endorse the existing coverage.
2. Acceptable Insurers. All insurance policies shall be issued by an insurance
company currently authorized by the Insurance Commissioner to transact business of
insurance in the State of California, with an assigned policyholders' Rating of A- (or
higher) and Financial Size Category Class VII (or larger) in accordance with the latest
edition of Best's Key Rating Guide, unless otherwise approved by the City's Risk
Manager.
3. Coverage Requirements.
A. Workers' Compensation Insurance. Franchisee shall maintain
Workers' Compensation Insurance, statutory limits, and Employer's Liability Insurance
with limits of at least One Million Dollars ($1,000,000) each accident for bodily injury by
accident and each employee for bodily injury by disease in accordance with the laws of
the State of California, Section 3700 of the Labor Code.
Franchisee shall submit to City, along with the certificate of
insurance, a Waiver of Subrogation endorsement in favor of City, its officers, officials,
employees and agents.
B. General Liability Insurance. Franchisee shall maintain commercial
general liability insurance, and if necessary umbrella liability insurance, with coverage at
least as broad as provided by Insurance Services Office form CG 00 01, in an amount not
less than One Million Dollars ($1,000,000) per occurrence, Two Million Dollars
($2,000,000) general aggregate and Two Million Dollars ($2,000,000) completed
operations aggregate. The policy shall cover liability arising from premises, operations,
products -completed operations, personal and advertising injury, and liability assumed
under an insured contract (including the tort liability of another assumed in a business
contract) with no endorsement or modification limiting the scope of coverage for liability
assumed under a contract.
C. Automobile Liability Insurance. Franchisee shall maintain
automobile insurance at least as broad as Insurance Services Office form CA 00 01
covering bodily injury and property damage for all activities of the Franchisee arising out
of or in connection with Work to be performed under this Agreement, including coverage
for any owned, hired, non -owned or rented vehicles, in an amount not less than One
Million Dollars ($1,000,000) combined single limit for each accident.
4. Other Insurance Requirements. The policies are to contain, or be endorsed
to contain, the following provisions:
Insurance Requirements Page D-1
A. Waiver of Subrogation. All insurance coverage maintained or
procured pursuant to this Agreement shall be endorsed to waive subrogation against City,
its elected or appointed officers, agents, officials, employees and volunteers or shall
specifically allow Franchisee or others providing insurance evidence in compliance with
these requirements to waive their right of recovery prior to a loss. Franchisee hereby
waives its own right of recovery against City, and shall require similar written express
waivers from each of its subcontractors.
B. Additional Insured Status. All liability policies including general
liability, excess liability, pollution liability, and automobile liability, but not including
professional liability (if required), shall provide or be endorsed to provide that City and its
officers, officials, employees, and agents shall be included as insureds under such
policies.
C. Primary and Non Contributory. All liability coverage shall apply on a
primary basis and shall not require contribution from any insurance or self-insurance
maintained by City.
D. Notice of Cancellation. All policies shall provide City with thirty (30)
days notice of cancellation (except for nonpayment for which ten (10) days notice is
required) or nonrenewal of coverage for each required coverage.
5. Additional Agreements Between the Parties. The parties hereby agree to
the following:
A. Evidence of Insurance. Franchisee shall provide certificates of
insurance to City as evidence of the insurance coverage required herein, along with a
waiver of subrogation endorsement for workers' compensation and other endorsements
as specified herein for each coverage. Insurance certificates and endorsement must be
approved by City's Risk Manager prior to commencement of performance. Current
certification of insurance shall be kept on file with City at all times during the term of this
contract. City reserves the right to require complete, certified copies of all required
insurance policies, at any time.
B. City's Right to Revise Requirements. The City reserves the right at
any time during the term of this Agreement to change the amounts and types of insurance
required by giving the Franchisee ninety (90) days advance written notice of such change.
C. Right to Review Subcontracts. Franchisee agrees that upon request,
all contracts with subcontractors or others with whom Franchisee enters into contracts
with on behalf of City will be submitted to City for review. Failure of City to request copies
of such contracts will not impose any liability on City, or its employees.
D. Enforcement of Contract Provisions. Franchisee acknowledges and
agrees that any actual or alleged failure on the part of the City to inform Franchisee of
non-compliance with any requirement imposes no additional obligations on the City nor
does it waive any rights hereunder.
E. Requirements not Limiting. Requirements of specific coverage
features or limits contained in this Section are not intended as a limitation on coverage,
limits or other requirements, or a waiver of any coverage normally provided by any
insurance. Specific reference to a given coverage feature is for purposes of clarification
Insurance Requirements Page D-2
only as it pertains to a given issue and is not intended by any party or insured to be all
inclusive, or to the exclusion of other coverage, or a waiver of any type.
F. Self-insured Retentions. Any self-insured retentions must be
declared to and approved by City. City reserves the right to require that self-insured
retentions be eliminated, lowered, or replaced by a deductible. Self-insurance will not be
considered to comply with these requirements unless approved by City.
G. City Remedies for Non Compliance. If Franchisee or any
subcontractor fails to provide and maintain insurance as required herein, then City shall
have the right but not the obligation, to purchase such insurance, to terminate this
Agreement, or to suspend Franchisee's right to proceed until proper evidence of
insurance is provided. Any amounts paid by City shall, at City's sole option, be deducted
from amounts payable to Franchisee or reimbursed by Franchisee upon demand.
H. Timely Notice of Claims. Franchisee shall give City prompt and
timely notice of claims made or suits instituted that arise out of or result from Franchisee's
performance under this Agreement, and that involve or may involve coverage under any
of the required liability policies. City assumes no obligation or liability by such notice, but
has the right (but not the duty) to monitor the handling of any such claim or claims if they
are likely to involve City.
I. Franchisee's Insurance. Franchisee shall also procure and maintain,
at its own cost and expense, any additional kinds of insurance, which in its own judgment
may be necessary for its proper protection and prosecution of the Franchise.
Insurance Requirements Page D-3
EXHIBIT E
RECYCLING PROGRAM
Franchisee shall provide an AB 341 Generator all services necessary to support
compliance with, and City's enforcement of, AB 341 requirements for Recycling of
Municipal Solid Waste and Recyclable Materials.
Franchisee's Recycling Program shall include, but not be limited to:
(A) Informing the AB 341 Generator of AB 341's Recycling requirements;
(B) Providing public education and training materials to the AB 341 Generator explaining
(1) the operation of the Recycling Program, and (2) the materials that may be placed in
the Recycling Container(s).
(C) Making available the following sizes and types of Containers for storage of Municipal
Solid Waste and Recyclable Materials: thirty (35) gallon, sixty-five (65) gallon, or ninety-
five (95) gallon Carts, two (2), three (3), four (4) and six (6) cubic yard Bins; and two (2),
three (3), and four (4) cubic yard split bins; and compactors in the following sizes: three
(3) cubic yard and four (4) cubic yard;
(D) Consulting with AB 341 Generators to determine, provide, and distribute appropriate
Containers, Bins, Roll Off Bins, or compactors;
(E) Providing AB 341 Generators with wheeled carts or other Containers and/or Bins, Roll
Off Boxes or compactors as necessary for the segregation and storage of Food Scraps
to be diverted, which, at a minimum, complies with Section 11.D of the Agreement;
(F) Working and coordinating with the AB 341 Generator, or its designee, to ensure a
smooth and effective Recycling Program at each Commercial Premises and Multifamily
Dwelling for which Franchisee is providing Municipal Solid Waste and/or Recyclable
Materials collection; and
(G) Processing collected Recyclable Materials and Processable Municipal Solid Waste
at a City -approved Clean or Dirty MRF.
Recycling Program Page E-1
EXHIBIT F
FOOD SCRAP DIVERSION PROGRAM
For those Food Scrap Generators subject to AB 1826, Franchisee shall provide all
services necessary to support compliance with, and City's enforcement of, AB 1826
requirements for Diversion of Food Scraps.
Franchisee's Food Scrap Diversion Program shall include, but not be limited to:
(A) Informing the Food Scrap Generator of AB 1826's Food Scrap Diversion
requirements;
(B) Providing public education and training materials to the Food Scrap Generator
explaining (1) the operation of the Recycling Program, and (2) the materials that may be
placed in the Recycling Container(s).
(C) Making available the following sizes and types of Containers for Food Scrap, storage:
thirty (35) gallon, sixty-five (65) gallon, or ninety-five (95) gallon Carts, two (2), cubic yard
Bins; and two (2) cubic yard Split Bins.
(D) Consulting with Food Scrap Generators to determine, provide, and distribute
appropriate Containers, Bins, Roll Off Bins, or compactors;
(E) Providing Food Scrap Generators with wheeled carts or other Containers and/or Bins,
Roll Off Boxes or compactors as necessary for the segregation and storage of Food
Scraps to be diverted, which, at a minimum, complies with Section 11.D of the Agreement;
and
(F) Working and coordinating with the Food Scrap Generator, or its designee, to ensure
a smooth and effective Food Scrap Diversion Program and the Diversion of substantially
all Food Scraps generated at each Commercial Premises for which Franchisee is
providing Food Scrap collection.
Food Scrap Diversion Program Page F-1
EXHIBIT G
CONSTRUCTION AND DEMOLITION DEBRIS RECYCLING PROGRAM
Franchisee shall provide all services necessary to support Customer compliance with,
and City's enforcement of, the California Green Building Standards Code requirements
for Diversion of Construction and Demolition Debris.
Franchisee's Construction and Demolition Debris Recycling Program shall include, but
not be limited to:
(A) Informing all Customers requesting Construction and Demolition Debris hauling
services of the requirements of the California Green Building Standards Code;
(B) Providing Containers and/or Bins, Roll Off Boxes, and Compactors as needed for
storage and transport of single -material Construction and Demolition Debris, and
commingled Construction and Demolition Debris;
(C) Providing Collection service of all Containers on a timely basis, which, at a minimum,
complies with Section 11.D of the Agreement; and
(D) Working and coordinating with Customer, or customer's recycling coordinator, to
ensure a smooth and effective Recycling program and the Diversion of a minimum of
sixty-five percent (65%) of all Construction and Demolition Debris generated at each of
Customer's job sites for which Franchisee is providing Construction and Demolition
Debris Collection service.
Franchisee shall inform Customers utilizing Containers and/or Bins and Roll Off Boxes
on a temporary basis, that materials being generated must be recycled pursuant to the
requirements of City Code and the California Green Building Standards Code.
`-fiction and Demolition Debris Recycling Program Page G-1
CERTIFICATE OF INSURANCE
CHECKLIST
City of Newport Beach
This checklist is comprised of requirements as outlined by the City of Newport Beach. *
Date Received: 6/18/17
Dept./Contact Received From: Joan
Date Completed: 6/21/17 Sent to: Joan By: Alicia
Company/Person required to have certificate: Goodwin Enterprises, Inc.
Type of contract: Waste Haulers
I. GENERAL LIABILITY
EFFECTIVE/EXPIRATION DATE: 3/24/17-3/24/18
A.
INSURANCE COMPANY: James River Insurance Company
B.
AM BEST RATING (A-: VII or greater): A: IX
C.
ADMITTED Company (Must be California Admitted):
Is Company admitted in California?
❑ Yes ® No
D.
LIMITS (Must be $1M or greater): What is limit provided?
1,000,000/2,000,000
E.
ADDITIONAL INSURED ENDORSEMENT — please attach
® Yes ❑ No
F.
PRODUCTS AND COMPLETED OPERATIONS (Must
(What is limits provided?)
include): Is it included? (completed Operations status does
F.
PRIMARY & NON-CONTRIBUTORY WORDING (For Waste
not apply to Waste Haulers or Recreation)
❑ Yes ❑ No
G.
ADDITIONAL INSURED FOR PRODUCTS AND
G.
HIRED AND NON -OWNED AUTO ONLY:
COMPLETED OPERATIONS ENDORSEMENT (completed
H.
NOTICE OF CANCELLATION:
Operations status does not apply to Waste Haulers) N/A
❑ Yes ❑ No
H.
ADDITIONAL INSURED WORDING TO INCLUDE (The City
its officers, officials, employees and volunteers): Is it
included?
® Yes ❑ No
I.
PRIMARY & NON-CONTRIBUTORY WORDING (Must be
included): Is it included?
® Yes ❑ No
J.
CAUTION! (Confirm that loss or liability of the named insured
is not limited solely by their negligence) Does endorsement
include "solely by negligence" wording?
❑ Yes ® No
K.
ELECTED SCMAF COVERAGE (RECREATION ONLY):
® N/A ❑ Yes ❑ No
L.
NOTICE OF CANCELLATION:
❑ N/A ® Yes ❑ No
II. AUTOMOBILE LIABILITY
EFFECTIVE/EXPIRATION DATE: 11/1/16-11/1/17
A.
INSURANCE COMPANY: Employers Mutual Casualty Co.
B.
AM BEST RATING (A-: VII or greater) A: XIV
C.
ADMITTED COMPANY (Must be California Admitted):
Is Company admitted in California?
® Yes ❑ No
D.
LIMITS - If Employees (Must be $1 M min. BI & PD and $500,000
UM, $2M min for Waste Haulers): What is limits provided?
1,000,000+2M Excess
E
LIMITS Waiver of Auto Insurance / Proof of coverage (if individual)
(What is limits provided?)
N/A
F.
PRIMARY & NON-CONTRIBUTORY WORDING (For Waste
Haulers only):
❑ N/A E Yes ❑ No
G.
HIRED AND NON -OWNED AUTO ONLY:
❑ N/A ❑ Yes ® No
H.
NOTICE OF CANCELLATION:
❑ N/A ® Yes ❑ No
III. WORKERS' COMPENSATION
EFFECTIVE/EXPIRATION DATE: 1/1/17-1/1/18
A.
INSURANCE COMPANY: State Compensation Fund
B.
AM BEST RATING (A- : VII or greater). N/A
C.
ADMITTED Company (Must be California Admitted):
® Yes
❑ No
D.
WORKERS' COMPENSATION LIMIT: Statutory
® Yes
❑ No
E.
EMPLOYERS' LIABILITY LIMIT (Must be $1M or greater)
1,000,000
F.
WAIVER OF SUBROGATION (To include): Is it included?
® Yes
❑ No
G.
SIGNED WORKERS' COMPENSATION EXEMPTION FORM:
® N/A ❑ Yes
❑ No
H.
NOTICE OF CANCELLATION:
❑ N/A ® Yes
❑ No
ADDITIONAL COVERAGE'S THAT MAYBE REQUIRED
IV. PROFESSIONAL LIABILITY
V POLLUTION LIABILITY
V BUILDERS RISK
HAVE ALL ABOVE REQUIREMENTS BEEN MET?
IF NO, WHICH ITEMS NEED TO BE COMPLETED?
Approved:
Agent of Alliant Insurance Services
Broker of record for the City of Newport Beach
6/21/17
Date
® N/A ❑ Yes ❑ No
® N/A ❑ Yes ❑ No
® N/A ❑ Yes ❑ No
RISK MANAGEMENT APPROVAL REQUIRED (Non -admitted carrier rated less than _;
Self Insured Retention or Deductible greater than $ ) ❑ N/A ❑ Yes ❑ No
Reason for Risk Management approval/exception/waiver:
Risk Management approval needed due to GL carrier being non -admitted Sheri Approved 6/19/17
Approved:
Risk Management
* Subject to the terms of the contract.
Date
ACCEPTANCE OF NON-EXCLUSIVE SOLID WASTE MANAGEMENT FRANCHISE
WHEREAS, on October 10, 2017, the City Council of the City of Newport Beach ("City") adopted
Ordinance No. 2017-16, entitled An Ordinance of the City Council of the City of Newport Beach, California,
Granting Non -Exclusive Solid Waste Franchises to Provide Commercial Solid Waste Handling Services
with the City of Newport Beach, which granted Goodwin Enterprises Inc.
("Franchisee") a non-exclusive franchise to operate, maintain, and provide commercial solid waste handling
services along, across and over City's public streets, ways, alleys and places ("Franchise"),
WHEREAS, pursuant to City Charter Section 1303, any Franchise granted by the City shall not
become effective unless and until written acceptance is filed by Franchisee with the City Clerk within ten
(10) days after adoption of the ordinance granting the franchise; and
WHEREAS, Franchisee wishes to accept the Franchise granted by Ordinance No. 2017-16 by filing
written acceptance thereof
NOW THEREFORE, Franchisee hereby accepts the Franchise granted by Ordinance No. 2017-
16. Franchisee agrees such acceptance operates as an abandonment of any such prior franchises, rights
and privileges within City limits, as such limits shall at any time exist, and shall constitute a continuing
agreement of Franchisee that if and when the City shall thereafter annex, or consolidate with, additional
territory, any and all franchises, rights and privileges owned by Franchisee therein shall likewise be deemed
to be abandoned within the limits of such territory.
FRANCHISEE:
Date 10/16/2017
Donny Goodwin
President
CITY CLERK'S VERIFICATION OF ACCEPTANCE
I, Leilani Brown, City Clerk, certify that the above acceptance
//oo�f the Fr nchise granted by Ordinance No.
2017-16 was received by me on October, 2017, at �I(J a.m..
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NEWPORT = CITY OF
�= NEWPORT BEACH
9/FOAH City Council Staff Report
October 10, 2017
Agenda Item No. 3
TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL
FROM: Mike Pisani, Municipal Operations Director - 949-644-3055,
mpisani@newportbeachca.gov
PREPARED BY: Mike Pisani, Municipal Operations Director
PHONE: 949-644-3055
TITLE: Non -Exclusive Commercial Solid Waste Franchises
ABSTRACT:
On September 26, 2017, the City Council held a public hearing to consider granting non-
exclusive solid waste franchises to 30 haulers. Following the public hearing, the City
Council introduced Ordinance 2017-16 to grant the franchises and passed it to a second
reading on October 10, 2017.
RECOMMENDATION:
a) Determine this action is exempt from the California Environmental Quality Act (CEQA)
pursuant to Sections 15060(c)(2) and 15060(c)(3) of the CEQA Guidelines because
this action will not result in a physical change to the environment, directly or indirectly;
and
b) Conduct a second reading and adopt Ordinance No. 2017-16, An Ordinance of the
City Council of the City of Newport Beach, California, Granting Non-exclusive Solid
Waste Franchises to Provide Solid Waste Handling Services within the City of
Newport Beach.
FUNDING REQUIREMENTS:
There is no fiscal impact related to this item.
DISCUSSION:
The City of Newport Beach ("City") utilizes a non-exclusive franchise system to manage
commercial solid waste collection. This system helps the City meet Assembly Bill 939,
341, and 1826 requirements and establishes a competitive commercial solid waste
collection system for businesses in the City. There is no limit to the number of franchises
the City Council may approve.
3-1
Non -Exclusive Commercial Solid Waste Franchises
October 10, 2017
Page 2
At the September 26, 2017 meeting, the City Council conducted a public hearing to
consider granting franchises to 30 entities for a seven-year term. Following the public
hearing, the Council introduced Ordinance 2017-16 to grant the franchise, and passed it
to a second reading.
If the ordinance is approved, the non-exclusive solid waste franchises would take effect
on November 9, 2017 following execution of the individual franchise agreements and
approval of each firm's insurance and bonds.
ENVIRONMENTAL REVIEW:
Staff recommends the City Council find this action is not subject to the California
Environmental Quality Act (CEQA) pursuant to Sections 15060(c)(2) (the activity will not
result in a direct or reasonably foreseeable indirect physical change in the environment)
and 15060(c)(3) (the activity is not a project as defined in Section 15378) of the CEQA
Guidelines, California Code of Regulations, Title 14, Chapter 3, because it has no
potential for resulting in physical change to the environment, directly or indirectly.
NOTICING:
The agenda item has been noticed according to the Brown Act (72 hours in advance of
the meeting at which the City Council considers the item).
ATTACHMENT:
Attachment A — Ordinance No. 2017-16
3-2
ATTACHMENT A
ORDINANCE NO. 2017- 16
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY
OF NEWPORT BEACH, CALIFORNIA, GRANTING NON-
EXCLUSIVE SOLID WASTE FRANCHISES TO PROVIDE
COMMERCIAL SOLID WASTE HANDLING SERVICES
WITHIN THE CITY OF NEWPORT BEACH
WHEREAS, the City Council of the City of Newport Beach ("City") finds and
determines the collection of municipal solid waste, recyclable materials, food scraps,
green waste and construction and demolition debris (collectively, "Commercial Solid
Waste") generated within the City is a vital public service;
WHEREAS, the City Council further finds and determines the collection,
transportation, storage, transfer, processing and disposal of Commercial Solid Waste
("Commercial Solid Waste Handling Services") is a matter of great public concern
because improper control of such matters subjects the City to potential liability,
damages and penalties and may create a public nuisance, air pollution, fire hazard,
infestation and other problems affecting the public health, safety and welfare;
WHEREAS, a non-exclusive franchise to operate, maintain, and provide
Commercial Solid Waste Handling Services along, across and over City's public streets,
ways, alleys and places ("Franchise") promotes the public health, safety and welfare by
promoting permanence and stability among those businesses wishing to provide such
service and accountability to the City for compliance with current and future state
mandates;
WHEREAS, pursuant to Article XIII of the City Charter and Public Resources
Code Sections 40059, 49300, and 49500 through 49523, the City is authorized to enter
into non-exclusive franchise agreements for solid waste handling services with private
solid waste haulers;
WHEREAS, pursuant to City Charter Section 1301, a duly noticed public hearing
was held on September 26, 2017, to consider the granting of a Franchise on the terms
and conditions contained in Resolution No. 2017-60;
WHEREAS, pursuant to Newport Beach Municipal Code ("NBMC") Section
12.63.080, the City Council finds, on the basis of the application, information, materials,
and testimony submitted, that:
• The applications submitted by Franchisees (defined below) complies
with NMBC Chapter 12.63;
• The Franchisees have not within the past three years: (1) had a
Franchise terminated by the City; and/or (2) operated a solid waste
enterprise within the City without a Franchise;
1
3-3
• Awarding this Franchise is in accordance with the objectives of NBMC
12.63;
• Granting of this Franchise will not, under the circumstances of the
particular case, materially affect adversely the health or safety of
persons residing or working in the City or be materially detrimental to
the public welfare or injurious to property or public improvements; and
• Franchisees have sufficient experience, equipment and a recycling
plan to safely comply with the requirements of the Agreement (defined
below); and
WHEREAS, having considered all oral and documentary evidence presented at
the public hearing, the City Council has determined that the granting of this non-
exclusive franchise is in the public interest.
NOW THEREFORE, the City Council of the City of Newport Beach ordains as
follows:
Section 1: There is hereby granted to each entity listed below (individually,
"Franchisee," collectively, "Franchisees") a Franchise on the terms and conditions
specified in Resolution No. 2017-60:
a. A2Z Recycling Services, Inc.
b. Athens Services
C. BC Hauling and Demolition, Inc.
d. CAF Services, Inc.
e. California Waste Services LLC
f. Cousyn Grading & Demo, Inc.
g. CR&R Incorporated
h. Direct Disposal
i. GB Services, Inc.
j. Genesis Dispatch Inc.
k. Goodwin Enterprises, Inc.
I. Haul -Away Rubbish Service Co, Inc.
M. Interior Removal Specialist, Inc.
n. James R. Blomberg
o. JD Demolition & Grading, Inc.
P. Key Disposal, Inc.
q. Progressive Land Clearing dba Thomas Demolition
r. Praisler Hauling & Demolition, Inc.
S. Rainbow Disposal Co., Inc.
I. RB Holt, Inc.
U. Robert's Waste and Recycling, Inc.
V. Southern California Environmental, Inc.
W. Tim Greenleaf Engineering Inc.
X. The Lane Company
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Y. Tight Quarters, Inc.
Z. United Pacific Waste
aa. Universal Bobcat & Hauling, Inc.
bb. Universal Waste Systems, Inc.
cc. Ware Disposal, Inc.
dd. Waste Management Collection & Recycling, Inc. dba Waste Management
of OC
Section 2: Franchisees' right to use City's public streets, ways, alleys and
places for the purposes set forth in this ordinance, is not exclusive and the City reserves
the right to grant a similar use of public streets, ways, alleys and places to any person at
any time during the term of this Franchise.
Section 3: Franchisees shall comply with and shall be bound by all terms,
provisions and conditions contained in the City Charter, Resolution No. 2017-60, this
ordinance, NBMC Chapter 12.63 and the Model Agreement Template for Non -Exclusive
Solid Waste Franchises ("Agreement"), attached hereto and hereby adopted, approved
and incorporated into this ordinance by reference.
Section 4: A Franchise granted under this ordinance shall take effect on
November 9, 2017, and shall expire November 8, 2024, unless terminated earlier
pursuant to the Agreement. Notwithstanding the effective date above, a Franchise
granted by this ordinance shall not become effective unless and until the Franchisee
files written acceptance of the Franchise with the City Clerk, and delivers to the City all
bonds and insurance policies required to be furnished in accordance with the
requirements of NBMC Chapter 12.63 and the Agreement. The written acceptance
shall be in form and substance as prescribed by the City Attorney and shall operate as
an acceptance of each and every term, condition and limitation contained in this
ordinance, the Agreement, Article XIII of the City Charter, City Resolution No. 2017-60,
and NBMC Chapter 12.63. A Franchisee shall file written acceptance of the Franchise
no later than ten (10) days after the adoption of this ordinance.
Section 5: During the term of the Agreement, Franchisee shall pay to City
franchise fees for the privilege of providing commercial solid waste handling services in
the City of Newport Beach and use of public streets, ways, alleys and places for such
purposes. Franchise fee payments shall be paid quarterly and shall be computed and
paid on the basis of paid receipts received by the Franchisee for all Commercial Solid
Waste Handling Services provided by the Franchisee within the City. Franchise fees
shall total sixteen percent (16%) of Franchisee's gross receipts as follows:
(a) Franchisee shall pay to the City ten and one-half percent (10.5%) of
the Franchisee's gross receipts, of which one-half of one percent (0.5%) shall be
attributable to the maintenance and implementation of the City's Source Reduction and
Recycling Element.
(b) Franchisee shall pay to the City Environmental Liability Fund five
and one-half percent (5.5%) of Franchisee's gross receipts.
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Section 6: The City Council authorizes the Mayor and City Clerk to execute
the attached Model Agreement Template for Non -Exclusive Solid Waste Franchises
with the Franchisees in substantially the same form as the attached.
Section 7: The City Council of the City of Newport Beach finds that this
ordinance is categorically exempt from the California Environmental Quality Act
("CEQA") under California Code of Regulations Section 15301 and 15308, which
exempts "existing operations and facilities" and "actions by regulatory agencies for
protection of the environment." Use of this CEQA exemption is appropriate because
neither this ordinance nor the Agreement changes or expands existing solid waste
operations and facilities within the City. This ordinance is also consistent with the goals
of California State Assembly Bills 939, 341, and 1826, The California Solid Waste
Management Act as well as the objectives of the City's Source Reduction and Recycling
Element.
Section 8: If any section, subsection, sentence, clause or phrase of this
ordinance is, for any reason, held to be invalid or unconstitutional, such decision shall
not affect the validity or constitutionality of the remaining portions of this ordinance. The
City Council hereby declares that it would have passed this ordinance, and each
section, subsection, sentence, clause or phrase thereof, irrespective of the fact that any
one or more sections, subsections, sentences, clauses, or phrases be declared invalid
or unconstitutional.
Section 9: The recitals provided above are true and correct and are
incorporated into the substantive portion of this ordinance.
Section 10: The Mayor shall sign and the City Clerk shall attest to the passage
of this ordinance. The City Clerk shall cause this ordinance, or a summary thereof, to
be published pursuant to City Charter Section 414. This ordinance shall be effective
thirty (30) calendar days after its adoption.
This ordinance was introduced at a regular meeting of the City Council of the City
of Newport Beach, held on the 26th day of September, 2017, and adopted on the 10th
day of October, 2017, by the following vote to -wit:
AYES, COUNCILMEMBERS
NOES, COUNCILMEMBERS
ABSENT COUNCILMEMBERS
0
M-1
MA
KEVIN MULDOON
ATTEST:
LEILANI I. BROWN, CITY CLERK
APPROVED AS TO FORM:
CITY ATTORNEY'S OFFICE
qv
AARON C. , CITY ATTORNEY
Attachment: Model Agreement Template for Non -Exclusive Solid Waste Franchises
Ord
NON-EXCLUSIVE FRANCHISE AGREEMENT BETWEEN THE CITY OF
NEWPORT BEACH AND FOR COMMERCIAL SOLID
WASTE HANDLING SERVICES
This Non-exclusive Franchise Agreement for Commercial Solid Waste Handling
Services ("Agreement') is entered into this _ day of November, 2017 ("Effective Date")
by and between the City of Newport Beach, a California municipal corporation and charter
city organized and existing under the laws of the State of California ("City"), and
, a (insert name and type of business entity e.g.
corporation, LLC, partnership] ("Franchisee"), whose address is
and is made with
reference to the following:
RECITALS
This Agreement is entered into on the basis of the following facts:
A. Assembly Bill ("AB") 939 (the California Integrated Solid Waste
Management Act of 1989, hereinafter the "Act"; Public Resources Code Sections 40000
at seq.) requires the City to divert from landfill disposal a minimum of fifty percent (50%)
of all municipal solid waste generated within the City.
B. In 2011, the Act was amended by AB 341 to establish a statewide goal of
diverting from landfills seventy-five percent (75%) of all municipal solid waste by 2020
and required the City, on or before July 1, 2012, to provide a commercial recycling
program.
C. AB 341 also requires all businesses generating more than four (4) cubic
yards per week of commercial municipal solid waste and all multifamily dwellings of five
(5) units or more to arrange for recycling services by July 1, 2012.
D. In 2014, the Act was further amended by AB 1826 to require the City, on or
before January 1, 2016, to provide a diversion program for collection and diversion of
food scraps and green waste.
E. AB 1826 also requires commercial generators of certain quantities of food
scraps and green waste to participate in a diversion program between April 1, 2016 and
January 1, 2019, depending on the quantity of waste generated. Additional smaller
commercial generators may be required by CalRecycle to participate on or after January
1, 2020.
F. The City has received written notification from CalRecycle of its intention to
enforce the deadlines for implementation of AB 341 and AB 1826 programs within the
City as required by the Act; therefore, it is important that Franchisee implement and
maintain successful AB 341 an AB 1826 diversion programs for all commercial customers
as required by the Act, to the satisfaction of both the City and CalRecycle.
M
G. Pursuant to Article XIII of the City Charter, Code Chapter 12.63, and Public
Resources Code Sections 40059, 49300, and 49500 through 49523, or any successor
statutes, the City is authorized to enter into non-exclusive franchise agreements for
commercial solid waste handling services.
H. Pursuant to Code Chapter 12.63, Franchisee has filed a franchise
application with the City.
I. City has reviewed Franchisee's application and Franchisee has
represented it is capable of providing collection services for commercial recyclable
materials, food scraps, green waste, municipal solid waste, and/or construction and
demolition debris in the City.
J. Pursuant to this Agreement, City desires to authorize Franchisee to provide
those non-exclusive commercial collection, transportation, delivery, and disposal or
diversion services for recyclable materials, food scraps, green waste, construction and
demolition debris, and municipal solid waste, as requested in Franchisee's application
and for which Franchisee has demonstrated capability.
K. The City Council has determined that this grant of a non-exclusive franchise
is in the public interest.
NOW, THEREFORE, the City and Franchisee do hereby agree as follows:
SECTION 1. GRANT OF FRANCHISE
A. By Ordinance No. 2017-_, City has granted to Franchisee a non-
exclusive Franchise authorizing Franchisee to provide Commercial Solid Waste Handling
Services within all or any part of the City and to use the public streets and public right-of-
ways for such purpose. Franchisee acknowledges that the Franchise is not exclusive
and that the Franchise is subject to the all provisions of applicable law, including, but not
limited to, Article XIII of the City Charter, Ordinance No. 2017-_, Code Chapter 12.63,
and the terms and conditions of this Agreement.
B. Upon the Effective Date of this Agreement, the parties agree that any prior
authorization relating to the provision of Commercial Solid Waste Handling Services
within all or any part of the City arising under and pursuant to any prior franchise issued
to Franchisee shall be deemed to be terminated and of no further force or effect.
