HomeMy WebLinkAboutWest Coast Land Clearing, IncFRANCHISE EXTENSION AGREEME
BETWEEN
THE CITY OF NEWPORT BEACH AND WEST COAST LAND CLEARING, INC.
This Franchise Extension Agreement is entered into between the City of Newport Beach ( "City') and
West Coast Land Clearing, Inc. ( "West Coast') this 13th day of December, 2005, with regards to the
following facts:
RECITALS
WHEREAS, by approving Ordinance No. 99 -3 on or about February 8, 1999, the City granted West
Coast a non- exclusive franchise to provide solid waste collection services ( "Franchise ") and entered
into a solid waste franchise agreement ( "Franchise Agreement') with West Coast. The Franchise and
Franchise Agreement will expire on January 9, 2006; and
WHEREAS, City and West Coast desire to extend the Franchise and Franchise Agreement until March
1, 2007 to allow for additional time for negotiations to consider the renewal of the Franchise and
Franchise Agreement.
NOW THEREFORE, the Parties agree as follows:
The Franchise and Franchise Agreement shall be extended to March 1, 2007. During said
extension, the terms and conditions of the current Franchise and Franchise Agreement shall
remain in full force and effect without modification.
2. Nothing herein shall be deemed or construed as a waiver, release or surrender of any right that
either party may have under any applicable law. Nothing herein shall waive, release or
otherwise relieve West Coast 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 West Coast 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 Municipal Corporation
Homer Bludau, Yy Manager
APPROVED AS TO FORM:
Aaron C. Harp,
Assistant City Attorney
WEST COAST LANDING, INC.
A California Corporation
By:
Name:
Title:
Title: . 1. t OL" _
0
[END SIGNATURES]
ACCEPTANCE OF SOLID WASTE MANAGEMENT FRANCHISE
WHEREAS, on February 8, 1999, the City Council of the City of Newport
Beach adopted Ordinance No. 99 -3 entitled an Ordinance of the City Council of the City
of Newport Beach Granting a Nonexclusive Franchise 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. 99 -3 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. 99 -3.
WHEREAS, the undersigned Grantee wishes to accept the grant of the Franchise.
NOW THEREFORE, West Coast Land Clearine, hereby accepts the grant of
Grantee
the Nonexclusive Franchise granted by Ordinance No. 99 -3 and hereby agrees to comply
with the provisions of the Newport Beach Charter, Chapter 12.63, Ordinance No. 99 -3
and the Franchise Agreement in all its operations pursuant to the grant of the Franchise.
DATE: / West Coast Land Clearing
FRANCHISEE
BY:
NAME:
TITLE: Ps
CITY CLERKS'S VERIFICATION OF ACCEPTANCE
I, LaVonne M. Harkless, City Clerk, certify that the above acceptance of Franchise was
received.bymeon Feb., f(c- 1999, at ¢C73L a:m /p.m.
�-
CITY CLERK
C,
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Eldridge, Miriam
From: Eldridge, Miriam
Sent: Tuesday, February 16, 1999'10:22 AM
To: Harkless, LaVonne
Subject: RE: Acceptance of Solid Waste Franchises
O.K.
From:
Harkless, laVonne
Sent:
Tuesday, February 16, 1999 9:34 AM
To:
Eldridge, . Miriam
Subject:
RE:: Acceptance of Solid Waste Franchises
Thanks for the info. When you send over the updated form with the signatures, please attach
the One that was filed in a timely fashion with a note attached indicating what the problem
was. We'll put the whole thing in our file in case there is ever any question.
• - -- Original Message -----
From:
Eldridge, Miriam
Sent:
Tuesday, February 16, 1999 9:31 AM
To:
City Clerk's Office
Subject:
Acceptance of Solid Waste Franchises
Ouragreements with American Waste and West Coast Land Clearing require they submit written acceptance
of the franchise within 10 days after adoption of the Ordinance granting the franchise. The acceptance
requires the City Clerks signature, so I wanted you to be aware that we have received their signed
acceptance, however, I noticed that it has a typo (it refers to an ordinance passed in 1995). We have
forwarded an updated form for their signature, which we should receive shortly. I just wanted, you to be
aware that, although you won't see it fora while, both firms submitted their acceptance forms in a timely
manner.
