HomeMy WebLinkAboutZakaroff ServicesCOMMERCIAL SOLID WASTE COLLECTION
FRANCHISE AGREEMENT BETWEEN THE CITY OF
NEWPORT BEACH AND ZAKAROFF SERVICES
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 Zakaroff Services ( "Franchisee ").
R E_ I T A L$
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has repealed the former Chapter 12.63 and added a new Chapter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 49529 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
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herein, from commercial, institutional, or industrial premises
within the City.
F. The City Council has determined that the grant of
a nonexclusive franchise is in the public interest.
NOW, THEREFORE, CITY AND FRANCHISEE DO HEREBY AGREE AS
FOLLOWS:
SECTION 1. GRANT OF FRANCHISE
A. By Ordinance No. 97- 4, City has granted to Franchisee a
nonexclusive Franchise authorizing Franchisee to provide
commercial solid waste handling services for solid waste kept,
accumulated, or generated in the City of Newport Beach and to use
the public streets and rights of way for such purpose.
Franchisee acknowledges that the Franchise is not exclusive and
that the Franchise is subject to the provisions of Article XIII
of the City Charter, Ordinance No. 97- 4, 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 1, 1997, to February 28, 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 terns 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
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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 6.58 (six 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 18 (one percent) per year for each of the next
succeeding four years of this Agreement. Thereafter, the
franchise fee will be capped at 10.58 for the life of the
Agreement.
(2) Franchise fee payments shall be paid quarterly
and shall be computed and paid on the basis of paid receipts
received by the Franchisee for all solid waste handling services
within the City.
(3) (One half of one percent) .58 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 (108) 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 (108) 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 (108') 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
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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 uncollectibie, Franchisee shall attach to
the report a list of the customers for which Franchisee has
written off the delinquent payment determined to be
uncollectible.
F. In the event Franchisee believes that it has paid
franchise fees in excess of the fees due to City, Franchisee may
submit a request for refund to the Administrative Services
Director on a form provided by the Director. If proof of
overpayment is satisfactory to the Director, the Director shall
refund to Franchisee any overpayment. Franchisee shall not apply
any overpayment as a credit against any other amounts payable to
City unless specifically so authorized by the Administrative
Services Director in writing.
G. Each franchise fee payment shall be accompanied by a
written statement described in Section 12.63.070 of the Code on a
form provided by the Administrative Services Director.
H. No maximum nor minimum service fee will be set by the
City. The fees will fluctuate with market demand.
SECTION 5. DISPOSAL OF COMMERCIAL SOLID WASTE
A. Franchisee shall dispose of solid waste collected or
transported by Franchisee only by taking such solid waste to a
landfill, transfer station, recycling facility or materials
recovery facility which is lawfully authorized to accept such
solid waste. Franchisee shall not dispose of solid waste by
depositing it on any land, (except a permitted recycling
facility) whether public or private, or in any river, stream or
other waterway, or in any sanitary sewer or storm drainage
system. Nothing in this Agreement shall be deemed or construed
as authorizing Franchisee to operate a landfill, recycling
center, or other solid waste disposal facility.
B. All solid waste, in addition to recyclables, collected
by Franchisee shall become the property of Franchisee upon
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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:
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) . I'f
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 col- lection 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
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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 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
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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.
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.
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3. Workers' Compensation and Employers Liability:
Workers' Compensation statutory limits as required by the
California Labor Code and Employers Liability limits of
$1,000,000 per accident.
B. Deductibles and Self- Insured Retentions.
Any deductibles or self- insured retentions must be declared
to and approved by City's Risk Manager. At the option of City
either: the insurer shall reduce or eliminate such deductibles or
self - insured retentions as respects City, its officers,
employees, agents and contractors; or Franchisee shall procure a
bond guaranteeing payment of losses and related investigations,
claim administration and defense expenses in an amount specified
by City's Risk Manager.
C. Endorsements-.
The required insurance policies are to contain, or be
endorsed to contain, he following provisions:
1. General Liability and Automobile Liability Coverages.
a. The City of Newport Beach, its officers,
employees, agents and contractors are to be covered as an
additional insured as respects: liability arising out of
activities performed by, or on behalf of Franchisee; products and
completed operations of Franchisee; premises owned, leased or
used by Franchisee; and automobiles owned, leased, hired or
borrowed by Franchisee. The coverage shall contain no special
limitations on the scope of protection afforded to City, its
officers, employees and agents and contractors.
b. Franchisee's insurance coverage shall be primary
insurance as respects City, its officers, employees, agents and
contractors. Any insurance or self- insurance maintained by City,
its officers, employees, agents or contractors shall be excess of
Franchisee's insurance and shall not contribute with it.
