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HomeMy WebLinkAboutGreenleaf EngineeringNON-EXCLUSIVE FRANCHISE AGREEMENT BETWEEN THE CITY OF NEWPORT BEACH AND GREENLEAF ENGINEERING FOR COMMERCIAL SOLID WASTE HANDLING SERVICES This Non-exclusive Franchise Agreement for Commercial Solid Waste Handling Services ("Agreement") is entered into this 9th day of November, 2017 ("Effective Date") by and between the City of Newport Beach, a California municipal corporation and charter city organized and existing under the laws of the State of California ("City"), and GREENLEAF ENGINEERING, a California corporation ("Franchisee"), whose address is 16652 Burke Lane, Huntington Beach, California 92648, and is made with reference to the following: RECITALS This Agreement is entered into on the basis of the following facts: A. Assembly Bill ("AB") 939 (the California Integrated Solid Waste Management Act of 1989, hereinafter the "Act"; Public Resources Code Sections 40000 et seq.) requires the City to divert from landfill disposal a minimum of fifty percent (50%) of all municipal solid waste generated within the City. B. In 2011, the Act was amended by AB 341 to establish a statewide goal of diverting from landfills seventy-five percent (75%) of all municipal solid waste by 2020 and required the City, on or before July 1, 2012, to provide a commercial recycling program. C. AB 341 also requires all businesses generating more than four (4) cubic yards per week of commercial municipal solid waste and all multifamily dwellings of five (5) units or more to arrange for recycling services by July 1, 2012. D. In 2014, the Act was further amended by AB 1826 to require the City, on or before January 1, 2016, to provide a diversion program for collection and diversion of food scraps and green waste. E. AB 1826 also requires commercial generators of certain quantities of food scraps and green waste to participate in a diversion program beginning on a date between April 1, 2016 and January 1, 2019, depending on the quantity of waste generated. Additional smaller commercial generators may be required by CalRecycle to participate on or after January 1, 2020. F. The City has received written notification from CalRecycle of its intention to enforce the deadlines for implementation of AB 341 and AB 1826 programs within the City as required by the Act; therefore, it is important that Franchisee implement and maintain successful AB 341 an AB 1826 diversion programs for all commercial customers as required by the Act, to the satisfaction of both the City and CalRecycle. G. Pursuant to Article XIII of the City Charter, Code Chapter 12.63, and Public Resources Code Sections 40059, 49300, and 49500 through 49523, or any successor statutes, the City is authorized to enter into non-exclusive franchise agreements for commercial solid waste handling services. H. Pursuant to Code Chapter 12.63, Franchisee has filed a franchise application with the City. I. City has reviewed Franchisee's application and Franchisee has represented it is capable of providing collection services for commercial recyclable materials, food scraps, green waste, municipal solid waste, and/or construction and demolition debris in the City. J. Pursuant to this Agreement, City desires to authorize Franchisee to provide those non-exclusive commercial collection, transportation, delivery, and disposal or diversion services for recyclable materials, food scraps, green waste, construction and demolition debris, and municipal solid waste, as requested in Franchisee's application and for which Franchisee has demonstrated capability. K. The City Council has determined that this grant of a non-exclusive franchise is in the public interest. NOW, THEREFORE, the City and Franchisee do hereby agree as follows: SECTION 1. GRANT OF FRANCHISE A. By Ordinance No. 2017-16, City has granted to Franchisee a non-exclusive Franchise authorizing Franchisee to provide Commercial Solid Waste Handling Services within all or any part of the City and to use the public streets and public right-of-ways for such purpose. Franchisee acknowledges that the Franchise is not exclusive and that the Franchise is subject to the all provisions of applicable law, including, but not limited to, Article XIII of the City Charter, Ordinance No. 2017-16, Code Chapter 12.63, and the terms and conditions of this Agreement. B. Upon the Effective Date of this Agreement, the parties agree that any prior authorization relating to the provision of Commercial Solid Waste Handling Services within all or any part of the City arising under and pursuant to any prior franchise issued to Franchisee shall be deemed to be terminated and of no further force or effect. SECTION 2. TERM OF FRANCHISE This Agreement shall commence on the Effective Date, and shall terminate on the Termination Date, unless terminated earlier as set forth herein. SECTION 3. DEFINITIONS "Act" means the California Integrated Waste Management Act of 1989 (Public Resources Code Sections 40000, et seq.) as amended and as implemented by regulations of CalRecycle (or its successor agency) and the Air Resources Board (or its successor agency). Non-exclusive Franchise Agreement Page 2 "Alternative Daily Cover" or "ADC' means cover material other than earthen material placed on the surface of the active face of a Municipal Solid Waste Landfill at the end of each operating day to control vectors, flies, fires, odors, blowing litter and scavenging. Prior to 2014, Green Waste was included in the list of CalRecycle-approved ADC materials and use of Green Waste for this purpose was counted as "Diversion" for purposes of the Act. AB 1594, passed and signed into law in 2014, phases out the use of Green Waste as ADC effective January 1, 2020. As of January 1, 2020, no Green Waste Collected within the City shall be used as ADC and Green Waste must be diverted for processing such as mulching, Composting, as feedstock for Anaerobic Digestion or other CalRecycle-approved means that counts as Diversion. "Anaerobic Digestate" or "Digestate" means the material left at the conclusion of a biological process that decomposes organic matter in an enclosed environment with little or no oxygen, resulting in a biogas and a liquid/solid stream called Digestate (CCR Section 17896.2(a)(6)). Any Digestate created from Green Waste, Food Scraps or other organic materials Collected within the City must be further processed at a permitted Composting Facility or utilized in another manner that is fully permitted and approved by all federal, state and local regulatory agencies, including but not limited to CalRecycle, and that is considered as "Diversion" by CalRecycle for purposes of the Act. "Anaerobic Digestion" means a biological process that decomposes organic matter in an environment with little or no oxygen, resulting in a biogas and a liquid/solid stream called Anaerobic Digestate. Such activity takes place at an "Anaerobic Digestion Facility." "Bin(s)" means open top rectangular containers with wheels, with attached plastic or metal lids, used for storage of Municipal Solid Waste, Recyclable Materials, Green Waste, Food Scraps, Construction and Demolition Debris or other materials that are Collected by Franchisees or other Persons authorized to Collect and transport such materials within City. "Biomass Conversion Facility" means a facility which uses the controlled combustion of the following materials (when separated from Municipal Solid Waste) to produce electricity or heat: (1) agricultural crop residues; (2) bard, law, yard or garden clippings (Green Waste); (3) leaves, silviculture residue, tree and brush prunings; (4) wood, wood chips and wood waste; or (5) non -Recyclable pulp or non -Recyclable paper (collectively, "Biomass Conversion"). Such a facility must exclusively burn biomass materials listed herein, comply with all applicable federal, state and local air quality laws and regulations, and test its residue (ash) regularly as required by state law and regulations. If the ash is found to be hazardous, the facility must deliver that ash residue to a Class I Hazardous Waste facility. A biomass facility may burn petroleum coke or natural gas solely for the purpose of maintaining a particular temperature level, if so permitted by federal, state and local laws. Processing of any materials Collected within the City at a Biomass Conversion Facility shall only be allowed if: (a) said facility meets all of the above requirements and all other federal, state and local laws and requirements; and (b) only if such processing is allowed to count as "Diversion" by