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ORDINANCE NO. 99-3
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF
NEWPORT BEACH GRANTING NON- EXCLUSIVE SOLID
WASTE FRANCHISES TO AMERICAN WRECKING, INC.,
AND TO WEST COAST LAND CLEARING 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 XIII of the City Charter and Sections 49500 through 49523 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
February 8, 1999; to consider the granting of a franchise to American Wrecking, Inc. and to
West Coast Land Clearing.
D. Having considered all oral and documentary evidence presented at the public
hearing, the City Council has determined that the granting of anon - exclusive franchise is in the
public interest.
SECTION 2: Definitions
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 Franchises
There is hereby granted to each of the solid waste enterprises listed below
(hereinafter, "Franchisees ") 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: (a) American Wrecking, Inc.
(b) West Coast Land Clearing
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. Term of Franchises
The term of each franchise per Section 2 of the Franchise Agreements
( "Agreements ") attached hereto as Exhibit A, Commercial Solid Waste Collection Franchise
Agreement between the City of Newport Beach and American Wrecking, Inc. and Exhibit B
Commercial Solid Waste Collection Franchise Agreement between the City of Newport Beach
and West Coast Land Clearing, Inc. which are hereby adopted, approved and incorporated into
this Ordinance by reference, shall commence at 12 :01 a.m., on March 10, 1999 and expire on
January 9, 2006. The franchises shall take effect on the date specified above provided that the
grantees have 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 Agreement, Franchisees 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, right of ways and places for such purposes. Fees shall be in the
following amounts:
Franchisees shall pay to the City 8.5% (eight and one -half percent) of the
Franchisee's gross receipts. The franchise fee shall increase by 1 % (one percent) each January
during, the term of the Agreement. Thereafter, the franchise fee will be capped at 10.5 % for the
life of the Agreement.
Franchise- fee payments shall be paid quarterly and shall be computed and paid on
the basis of paid receipts received by the Franchisees for all solid waste handling services
provided by the Franchisees within the City.
One -half of one percent (0.5 %0) of the franchise fee shall be attributable to the
maintenance and implementation of the City's Source Reduction and Recycling Element
(SRRE), and shall be separately accounted for, and used only for the costs stated in Public
Revenue Code Section 41901 or any successor provisions.
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(2) Franchisees shall pay to the City Environmental Liability Fund, on a quarterly
basis, 5.5% of gross receipts for all commercial solid waste handling services provided by the
Franchisees in the City. Payment shall be made concurrently with the payment of the franchise
fees and the filing of reports specified in Section 4 and Section 6 of the Agreements.
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 Agreements.
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 each grantee files written acceptance of their respective franchise with the City Clerk, and
delivers to the City all bonds and insurance policies required to be furnished in accordance with
the requirements of Chapter 12.63 of the Newport Beach Municipal code and the Franchise
Agreements. 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 Agreements, Article X1II of the City Charter, and
Chapter 12.63 of the Newport Beach Municipal Code. Each grantee shall file written acceptance
of their respective 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 California Solid Waste Managenrent 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.
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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 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, clause or phrase thereof,
irrespective of the fact that any one or more sections, subsections, sentences, clauses, or phrases
be declared unconstitutional.
SECTION 7s Adoption of Ordinance
This Ordinance was introduced at a regular meeting of the City Council of the City of
Newport Beach, held on the 25'h day of January 1999, and adopted on the 8m day of February
1999, by the following vote to wit:
AYES, COUNCIL MEMBERS Adams, Glover
Thomson, Ridgeway, Noyes, Mayor O'Neil
NOES, COUNCIL MEMBERS None
ABSTAINED, COUNCIL MEMBERS None
ABSENT, COUNCIL MEMEBERS Debay
,�L SAf- -
MAYOR
J
ATTEST:
WE
CITY CLERK
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\\MIS_I\SYS\ USERS \GSVWEIdridgeVANUARY 99 \CounriLFrsncLiseOrdinc 2.doc
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EXHIBIT B
COMMERCIAL SOLID WASTE COLLECTION
FRANCHISE AGREEMENT BETWEEN THE CITY OF
NEWPORT BEACH AND WEST COAST LAND CLEARING
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 WEST COAST LAND CLEARING
"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. City contends that Franchisee has received written notice from the City,
pursuant to Public Resources Code Sections 49520 and 49521, that commercial solid waste
handling services may be authorized under exclusive or nonexclusive franchise, and that
Franchisee was entitled to continue to operate within the City only until its rights under a
commercial solid waste collection permit were terminated or revoked. All such rights are
terminated by this Agreement.