C. Any failure to comply with reporting provisions
of the policies shall not affect coverage provided to City, its
officers, employees, agents or contracts.
d. Coverage shall state that Franchisee's insurance
shall apply separately to each insured against whom claim is made
or suit is brought, except with respect to the limits of the
insurer's liability.
2. All Coverages
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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.
SECTION 11. INDEMNIFICATION
Franchisee, as a condition of the Franchise shall indemnify
the City as follows:
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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 terns 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. 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
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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 (40) 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 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
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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.
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
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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.
15
0 0
D. In the event the Franchise is terminated pursuant to
Subsection A above or expires without an extension of the tern
and without a grant of a Subsequent Franchise allowing Franchisee
to continue performing such services, then within ten (10) days
of such termination or expiration Franchisee shall either:
(1) Submit to City's General Services Director a list of
the names and addresses of solid waste generators in Newport
Beach for which Franchisee provided services as of the date of
termination or expiration (i.e. Franchisee's Newport Beach
customer list); or
(2) Send written notification to each solid waste generator
on Franchisee's customer list that Franchisee is no longer
authorized to provide commercial solid waste handling services in
Newport Beach. Such notification shall be in the form provided
by City's General Services Director and shall be personally
delivered or shall be sent by first class mail, postage prepaid,
to the customers' billing addresses. Franchisee shall submit to
City's General Services Director an affidavit, signed under
penalty of perjury, stating that the
required notification has been provided by Franchisee to all of
Franchisee's Newport Beach customers.
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
16
To Franchisee: Mr. Mark Bozajian
Zakaroff Services
P.O. Box 90010
City of Industry, CA 91715
Notice shall be deemed effective on the date personally
served or, if mailed, three days after the date deposited in the
mails.
B. Amendments. This Agreement supersedes all prior
agreements and understandings between the parties and may not be
modified or terminated orally, and no modification, termination
or attempted waiver of any of the provisions hereof shall be
binding unless in writing and signed by the party against whom
the same is sought to be enforced.
C. Applicable Law. This Agreement and the transactions
herein contemplated shall be construed in accordance with an
governed by the applicable laws of the State of California and of
the United States.
D. Authority. The parties signing below represent and
warrant that they have the requisite authority to bind the
entities on whose behalf they are signing.
E. Conflicts: In the event of any conflict between the
provisions of this Agreement and the provisions of Chapter 12.63
of the Code, the provisions of this Agreement shall control.
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
ATTEST
l ��l BY: �GtA
LAVONNE M. HARKLE ERK AN DEBAY, MfR
= DATE • V4 7
APP V AS TO FORM6�
ROBIN CLAUSON
Assistant City Attorney
1/28/97
DEN /pp
W.
ZA FF SE VICES, INC.
BY:
NAME: Mark Bozajian
Title: President
Date :
0
RESOLUTION NO. 99- 76
0
A RESOLUTION OF THE CITY COUNCIL OF THE CITY
OF NEWPORT BEACH TERMINATING /ASSIGNING THE
COMMERCIAL SOLID WASTE COLLECTION
FRANCHISE AGREEMENTS BETWEEN THE CITY OF
NEWPORT BEACH AND ZAKAROFF SERVICES,
BRIGGEMAN DISPOSAL, ORANGE DISPOSAL, AND
ALLIANCE WASTE & RECYCLING.