CalRecycle for purposes of the Act. Non-exclusive Franchise Agreement Page 3 "CalRecycle" means the California Department of Resources Recycling and Recovery, the successor agency to the former California Integrated Waste Management Board. "Can" means a receptacle for Municipal Solid Waste, Recyclable Materials, Green Waste, Food Scraps or wood provided by the Customer and Collected using manual (instead of automated) means of Collection. "Cart" means a plastic wheeled Container with a hinged lid used to store Municipal Solid Waste, Recyclable Materials, Green Waste or Food Scraps that is Collected by an automated or semi -automated vehicle. "CERCLA" means the Comprehensive Environmental Response, Compensation and Liability Act of 1980 (42 USC §9601 et seq.). "City Council" means the City Council of the City of Newport Beach. "City Manager," "Municipal Operations Director," "Finance Director," and "Public Works Director" mean the City Manager, Municipal Operations Director, Finance Director and Public Works Director of the City or their designee. Clean Materials Recovery Facility ("Clean MRF') means a materials recovery facility ("MRF"), or that portion of a MRF, that processes Recyclable Materials that have been separated from Municipal Solid Waste such as Single Material Recyclables and Single Stream Recyclable Materials, containing no more than the maximum Residue or contamination allowed by CalRecycle (10% Residue). "Code" means the Newport Beach Municipal Code. "Collect" or "Collection" means taking physical possession of Commercial Solid Waste, or other materials, from Customers and transporting such materials by means of a motor vehicle, or other means, to a MRF, Compost Facility, other Organics Processing Facility, Construction and Demolition Debris Processing Facility, transfer station or Landfill. "Commercial Solid Waste" means Municipal Solid Waste, Recyclable Materials, Green Waste, Food Scraps and Construction and Demolition Debris. "Commercial Solid Waste Handling Services" means the services provided by Franchisees pursuant to the terms and conditions of the Franchise and includes the Collection, transportation, storage, transfer, Disposal, Diversion and/or Processing of Municipal Solid Waste, Recyclable Materials, Green Waste, Food Scraps and/or Construction and Demolition Debris by private solid waste enterprises, and includes, without limitation, the placement of Commercial Solid Waste Containers on public property. "Commercial Premises" means all occupied real property in the City used for commercial purposes and not used for dwelling houses including, without limitation, Non-exclusive Franchise Agreement Page 4 wholesale or retail establishments, restaurants, other food establishments, bars, stores, shops, offices, mechanized manufacturing facilities, repair, research and development or professional services, sports or recreational facilities, industrial facilities, and construction and demolition sites; but shall not include property occupied by governmental agencies or schools that do not consent to their inclusion or residential premises that receive Commercial Solid Waste Handling Services. For purposes of the implementation of the Diversion programs, reporting requirements, and the percentage Diversion requirements, "Commercial Tons" shall include only Tons Collected from Commercial Premises in Carts and Bins and shall not include any Tons Collected from Multifamily Containers. Tons Collected from Multifamily Containers shall be reported separately. "Compactor' means an enclosed rectangular or square metal container containing a ramrod to condense and compress the contents, and is typically used to store Municipal Solid Waste, Green Waste, Recyclable Materials, Food Scraps or Construction and Demolition Debris. Compactors may be small (3 or 4 cubic yards) for use on smaller Commercial Premises or large (10, 20, 30 or cubic yards) for use at large Commercial Premises such as supermarkets, hotels, and large retail stores or at construction sites. A special Roll Off vehicle equipped with hooks and a winch to pull the Compactor on to the railed bed of the vehicle is used to Collect Compactors and transport them to a Landfill or to a Processing Facility. "Compost" means the product resulting from the controlled biological decomposition of organic wastes which are separated from the Municipal Solid Waste stream at the point of generation and includes Food Scraps, Green Waste, and wood that are not hazardous wastes. "Compost Facility" means a facility that processes one (1) or more of the following: Food Scraps, Green Waste, wood and food -soiled fiber such as paper napkins and paper towels, by means of outdoor windrow composting, aerated static pile composting, covered composting, vermiculture or other outdoor composting methods or covered composting with use of either finished compost or fiber, synthetic or other type(s) of cover(s) applied to the compost piles. "Composting" means the controlled microbial degradation of organic materials yielding a safe and nuisance -free finished product called Compost, a soil amendment suitable for incorporating into topsoil and for growing plants. "Construction and Demolition Debris" means all inert material of every nature, description or kind, which has resulted from the building or demolition of a structure, pavements, sidewalks, curbs, gutters and other concrete structures, including all lumber scraps, shingles, plaster, sheetrock, packaging, rubble, brick, stone, concrete, asphalt, dirt, rock and other building material. A facility that accepts Construction and Demolition Debris for separation and further processing to prepare materials for sale or re -use (such as removing nails and screws from wood, or grinding of concrete and asphalt) and then markets the materials for re -use is a "Construction and Demolition Debris Processing Facility." Non-exclusive Franchise Agreement Page 5 "Container(s)" means any object designed and used to hold or store Municipal Solid Waste, Recyclable Materials, Food Scraps, Green Waste, or Construction and Demolition Debris to be Collected by Franchisees. Containers include Carts, Bins, open top Roll Off Boxes, and Compactors. "Contamination" means materials that are not specified for Collection in particular Containers or for processing at either a Clean MRF or a Dirty MRF, which would either interfere with such processing and/or reduce the quality and value of the Recovered Materials. For example, for purposes of Collection, metals and plastics would constitute "Contamination" if placed in a Food Scrap Container and tree trimmings would constitute "Contamination" if placed in a Recyclable Materials Containers. "Customer" means the owner, occupant, manager or user of premises at which Municipal Solid Waste, Recyclable Materials, Green Waste, Food Scraps or Construction and Demolition Debris are generated who requests and receives Commercial Solid Waste Handling Services from one or more Franchisees. In the event a business, non- residential property, Multifamily Dwelling or Commercial Premises shares Containers and/or Commercial Solid Waste Handling Services, "Customer" refers only to the entity that arranges and pays for such service(s). Dirty Materials Recovery Facility ("Dirty MRF") means a facility, or that certain portion of a facility, that processes Processable Municipal Solid Waste to separate Recyclable Materials, Green Waste, wood, Construction and Demolition Debris and other Divertable materials for sale to end users. Franchisees shall not utilize any Dirty MRF that has not been approved by City and that does not meet the standards and requirements of Public Resources Code Section 42649 and all subsequent amendments, rules, and regulations promulgated in furtherance thereof requiring a Dirty MRF to be a source -separated comparable MRF. "Disposal" means the final disposition of solid waste of Municipal Solid Waste at a permitted landfill or transformation at a permitted facility, as transformation is defined and limited by the Act other permitted solid waste disposal facility. "Diversion" or "Divert" means any combination of Recycling, sorting, Composting and other processing activities conducted at a Clean MRF, a Dirty MRF, a Compost Facility, an Anaerobic Digestion Facility, a Biomass Conversion Facility, other organics Processing Facility and a Construction and Demolition Debris Processing Facility in order to use or market the materials for re -use, remanufacture, reconstitution or otherwise return the materials to the economic marketplace and to prevent the materials