SECTION 2. TERM OF FRANCHISE
This Agreement shall commence on the Effective Date, and shall terminate on the
Termination Date, unless terminated earlier as set forth herein.
SECTION 3. DEFINITIONS
"Act" means the California Integrated Waste Management Act of 1989 (Public
Resources Code Sections 40000, et seq.) as amended and as implemented by
Non-exclusive Franchise Agreement Page 2
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regulations of CalRecycle (or its successor agency) and the Air Resources Board (or its
successor agency).
"Alternative Daily Cover' or "ADC" means cover material other than earthen
material placed on the surface of the active face of a Municipal Solid Waste Landfill at the
end of each operating day to control vectors, flies, fires, odors, blowing litter and
scavenging. Prior to 2014, Green Waste was included in the list of CalRecycle-approved
ADC materials and use of Green Waste for this purpose was counted as "Diversion" for
purposes of the Act. AB 1594, passed and signed into law in 2014, phases out the use
of Green Waste as ADC effective January 1, 2020. As of January 1, 2020, no Green
Waste Collected within the City shall be used as ADC and Green Waste must be diverted
for processing such as mulching, Composting, as feedstock for Anaerobic Digestion or
other CalRecycle-approved means that counts as Diversion.
"Anaerobic Digestate" or "Digestate" means the material left at the conclusion of a
biological process that decomposes organic matter in an enclosed environment with little
or no oxygen, resulting in a biogas and a liquid/solid stream called Digestate (CCR
Section 17896.2(a)(6)). Any Digestate created from Green Waste, Food Scraps or other
organic materials Collected within the City must be further processed at a permitted
Composting Facility or utilized in another manner that is fully permitted and approved by
all federal, state and local regulatory agencies, including but not limited to CalRecycle,
and that is considered as "Diversion" by CalRecycle for purposes of the Act.
"Anaerobic Digestion" means a biological process that decomposes organic matter
in an environment with little or no oxygen, resulting in a biogas and a liquid/solid stream
called Anaerobic Digestate. Such activity takes place at an "Anaerobic Digestion Facility."
"Bin(s)" means open top rectangular containers with wheels, with attached plastic
or metal lids, used for storage of Municipal Solid Waste, Recyclable Materials, Green
Waste, Food Scraps, Construction and Demolition Debris or other materials that are
Collected by Franchisees or other Persons authorized to Collect and transport such
materials within City.
"Biomass Conversion Facility" means a facility which uses the controlled
combustion of the following materials (when separated from Municipal Solid Waste) to
produce electricity or heat: (1) agricultural crop residues; (2) bard, law, yard or garden
clippings (Green Waste); (3) leaves, silviculture residue, tree and brush prunings; (4)
wood, wood chips and wood waste; or (5) non:Recyclable pulp or non -Recyclable paper
(collectively, 'Biomass Conversion"). Such a facility must exclusively burn biomass
materials listed herein, comply with all applicable federal, state and local air quality laws
and regulations, and test its residue (ash) regularly as required by state law and
regulations. If the ash is found to be hazardous, the facility must deliver that ash residue
to a Class I Hazardous Waste facility. A biomass facility may bum petroleum coke or
natural gas solely for the purpose of maintaining a particular temperature level, if so
permitted by federal, state and local laws. Processing of any materials Collected within
the City at a Biomass Conversion Facility shall only be allowed if: (a) said facility meets
all of the above requirements and all otherfederal, state and local laws and requirements;
Non-exclusive Franchise Agreement Page 3
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and (b) only if such processing is allowed to count as "Diversion" by CalRecycle for
purposes of the Act.
"CalRecycle" means the California Department of Resources Recycling and
Recovery, the successor agency to the former California Integrated Waste Management
Board.
"Can" means a receptacle for Municipal Solid Waste, Recyclable Materials, Green
Waste, Food Scraps or wood provided by the Customer and Collected using manual
(instead of automated) means of Collection.
"Cart" means a plastic wheeled Container with a hinged lid used to store Municipal
Solid Waste, Recyclable Materials, Green Waste or Food Scraps that is Collected by an
automated or semi -automated vehicle.
"CERCLA" means the Comprehensive Environmental Response, Compensation
and Liability Act of 1980 (42 USC §9601 et seq.).
"City Council" means the City Council of the City of Newport Beach.
"City Manager," "Municipal Operations Director," "Finance Director," and 'Public
Works Director" mean the City Manager, Municipal Operations Director, Finance Director
and Public Works Director of the City or their designee.
Clean Materials Recovery Facility ("Clean MRF") means a materials recovery
facility ("MRF"), or that portion of a MRF, that processes Recyclable Materials that have
been separated from Municipal Solid Waste such as Single Material Recyclables and
Single Stream Recyclable Materials, containing no more than the maximum Residue or
contamination allowed by CalRecycle (10% Residue).
"Code" means the Newport Beach Municipal Code.
"Collect" or "Collection" means taking physical possession of Commercial Solid
Waste, or other materials, from Customers and transporting such materials by means of
a motor vehicle, or other means, to a MRF, Compost Facility, other Organics Processing
Facility, Construction and Demolition Debris Processing Facility, transfer station or
Landfill.
"Commercial Solid Waste" means Municipal Solid Waste, Recyclable Materials,
Green Waste, Food Scraps and Construction and Demolition Debris.
"Commercial Solid Waste Handling Services" means the services provided by
Franchisees pursuant to the terms and conditions of the Franchise and includes the
Collection, transportation, storage, transfer, Disposal, Diversion and/or Processing of
Municipal Solid Waste, Recyclable Materials, Green Waste, Food Scraps and/or
Construction and Demolition Debris by private solid waste enterprises, and includes,
without limitation, the placement of Commercial Solid Waste Containers on public
property.
Non-exclusive Franchise Agreement Page 4
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"Commercial Premises" means all occupied real property in the City used for
commercial purposes and not used for dwelling houses including, without limitation,
wholesale or retail establishments, restaurants, other food establishments, bars, stores,
shops, offices, mechanized manufacturing facilities, repair, research and development or
professional services, sports or recreational facilities, industrial facilities, and construction
and demolition sites; but shall not include property occupied by governmental agencies
or schools that do not consent to their inclusion or residential premises that receive
Commercial Solid Waste Handling Services. For purposes of the implementation of the
Diversion programs, reporting requirements, and the percentage Diversion requirements,
"Commercial Tons" shall include only Tons Collected from Commercial Premises in Carts
and Bins and shall not include any Tons Collected from Multifamily Containers. Tons
Collected from Multifamily Containers shall be reported separately.
"Compactor' means an enclosed rectangular or square metal container containing
a ramrod to condense and compress the contents, and is typically used to store Municipal
Solid Waste, Green Waste, Recyclable Materials, Food Scraps or Construction and
Demolition Debris. Compactors may be small (3 or 4 cubic yards) for use on smaller
Commercial Premises or large (10, 20, 30 or cubic yards) for use at large Commercial
Premises such as supermarkets, hotels, and large retail stores or at construction sites. A
special Roll Off vehicle equipped with hooks and a winch to pull the Compactor on to the
railed bed of the vehicle is used to Collect Compactors and transport them to a Landfill or
to a Processing Facility.
"Compost" means the product resulting from the controlled biological
decomposition of organic wastes which are separated from the Municipal Solid Waste
stream at the point of generation and includes Food Scraps, Green Waste, and wood that
are not hazardous wastes.
"Compost Facility" means a facility that processes one (1) or more of the following:
Food Scraps, Green Waste, wood and food -soiled fiber such as paper napkins and paper
towels, by means of outdoorwindrow composting, aerated static pile composting, covered
composting, vermiculture or other outdoor composting methods or covered composting
with use of either finished compost or fiber, synthetic or other type(s) of cover(s) applied
to the compost piles.
"Composting" means the controlled microbial degradation of organic materials
yielding a safe and nuisance -free finished product called Compost, a soil amendment
suitable for incorporating into topsoil and for growing plants.
"Construction and Demolition Debris" means all inert material of every nature,
description or kind, which has resulted from the building or demolition of a structure,
pavements, sidewalks, curbs, gutters and other concrete structures, including all lumber
scraps, shingles, plaster, sheetrock, packaging, rubble, brick, stone, concrete, asphalt,
dirt, rock and other building material. A facility that accepts Construction and Demolition
Debris for separation and further processing to prepare materials for sale or re -use (such
as removing nails and screws from wood, or grinding of concrete and asphalt) and then
Non-exclusive Franchise Agreement Page 5
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markets the materials for re -use is a "Construction and Demolition Debris Processing
Facility."
"Container(s)" means any object designed and used to hold or store Municipal
Solid Waste, Recyclable Materials, Food Scraps, Green Waste, or Construction and
Demolition Debris to be Collected by Franchisees. Containers include Carts, Bins, open
top Roll Off Boxes, and Compactors.
"Contamination" means materials that are not specified for Collection in particular
Containers or for processing at either a Clean MRF or a Dirty MRF, which would either
interfere with such processing and/or reduce the quality and value of the Recovered
Materials. For example, for purposes of Collection, metals and plastics would constitute
"Contamination" if placed in a Food Scrap Container and tree trimmings would constitute
"Contamination" if placed in a Recyclable Materials Containers.
"Customer" means the owner, occupant, manager or user of premises at which
Municipal Solid Waste, Recyclable Materials, Green Waste, Food Scraps or Construction
and Demolition Debris are generated who requests and receives Commercial Solid Waste
Handling Services from one or more Franchisees. In the event a business, non-
residential property, Multifamily Dwelling or Commercial Premises shares Containers
and/or Commercial Solid Waste Handling Services, "Customer" refers only to the entity
that arranges and pays for such service(s).
Dirty Materials Recovery Facility ("Dirty MRF') means a facility, or that certain
portion of a facility, that processes Processable Municipal Solid Waste to separate
Recyclable Materials, Green Waste, wood, Construction and Demolition Debris and other
Divertable materials for sale to end users. Franchisees shall not utilize any Dirty MRF
that has not been approved by City and that does not meet the standards and
requirements of Public Resources Code Section 42649 and all subsequent amendments,
rules, and regulations promulgated in furtherance thereof requiring a Dirty MRF to be a
source -separated comparable MRF.
"Disposal" means the final disposition of solid waste of Municipal Solid Waste at a
permitted landfill or transformation at a permitted facility, as transformation is defined and
limited by the Act other permitted solid waste disposal facility.
"Diversion" or "Divert" means any combination of Recycling, sorting, Composting
and other processing activities conducted at a Clean MRF, a Dirty MRF, a Compost
Facility, an Anaerobic Digestion Facility, a Biomass Conversion Facility, other organics
Processing Facility and a Construction and Demolition Debris Processing Facility in order
to use or market the materials for re -use, remanufacture, reconstitution or otherwise
return the materials to the economic marketplace and to prevent the materials from being
Disposed in a Landfill.
"Diversion Programs" and "Diversion Services" mean Recyclable Materials
Collection, Green Waste Collection, Food Scraps Collection, Processable Municipal Solid
Waste Collection, wood Collection, Construction and Demolition Debris Collection and
subsequent processing of the Collected materials at a Clean MRF, a Dirty MRF, a
Non-exclusive Franchise Agreement Page 6
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Compost Facility, an Anaerobic Digestion Facility, a facility creating Engineered
Feedstock for digestion at a wastewater treatment plant, a Biomass Conversion Facility,
a Construction and Demolition Debris Processing Facility and all other programs operated
by Franchisees, the City, Residents, Customers or other Persons that have the effect of
Diverting Municipal Solid Waste from Landfill Disposal. Diversion Programs includes, but
is not limited to, all of the programs included in the City's SRRE and all of the programs
included in this Agreement.
"Effective Date" means the date upon which this Agreement is effective as set forth
in the first paragraph of this Agreement.
"Engineered Feedstock" means a mixture of materials utilized in wastewater
treatment plants to produce biogas. Engineered Feedstock may include organic materials
such as Food Scraps from households and Commercial Premises or other organic
materials from industries that have been pre-treated and liquefied to the required
consistency the reduction or elimination of municipal solid waste, recyclable materials,
food scrap, green waste, and construction and demolition debris from disposal.
"Environmental Laws" means any and all present and future federal, state or local
laws (whether common law, statute, rule, regulation or otherwise), permits, orders and
any other requirements of Governmental Authorities relating to the environment or any
"Hazardous Substance" or "Hazardous Substance Activity" as defined herein, including,
without limitation, the Comprehensive Environmental Response, Compensation and
Liability Act of 1980 (42 U.S.C. Sections 9601 et seq.) as amended from time to time and
the applicable provisions of the California Health and Safety Code and California Water
Code.
"Food Scraps" means material resulting from the production, processing,
preparation or cooking of food for human consumption that is separated from Municipal
Solid Waste. Food scraps include surplus or unsold edible food, raw food left over after
food preparation, leftover cooked food, as well as spoiled food such as vegetables and
culls, and plate scrapings. Food scraps includes food -soiled paper that is mixed in with
the food scraps. "Food Scraps are Collected and transported to Food Scrap Processing
Facilities which include Compost Facilities, Anaerobic Digestion Facilities, Biomass
Conversion Facilities, and Wastewater Treatment Plants utilizing Engineered Feedstock.
"Food Soiled Paper" means paper towels, tissue products, paper napkins, paper
plates and cups, coffee filters, tea bags, waxed paper, butcher paper, paper take-out
boxes and containers, greasy pizza boxes, paper bags, cardboard and wax -coated
cardboard produce boxes that are Contaminated with Food Scraps. Food Soiled Paper
does not include polystyrene, aluminum foil, foil -lined wrap or diapers.
"Franchise" or "Franchise Agreement' means an agreement between the City and
a Franchisee, granted pursuant to Agreement Section 1(A), providing Franchisee the
right, for a specified period of time and pursuant to Article XIII of the City Charter, the
Code, and the terms and conditions of this Agreement, to provide Commercial Solid
Waste Handling Services to Commercial Premises and Multifamily Dwellings within all or
any part of the City of Newport Beach and to use the public streets and public right -of -
Non -exclusive Franchise Agreement Page 7
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ways for such purpose. Throughout this Agreement, the terms "Agreement" and
"Franchise" may be used interchangeably unless otherwise specified or the context
requires otherwise.
"Franchisee" means the individual or business entity identified as "Franchisee" on
the signature page of this Agreement.
"Franchise Fee" means the fee or assessment imposed by the City on a
Franchisee, which among other things, is intended to offset the City's expenses related
to the administration of the Franchise Agreement, the Integrated Waste Management
Program, the maintenance and implementation of the City's Source Reduction and
Recycling Element, compliance with the California Integrated Waste Management Act, to
compensate the City for damages to its streets, sidewalks, curbs and gutters and other
infrastructure resulting from the Franchisee's exercise of its rights under the franchise,
City's reporting requirements and other related expenses.
"Generator" means a resident, an owner or responsible party for a Multifamily
Dwelling, Commercial Premises, or business that Generates Municipal Solid Waste,
Recyclable Materials, Green Waste, Food Scraps and/or Construction and Demolition
Debris as a result of its business, commercial facility or property activity. Generator may
also include tenants, property managers for facilities with leased space, employees and
contractors of Generator.
"Generate" means to bring into existence or create, or to use, maintain, or possess
an item, material or product, the result of which such creation, bringing into existence,
use, maintenance or possession is that the item, material or product first becomes, or is
converted transformed, evolved or deemed as Municipal Solid Waste, Recyclable
Materials, Food Scraps, Green Waste or Construction and Demolition Debris.
"Green Waste" means any debris that is composed of organic material or plantlike
matter, which is a result of seasonal variations, landscape or gardening activities. Green
Waste includes, without limitation, grass clippings, leaves, shrubs, trees, branches,
stumps, flowers, plant stalks and non -hazardous wood. Green Waste does not include
Food Scraps.
"Gross Receipts" means all money, whether paid by cash, check, debit or credit,
or other consideration collected from Customers by Franchisee that relates in any way to
Commercial Solid Waste Handling Services provided by Franchisee to Customers,
whether or not such services occur wholly or partially within the City, including, but not
limited to, Collection, processing, removal, marketing and Diversion of Recyclable
Materials, Green Waste, Food Scraps, Processable Municipal Solid Waste and
Construction and Demolition Debris and Disposal of Non-Processable Municipal Solid
Waste, Industrial Waste, trash, litter, as well as fuel surcharges. Gross receipts shall also
include all money received by any Person other than the Franchisee, where the money
was paid to the Person to avoid the Franchisee's obligations under this chapter andlor
the Franchise. Gross Receipts shall not include (or if included there shall be deducted,
but only to the extent they have been included) the following: (1) if any sales taxes are
levied on the Franchisee's Commercial Solid Waste Handling Services in the City, the
Non-exclusive Franchise Agreement Page 8
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amount of State sales taxes collected in connection with Franchisee's provision of such
services in the City and remitted to the State pursuant to State law; (2) the amount of
documented bad debt write-offs due to uncollectible accounts for Franchisee's
Commercial Solid Waste Handling Services in the City, not to exceed three percent (3%)
of Gross Receipts; and (3) revenues collected for Franchisee's Commercial Solid Waste
Handling Services provided to the City through a written contract.
"Hazardous Waste" or "Hazardous Substance" means any (a) chemical,
compound, material, mixture or substance that is now or hereinafter defined or listed in,
or otherwise classified pursuant to any Environmental Law as a "hazardous substance,"
"hazardous material," "hazardous waste," "extremely hazardous waste," "infectious
waste," toxic waste," "toxic pollutant," or any other formulation intended to define, list or
classify substances by reason of deleterious properties or effect and (b) petroleum,
petroleum by-products, natural gas, natural gas liquids, liquefied natural gas, synthetic
gas usable for fuel (or mixtures of natural gas in such synthetic gas), ash, Municipal Solid
Waste, steam, drilling fluids, produced waters and other wastes associated with the
exploration, development and production of crude oil, natural gas or geothermal
resources.
"Industrial Waste" means solid waste originating from mechanized manufacturing
facilities, factories, refineries, construction and demolition projects, publicly operated
treatment works, or solid waste placed in Commercial Solid Waste containers excluding
hazardous waste.
"Landfill" means a fully permitted disposal site that accepts Municipal Solid Waste
that is in compliance with all Federal, State and local laws, regulations and permits
conditions at the time Municipal Solid Waste is delivered and unloaded at the disposal
site.
"Multifamily Dwelling" mean housing projects containing or consisting of five (5) or
more units, whether apartment houses, condominiums, townhomes, or mixed use
projects, mixed use condominiums and rental housing, which use centralized Commercial
Solid Waste Containers (including Bins, Carts and/or Compactors) for storage of
Municipal Solid Waste, Recyclable Materials, Green Waste and/or Food Scraps.
Multifamily Dwelling does not include single family residences, duplexes, tri-plexes or
four-plexes that receive individual Collection services for Municipal Solid Waste,
Recyclable Materials, Green Waste andlor Food Scraps stored in wheeled carts. For
purposes of the implementation of the Diversion programs, reporting requirements, and
the percentage Diversion requirements, "Commercial Tons" shall include only Tons
Collected from Multifamily Dwellings in Carts, Bins, Compactors or Roll Off Boxes and
shall not include any Tons Collected from Containers Collected from Commercial
Premises. Tons Collected from Containers Collected from Commercial Premises shall
be reported separately.
"Municipal Solid Waste" means all Processable Municipal Solid Waste and all Non-
Processable Municipal Solid Waste, putrescible and nonputrescible solid and semisolid
wastes, Generated in or upon, related to the occupancy of, remaining in or emanating
from residential, commercial, and/or industrial premises, including, but not limited to,
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garbage, trash, refuse, rubbish, ashes, Industrial Waste, discarded home and industrial
appliances, manure, vegetable or animal solid or semisolid wastes, and other solid and
semisolid wastes. Municipal Solid Waste excludes Recyclable Materials, Green Waste,
Food Scraps, Construction and Demolition Debris, liquid wastes, abandoned vehicles and
hazardous, biohazardous and biomedical wastes.
"Non-Processable Municipal Solid Waste" means putrescible and non-putrescible
solid and semi-solid wastes Generated in or upon, related to the occupancy of, remaining
or emanating from residential, Commercial, and/or industrial premises, that has been
segregated or separated from Recyclable Materials, Food Scraps, Green Waste, wood
and/or Construction and Demolition Debris such that the remaining constituents in the
Nan-Processable Municipal Solid Waste (such as broken glass, diapers, ashes, Industrial
Waste, discarded Bulky Goods that cannot be re -used or dismantled for Recycling,
manure, vegetable or animal solid or semi-solid wastes that remain after segregation of
Food Scraps and Green Waste) cannot be diverted by reasonable economic or
technologically available means. Non-Processable Municipal Solid Waste does not
include Recyclable Materials, Green Waste, Food Scraps, wood, Construction and
Demolition Debris, Bulky Goods or other materials that have been segregated for
Diversion; liquid wastes; low level radioactive waste regulated under California Health
and Safety Code Sections 20015, etseq.; abandoned vehicles and auto parts; hazardous,
biohazardous and biomedical wastes.
"Person" means an individual, firm, association, organization, partnership,
corporation, business trust, joint venture, limited liability company, the United States, the
State of California; the County, municipality, special purpose district or any other business
entity whatsoever.
"Processable Municipal Solid Waste" means putrescible and non-putrescible solid
and semi-solid wastes Generated in or upon, related to the occupancy of, remaining or
emanating from residential, Commercial, and/or industrial premises that can be sorted at
a Dirty MRF to separate any divertable materials contained therein for Recycling.
Processable Municipal Solid Waste may also contain non-divertable constituents
including but not limited to, broken glass, diapers, ashes, Industrial Waste, discarded
Bulky Goods that cannot be re -used or dismantled for Recycling, manure, vegetable or
animal solid or semi-solid wastes that remain after segregation of Food Scraps and Green
Waste, which cannot be separated or sorted out of the Processable Municipal Solid
Waste by reasonable economic or technologically available means.
"Processing Facility/Facilities" means a facility or facilities where the following
activities are conducted: sorting, cleaning, treating, Composting and reconstituting
Collected materials and returning these materials to the economic mainstream in the form
of raw materials for new, reused or reconstituted products which meet the quality
standards of the market place (activities are herein collectively defined as "Processing").
Processing Facilities include Materials Recovery Facilities (both Clean and Dirty MRF's
as defined herein), Composting Facilities, Anaerobic Digestion Facilities, Wastewater
Treatment Plants, Construction and Demolition Debris sorting facilities, Biomass
Conversion Facilities, and concrete and asphalt grinding facilities. Processing Facilities
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do not include waste -to -energy, thermal destruction or any type of Transformation
facilities.
"Recycle/Recycling" means the process of collecting, sorting, cleansing, treating,
and reconstituting materials that would otherwise become Non-Processable Municipal
Solid Waste, and returning them to the economic mainstream in the form of raw materials
for new, reused, or reconstituted products which meet the quality standards used in the
marketplace. Recycling does not include Transformation.
"Recycling Facility" means a Recycling Materials Recovery Facility (either a Clean
or Dirty MRF), a Construction and Demolition Debris sorting facility or a re -use facility that
is fully permitted and operating in compliance with federal, state and local laws and
regulations and includes Recycling Facilities that receive, process, and market
Recyclable Materials that have been source separated by the Generator or segregated
from Processable Municipal Solid Waste, such as Single -Material Recyclables and Single
Stream Recyclable Materials. The Recycling Facility may be located at a landfill.
"Recyclable Materials" means items in the solid waste stream which can be reused
or processed into a form suitable for reuse consistent with the requirements of State law
(i.e., AB 939). Recyclable materials include, but are not limited to, aluminum and tin cans,
glass bottles, plastic bottles, plastic containers, newspaper, paper, printed materials,
paper containers, cardboard and textiles.
"Recycling Requirements" means the obligations imposed by or upon the City
pursuant to State, Federal and local law, ordinance, resolution, policy, plan or program
relative to Recycling all, or a portion, of the Municipal Solid Waste generated within the
City including, without limitation, State mandates to Divert fifty percent (50%) of the
Municipal Solid Waste Generated within the City, achievement of the per capita Diversion
requirements in the Act, and the provision of City -approved Recycling services to all
Customers. Recycling Requirements includes future changes to the Act that may require
the City to Divert higher percentages of Municipal Solid Waste Generated within the City
and/or to provide additional and/or enhanced or expanded Diversion Programs.
'Residue' means the Non-Processable Municipal Solid Waste destined for
Disposal in a Landfill, which remains after processing at a Processing Facility has taken
place. Residue does not include Anaerobic Digestate. The percent of Residue is
calculated by dividing the weight of the Residue by the weight of the total materials
delivered for processing at the facility. State law and regulations govern the allowable
amount of Residue that can be Generated by a Processing Facility. Franchisees shall
not utilize Processing Facilities that exceed State -required maximum Residue Generation
rates for any materials Collected within the City.
'Responsible Party' means the individual or entity responsible for the Generator's
management of solid waste and/or Recycling at the Generator's commercial premises,
business, or non-residential property.
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"Roll Off Boxes" means large open top rectangular metal Containers used to store
and transport Municipal Solid Waste, Recyclable Materials, Green Waste, Construction
and Demolition Debris or other materials.
"Single Material Recyclables" means those Recyclable Materials which satisfy
each of the following requirements: (1) have been segregated from Processable
Municipal Solid Waste for separate handling and Diversion by or for the Generator
thereof; (2) have been further segregated or sorted so that various types of Recyclable
Materials, such as glass, metals, paper, cardboard, plastics are not commingled; and (3)
after such segregation, contain no more than five percent (5%) by weight (measured by
each load being transported, Collected and/or Disposed) of any Residue or
Contamination material which cannot be Recycled, Composted or similarly utilized, and
which instead must be Disposed in a Landfill.
"Single Stream Recyclable Materials" or "Single Stream Recyclables" means those
Recyclable Materials collected as separated from Processable Municipal Solid Waste by
the Generator or Customer and consisting of a mixture of metals, glass, plastics #1-7,
and all paper from Residential Premises, Commercial Premises, Multifamily Dwellings
and industrial premises. Single Stream Recyclable Materials are distinguished from
Single -Material Recyclables, which consist of only a single type of material such as
cardboard, separated from other Recyclable Materials.
"Split Bins" means Bins that have a divider down the middle, dividing the Bin into
two (2) separate compartments. Such Bins have separate locking lids for each side of
the Bin that allows the Bin to be emptied one (1) side at a time. The lid on the side of the
Bin that is for storage of Recyclable Materials is designed such that it allows for the
placement of Recyclable Materials in the Bin without unlocking or opening the lid, and yet
does not allow Recyclable Materials to spill out when the.lid is closed and locked for the
emptying of the MSW stored on the opposite side of the Bin.
"SRRE" means the Source Reduction and Recycling Element of the Integrated
Waste Management document for the City prepared and updated pursuant to the
California Public Resources Code.
'Term" means the finite amount of time that commences on the Effective Date and
terminates on the Termination Date.
'Termination Date" means November 8, 2024.
"State" means the State of California.
"Transformation" means incineration, pyrolysis, distillation, or biological conversion
(otherthan Composting) to turn Municipal Solid Waste and/or organic materials into a fuel
used to produce energy (example: waste -to -energy). Transformation does not include
Composting, gasification, Biomass Conversion, or wet or dry Anaerobic Digestion.
"Transformation Facility" the means described herein to turn Municipal Solid Waste
and/or organic materials into a fuel used to produce energy. A Franchisee may only utilize
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UFRJ
Transformation for the quantity of Municipal Solid Waste allowed by CalRecycle to be
counted as Diversion pursuant to the Act, as this may be changed in the future by
legislation or regulations. The Act currently provides that a jurisdiction can only use
Transformation to divert up to ten percent (10%) of the Municipal Solid Waste generated
in the jurisdiction. Therefore, materials collected by a Franchisee and processed at a
Transformation Facility shall be limited to ten percent (10%) of the Non-Processable
Municipal Solid Waste Collected by the Franchisee within City.
"Ton" means a short ton of two -thousand (2,000) pounds avoirdupois.
SECTION 4. FRANCHISE FEES
A. During the Term of this Franchise, Franchisee shall pay to City Franchise
Fees for the privilege of providing Commercial Solid Waste Handling Services in the City
and for the use of public streets, right-of-ways and places for such purposes. The
Franchise Fees that Franchisee shall pay to the City shall total sixteen percent (16%) of
the gross receipts for all Commercial Solid Waste Handling Services provided by
Franchisee in the City as follows:
1. Ten and one-half percent (10.5%) of the Gross Receipts for all
Commercial Solid Waste Handling Services provided by the Franchisee in the City
("Commercial Solid Waste Handling Fee"), of which one half percent (.5%) shall be
attributable to the maintenance and implementation of the City's SRRE, and shall be
separately accounted for, and used only for the costs stated in Public Resources Code
Section 41901 or any successor provision.
2. Five and one-half percent (5.5%) of the Gross Receipts for all
Commercial Solid Waste Handling Services provided by Franchisee in the City shall be
paid into an Environmental Liability Fund, which shall be a separate fund established and
maintained by City ("Environmental Liability Fund Fee"). Hereinafter, Environmental
Liability Fund Fee and Commercial Solid Waste Handling Fee shall be collectively
referred to as "Fees.",
B. City and Franchisee acknowledge the potential environmental liability that
may result from Commercial Solid Waste Handling Services under Federal and State
environmental protection laws and the Public Resources Code. City intends to take
reasonable actions to obtain protection and indemnification against future environmental
liability for Commercial Solid Waste generated within the City and the activities of
Franchisee under this Agreement for handling such Commercial Solid Waste. To provide
protection and indemnification to City for Franchisee's Commercial Solid Waste Handling
Services in the City, Franchisee agrees to collect from its customers an Environmental
Liability Fund Fee for payment into the Environmental Liability Fund. The Environmental
Liability Fund may be used by the City for any expense associated with this Franchise,
including, but not limited to, the purchase of environmental liability insurance and paying
all costs, expenses, and penalties that arise from or in any way relate to liability incurred
by the City as a result of any act, negligence, or omission by the City, Franchisee,
Franchisee Customer, or any of their respective officers, directors, shareholder members,
volunteers, partners, employees, agents, subcontractors, suppliers, representatives or
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affiliates. The Environmental Liability Fund may also be used by the City to pay for any
Disposal, Diversion, or Recycling activity required of the City, Franchisee, or any
Generator under State, Federal or local law. The Fund shall not be commingled with or
included in the City's General Fund.
1. The Fees shall be paid concurrently.
2. Compliance with this Section shall not limit Franchisee's
indemnification as set forth in Agreement Section 10; however, the indemnification
provisions of Agreement Section 10 shall be secondary to the Environmental Liability
Fund established by this Section or any insurance purchased by the Environmental
Liability Fund.
C. The Fees shall be paid on a calendar quarterly basis on forms prescribed
by the Finance Director.
D. All payments shall be made in lawful money of the United States of America
and shall be paid to City in person or by United States' mail, or overnight mail service, at
the Cashier's Office located at 100 Civic Center Drive, P.O. Box 1768, Newport Beach,
California, 92658, or to such other address as City may from time to time designate in
writing to Franchisee. If requested by City, Franchisee shall make payments
electronically (at www.newportbeachca.gov) or by wire transfer (at Franchisee's cost).
Franchisee assumes all risk of loss and responsibility for late charges and delinquency
rates if payments are not timely received by City regardless of the method of transmittal.
E. Franchisee hereby acknowledges that the late payment of Fees or other
sums due hereunder will cause City to incur costs not contemplated by this Agreement,
the exact amount of which is extremely difficult to ascertain. Such costs include, but are
not limited to, processing and accounting charges. Accordingly, any payment of any sum
to be paid by Franchisee not paid within five (5) calendar days of its due date shall be
subject to a ten percent (10%) late charge plus interest on the amount due at the rate of
ten percent (10%) per annum from the date due and payable by the terms of this
Agreement until the same shall be paid. City and Franchisee agree that this late charge
represents a reasonable estimate of such costs and expenses and is fair compensation
to City for its loss suffered by such late payment by Franchisee.
F. With the exception of January 30, 2018, Fees shall be due and payable on
April 30, July 30, October 30 and January 30 of each calendar year of the Term. Any
dates falling on a weekend or holiday may be paid the first business day following the
weekend or holiday. Fees must be received by City, not merely postmarked, by or before
the aforementioned dates.