E. Pursuant to this Agreement, City desires to authorize Franchisee to
provide nonexclusive commercial solid waste handling services within the City. Franchisee
shall furnish all personnel, equipment, and supplies necessary to collect, transport, or
otherwise remove and dispose of residential solid waste and recyclable materials, as defined
herein, from commercial, institutional, or industrial premises within the City:
F. The City Council has determined that the grant of a nonexclusive
franchise is in the public interest.
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NOW, THEREFORE, CITY AND FRANCHISEE DO HEREBY AGREE AS
FOLLOWS:
SECTION 1. GRANT OF FRANCHISE
A. By Ordinance No. 99 -_ , City has granted to Franchisee a non - exclusive
Franchise authorizing Franchisee to provide commercial solid waste handling services for solid
waste kept, accumulated, or generated in the City of Newport Beach and to use the public
streets and rights of way for such purpose. Franchisee acknowledges that the Franchise is not
exclusive and that the Franchise is subject to the provisions of Article XIII of the City Charter,
Ordinance No. 99 -_ , 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
March 10, 1999 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 term of the Franchise, Franchisee shall pay to City franchise fees for
the privilege of providing commercial solid waste handling services in the City of Newport
Beach and the use of public streets, right of ways and places for such purposes. Fees shall be
in the following amounts:
(1) Franchisee shall pay to the City 8.5% (eight and one half percent) of the
gross receipts for all commercial solid waste handling services provided by the Franchisee in
the City for the first year of the franchise. The franchise fee shall increase by I% (one percent)
per year for each of the next succeeding four years of this Agreement. Thereafter, the
franchise fee will be capped at 10.5% for the life of the Agreement.
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(2) Franchise fee payments shall be paid quarterly and shall be computed
and paid on the basis of paid receipts received by the Franchisee for all solid waste handling
services within the City.
(3) (One half of one percent) .5% of the franchise fee shall be attributable to
the maintenance and implementation of the City's Source Reduction and Recycling Element
"SRRE," and shall be separately accounted for, and used only for the costs stated in Public
Revenue Code Section 41901 or any successor provision.
B. Franchisee shall pay all required franchise fees to:
Administrative Services Director
City of Newport Beach
3300 Newport Boulevard
Newport Beach, CA 92659
C. Franchise fees shall be due and payable on the thirtieth (30th) day of the month
following the end of each quarter. If franchise fees are not paid by Franchisee when due, then
in addition to the franchise fees, Franchisee shall pay a late payment penalty in an amount
equal to ten percent (10 %) of the franchise fee that was not timely paid by Franchisee. If
Franchisee fails to pay delinquent franchise fees within thirty (30) days of the date due,
Franchisee shall pay a second late payment penalty in an amount equal ten percent (10 %) of
the franchise fee outstanding after such thirty day period. The second late payment penalty
shall be in addition to the first late payment penalty. In addition, Franchisee shall pay interest
on all unpaid franchise fees at the rate of ten percent (10 %) per annum or the legal rate
allowed, whichever is less, from the date the franchise fees were due and payable to the date
actually paid. Franchisee will be responsible for all billing and collection from all its customer
accounts.
D. If Franchisee remits franchise fees by personal delivery to City, such franchise
fees shall be deemed timely paid only if delivered on or before the due date set forth in Section
12.63.070 of the Code. If Franchisee remits franchise fees by mail or other delivery service,
such franchise fees shall be deemed timely only if (1') the envelope containing the franchise fee
payment bears a postmark or receipt showing that the payment was mailed or sent on or before
the due date or (2) Franchisee submits proof satisfactory to the Administrative 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
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any overpayment as a credit against any other amounts payable to City unless specifically so
authorized by the Administrative Services Director in writing.
G. Each franchise fee payment shall be accompanied by a written statement
described in Section 12.63.070 of the Code on a form provided by the Administrative Services
Director.
H. No maximum nor minimum service fee will be set by the City. The fees will
fluctuate with market demand.