from being Disposed in a Landfill. "Diversion Programs" and "Diversion Services" mean Recyclable Materials Collection, Green Waste Collection, Food Scraps Collection, Processable Municipal Solid Waste Collection, wood Collection, Construction and Demolition Debris Collection and subsequent processing of the Collected materials at a Clean MRF, a Dirty MRF, a Compost Facility, an Anaerobic Digestion Facility, a facility creating Engineered Feedstock for digestion at a wastewater treatment plant, a Biomass Conversion Facility, a Construction and Demolition Debris Processing Facility and all other programs operated Non-exclusive Franchise Agreement Page 6 by Franchisees, the City, Residents, Customers or other Persons that have the effect of Diverting Municipal Solid Waste from Landfill Disposal. Diversion Programs includes, but is not limited to, all of the programs included in the City's SRRE and all of the programs included in this Agreement. "Effective Date" means the date upon which this Agreement is effective as set forth in the first paragraph of this Agreement. "Engineered Feedstock" means a mixture of materials utilized in wastewater treatment plants to produce biogas. Engineered Feedstock may include organic materials such as Food Scraps from households and Commercial Premises or other organic materials from industries that have been pre-treated and liquefied to the required consistency the reduction or elimination of municipal solid waste, recyclable materials, food scrap, green waste, and construction and demolition debris from disposal. "Environmental Laws" means any and all present and future federal, state or local laws (whether common law, statute, rule, regulation or otherwise), permits, orders and any other requirements of Governmental Authorities relating to the environment or any "Hazardous Substance" or "Hazardous Substance Activity" as defined herein, including, without limitation, the Comprehensive Environmental Response, Compensation and Liability Act of 1980 (42 U.S.C. Sections 9601 et seq.) as amended from time to time and the applicable provisions of the California Health and Safety Code and California Water Code. "Food Scraps" means material resulting from the production, processing, preparation or cooking of food for human consumption that is separated from Municipal Solid Waste. Food scraps include surplus or unsold edible food, raw food left over after food preparation, leftover cooked food, as well as spoiled food such as vegetables and culls, and plate scrapings. Food scraps includes food -soiled paper that is mixed in with the food scraps. "Food Scraps" are Collected and transported to Food Scrap Processing Facilities which include Compost Facilities, Anaerobic Digestion Facilities, Biomass Conversion Facilities, and Wastewater Treatment Plants utilizing Engineered Feedstock. "Food Soiled Paper' means paper towels, tissue products, paper napkins, paper plates and cups, coffee filters, tea bags, waxed paper, butcher paper, paper take-out boxes and containers, greasy pizza boxes, paper bags, cardboard and wax -coated cardboard produce boxes that are Contaminated with Food Scraps. Food Soiled Paper does not include polystyrene, aluminum foil, foil -lined wrap or diapers. "Franchise" or "Franchise Agreement" means an agreement between the City and a Franchisee, granted pursuant to Agreement Section 1(A), providing Franchisee the right, for a specified period of time and pursuant to Article XIII of the City Charter, the Code, and the terms and conditions of this Agreement, to provide Commercial Solid Waste Handling Services to Commercial Premises and Multifamily Dwellings within all or any part of the City of Newport Beach and to use the public streets and public right-of- ways for such purpose. Throughout this Agreement, the terms "Agreement" and "Franchise" may be used interchangeably unless otherwise specified or the context requires otherwise. Non-exclusive Franchise Agreement Page 7 "Franchisee" means the individual or business entity identified as "Franchisee" on the signature page of this Agreement. "Franchise Fee" means the fee or assessment imposed by the City on a Franchisee, which among other things, is intended to offset the City's expenses related to the administration of the Franchise Agreement, the Integrated Waste Management Program, the maintenance and implementation of the City's Source Reduction and Recycling Element, compliance with the California Integrated Waste Management Act, to compensate the City for damages to its streets, sidewalks, curbs and gutters and other infrastructure resulting from the Franchisee's exercise of its rights under the franchise, City's reporting requirements and other related expenses. "Generator" means a resident, an owner or responsible party for a Multifamily Dwelling, Commercial Premises, or business that Generates Municipal Solid Waste, Recyclable Materials, Green Waste, Food Scraps and/or Construction and Demolition Debris as a result of its business, commercial facility or property activity. Generator may also include tenants, property managers for facilities with leased space, employees and contractors of Generator. "Generate" means to bring into existence or create, or to use, maintain, or possess an item, material or product, the result of which such creation, bringing into existence, use, maintenance or possession is that the item, material or product first becomes, or is converted transformed, evolved or deemed as Municipal Solid Waste, Recyclable Materials, Food Scraps, Green Waste or Construction and Demolition Debris. "Green Waste" means any debris that is composed of organic material or plantlike matter, which is a result of seasonal variations, landscape or gardening activities. Green Waste includes, without limitation, grass clippings, leaves, shrubs, trees, branches, stumps, flowers, plant stalks and non -hazardous wood. Green Waste does not include Food Scraps. "Gross Receipts" means all money, whether paid by cash, check, debit or credit, or other consideration collected from Customers by Franchisee that relates in any way to Commercial Solid Waste Handling Services provided by Franchisee to Customers, whether or not such services occur wholly or partially within the City, including, but not limited to, Collection, processing, removal, marketing and Diversion of Recyclable Materials, Green Waste, Food Scraps, Processable Municipal Solid Waste and Construction and Demolition Debris and Disposal of Non-Processable Municipal Solid Waste, Industrial Waste, trash, litter, as well as fuel surcharges. Gross receipts shall also include all money received by any Person other than the Franchisee, where the money was paid to the Person to avoid the Franchisee's obligations under this chapter and/or the Franchise. Gross Receipts shall not include (or if included there shall be deducted, but only to the extent they have been included) the following: (1) if any sales taxes are levied on the Franchisee's Commercial Solid Waste Handling Services in the City, the amount of State sales taxes collected in connection with Franchisee's provision of such services in the City and remitted to the State pursuant to State law; (2) the amount of documented bad debt write-offs due to uncollectible accounts for Franchisee's Non-exclusive Franchise Agreement Page 8 Commercial Solid Waste Handling Services in the City, not to exceed three percent (3%) of Gross Receipts; and (3) revenues collected for Franchisee's Commercial Solid Waste Handling Services provided to the City through a written contract. "Hazardous Waste" or "Hazardous Substance" means any (a) chemical, compound, material, mixture or substance that is now or hereinafter defined or listed in, or otherwise classified pursuant to any Environmental Law as a "hazardous substance," "hazardous material," "hazardous waste," "extremely hazardous waste," "infectious waste," "toxic waste," "toxic pollutant," or any other formulation intended to define, list or classify substances by reason of deleterious properties or effect and (b) petroleum, petroleum by-products, natural gas, natural gas liquids, liquefied natural gas, synthetic gas usable for fuel (or mixtures of natural gas in such synthetic gas), ash, Municipal Solid Waste, steam, drilling fluids, produced waters and other wastes associated with the exploration, development and production of crude oil, natural gas or geothermal resources. "Industrial Waste" means solid waste originating from mechanized manufacturing facilities, factories, refineries, construction and demolition projects, publicly operated