WHEREAS, on January 27, 1997, the City Council adopted Ordinance 97 -4
granting a Non - exclusive Solid Waste Franchise to Zakaroff Services; and
WHEREAS, on November 27, 1995, the City Council adopted Ordinance 95 -64
granting a Non - exclusive Solid Waste Franchise to Orange Disposal Service: and
WHEREAS, on September 22, 1997, the City Council adopted Ordinance 97 -32
granting a Non - exclusive Solid Waste Franchise to Alliance Waste and Recycling; and
WHEREAS, on October 20, 1999 the City was notified that Zakaroff Services
was no longer operating within the City of Newport Beach, and has been acquired by
Briggeman Disposal; and
WHEREAS, On November 15, 1999 was informed that both Briggemen Disposal
and Zakaroff Services were wholly owned by Consolidated Disposal Services LLC., dba
Briggemen Disposal
WHEREAS, on October 4, 1999 the City was notified that Orange Disposal was
acquired by Waste Management of Orange County, and is no longer operating within the
City of Newport Beach; and
WHEREAS, on April 15, 1999, the City was notified that Alliance Waste &
Recycling has been acquired by Waste Management of Orange County, and is no longer
operating within the City of Newport Beach; and
WHEREAS, Orange Disposal, and Alliance Waste & Recycling have requested
that the City terminate their respective Franchise Agreement and Consolidated Disposal
Services has asked that the Briggeman Disposal Franchise and Zakaroff Services
Franchise be assigned to Consolidated Disposal Services., LLC. Dba Briggeman Disposal
Services; and
i
E
WHEREAS, the City Council has been presented with agreements to terminate/
assign the Franchise Agreements;
NOW THEREFORE, the City Council resolves as follows:
1. The City Council hereby approves the termination of the Orange Disposal
and Alliance Waste Franchise Agreements. The City Council approves the
assignment of the Zakaroff Services and Briggeman Disposal Franchises
to Consolidated Disposal Services, LLC,, dba Briggeman Disposal
Services.
2. Each of the following Agreements is hereby approved and the City
Manager is authorized to execute each Agreement as written:
a. Agreement to assign the Commercial Solid Waste Collection
Franchise Agreements between the City of Newport Beach and
Zakaroff Services and Briggeman Disposal Services, Inc to
Consolidated Disposal Services, LLC. Dba Briggeman Diposal
Services (Exhibit A).
b. Agreement Between the City of Newport Beach and Waste
Management of Orange County, Inc., a Division of Waste
Management Collection and Recycling, Inc. to terminate the
Commercial Solid Waste Collection Franchise Agreement between the
City of Newport Beach and Orange Disposal Services (Exhibit B).
c. Agreement Between the City of Newport Beach and Waste
Management of Orange County, Inc., a Division of Waste
Management Collection and Recycling, Inc. to terminate the
Commercial Solid Waste Collection Franchise Agreement between the
City of Newport Beach and Alliance Waste and Recycling (Exhibit C).
ADOPTED this22ndday of November 1999.
"CITY"
CITY OF NEWPORT BEACH,
a Municipal Corporation
Dated: // (`-:z -� 4 % By:
Y
ATTEST
LaVonne Harkless, City Clerk
F: \USERS\GSV\MEldridge\NOVERIDER 99\Co=il- F`mchRmIutu.dm
EXHIBIT A
REVISED
AGREEMENT TO ASSIGN THE COMMERCIAL SOLID WASTE
COLLECTION FRANCHISE AGREEMENTS BETWEEN THE CITY
OF NEWPORT BEACH AND ZAKAROFF SERVICES AND
BRIGGEMAN DISPOSAL SERVICES, INC. TO CONSOLIDATED
DISPOSAL SERVICES, LLC., DBA BRIGGEMAN DISPOSAL
SERVICES, INC.
This Agreement is entered into on this day, the VrAday of 1999 and
executed by and between the CITY OF NEWPORT BEACH, a municipal corporation
( "CITY "), AND CONSOLIDATED DISPOSAL SERVICES, LLC., DBA BRIGGEMAN
DISPOSAL SERVICES ( "CONSOLIDATED DISPOSAL ").
RECITALS
A. On January 27, 1997, the CITY entered into a Commercial Solid Waste
Collection Franchise Agreement with Zakaroff Services ( "ZAKAROFF
FRANCHISE "). On March 22, 1999, the CITY entered into a Commercial
Solid Waste Collection Franchise with Briggeman Disposal Services. Inc.
( "BRIGGEMAN FRANCHISE "). The two franchises will be referred to
herein collectively as "FRANCHISES ".
B. On October 20, 1999 Zakaroff Services notified the City that it was
acquired by Briggeman Disposal Services, Inc. and that it is no longer
operating within the City of Newport Beach. The CITY was requested to
terminate the Zakaroff Franchise.
C. On November 15, 1999 the CITY was informed by Consolidated Services
that Briggeman Disposal Services, Inc., is a wholly owned entity of
Consolidated Disposal Services, LLC and that the BRIGGEMAN
FRANCHISE should be assigned to Consolidated Disposal Services,
LLC., DBA Briggeman Disposal Services.
D. The CITY desires to clarify the operations of both the ZAKAROFF
FRANCHISE and BRIGGEMAN FRANCHISE and to terminate
unnecessary agreements.