SECTION 5. DISPOSAL OF COMMERCIAL SOLID WASTE
A. Franchisee shall dispose of solid waste collected or transported by
Franchisee only by taking such solid waste to a landfill, transfer station, recycling facility or
materials recovery facility which is lawfully authorized to accept such solid waste. Franchisee
shall not dispose of solid waste by depositing it on any land, (except a permitted recycling
facility) whether public or private, or in any river, stream or other waterway, or in any sanitary
sewer or storm drainage system. Nothing in this Agreement shall be deemed or construed as
authorizing Franchisee to operate a landfill, recycling center, or other solid waste disposal
facility.
B. All solid waste, in addition to recyclables, collected by Franchisee shall become
the property of Franchisee upon placement by the customer for collection. Franchisee agrees
that the City has the future right, at any time, to direct that solid waste be delivered to a
permitted disposal facility designated by City. For example, the City may exercise this right in
order to save solid waste generators money on disposal costs, to avoid disposal sites with
potential cleanup problems, or to meet the requirements for access to a disposal site.
Franchisee agrees to deliver the solid waste which it collects to any disposal facility directed
by the 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 (1.20) 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.
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SECTION 6. REPORTS
A. Franchisee shall submit to City quarterly reports stating the total amount of
solid waste which Franchisee collected in the City during the reportable quarter; the total
weight (in tons) of solid waste disposed of by Franchisee at landfills and transfer stations
during the reportable quarter; and the total weight and the weight by material category (in tons)
of solid waste disposed of by Franchisee at recycling and materials recovery facilities during
the reportable quarter. Such quarterly reports shall be prepared on the form attached to this
Agreement as EXHIBIT A or on such other form as required by the General Services Director.
Each quarterly report shall be submitted' on or before the 15th day of the month following the
end of the quarter (i.e. report due April 15 for first quarter of the year) and submitted to:
General Services Director
City of Newport Beach
3300 Newport Boulevard
Newport Beach, CA 92659
B. If the report required under subsection A is not filed by the due date specified
above, the report shall be deemed delinquent. If the report remains delinquent for more than
fifteen (15) days, Franchisee shall pay to City a 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.
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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.
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 l I 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,
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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.
SECTION 10. INSURANCE REQUIREMENTS
Without limiting the indemnification provided in Section 11, Franchisee shall obtain
and shall maintain throughout the term of this Agreement, at Franchisee's sole cost and
expense, insurance against claims for injuries to persons or damages to property which may
arise from or in connection with the commercial solid waste handling services provided under
this Agreement by Franchisee, its agents, representatives, employees or contractors.
A. Minimum Scope and Limits of Insurance
Franchisee shall maintain at least the following minimum insurance coverages
1. Commercial General Liability: $1,000,000 combined single limit per
occurrence for bodily injury, personal injury and property damage. The Commercial General
Liability insurance limit shall apply separately to this Agreement or the general aggregate limit
shall be twice the required occurrence limit.
2. Automobile Liability: $2,000,000 combined single limit per occurrence for
bodily injury and property damage, and shall include sudden and accidental coverage.
3. Workers' Compensation and Employers Liability: Workers' Compensation
statutory limits as required by the California. Labor Code and Employers Liability limits of
$1,000,000 per accident.
B. Deductibles and Self - Insured Retentions
Any deductibles or self - insured retentions must be declared to and approved by City's
Risk Manager. At the option of City either; the insurer shall reduce or eliminate such
deductibles or self- insured retentions as respects City, its officers, employees, agents and
contractors; or Franchisee shall procure a bond guaranteeing payment of losses and related
investigations, claim administration and defense expenses in an amount specified by City's
Risk Manager.
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C. Endorsements,
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The required insurance policies are to contain, or be endorsed to contain, he following
provisions:
General Liability and Automobile Liability Coverages.
a. The City of Newport Beach, its officers, employees, agents and
contractors are to be covered as an additional insured as respects: liability arising out of
activities performed by, or on behalf of Franchisee; products and completed operations of
Franchisee; premises owned, leased or used by Franchisee; and automobiles owned, leased,
hired or borrowed by Franchisee. The coverage shall contain no special limitations on the
scope of protection afforded to City, its officers, employees and agents and contractors.
b. Franchisee's insurance coverage shall be primary insurance as respects
City, its officers, employees, agents and contractors. Any insurance or self - insurance
maintained by City, its officers, employees, agents or contractors shall be excess of
Franchisee's insurance and shall not contribute with it.