treatment works, or solid waste placed in Commercial Solid Waste containers excluding hazardous waste. "Landfill" means a fully permitted disposal site that accepts Municipal Solid Waste that is in compliance with all Federal, State and local laws, regulations and permits conditions at the time Municipal Solid Waste is delivered and unloaded at the disposal site. "Multifamily Dwelling" mean housing projects containing or consisting of five (5) or more units, whether apartment houses, condominiums, townhomes, or mixed use projects, mixed use condominiums and rental housing, which use centralized Commercial Solid Waste Containers (including Bins, Carts and/or Compactors) for storage of Municipal Solid Waste, Recyclable Materials, Green Waste and/or Food Scraps. Multifamily Dwelling does not include single family residences, duplexes, tri-plexes or four-plexes that receive individual Collection services for Municipal Solid Waste, Recyclable Materials, Green Waste and/or Food Scraps stored in wheeled carts. For purposes of the implementation of the Diversion programs, reporting requirements, and the percentage Diversion requirements, "Commercial Tons" shall include only Tons Collected from Multifamily Dwellings in Carts, Bins, Compactors or Roll Off Boxes and shall not include any Tons Collected from Containers Collected from Commercial Premises. Tons Collected from Containers Collected from Commercial Premises shall be reported separately. "Municipal Solid Waste" means all Processable Municipal Solid Waste and all Non- Processable Municipal Solid Waste, putrescible and nonputrescible solid and semisolid wastes, Generated in or upon, related to the occupancy of, remaining in or emanating from residential, commercial, and/or industrial premises, including, but not limited to, garbage, trash, refuse, rubbish, ashes, Industrial Waste, discarded home and industrial appliances, manure, vegetable or animal solid or semisolid wastes, and other solid and semisolid wastes. Municipal Solid Waste excludes Recyclable Materials, Green Waste, Non-exclusive Franchise Agreement Page 9 Food Scraps, Construction and Demolition Debris, liquid wastes, abandoned vehicles and hazardous, biohazardous and biomedical wastes. "Non-Processable Municipal Solid Waste" means putrescible and non-putrescible solid and semi-solid wastes Generated in or upon, related to the occupancy of, remaining or emanating from residential, Commercial, and/or industrial premises, that has been segregated or separated from Recyclable Materials, Food Scraps, Green Waste, wood and/or Construction and Demolition Debris such that the remaining constituents in the Non-Processable Municipal Solid Waste (such as broken glass, diapers, ashes, Industrial Waste, discarded Bulky Goods that cannot be re -used or dismantled for Recycling, manure, vegetable or animal solid or semi-solid wastes that remain after segregation of Food Scraps and Green Waste) cannot be diverted by reasonable economic or technologically available means. Non-Processable Municipal Solid Waste does not include Recyclable Materials, Green Waste, Food Scraps, wood, Construction and Demolition Debris, Bulky Goods or other materials that have been segregated for Diversion; liquid wastes; low level radioactive waste regulated under California Health and Safety Code Sections 20015, et seq.; abandoned vehicles and auto parts; hazardous, biohazardous and biomedical wastes. "Person" means an individual, firm, association, organization, partnership, corporation, business trust, joint venture, limited liability company, the United States, the State of California, the County, municipality, special purpose district or any other business entity whatsoever. "Processable Municipal Solid Waste" means putrescible and non-putrescible solid and semi-solid wastes Generated in or upon, related to the occupancy of, remaining or emanating from residential, Commercial, and/or industrial premises that can be sorted at a Dirty MRF to separate any divertable materials contained therein for Recycling. Processable Municipal Solid Waste may also contain non-divertable constituents including but not limited to, broken glass, diapers, ashes, Industrial Waste, discarded Bulky Goods that cannot be re -used or dismantled for Recycling, manure, vegetable or animal solid or semi-solid wastes that remain after segregation of Food Scraps and Green Waste, which cannot be separated or sorted out of the Processable Municipal Solid Waste by reasonable economic or technologically available means. "Processing Facility/Facilities" means a facility or facilities where the following activities are conducted: sorting, cleaning, treating, Composting and reconstituting Collected materials and returning these materials to the economic mainstream in the form of raw materials for new, reused or reconstituted products which meet the quality standards of the market place (activities are herein collectively defined as "Processing"). Processing Facilities include Materials Recovery Facilities (both Clean and Dirty MRF's as defined herein), Composting Facilities, Anaerobic Digestion Facilities, Wastewater Treatment Plants, Construction and Demolition Debris sorting facilities, Biomass Conversion Facilities, and concrete and asphalt grinding facilities. Processing Facilities do not include waste -to -energy, thermal destruction or any type of Transformation facilities. Non-exclusive Franchise Agreement Page 10 "Recycle/Recycling" means the process of collecting, sorting, cleansing, treating, and reconstituting materials that would otherwise become Non-Processable Municipal Solid Waste, and returning them to the economic mainstream in the form of raw materials for new, reused, or reconstituted products which meet the quality standards used in the marketplace. Recycling does not include Transformation. "Recycling Facility" means a Recycling Materials Recovery Facility (either a Clean or Dirty MRF), a Construction and Demolition Debris sorting facility or a re -use facility that is fully permitted and operating in compliance with federal, state and local laws and regulations and includes Recycling Facilities that receive, process, and market Recyclable Materials that have been source separated by the Generator or segregated from Processable Municipal Solid Waste, such as Single -Material Recyclables and Single Stream Recyclable Materials. The Recycling Facility may be located at a landfill. "Recyclable Materials" means items in the solid waste stream which can be reused or processed into a form suitable for reuse consistent with the requirements of State law (i.e., AB 939). Recyclable materials include, but are not limited to, aluminum and tin cans, glass bottles, plastic bottles, plastic containers, newspaper, paper, printed materials, paper containers, cardboard and textiles. "Recycling Requirements" means the obligations imposed by or upon the City pursuant to State, Federal and local law, ordinance, resolution, policy, plan or program relative to Recycling all, or a portion, of the Municipal Solid Waste generated within the City including, without limitation, State mandates to Divert fifty percent (50%) of the Municipal Solid Waste Generated within the City, achievement of the per capita Diversion requirements in the Act, and the provision of City -approved Recycling services to all Customers. Recycling Requirements includes future changes to the Act that may require the City to Divert higher percentages of Municipal Solid Waste Generated within the City and/or to provide additional and/or enhanced or expanded Diversion Programs. "Residue" means the Non-Processable Municipal Solid Waste destined for Disposal in a Landfill, which remains after processing at a Processing Facility has taken place. Residue does not include Anaerobic Digestate. The percent of Residue is calculated by dividing the weight of the Residue by the weight of the total materials delivered for processing at the facility. State law and regulations govern the allowable amount of Residue that can be Generated by a Processing Facility. Franchisees shall not utilize Processing Facilities that exceed State -required maximum Residue Generation rates for any materials Collected within the City. "Responsible Party" means the individual or entity responsible for the Generator's management of solid waste and/or Recycling at the Generator's commercial premises, business, or non-residential property. "Roll Off Boxes" means large open top rectangular metal Containers used to store and transport Municipal Solid Waste, Recyclable Materials, Green Waste, Construction and