G. In the event Franchisee believes that it has paid Fees in excess of the Fees
due to City, Franchisee may submit a request for refund to the Finance Director on a form
provided by the Finance Director. If proof of overpayment Is satisfactory to the Finance
Director, the Finance Director shall refund to Franchisee any overpayment. Franchisee
shall not apply any overpayment as a credit against any other amounts payable to City
unless specifically authorized by the Finance Director in writing.
e
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H. Each Franchise Fee and Environmental Liability Fund Fee payment shall
be accompanied by a written statement described in Code Section 12.63.090, or any
successor section, on a form provided by the Finance Director. No statement filed under
this Section shall be conclusive as to the matters set forth in such statement, nor shall the
filing of such statement preclude the City from collecting by appropriate action the sum
that is actually due and payable.
I. Franchisee may separately list the actual Franchise Fee rate and
Environmental Liability Fund Fee rate as established by this Section, and any other fees
required by this Agreement, on its invoices to its customers. In no case may the Franchise
Fee rate or Environmental Liability Fund Fee rate listed by the Franchisee on the invoice
exceed the actual Franchise Fee or Environmental Liability Fund Fee rates imposed by
the City.
SECTION 5. PERFORMANCE BOND/DEPOSIT
A. Prior to the placement of any Container for Commercial Solid Waste
Handling Services on public or private property, Franchisee shall, to ensure compliance
with the duties and obligations imposed by the provisions of the Code, State regulation,
regulations adopted by the City Manager and this Agreement, either: (1) provide City with
a cash deposit ("Deposit"); or (2) obtain, provide and maintain, at its own expense, a
faithful performance bond ("Bond"). The amount of the Deposit and Bond shall be
determined in the Municipal Operations Director's sole and absolute discretion.
B. If Franchisee decides to provide a Bond, the Bond shall be issued by an
insurance organization or surety: (1) currently authorized by the Insurance Commissioner
to transact business of insurance in the State of California; (2) listed as an acceptable
surety in the latest revision of the Federal Register Circular 570; and (3) assigned a
Policyholders' Rating A (or higher) and Financial Size Category Class VII (or larger) in
accordance with the latest edition of Best's Key Rating Guide: Property -Casualty. The
Bond shall be in the form attached hereto as Exhibit 'A" which is incorporated herein by
this reference.
SECTION 6. DIVERSION AND DISPOSAL OF MUNICIPAL SOLID WASTE,
RECYCLABLE MATERIALS, FOOD SCRAP AND GREEN WASTE
A. Franchisee shall comply with all Diversion requirements imposed by law,
ordinance, or regulation on City, Franchisee, and/or any Commercial Premises or
Multifamily Dwelling. On a monthly basis, Franchisee shall Divert a minimum of fifty-five
percent (55%) of all Processable Municipal Solid Waste, Recyclable Materials, Food
Scraps and Green Waste Collected in the City by Franchisee. This Diversion requirement
is separate from and in addition to any Uversion requirements set forth in Agreement
Section 7. In the event new or additional Diversion requirements are imposed by law,
ordinance or regulation on City, Franchisee, and/or any Commercial Premises or
Multifamily Dwelling, the City shall have the right to require Franchisee to Divert additional
Municipal Solid Waste, Recyclable Materials, Food Scraps, and/or Green Waste by
providing Franchisee with thirty (30) calendar days written notice of the new Diversion
requirements. Upon request of the Municipal Operations Director, Franchisee shall
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provide all documents and information requested by the Municipal Operations Director to
prove that Franchisee has complied with this subsection, any applicable law, ordinance,
regulation, or condition related to Recycling and Diversion of Municipal Solid Waste,
Recyclable Materials, Food Scraps and/or Green Waste.
B. Franchisee shall Dispose of all Non-processable Municipal Solid Waste
collected in the City, over which Franchisee has control, in accordance with the Franchise
Hauler Acknowledgment, attached hereto as Exhibit "B" and incorporated herein by
reference. Franchisee hereby accepts and agrees to abide by all terms of the Franchise
Hauler Acknowledgment. If, during the Term of this Agreement, the City's Waste Disposal
Agreement with Orange County expires, lapses, or is terminated, the Franchise Hauler
Acknowledgement shall be null and void and Franchisee shall Dispose of Municipal Solid
Waste Collected in the City only by taking it to a fully permitted Orange County
certified/licensed landfill or to a fully permitted licensed transfer station, which is lawfully
authorized to accept that specific type of solid waste material and has been approved by
the City.
C. Franchisee shall not Dispose of Municipal Solid Waste, Recyclable
Materials, Food Scraps, or Green Waste by depositing it on any land except a permitted
facility, whether public or private, or in any river, stream or other waterway, or in any
sanitary sewer or storm drainage system. Nothing in this Agreement shall be deemed or
construed as authorizing Franchisee to operate a Landfill, Recycling Facility, or other solid
waste disposal facility in the City.
D. If Franchisee violates the terms in Agreement Section 6(A) and/or Section
6(B) above, Franchisee agrees that the City has the future right to direct that all Municipal
Solid Waste, Recyclable Materials, Food Scraps, or Green Waste be delivered to a fully
permitted disposal facility designated by City. This exercise of "flow control" by the City
shall be made upon at least thirty (30) calendar days prior written notice to Franchisee,
and written notice shall include the violation(s) prompting the City's action regarding "flow
control." Failure to comply with the Recycling, Diversion, and/or Disposal requirements
set forth in this Section shall be a material breach of this Agreement.
E. Franchisee shall include as a condition to its contractual agreement with its
Customers a provision prohibiting disposal of Hazardous Waste in any Container.
F. Franchisee shall implement a load check program that includes, at a
minimum, a visual check of all Containers to be emptied to protect against inclusion of
Hazardous Waste and shall prepare a written record of all Hazardous Waste discovered
during the process. The records shall comply with all State and Federal Hazardous Waste
Regulations and shall be maintained for the length of the Term of the Franchise and for
a minimum period of three (3) years, or for any longer period required by law, after the
Extended Termination Date. The records shall be made available to the City in
Franchisee's monthly reports submitted pursuant to Agreement Section 16.
G. This Agreement does not purport to grant Franchisee or City ownership over
materials that Franchisee's Customers discard for pickup by Franchisee or that
Franchisee handles under this Agreement. The right to possession or ownership of those
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materials shall be determined in accordance with law and any agreement between
Franchisee and its Customers, and not as a result of this Agreement. Parties
acknowledge that City has no ownership rights in Recyclable Materials or revenue from
sale thereof, except as provided in this Agreement.
H. City makes no representations or warranties with respect to
characterization of Municipal Solid Waste, Recyclable Materials, Food Scraps, or Green
Waste within City. City expressly disclaims any representations and warranties, either
express or implied, as to the merchantability or fitness of Municipal Solid Waste,
Recyclable Materials, Food Scraps, or Green Waste for any particular purpose.
SECTION 7. DIVERSION OF CONSTRUCTION AND DEMOLITION DEBRIS
A. On a monthly basis, Franchisee shall Divert a minimum of sixty-five percent
(65%) of all Construction and Demolition Debris collected in the City by Franchisee. This
Diversion . requirement shall be in addition to and separate from any Diversion
requirements set forth in Agreement Section 6. If new or additional Diversion
requirements are imposed by law, ordinance or regulation on City, Franchisee, and/or
any Commercial Premises or Multifamily Dwelling, the City shall have the right to require
Franchisee to Divert additional Construction and Demolition Debris by providing
Franchisee with ten (10) calendar days written notice of the new Diversion requirements.
Upon request of the Municipal Operations Director, Franchisee shall provide all
documents and information requested by the Municipal Operations Director to prove that
Franchisee has complied with this subsection, any applicable law, ordinance, regulation,
or condition related to Recycling and Diversion of Construction and Demolition Debris.
B. Franchisee shall Dispose of, or oversee Disposal of, any Construction and
Demolition Debris collected in the City by Franchisee, and not diverted pursuant to
Agreement Section 7(A), in accordance with the Franchise Hauler Acknowledgment,
attached hereto as Exhibit "B." Franchisee hereby accepts and agrees to abide by all
terms of the Franchise Hauler Acknowledgment. If, during the Term of this Agreement,
the City's Waste Disposal Agreement with Orange County expires, lapses or is
terminated, the Franchise Hauler Acknowledgement shall be null and void and
Franchisee shall Dispose of Construction and Demolition Debris collected by Franchisee
in the City only by taking such debris to an Orange County certified/licensed landfill, State
certified/licensed transfer station, State certified/licensed recycling facility or State
certified/licensed materials recovery facility which is lawfully authorized to accept that
specific type of solid waste material. Franchisee shall not dispose of Construction and
Demolition Debris by depositing it on any land except a permitted facility, whether public
or private, or in any river, stream or other waterway, or in any sanitary sewer or storm
drainage system.
C. If Franchisee violates the terms in Agreement Section 7(A) and/or Section
7(B) above, Franchisee agrees that the City has the future right to direct that Construction
and Demolition Debris be delivered to a permitted processing and/or disposal facility
designated by City. This exercise of "flow control" by the City shall be made upon at least
thirty (30) calendar days prior written notice to Franchisee, and written notice shall include
the violation(s) prompting the City's action regarding "flow control." Failure to comply with
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the Recycling, Diversion, and/or Disposal requirements set forth in this Section shall be
a material breach of this Agreement.
D. Franchisee shall include as a condition to its contractual agreement with its
Customers a provision prohibiting disposal of Hazardous Waste in any Container.
E. Franchisee shall implement, or require a third parry to implement, a load
check program that includes, at a minimum, a visual check of all Containers to be emptied
to protect against inclusion of Hazardous Waste and shall prepare a written record of all
Hazardous Waste discovered during the process. The records shall comply with all local,
State and Federal Hazardous Waste regulations, and shall be maintained for the length
of the Term of the Franchise and for a minimum period of three (3) years, or for any longer
period required by law, after the Extended Termination Date, The records shall be made
available to the City upon request.
F. This Agreement does not purport to grant Franchisee or City ownership over
materials that Franchisee's Customers discard for pickup by Franchisee or that
Franchisee handles under this Agreement. The right to possession or ownership of those
materials shall be determined in accordance with law and any agreement between
Franchisee and its customers, and not as a result of this Agreement. Parties
acknowledge that City has no ownership rights in Recyclable Materials or revenue from
sale thereof, except as provided in this Agreement.
G. City makes no representations or warranties with respect to
characterization of Construction and Demolition Debris within City. City expressly
disclaims any representations and warranties, either express or implied, as to the
merchantability or fitness of Construction and Demolition Debris for any particular
purpose.
SECTION 8. FRANCHISEE'S APPLICATION; RECORDS; AUDITS
A. Application. Franchisee shall submit an application to City in substantially
the same form as the template attached hereto as Exhibit "C" and incorporated herein by
reference. Franchisee hereby represents and warrants that all information contained in
the application submitted to City, and any information submitted by Franchisee to City
supplementary thereto, is true and correct and does not contain any untrue statement of
a material fact nor omit a material fact that makes a statement contained therein
misleading.
B. Records. Franchisee shall maintain all records relating to Franchisee's
Commercial Solid Waste Handling Services provided hereunder including, but not limited
to, Customer lists, billing records, accounts payable records, maps, service requests,
cash receipts records, AB 939/341/1826 compliance records, tonnage reports, weight
tickets and invoices from all Landfills, Processing Facilities, and Recycling Facilities
utilized for Commercial Solid Waste collected within City, and all other documents and
materials which reasonably relate to Franchisee's compliance with and performance of
the provisions of this Agreement ("Records"), for the full Term of this Agreement and an
additional period thereafter of not less than three (3) years, or any longer period required
Non-exclusive Franchise Agreement Page 18
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by law. Such Records shall be made available to City at Franchisee's regular place of
business, but in no event outside the County of Orange. All Records shall be clearly
identifiable, and Franchisee shall maintain record security sufficient to preserve records
from destruction or damage from foreseeable events. Data maintained in an electronic
medium shall be protected, and backed up, with a copy stored at a separate site from the
original data.
C. CERCLA Defense Records. City's ability to defend against CERCLA and
related litigation is a matter of great importance. Franchisee shall maintain and preserve
records establishing where Solid Waste Collected in the City was landfilled for the full
Terre of this Agreement and an additional period thereafter of not less than five (5) years,
or any longer period required by law. At any time, including after the expiration of the
Term, Franchisee shall provide copies of such records to City within three (3) business
days of City's request.
D. Inspection; Audit. On an annual or as -needed basis, City shall have the
right, upon five (6) business days advance notice, to inspect Franchisee's Records
and/or conduct, or to contract with an independent auditing firm to perform, an audit, at
City's expense, of Franchisee's Records ("City Audit") to ensure compliance with the
provisions of this Agreement. The City Audit shall include, without limitation, review
and/or copying of Franchisee's cash receipts, books of account, Commercial Solid
Waste tonnage reports, Collection, Disposal and Diversion records, and other related
records, as well as those of each of its parent, subsidiary and/or affiliated companies, as
appropriate. As part of the City Audit, Franchisee's Customer accounts and related
records may be subject to review. While Franchisee will not be required to submit for
copying detailed account records, such as Customer names, Franchisee shall make
such records and information available for review in connection with the City Audit. The
purpose of the City Audit shall be for: (a) verification of the Fees paid by Franchisee
under this Agreement, and the accuracy thereof; (b) verification of the amounts of
Commercial Solid Waste reported as collected, processed, diverted and disposed by
Franchisee pursuant to this Agreement; (c) verification of Recycling/Diversion program
implementation efforts and actions taken by Franchisee pursuant to this Agreement; and
(d) verification of such other information as is reasonably deemed appropriate by the
Municipal Operations Director to evaluate Franchisee's performance hereunder.
E. Reimbursement. Franchisee shall reimburse City for all of City's costs in
performance of an audit if, as a result of the audit, it is determined:
1. There was any intentional misrepresentation by Franchisee with
respect to the amount of Fees due to the City;
2. There is a One Thousand and 001100 Dollars ($1,000.00) or greater
discrepancy in the amount of Fees due to the City.
3. There was any intentional misrepresentation by Franchisee with
respect to Franchisee's Commercial Solid Waste Handling Services and/or Franchisee's
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handling and transportation of Commercial Solid Waste or with regard to any information
provided about Diversion; or
4. There is a discrepancy (whether intentional or not) in the number of
Tons of Municipal Solid Waste, Recyclable Materials, Green Waste, Foods Scraps and/or
Construction and Demolition Debris Collected, Recycled, processed and/or Disposed that
equals or exceeds two percent (2%).
Such reimbursement shall be paid by Franchisee within ten (10) calendar days of
the date City notifies Franchisee in writing that Franchisee is liable to reimburse the City
in conformance with this subsection and the amount of City's audit costs.
SECTION 9. INSURANCE REQUIREMENTS
Without limiting Franchisee's indemnification of City, and prior to commencement
of the Effective Date of this Agreement, Franchisee shall obtain, provide copies to City
and maintain at its own expense during the Term of this Agreement policies of insurance
of the type and amounts described in the Insurance Requirements attached hereto as
Exhibit "D" and incorporated herein by reference.
SECTION 10. RESPONSIBILITY FOR DAMAGES AND INJURY/INDEMNIFICATION
A. Franchisee Responsibility. Franchisee shall be solely responsible for any
damages caused as a result of Franchisee's acts, negligence, or omissions including, but
not limited to, injuries to or death of any person or damage to public and/or private
property and damages to public improvements arising from or as a result of Franchisee's
Commercial Solid Waste Handling Services.
B. General Indemnification. Franchisee shall indemnify, hold harmless, and
defend City, and each of its past, present and future elected officials, officers, employees,
agents, consultants, volunteers, affiliates, assignees, representatives, attorneys,
subsidiaries, and affiliated entities and their respective successors, heirs and assigns
(collectively, "Indemnified Parties') from and against any costs, expenses, damages, and
losses, including actual attorneys' fees ("Losses") of any kind or character to any person
or property arising directly or indirectly from or caused by any of the following: (i) any act,
negligence, or omission of Franchisee or its respective officers, directors, shareholder
members, partners, employees, agents, Franchisee's subcontractors, suppliers,
representatives and affiliates ("Franchisee Representatives"); (ii) Franchisee's or
Franchisee Representative's activities; (iii) any accident or casualty within or arising out
of the performance of Franchisee's Commercial Solid Waste Handling Services under
this Franchise; (iv) any violation or alleged violation of any law, ordinance or statute now
or hereafter enacted arising out of commercial recyclable materials, food scraps, green
waste, construction and demolition debris and/or municipal solid waste handling services
performed pursuant to the Franchise; (v) the negligence or willful misconduct of
Franchisee or any of Franchisee Representatives in the performance of Franchisee's
Commercial Solid Waste Handling Services under the Franchise; and (vi) any breach of
the Franchise.
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Franchisee shall not be required to indemnify, hold harmless and defend the
Indemnified Parties from the sole negligence, active negligence or willful misconduct of
the Indemnified Parties. Nothing in this indemnity shall be construed as authorizing any
award of attorneys' fees in any action on or to enforce the terms of this Agreement. This
indemnity shall apply to all claims and liability regardless of whether any insurance
policies are applicable. The policy limits do not act as a limitation upon the amount of
indemnification to be provided by the Franchisee.
C. Hazardous Substances Indemnification. Franchisee shall indemnify the
Indemnified Parties from and against all claims, actual damages including, but not limited
to, special and consequential damages, natural resource damage, punitive damages,
injuries, costs, response, remediation, and removal costs, losses, demands, debts, liens,
liabilities, causes of action, suits, legal or administrative proceedings, interest, fines,
charges, penalties and expenses attorneys' and expert witness fees and costs incurred
in connection with defending against any of the foregoing or in enforcing this indemnity of
any kind whatsoever paid, incurred or suffered by, or asserted against, the Indemnified
Parties or Franchisee arising directly or indirectly from or caused by any of the following:
(i) the violation of any environmental laws or the failure to clean up and mitigate the
consequences of the spill or release of any Hazardous Substance; and (ii) Franchisee's
activities underthis Agreement concerning any Hazardous Substance at any place where
Franchisee stores or disposes of solid or Hazardous Waste pursuant to this Agreement,
or preceding Agreements between City and Franchisee. The foregoing indemnity is
intended to operate as an agreement pursuant to the Comprehensive Environmental
Response, Compensation and Liability Act (42 U.S.C. Section 9607(e)) and any
amendments thereto, and California Health and Safety Code Section 25364, or any
successor statute, to insure, protect, hold harmless, and indemnify City from liability.
D. AB 939 Indemnification. Franchisee agrees to meet all requirements of
City's SRRE as to the portion of the Commercial Solid Waste stream Collected and/or
handled by Franchisee. Franchisee agrees to protect, defend, indemnify, and hold the
Indemnified Parties harmless against all fines or penalties imposed by the California
Integrated Waste Management Board, CalRecycle, or other entity, arising from the failure
of Franchisee to meet Act Diversion requirements with respect to the portion of the
Commercial Solid Waste stream collected by Franchisee.
E. AB 341 Indemnification. Franchisee agrees to meet all requirements of AB
341, specifically Public Resources Code Section 42649, or any successor statute, as to
portion of the Municipal Solid Waste and Recyclable Materials stream Collected and/or
handled by Franchisee. Franchisee agrees to protect, defend, indemnify, and hold the
Indemnified Parties harmless against all fines or penalties imposed by the California
Integrated Waste Management Board, CalRecycle, or other entity, arising from the failure
of Franchisee to meet AB 341 diversion and recycling requirements with respect to the
Municipal Solid Waste and Recyclable Materials Collected and/or handled by Franchisee.
F. AB 1826 Indemnification. Franchisee agrees to meet all requirements of AB
1826, specifically Public Resources Code Section 42649.82, or any successor statute, as
to the portion of the Food Scraps and Green Waste stream Collected and/or handled by
Franchisee. Franchisee agrees to protect, defend, indemnify, and hold the Indemnified
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Parties harmless against all fines or penalties imposed by the California Integrated Waste
Management Board, CalRecycle, or other entity, arising from the failure of Franchisee to
meet AB 1826 recycling requirements with respect to the Food Scraps and Green Waste
collected and/or handled by Franchisee.
G. Notice. City agrees to give notice to Franchisee when the City receives a
claim for damages or other liability for which Franchisee has provided indemnification
under this Section.
SECTION 11. COMMERCIAL SOLID WASTE COLLECTION SERVICES
A. Authorized Collection Services. Franchisee may only provide those
Commercial Solid Waste Handling Services designated in Franchisee's application, or
any amended application, and for which Franchisee has demonstrated compliance with
Code Section 12.63.050, or any successor section.
B. Frequency of Collection. Franchisee shall collect all Commercial Solid
Waste from Commercial Premises and Multifamily Dwellings on a schedule to be agreed
upon between Franchisee and its Customers, subject to the restrictions set forth in
Agreement Section 11(C); provided, however, that such schedule complies with Code
Subsection 6.04.140 and does not permit the accumulation of Commercial Solid Waste
in quantities that are unreasonable or detrimental to the public health or safety. Requests
for Collection from Customer Premises with overflowing Containers, or from Customer
Premises where there have been missed pickups, shall be serviced within twenty-four
(24) hours of any such request by the Customer or City. Should City receive a Customer
complaint related to or arising from Franchisee's failure to collect Commercial Solid Waste
as provided herein, Franchisee's Collection schedule shall be submitted to the City for
review.
C. Hours and Days of Collections.
1. Franchisee shall not collect Commercial Solid Waste in any area of
the City after 6:30 p.m. and prior to 5:00 a.m.
2. Franchisee shall not Collect Commercial Solid Waste from any
Commercial Premises or Multifamily Dwelling located within five hundred (500) feet of an
occupied residential premise, motel or hotel, nor shall any of Franchisee's Collection
vehicles be operated in any residential areas of the City except between the hours of 7:00
a.m. and 6:30 p.m., Monday through Friday, nor on any Saturday or Sunday, except
between the hours of 8:00 a.m. and 6:00 p.m.
3. Franchisee shall neither operate its Collection vehicles nor Collect
Commercial Solid Waste from any Commercial Premises, governmental facility, or
Multifamily Dwelling located within five hundred (500) feet of a school, community center,
church or other educational facility between the hours of 7:30 a.m. and 9:00 a.m. or 1:00
p.m. and 3:00 p.m., Monday through Friday. The limitations in Agreement Section
11(C)(3) notwithstanding, Franchisee's operation of Collection vehicles on East and West
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Coast Highway, Jamboree Road, MacArthur Boulevard, San Joaquin Hills Road and
Newport Coast Drive shall not be prohibited or limited under this Agreement.
4. Commercial Solid Waste collection on Sundays shall be limited to
Food Scraps and Municipal Solid Waste from Commercial Premises, which require
Collection every day due to public health and safety concerns.
5. At Franchisee's request, the City shall provide maps illustrating the
geographic limitations placed on Franchisee's Collection services pursuant to Agreement
Section 11(C)(3) ("Maps"). City expressly disclaims any liability related to or arising from
the accuracy of any Maps provided by City. City may update the Maps as needed, and
Franchisee's failure to request or secure the Maps, or any updated Maps, shall not relieve
Franchisee of any obligations under this Agreement.
D. Containers. Franchisee shall provide the appropriate sized Containers to
each Customer for storage of the Commercial Solid Waste Collected by Franchisee.
Containers provided by Franchisee must be identified with Franchisee's name and be in
the color identified by Franchisee in Franchisee's application.
SECTION 12. AB 341 RECYCLING PROGRAM FOR COMMERCIAL PREMISES AND
MULTIFAMILY DWELLINGS
A. Recycling Program. The Act requires all owners or responsible parties of
Commercial Premises generating four (4) or more cubic yards of Commercial Solid Waste
per week and all Multifamily Dwellings ("AB 341 Generator") to arrange for Recycling
services by July 1, 2012, The Act requires all cities to provide a commercial Recycling
program for AB 341 Generators on or before July 1, 2012. Franchisee acknowledges
these requirements and agrees that, subject to the restrictions contained in Agreement
Section 11(A), for all AB 341 Generators that contract with or pay Franchisee to haul
Municipal Solid Waste and/or Recyclable Materials, Franchisee shall implement a
recycling program as described and set forth in Exhibit "E," which is incorporated herein
by reference ("Recycling Program").
B. Act Compliance. The parties agree that provision of a Recycling Program,
as set forth in Exhibit "E," is of paramount importance for the City to comply with the Act.
The parties further agree that providing high quality Recycling services, public education
and technical assistance to AB 341 Generators to obtain their participation in AB 341
requirements is essential for Franchisee to implement an effective Recycling Program for
AB 341 Generators. The parties acknowledge that achievement of this requirement is
integral to the City's compliance with the Act and that failure to implement said Recycling
Program may cause City to be non-compliant with the Act and be grounds for termination
of this Agreement.
C. Program Implementation. Within ninety (90) calendar days of either: (1) the
Effective Date of this Agreement; or (2) the date an AB 341 Generator initiates service
with Franchisee to collect or transport Municipal Solid Waste and/or Recyclable Materials,
whichever is earlier, Franchisee shall implement a Recycling Program for said AB 341
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Generator. For purposes of this Section, Franchisee shall be found to have
"Implemented" a Recycling Program only if Franchisee completes all of the following:
1. Franchisee has contacted the AB 341 Generator and explained the
requirements in the Act for the AB 341 Generator to have in place a Recycling Program
as of July 1, 2012.
2. Franchisee has provided the appropriate type(s) and size(s) of
Containers to the AB 341 Generator's premises.
3. Franchisee is collecting the Recyclable Materials from the AB 341
Generator at the frequency of collection needed to adequately service the AB 341
Generator and, at a minimum, is performing services consistent with Agreement Section
11(B).
4. Franchisee has provided public education and training materials to
the AB 341 Generator explaining: (a) the requirements of the Act; (b) the operation of the
Recycling Program; and (c) what materials may be placed in the Recycling container(s).
5. Franchisee has responded to the AB 341 Generator's questions and
to any complaints and has successfully resolved all questions and complaints.
D. Waiver. Franchisee may obtain a waiver from the City with regard to
implementation of a Recycling Program for a specific AB 341 Generator in the event said
generator is already diverting one hundred percent (100%) of Recyclable Materials
generated by the AB 341 Generator using one or more of the following methods:
1. The AB 341 Generator is donating or selling its Recyclable Materials
to a third party.
2. The AB 341 Generator is self -hauling its Recyclable Materials to a
recycler or to a Processing Facility.
3. The AB 341 Generator has subscribed to an AB 341 -compliant
Diversion program through another Franchise hauler in the City.
If AB 341 Generator uses any of the aforementioned diversion methods
Franchisee shall submit a written statement to City describing the type(s) of Recyclable
Materials being diverted by the AB 341 Generator, the number and type of containers
being used, the method of Collection and the ultimate destination to which the Recyclable
Materials are being delivered. Upon the City's verification that the information submitted
by Franchisee meets the requirements for a waiver, the City may grant such waiver.
SECTION 13. AB 1826 FOOD SCRAP DIVERSION PROGRAM FOR COMMERCIAL
PREMISES
A. Food Scrap Diversion Program. The Act requires, on or after January 1,
2017, all owners and responsible parties of Commercial Premises generating four (4) or
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more cubic yards of Food Scraps and/or Green Waste per week to arrange for Recycling
services for those materials. The Act further requires, on or after January 1, 2019, all
owners and responsible parties of Commercial Premises generating four (4) or more
cubic yards of Commercial Solid Waste per week to arrange for Recycling services for
Food Scraps and Green Waste (hereinafter, owners and responsible parties of
Commercial Premises subject to either the 2017 or 2019 Act requirements are collectively
referred to as "Food Scrap Generators"). Finally, the Act requires cities to provide a
commercial Recycling program for Food Scrap Generators. Franchisee acknowledges
these requirements and agrees that, subject to the restrictions contained in Agreement
Section 11(A), for all Food Scrap Generators subject to AB 1826 that contract with or pay
Franchisee to haul Food Scraps, Franchisee shall implement a diversion program as
described and set forth in Exhibit "F" and incorporated herein by reference ("Food Scrap
Diversion Program"). The City will maintain a listing of all Food Scrap Generators subject
to AB 1826. City expressly disclaims any liability related to or arising from the accuracy
of any lists provided by City. Franchisee's failure to request or secure the list on an annual
basis shall not relieve Franchisee of any obligations under this Section.
B. Act Compliance. The parties agree that provision of a Food Scrap Diversion
program as described in Exhibit "F" is of paramount importance for the City to complywith
the Act. The parties further agree that providing high quality Diversion services, public
education, and technical assistance to Food Scrap Generators to obtain their participation
in AB 1826 Diversion requirements is essential for Franchisee to implement an effective
Food Scrap Diversion Program for all Food Scrap Generators. The parties acknowledge
that achievement of this requirement is integral to the City's compliance with the Act and
that failure to implement said Diversion program may cause City to be non-compliant with
the Act.
C. Program Implementation. Within ninety (90) calendar days of either: (1) the
Effective Date of this Agreement; or (2) the date a Food Scrap Generator subject to AB
1826 initiates service with Franchisee to Collect and/or transport Food Scraps, whichever
is earlier, Franchisee shall implement a Food Scrap Diversion Program for said Food
Scrap Generator. For purposes of this Section, Franchisee shall be found to have
"implemented" a Food Scrap Diversion Program for a Food Scrap Generator only if
Franchisee completes all of the following:
1. Franchisee has contacted the Food Scrap Generator and explained
the requirements in the Act for the Food Scrap Generator.
2. Franchisee has provided the appropriate type(s) and size(s) of
Containers to the Food Scrap Generator's premises as set forth in Exhibit "F."
3. Franchisee is collecting Food Scraps from the Food Scrap Generator
at the frequency of collection needed to adequately service the Food Scrap Generator
and, at a minimum, is performing services consistent with Section 11.B.
4. Franchisee has provided public education and training materials to
any Food Scrap Generators explaining (a) the requirements of the Act, (b) the operation
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of the Food Scrap Diversion Program, and (c) what materials may be placed in the Food
Scrap Container(s).
5. Franchisee has responded to the Customer's questions and
complaints and has successfully resolved all questions and complaints.
D. Waiver. Franchisee may obtain a waiver from the City with regard to
implementation of a Food Scrap Diversion Program for a specific Food Scrap Generator
if said generator is diverting one hundred percent (100%) of Food Scraps being generated
using one or more of the following methods:
a third parry. 1. The Food Scrap Generator is donating or selling its Food Scraps to
2. The Food Scrap Generator is self -hauling its Food Scraps to a
recycler or to a Processing Facility.
3. The Food Scrap Generator is processing the Food Scraps onsite.
4. The Food Scrap Generator is donating surplus edible Food Scraps
for human consumption.
5. The Food Scrap Generator has subscribed to an AB 1826 -compliant
Food Scrap Recycling Program through another Franchise hauler in the City.
If the Food Scrap Generator uses any of the aforementioned diversion methods
and is diverting one hundred percent (100%) of Food Scraps being generated, Franchisee
shall submit a written statement to City describing the type(s) of Food Scraps being
Diverted by the Food Scrap Generator, the number and type of containers being used,
the method of collection and the ultimate destination to which the recyclable materials are
being delivered. Upon the City's verification that the information submitted by Franchisee
meets the requirements for a waiver, the City shall grant such waiver.
SECTION 14. AB 1826 COMMERCIAL AND MULTIFAMILY GREEN WASTE
COLLECTION PROGRAM.
A. Act Requirements. The Act requires all Commercial Premises generating
four (4) or more cubic yards of Food Scraps and/or Green Waste to arrange for Recycling
services for Green Waste on or before January 1, 2017.
B. Green Waste Program. Franchisee acknowledges these requirements and
agrees, subject to the restrictions contained in Agreement Section 11(A), that Franchisee
shall provide the following Green Waste collection program at all Commercial Premises
and Multifamily Dwellings that generate Green Waste and do not have Green Waste
hauled away by a landscape or gardening service:
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1. Containers to Be Provided. Franchisee shall provide appropriate
sized Containers to each Commercial Premises and Multifamily Dwelling for storage of
all Green Waste generated by the Customer on a weekly basis.