C. Any failure to comply with reporting provisions of the policies shall not
affect coverage provided to City, its officers, employees, agents or contracts.
d. Coverage shall state that Franchisee's insurance shall apply separately to
each insured against whom claim is made or suit is brought, except with respect to the limits of
the insurer's liability..
2. All Coverages
Each insurance policy required by this Agreement shall be endorsed to state that
coverage shall not be suspended, voided, canceled, or reduced in limits except after thirty (30)
days' prior written notice has been given to the City.
D. Placement of Insurance
Insurance shall be placed with an insurance company certified to do business in the
State of California, with Best's rating A -VII or better, unless otherwise approved by the City
Risk Manager.
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:
R1
City of Newport Beach
Risk Manager
3300 Newport Boulevard
Newport Beach, CA 92659
F. Subcontractors.
Franchisee shall include all subcontractors as insureds under Franchisee's policies or
shall obtain separate certificates and endorsements for each subcontractor.
G. Failure to Provide Insurance.
Franchisee agrees that if any policy of insurance required by this Agreement is not
maintained in full force and effect, the City Manager may, in his sole discretion, suspend this
Agreement, immediately, until such time as the required insurance is in effect and the required
certificates and endorsements are delivered to the City.
SECTION 11. INDEMNIFICATION
Franchisee, as a condition of the Franchise shall indemnify the City as follows:
A. General Liability: Franchisee shall indemnify, defend and hold harmless the
City, its officers, employees and agents, with respect to any loss, liability, injury or damage
that arises out of, or is in any way related to, the acts or omissions of Franchisee, its
employees, officers and agents in the performance of any activity, function or duty authorized
by, or required under the terms of, the Franchise, except Franchisee shall not be required to
indemnify City in connection with the negligence or willful acts or omissions of the City, its
officers, agents or employees.
B. Hazardous Substances Indemnification: Franchisee shall indemnify City,
defend with counsel approved by City; protect and hold harmless City, its officers, employees,
agents, assigns; and any successor or successors to City's 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
M
amendments thereto; California Health and Safety Code Section 25364, to insure, protect, hold
harmless, and indemnify City from liability.
C. AB939 Indemnification: Franchisee agrees to meet all requirements of City's
Source Reduction and Recycling Element as to the portion of the solid waste stream handled
by Franchisee. Franchisee agrees to protect, defend, indemnify, and hold City harmless
against all fines or penalties imposed by the California Integrated Waste Management Board
with respect to the portion of the commercial waste stream collected by Franchisee.
D. City agrees to give notice to Franchisee when the City receives a claim for
damages or other liability for which Franchisee has provided indemnification under this
Section.
SECTION 12. VEHICLES AND EQUIPMENT
A. Any and all containers provided to customers of Franchisee for storage,
collection or transportation of commercial solid wastes shall meet the requirements of Section
12.63.110 of Chapter 12.63 of the Code as well as State of California minimum standards for
solid waste handling established under Public Resources Code Section 43020 and applicable
health requirements.
B. All containers and all vehicles used by Franchisee in the performance of
commercial solid waste handling services shall be marked with Franchisee's name and
telephone number in letters which are not less than four inches (4 ") high or which are easily
read by the general public.
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
10
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, certi- ficate of deposit or other form of security acceptable
to the City, with City Revenue Division to reimburse City for such costs within ten (10) days
of the date of City's invoice for such costs.
D. For the purposes of this Section, "abandoned" includes:
(1) Franchisee's failure to remove the container within the time period
specified by the City Council upon termination of the Franchise pursuant to Section 12.63.130
of the Code;
(2) Franchisee's failure to remove the container within ten (10) working
days after the expiration of the Franchise granted to Franchisee, except in the case where
Franchisee has been granted an extension of the term of said Franchise or Franchisee has been
granted a subsequent Franchise authorizing Franchisee to collect and transport the type or
types of solid waste for which the container was used pursuant to this Agreement.
(3) Franchisee's failure to collect the container and dispose of the contents
of the container within five (5) days after City's Director of General Services issues written
notice to Franchisee to dispose of the contents.
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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.
C. All promotional brochures, fliers or other information distributed by Franchisee
hereunder shall be printed on recycled paper. All such informational materials shall be
approved in advance by the City's General Services Director.