Demolition Debris or other materials. Non-exclusive Franchise Agreement Page 11 "Single Material Recyclables" means those Recyclable Materials which satisfy each of the following requirements: (1) have been segregated from Processable Municipal Solid Waste for separate handling and Diversion by or for the Generator thereof; (2) have been further segregated or sorted so that various types of Recyclable Materials, such as glass, metals, paper, cardboard, plastics are not commingled; and (3) after such segregation, contain no more than five percent (5%) by weight (measured by each load being transported, Collected and/or Disposed) of any Residue or Contamination material which cannot be Recycled, Composted or similarly utilized, and which instead must be Disposed in a Landfill. "Single Stream Recyclable Materials" or "Single Stream Recyclables" means those Recyclable Materials collected as separated from Processable Municipal Solid Waste by the Generator or Customer and consisting of a mixture of metals, glass, plastics #1-7, and all paper from Residential Premises, Commercial Premises, Multifamily Dwellings and industrial premises. Single Stream Recyclable Materials are distinguished from Single -Material Recyclables, which consist of only a single type of material such as cardboard, separated from other Recyclable Materials. "Split Bins" means Bins that have a divider down the middle, dividing the Bin into two (2) separate compartments. Such Bins have separate locking lids for each side of the Bin that allows the Bin to be emptied one (1) side at a time. The lid on the side of the Bin that is for storage of Recyclable Materials is designed such that it allows for the placement of Recyclable Materials in the Bin without unlocking or opening the lid, and yet does not allow Recyclable Materials to spill out when the lid is closed and locked for the emptying of the MSW stored on the opposite side of the Bin. "SRRE" means the Source Reduction and Recycling Element of the Integrated Waste Management document for the City prepared and updated pursuant to the California Public Resources Code. "Term" means the finite amount of time that commences on the Effective Date and terminates on the Termination Date. "Termination Date" means November 8, 2024. "State" means the State of California. "Transformation" means incineration, pyrolysis, distillation, or biological conversion (other than Composting) to turn Municipal Solid Waste and/or organic materials into a fuel used to produce energy (example: waste -to -energy). Transformation does not include Composting, gasification, Biomass Conversion, or wet or dry Anaerobic Digestion. "Transformation Facility" the means described herein to turn Municipal Solid Waste and/or organic materials into a fuel used to produce energy. A Franchisee may only utilize Transformation for the quantity of Municipal Solid Waste allowed by CalRecycle to be counted as Diversion pursuant to the Act, as this may be changed in the future by legislation or regulations. The Act currently provides that a jurisdiction can only use Transformation to divert up to ten percent (10%) of the Municipal Solid Waste generated Non-exclusive Franchise Agreement Page 12 in the jurisdiction. Therefore, materials collected by a Franchisee and processed at a Transformation Facility shall be limited to ten percent (10%) of the Non-Processable Municipal Solid Waste Collected by the Franchisee within City. "Ton" means a short ton of two -thousand (2,000) pounds avoirdupois. SECTION 4. FRANCHISE FEES A. During the Term of this Franchise, Franchisee shall pay to City Franchise Fees for the privilege of providing Commercial Solid Waste Handling Services in the City and for the use of public streets, right-of-ways and places for such purposes. The Franchise Fees that Franchisee shall pay to the City shall total sixteen percent (16%) of the gross receipts for all Commercial Solid Waste Handling Services provided by Franchisee in the City as follows: 1. Ten and one-half percent (10.5%) of the Gross Receipts for all Commercial Solid Waste Handling Services provided by the Franchisee in the City ("Commercial Solid Waste Handling Fee"), of which one half percent (.5%) shall be attributable to the maintenance and implementation of the City's SRRE, and shall be separately accounted for, and used only for the costs stated in Public Resources Code Section 41901 or any successor provision. 2. Five and one-half percent (5.5%) of the Gross Receipts for all Commercial Solid Waste Handling Services provided by Franchisee in the City shall be paid into an Environmental Liability Fund, which shall be a separate fund established and maintained by City ("Environmental Liability Fund Fee"). Hereinafter, Environmental Liability Fund Fee and Commercial Solid Waste Handling Fee shall be collectively referred to as "Fees." B. City and Franchisee acknowledge the potential environmental liability that may result from Commercial Solid Waste Handling Services under Federal and State environmental protection laws and the Public Resources Code. City intends to take reasonable actions to obtain protection and indemnification against future environmental liability for Commercial Solid Waste generated within the City and the activities of Franchisee under this Agreement for handling such Commercial Solid Waste. To provide protection and indemnification to City for Franchisee's Commercial Solid Waste Handling Services in the City, Franchisee agrees to collect from its customers an Environmental Liability Fund Fee for payment into the Environmental Liability Fund. The Environmental Liability Fund may be used by the City for any expense associated with this Franchise, including, but not limited to, the purchase of environmental liability insurance and paying all costs, expenses, and penalties that arise from or in any way relate to liability incurred by the City as a result of any act, negligence, or omission by the City, Franchisee, Franchisee Customer, or any of their respective officers, directors, shareholder members, volunteers, partners, employees, agents, subcontractors, suppliers, representatives or affiliates. The Environmental Liability Fund may also be used by the City to pay for any Disposal, Diversion, or Recycling activity required of the City, Franchisee, or any Generator under State, Federal or local law. The Fund shall not be commingled with or included in the City's General Fund. Non-exclusive Franchise Agreement Page 13 The Fees shall be paid concurrently. 2. Compliance with this Section shall not limit Franchisee's indemnification as set forth in Agreement Section 10; however, the indemnification provisions of Agreement Section 10 shall be secondary to the Environmental Liability Fund established by this Section or any insurance purchased by the Environmental Liability Fund. C. The Fees shall be paid on a calendar quarterly basis on forms prescribed by the Finance Director. D. All payments shall be made in lawful money of the United States of America and shall be paid to City in person or by United States' mail, or overnight mail service, at the Cashier's Office located at 100 Civic Center Drive, P.O. Box 1768, Newport Beach, California, 92658, or to such other address as City may from time to time designate in writing to Franchisee. If requested by City, Franchisee shall make payments electronically (at www.newportbeachca.gov) or by wire transfer (at Franchisee's cost). Franchisee assumes all risk of loss and responsibility for late charges and delinquency rates if payments are not timely received by City regardless of the method of transmittal. E. Franchisee hereby acknowledges that the late payment of Fees or other sums due hereunder will cause City to incur costs not contemplated by this Agreement, the exact amount of which is extremely difficult to ascertain. Such costs include, but are not limited to, processing and accounting charges. Accordingly, any payment of any sum to be paid by Franchisee not paid within five (5) calendar days of its due date shall be subject to a ten percent (10%) late charge plus interest on the amount due at the rate of ten percent (10%) per annum from the date due and payable by the terms of this Agreement until the same shall be paid. City and Franchisee agree that this late charge represents a reasonable estimate of such costs and expenses and is fair compensation to City for its loss suffered by such late payment by Franchisee. F. With the exception of January 30, 2018, Fees shall be due and payable on April 30, July 30, October 30 and January 30 of each calendar year of