2. Weekly Service. Not less than once per week, and more frequently
as required to collect all of the Green Waste generated by each Commercial Premises
and Multifamily Dwelling, Franchisee shall Collect all such materials that have been
placed for Collection in Containers for each designated material.
3. Waiver. If a Commercial Premises or Multifamily Dwelling has all
Green Waste hauled away by a landscaper or gardening service or if another Franchisee
is collecting and diverting one hundred percent (100%) of Green Waste from the
Commercial Premises or Multifamily Dwelling, Franchisee is not required to provide
Green Waste Collection services to that property. In such event, Franchisee shall obtain
a signed self -reporting form stating the name, address, telephone number, business
license number, and contact person for the landscaper, gardening service(s), or
Franchisee providing such service. The form shall include the Processing Facility where
the Green Waste is delivered, which must be a City -approved Processing Facility.
SECTION 15. CONSTRUCTION AND DEMOLITION DEBRIS RECYCLING PROGRAM
A. Act Requirements. The 2016 California Green Building Standards Code
requires sixty-five percent (65%) Diversion of Construction and Demolition Debris.
B. Construction and Demolition Debris Recycling Program. Franchisee
acknowledges these requirements and agrees that, subject to the restrictions contained
in Agreement Section 11(A), for all Customers that contract with or pay Franchisee to
haul Construction and Demolition Debris, Franchisee shall implement a diversion
program as described and set forth in Exhibit "G" and incorporated herein by reference.
SECTION 16. REPORTING REQUIREMENTS.
A. Monthly Reports. Franchisee shall submit monthly reports to the Municipal
Operations Director identifying, at a minimum, the following information:
1. The address of each facility serviced and the precise services
provided to each address including, but not limited to, Commercial Solid Waste Handling
Services broken down by.type (i.e., Recyclable Materials, Food Scraps, Green Waste,
Construction and Demolition Debris, and/or Municipal Solid Waste) presented in an Excel
format acceptable to the City;
2. The frequency of Commercial Solid Waste Handling Services
provided to each address;
3. The number of containers by type and size at each address and the
frequency of collection;
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4. The tonnage, by material category, collected per month by volume in
cubic yards (Tons) and measured by the size of applicable Containers of and removed
by them within the City during the previous month;
5. The location of the Landfill and/or Recycling Facility to which the
Municipal Solid Waste, Recyclable Materials, Green Waste and/or Food Scraps were
taken during the previous month and the diversion rate achieved if the facility accepts
mixed waste materials/Processable Municipal Solid Waste;
6. AB 341 and AB 1826 compliance information by Generators,
including the total number of AB 341 and AB 1826 accounts serviced by the Franchisee,
the total number of accounts that have a Recycling Program, Food Scrap Diversion
Program, and/or Green Waste Recycling provided by the Franchisee, the number of
Customers with Franchisee -documented internal Diversion programs that complywith AB
1826 and AB 341, the number of Customers that comply with AB 341 or AB 1826 via a
Clean or Dirty MRF, the number of Customers that do not have an AB 341 or AB 1826 -
compliant Diversion program, and a description of outreach efforts for non-compliant
Generators;
7. A narrative summary of all outreach efforts to implement AB 341 and
AB 1826 Diversion programs at non-compliant Generators' premises including dates of
interactions, a description of the nature of the interactions, Generator objections, a log of
all new Recycling of Food Scrap Container deliveries during the reporting period, a log of
contamination incidents;
8. Such other tonnage or other information as requested by the
Municipal Operations Director including weight tickets and Recycling records.
B. Form of Report. Monthly reports shall be prepared in an Excel template, or
other format approved in writing by the Municipal Operations Director.
C. Report Due Date. Each monthly report shall be submitted on of before the
25th day of the month following the end of the month.
D. Submission. Franchisee shall submit each monthly report to:
Municipal Operations Director
City of Newport Beach
P.O. Box 1768
100 Civic Center Dr.
Newport Beach, CA 92658
E. No Waiver. Franchisee shall file the monthly report required under
Agreement Section 16(A) regardless of whether Franchisee has provided Commercial
Solid Waste Handling Services in the City during the reported month.
F. Compliance. Franchisee shall comply with all Recycling and Diversion
requirements imposed by law, ordinance, or regulation on the City. At the end of each
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calendar month, reports will be evaluated for compliance with City Recycling and
Diversion requirements. Failure to comply with City Recycling and Diversion
requirements shall be a material breach of this Agreement.
SECTION.17. HAULER REPRESENTATIVE
On or before January 1, 2018, Franchisee shall designate, at a minimum, one (1)
individual employed by Franchisee to assist City in implementing the Agreement's
Recycling and Diversion programs, as applicable, and to manage all reporting
requirements set forth herein ("Hauler Representative"). Franchisee shall provide City
with the Hauler Representative's contact information, and the Hauler Representative shall
be the primary contact for the City. The Hauler Representative shall respond to any City
questions or concerns relating to or arising from Franchisee's performance under this
Agreement within five (5) business days of City submitting such question or concern.
SECTION 18. VEHICLES AND EQUIPMENT
A. Containers. Any and all Containers provided to Customers for storage,
Collection or transportation of Municipal Solid Waste, Recyclable Materials, Food Scraps,
and/or Green Waste shall meet the requirements designated by the Municipal Operations
Director as well as State of California minimum standards for solid waste handling
established under Public Resources Code Section 43020 and applicable health
requirements, or any successor statutes or requirements.
B. Identification. All Containers and vehicles used by Franchisee in the
performance of Commercial Solid Waste Handling Services shall be marked with
Franchisee's name in letters which are not less than four inches (4") high and which are
easily read by the general public.
C. Equipment.
1. Maintenance; Records. Franchisee shall, at all times, provide such
number of vehicles, and such equipment as will be adequate for the Commercial Solid
Waste Handling Services, which it is authorized to provide under this Agreement. All
vehicles utilized by Franchisee in the performance of this Agreement shall be registered
with the California Department of Motor Vehicles. All vehicles must pass annual "BIT"
and brake inspections and Franchisee shall provide evidence of such to the Municipal
Operations Department upon request. Upon request by the City, Franchisee shall provide
records from the most recent California Highway Patrol biennial inspection of the
terminal(s) responsible for the maintenance and repair of equipment used in the City. All
vehicles shall be properly maintained, kept clean and in good repair, and shall be
uniformly painted. All Commercial Solid Waste Containers used in the performance of
this Agreement shall be kept clean and in good repair and shall be uniformly painted in
the color identified by Franchisee in Franchisee's application. All equipment required by
City in the performance of this Agreement, including vehicle mirrors and the collision
avoidance system, may be subject to inspection by the City upon twenty-four (24) hours'
notice by the Municipal Operations Director. All drivers employed by Franchisee and
operating equipment in the City shall be properly licensed for the class of vehicle they
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drive, enrolled in the Department of Motor Vehicles Employee Pull Notice (EPN) program,
and abide by all State and federal regulations for driver hours and alcohol and controlled
substances testing.
2. Solid Waste Retention. Each vehicle shall be so constructed and
used in a manner so that no rubbish, garbage, debris, oil, grease or other material will
blow, fall, or leak out of the vehicle. All Commercial Solid Waste shall be transported by
means of vehicles that are covered in such a manner as to securely contain all solid waste
and to prevent such solid waste from projecting, blowing, falling or leaking out of the
vehicles. Any Commercial Solid Waste dropped or spilled in Collection, transfer or
transportation shall be immediately cleaned up by Franchisee, A broom and a shovel
shall be carried at all times on each vehicle for this purpose. In addition, each Collection
vehicle shall be equipped with trash bags, masking tape and notice of non -Collection tags
for the purpose of separating Hazardous Waste for return to the Generator. A
communications device such as a two-way radio or a cellular telephone shall also be
maintained on each vehicle at all times.
3. Vehicle Mirrors. On or before January 1, 2018, all equipment used
by Franchisee for Commercial Solid Waste Handling Services in the City with a gross
vehicle weight rating of twenty-six thousand (26,000) pounds or more shall be equipped
with a convex mirror on the front of each vehicle, adjusted so as to enable the operator
to see all points on an imaginary horizontal line which:
(a) Is three feet (3') above the road;
(b) Is one foot (1) directly forward from the midpoint of the front of
the vehicles; and
(c) Extends the full width of the front of the vehicle.
4. Collision Avoidance System. On or before January 1, 2019, all
vehicles operated by Franchisee in the City shall have a collision avoidance system
installed that is capable of detecting adjacent pedestrians and bicyclists. City reserves
the right to inspect Franchisee's vehicles, at any time, to confirm that the installation and
capability of Franchisee's collision avoidance system is consistent with Agreement
Section 18(C)(4).
5. Storage. Franchisee shall not store any vehicle or equipment on any
public street, public right-of-way or other public property in the City without obtaining a
Temporary Street Closure Permit from the Public Works Department and prior written
consent of the Municipal Operations Director.
6. Compliance. Should the Municipal Operations Director at any time
give written notification to Franchisee that any vehicle does not comply with the standards
hereunder, the vehicle shall be promptly removed from service by Franchisee and not
used again until inspected and authorized in writing by the Municipal Operations Director.
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7. Public Works Standards. Placement of Containers and equipment
shall be in accordance with the standards set by the Public Works Director.
SECTION 19. ABANDONED CONTAINERS
A. If Franchisee abandons any Commercial Solid Waste Container within the
City, the City may remove the Container and/or dispose of the contents of the Container
and recover its cost from Franchisee.
B. For the purposes of this Section, "abandons" includes:
1. Franchisee's failure to remove the Container within the time period
specified by the City Council upon termination of the Franchise pursuant to Section
12.63.140 of the Code, or any successor statute;
2. Franchisee's failure to remove the Container within ten (10) calendar
days after the expiration or termination of the Franchise granted to Franchisee, except in
the case where Franchisee has been granted an extension of the Term of said Franchise
or Franchisee has been granted a subsequent franchise authorizing Franchisee to Collect
and transport the type or types of Commercial Solid Waste for which the Container was
used pursuant to this Agreement; or
3. Franchisee's failure to collect the Container and dispose of the
contents of the Container within five (5) calendar days after the Municipal Operations
Director issues written notice to Franchisee to dispose of the contents.
4. Franchisee's failure to replace a Container that fails to comply with
the City's aesthetic standards, as set forth in this Agreement, within five (5) calendar days
of receiving written notice from the Municipal Operations Director of non-compliance.
SECTION 20. COMPLIANCE WITH LAW
A. Franchisee shall perform all Commercial Solid Waste Handling Services in
accordance with applicable federal, state, and local law, including, but not limited to, Code
Chapter 12.63, Article XIII of the City Charter, Ordinance No. 2017-_ and the terms and
conditions of this Agreement.
B. During the Term of this Agreement, Franchisee and City agree that the
City's ordinances may be amended as provided herein, as provided in Chapter 12.63 or
as necessary to permit the City to comply with changes to federal, state, and local
legislative regulatory requirements, which may affect or alter City's obligations or
requirements for Commercial Solid Waste management. Franchisee agrees to comply
with any such amendment of the City's ordinances without the need to amend this
Agreement.
Non-exclusive Franchise Agreement Page 31
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SECTION 21. PERMITS AND LICENSES
A. Applicable Permits and Licenses. Franchisee shall obtain and maintain, at
Franchisee's sole cost and expense, all permits and licenses applicable to Franchisee's
operations under the Franchise, which are required of Franchisee by any governmental
agency. Payment of the Franchise Fee and Environmental Liability Fund Fee shall be in
addition to any permit or license fees or business tax prescribed by the City for the same
period.
B. Orange County Landfill Account. Franchisee shall obtain and maintain for
the Term of this Agreement an account with the Orange County landfills. If Franchisee
disposes of any Commercial Solid Waste collected from the City at an Orange County
landfill, the Franchisee shall utilize its landfill account only (no "cash" disposal).
SECTION 22. PUBLIC EDUCATION ACTIVITIES
A. Informational Materials. Each year during the Term of this Agreement,
Franchisee shall transmit informational materials to all Customers and to such
prospective Customers as it may select, informing them of the Commercial Solid Waste
Handling Services that are required of them under State law as well as Hazardous Waste
Disposal requirements.
B. Customer Compliance Notification. Each year during the Term of this
Agreement, Franchisee shall notify all AB 1826 and AB 341 accounts forwhich it provides
Commercial Solid Waste Collection Services of the Customer's compliance obligations.
C. Submission to City of Informational Materials. Franchisee's informational
materials shall be provided to the Municipal Operations Director upon request if, in City's
sole and absolute discretion, such informational materials are .necessary for City to
comply with State reporting requirements.
SECTION 23. SUSPENSION; TERMINATION; APPEAL
A. City's Right to Suspend or Terminate. The Franchise granted to
Franchisee may be suspended or terminated by the City Council pursuant to Code
Section 12.63.140, or any successor statute.
B. Notice of Default. Should the Municipal Operations Director determine
Franchisee has defaulted in the performance of any obligation hereunder, the Municipal
Operations Director may provide written notice to Franchisee of such default ("Default
Notice"). The Municipal Operations Director may, in the Default Notice, set a reasonable
time within which Franchisee may cure such default. Unless a longer or shorter time is
otherwise specified by the Municipal Operations Director, a reasonable time for correction
shall be thirty (30) calendar days from the date the Default Notice is issued.
C. Municipal Operations Director Review. Within ten (10) business days of
the Municipal Operations Director's issuance of the Default Notice, at the request of
Franchisee, the Municipal Operations Director will hold a meeting with Franchisee to
Non-exclusive Franchise Agreement Page 32
3-39
discuss the failures) described in the Default Notice. Such request shall immediately
suspend any deadlines set forth in Agreement Section 23(B) or the Default Notice. During
Franchisee's meeting with the Municipal Operations Director, Franchisee shall have an
opportunity to present evidence explaining or justifying the failures described in the
Default Notice. After the meeting, the Municipal Operations Director will make a
determination, in his or her sole discretion, as to whether to uphold the Default Notice, or
any portion thereof, and shall issue such determination within five (5) business days of
the meeting. Franchisee will have thirty (30) calendar days from the date the Municipal
Operations Director's determination is issued to cure the upheld Default Notice or portion
thereof.
D. Appeal to City Manager. Within five (5) business days of the Municipal
Operations Director Issuing his/her determination, Franchisee may appeal the Municipal
Operation Director's determination, in writing, to the City Manager. City's receipt of such
appeal request shall immediately suspend any deadlines set forth in Agreement Section
23(C). The City Manager will hold a meeting with Franchisee no more than ten (10)
business days after receiving Franchisee's written appeal request. After the meeting, the
City Manager will make a determination, in his or her sole discretion, as to whether to
uphold the Default Notice, or any portion thereof, and shall issue such determination
within five (5) business days of the meeting. The decision of the City Manager shall be
final. Franchisee will have thirty (30) calendar days from the date the City Manager's
determination is issued to cure the upheld Default Notice or any portion thereof.
F. Failure to Timely Cure. If Franchisee fails to timely cure a Default
Notice, or any portion thereof, then the applicable liquidated damages set forth in
Agreement Section 24 shall be final and conclusive and the amount(s) shall be
immediately due and payable. Franchisee's failure to timely cure three (3) Default Notices
shall be a material breach of this Agreement.
G. Audit Findings. Notwithstanding anything to the contrary, if Franchisee
disagrees with City's audit findings, then Franchisee may, within ten (10) business days
after service of the audit finding, appeal to the City Manager specifying the basis for its
disagreement with City's audit findings. If Franchisee fails to timely request such an
appeal, then the discrepancy determinations shall be final and conclusive and the
violation shall be deemed established.
H. Termination Without Right to Cure. City shall have the right of suspension
or termination as a result of Franchisee's failure to timely cure any deficiency or default
as set forth above, which right is in addition to City's right to terminate this Agreement
without affording Franchisee an opportunity to cure in circumstances where Franchisee
is determined to have materially breached this Agreement. Notwithstanding anything to
the contrary, in the event of any material breach hereof, City shall have the right to
terminate this Agreement without affording Franchisee the right to cure including, without
limitation, any action, inaction or circumstance defined herein as a material breach and/or
under any of the following circumstances which are hereby defined as material breaches:
If Franchisee conducts, or attempts to conduct, fraud upon City.
Non-exclusive Franchise Agreement Page 33
3-40
2. If Franchisee becomes insolvent, unable, or unwilling to pay its
debts.
3. If Franchisee fails to materially comply with any insurance or
indemnification requirement set forth in this Agreement; provided, however, that
Franchisee shall have a reasonable opportunity to cure any default relating to the
Franchisee's failure to provide the City with proof of insurance, so long as such insurance
is in effect at all times.
4. If City is required to pay any fine or penalty, which Franchisee is
required by the terms hereof to pay, yet which Franchisee fails, refuses, neglects or is
unable to timely pay.
5. If Franchisee fails to submit Records thirty (30) calendar days or
more following a written request by City, or its designated representative for Records
disclosure.
6. Franchisee fails to meet the Diversion requirements of this
Agreement or pursuant to applicable laws.
I. Removal of Commercial Solid Waste Containers Customer Notification.
In the event this Franchise is terminated or expires without a grant of a subsequent
franchise allowing Franchisee to continue performing Commercial Solid Waste Handling
Services in City, then within ten (10) calendar days of such termination or expiration
Franchisee shall:
1. Remove all of Franchisee's Commercial Solid Waste containers from
all Franchisee's collection service locations and properly dispose of all Commercial Solid
Waste in such containers within the time period specified by the City Council; and
2. Submit to the Municipal Operations Director a list of the names and
addresses of Generators in the City for which Franchisee provided Commercial Solid
Waste Handling Services as of the date of termination or expiration (i.e., Franchisee's
City of Newport Beach customer list); or
3. Send written notification to each solid waste generator on
Franchisee's customer list that Franchisee is no longer authorized to provide Commercial
Solid Waste Handling Services in the City. Such notification shall be in the form provided
by the Municipal Operations Director and shall be personally delivered or shall be sent by
first class mail, postage prepaid, to the customers' billing addresses. Franchisee shall
submit to the Municipal Operations Director an affidavit, signed under penalty of perjury,
stating that the required notification has been provided by Franchisee to all of
Franchisee's City Customers.
J. Continuing Obligations. Upon Agreement termination, suspension or
expiration:
Non-exclusive Franchise Agreement Page 34
3-41
I . Franchisee shall have no right or authority to engage in Commercial
Solid Waste Handling Services in the City, subject to the provisions of Sections 49520-
49524 of the Public Resources Code, or any successor statutes.
2. Franchisee shall remain liable to City for any and all Franchise Fees
and Environmental Liability Fund Fees that would otherwise be payable by Franchisee,
for any and all liquidated damages, late charges and/or interest assessed.
3. Franchisee shall have a continuing obligation to submit to City all
reports and records required by this Agreement. Franchisee's obligation shall survive this
Agreement shall continue for such period of time as required by this Agreement or
applicable law.
4. Franchisee shall allow the Commercial Solid Waste Generators
served by Franchisee to arrange for Commercial Solid Waste Handling Services with a
Commercial Solid Waste enterprise collector authorized to perform such services, without
penalty or liability for breach of contract on the part of the generators, for such period of
time as Franchisee is not authorized to perform such services because of termination or
suspension.
5. Franchisee's shall have a continuing obligation to provide the
indemnifications required in this Agreement. Such indemnifications include, but are not
limited to, the Hazardous Materials indemnification and AB 939/AB 341/AB 1829
indemnification as set forth in Agreement Section 10.
SECTION 24. CITY'S REMEDIES
A. The City incurred considerable time and expense procuring this Agreement
to secure an improved level and quality of Recycling and compliance with State Diversion
mandates.
B. Liquidated Damages. The Parties agree the following liquidated damages
schedule represents a reasonable estimate of the amount of damages, considering all
the circumstances existing on the date of this Agreement, including the relationship of the
sums to the range of harm to City that reasonably could be expected in anticipation that
proof of actual damages would be costly or inconvenient:
6(A), 7(A)
), 7(B)
Failure(s)*
Comply with City -mandated Diversion
requirements within thirty (30) calendar
days of notification by City
----- ------ ---------
Deliver Commercial Solid Waste as
designated
Two hundred fifty
dollars ($250) per
business day until
compliant
Two hundred fifty
dollars ($250) per
truck delivery
Non-exclusive Franchise Agreement Page 35
3-42
8(B)
Provide requested records
Two hundred fifty
dollars ($250) per
business day until
completed
11(A)
Provide only those Commercial Solid
Two hundred fifty
Waste Handling Services for which
dollars ($250)
Franchisee has applied
11(C)
Collect at unauthorized locations and/or
Two hundred fifty
during unauthorized hours five (5) or
dollars ($250)
i
more times in a twelve (12) month period
11(D)
Label Containers; paint vehicles and/or
Fifty dollars ($50)
Containers corporate color
per business day
until corrected
One thousand
12(A), 12(C)
Establish or Implement Recycling
Program
dollars ($1,000) per
occurrence
13(A), 13(C)
i Establish or Implement Food Scrap
One thousand
Diversion Program
dollars ($1,000)
13(A), 13(C)
Establish or Implement Green Waste
Five hundred dollars
Diversion Program
($500)
13(A), 13(C)
Establish or Implement Construction and
One thousand
Demolition Diversion Program
dollars ($1,000)
16(A), 16(B), 16(E)
Submit complete and accurate monthly
One hundred dollars
reports i
($100) per business
day until corrected
or completed
-16(C)
timely monthly reports
rOne hundred dollars
($100) — if not
submitted when due
I Five hundred dollars
($500) — if not
submitted Win thirty
(30) calendar days
after due date
,
Non-exclusive Franchise Agreement Page 36
3-43
19
Designate qualified Hauler
Representative; Failure of Hauler
Representative to timely respond
to City
Secure or maintain vehicles or vehicle
equipment
Remove, replace, or collect abandoned
Container(s)
Fifty dollars ($W;
per business day
until completed
One hundred dollars i
($100) per business
day until completed 1
Fifty dollars ($50)
per business day
until completed
*Unless otherwise designated, reference to "failure(s)" refers to each occurrence of
specified breach (such as for each Customer or each Customer record entry or complaint)
and not for aggregate occurrences of those breaches (such as for all Customers on a
given route or day).
C. City's Remedies Cumulative. The rights and remedies of City set forth
herein shall be in addition to any and all other rights and privileges City may have, and
shall not be deemed to limit any such other rights or privileges of City under this
Agreement or by virtue of any law.
By placing its initials below, each parry specifically confirms:
(1) the accuracy of the statements made in Agreement Section 24; and
(2) it has had ample opportunity to consult with legal counsel and obtain an explanation
of liquidated damage provisions prior to signing this Agreement.
FRANCHISEE CITY
Initial Here: Initial Here:
SECTION 25. CONFIDENTIAL INFORMATION.
A. Confidential Information. In the performance of this Agreement or in
contemplation thereof, the parties and their respective employees and agents may have
access to private or confidential information owned or controlled by the other party and
such information may contain proprietary details and disclosures. All information and
data identified in writing as proprietary or confidential by either party ("Confidential
Information") and so acquired by the other party or its employees or agents under this
Agreement or in contemplation thereof shall be and shall remain the disclosing party's
exclusive property. The recipient of Confidential Information shall use all reasonable
efforts (which in any event shall not be less than the efforts the recipient takes to ensure
the confidentiality of its own proprietary and other confidential information) to keep, and
have its employees and agents keep, any and all Confidential Information confidential,
and shall not copy, or publish or disclose it to others, nor authorize its employees, agents
or anyone else to copy or disclose it to others, without the disclosing party's written
approval; nor shall the recipient make use of the Confidential Information except for the
Non-exclusive Franchise Agreement Page 37
3-44
purposes of executing its obligations hereunder, and (except as provided for herein) shall
return the Confidential Information and data to the first party at its request. The City's
duty to maintain confidentiality as described hereunder shall be subject to the laws of the
State of California.
B. Excluded Information. The foregoing conditions will not apply to information
or data which is, or which becomes generally known to the public by publication or by any
means other than a breach of duty on the part of the recipient hereunder, is information
previously known to the recipient, is information independently developed by or for the
recipient or is information generally released by the owning party without restriction.
C. Public Records Request. Should City receive a public records request, or
otherwise be directed by any governmental authority to disclose any or all Confidential
Information in City's possession, custody or control, City shall promptly provide notice to
Franchisee of such request to allow Franchisee an opportunity to prevent disclosure.
D. Right to Injunctive Relief. Because of the unique nature of the Confidential
Information, the parties agree that each party may suffer irreparable harm in the event that
the other party fails to comply with any of its obligations under this Section, and that
monetary damages may be inadequate to compensate either party for such breach.
Accordingly, the parties agree that either party will, in addition to any other remedies
available to it at law or in equity, be entitled to seek injunctive relief to enforce the terms of
this Section.
SECTION 26. ASSIGNMENT
Franchisee shall not assign, sell, subcontract, transfer or otherwise delegate its
authority to perform any portion of the Commercial Solid Waste Handling Services or
obligations under the Franchise without prior express consent of the City Council. This
prohibition includes any transfer of ownership or control of Franchisee, orthe conveyance
of a majority of Franchisee's stock to a new controlling interest. City's consent shall not
be unreasonably withheld.
SECTION 27. MISCELLANEOUS PROVISIONS
A. Notices. Except as otherwise provided in this Agreement, all notices required
by this Agreement shall be given by personal service or by deposit in the United States
mail, postage pre -paid and return receipt requested, addressed to the parties as follows:
To: Municipal Operations Director
City of Newport Beach
P.O. Box 1768
100 Civic Center Dr.
Newport Beach, CA 92660
To Franchisee:
Non-exclusive Franchise Agreement Pageg
3-45
Notice shall be deemed effective on the date personally served or, if mailed, three
(3) calendar days after the date deposited in the mail.
B. Integrated Agreement. This Agreement represents the full and complete
understanding of every kind or nature whatsoever between the City and Franchisee, and
all preliminary negotiations and other agreements of any kind or nature are merged
herein. No verbal agreement or implied covenant shall be held to vary the provisions
herein.
C. Amendments. This Agreement supersedes all prior agreements and
understandings between the parties and may not be modified or terminated orally, and
no modification, termination or attempted waiver of any of the provisions hereof shall be
binding unless in writing and signed by both parties.
D. Recitals. The Parties acknowledge that the Recitals are true and correct and
are hereby incorporated by reference into this Agreement.
E. Applicable Law. The laws of the City, State of California, and applicable Federal
law, shall govern this Agreement and all matters relating to it and any action brought
relating to this Agreement shall be adjudicated in a court of competent jurisdiction in the
County of Orange.
F. Authority. The parties signing below represent and warrant that they have the
requisite authority to bind the entities on whose behalf they are signing.
G. 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.
H. Waiver. A waiver by either party of any breach, of any term, covenant or
condition contained herein shall not be deemed to be a waiver of any subsequent breach
of the same or any other term, covenant or condition contained herein, whether of the
same or a difference character.
I. Interpretation. The terms of this Agreement shall be construed in accordance
with the meaning of the language used and shall not be construed for or against either
party by reason of the authorship of this Agreement or any other rule of construction that
might otherwise apply.
J. Equal Opportunity Employment. Franchisee represents that it is an equal
opportunity employer and it shall not discriminate against any authorized subcontractor,
employee or applicant for employment because of race, religion, color, national origin,
handicap, ancestry, sex or age or any other impermissible basis under law.
K. Compliance with Laws. Franchisee shall at its own cost and expense comply
with all statutes; ordinances, regulations and requirements of all governmental entities,
including federal, state, county or municipal, whether now in force or hereinafter enacted.
Non-exclusive Franchise Agreement Page 39
3-46
Franchisee agrees to obtain a business license from the City in accordance with the Code.
The parties hereto agree that the Franchise and this Agreement are the only
authorizations to conduct Commercial Solid Waste Handling Services in the City and that
the issuance of a business license does not grant the Franchisee a right to conduct
Commercial Solid Waste Handling Services or other business in the City.
L. Conflicts of Interest. Franchisee and its employees may be subject to the
provisions of the California Political Reform Act of 1974 (the "California Political Reform
Act"), which (i) requires such persons to disclose any financial interest that may
foreseeably be materially affected by the work performed under this Agreement, and (ii)
prohibits such persons from making, or participating in making, decisions that will
foreseeably financially affect such interest. If subject to the California Political Reform
Act, Franchisee shall conform to all requirements of the California Political Reform Act.
Failure to do so constitutes a material breach and is grounds for immediate termination
of this Agreement by City. Franchisee shall indemnify and hold harmless City for any and
all claims for damages resulting from Franchisee's violation of this subsection.
M. Conflicts or Inconsistencies. In the event there are any conflicts or
inconsistencies between this Agreement and the Scope of Services or any other
attachments attached hereto, the terms of this Agreement shall govern.
N. No Attorneys' Fees. In the event of any dispute or legal action arising under
this Agreement, the prevailing party shall not be entitled to attorneys' fees.
O. Counterparts. This Agreement may be executed in two (2) or more
counterparts, each of which shall be deemed an original and all of which together shall
constitute one (1) and the same instrument.
[SIGNATURES ON FOLLOWING PAGE]
Non-exclusive Franchise Agreement Page 40
3-47
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed
on the day and year written below.
APPROVED AS TO FORM:
CITY ATTORNEY'S OFFICE
Date:
Aaron C. Harp
City Attorney
ATTEST:
Date:
By:
Leilani I. Brown
City Clerk
CITY OF NEWPORT BEACH,
a California municipal corporation
Mayor
FRANCHISEE:
Date:
By:
Date:
By:_
[END OF SIGNATURES]
Attachments: Exhibit A —Faithful Performance Bond
Exhibit B — Franchise Hauler Acknowledgement
Exhibit C — Franchisee Application Template
Exhibit D — Insurance Requirements
Exhibit E — Recycling Program
Exhibit F — Food Scrap Diversion Program
Exhibit G — Construction and Demolition Debris Recycling
Program
Non-exclusive Franchise Agreement Page 41
3-48
EXHIBIT A
CITY OF NEWPORT BEACH
BOND NO.
FAITHFUL PERFORMANCE BOND
The premium charges on this Bond is $
WHEREAS, the City of Newport Beach, State of California, has awarded to
hereinafter designated as the
"Principal," a non-exclusive franchise for commercial solid waste handling services
("Franchise Agreement") in the City of Newport Beach, in strict conformity with the
Franchise Agreement on file with the office of the City Clerk of the City of Newport Beach,
which is incorporated herein by this reference.
WHEREAS, Principal has executed or is about to execute the Franchise
Agreement and the terms thereof require the furnishing of a Bond for the faithful
performance of the Franchise Agreement.
NOW, THEREFORE, we, the Principal, and
, duly authorized to
transact business under the laws of the State of California as Surety (hereinafter
"Surety'), are held and firmly bound unto the City of Newport Beach, in the sum of
($ _) lawful money of the United
States of America, to be paid to the City of Newport Beach, its successors, and assigns;
for which payment well and truly to be made, we bind ourselves, our heirs, executors and
administrators, successors, or assigns, jointly and severally, firmly by these present.
THE CONDITION OF THIS OBLIGATION IS SUCH, that if the Principal, or the
Principal's heirs, executors, administrators, successors, or assigns, fail to abide by, and
well and truly keep and perform any or all the services, covenants, conditions, and
agreements in the Franchise Agreement documents and any alteration thereof made as
therein provided on its part, to be kept and performed at the time and in the manner
therein specified, and in all respects according to its true intent and meaning, or fails to
indemnify, defend, and save harmless the City of Newport Beach, its officers, employees
and agents, as therein stipulated, then, Surety will faithfully perform the same, in an
amount not exceeding the sum specified in this Bond; otherwise this obligation shall
become null and void.
As a part of the obligation secured hereby, and in addition to the face amount
specified in this Performance Bond, there shall be included costs and reasonable
expenses and fees, including reasonable attorneys fees, incurred by City, only in the
event City is required to bring an action in law or equity against Surety to enforce the
obligations of this Bond.
Surety, for value received, stipulates and agrees that no change, extension of time,
alterations or additions to the terms of the Franchise Agreement or to the services to be
performed thereunder shall in any way affect its obligations on this Bond, and it does
Faithful Performance Bond Page A-1
3-49
hereby waive notice of any such change, extension of time, alterations or additions of the
Agreement or to the services or to the specifications.