NOW THEREFORE, the CITY and CONSOLIDATED DISPOSAL agree as
follows:
1. CONSOLIDATED DISPOSAL hereby represents and agrees that the
above - referenced recitals are true and accurate representations of the
corporate status of Zakaroff Services and Briggeman Disposal Services,
Inc. CONSOLIDATED DISPOSAL agrees that the Zakaroff Services and
Briggeman Disposal Services, Inc. corporate entities operations have
been merged with and transferred to the corporate entity, Consolidated
Disposal Services, LLC., and that Consolidated Services operates within
the City under DBA, Briggeman Disposal and that CONSOLIDATED
DISPOSAL has authorization and legal standing to execute this
Agreement, and to request assignment of the FRANCHISES and to
assume all responsibility of the FRANCHISES.
2. Except for obligations of CONSOLIDATED DISPOSAL described below,
the FRANCHISES are hereby assigned to CONSOLIDATED DISPOSAL
effective November 22, 1999.
3. By signing this Agreement, CONSOLIDATED DISPOSAL and Zakaroff
Services shall have surrendered all rights to operate commercial solid
waste collection services under the name of Zakaroff Services in the CITY
limits.
4. By signing this Agreement, Briggeman Disposal Services, Inc. has
surrendered all rights to operate commercial solid waste collection
services within the CITY limits and will hereafter operate all commercial
solid waste collection services under the name of Consolidated Disposal
Services, LLC., DBA Briggeman Disposal.
5. CITY hereby consents to the assignment of the FRANCHISES to
Consolidated Disposal Services, LLC. DBA Briggeman Disposal
(hereinafter referred to as Franchise Agreement) CONSOLIDATED
DISPOSAL agrees to the following conditions of assignment:
(a) All terms and conditions of the Franchises shall remain in full force
and effect and the full and complete obligation of CONSOLIDATED
DISPOSAL. CONSOLIDATED DISPOSAL agrees to fully comply
with all terms and conditions of the Franchise Agreement.
(b) CONSOLIDATED DISPOSAL agrees that all solid waste collected
by CONSOLIDATED DISPOSAL will be disposed of per the
provisions of the Franchise Agreement at a location identified by
the City.
(c) CONSOLIDATED DISPOSAL agrees that the Franchise Agreement
shall terminate on December 31, 2005 and no extension of the
Agreement is granted by this Assignment.
(d) CONSOLIDATED DISPOSAL shall pay to CITY any and all
deficient franchise fees, or other fees, or penalties, or obligations
incurred under the FRANCHISES, as provided in #6 below.
6. CONSOLIDATED DISPOSAL shall be liable for payment to CITY of all
applicable fees and penalties associated with the ZAKAROFF
FRANCHISE and the BRIGGEMAN FRANCHISE and all solid waste
collection services performed by or under the name of Zakaroff Disposal
Services, Briggeman Disposal Services, Inc., or any other predecessor or
subsidiary entities under the FRANCHISES during the term of the
FRANCHISES through and including November 22, 1999.
Ll
9
CONSOLIDATED DISPOSAL agrees that liability shall include, but not be
limited to the following:
(a) All current and outstanding franchise fees;
(b) All applicable charges associated with late payment of franchise
fees pursuant to Section 4 of the FRANCHISES;
(c) All applicable charges associated with reporting delinquencies
pursuant to Section 6 of the FRANCHISES;
7. CONSOLIDATED DISPOSAL agrees to submit any outstanding Disposal
Reports per Section 6 of the FRANCHISES.
8. The Board of Directors of CONSOLIDATED DISPOSAL has authorized
execution of this Agreement, which authorization has been documented
and provided to City prior to execution of this Agreement.
WITNESS THE EXECUTION OF THIS AGREEMENT ON THE DATE WRITTEN
BELOW EACH SIGNATURE:
CITY OF NEWPORT BEACH,
a Municipal Corporation
Dated: .? Ooo By:
Homer BI dau
City Manager
APP V AS TO FORM:
ROBIN CLAUSON
Assistant City Attorney
Dated:
F:\users\cat\shared\Ag\BriggemanDisposal.doc
11 -18 -99
CONSOLIDATED DISPOSAL SERVICES, LLC.,
DBA BRIGGEMAN DISPOSAL SERVICES, INC.
Name:��sc /J �.�tk
Title:6encraQ Hmja*y, 1/17/AO