the Term. Any dates falling on a weekend or holiday may be paid the first business day following the weekend or holiday. Fees must be received by City, not merely postmarked, by or before the aforementioned dates. G. In the event Franchisee believes that it has paid Fees in excess of the Fees due to City, Franchisee may submit a request for refund to the Finance Director on a form provided by the Finance Director. If proof of overpayment is satisfactory to the Finance Director, the Finance Director shall refund to Franchisee any overpayment. Franchisee shall not apply any overpayment as a credit against any other amounts payable to City unless specifically authorized by the Finance Director in writing. H. Each Franchise Fee and Environmental Liability Fund Fee payment shall be accompanied by a written statement described in Code Section 12.63.090, or any successor section, on a form provided by the Finance Director. No statement filed under this Section shall be conclusive as to the matters set forth in such statement, nor shall the Non-exclusive Franchise Agreement Page 14 filing of such statement preclude the City from collecting by appropriate action the sum that is actually due and payable. I. Franchisee may separately list the actual Franchise Fee rate and Environmental Liability Fund Fee rate as established by this Section, and any other fees required by this Agreement, on its invoices to its customers. In no case may the Franchise Fee rate or Environmental Liability Fund Fee rate listed by the Franchisee on the invoice exceed the actual Franchise Fee or Environmental Liability Fund Fee rates imposed by the City. SECTION 5. PERFORMANCE BOND/DEPOSIT A. Prior to the placement of any Container for Commercial Solid Waste Handling Services on public or private property, Franchisee shall, to ensure compliance with the duties and obligations imposed by the provisions of the Code, State regulation, regulations adopted by the City Manager and this Agreement, either: (1) provide City with a cash deposit ("Deposit"); or (2) obtain, provide and maintain, at its own expense, a faithful performance bond ("Bond"). The amount of the Deposit and Bond shall be determined in the Municipal Operations Director's sole and absolute discretion. B. If Franchisee decides to provide a Bond, the Bond shall be issued by an insurance organization or surety: (1) currently authorized by the Insurance Commissioner to transact business of insurance in the State of California; (2) listed as an acceptable surety in the latest revision of the Federal Register Circular 570; and (3) assigned a Policyholders' Rating A (or higher) and Financial Size Category Class VII (or larger) in accordance with the latest edition of Best's Key Rating Guide: Property -Casualty. The Bond shall be in the form attached hereto as Exhibit 'A" which is incorporated herein by this reference. SECTION 6. DIVERSION AND DISPOSAL OF MUNICIPAL SOLID WASTE, RECYCLABLE MATERIALS, FOOD SCRAP AND GREEN WASTE A. Franchisee shall comply with all Diversion requirements imposed by law, ordinance, or regulation on City, Franchisee, and/or any Commercial Premises or Multifamily Dwelling. On a monthly basis, Franchisee shall Divert a minimum of fifty-five percent (55%) of all Processable Municipal Solid Waste, Recyclable Materials, Food Scraps and Green Waste Collected in the City by Franchisee. This Diversion requirement is separate from and in addition to any Diversion requirements set forth in Agreement Section 7. In the event new or additional Diversion requirements are imposed by law, ordinance or regulation on City, Franchisee, and/or any Commercial Premises or Multifamily Dwelling, the City shall have the right to require Franchisee to Divert additional Municipal Solid Waste, Recyclable Materials, Food Scraps, and/or Green Waste by providing Franchisee with thirty (30) calendar days written notice of the new Diversion requirements. Upon request of the Municipal Operations Director, Franchisee shall provide all documents and information requested by the Municipal Operations Director to prove that Franchisee has complied with this subsection, any applicable law, ordinance, regulation, or condition related to Recycling and Diversion of Municipal Solid Waste, Recyclable Materials, Food Scraps and/or Green Waste. Non-exclusive Franchise Agreement Page 15 B. Franchisee shall Dispose of all Non-processable Municipal Solid Waste collected in the City, over which Franchisee has control, in accordance with the Franchise Hauler Acknowledgment, attached hereto as Exhibit "B" and incorporated herein by reference. Franchisee hereby accepts and agrees to abide by all terms of the Franchise Hauler Acknowledgment. If, during the Term of this Agreement, the City's Waste Disposal Agreement with Orange County expires, lapses, or is terminated, the Franchise Hauler Acknowledgement shall be null and void and Franchisee shall Dispose of Municipal Solid Waste Collected in the City only by taking it to a fully permitted Orange County certified/licensed landfill or to a fully permitted licensed transfer station, which is lawfully authorized to accept that specific type of solid waste material and has been approved by the City. C. Franchisee shall not Dispose of Municipal Solid Waste, Recyclable Materials, Food Scraps, or Green Waste by depositing it on any land except a permitted facility, whether public or private, or in any river, stream or other waterway, or in any sanitary sewer or storm drainage system. Nothing in this Agreement shall be deemed or construed as authorizing Franchisee to operate a Landfill, Recycling Facility, or other solid waste disposal facility in the City. D. If Franchisee violates the terms in Agreement Section 6(A) and/or Section 6(B) above, Franchisee agrees that the City has the future right to direct that all Municipal Solid Waste, Recyclable Materials, Food Scraps, or Green Waste be delivered to a fully permitted disposal facility designated by City. This exercise of "flow control" by the City shall be made upon at least thirty (30) calendar days prior written notice to Franchisee, and written notice shall include the violation(s) prompting the City's action regarding "flow control." Failure to comply with the Recycling, Diversion, and/or Disposal requirements set forth in this Section shall be a material breach of this Agreement. E. Franchisee shall include as a condition to its contractual agreement with its Customers a provision prohibiting disposal of Hazardous Waste in any Container. F. Franchisee shall implement a load check program that includes, at a minimum, a visual check of all Containers to be emptied to protect against inclusion of Hazardous Waste and shall prepare a written record of all Hazardous Waste discovered during the process. The records shall comply with all State and Federal Hazardous Waste Regulations and shall be maintained for the length of the Term of the Franchise and for a minimum period of three (3) years, or for any longer period required by law, after the Extended Termination Date. The records shall be made available to the City in Franchisee's monthly reports submitted pursuant to Agreement Section 16. G. This Agreement does not purport to grant Franchisee or City ownership over materials that Franchisee's Customers discard for pickup by Franchisee or that Franchisee handles under this Agreement. The right to possession or ownership of those materials shall be determined in accordance with law and any agreement between Franchisee and its Customers, and not as a result of this Agreement. Parties acknowledge that City has no ownership rights in Recyclable Materials or revenue from sale thereof, except as provided in this Agreement. Non-exclusive Franchise Agreement Page 16 H. City makes no representations or warranties with respect to characterization of Municipal Solid Waste, Recyclable Materials, Food Scraps, or Green Waste within City. City expressly disclaims any representations and warranties, either express or implied, as to the merchantability or fitness of Municipal Solid Waste, Recyclable Materials, Food Scraps, or Green Waste for any particular purpose. SECTION 7. DIVERSION OF CONSTRUCTION AND DEMOLITION DEBRIS A. On a monthly basis, Franchisee shall Divert a minimum of sixty-five percent (65%) of all Construction and Demolition Debris collected in the City by Franchisee. This Diversion requirement shall be in addition to and separate from any Diversion requirements set forth in Agreement Section 6. If new or additional Diversion requirements are imposed by law, ordinance or regulation on