This Faithful Performance Bond shall be extended and maintained by the Principal
in full force and effect for five (5) years following the date Principal is granted the
Franchise Agreement by City.
In the event that the Principal executed this bond as an individual, it is agreed that
the death of any such Principal shall not exonerate the Surety from its obligations under
this Bond.
IN WITNESS WHEREOF, this instrument has been duly executed by the Principal
and Surety above named, on the day of , 20_
Name of Contractor (Principal)
Name of Surety
Address of Surety
Telephone
APPROVED AS TO FORM:
CITY ATTORNEY'S OFFICE
Date:
By:
Aaron C. Harp
City Attorney
Authorized Signature/Title
Authorized Agent Signature
Print Name and Title
NOTARY ACKNOWLEDGMENTS OF
CONTRACTOR AND SURETY MUST BE ATTACHED
Faithful Performance Bond Page A-2
3-50
ACKNOWLEDGMENT
A notary public or other officer completing this
certificate verifies only the identity of the individual who
signed the document to which this certificate is
attached, and not the truthfulness, accuracy, or validity
of that document.
State of California
County of )86.
On 20 before me,
Notary Public, personally appeared
who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are
subscribed to the within instrument and acknowledged to me that he/she/they executed the same
in his/her/their authorized capacity(ies), and that by his/her/their signatures(s) on the instrument
the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing
paragraph is true and correct.
WITNESS my hand and official seal.
Signature (seal)
ACKNOWLEDGMENT
A notary public or other officer completing this
certificate verifies only the identity of the individual who
signed the document to which this certificate is
attached, and not the truthfulness, accuracy, or validity
of that document.
State of California
County of }ss.
On 20 before me,
Notary Public, personally appeared
proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are
subscribed to the within instrument and acknowledged to me that he/she/they executed the same
in his/her/their authorized capacity(ies), and that by his/her/their signatures(s) on the instrument
the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing
paragraph is true and correct.
WITNESS my hand and official seal.
Signature (seal)
Faithful Performance Bond Page A-3
3-51
EXHIBIT B
FRANCHISE HAULER ACKNOWLEDGEMENT
THIS FRANCHISE HAULER ACKNOWLEDGMENT, entered into as of November
7, 2017 (the "Acknowledgment"), by and between the City of Newport Beach, a charter
city and municipal corporation (the "City'), and (the "Franchise Hauler").
WITNESSETH
WHEREAS, the City and the Franchise Hauler have heretofore entered into an
agreement entitled NONEXCLUSIVE FRANCHISE AGREEMENT BETWEEN THE CITY
OF NEWPORT BEACH AND FOR COMMERCIAL SOLID WASTE
HAULING SERVICES (the "Franchise"); and
WHEREAS, the Franchise provides for the collection and disposal of certain
municipal commercial solid waste as described therein ("Franchise Waste") generated
within the City; and
WHEREAS, Orange County (the "County") owns, manages and operates a
sanitary landfill disposal system for municipal solid waste generated within the County;
and
WHEREAS, the City and the County have heretofore entered into a Waste
Disposal Agreement as of 2009, and subsequent Amendment to the Waste Disposal
Agreement dated April 28, 2016 (collectively, the "Disposal Agreement'), determining that
the execution of such Disposal Agreement will serve the public health, safety and welfare
of the residents of the City and County, by maintaining public ownership and stewardship
over the Orange County Landfill Disposal System (the "Disposal System"); and
WHEREAS, under the Disposal Agreement, the County has agreed to provide
long-term disposal of all municipal solid waste generated within the City and the City has
agreed to exercise all legal, and contractual power which it possesses from time to time
to deliver or cause the delivery of such waste to the Disposal System; and
WHEREAS, the provisions of the Waste Disposal Agreement which guarantee
capacity for the long term disposal of waste at specified rates generated in the City
provide significant benefits to the Franchise Hauler;
WHEREAS, notwithstanding any Franchise provisions to the contrary, the
Franchise Hauler explicitly acknowledges the aforementioned benefits to the City, the
County and the Franchise Hauler in providing for the disposal of all Franchise Waste to
the Disposal System; and
WHEREAS, the City and the Franchise Hauler desire to enter into this
Acknowledgment to assure that the City and the Franchise Hauler will be entitled to the
benefits of the Waste Disposal Agreement and to assure conformity with the waste
Franchise Hauler Acknowledgement Page B-1
3-52
delivery obligations which have been agreed to by the City under the Disposal Agreement
through the delivery of waste by the Franchise Hauler to the Disposal System; and
WHEREAS, the Franchise Haulers agreement to deliver Franchise Waste to the
Disposal System under this Acknowledgment is given in consideration of the Franchise
Hauler's right to receive the Contract Rate for such disposal as provided in the Disposal
Agreement.
NOW, THEREFORE, in consideration of the premises and for other good and
valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the
parties hereto, intending to be legally bound hereby, agree as follows:
1. Capitalized terms used and not otherwise defined herein are used as defined in
the Disposal Agreement.
2. The Franchise Hauler hereby waives any right which it may possess under
applicable law to contest on any ground, constitutional, statutory, case law,
administrative or otherwise, (a) the right, power or authority of the County or the
City to enter into or perform their respective obligations under the Disposal
Agreement, (b) the enforceability against the County or the City of the Disposal
Agreement, or (c) the right, power or authority of the City to deliver or cause the
delivery of all Controllable Waste to the Designated Disposal Facility in accordance
with this Acknowledgment.
3. The City and the Franchise Hauler each hereby represent that this
Acknowledgment has been duly authorized by all necessary action of their
respective governing bodies.
4. The Franchise Hauler shall deliver or cause to be delivered all Controllable Waste
(including all residue from the processing by any means, wherever conducted, of
Controllable Waste) to the Disposal System, and shall otherwise assist the City in
complying with its obligations under the Waste Disposal Covenant in Section 3.1
of the Disposal Agreement.
5. The Franchise Hauler shall not haul Controllable Waste to any materials recovery
facility, composting facility, intermediate processing facility, recycling center,
transfer station or other waste handling or management facility unless the contract
or other agreement or arrangement between the Franchise Hauler and the
operator of such facility is sufficient in the opinion of the County to assure that the
Residue from such facility constituting City Acceptable Waste (or Tonnage
equivalencies) and the City Acceptable Waste transferred by such facility shall be
delivered to the Designated Disposal Facility in compliance with the Waste
Disposal Covenant.
Franchise Hauler Acknowledgement Page B-2
3-53
B. The Franchise Hauler shall pay the Contract Rate imposed by the County at the
Designated Disposal Facility for the disposal of all Controllable Waste, which rate
shall be subject to potential adjustment necessary to reflect the circumstances set
forth in the Disposal Agreement.
Nothing in this Acknowledgment is intended to restrict any right or responsibility
explicitly given the Franchise Hauler in the Franchise to recycle City Acceptable
Waste, except as provided in paragraph 5 above with respect to Residue from any
such recycling operations.
The obligations of the Franchise Hauler under this Acknowledgment shall apply
notwithstanding any provision of the Franchise which may conflict herewith.
9. This Acknowledgment may be enforced by the City by any available legal means.
In any enforcement action by the City, the burden of proof shall be on the Franchise
Hauler to demonstrate compliance herewith.
10. This Acknowledgment shall be in full force and effect and shall be legally binding
upon the City and Franchise Hauler from the dated hereof and shall continue in full
force and effect until the earlier of (1) the end of the term of the Franchise or (ii) the
end of the term of the Disposal Agreement.
11. The City and Hauler agree that the County shall be an express third party
beneficiary of this Acknowledgment, and shall be entitled to independently enforce
the obligations of the Franchise Hauler hereunder.
12. The Hauler agrees to assist the County in verifying tonnage collected by the
Franchise Hauler and providing information required by the County. Hauler will
provide upon request refuse tonnage collected within the County, and outside the
County (if relevant to confirming tonnage origination), separated by jurisdiction, by
load type (residential, commercial, roll -off box), and by facility to which it was
delivered (specify which landfill or transfer station). Hauler will provide customer
service levels and route lists. Hauler will cooperate with County audits to verify
reported origin of tonnage by making records and personnel available to the
County and/or its auditors.
Franchise Hauler Acknowledgement Page B-3
3-54
EXHIBIT C
FRANCHISE APPLICATION TEMPLATE
Franchisee Application Template _ Page C-1
3-55
o" Ewr )qrs
City of Newport Beach
Solid Waste Franchise Application
Hauler Information
Legal Name & DBA;
Business Address: _
Business Phone:
Contact Name:
Email:
Type of Organization (Check One)
F -Individual (Owner/Operator)
Husband and Wife
Corporation
General Partnership
Desired Franchise:
Tier I (Mixed Solid Waste)
❑
Mixed Waste
❑
"Dirty MRF" Processing
❑
Source Separated Dry Recyclables ❑
Food Scraps
❑
Green /Wood Waste
❑
Tier II (Construction &. Demolition)
❑
Name of Signatories
Name
Name
Business emall:
Phone:
Newport Beach Business License#: I Exp:
01-imlted Partnership
❑ Limited Liability Company
❑Business Trust
1-1 Co -Partners
Title
Title
❑ Jolnt Venture
Unincorporated Association -
Other than a Partnership
❑ Pubiic Agency
Corp Resolution Needed
Yes. No N/A
❑ ❑ ❑
Yes No N/A
❑ ❑ ❑
3-56
I
Solid Waste Collection Recycling Plans
Applicants must complete a listing of solid waste collection and diversion plass (Attachment 1), The
form must Include, at a minimum, each waste stream; the types/sizes of conainers to be utilized;
description of how waste Is processed; a listing of anyfacll'ty where material maybe taken; and the
ultimate disposition of any non-processible portion of the waste stream.
List of Vehicles to Bg Utilized Under the Franchise
Applicants must list all vehicles to be used in performing services In the City (Attachment 2).
Note: All vehicles must meet the equipment standards listed in the "Vehicles and Equipment' section of
the franchise agreement.
The Franchise Agreement requires all vehicles and containers to be painted uniform colors.
Color of Vehicles:
Color of Containers:
Designation of Hauler Representative
The franchise requires that waste haulers designate a Hauler Representative to assist in managing your
recycling and diversion programs and managage reporting requirements. Th',s person will also be the
main contact for City staff and the hauler's customers in Newport Beach. Please provide the following
Information on the Hauler Representative: .
Name:
Title/Position:
Direct Phone Number:
3-57
Additional Information Required with Submission of Franchise Application
1. The applicant must complete Form 200/2000/200P as appropriate, describing officers, partners,
etc., having legal responsibility for the franchise agreement.
2. A current insurance certificate conforming to the requirements listed In the franchise agreement,
Including the applicable endorsements.
3. If your company has Doj conducted solid waste hauling services In the City of Newport Beach for
the past three (3) years, please provide information from the previous calendar year including
tonnage coilected.by activity (residential, commercial, industrial, construction and demolition);
corresponding revenue for each activity; tonnage recycled or caused to be recycled by applicant's
collection, transportation, and/or disposition of materials collected and categorized by method of
recycling, material type recycled, and the,tonnage disposed byfacility utilized.,
In the past year, have you or your firm:
Maintained all books of account pursuant to generally accepted accounting principles (GAAP)?
Yes No N/A
Generated all income statements using either a cash or accrual accounting method?
Yes No N/A
Truthfully and accurately reported all tonnage and/or the disposition of all materials collected in any
Jurisdiction where vou are authorized toerorm solid waste services?
Yes No En N/A �J
3-58
AUTHORIZED SIGNATURE(S) OF APPLICANT
THE UNDERSIGNED ASSURES THATTHE IN FORMATION PROVIDED ON THIS APPLICATION IS TRUE AND
CORRECT AND THAT THE APPLICANT HAS READ AND UNDERSTOOD HIS OR HER OBLIGATIONS UNDER
ANY FRANCHISE OBTAINED BASED ON THIS APPLICATION.
A. If the applicant Is a sole proprietor, the application shall be signed by the proprietor.
B. If the applicant is a partnership, the application shall be signed by each partner.
C, If the application is a firm, association, corporation, county, city, public agency, or other
governmental entity, the application shall be signed by the chief executive officer orthe
individual legally responsible for representing the agency.
D. The applicant(s) affirms that the facts contained In this application and supporting documents
are true and correct.
(Signature) (Title) T (Date)
(Signature) !Title) (Date)
(Signature) (Title) (Date)
3-59
City of Newport Beach
NON-EXCLUSIVE SOLID WASTE FRANCHISE APPLICATION
ADMINISTRATIVE ORGANIZATION & DELEGATION INFORMATION - CORPORATIONS
(=orm 200 — 2017)
INSTRUCTIONS: This form must be updated and submitted to the City each time there is a change in officers or
Change In the corporation
CORPORATION
Nemo (as listed with tho Secrotary of State) Chief Executive Officer
Incorporation Data _ place of Incorporation
Princloai office of business:
.Address City Zip Code Telephone
Contact Person Tlt[e . Telephone
Names and adcresses of all persors who own ten percent (10%) or more of stock In corporatlon.
Governing Board of birectors -
a. Number of Board Members b. Term of Ctfice
o. Frequency of Meetings d. Method of Selection
r=cuc=^ono AnnMMIA1 NANkF-R
duara VIIIaarS anu
Office
wleu rl ilC
Name
war.-_ •.....�-...__.. _... .___._... _
aushross Address&City &Zip Code
Telephone
Number
Term
Expiration
Presldont
Vior,President
Secretary
Treasurer
Other
3-60
City of Newport Beach
NON-EXLUSIVE SOLID WASTE FRANCHISE APPLICATION
ADMINISTRATIVE ORGANIZATION & DELEGATION INFORMATION -CORPORATIONS
PARTNERSHIPS, SOLE PROPRIETOR, AND OTHER ASSOCIATIONS
(Form 200P-2017)
PARTNERSHIPS
1. Attach a copy of the par'rersnlp agreement
2. Partners
Type of partnership Name Business Address, Clivand Zin Cade
1st Partner
❑
General
Limited
.
2nd Parner
- C General
❑ Llrpitsd
3•d Partner
General
❑ Limited
---
❑ General
41h Partner
❑ Limited
Contact Person Tile Telephone $
SOLE PROPRIETOR/OTHER ASSOCIATIONS
Sola Proprlotors/othsr associations must also provide a Ilst of all pefson(s) legally responsible, for the organization, the oontect person, and appropriate legal
documents (flotitlous name statement, business license) which set forth legal responsgsifly of the organization and accoun+ablltty for opening the program.
Use the following space or attach a separate sheet,
3-61
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EXHIBIT D
INSURANCE REQUIREMENTS
1. Provision of Insurance. Without limiting Franchisee's indemnification of
City, and prior to commencement of Work, Franchisee shall obtain, provide and maintain
at its own expense during the term of this Agreement, policies of insurance of the type
and amounts described below and in a form satisfactory to City. Franchisee agrees to
provide insurance in accordance with requirements set forth here. If Franchisee uses
existing coverage to comply and that coverage does not meet these requirements,
Franchisee agrees to amend, supplement or endorse the existing coverage.
2. Acceptable Insurers. All insurance policies shall be issued by an insurance
company currently authorized by the Insurance Commissioner to transact business of
insurance in the State of California, with an assigned policyholders' Rating of A- (or
higher) and Financial Size Category Class VII (or larger) in accordance with the latest
edition of Best's Key Rating Guide, unless otherwise approved by the City's Risk
Manager.
3. Coverage Requirements.
A. Workers' Compensation Insurance. Franchisee shall maintain
Workers' Compensation Insurance, statutory limits, and Employer's Liability Insurance
with limits of at least One Million Dollars ($1,000,000) each accident for bodily injury by
accident and each employee for bodily injury by disease in accordance with the laws of
the State of California, Section 3700 of the Labor Code.
Franchisee shall submit to City, along with the certificate of
insurance, a Waiver of Subrogation endorsement in favor of City, its officers, officials,
employees and agents.
B. General Liability Insurance. Franchisee shall maintain commercial
general liability insurance, and if necessary umbrella liability insurance, with coverage at
least as broad as provided by Insurance Services Office form CG 00 01, in an amount not
less than One Million Dollars ($1,000,000) per occurrence, Two Million Dollars
($2,000,000) general aggregate and Two Million Dollars ($2,000,000) completed
operations aggregate. The policy shall.cover liability arising from premises, operations,
products -completed operations, personal and advertising injury, and liability assumed
under an insured contract (including the tort liability of another assumed in a business
contract) with no endorsement or modification limiting the scope of coverage for liability
assumed under a contract.
C. Automobile Liability Insurance. Franchisee shall maintain
automobile insurance at least as broad as Insurance Services Office form CA 00 01
covering bodily injury and property damage for all activities of the Franchisee arising out
of or in connection with Work to be performed under this Agreement, including coverage
for any owned, hired, non -owned or rented vehicles, in an amount not less than One
Million Dollars ($1,000,000) combined single limit for each accident.
4. Other Insurance Requirements The policies are to contain, or be endorsed
to contain, the following provisions:
Insurance Requirements Page D-1
3-65
A. Waiver of Subrogation. All insurance coverage maintained or
procured pursuant to this Agreement shall be endorsed to waive subrogation against City,
its elected or appointed officers, agents, officials, employees and volunteers or shall
specifically allow Franchisee or others providing insurance evidence in compliance with
these requirements to waive their right of recovery prior to a loss. Franchisee hereby
waives its own right of recovery against City, and shall require similar written express
waivers from each of its subcontractors. '
B. Additional Insured Status. All liability policies including general
liability, excess liability, pollution liability, and automobile liability, but not including
professional liability (if required), shall provide or be endorsed to provide that City and its
officers, officials, employees, and agents shall be included as insureds under such
policies.
C. Primary and Non Contributory. All liability coverage shall apply on a
primary basis and shall not require contribution from any insurance or self-insurance
maintained by City.
D. Notice of Cancellation. All policies shall provide City with thirty (30)
days notice of cancellation (except for nonpayment for which ten (10) days notice is
required) or nonrenewal of coverage for each required coverage.
5. Additional Agreements Between the Parties. The parties hereby agree to
the following:
A. Evidence of Insurance. Franchisee shall provide certificates of
insurance to City as evidence of the insurance coverage required herein, along with a
waiver of subrogation endorsement for workers' compensation and other endorsements
as specified herein for each coverage. Insurance certificates and endorsement must be
approved by City's Risk Manager prior to commencement of performance. Current
certification of insurance shall be kept on file with City at all times during the term of this
contract. City reserves the right to require complete, certified copies of all required
insurance policies, at anytime.
B. City's Right to Revise Requirements. The City reserves the right at
any time during the term of this Agreement to change the amounts and types of insurance
required by giving the Franchisee ninety (90) days advance written notice of such change.
C. Right to Review Subcontracts. Franchisee agrees that upon request,
all contracts with subcontractors or others with whom Franchisee enters into contracts
with on behalf of City will be submitted to City for review. Failure of City to request copies
of such contracts will not impose any liability on City, or its employees.
D. Enforcement of Contract Provisions. Franchisee acknowledges and
agrees that any actual or alleged failure on the part of the City to inform Franchisee of
non-compliance with any requirement imposes no additional obligations on the City nor
does it waive any rights hereunder.
E. Reauirements not Limiting. Requirements of specific coverage
features or limits contained in this Section are not intended as a limitation on coverage,
limits or other requirements, or a waiver of any coverage normally provided by any
insurance. Specific reference to a given coverage feature is for purposes of clarification
Insurance Requirements Page D-2
3-66
only as it pertains to a given issue and is not intended by any party or insured to be all
inclusive, or to the exclusion of other coverage, or a waiver of any type.
F. Self-insured Retentions. Any self-insured retentions must be
declared to and approved by City. City reserves the right to require that self-insured
retentions be eliminated, lowered, or replaced by a deductible. Self-insurance will not be
considered to comply with these requirements unless approved by City.
G. City Remedies for Non Compliance. If Franchisee or any
subcontractor fails to provide and maintain insurance as required herein, then City shall
have the right but not the obligation, to purchase such insurance, to terminate this
Agreement, or to suspend Franchisee's right to proceed until proper evidence of
insurance is provided. Any amounts paid by City shall, at City's sole option, be deducted
from amounts payable to Franchisee or reimbursed by Franchisee upon demand.
H. Timely Notice of Claims. Franchisee shall give City prompt and
timely notice of claims made or suits instituted that arise out of or result from Franchisee's
performance under this Agreement, and that involve or may involve coverage under any
of the required liability policies. City assumes no obligation or liability by such notice, but
has the right (but not the duty) to monitor the handling of any such claim or claims if they
are likely to involve City.
I. Franchisee's Insurance. Franchisee shall also procure and maintain,
at its own cost and expense, any additional kinds of insurance, which in its own judgment
may be necessary for its proper protection and prosecution of the Franchise.
Insurance Requirements Page D-3
K
EXHIBIT E
RECYCLING PROGRAM
Franchisee shall provide an AB 341 Generator all services necessary to support
compliance with, and City's enforcement of, AB 341 requirements for Recycling of
Municipal Solid Waste and Recyclable Materials.
Franchisee's Recycling Program shall include, but not be limited to:
(A) Informing the AB 341 Generator of AB 341's Recycling requirements;
(B) Providing public education and training materials to the AB 341 Generator explaining
(1) the operation of the Recycling Program, and (2) the materials that may be placed in
the Recycling Container(s).
(C) Making available the following sizes and types of Containers for storage of Municipal
Solid Waste and Recyclable Materials: thirty (35) gallon, sixty-five (65) gallon, or ninety-
five (95) gallon Carts, two (2), three (3), four (4) and six (6) cubic yard Bins; and two (2),
three (3), and four (4) cubic yard split bins; and compactors in the following sizes: three
(3) cubic yard and four (4) cubic yard;
(D) Consulting with AB 341 Generators to determine, provide, and distribute appropriate
Containers, Bins, Roll Off Bins, or compactors;
(E) Providing AB 341 Generators with wheeled carts or other Containers and/or Bins, Roll
Off Boxes or compactors as necessary for the segregation and storage of Food Scraps
to be diverted, which, at a minimum, complies with Section 11.D of the Agreement;
(F) Working and coordinating with the AB 341 Generator, or its designee, to ensure a
smooth and effective Recycling Program at each Commercial Premises and Multifamily
Dwelling for which Franchisee is providing Municipal Solid Waste and/or Recyclable
Materials collection; and
(G) Processing collected Recyclable Materials and Processable Municipal Solid Waste
at a City -approved Clean or Dirty MRF.
Recycling Program Page E-1
EXHIBIT F
FOOD SCRAP DIVERSION PROGRAM
For those Food Scrap Generators subject to AB 1826, Franchisee shall provide all
services necessary to support compliance with, and City's enforcement of, AB 1826
requirements for Diversion of Food Scraps.
Franchisee's Food Scrap Diversion Program shall include, but not be limited to:
(A) Informing the Food Scrap Generator of AB 1826's Food Scrap Diversion
requirements;
(B) Providing public education and training materials to the Food Scrap Generator
explaining (1) the operation of the Recycling Program, and (2) the materials that may be
placed in the Recycling Container(s).
(C) Making available the following sizes and types of Containers for Food Scrap, storage:
thirty (35) gallon, sixty-five (65) gallon, or ninety-five (95) gallon Carts, two (2), cubic yard
Bins; and two (2) cubic yard Split Bins.
(D) Consulting with Food Scrap Generators to determine, provide, and distribute
appropriate Containers, Bins, Roll Off Bins, or compactors;
(E) Providing Food Scrap Generators with wheeled carts or other Containers and/or Bins,
Roll Off Boxes or compactors as necessary for the segregation and storage of Food
Scraps to be diverted, which, at a minimum, complies with Section 11.D of the Agreement;
and
(F) Working and coordinating with the Food Scrap Generator, or its designee, to ensure
a smooth and effective Food Scrap Diversion Program and the Diversion of substantially
all Food Scraps generated at each Commercial Premises for which Franchisee is
providing Food Scrap collection.
Food Scrap Diversion Program Page F-1
W -M
EXHIBIT G
CONSTRUCTION AND DEMOLITION DEBRIS RECYCLING PROGRAM
Franchisee shall provide all services necessary to support Customer compliance with,
and City's enforcement of, the California Green Building Standards Code requirements
for Diversion of Construction and Demolition Debris.
Franchisee's Construction and Demolition Debris Recycling Program shall include, but
not be limited to:
(A) Informing all Customers requesting Construction and Demolition Debris hauling
services of the requirements of the California Green Building Standards Code;
(B) Providing Containers and/or Bins, Roll Off Boxes, and Compactors as needed for
storage and transport of single -material Construction and Demolition Debris, and
commingled Construction and Demolition Debris;
(C) Providing Collection service of all Containers on a timely basis, which, at a minimum,
complies with Section 11.D of the Agreement; and
(D) Working and coordinating with Customer, or customer's recycling coordinator, to
ensure a smooth and effective Recycling program and the Diversion of a minimum of
sixty-five percent (65%) of all Construction and Demolition Debris generated at each of
Customer's job sites for which Franchisee is providing Construction and Demolition
Debris Collection service.
Franchisee shall inform Customers utilizing Containers and/or Bins and Roll Off Boxes
on a temporary basis, that materials being generated must be recycled pursuant to the
requirements of City Code and the California Green Building Standards Code.
Construction and Demolition Debris Recycling Program Page G-1
3-70
AMENDMENT NO. ONE TO
COMMERCIAL SOLID WASTE COLLECTION
NONEXCLUSIVE FRANCHISE AGREEMENT
BETWEEN THE CITY OF NEWPORT BEACH AND GOODWIN ENTERPRISES,
INC.
THIS AMENDMENT NO. ONE TO COMMERCIAL SOLID WASTE
COLLECTION NONEXCLUSIVE FRANCHISE AGREEMENT ("Amendment No. One")
is made and entered into as of this 28th day of February, 2017 ("Effective Date"), by and
between the CITY OF NEWPORT BEACH, a California municipal corporation and
charter city ("City"), and GOODWIN ENTERPRISES, INC., a California corporation
("Franchisee'), whose address is P.O. Box 7388, Capistrano Beach, California 92624,
and is made with reference to the following:
RECITALS
A. On March 1, 2007, City and Franchisee entered into a Nonexclusive Franchise
Agreement for commercial solid waste collection services in the City
("Agreement').
B. The Agreement is set to expire on March 1, 2017.
C. The parties desire to enter into this Amendment No. One to extend the term of
the Agreement to November 8, 2017.
NOW, THEREFORE, it is mutually agreed by and between the undersigned
parties as follows:
1. TERM
Section 2 of the Agreement is amended in its entirety and replaced with the
following: 'The term of this Agreement shall commence on the Effective Date, and shall
terminate on November 8, 2017 (`Termination Date"), unless terminated earlier as set
forth herein (`Term").
2. INTEGRATED CONTRACT
Except as expressly modified herein, all other provisions, terms, and covenants
set forth in the Agreement shall remain unchanged and shall be in full force and effect.
[SIGNATURES ON NEXT PAGE]
Goodwin Enterprises, Inc. Page 1
IN WITNESS WHEREOF, the parties have caused this Amendment No. One to
be executed on the dates written below.
APPROVED AS TO FORM:
CITY ATT
RR EY'S OFFICE
Date: o� o?A?'
By:
Aaron C. Harp wwv 1.441
City Attorney
ATTEST:
Date:
Leilani I. Brown
City Clerk
CITY OF NEWPORT BEACH,
a California municipal corporation
Date: N24.a
By: C
Dave Ki
City Manager
FRANCHISEE: GOODWIN
ENTERPRISES, INC., a California
corporation
Date:
Donny Goodwin
Chief Executive Officer
— D /
Date: 3 7
&Lyneoodwin
[END OF SIGNATURES]
Goodwin Enterprises, Inc. Page 2
all"ma,R//_.Oi
1071
�
Leilani I. Brown
City Clerk
CITY OF NEWPORT BEACH,
a California municipal corporation
Date: N24.a
By: C
Dave Ki
City Manager
FRANCHISEE: GOODWIN
ENTERPRISES, INC., a California
corporation
Date:
Donny Goodwin
Chief Executive Officer
— D /
Date: 3 7
&Lyneoodwin
[END OF SIGNATURES]
Goodwin Enterprises, Inc. Page 2
�EWPoRr = CITY OF
�NEWPORT BEACH
City Council Staff Report
January 24, 2017
Agenda Item No. 3
TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL
FROM: Mike Pisani, Municipal Operations Director - 949-644-3055,
- mpisani@newportbeachca.gov — -
TITLE: Second Reading of Ordinance to Temporarily Extend the
Nonexclusive Solid Waste Franchises
ABSTRACT:
The second reading and adoption of Ordinance No. 2017-1, would temporarily extend
the 37 nonexclusive solid waste franchises from March 1, 2017 to November 8, 2017, to
allow staff to continue to evaluate franchise revisions in light of new State regulations.
RECOMMENDATION:
a) Determine that the action is exempt from the California Environmental Quality Act
(CEQA) pursuant to Sections 15060(c)(2) and 15060(c)(3) of the CEQA Guidelines
because it will not result in a physical change to the environment, directly or
indirectly; and
b) Conduct second reading and adopt Ordinance No. 2017-1, An Ordinance of the City
Council of the City of Newport Beach, California, Temporarily Extending
Nonexclusive Solid Waste Franchises from March 1, 2017 to November 8, 2017 to
Ensure Adequate Provision of Solid Waste Collection Services within the City of
Newport Beach.
FUNDING REQUIREMENTS:
There is no fiscal impact related to this item.
DISCUSSION:
On January 10, 2017, the City Council introduced and passed to second reading
Ordinance 2017-1, which allows for the temporary extension of the 37 nonexclusive
solid waste franchises from March 1, 2017 to November 8, 2017.
This extension will allow staff to develop franchise and Municipal Code language that
will best service the needs of the city's residents, businesses, and visitors, while
complying with newly adopted State regulations.
3-1
Second Reading of Ordinance to Temporarily
Extend the Nonexclusive Solid Waste Franchises
January 24, 2017
Page 2
ENVIRONMENTAL REVIEW:
Staff recommends the City Council find this action is not subject to the California
Environmental Quality Act (CEQA) pursuant to Sections 15060(c)(2) (the activity will not
result in a direct or reasonably foreseeable indirect physical change in the environment)
and 15060(c)(3) (the activity is not a project as defined in Section 15378) of the CEQA
Guidelines, California Code of Regulations, Title 14, Chapter 3, because it has no
potential for resulting in physical change to the -environment, directly or indirectly.
NOTICING:
The agenda item has been noticed according to the Brown Act (72 hours in advance of
the meeting at which the City Council considers the item).
ATTACHMENT:
Attachment A - Ordinance No. 2017-1
3-2
ATTACHMENT A
ORDINANCE NO. 2017- 1
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY
OF NEWPORT BEACH, CALIFORNIA, TEMPORARILY
EXTENDING NONEXCLUSIVE SOLID WASTE
FRANCHISES FROM MARCH 1, 2017 to NOVEMBER 8,
2017 TO ENSURE ADEQUATE PROVISION OF SOLID
WASTE COLLECTION SERVICES WITHIN THE CITY OF
NEWPORT BEACH
WHEREAS, Article XIII of the City Charter and Sections 49500 through 49524 of
the Public Resources Code authorize the City of Newport Beach ("City") to enter into
nonexclusive franchise agreements for commercial solid waste handling services with
private solid waste enterprises;
WHEREAS, the City Charter and Newport Beach Municipal Code ("NBMC")
Chapter 12.63 establish requirements and procedures to grant a franchise to provide
solid waste handling services within the City;
WHEREAS, the City Council complied with state law, the City Charter and the
NBMC in granting nonexclusive franchise agreements for commercial solid waste
handling services to the private solid waste enterprises listed on Exhibit A, which is
attached hereto and incorporated herein by reference;
WHEREAS, the current nonexclusive solid waste franchise agreements are set
to expire on March 1, 2017; and
WHEREAS, the City desires to temporarily extend the term of solid waste
franchise agreements to November 8, 2017, to allow City staff time to evaluate the
existing haulers and agreements to ensure they are best serving the needs of the City's
residents, businesses, and visitors.