SECTION 17. TERMINATION AND SUSPENSION
A. The franchise granted to Franchisee may be temunated 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:
12
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(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 indenmification in Section 11.
C. In the event this Franchise is terminated pursuant to Subsection A above, then
within the time period specified by the City Council, Franchisee shall remove all of
Franchisee's commercial solid waste containers, and all of such containers used by
Franchisee's subcontractors in performance of solid waste handling services pursuant to the
Franchise, from all Franchisee's collection service locations and shall properly dispose of all
solid waste in such containers.
D. In the event the Franchise is terminated pursuant to Subsection A above or
expires without an extension of the term and without a grant of a Subsequent Franchise
allowing Franchisee to continue performing such services, then within ten (10) days of such
termination or expiration Franchisee shall either:
(1) Submit to City's General Services Director a list of the names and addresses of
solid waste generators in Newport Beach for which Franchisee provided services as of the date
of termination or expiration (i.e. Franchisee's Newport Beach customer list); or
(2) Send written notification to each solid waste generator on Franchisee's
customer list that Franchisee is no longer authorized to provide commercial solid waste
handling services in Newport Beach. Such notification shall be in the form provided by City's
General Services Director and shall be personally delivered or shall be sent by first class mail,
postage prepaid, to the customers' billing addresses. Franchisee shall submit to City's General
13
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 service's 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: West Coast Land Clearing
P.O. Box 90126
Long Beach, CA 90809-0126
Notice shall be deemed effective on the date personally served or, if mailed, three days
after the date deposited in the mails.
B. Amendments. This Agreement supersedes all prior agreements and understandings
between the parties and may not be modified or terminated orally, and no modification,
termination or attempted waiver of any of the provisions hereof shall be binding unless in
writing and signed by the party against whom the same is sought to be enforced.
C. Applicable Law. This Agreement and the transactions herein contemplated
shall be construed in accordance with an governed by the applicable laws of the State of
California and of the United States.
D. Authority. The parties signing below represent and warrant that they have the
requisite authority to bind the entities on whose behalf they are signing.
14
0
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.
15
0
0
WITNESS THE EXECUTION OF THIS AGREEMENT ON THE DATE
WRITTEN BELOW EACH SIGNATURE:
"CITY"
CITY OF NEWPORT BEACH, a Municipal
Corporation
City Clerk
APPROVED AS TO FORM:
j,
l
ROBIN"CLAUSON
Assistant City Attorney
�i
BY:
DENNIS D. O'NEIL
Mayor
DATE:
"FRANCHISEE"
6-)ES% COAJ 7 /h/(a d CkFMe2�
COMPANY NAME
BY:\
Signature
NAME: -:�12A L/f %7-(0 ),114 5
(Print)
TITLE: Yd!5�S
DATE: /- / ; -9q
EIo3
STATE OF CALIFORNIA }
COUNTY OF ORANGE } ss.
CITY OF NEWPORT BEACH }
I, LAVONNE M. HARKLESS, City Clerk of the City of Newport Beach; California, do
hereby certify that the whole number of members of the City Council is seven; that the foregoing
ordinance, being Ordinance No. 99 -3 was duly and regularly introduced before and adopted by the
City Council of said City at a regular meeting of said Council, duly and regularly held on the 8th day
of February, 1999, and that the same was so passed and adopted by the following vote, to wit:
Ayes: Adams, Glover, Thomson, Ridgeway, Noyes, Mayor O'Neil
Noes: None
Absent: Debay
Abstain: None
IN WITNESS WHEREOF, I have hereunto subscribed my name and affixed the
official seal of said City this 9th day of February, 1999.
(Seal)
City Clerk of the City of
Newport Beach, California
CERTIFICATE OF PUBLICATION
STATE OF CALIFORNIA )
COUNTY OF ORANGE ) ss.
CITY OF NEWPORT BEACH I
I, LAVONNE M. HARKLESS, City Clerk of the City of Newport Beach, California, do hereby
certify that Ordinance No. 99 -3 has been duly and regularly published according to law and the order
of the City Council of said City and that same was so published in The Daily Pilot, a daily newspaper
of general circulation on the following date, to•wit: February 13, 1999.
In witness whereof, I have hereunto subscribed my name this day of
1999.
City Clerk of the City of
Newport Beach, California