City, Franchisee, and/or any Commercial Premises or Multifamily Dwelling, the City shall have the right to require Franchisee to Divert additional Construction and Demolition Debris by providing Franchisee with ten (10) calendar days written notice of the new Diversion requirements. Upon request of the Municipal Operations Director, Franchisee shall provide all documents and information requested by the Municipal Operations Director to prove that Franchisee has complied with this subsection, any applicable law, ordinance, regulation, or condition related to Recycling and Diversion of Construction and Demolition Debris. B. Franchisee shall Dispose of, or oversee Disposal of, any Construction and Demolition Debris collected in the City by Franchisee, and not diverted pursuant to Agreement Section 7(A), in accordance with the Franchise Hauler Acknowledgment, attached hereto as Exhibit "B." Franchisee hereby accepts and agrees to abide by all terms of the Franchise Hauler Acknowledgment. If, during the Term of this Agreement, the City's Waste Disposal Agreement with Orange County expires, lapses or is terminated, the Franchise Hauler Acknowledgement shall be null and void and Franchisee shall Dispose of Construction and Demolition Debris collected by Franchisee in the City only by taking such debris to an Orange County certified/licensed landfill, State certified/licensed transfer station, State certified/licensed recycling facility or State certified/licensed materials recovery facility which is lawfully authorized to accept that specific type of solid waste material. Franchisee shall not dispose of Construction and Demolition Debris by depositing it on any land except a permitted facility, whether public or private, or in any river, stream or other waterway, or in any sanitary sewer or storm drainage system. C. If Franchisee violates the terms in Agreement Section 7(A) and/or Section 7(B) above, Franchisee agrees that the City has the future right to direct that Construction and Demolition Debris be delivered to a permitted processing and/or disposal facility designated by City. This exercise of "flow control" by the City shall be made upon at least thirty (30) calendar days prior written notice to Franchisee, and written notice shall include the violation(s) prompting the City's action regarding "flow control." Failure to comply with the Recycling, Diversion, and/or Disposal requirements set forth in this Section shall be a material breach of this Agreement. Non-exclusive Franchise Agreement Page 17 D. Franchisee shall include as a condition to its contractual agreement with its Customers a provision prohibiting disposal of Hazardous Waste in any Container. E. Franchisee shall implement, or require a third party to implement, a load check program that includes, at a minimum, a visual check of all Containers to be emptied to protect against inclusion of Hazardous Waste and shall prepare a written record of all Hazardous Waste discovered during the process. The records shall comply with all local, State and Federal Hazardous Waste regulations, and shall be maintained for the length of the Term of the Franchise and for a minimum period of three (3) years, or for any longer period required by law, after the Extended Termination Date. The records shall be made available to the City upon request. F. This Agreement does not purport to grant Franchisee or City ownership over materials that Franchisee's Customers discard for pickup by Franchisee or that Franchisee handles under this Agreement. The right to possession or ownership of those materials shall be determined in accordance with law and any agreement between Franchisee and its customers, and not as a result of this Agreement. Parties acknowledge that City has no ownership rights in Recyclable Materials or revenue from sale thereof, except as provided in this Agreement. G. City makes no representations or warranties with respect to characterization of Construction and Demolition Debris within City. City expressly disclaims any representations and warranties, either express or implied, as to the merchantability or fitness of Construction and Demolition Debris for any particular purpose. SECTION 8. FRANCHISEE'S APPLICATION; RECORDS; AUDITS A. Application. Franchisee shall submit an application to City in substantially the same form as the template attached hereto as Exhibit "C" and incorporated herein by reference. Franchisee hereby represents and warrants that all information contained in the application submitted to City, and any information submitted by Franchisee to City supplementary thereto, is true and correct and does not contain any untrue statement of a material fact nor omit a material fact that makes a statement contained therein misleading. B. Records. Franchisee shall maintain all records relating to Franchisee's Commercial Solid Waste Handling Services provided hereunder including, but not limited to, Customer lists, billing records, accounts payable records, maps, service requests, cash receipts records, AB 939/341/1826 compliance records, tonnage reports, weight tickets and invoices from all Landfills, Processing Facilities, and Recycling Facilities utilized for Commercial Solid Waste collected within City, and all other documents and materials which reasonably relate to Franchisee's compliance with and performance of the provisions of this Agreement ("Records"), for the full Term of this Agreement and an additional period thereafter of not less than three (3) years, or any longer period required by law. Such Records shall be made available to City at Franchisee's regular place of business, but in no event outside the County of Orange. All Records shall be clearly identifiable, and Franchisee shall maintain record security sufficient to preserve records Non-exclusive Franchise Agreement Page 18 from destruction or damage from foreseeable events. Data maintained in an electronic medium shall be protected, and backed up, with a copy stored at a separate site from the original data. C. CERCLA Defense Records. City's ability to defend against CERCLA and related litigation is a matter of great importance. Franchisee shall maintain and preserve records establishing where Solid Waste Collected in the City was landfilled for the full Term of this Agreement and an additional period thereafter of not less than five (5) years, or any longer period required by law. At any time, including after the expiration of the Term, Franchisee shall provide copies of such records to City within three (3) business days of City's request. D. Inspection; Audit. On an annual or as -needed basis, City shall have the right, upon five (5) business days advance notice, to inspect Franchisee's Records and/or conduct, or to contract with an independent auditing firm to perform, an audit, at City's expense, of Franchisee's Records ("City Audit") to ensure compliance with the provisions of this Agreement. The City Audit shall include, without limitation, review and/or copying of Franchisee's cash receipts, books of account, Commercial Solid Waste tonnage reports, Collection, Disposal and Diversion records, and other related records, as well as those of each of its parent, subsidiary and/or affiliated companies, as appropriate. As part of the City Audit, Franchisee's Customer accounts and related records may be subject to review. While Franchisee will not be required to submit for copying detailed account records, such as Customer names, Franchisee shall make such records and information available for review in connection with the City Audit. The purpose of the City Audit shall be for: (a) verification of the Fees paid by Franchisee under this Agreement, and the accuracy thereof; (b) verification of the amounts of Commercial Solid Waste reported as collected, processed, diverted and disposed by Franchisee pursuant to this Agreement; (c) verification of Recycling/Diversion program implementation efforts and actions taken by Franchisee pursuant to this Agreement; and (d) verification of such other information as is reasonably deemed appropriate by the Municipal Operations Director to evaluate Franchisee's performance hereunder. E. Reimbursement. Franchisee shall reimburse City for all of City's costs in performance of an audit if, as a result of the audit, it is determined: 1. There was any intentional misrepresentation by Franchisee with respect to the amount of Fees due to the City; 2. There is a One Thousand and 00/100 Dollars ($1,000.00) or greater discrepancy in the amount of Fees due to the City. 3. There was any intentional misrepresentation by Franchisee