NOW THEREFORE, the City Council of the City of Newport Beach ordains as
follows:
Section 1: The City Council authorizes the City Manager or his or her
designee, to execute an amendment, in a form substantially similar to the attached
Exhibit B, which is incorporated herein by reference, extending the term of existing
nonexclusive franchise agreements for commercial solid waste handling services to
November 8, 2017. All other provisions of the nonexclusive solid waste franchise
agreements shall remain unchanged.
Section 2: In the event of any conflict between any nonexclusive solid waste
franchise agreement expiration term provided in this ordinance and any other previously
adopted ordinance, the expiration term in this ordinance shall prevail.
3-3
Section 3: The recitals provided in this ordinance are true and correct and are
incorporated into the substantive portion of this ordinance.
Section 4: If any section, subsection, sentence, clause or phrase of this
ordinance is for any reason held to be invalid or unconstitutional, such decision shall not
affect the validity or constitutionality of the remaining portions of this ordinance. The
City Council hereby declares that it would have passed this ordinance and each section,
subsection, sentence, clause or phrase hereof, irrespective of the fact that any one (1)
or more sections, subsections, sentences, clauses or phrases be declared invalid or
unconstitutional.
Section 5: The City Council finds the introduction and adoption of this
ordinance is not subject to the California Environmental Quality Act ("CEQA") pursuant
to Section 15060(c)(2) (the activity will not result in a direct or reasonably foreseeable
indirect physical change in the environment) and 15060(c)(3) (the activity is not a
project as defined in Section 15378) of the CEQA Guidelines, California Code of
Regulations, Title 14, Chapter 3, because it has no potential to have a significant effect
on the environment.
Section 6: The Mayor shall sign and the City Clerk shall attest to the passage
of this ordinance. The City Clerk shall cause the ordinance, or a summary thereof, to be
published pursuant to City Charter Section 414.
This ordinance was introduced at a regular meeting of the City Council of the City
of Newport Beach held on the 10th day of ianuary , 2017, and adopted on the
day of 2017, by the following vote, to -wit:
AYES, COUNCILMEMBERS
NOES, COUNCILMEMB
ABSENT COUNCILMEMBERS
KEVIN MULDOON
ATTEST:
LEILANI I. BROWN, CITY CLERK
3-4
APPROVED AS TO FORM:
CITY AT 'S OFFICE
7 t4,
AARON -C. HARP. CITY ATTORNEY
Exhibits: (A) List of Current Solid Waste Franchise Haulers; and
(B) Draft Amendment Extending Commercial Solid Waste Collection
Nonexclusive Franchise Agreements until November 8, 2017,
3
3-5
No.
Name
1
A2Z Recycling Services, Inc.
2
American Wrecking, Inc.
3
Athens Services
4
California Waste Services, LLC.
5
CR&R
6
Cousyn Grading and Demolition
7
Direct Disposal
8
Ecology Auto Parts, Inc.
9
GB Services, Inc.
10
Genesis Dispatch, Inc.
11
Goodwin Enterprises
12
Hartfield Construction Corp.
13
Haul Away Rubbish Service Co., Inc.
14
IRS Demolition
15
James Blomberg
16
JB Services
17
JD Demolition and Grading, Inc.
18
Kevin Ray Demolition
19
Key Disposal, Inc.
20
The Lane Company
21
Newport Coast Demolition
22
Praisler Hauling & Demolition, Inc.
23
Progressive Land Clearing, dba Thomas Demolition
24
Rainbow Disposal
25
RB Holt (Pacific Earthworks)
26
Robert's Waste Recycling, Inc.
27
Roche Excavating
28
Skyline Construction Services, Inc. dba Scor Industries
29
Southern California Environmental
30
Tierra Verde Industries
31
Tight Quarters, Inc.
32
Tim Greenlead Engineering
33
United Pacific Waste
34
Universal Bobcat & Hauling
35
Universal Waste Systems Inc.
36
Ware Disposal
37
Waste Management of OC
3-6
AMENDMENT NO. ONE TO
COMMERCIAL SOLID WASTE COLLECTION
NONEXCLUSIVE FRANCHISE AGREEMENT
BETWEEN THE CITY OF NEWPORT BEACH AND
THIS AMENDMENT NO. ONE TO COMMERCIAL SOLID WASTE
COLLECTION NONEXCLUSIVE FRANCHISE AGREEMENT ("Amendment No. One")
is made and entered into as of this _ day of 2017 ("Effective Date"), by
and between the CITY OF NEWPORT BEACH, a California municipal corporation and
charter city ("City'), and a ("Franchisee"), whose
address is , and is made with reference to the following:
RECITALS
A. On , 20 , City and Franchisee entered into a Nonexclusive
Franchise Agreement for commercial solid waste collection services in the City
("Agreement').
B. The Agreement is set to expire on March 1, 2017.
C. The parties desire to enter into this Amendment No. One to extend the term of
the Agreement to November 8, 2017.
NOW, THEREFORE, it is mutually agreed by and between the undersigned
parties as follows:
TERM
Section —of the Agreement is amended in its entirety and replaced with the
following: "The term of this Agreement shall commence on the Effective Date, and shall
terminate on November 8, 2017 ('Termination Date"), unless terminated earlier as set
forth herein ('Term").
2. INTEGRATED CONTRACT
Except as expressly modified herein, all other provisions, terms, and covenants
set forth in the Agreement shall remain unchanged and shall be in full force and effect.
[SIGNATURES ON NEXT PAGE]
Page 1
3-7
IN WITNESS WHEREOF, the parties have caused this Amendment No. One to
be executed on the dates written below.
APPROVED AS TO FORM: CITY OF NEWPORT BEACH,
CITY ATTORNEY'S OFFICE a California municipal corporation
Date: Date:
By: By:
Aaron C. Harp Dave Kiff
City Attorney City Manager
ATTEST: FRANCHISEE:
Date:
Date:
By: By:
leilani I. Brown
City Clerk
Date:
By:
[END OF SIGNATURES]
a
Page 2
WE
AMENDMENT NO. 1
TO COMMERCIAL SOLID WASTE COLLECTION
NONEXCLUSIVE FRANCHISE AGREEMENT BETWEEN THE CITY OF
NEWPORT BEACH AND GOODWIN ENTERPRISES
THIS AMENDMENT NO. 1 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 GOODWIN ENTERPRISES
("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(B) 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."
2. 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."
3. 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.
IN WITNESS WHEREOF, the parties hereto have executed this AMENDMENT NO. 1
on the date first above written.
:APPLOVE=DA,S TO FORM:
Cr
City Attorney
for the City of Newport Beach
ATTEST:
B - f / )1 4,&,
LaVonne Harkless,
City Clerk
CITY
A Mu
BEACH,
Edward D.Selii�h, Mayor
for the City of Newport Beach
FRANCHISEE:
By:
(Corporate Officer)
Title: � q 4c<N f'
Print Name:�Gj/N
By: /
(Fin cialOfficer)
Title: �/'" .42- /�
Print Name:
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 V 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 Goodwin Enterprise, Inc, a California
whose address is 33375 Christine, Winchester, California, 92596 ("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.
(` f
B. Upon the Effective Date of this Agreement, the parties agree that any prior
authorization relating to the conduct of commercial solid waste handling services in the City
arising under and pursuant to any prior franchise issued to Franchisee shall be deemed to be
terminated and of no further force or effect.
SECTION 2. TERM OF FRANCHISE
The term of this Agreement shall commence on the Effective Date, and shall terminate on
the 1st day of March, 2017 ("Termination Date"), unless terminated earlier as set forth herein
("Term").
SECTION 3. DEFINITIONS
Unless otherwise defined herein, or if the use or context clearly requires a different
definition, all words, terms and phrases in this Agreement and the derivations thereof shall have
the meanings set forth in Section 12.63.020 of the Code.
SECTION 4. FRANCHISE FEES
A. During the term of the Franchise, Franchisee shall pay to City franchise fees for
the privilege of providing commercial solid waste handling services in the City of Newport
Beach and for the use of public streets, right-of-ways and places for such purposes. The
franchise fee that Franchisee shall pay to the City shall be ten and a half percent (10.5%) of the
gross receipts for all commercial solid waste handling services provided by the Franchisee in the
City of Newport Beach ("Franchise Fees"). One half percent (.5%) of the Franchise Fee shall be
attributable to the maintenance and implementation of the City's Source Reduction and Recycling
Element "SRRE," and shall be separately accounted for, and used only for the costs stated in
Public Resources Code Section 41901 or any successor provision.
B Franchise Fees shall be paid quarterly on forms prescribed by the Administrative
Services Director.
C. Franchisee shall pay all required'Franchise Fees to:
City of Newport Beach
Attn: Administrative Services Director
3300 Newport Boulevard
Newport Beach, CA 92658
D. Franchise Fees shall be due and payable on the thirtieth (30th) day of the month
following the end of each quarter. Because the Effective Date for this Agreement is starting in
the middle of a quarter, the first payment of the Franchise Fees due and payable to the City from
the Effective Date to the end of the first quarter (i.e. March 31, 2007) will be due and payable on
the thirtieth (30`h) 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"d) late charge in an amount equal ten percent (10%) on both the amount of the
Fee outstanding and the first late charge. The second (2nd) late charge shall be in addition to the
first (15`) late charge. Execution of this Agreement shall constitute agreement by the parties that
the late charges set forth in this subsection is the minimum value of the costs and actual damages
caused by the failure of the Franchisee to pay the Fees within the allotted time. Such sum is
liquidated damages and shall not be construed as a penalty.
In addition to the late charges imposed on Franchisee for failing to pay Fees in
accordance with this Agreement, Franchisee shall pay interest on the amount of Fees and late
charges due and owing at the rate of one and one-half percent (1 %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
(0�1 ("
SECTION 6. DISPOSAL OF SOLID WASTE
A. Franchisee shall comply with all recycling and diversion requirements imposed by
law, ordinance, or regulation on the City and/or Franchisee. On a quarterly basis Franchisee shall
divert solid waste collected from landfills as follows: Year 1: fifty percent (50%); Year 2: fifty-
one percent (51%); Year 3: fifty-two percent (52%); Year 4: fifty-three percent (53%); Year 5:
fifty-four percent (54%); Years 6-10: fifty-five percent (55%). In no event shall Franchisee
deposit more solid waste at any landfill during any calendar quarter than the required diversion
rate mandated by the City. In the event new or additional diversion requirements are imposed by
law, ordinance or regulation on City and/or Franchisee, the City shall have the right to require
Franchisee to divert additional solid waste from landfills by providing Franchisee with ten (10)
days written notice of the new diversion requirements. Upon request of the General Services
Director, Franchisee shall provide all documents and information requested by the General
Services Director to prove that Franchisee has complied with this subsection, any applicable law,
ordinance, regulation, or condition related to recycling and diversion of solid waste.
B. Franchisee shall dispose of solid waste collected or transported by Franchisee only
by taking such solid waste to a State certified/licensed landfill, State certified/licensed transfer
station, State certified/licensed recycling facility or State certified/licensed materials recovery
facility which is lawfully authorized to accept that specific type of solid waste material.
Franchisee shall not dispose of solid waste by depositing it on any land, (except a permitted
facility) whether public or private, or in any river, stream or other waterway, or in any sanitary
sewer or storm drainage system. Nothing in this Agreement shall be deemed or construed as
authorizing Franchisee to operate a landfill, recycling center, or other solid waste disposal
facility.
C. All solid waste, in addition to recyclables, collected by Franchisee shall become
the property of Franchisee upon placement by the customer for collection. If Franchisee violates
the terms in Section 6(A) and Section 6(B) above, Franchisee agrees that the City has the future
right to direct that solid waste be delivered to a permitted disposal facility designated by City.
This exercise of "flow control" by the City shall be made upon at least 30 days prior written
notice to Franchisee, and written notice shall include the violation(s) prompting the City's action
regarding "flow control." Failure to comply with the recycling/diversion requirements and
delivery/disposal of materials to a certified/licensed facility shall be a material breach of this
agreement.
D. Franchisee shall include as a condition to its contractual agreement with its
customers a provision prohibiting disposal of hazardous waste in any of Franchisees vehicles or
disposal bins/containers, and other equipment.
E. Franchisee shall implement a load check program that includes, at a minimum, a
visual check of all containers to be emptied to protect against inclusion of hazardous waste and
shall prepare a written record of all hazardous waste discovered during the process. The records
shall comply with all State and Federal Hazardous Waste Regulations, shall be maintained for the
length of the term of the Franchise, and shall be made available to the City upon request.
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,
yc
prepared on such form as required by the General Services Director. Each monthly rerec ling records; and any complaints received by the Franchisee. Such monthly reports shall be
be submitted on or before the 15th day of the month following the end of the month (iport shall
.e. report
due April 15 for first month after the Effective Date) and submitted to:
General Services Director
City of Newport Beach
3300 Newport Blvd.
Newport Beach, CA 92663
B. If the report required under Subsection A is not filed by the due date specified
above, the report shall be deemed delinquent. If the report remains delinquent for more than
fifteen (15) days, Franchisee shall pay to City a delinquent report charge in the amount of One
Hundred Dollars ($100). If the report remains delinquent for more than forty-five (45) days,
Franchisee shall pay to City a delinquent report charge in the amount of Five Hundred Dollars
($500). Such delinquent report charges shall be in addition to any Franchise Fees or other
charges payable by Franchisee under this Agreement.
C. Franchisee shall comply with all recycling and diversion requirements imposed by
law, ordinance, or regulation on the City. Monthly reports stating the total amount (in tons) of
solid waste which Franchisee landfilled, recycled and collected should accurately reflect the
diversion rate required by the City (Year 1- 50%, Year 2- 51%, Year 3- 52%, Year 4- 53%, Year
5- 54%, Years 6-10- 55%). At the end of each quarter, monthly reports will be evaluated for
compliance with City diversion requirements. Failure to comply with the recycling and diversion
requirements shall be a material breach of this Agreement.
SECTION 8. ENVIRONMENTAL LIABILITY FUND FEE
A. City and Franchisee acknowledge the potential liability which can result from
commercial solid waste handling services under Federal and State environmental laws. City
intends to take reasonable actions to obtain protection and indemnification against future
environmental liability for solid waste generated within the City of Newport Beach and the
activities of Franchisee under this Agreement for handling such solid waste. To provide
protection and indemnification to City for Franchisee's solid waste handling activities in the City
of Newport Beach, Franchisee agrees to collect from its customers a fee for payment into an
Environmental Liability Fund which shall be a separate Fund established and maintained by City.
5
The Fund shall be used top chase insurance which will insure the City against environmental
liability which may be imposed upon City as a result of Franchisee's activities under this
Franchise and/or shall be used to pay environmental liability costs and expenses arising from or
related in any way to commercial solid waste handling services. The Fund shall not be
commingled with or included in the City's General Fund.
B. The fee that Franchisee shall pay to the City Environmental Liability Fund shall
be five and a half percent (5.5%) of the gross receipts for all commercial solid waste handling
services provided by the Franchisee in the City of Newport Beach (`Environmental Liability
Fund Fee(s)"). Payment of the Environmental Liability Fund Fee shall be made concurrently
with the payment of the Franchise Fees specified in Section 4 of this Agreement. Franchisee
agrees to pay late charges and interest as provided in Section 4(E) of this Agreement if
Franchisee fails to pay the Environmental Liability Fund Fee within the time frames set forth
herein.
C. Compliance with this obligation shall not limit Franchisee's indemnification as set
forth in Section 11, however, the indemnification provisions of 11(C) shall be secondary to the
Fund established by this Section or any insurance purchased with the funds provided.
SECTION 9. FRANCHISEE'S RECORDS
A. Franchisee shall keep and maintain books of account, income statements, tonnage
reports and supporting documents and all other documents that relate in any way to business
transactions conducted by Franchisee in connection with the commercial solid waste handling
services of Franchisee under this Agreement during the Term of this Agreement and for a
minimum period of three (3) years, or for any longer period required by law, after the
Termination Date. Such records shall be kept at Franchisee's place of business and shall be
clearly identifiable
B. Franchisee shall allow a representative of City to examine, audit and make
transcripts or copies of the books of account, income statements, tonnage reports and supporting
documents, and all other documents that relate in any way to business transactions conducted by
Franchisee in connection with the commercial solid waste handling services of Franchisee under
this Agreement at Franchisee's place of business during normal business hours within three (3)
working days of the City Manager, or his designees request or demand to inspect and/or audit
these records. The purpose of such inspection and/or audit shall be for verification of the Fees
paid by Franchisee under this Agreement, and the accuracy thereof; and for verification of the
amounts of solid waste reported by Franchisee pursuant to this Agreement. Franchisee's books of
account, income statements, tonnage reports and other documents accessed by City shall be kept
confidential unless these documents are deemed necessary by City to enforce the terms of this
Agreement or are required to be produced pursuant to any applicable law.
C. The parties agree that Franchisee's failure to provide its records in accordance
with City's request to examine, audit and make transcripts or copies of the books of account,
income statements, tonnage reports and supporting documents in accordance with Subsection B
above, shall be considered a material breach of this Agreement and will result in damages being
C
sustained by City. Such damages are, and will continue to be, impracticable and extremely
difficult to determine. The parties agree that if Franchisee fails to provide its records in
accordance with Subsection B above, the City may, in its discretion terminate this Agreement
and/or charge a late charge in the amount of Two Hundred Fifty and No/100 Dollars ($250.00)
for each working day that Franchisee does not provide said records. Execution of this Agreement
shall constitute agreement by the parties that the late charge set forth in this subsection is the
minimum value of the costs and actual damages caused by the failure of the Franchisee to
provide records in accordance with Subsection B above. Such sum is liquidated damages and
shall not be construed as a penalty.
D. Franchisee shall reimburse City for City's costs in performance of an audit if, as a
result of the audit it is determined:
1. There was any intentional misrepresentation by Franchisee with respect to
the amount of Fees due to the City, or
2. There is a one thousand dollars ($1,000.00) or greater discrepancy in the
amount of Fees due to the City.
Such reimbursement shall be paid by Franchisee within thirty (30) days of the date City
notifies Franchisee in writing that the Franchisee is liable to reimburse the City in conformance
with this subsection and the amount of City's audit costs.
E. If Franchisee refuses to provide City's auditor with its records as required by
Subsection B above or disagrees with City's audit findings, then Franchisee may, within ten (10)
days after written request by City's designated representative for records disclosure, or within ten
(10) days after service of the audit finding, appeal the imposition of late charge or the audit
findings by filing a written appeal with the City Council specifying the basis of Franchisee's
failure to provide records, or the reason for its disagreement with City's audit findings. If
Franchisee fails to timely request such an appeal to the City Council, then the late charges and/or
discrepancy determinations shall be final and conclusive and the amounts shall become
immediately due and payable and/or the violation shall be deemed established.
SECTION 10. INSURANCE REQUIREMENTS
Without limiting Franchisee's indemnification of City, Franchisee shall obtain, provide
and maintain at its own expense during the term of this Agreement, a policy or policies of
liability insurance of the type and amounts described below and in a form satisfactory to City.
A. Certificates of Insurance. Franchisee shall provide certificates of insurance with
original endorsements to City as evidence of the insurance coverage required herein. Insurance
certificates must be approved by City's Risk Manager prior to commencement of the Franchise.
Current certification of insurance shall be kept on file with City at all times during the term of
this Agreement.
B. Signature. A person authorized by the insurer to bind coverage on its behalf shall
sign certification of all required policies.
Il
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 anyway 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.
3
3. This insurance shall act for each insured and additional insured as though a
separate policy had been written for each, except with respect to the limits of liability of the
insuring company.
4. The insurer waives all rights of subrogation against City, its elected or
appointed officers, officials, employees, agents and volunteers.
5. Any failure to comply with reporting provisions of the policies shall not
affect coverage provided to City, its elected or appointed officers, officials, employees, agents or
volunteers.
6. The insurance provided by this policy shall not be suspended, voided,
canceled, or reduced in coverage or in limits, by either party except after thirty (30) calendar days
(10 calendar days written notice of non-payment of premium) written notice has been received by
City.
F. Timely Notice of Claims. Franchisee shall give City prompt and timely notice of
claim(s) made or suit instituted arising out of or resulting from Franchisee's performance under
this Agreement.
G. Additional Insurance. Franchisee shall also procure and maintain, at its own cost
and expense, any additional kinds of insurance, which in its own judgment may be necessary for
its proper protection and prosecution of the work.
SECTION 11. RESPONSIBILITY FOR DAMAGES AND INJURY/INDEMNIFICATION
A. Franchisee Responsibility. Franchisee shall be responsible for any damages
caused as a result of Franchisees acts or omissions including, but not limited to injuries to or
death of any person or damage to public and/or private property and damages public
improvements as a result of Franchisees placement and retrieval of the commercial solid waste
containers.
B. General Indemnification. Franchisee shall indemnify, hold harmless, and defend
City, and each of its past, present and future elected officials, officers, employees, agents,
consultants, volunteers, affiliates, assignees, representatives, attorneys, subsidiaries, and
affiliated entities and their respective successors, heirs and assigns (collectively, "Indemnified
Parties") harmless for, from and against any costs, expenses, damages, and losses, including
actual attorneys fees ("Losses") of any kind or character to any person or property arising directly
or indirectly from or caused by any of the following: (i) any act or omission of Franchisee or its
respective officers, directors, shareholder members, partners, employees, agents, contractors,
subcontractors, suppliers, representatives and affiliates ("Franchisee Representatives"); (ii)
Franchisee's or Franchisee Representative's activities; (iii) any accident or casualty within or
arising out of the services/work performed under the Franchise and/or this Agreement; (iv) any
violation or alleged violation of any law, ordinance or statute now or hereafter enacted arising out
of services/work performed pursuant to the Franchise and/or this Agreement; (v) the negligence
or willful misconduct of Franchisee or any of Franchisee representatives in the performance of
0
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."
IN
D. AB939 Indemnification. Franchisee agrees to meet all requirements of City's
Source Reduction and Recycling Element as to the portion of the solid waste stream handled by
Franchisee. Franchisee agrees to protect, defend, indemnify, and hold City harmless against all
fines or penalties imposed by the California Integrated Waste Management Board, or other entity,
arising from the failure of Franchisee to meet the Integrated Waste Management Act diversion
requirements with respect to the portion of the commercial waste stream collected by Franchisee.
E. Notice. City agrees to give notice to Franchisee when the City receives a claim
for damages or other liability for which Franchisee has provided indemnification under this
Section.
SECTION 12. COMMERCIAL SOLID WASTE COLLECTION SERVICES
A. Frequency of Collection. Franchisee shall collect all solid waste, including
recyclable materials, as authorized in this Agreement, on a schedule to be agreed upon between
the Franchisee and its customers. The schedule shall provide for collection service at least once
per week; provided, however, that such schedule shall not permit the accumulation of solid waste
in quantities that are unreasonable or detrimental to the public health or safety. Requests for
collection from premises with overflowing bins or containers, or from premises where there have
been missed pickups, shall be serviced within 24 hours of any such request by the customer or
City. If requested by the City at any time, Franchisee's collection schedule shall be submitted to
the City for its approval.
B. Hours and Days of Collections. No collection of solid waste shall occur in any
area of the City after 6:30 p.m. and prior to 5:00 a.m. No collection of solid waste from
commercial premises within 500 feet of occupied residential premises, motels or hotels shall be
made by Franchisee, nor shall any of Franchisee's collection vehicles be operated in any
residential areas of the City except between the hours of 7:00 a.m. and 6:30 p.m., Monday
through Friday, nor on any Saturday or Sunday, except between the hours of 8:00 a.m. and 6:00
p.m. Collection on Sundays shall be limited to the disposal of commercial waste from
commercial premises which require collection every day due to public health and safety
concerns.
SECTION 13. VEHICLES AND EQUIPMENT
A. Any and all containers provided to customers of Franchisee for storage, collection
or transportation of commercial solid wastes shall meet the requirements designated by the
General Services Director as well as State of California minimum standards for solid waste
handling established under Public Resources Code Section 43020 and applicable health
requirements.
B. All containers and all vehicles used by Franchisee in the performance of
commercial solid waste handling services shall be marked with Franchisee's name and telephone
number in letters which are not less than four inches (4") high or which are easily read by the
general public.
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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 the 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 3111 of the City Charter, Ordinance No. 200_1-__I__ and in accordance with the terms and
conditions of this Agreement.
B. During the Term of this Agreement, Franchisee and City agree that the City's
ordinances may be amended as provided herein, as provided in Chapter 12.63 or as necessary to
permit the City to comply with changes to federal, state, and local legislative regulatory
requirements, which may affect or alter City's solid waste handling obligations or requirements
for solid waste management. Franchisee agrees to comply with any such amendment of the City's
ordinances.
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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
tern of this Agreement expires:
1. Franchisee shall have no right or authority to engage in commercial solid
waste handling operations in the City of Newport Beach, subject to the provisions of Sections
49520-49523 of the Public Resources Code.
2. Franchisee shall, however, remain liable to City for any and all Franchise
Fees and Environmental Liability Fund Fees that would otherwise be payable by Franchisee, for
any and all late charges and interest assessed pursuant to Section 4 of this Agreement, and for
any and all delinquent report/record charges assessed pursuant to Sections 7 or 9 of this
Agreement.
3. Franchisee shall have a continuing obligation to submit to City all reports
required by Sections 7 and 9 of this Agreement which relates to commercial solid waste handling
14
services performed by Franchisee up to and including the date of termination, suspension, or
expiration.
4. Franchisee shall allow the solid waste generators served by Franchisee to
arrange for commercial solid waste handling services with a solid waste enterprise collector
authorized to perform such services, without penalty or liability for breach of contract on the part
of the generators, for such period of time as Franchisee is not authorized to perform such services
because of termination or suspension.
5. Franchisee agrees to continue to provide the indemnifications required in
this contract after its suspension or termination. Such indemnifications include, but are not
limited to, the hazardous materials indemnification and AB939 indemnification as set forth in
Section 11.
C. In the event this Franchise is terminated pursuant to Subsection A above, then
within the time period specified by the City Council, Franchisee shall remove all of Franchisee's
commercial solid waste containers, from all Franchisee's collection service locations and shall
properly dispose of all solid waste in such containers.
D. In the event the Franchise is terminated pursuant to Subsection A above or expires
without an extension of the term and without a grant of a subsequent franchise allowing
Franchisee to continue performing such services, then within ten (10) days of such termination or
expiration Franchisee shall either:
1. Submit to City's General Services Director a list of the names and
addresses of solid waste generators in Newport Beach for which Franchisee provided services as
of the date of termination or expiration (i.e. Franchisee's City of Newport Beach customer list);
or
2. Send written notification to each solid waste generator on Franchisee's
customer list that Franchisee is no longer authorized to provide commercial solid waste handling
services in the City of Newport Beach. Such notification shall be in the form provided by City's
General Services Director and shall be personally delivered or shall be sent by first class mail,
postage prepaid, to the customers' billing addresses. Franchisee shall submit to City's General
Services Director an affidavit, signed under penalty of perjury, stating that the required
notification has been provided by Franchisee to all of Franchisee's City of Newport Beach
customers.
SECTION 19. ASSIGNMENT
Franchisee shall not assign, sell, subcontract, transfer or otherwise delegate its authority
to perform any portion of the solid waste handling services or obligations under the Franchise
without prior express consent of the City Council. This prohibition includes any transfer of
ownership or control of Franchisee, or the conveyance of a majority of Franchisee's stock to a
new controlling interest. City s consent shall not be unreasonably withheld.
15
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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: �?ucG�Wirl EhtP.► ri58 .inc.
nffj5
r er 25 91(0
Notice shall be deemed effective on the date personally served or, if mailed, three
(3) days after the date deposited in the mails.
B. Integrated Agreement. This Agreement represents the full and complete understanding
of every kind or nature whatsoever between the City and Franchisee, and all preliminary
negotiations and other agreements of any kind or nature are merged herein. No verbal agreement
or implied covenant shall be held to vary the provisions herein.
C. Amendments. This Agreement supersedes all prior agreements and
understandings between the parties and may not be modified or terminated orally, and no
modification, termination or attempted waiver of any of the provisions hereof shall be binding
unless in writing and signed by the party against whom the same is sought to be enforced.
D. Applicable Law. The laws of the State of California, and applicable Federal law,
shall govern this Agreement and all matters relating to it and any action brought relating to this
Agreement shall be adjudicated in a court of competent jurisdiction in the County of Orange.
E. Authori . The parties signing below represent and warrant that they have the
requisite authority to bind the entities on whose behalf they are signing.
F. Severability. If any term or portion of this Agreement is held to be invalid, illegal,
or otherwise unenforceable by a court of competent jurisdiction, the remaining provisions of this
Agreement shall continue in full force and effect.
G. Waiver. A waiver by either party of any breach, of any term, covenant or
condition contained herein shall not be deemed to be a waiver of any subsequent breach of the
same or any other term, covenant or condition contained herein, whether of the same or a
difference character.
16
H. Interpretation. The terms of this Agreement shall be construed in accordance with
the meaning of the language used and shall not be construed for or against either party by reason
of the authorship of this Agreement or any other rule of construction that might otherwise apply.
I. Equal Opportunity Employment. Franchisee represents that it is an equal
opportunity employer and it shall not discriminate against any authorized subcontractor,
employee or applicant for employment because of race, religion, color, national origin, handicap,
ancestry, sex or age.
J. Compliance with Laws: Franchisee shall at its own cost and expense comply with
all statutes, ordinances, regulations and requirements of all governmental .entities, including
federal, state, county or municipal, whether now in force or hereinafter enacted. Franchisee
agrees to obtain a business license from the City in accordance with the Code. The parties hereto
agree that the Franchise and this Agreement are the only authorizations to conduct solid waste
collection business in the City and that the issuance of a business license does not grant the
Franchisee a right to conduct solid waste collection or other business in the City.
K. Conflicts of Interest: Franchisee or its employees may be subject to the provisions
of the California Political Reform Act of 1974 (the "Act"), which (i) requires such persons to
disclose any financial interest that may foreseeably be materially affected by the work performed
under this Agreement, and (ii) prohibits such persons from making, or participating in 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
t^
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:
A, Cff,
AARON C. HARP
Assistant City Attorney
"CITY"
CITY OF NEWPORT BEACH, a Municipal
Corporation
BY:
STEVEN OS Y,
Mayor
NAME:
(Print)
TITLE: C> -Q", .
DATE:
BY:
NAME:
(Print)
TITLE:
DATE:
18
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, ClpOdu)1✓1 ' raewrl ' 1 -mc . hereby
accepts the grant of the Nonexclusive Franchise gr nted 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:— GU 01
F NCHISE
NAME:Goo 0
TITLE: CV\Nk. r y\
CITY CLERKS'S VERIFICATION OF ACCEPTANCE
I, LaVonne M. Harkless, ity Clerk, ce ify that the above acc� p'tanc of Franchise was
received by me on Pro �J 2007, at '7`� 3� a. p.m.
i
C0u';lCI MU'DA
�D.
CITY OF NEWPORT BEACH
CITY COUNCIL STAFF REPORT
Agenda Item No. 19
March 13, 2007
TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL
FROM: General Services Department
Mark Harmon, Director, 949-644-3055, mharmonacity newport-
beach.ca.us
SUBJECT: COMMERCIAL SOLID WASTE COLLECTION: Award of Non -
Exclusive Solid Waste Collection Franchise to Franchisees
ISSUE:
Should the City Council award a Non-exclusive Solid Waste Franchise for
commercial collection to those Solid Waste Collection Companies listed in Exhibit
A, and pass to second reading on March 27, 2007?
RECOMMENDATION:
Conduct the. public hearing; Introduce Ordinance No. 2007-_ granting a Non-
exclusive Solid Waste Franchise for commercial collection to those Solid Waste
collection companies listed in Exhibit A of the staff report; and pass to second
reading on March 27, 2007.
DISCUSSION:
Background:
Solid waste is collected, recycled, and disposed of by either City crews or
commercial solid waste haulers. City crews collect approximately 75% of all
residential solid waste while private haulers collect the remainder of the
residential wastestream and all commercial solid waste.
The City s integrated solid waste management program is structured to ensure
the health and safety of all residents and business owners. In addition, A6939
requires cities in California to divert 50% of municipal solid waste from the landfill
each year. Since this mandate was initiated in 2000, the City has met the
statewide requirements in 2001, 2002, 2003, 2004 and 2005. If the City fails to
achieve the 50`Yo diversion rate, a fine of up to $10,000 can be imposed by the
California Integrated Waste Management Board.
Award of Non -Exclusive Solid Waste Collection Franchise to Solid Wa��hran3 s
2007
Page 2
The City utilizes a non-exclusive franchise system to manage commercial solid
waste collection. This system helps the City in its efforts to meet AB939
requirements and also establishes a competitive commercial solid waste
collection system for businesses in the City. Additionally, the franchise system
stipulates a franchise fee in the amount of 16% of gross monthly paid receipts be
paid to the City. These funds are used to fund environmental insurance
premiums, maintenance of city infrastructure, and administrative costs tied to
managing the franchise system.
Article XIII of the City Charter (Granting of Franchises) and Chapter 12.63 of the
Municipal Code (Solid Waste Management) establish requirements and
procedures to grant a franchise to provide solid waste handling services within
the City. There are currently twenty-five solid waste franchisees operating under
separate agreements to collect and transport solid waste generated within the
City limits. There is no limit on the number of franchises that Council may
approve. Such a policy permits competitive, service-oriented refuse operations.
Franchise Agreement
Staff proposes to update and renew the current non-exclusive solid waste
franchise agreements and include all the current haulers to participate in this
change: American Wrecking, Inc., CR&R, Cousyn Grading and Demolition, Direct
Disposal, Federal Disposal, Goodwin Enterprises, Greenleaf Grading Company,
IRS Demolition, JB Services, Kevin Ray Demolition, Key Disposal, Newport
Coast Demolition, Pacific Earthworks d.b.a. RB Holt, Progressive Land Clearing
d.b.a. Thomas Demolition, Rainbow Disposal, Republic Services, Robert's Waste
Recycling, Inc., Roche Excavating, Southern California Environmental, The Lane
Company, Tight Quarters, Inc., Tim Greenleaf Engineering, Ware Disposal,
Waste Management, West Coast Land Clearing, Inc. No additional franchised
haulers are added with this action.
The following is a summary of the significant changes to the Non -Exclusive Solid
Waste Collection Franchise Agreement:
® Section 2: New Agreement length will be five years, with five 1 -year
extensions.
o Section 4E, Franchise Fees: The late charge amount and interest fees
were slightly revised
® Section 5, Cash Deposit: The cash deposit was .raised to $5,000 from
$3,000 in order to place any commercial solid waste container on public
property.
® Section 6, Disposal of Solid Waste: This section further defines recycling
and disposal requirements. More specifically, a diversion rate of at least
50% is explicitly required in the new Agreement.
11
U
Award of Non -Exclusive Solid Waste Collection Franchise to Solid Waste Franchisees
March 13, 2007
Page 3
• Section 9c, Franchisee's Records: This section was added to assist in
auditing purposes. It helps protect the City from financial damages
incurred due to the hauler not providing accurate information.
• Section 9e, Franchisee's Records: This section was added to allow the
hauler to appeal any late charges imposed by the City.
• Sectionl2b, Commercial Solid Waste Collection Services: This section
was added to extend the hours of operation for haulers.
• Section 13, Vehicles and Equipment: This section was added to ensure
that haulers are using properly licensed drivers and vehicles that have
been approved according to California Highway Patrol standards.
Pending completion of the public hearing and Council approval on March 27,
2007, the franchise with those Solid Waste Collection Companies listed in Exhibit
A will take effect March 1, 2007, retroactively, and will expire on March 1, 2012.
Environmental Review:
The Ordinance and Franchise Agreement are categorically exempt under the
California Code of Regulations Sections 15301 and 15308 defined as "existing
operations and facilities" and as "actions by regulatory agencies for protection of
the environment" respectively. Use of the above exemption classifications are
appropriate because the Ordinance and Franchise Agreement do not change nor
expand existing solid waste operations and facilities within the City. The
Ordinance is also consistent with the goals of California State Assembly Bill 939,
The California Solid Waste Management Act as well as the objectives of the
City's Source Reduction and Recycling Element (SRRE).
Prepared by:
Andrea M. Riles
Management Assistant
Submitted
Mark Harmon t
General Services Director
Reviewed by:
�C r
Aaron Harp
Assistant City Attorney
Award of Non -Exclusive Scild Waste Collection Franchise to Solid Waste Franchisees
March 13, 2007
Page 4
Attachments:
(1) Ordinance No. 2007 —Ordinance granting a Non -Exclusive
Solid Waste Franchise to Solid Waste Collection Companies
in Exhibit A.
(2) Non -Exclusive Commercial Solid Waste Franchise
Agreement
(3) Exhibit A
M
ORDINANCE NO. 2007 -
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
The City Council of the City of Newport Beach does ordain as follows:
SECTION 1: Findings
A. Article x111 of the City Charter, Chapter 12.63 of the City of Newport Beach Municipal
Code, and Sections 49300 and 4950049523 of the Public Resources Code, authorize
the City to enter into non-exclusive franchise agreements for commercial solid waste
handling services. with private solid waste enterprises.
B. The City Charter and Chapter 12.63 establish requirements and procedures to grant a
. franchise to provide solid waste handling services within the City of Newport Beach.
C. In compliance with the City Charter, a duly noticed public hearing was held on March
13°i and 27h 2007 to consider the granting of a franchise to those persons and entities
listed in Exhibit A ("Franchisees").
D. Having considered all oral and documentary evidence, presented to the City Council at
the public hearing, the City Council has determined that the granting of a non-exclusive
franchise to each of the Franchisees is in the public interest.
SECTION 2: Definitions
Unless defined herein, all words, terms, phrases in this Ordinance shall have the meanings set
forth in Section 12.63.020 of Chapter 12.63 of the Newport Beach Municipal Code.
SECTION 3: Franchise Agreements
A. Grant of Franchise. There is hereby granted each of the Franchisees listed in Exhibit
A, a non-exclusive franchise to operate, maintain and provide solid waste handling
services along, across and over the public streets, alleys, public ways and public places
dedicated for public use in the City.
B. Non-exclusive Grant. The right to use City streets, alleys, public ways and places for
the purposes set forth in this Ordinance, shall not be exclusive and the City reserves the
right to grant a similar use of streets, alleys, public ways and places to any person at
any time during the term of this franchise.
C
C. Term of Franchises. The tenn of the franchise per Section 2 of the Franchise
Agreement ("Agreement") attached hereto as Exhibit B, Commercial Solid Waste
Collection Nonexclusive Franchise Agreement between the City of Newport Beach and
Franchisee is hereby adopted, approved and incorporated into this Ordinance by
reference, shall commence at 12:01 a.m., on Manch 1, 2007 and expire on March 1,
2012. The franchise shall take effect on the date specified above. provided that the
applicable franchisee has filed written notice of acceptance in accordance with the
requirement of Section 4 of this Ordinance.
D. Franchise Fees.
(1) During the term of the franchise, Franchisees 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 each 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 applicable franchisee in the City of
Newport Beach ("Franchise Fees"). One half percent (.5%) of the Franchise
Fees shall be attributable to the maintenance and Implementation of the CIVS
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.
(2) The fee that each franchisee shall pay to the City Environmental Liability Fund ie
shall be five and a half percent (5.5%) of the gross receipts for allcommercial
solid waste handling services provided by the applicable franchisee in the City of
Newport Beach ("Environmental Liability Fund Fee"). Payment of the
Environmental Liability Fund Fee shall be made concurrently with the payment of
the Franchise Fees specified in Section 4 of the Franchise Agreement.
E. Inclusion of Franchise Documents. Franchisees shall comply with and shall be
bound by all of the terms, provisions and conditions contained in the City Charter, this
Ordinance, Chapter 12.63 of the Newport Beach Municipal Code and the Franchise
Agreement.
SECTION 4: Effective Date
This Ordinance shall become effective 30 days from and after the date of its adoption;
provided, however, franchises granted by this Ordinance shall not become effective
unless and until the applicable franchisee files written acceptance of the franchise with
the City Clerk, and delivers to the City all bonds and insurance policies required to be
furnished in accordance with the requirements of the Franchise Agreement. The written
acceptance shall be in form and substance as prescribed by the City Attorney and shall
operate as an acceptance of each and every term, condition and limitation contained in
this Ordinance, the Franchise Agreement, Article XIII of the City Charter, and Chapter
12.63 of the Newport Beach Municipal Code. Each franchisee shall file written
acceptance of the franchise no later than ten (10) days after the adoption of this
Ordinance.
SECTION 5: CEQA Exemption
The City Council of the City of Newport Beach finds that this Ordinance is categorically exempt
under the California Code of Regulations Sections 15301 and 15308 defined as "existing
operations and facilities° and as "actions by regulatory agencies for protection of the
environment" respectively. Use of the above exemption classifications are appropriate
because this Ordinance does not change nor expand existing solid waste operations and
facilities within the City. The Ordinance is also consistent with the goals of California State
Assembly Bill 939, The Califomia Solid Mste Management Act as well as the objectives of the
City's Source Reduction and Recycling Element (SRRE). The City Manager is authorized to
execute and the City Clerk to file a Notice of Exemption with the Orange County Clerk.
SECTION 6: Severability
If any section, subsection, sentence, clause or phrase of this Ordinance is, for any reason,
held to be invalid or unconstitutional, such decision shall not affect the validtty or
constitutionality of the remaining portions of this Ordinance. The City Council hereby declares
that it would have passed this Ordinance, and each section, subsection, clause or phrase
thereof, irrespective of the fact that any one or more sections, subsections, sentences,
® clauses, or phrases be declared unconstitutional.
`® SECTION 7: Adoption of Ordinance
This Ordinance was introduced at a regular meeting of the City Council of the City of Newport
Beach, held on the 13th day of March 2007 and adopted on the 27th day of March 2007, by
the following vote to wit:
AYES, COUNCIL MEMBERS
NOES, COUNCIL MEMBERS
ABSTAINED, COUNCIL MEMBERS
ABSENT, COUNCIL MEMEBERS
3
MAYOR
ATTEST:
CITY CLERK
ri
•
u
C
COMMERCIAL SOLID WASTE COLLECTION
NONEXCLUSIVE FRANCHISE AGREEMENT BETWEEN THE CITY OF
NEWPORT BEACH AND
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 a (type of
business, i.e., an individual, a partnership, a joint venture, a California Corporation or some other
business entity] whose address is California,
("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, C1TY AND FRANCHISEE DO HEREBY AGREE AS
FOLLOWS:
SECTION 1, GRANT OF FRANCHISE
A- By Ordinance No. 200_- 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 NewportBeach and to use the public sheets
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. 200= 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 franchise issued to Franchisee shall be deemed to be
terminated and of no further force or effect.
SECTION 2. TERM OF FRANCHISE
The term of this Agreement shall commence on the Effective Date, and shall terminate on
the 1st day of March, 2012 ( Termination Date"), unless terminated earlier as set forth herein
(`"Ter' . The City Manager may approve up to five, additional one-year extensions with 6"y
written notice from the City.
SECTION 3. DEFINITIONS
Unless otherwise defined herein, or if the use or context clearly requires a different
definition, all words, terms and phrases in this Agreement and the derivations thereof shall have
the meanings set forth in Section 12.63.020 of the Code.
SECTION 4. FRANCHISE FEES
A. During the term of the Franchise, Franchisee shall pay to City franchise fees for
the privilege of providing commercial solid waste handling services in the City of Newport
Beach and for the use of public streets, right-of-ways and places for such purposes. The
franchise fee that Franchisee shall pay to the City shall be ten and a half percent (10.5%) of the
gross receipts for all commercial solid waste handling services provided by the Franchisee in the
City of Newport Beach ("Franchise Fees"). One half percent (.5016) 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 fors 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 (301h) day of the month
following the end of each quarter. Because the Effective Date for this Agreement is stinting in
the middle of a quarter, the fust 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
Environmental Liability Fund Fee shall collectively be refereed to as "Fee(s)"), payments within
the time allowed will result in damages being sustained by City. Such damages are, and will
continue to be, impracticable and extremely difficult to determine. If Fees are not paid by
Franchisee when due then in addition to the Fees, Franchisee shall pay a late charge in an amount
equal to ten percent (10%) of the amount of the Fee that was not timely paid by Franchisee. If
Franchisee fails to pay delinquent Fees within thirty (30) days of the date due, Franchisee shall
pay a second (2nd) late charge in an amount equal ten percent (10%) on both the amount of the
Fee outstanding and the fust late charge. The second (2"d) late charge shall be in addition to the
fust (1g) late charge. Execution of this Agreement shall constitute agreement by the parties that
the late charges set forth in this subsection is the minimum value of the costs and actual damages
caused by the failure of the Franchisee to pay the Fees within the allotted time. Such sum is
liquidated damages and shall not be construed as a penalty.
In addition to the late charges imposed on Franchisee for failing to pay Fees in
accordance with this Agreement, Franchisee shall pay interest on the amount of Fees and late
charges due and owing at the rate of one and one-half percent (1'/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
is 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 tiling of such statement preclude the City from collecting by
appropriate action the sum that is actually due and payable.
FL 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
($51000.00) 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.
SECTION 6. DISPOSAL OF SOLID WASTE
3
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 fifty percent (509/o) of all solid waste collected by Franchisee from landfills. In no
event shall Franchisee deposit fifty percent (50%) or more of the solid waste collected pursuant
to this Agreement, at any landfill during any calendar quarter. In the event new or additional
diversion requirements are imposed by law, ordinance or regulation on City and/or Franchisee,
the City shall have the right to require Franchisee to divert additional solid waste from landfills
by providing Franchisee with ten (10) days written notice of the new diversion requirements.
Upon request of the General Services Director, Franchisee shall provide all documents and
information requested by the General Services Director to prove that Franchisee has complied
with this subsection, any applicable law, ordinance, regulation, or condition related to recycling
and diversion of solid waste.
B. Franchisee shall dispose of solid waste collected or transported by Franchisee only
by taking such solid waste to a State cerlified/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.
greement
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.
quipment
E. Franchisee shall implement a load check program that includes, at a minimum, a
visual check of all containers to be emptied to protect against inclusion of hazardous waste and
shall prepare a written record of all hazardous waste discovered during the process. The records
shall comply with all State and Federal Hazardous Waste Regulations, shall be maintained for the
length of the term of the Franchise, and shall be made available to the City upon request.
SECTION 7. REPOR'T'S
A- Franchisee shall submit to City monthly reports stating the total amount (in to
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 fust 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 a 50%
diversion rate as required by AB939. At the end of each quarter, monthly reports will be
evaluated for AD939 compliance. Failure to comply with the recycling and diversion
requirements shall be a material breach of this Agreement.
SECTION & 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 fiam 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 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
5
related in any way to commercial solid waste handling services. The Find 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 previsions of 11(C) shall be secondary to the
Fund established by this Section or any insurance purchased with the funds provided.
SECTION 9. FRANCHISEE'S RECORDS
A. Franchisee shall keep and maintain books of account, income statements, tonnage
reports and supporting documents abe 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 teams of this
Agreement or are required to be produced pursuant to any applicable law.
C. The parties agree that Franchisee's failure to provide its records in accordance
with City's request to examine, audit and make transcripts or copies of the books of account,
income statements, tonnage reports and supporting documents in accordance with Subsection B
above, shall be considered a material breach of this Agreement and will result in damages being
sustained by City. Such damages are, and will continue to be, impracticable and extremely
difficult to determine. The parties agree that if Franchisee fails to provide its records in
accordance with Subsection B above, the City may, in its discretion terminate this Agreement
in
and/or charge a late charge in the amount of Two Hundred Fifty and No/I00 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 ofcilys 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.
C. Acceptable Insurers. All insurance policies shall be issued by an insivance
company currently authorized by the Insurance Commissioner to transact business of insurance in
7
the State of California, with an assigned policyholders' Rating of A (or higher) and Financial
Sire 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.
qr
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 injmy> 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.
1 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 incnra*u'r 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.
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 ointed officers, officials, employees, agents and volunteers, ted or
affect coves 5 Any failure to comply with reporting Provisions of the policies shall not
rage Provided to City, its elected or appointed officers, officials, employees, volunteers.
P Yees, agents or
6. The canceled, or reduced m coverage orcinlimittProvided by firs policyshall not be suspended, void
(10 calendar days written notice of no a Y either party except after thirty (30) calendar days
ys
City. P yment of premium) written notice has
been received by
F. Timely Notice of Claims. Franchisee shall give City Prompt and timely notice of
this
A s) made or
suit instituted arising out of or resulting from Franchisee's
ris
Performance under
G. Additional Insurance. Franchisee shall also
and expense, any additional kinds of insurance Procure and maintain at its own cost
its Proper Protection and prosecution of the work. which
in its own judgment may be necessary for
SECTION 11. RESRONSIBII
iT1' FOR DAMAGES AND IN,)URg/INDEMNMCATION
Franchisee Responsibility. Franchisee shall
caused f a result of Franchisees acts or omissions includin be Iwnsible for any damages
death °f any person or dame I» but not limited to in'
improvements as a to
Public and/or private Juries to or
containers. result of Franchisees placement and retrieval of e1tY and damages Public.
the commercial solid waste
Ci D. C7eneral Indemnification. Franchisee shall indemnify,
City, and each of its Past, present and future elected officihold harmless and defend
consultants, volunteers, affiliates, assignees , officers, employees, agents,
affiliated entities and from �ective successors heresr enta and attorneys, Ys"fid es, and
harmless for gain[ an costs (collectively, emniSed
actual attorneys foes ("Loses of Y expenses, damages, and losses
any kind or character to anincluding
or indirectly from or caused by any of the following: r Y Person is property arising directly
respective officers, directors, shareholder urem g ()any ant or omission of Franchisee or its
subcontractors, suppliers representatives and �' Partners, employees, agents, contractors,
Franchisee's or Franchisee R affiliates ("Franchisee Representatives
arising out of the eP enrmed s activities; (iii) any accident or casual thin
(ii)
violation or allegedsc ceionof Performed under the Franchise and/or this A casualty within or
violation of any law, ordinance or statute now or h Agreement; (iv) any
of services/work performed Pursuant to the Franchise and/or this hereafter enacted arising
or willful misconduct of F m8 out
Franchisee or any of Franchisee representatives
Agreement; (v) the negligence
the services/wOrk under the Franchise and/or this epresentatives in the performance of
Franchise and/or this Agreement. Al�emen4 and (vi) any breach of the
AM Franchisee shall not be required to indemnify, hold harmless and defend the Indemnified
Parties from the sole negligence, active negligence or willful misconductnof the Indemnified
V%
Nothing in this indemnity shall be construed as authorizing any award of attorney's fees
Parties. Agreement. This indemnity shall apply to all
in any action on or to enforce the terms of this insurance
em Policies "'applicable. The policy limits
claims and liability regardless of whether any insurance Po provided by the Franchisee-
alms
not act as a hmrtaUon upon the amount of indemmfication to be
C. Hazardous Substances Indemnification. Franchisee shall indemnify the
actual damages including, but not limited to,
indemnified Parties from and against arts damage, punitive damages, injuries, costs,
special and consequential damages, demands, debts, liens, liabilities, causes of
response, remediation, and removal costs, losses, allies and expenses
action, suits, legal or administrative proceedings, interest, fines, charges, PenOf
attorneys` and expert witness fees and costs incurred in connection with defending against any y,
this indemnity of any land whatsoever Paid, incurred or suffered by,
in or in enforcing directly or indirectly from or
the forego against, the indemnified Parties or Franchisee arism8
or asserted g m the violation of any FmrirnrmmnentalLrrws or the failure to clean
cam by aay of the following: (i) us Substance; and (u)
UP and mitigate the consequences of the spill or release an Hazardous Substance at any place
Franchisee's activities under this Agreement concerning Y t to this Agreement, or
where Franchisee stores or disposes of solid or hazardous waste pursuant is intended to
preceding Agreement' between City and Franchisee -
The foregoing indemnity Cnmp�ation
operate as an agreement pursuant to the Comprehensive Enviromnental Response;
and Liability Act 42. U.S.C. Section 9607(e) and any amendments mato' California Health and
and indemnify
Safety Code Section ?5364, to insure, protect, hold harmless, ify 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
" "Hazardous Substance Activity" (as defined
Pyr Hazardous Substance or Hazard° Rip°rise,
environment or any " the Comprehensive Environmental
herein) (including without limitation, 9601 et seq.) as amended from time to
Compensation and Liability Act of of
al U.S.C.42 §§ Code and California Water
time and the applicable provisions of the California Health and Safety
Code). an a chemical,
As used herein, the term "Hazardous Substance shall mean Y ( )
compound, material, mixture or substance that is now or hereinafter defined or listed r or
" "hazardous
to anyFarviromnenfal Law as a "hazardous substancetoxic waste,"
otherwise classified pursuant ^ "infectious was
material" "hazardous waste;' "extremely hazardous waste, substances by
formulation intended to define, list or classify
"toxic Pollutant," or any other form troleum, petroleum by-products, natural gas,
reason of deleterious proPerhee or affect and (b) Peas usable for fuel (or mixtures of natural t�
natural gas liquids, liquefied natural gas, synthetic g ng fluids, Produced waters and
in such synthetic gash ash, municipal solid waste, steam and Production of crude oil, natural
other wastes associated with the exploration, development and P
gas or geothermal resources. „
D. AB939 Indemnification. Franchisee agrees to meet all requirements n City's
Source Reduction and Recycling Element as to the portion of the solid waste stream bandied by
Franchisee. Franchisee agrees to protect, defend, indemnify, and hold City harmless magains al
fines or penalties imposed by the California Integrated Waste Management Board,
or oer entity,
10
arising from the failure of Franchisee to meet the Integrated Waste Management Act diversion
requirements with respect to the portion of the commercial waste stream collected by Franchisee.
E. Notice. City agrees to give notice to Franchisee when the City receives a claim
for damages or other liability for which Franchisee has provided indemnification under this
Section.
SECTION 12. COMMERCIAL SOLID WASTE COLLECTION SERVICES
A. Frequency of Collection. Franchisee shall collect all solid waste, including
recyclable materials, as authorized in this Agreement, on a schedule to be agreed upon between
the Franchisee and its customers. The schedule shall provide for collection service at least once
per week, provided, however, that such schedule shall not permit the accumulation of solid waste
in quantities that are unreasonable or detrimental to the public health or safety. Requests for
collection from premises with overflowing bins or containers, or from premises where there have
been missed pickups, shall be serviced within 24 hours of any such request by the customer or
City. If requested by the City at any time, Franchisee's collection schedule shall be submitted to
the City for its approval -
B. Hours and Days of Collections. No collection of solid waste shall occur in any
area of the City after 6:30 pm. and prior to 5:00 a.m. No collection of solid waste fiom
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 am. 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
Pm- 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.
13_ All containers and all vehicles used by Franchisee in the performance of
commercial solid waste handling services shall be marked with Franchisee's name and telephone
number in letters which are not less than four inches (4') high or which are easily read by the
general public.
C. Equipment.
1. Franchisee shall, at all times, provide such number of vehicles and such
equipment as will be adequate for the collection, transportation and disposal services which it is
authorized to provide under this Agreement. All vehicles utilized by Franchisee in the
performance of this Agreement shall be registered with the California Department of Motor
Vehicles. All vehicles 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 lealdng out of the vehicles. Any solid waste dropped or spilled in collection, transfer or
transportation shall be immediately cleaned up by Franchisee. A broom and a shovel shall be
carried at all times on each vehicle for this purpose. In addition, each collection vehicle shall be
equipped with trash bags, masking tape and notice of non -collection tags for the purpose of
separating hazardous waste for return to the generator_ A communications device such as a two-
way radio or a cellular telephone shall also be maintained on each vehicle at all times.
3. Franchisee shall not store any vehicle or equipment on any public street,
public right-of-way or other public property in the City of Newport Beach without obtaining a
Temporary Street Closure Permit from the Public Works Department and prior written consent of
the General Services Director.
4. Should the General Services Director at any time give written notification
to Franchisee that any vehicle does not comply with the standards hereunder, the vehicle shall be
promptly removed from service by Franchisee and not used again until inspected and authorized
in writing by the General Services Director.
S. Placement of containers and equipment shall be in accordance with the
standards set by the Director of Public Works and in accordance with the standards set forth in
Exhibit A which is incorporated herein by this reference. Any deviation from the standards set
by the Director of Public Works or the standards set forth in Exhibit A shall require written
approval from the Public Works Director.
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.
12
E
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/disposaland for City's costs of
storage of the container. Franchisees who are engaged in providing rolloff 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 Poses 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. e Per 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
has been granted an in the case where Franchisee
extension of the term of said Franchise or Franchisee has been granted a
subsequent fianchise 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 fail= to collect the container and dispose of the contents of
the container within five (5) calendar days after City's Director of General Services
written notice to Franchisee to dispose of the contents. issues
SECII'ION 15. COMPLIANCE WITH LAW
A. Franchisee shall perform all commercial solid waste handling services in
accordance with applicable federal, state, and local law, including Chapter 12.63 of the Code,
Article XIII of the City Charter, Ordinance No. 200 -- and in accordance with the terms and
conditions of this Agreement. —
B. During the Term of this Agreement, Franchisee and City agree that the City's
ordinances maybe amended
permit the City to comply as provided herein, as provided in Chapter 12.63 or as necessary to
with changes to federal, state, and local legislative regulatory
requirements, which may affect or alter City's solid waste handling obligations or requirements
ordinances_
for solid waste management. Franchisee agrees to comply with any such amendment ofthe City's
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_
13
Franchisee shall obtain and maintain for the Term of this Agreement �account it the
Orange County landfills. If Franchisee disposes of solid waste at an Orange County
Franchisee shall only dispose of Newport Beach solid waste at Orange County landfills utilizing
Is
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 lrecycling
services which are provided by the Franchisee as well as hazardous waste disposalrequirements.
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. lir 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 laability Fund Fees that would otherwise be payable by Franchisee, for
any and all We 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
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
14
5. Franchisee agrees to continue to provide the indemnifications required in
this contract after its suspension or termination. Such indemnifications include, but are not
limited to, the hazardous materials indemnification and AB939 indemnification as set forth in
Section 11.
C. In the event this Franchise is terminated pursuant to Subsection A above, then
within the time period specified by the City Council, Franchisee shall remove all of Franchisee's
commercial solid waste containers, from all Franchisee's collection service locations and shall
properly dispose of all solid waste in such containers.
D. In the event the Franchise is terminated pursuant to Subsection A above or expires
without an extension of the term and without a grant of a subsequent franchise allowing
Franchisee to continue Performing such services, then within ten (10) days of such termination or
expiration Franchisee shall either.
1. Submit to City's General Services Director a fist 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,
40 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.
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 fellows:
To: General Services Director
15
City of Newport Beach
3300 Newport Blvd.
Newport Beach, CA 92663
To Franchisee:
Notice shall be deemed effective on the date personally served or, if mailed, three
(3) days after the date deposited in the mails.
B. Integrated Agreement This Agreement represents the full and complete understanding,
of every kind or nature whatsoever between the City and Franchisee, and all preliminary
negotiations and other agreements of any kind or nature are merged herein No verbal agreement
or implied covenant shall be held to vary the provisions herein.
C. Amendments. This Agreement supersedes all prior agreements and
understandings between the parties and may not be modified or terminated orally, and no
modification, termination or attempted waiver of any of the provisions hereof shall he binding
unless in writing and signed by the party against whom the same is sought to be enforced.
D. Applicable Law. The laws of the State of California, and applicable Federal law,
shall govern this Agreement and all matters relating to it and any action brought relating to this
Agreement shall be adjudicated in a court of competent jurisdiction in the County of Orange.
E. Authori . The parties signing below represent and warrant that they have the
requisite authority to bind the entities on whose behalf they are signing.
F. Severability. If any term or portion of this Agreement is held to be invalid, illegal,
or otherwise unenforceable by a court of competent jurisdiction, the remaining provisions of this
Agreement shall continue in full force and effect.
G. Waiver. A waiver by either party of any breach, of any term, covenant or
condition contained herein shall not be deemed to be a waiver of any subsequent breach of the
same or any other term, covenant or condition contained herein, whether of the same or a
difference character.
H. Interpretation. The terms of this Agreement shall be construed in accordance with
the meaning of the language used and shall not be construed for or against either party by reason
of the authorship of this Agreement or any other rule of construction that might otherwise apply.
I. Fnual 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.
16
E
r 1
L_J
I. 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 foresecably financially affect such interest.
If subject to the Act, Franchisee shall conform to all requirements of the Act Failure to do so
constitutes a material breach and is grounds for immediate termination of this Agreement by
City. Franchisee shall indemnify and hold harmless City for any and all claims for damages
resulting from Franchisee's violation of this subsection.
[SIGNATURES ON FOLLOWING PAGE]
17
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed on the day
and year fust written above.
"CTI'Y"
CITY OF NEWPORT BEACH, a Municipal
Corporation
ATTEST
LAVONNE M. HARKIESS .
City Clerk
APPROVED AS TO FORM:
AARON C. AARP
Assistant City Attorney
18
BY:
STEVEN ROSANSKY,
Mayor
"FRANCHISEE"
BY:
NAME:
TITLE:
DATE:
BY:
NAME:
TITLE: _
('rint)
(Prilat)
e
C
Exhibit A
City of Newport Beach
LICENSED & FRANCHISED COMMERCLU SOLID WASTE HAULERS
Russell Dux, General Manager
Jerry Moffitt, Assistant Vic President
Republic Serv&es/Consolidated
Rainbow Disposal
12949 Telegraph Road Santa Fe
17121 Nichols Sheet -
Springs, CA 90670
Huntingtrw Beach, CA 92647
Phone(714)238-3300 Fax(714)239-3304
Phone(714)947-3581 Fax(714)841-4660
Don Shubin, President
Judith Ware, President
Fouferal Disposal
Ware Disposal
PO Box 14730
P.O. Box 8206
Irvine, CA 92623
Newport Beach, CA 92658
Phone (714) 759-0908 Fax (714) 259-0284
Phone (714) 834-0234 Fax (714) 664-0696
Good I.anrvk
David Ross, District Manager
CR&R
Waste Management of Orange County
11292 Western Avenue
1800 S. Grand Shiba
Stanton, CA 90680
Santa Ana, CA 92705
Phone(714)890-6300 Fax (714) 890-0961
Phone(714)480-2300 Fax(714)559-1742
Jesus Roberto
Robert's Waste Recycling Inc.
926 W. Pomona Strout
Santa Ana, CA 92707
(714)557-2533
Fax (714) 6642946
Daniel Agajanian
Dneet Disposal
5901 Warner Ave #229
Huntington Beach, CA 92649
Phone (323) 262-1604
Fax(714)848-5056
John Katangian, President
Key Disposal, for -
1141 South Taylor Avenue
Montebello, CA 90640
Phone(323)721-5441 Fax(323)721-8601
Newport Beach Municipal Code 12 63-030 Franduise to
Operate Requreed - No person shall provide commercial
solid waste haodelmg services or conduct a solid wageenterprise in the City without having first been awarded
a franchise and entered into a fianrLise agree ..M with the City.
03l02i2W7
11
C.
11
City of Newport Beach
OTHiFR FRANCHISED SOLID WASTE HAULERS (COnstructi0n & Demolition)
Robert T. HA Vice President
David Lane, Owner
American Wr'edring, fae
The Lane Company
2459 Loo Ave.
5113 W. Kent Ave.
South Fl Monte, CA 91733
Santa Ana, CA 92704
Phone(626)350-8303
Fax(626)350-8322
phone (71.4)775-6905
Bad Grcenleat Owner
Telford T. Coram, President
Greenleaf Grading Company
Tight Quarters, Inc
7702 Yukon Drive
2031 S. An a Syed
Huntington Beach, CA 92648
Santa Ana, CA 92704
Phone(714)842-7655
Phone(714)557-7901 Fax(714)241-3820
Kevin Ray
David Thomas, President
Kevin Ray Dentefition
West Coast Land Clearing, Inc.
580 Explorer Street
P. O. Box 90126
Brea, CA 92821
Long Beach, CA 90809-0126
Phone (714) 990-8937
Fax (714) 990-8941
Phone (562) 599-2882 Fax (562) 599-2787
Nick Cousyn, Owner
Rich B. Hott
Cousyn Grading and Demolition
Pacille Earthworks
12034 N. Capella Cant
34249 Cameo Capistrano 4 216
Corm Mesa, Ca 92626
Capistrano Beach, CA 92624
Phone (714) 557-1566
Fax (714)557-1212
Phone (949) 496-1660
David Roche, Owner
Don Goodwls
Roche Excavating
Goodwin Enterprises
1051 Fast 6th Street
P.O. Box 7388
Santa Ana, CA 92701
Capistrano Be" CA 92624
Phone (714) 953-1650
Fax (714) 953-1663
Phone (949) 498-4680
Tim Greenleaf
Tim Greenleaf Engineering
18685 Main Street, Suite A-371
Huntington Beach, CA 92648
Phone (714) 9641753 Fax (714) 964-1783
Mark Sahagjan
Southern California Environmental
25422 Traboco Rd # 105-409
Lake Forest, CA 92630
Phone (949) 770-1768
Richard Ludt
LRS Demolition
9309 Royo Avenue
South Gate, CA 90280
Phone (323) 357-6900
John Tbotms
Progressive Land Clearing, dlra Thomas Demolition
4505 Mmhatten Beach Blvd
Lawndale, CA 90260
Phone (310) 263-0400
Jodi Prestos
Newport Coast DemoMn
1278 Glesneym St. #199
Lagmra Beach, CA 92651
Phone (949) 645-1479
John Branston
JB Services
PO Box 6982
Orange, CA 92863
Phone (714) 547-2555
Newport Beach Muniapal Code 12.63.030 Franchise to Operate Required - No person shall provide commercial
solid waste handling services or conduct a solid waste enterprise in the City without having first been awarded
a franchise and entered into a franchise agreement with the City,
re rrr vi
k.uthonzcL IO PChii5h dvc,::c_T,enL, Grail LICliS lnCiediau pp�li_
Decree of [11e SuoeriOr Court of Oranxe County, California Yun:ber
Seetember]9. 1%1. and A -2d331 June 11, 1963 - -.
PROOF OF PUBLICATION i
STATE OF CALIFORNIA)
ss.
COUNTY OF ORANGE
I am a Citizen of the United States and aar+c1xo.zoor-T
resident of the Coun{ y`
�aforesaid; I am
AN ORDHUNCE OF
over the age of eighteen years, and not
THE CITY COUNCIL Of
NEWPORT
BTHE EACH
BEACH GRANTING
a
party to or interested in the below
R A
A
WONTEXCLUSIVE SOLID
entitled
matter. I am a principal clerk of the
WASTE FRANCHISE TO
FRANCHISEES TO PRO -
VIDE
VIDE SON WASTE
NEWPORT BEACHUPON
- COSTA MESA
COLLECTION iFWASE
THE CITY
STREETS
DAILY PILOT, a newspaper of general
AND WITHIN
BTHE
EACCH. OF NEWPORT
BEA.
circulation, printed and published in the
3ubf ordinancewas
introduced on the 13th
City of Costa Mesa County of Orange
M
day df March, 2007. and
17th hof
,
State of California, and that attached
ay March,
AYES.
AYES,
Notice is a true and complete copy as
COUNCIL MEM- -
MAY CURRY, SELICH.
MAYOR ROSIGLE,
was printed and published on the
HER. ORIOLE, CARO•
GRD,
�R•wEee
following dates. I
NOES. COUNCIL MEM_
BERS:NONE
ABSENT COUNCIL MEM
SERS:NONE
ABSTAIN COUNCIL
MARCH 31,2007
e text is avail
review in the
's Office of the
neecRJCosta Mesa
declare, Linderof perjun�, that enalt� Pilot March 31,
p � _
the foregoing is true and correct.
Executed on MARCH 31,200.7
at Costa Mesa, California.
Signature
t COUNCIL CENDA
NO.
0 -13-200
CITY OF NEWPORT BEACH
CITY COUNCIL STAFF REPORT
Agenda Item No. _ 6�
February 27, 2007
TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL
FROM: City Attorney's Office
Aaron Harp, Assistant City Attorney
949/544-3131 or aharp@city.newport-beach.ca.us
SUBJECT: COMMERCIAL
EXPRESSING
COMMERCIAL
FRANCHISEES
ISSUE:
SOLID WASTE COLLECTION: RESOLUTION.
THE CITY'S INTENT TO GRANT NON-EXCLUSIVE
SOLID WASTE COLLECTION FRANCHISES TO
Should the City publish a notice that it intends to award Franchises and enter into
franchise agreements with those Commercial Solid Waste Collection Companies listed
in Exhibit A?
RECOMMENDATION:
Adopt the attached resolution expressing the City's intent to award Franchises and
enter into franchise agreements with those Commercial Solid Waste Companies listed
in Exhibit A.
DISCUSSION:
Solid waste is collected, recycled, and disposed of by either City crews or commercial
solid waste haulers. City crews collect approximately 75% of all residential solid waste
while private haulers collect the remainder of the residential waste stream and all
commercial solid waste.
The City has an integrated solid waste management program wherein all solid waste
collection is monitored to ensure the health and safety of all residents and business
owners. A secondary consideration is the achievement of the State recycling mandates
(AB939), which include a 50% recycling rate.
One of the ways that staff has developed to manage solid waste operations and ensure
meeting the recycling mandate is through the issuance of non-exclusive solid waste
qW
franchises to solid waste haulers and demolition contractors who apply to operate in the
Resolution of Intent e Solid Waste Franchise Agreement
February 27, 2007
Page 2
City. In addition to mandating the recycling requirements for the private haulers, the
franchise stipulates a franchise fee in the amount of 16% of gross monthly paid receipts
to be paid to the City which, among other things, funds environmental insurance
premiums, staff work, and road and alley repairs.
Article XIII of the City Charter (Granting of Franchises) and Chapter 12.63 of the
Municipal Code (Solid Waste Management) establish requirements and procedures to
grant a franchise to provide solid waste handling services within the City. There are
currently twenty-five solid waste franchisees operating under separate agreements to
collect and transport solid waste generated within the City limits. There is no limit on
the number of franchises that Council may approve. Such a policy permits competitive,
service-oriented.refuse operations.
All of the existing franchises are set to expire as of March 1, 2007. Pending completion
of the public hearing and Council approval on March 13th and 27th, 2007, the
franchises awarded to those persons and entities listed in Exhibit A will be applied
retroactively to March 1, 2007 and will expire on March 1, 2012.
Environmental Analysis:
WA
Public Notice: This agenda item may be noticed according to the Brown Act (72 hours
in advance of the public meeting at which the City Council considers the item).
Prepared by:
Aaron Harp,
Assistant City Attorney
Attachments: Exhibit "A" Resolution 2007-,
Submitted by:
Robin Clauson,
City Attorney
177
n
RESOLUTION NO. 2007
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
NEWPORT BEACH DECLARING ITS INTENTION TO
CONDUCT A PUBLIC HEARING TO CONSIDER THE
GRANTING OF NON-EXCLUSIVE COMMERCIAL SOLID
WASTE COLLECTION FRANCHISES TO FRANCHISEES
WHEREAS, the City Council finds and determines that providing for the collection
of commercial solid waste within the City is a vital public service and is a matter of great
public concern because solid waste haulers use the public right-of-way and improper solid
waste management creates the potential for public nuisance, air pollution, fire hazards,
rat and insect infestation and other problems affecting the public health, safety and
welfare; and
WHEREAS, non-exclusive franchises for use of the public right-of-way to provide
Affih
commercial solid waste handling services will promote the public health, safety, and
welfare by promoting permanence and stability among those businesses wishing to
provide such service and accountability to the City for compliance with current and future
state mandates; and,
WHEREAS, pursuant to Article X11I of the City Charter, Chapter 92.63 of the
Newport Beach Municipal Code, and Sections 49300 and 4950049523 of the Public
Resources Code, the City is authorized to grant a franchise to provide commercial solid
waste handling services with private solid waste providers; and,
WHEREAS, those persons and entities set forth in Exhibit A hereto
("Franchisees") have requested a non-exclusive franchise to provide commercial solid
waste handling services.
-t-
NOW, THEREFORE, the City Council of the City of Newport Beach resolves as
Section 1: A public hearing shall be conducted on March 13, 2007, at 7:00
p.m., or as soon thereafter as practical, in the City Council Chambers, 3300 Newport
Boulevard, Newport Beach, California, to consider the granting of non-exclusive
franchises to the Franchisees pursuant to the following tems and conditions:
a. Franchise effective date: Upon approval of the City Council, each
franchise will be effective as of March 1, 2007.
b. Franchise fee: Ten and a half percent (10.5%) of gross receipts for
all commercial solid waste handling services provided by the
Franchisee in the City.
C. Environmental liability fund fee: Five and a half percent (5.5%) of
gross receipts for all commercial solid waste handling services
provided by the Franchisee in the City.
d. Term of Franchise: From the effective date to March 1, 2012.
e. Laws: Franchisee shall comply with all State, Federal and City laws
and regulations, the terms and conditions of the franchise
agreement, the City Charter, and the Newport Beach Municipal
Code.
Section 2: The City proposes to offer a non-exclusive franchise to Franchisees
who are all presently licensed and permitted to conduct business in the City. Persons
who have an interest in or objection to the proposed franchise may appear before the City
Council and be heard on the date and time listed above.
-2-
r]
to
Section 3: This Resolution of Intention shall be published in the City's official
newspaper within fifteen (15) days of its adoption and at least ten (10) days prior to March
13, 2007.
ADOPTED this day of 200
Steven Rosansky, Mayor
ATTEST:
LaVonne Harkless,
City Clerk
71
&I
XII
MIBR A
90kCity of Newport Beach
LICENSED &FRANCHISED COMMERCIAL SOLID WASTE HAULERS
Russell Dix, General Menage'
Jerry Moffatt, Assistant Vice -President
Republic ServicalCooseltdated
Ralabow Disposal
12949 Telegraph Road Santa Fe
17121 Nichols Street
Huntington Beach, CA 92647
Springs, CA 90670
Phone (7 14) 238-3300 Fax (714) 238-3304
Plane (714) 847-3581 Fax (714) 841-4660
Don Shubin, President
Judith Ware, President
Federal Disposal
Ware DkPwsal
PO Box 14730
.
P.O. Box 8206
Irvine, CA 92623
Phone(714)259-0908 Fax(714)259.0284
Newport Beach, CA 92658
Phone(714)$34-0234 Fax(714)664-0696
George Lazamk
David Ross, District Manager
Waste Maoagemeut of Orange County
CR&R
11292 Western Avenue .
180o S. trend Street
Stanton, CA 90680
Phone (714) 890.6300 Fax (714) 890-0961
Santa Acre, CA 92705
Phare (714) 480-2300 Fax (714) 559-1742
Jesus Roberto
John KsWigiart, President
Robert's Waste Recycling Ina.
Key Disposal' Joe.
926 W. Pomona Sued
1141 SmAh Taylor Avenue
Santa Ana, CA 92707
Montebello. CA 90640 . -.
Phone (323) 721-5441 Fax (323) 721-8601
(714) 557-2533
Fax(714)664-2946
Daniel Agaianlao
Direct Disposal
5901 wanner Ave #229
Huntington Beach. CA 92649
Phone (323) 262-1604
Fax (714) 848.5056
Newport Beach Munhdpal Code 12.63.030 Franchise to Operate Required - No Person shall Provide commercial
solid waste handeling services or conduct a solid waste enterprise in the City without having first bow awarded
a franchise and entered into a franddse agreement with the City.
EXH831T A
City of Newport Beach
OTHER FRANCHISED SOLID WASTE HAULERS (COUSlruction & Demolition)
Robert T. Hall, Vice President
American Wreddng, Inc.
2459 Lee Ave.
South EI Monte, CA 91733
Phone (626) 350-8303 Fax (626) 350.8322
Bud Greenleaf Owner
Greenleaf Grading Company
7702 Yukon Drive
Huntington Reach, CA 92648
Phone(714)942-7655
David Lane, Owner
The Lane Company
5113 W. Kent Ave.
Santa Ana, CA 92704
Phone (714) 775-6905
Telford T. Cotimn, President
Tight Quarters, Inc.
2031 S. Anna Street
Santa Ana, CA 92704
Phone(714)557-7901
Fax (714) 241-3820
Kevin Ray David Thomas, President
Kevin Ray Demolition West Coast Laud Clearing, Inc.
580 Explorer ShatCA P. O. Box 90126
Bim' 92821 Long Beack CA 90809-0126
Phos (714)990-8937 Fax(714)990-8941 Phone(562)599-2882 Fax(562)599-2787
Wick COs' owner Rich B. Holt
Cnhsyn Grading and Demolition Pacific Earthworks
2034 N. Capella Coul - 34249 Camino Capistrano 8 216
Costa Mesa, Ca 92626 CapiWUno Beach, CA 91624
Phone(714)557-1566 Fax(714)557-1212 Phone(949)496.1660
David Roche, Owner
Don Goodwin
Roche Excavating
Goodwin Enterprises
1051 East 6th Street
P.O. Box 7388
Santa Ana, CA 92701
Capistrano Reach, CA 92624
Phone(714)953-1650
Fax(714)953-1663 Phota(949)498-4680
Tim Greenleaf John Thomas
TSB Greenleaf Engineering Progressive Land Clearing, dba Thomas Demolition
18685 Main Sheet, Suite A-371 4505 Manhellen Beach Blvd.
Huntington Beach, CA 92648 Lawndale, CA 90260
Phone(714)964-1753 Fax(714)964-1783 Phone(310)263-0400
Mark Sahagian
Southern California Environmental
25422 Trabuco Rd 9105-409
Lake Forest, CA 92630
Phone(949)770-1768
Richard Ludt
IRS Demolition
9309 Rayo Avenue
South Gate, CA 90280
Phone (323) 357-6900
Jodi Preston
Newport Coast Demolition
1278 Glenneym St, 4198
Laguna Beach, CA 92651
Phone (949) 645-1479
John Branston
Al Services
PO Box 6982
Orange, CA 92863
Phone (714) 547-2555
ewport Beach Municipal Code 12.63.030 Franchise to Operate Required - No person shall provide commercial
lid wase haodding servlms or conduct a solid waste enterprise in the City without having fust been awarded
a franchise and entered into a franchise agreement with the City.
o2120e2007
FRANCHISE EXTENSION AGREEMENT
BETWEEN
THE CITY OF NEWPORT BEACH AND GOODWIN ENTERPRISES, INC.
This Franchise Extension Agreement is entered into between the City of Newport Beach ("City") and
Goodwin Enterprises, Inc. ("Goodwin") this 13`h day of December, 2005, with regards to the following
facts:
RECITALS
WHEREAS, by approving Ordinance No. 2004-14 on or about July 13, 2004, the City granted Goodwin
a non-exclusive franchise to provide solid waste collection services ("Franchise") and entered into a
solid waste franchise agreement ("Franchise Agreement') with Goodwin. The Franchise and Franchise
Agreement will expire on January 9, 2006; and
WHEREAS, City and Goodwin 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.
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 Goodwin 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 Goodwin 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 Munnii ipall Corporation ff -
Homer Bludau, C' Manager
APPROVED AS TO FORM:
4 ,—C, L"',
Aaron C. Harp,
Assistant City Attorney
GOODWIN ENTERPRISES, INC.
A California C:7�
By:�
Name: �1 Vora>a.n A)
Title: dWiU�2
By: _
Name:
Title:
ATTEST: ,
�---- /
City Clerk
[END SIGNATURES]
COMMERCIAL SOLID WASTE COLLECTION
FRANCHISE AGREEMENT BETWEEN THE CITY OF
NEWPORT BEACH AND GOODWIN ENTERPRISES, INC.
This Nonexclusive Franchise Agreement for Commercial Solid Waste Handling Services
('Agreement' herein), is entered into and executed by and between the CITY OF NEWPORT
BEACH, a municipal corporation, and Charter City organized and existing under the laws of the
State of California ('City"), and Goodwin Enterprises, Inc. (`Franchisee").
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 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. 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 residenrlarsolid waste and recyclable materials, as defined herein, from commercial, institutional,
or industrial premises within the City.
E. 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:
r
SECTION 1. GRANT OF FRANCHISE
A. By Ordinance No.2004-14, City has granted to Franchisee a non-exclusive Franchise
authorizing Franchisee to provide c ommercial s olid w aste h andling s ervices for s olid w aste k ept,
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. 2004-14,
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 August 12,
2004 to January 9, 2006, inclusive.
SECTION 3. DEFINITIONS
Unless otherwise defined, or if the use or context clearly requires a different definition, all
words, terms and phrases in this Agreement and the derivations thereof shall have the meanings set
forth in Section 12.63.020 of the Code.
SECTION 4. FRANCHISE FEES
A. During the 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
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 10.5% (ten and one halfpercent) of the gross
receipts for all commercial solid waste handling services provided by the Franchisee in the City.
(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 ac uunted for, and used only for the costsrbLated in Public Revenue Code
Section 41901 or any successor provision.
B. Franchisee shall pay all required franchise fees to:
Administrative Services Director
City of Newport Beach
3300 Newport Boulevard
Newport Beach, CA 92659
C. Franchise fees shall be due and payable on the thirtieth (30th) day of the month
following the end of each quarter. If franchise fees are not paid by Franchisee when due, then in
addition to the franchise fees, Franchisee shall pay a late payment penalty in an amount equal to ten
percent (10%) of the franchise fee that was not timely paid by Franchisee. If Franchisee fails to pay
delinquent franchise fees within thirty (30) days of the date due, Franchisee shall pay a second late
payment penalty in an amount equal ten percent (10%) of the franchise fee outstanding after such
thirty day period. The second late payment penalty shall be in addition to the first late payment
penalty. In addition, Franchisee shall pay interest on all unpaid franchise fees at the rate of ten
percent (10%) per annum or the legal rate allowed, whichever is less, from the date the franchise fees
were due and payable to the date actually paid. Franchisee will be responsible for all billing and
collection from all its customer accounts.
D. If Franchisee remits franchise fees by personal delivery to City, such franchise fees
shall be deemed timely paid only if delivered on or before the due date set forth in Section 12.63.070
of the Code. If Franchisee remits franchise fees by mail or other delivery service, such franchise fees
shall be deemed timely only if (1) the envelope containing the franchise fee payment bears a
postmark or receipt showing that the payment was mailed or sent on or before the due date or (2)
Franchisee submits proof satisfactory to the Administrative 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.
3
r
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 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:
1,
Generai Services Director
City of Newport Beach
3300 Newport Boulevard
Newport Beach, CA 92659
B. If the report required under subsection A is not filed by the due date specified above,
the report shall be deemed delinquent. If the report remains delinquent for more than fifteen (15)
days, Franchisee shall pay to City a delinquent report charge in the amount of One Hundred Dollars
($100). If the report remains delinquent for more than forty-five (45) days, Franchisee shall pay to
City a delinquent report charge in the amount of Five Hundred Dollars ($500). Such delinquent
report charges shall be in addition to any franchise fees or other charges payable by Franchisee under
this Agreement.
SECTION 7. COMMERCIAL SOLID WASTE COLLECTION SERVICES
A. Frequency of Collection. Franchisee shall collect all solid waste, including recyclable
materials, as authorized in this Agreement, on a schedule to be agreed upon between the Franchisee
and its customers. The schedule shall provide for collection service at least once per week; provided,
however, that such schedule shall not permit the accumulation of solid waste in quantities that are
unreasonable or detrimental to the public health or safety. Requests for collection from premises
with overflowing bins or containers, or from premises where there have been missed pickups, shall
be serviced with 24 hours of any such request. If requested by the City at any time, Franchisee's
collection schedule shall be submitted to the City for its approval.
B. Hours and Days of Collections. No collection of solid waste from commercial
premises within 500 feet of occupied residential premises, motels or hotels shall be made by
Franchisee between the hours of 9:00 p.m., and 7:00 a.m. on the next day, nor shall any of
Franchisee's collection vehicles be operated in any residential areas of the City between the hours of
9:00 p.m. and 7:00 a.m. on the next day.
SECTION 8. ENVIRONMENTAL LIABILITY FUND
A. City and Franchisee acknowledge the potential liability which can result from solid waste
handling services under Federal and State environmental laws. City intends to take reasonable
actions to obtain protection and indemnification against future environmental liability for solid waste
generated within the City and the activities of Franchisee under this Agreement for handling such
solid waste. To provide protection and indemnification to City for Franchisee's solid waste handling
activities in the City, Franchisee agrees to collect from its customers a fee for payment into an
Environmental Liability Fund which shall be a separate Fund established and maintained by City.
The Fund shall be used to either purchase insurance which will ensure the City against
environmental liability which may be imposed upon City as a result of Franchisee's activities under
this franchise and/or shall to be used to defend and indemnify the City if insurance is not available or
cannot be provided at a cost acceptable to City. The Fund shall not be commingled with or included
in the City's General Fund.
5
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 determined:
i. There was any intentional misrepresentation by Franchise with respect to the
amount of franchise fees due to the City; or
ii. There is a one thousand dollars ($1,000.00) or greater discrepancy in the
amount of franchise fees due to the City.
Such reimbursement shall be paid by Franchisee WITHIN THIRTY (30) days of the
date City notifies Franchisee in writing of the amount of City's costs.
C'.
i
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 Scone and Limits of Insurance
Franchisee shall maintain at least the following minimum insurance coverages:
1. Commercial General Liability: $1,000,000 combined single limit per occurrence for
bodily injury, personal injury and property damage. The Commercial General Liability insurance
limit shall apply separately to this Agreement or the general aggregate limit shall be twice the
required occurrence limit.
2. Automobile Liability: $2,000,000 combined single limit per occurrence for bodily
injury and property damage, and shall include sudden and accidental coverage.
3. Workers' Compensation and Employers Liability: Workers' Compensation statutory
limits as required by the California Labor Code and Employers Liability limits of $1,000,000 per
accident.
B. Deductibles and Self -Insured Retentions
Any deductibles or self-insured retentions must be declared to and approved by City's Risk
Manager. At the option of City either: the insurer shall reduce or eliminate such deductibles or self-
insured retentions as respects City, its officers, employees, agents and contractors; or Franchisee
shall procure a bond guaranteeing payment of losses and related investigations, claim administration
and defense expenses in an amount specified by City's Risk Manager.
C. Endorsements.
The required insurance policies are to contain, or be endorsed to contain, he following
provisions:
1. General Liability and Automobile Liability Coverages.
a. The City of Newport Beach, its officers, employees, agents and contractors are
to be covered as an additional insured as respects: liability arising out of activities performed by, or
on behalf of Franchisee; products and completed operations of Franchisee; premises owned, leased
or used by Franchisee; and automobiles owned, leased, hired or borrowed by Franchisee. The
coverage shall contain no special limitations on the scope of protection afforded to City, its officers,
employees and agents and contractors.
b. Franchisee's insurance coverage shall be primary insurance as respects City,
its officers, employees, agents and contractors. Any insurance or self-insurance maintained by City,
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its officers, employees, agen,s or contractors shall be excess of FranL„lsee's insurance and shall not
contribute with it.
C. Any failure to comply with reporting provisions of the policies shall not affect
coverage provided to City, its officers, employees, agents or contracts.
d. Coverage shall state that Franchisee's insurance shall apply separately to each
insured against whom claim is made or suit is brought, except with respect to the limits of the
insurer's liability.
2. All Coverages
Each insurance policy required by this Agreement shall be endorsed to state that
coverage shall not be suspended, voided, canceled, or reduced in limits except after thirty (30) days'
prior written notice has been given to the City.
D. Placement of Insurance.
Insurance shall be placed with an insurance company certified to do business in the State of
California, with Best's rating A -VII or better, unless otherwise approved by the City Risk Manager.
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.
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SECTION 11. INDEMNII .CATION
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 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. A13939 Indemnification: Franchisee agrees to meet all requirements of City's Source
Reduction and Recycling Element as to the portion of the solid waste stream handled by Franchisee.
Franchisee agrees to protect, defend, indemnify, and hold City harmless against all fines or penalties
imposed by the California Integrated Waste Management Board with respect to the portion of the
commercial waste stream collected by Franchisee.
D. City agrees to give notice to Franchisee when the City receives a claim for damages
or other liability for which Franchisee has provided indemnification under this Section.
SECTION 12. VEHICLES AND EQUIPMENT
A. Any and all containers provided to customers of Franchisee for storage, collection or
transportation of commercial solid wastes shall meet the requirements of Section 12.63.110 of
Chapter 12.63 of the Code as well as State of California minimum standards for solid waste handling
established under Public Resources Code Section 43020 and applicable health requirements.
B. All containers and all vehicles used by Franchisee in the performance of commercial
solid waste handling services shall be marked with Franchisee's name and telephone number in
letters which are not less than four inches (4") high or which are easily read by the general public.
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C. Equipment.
(1) Franchisee shall, at all times, provide such number of vehicles and such
equipment as will be adequate for the collection, transportation and disposal services which it is
authorized to provide under this Agreement. All vehicles utilized by Franchisee in the performance
of this Agreement shall be registered with the California Department of Motor Vehicles. All
vehicles shall be properly maintained, kept clean and in good repair, and shall be uniformly painted.
All commercial solid waste containers used in the performance of this Agreement shall be kept clean
and in good repair and shall be uniformly painted to the satisfaction of the General Services Director.
All vehicles and equipment used by Franchisee in the performance of this Agreement may be subject
to inspection by the City on a semi-annual basis.
(2) Each vehicle shall be so constructed and used that no rubbish, garbage, debris,
oil, grease or other material will blow, fall, or leak out of the vehicle. All solid waste shall be
transported by means of vehicles which are covered in such a manner as to securely contain all solid
waste and to prevent such solid waste from projecting, blowing, falling or leaking out of the
vehicles. Any solid waste dropped or spilled in collection, transfer or transportation shall be
immediately cleaned up by Franchisee. A broom and a shovel shall be carried at all times on each
vehicle for this purpose. In addition, each collection vehicle shall be equipped with trash bags,
masking tape and notice of non -collection tags for the purpose of separating hazardous waste for
return to the generator. A communications device such as a two-way radio or a cellular telephone
shall also be maintained on each vehicle.
(3) Franchisee shall not store any vehicle or equipment on any public street or
other public property in the City without the prior written consent of the General Services Director.
(4) Should the General Services Director at any time given written notification to
Franchisee that any vehicle does not comply with the standards hereunder, the vehicle shall be
promptly removed from service by Franchisee and not again be so used until inspected and
authorized in writing by the General Services Director.
SECTION 13. ABANDONED CONTAINERS
A. Franchisee shall comply with the regulations adopted by the City Manager for
placement of commercial solid waste containers on public property.
B. If Franchisee abandons any commercial solid waste container within the City, the
City may remove the container 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.
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D. For the purposes of this Section, "abandoned" includes:
(1) Franchisee's failure to remove the container within the time period specified
by the City Council upon termination of the Franchise pursuant to Section 12.63.130 of the Code;
(2) Franchisee's failure to remove the container within ten (10) working days
after the expiration of the Franchise granted to Franchisee, except in the case where Franchisee has
been granted an extension of the term of said Franchise or Franchisee has been granted a subsequent
Franchise authorizing Franchisee to collect and transport the type or types of solid waste for which
the container was used pursuant to this Agreement.
(3) Franchisee's failure to collect the container and dispose of the contents of the
container within five (5) days after City's Director of General Services issues written notice to
Franchisee to dispose of the contents.
SECTION 14. COMPLIANCE WITH LAW
A. Franchisee shall perform all solid waste handling services in accordance with
applicable federal, state, and local law, including Chapter 12.63 of the Code, Article XIII of the City
Charter, Ordinance No. 95-63 and in accordance with the terms and conditions of this Agreement.
B. Over the course of the franchise term, Franchisee and City agree that the City's
ordinances may be amended as necessary to permit the City to comply with changes to federal, state,
and local legislative regulatory requirements, which may affect or alter City's solid waste handling
obligations or requirements for solid waste management. Franchisee agrees to comply with any such
amendment of the City's ordinances.
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.
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C. All promotio..al brochures, fliers or other informa,., n 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 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:
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(1) Submit to City's General Services Director a list of the names and addresses of solid
waste generators in Newport Beach for which Franchisee provided services as of the date of
termination or expiration (i.e. Franchisee's Newport Beach customer list); or
(2) Send written notification to each solid waste generator on Franchisee's customer list
that Franchisee is no longer authorized to provide commercial solid waste handling services in
Newport Beach. Such notification shall be in the form provided by City's General Services Director
and shall be personally delivered or shall be sent by first class mail, postage prepaid, to the
customers' billing addresses. Franchisee shall submit to City's General Services Director an
affidavit, signed under penalty of perjury, stating that the required notification has been provided by
Franchisee to all of Franchisee's Newport Beach customers.
SECTION 18. ASSIGNMENT
Franchisee shall not assign, sell, subcontract, transfer or otherwise delegate its authority to
perform any portion of the solid waste handling services or obligations under the Franchise without
prior express written consent of the City Council. This prohibition includes any transfer of
ownership or control of Franchisee, or the conveyance of a majority of Franchisee's stock to a new
controlling interest. City's consent shall not be unreasonably withheld.
SECTION 19. MISCELLANEOUS PROVISIONS
A. Notices. Except as otherwise provided in this Agreement, all notices required by this
Agreement shall be given by personal service or by deposit in the United States mail, postage pre-
paid and return receipt requested, addressed to the parties as follows:
To: General Services Director
City of Newport Beach
3300 Newport Boulevard
Newport Beach, CA 92659
To Franchisee: Goodwin Enterprises
Attn: Don Goodwin
P.O. Box 7388
Capistrano Beach, CA 92624
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.
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C. Applicable Law. This Agreement and the transactio,.s herein contemplated shall be
construed in accordance with an governed by the applicable laws of the State of California and of the
United States.
D. Authority. The parties signing below represent and warrant that they have the
requisite authority to bind the entities on whose behalf they are signing.
E. Conflicts: In the event of any conflict between the provisions of this Agreement and
the provisions of Chapter 12.63 of the Code, the provisions of this Agreement shall control.
F. Severability. If any provision of this Agreement is determined by a court of
competent jurisdiction to be invalid or unenforceable, the remaining provisions shall not be affected
unless their enforcement under the circumstances would be unreasonable, inequitable or would
otherwise frustrate the purposes of this Agreement.
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WITNESS THE EXECUTION OF THIS AGREEMENT ON THE DATE
WRITTEN BELOW EACH SIGNATURE:
"CITY"
CITY OF NEWPORT BEACH, a Municipal
Corporation
LAVONNE M. HARKLESS
City Clerk
BY:/
OD RIDG•,i
DATE:
APPRgVkD AS TO FORM:
ROBIN CLAUSON "FRANCHISEE"
Assistant City Attorney
C-smdt-pin P'rerpn' , .
COMPANY NAME
BY: `
C�✓Siiggnature / \
NAME: /-�o C5:", 4 N
(Print)
TITLE: 000/Li6f�y
DATE: _GY
T
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ACCEPTANCE OF SOLID WASTE MANAGEMENT FRANCHISE
WHEREAS, on July 14,2004 , the City Council of the City of Newport Beach
adopted Ordinance No.M-14entitled an Ordinance of the City Council of the City of
Newport B each G ranting a N onexclusive F ranchise t o P rovide Solid W ante C ollection
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. 200'+-14 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.2004-14
WHEREAS, the r:ndersigned Grantee wishes to accept the grant of the Franchise.
NOW THEREFORE, 0000°on B1ta'9es hereby
accepts the grant of the Nonexclusive Franchise granted by Ordinance No. 20Q'+-14 and
hereby agrees to comply with the provisions of the Newport Beach Charter, Chapter
12.63, Ordinance No. 2004-14 and the Franchise Agreement in all its operations pursuant
to the grant of the Franchise.
DATE: July 14, 2004
FRANCHISE
BY: �
v
NAM
TITLE:_0 CUJtI rF'2
CITY CLERKS'S VERIFICATION OF ACCEPTANCE
I, LaVonne M. Harkless, City Clerk, certify that the above acceptance of Franchise was
received by me on be r l 2004, at a.m. .m.
CITY CLERK