with respect to Franchisee's Commercial Solid Waste Handling Services and/or Franchisee's handling and transportation of Commercial Solid Waste or with regard to any information provided about Diversion; or Non-exclusive Franchise Agreement Page 19 4. There is a discrepancy (whether intentional or not) in the number of Tons of Municipal Solid Waste, Recyclable Materials, Green Waste, Foods Scraps and/or Construction and Demolition Debris Collected, Recycled, processed and/or Disposed that equals or exceeds two percent (2%). Such reimbursement shall be paid by Franchisee within ten (10) calendar days of the date City notifies Franchisee in writing that Franchisee is liable to reimburse the City in conformance with this subsection and the amount of City's audit costs. SECTION 9. INSURANCE REQUIREMENTS Without limiting Franchisee's indemnification of City, and prior to commencement of the Effective Date of this Agreement, Franchisee shall obtain, provide copies to City and maintain at its own expense during the Term of this Agreement policies of insurance of the type and amounts described in the Insurance Requirements attached hereto as Exhibit "D" and incorporated herein by reference. SECTION 10. RESPONSIBILITY FOR DAMAGES AND INJURY/INDEMNIFICATION A. Franchisee Responsibility. Franchisee shall be solely responsible for any damages caused as a result of Franchisee's acts, negligence, or omissions including, but not limited to, injuries to or death of any person or damage to public and/or private property and damages to public improvements arising from or as a result of Franchisee's Commercial Solid Waste Handling Services. B. General Indemnification. Franchisee shall indemnify, hold harmless, and defend City, and each of its past, present and future elected officials, officers, employees, agents, consultants, volunteers, affiliates, assignees, representatives, attorneys, subsidiaries, and affiliated entities and their respective successors, heirs and assigns (collectively, "Indemnified Parties") from and against any costs, expenses, damages, and losses, including actual attorneys' fees ("Losses") of any kind or character to any person or property arising directly or indirectly from or caused by any of the following: (i) any act, negligence, or omission of Franchisee or its respective officers, directors, shareholder members, partners, employees, agents, Franchisee's subcontractors, suppliers, representatives and affiliates ("Franchisee Representatives"); (ii) Franchisee's or Franchisee Representative's activities; (iii) any accident or casualty within or arising out of the performance of Franchisee's Commercial Solid Waste Handling Services under this Franchise; (iv) any violation or alleged violation of any law, ordinance or statute now or hereafter enacted arising out of commercial recyclable materials, food scraps, green waste, construction and demolition debris and/or municipal solid waste handling services performed pursuant to the Franchise; (v) the negligence or willful misconduct of Franchisee or any of Franchisee Representatives in the performance of Franchisee's Commercial Solid Waste Handling Services under the Franchise; and (vi) any breach of the Franchise. Franchisee shall not be required to indemnify, hold harmless and defend the Indemnified Parties from the sole negligence, active negligence or willful misconduct of the Indemnified Parties. Nothing in this indemnity shall be construed as authorizing any Non-exclusive Franchise Agreement Page 20 award of attorneys' fees in any action on or to enforce the terms of this Agreement. This indemnity shall apply to all claims and liability regardless of whether any insurance policies are applicable. The policy limits do not act as a limitation upon the amount of indemnification to be provided by the Franchisee. C. Hazardous Substances Indemnification. Franchisee shall indemnify the Indemnified Parties from and against all claims, actual damages including, but not limited to, special and consequential damages, natural resource damage, punitive damages, injuries, costs, response, remediation, and removal costs, losses, demands, debts, liens, liabilities, causes of action, suits, legal or administrative proceedings, interest, fines, charges, penalties and expenses attorneys' and expert witness fees and costs incurred in connection with defending against any of the foregoing or in enforcing this indemnity of any kind whatsoever paid, incurred or suffered by, or asserted against, the Indemnified Parties or Franchisee arising directly or indirectly from or caused by any of the following: (i) the violation of any environmental laws or the failure to clean up and mitigate the consequences of the spill or release of any Hazardous Substance; and (ii) Franchisee's activities under this Agreement concerning any Hazardous Substance at any place where Franchisee stores or disposes of solid or Hazardous Waste pursuant to this Agreement, or preceding Agreements between City and Franchisee. The foregoing indemnity is intended to operate as an agreement pursuant to the Comprehensive Environmental Response, Compensation and Liability Act (42 U.S.C. Section 9607(e)) and any amendments thereto, and California Health and Safety Code Section 25364, or any successor statute, to insure, protect, hold harmless, and indemnify City from liability. D. AB 939 Indemnification. Franchisee agrees to meet all requirements of City's SRRE as to the portion of the Commercial Solid Waste stream Collected and/or handled by Franchisee. Franchisee agrees to protect, defend, indemnify, and hold the Indemnified Parties harmless against all fines or penalties imposed by the California Integrated Waste Management Board, CalRecycle, or other entity, arising from the failure of Franchisee to meet Act Diversion requirements with respect to the portion of the Commercial Solid Waste stream collected by Franchisee. E. AB 341 Indemnification. Franchisee agrees to meet all requirements of AB 341, specifically Public Resources Code Section 42649, or any successor statute, as to portion of the Municipal Solid Waste and Recyclable Materials stream Collected and/or handled by Franchisee. Franchisee agrees to protect, defend, indemnify, and hold the Indemnified Parties harmless against all fines or penalties imposed by the California Integrated Waste Management Board, CalRecycle, or other entity, arising from the failure of Franchisee to meet AB 341 diversion and recycling requirements with respect to the Municipal Solid Waste and Recyclable Materials Collected and/or handled by Franchisee. F. AB 1826 Indemnification. Franchisee agrees to meet all requirements of AB 1826, specifically Public Resources Code Section 42649.82, or any successor statute, as to the portion of the Food Scraps and Green Waste stream Collected and/or handled by Franchisee. Franchisee agrees to protect, defend, indemnify, and hold the Indemnified Parties harmless against all fines or penalties imposed by the California Integrated Waste Management Board, CalRecycle, or other entity, arising from the failure of Franchisee to Non-exclusive Franchise Agreement Page 21 meet AB 1826 recycling requirements with respect to the Food Scraps and Green Waste collected and/or handled by Franchisee. G. Notice. City agrees to give notice to Franchisee when the City receives a claim for damages or other liability for which Franchisee has provided indemnification under this Section. SECTION 11. COMMERCIAL SOLID WASTE COLLECTION SERVICES A. Authorized Collection Services. Franchisee may only provide those Commercial Solid Waste Handling Services designated in Franchisee's application, or any amended application, and for which Franchisee has demonstrated compliance with Code Section 12.63.050, or any successor section. B. Frequency of Collection. Franchisee shall collect all Commercial Solid Waste from Commercial Premises and Multifamily Dwellings on a schedule to be agreed upon between Franchisee and its Customers, subject to the restrictions set forth in Agreement Section 11(C); provided, however, that such schedule complies with Code Subsection 6.04.140 and does not permit the accumulation of Commercial Solid Waste in quantities that are unreasonable or detrimental to the public health or safety. Requests for Collection from Customer Premises with overflowing Containers, or from Customer Premises where there have been missed pickups, shall be serviced within twenty-four (24) hours of any such request by the Customer or City. Should City receive a Customer complaint related to or arising from Franchisee's failure to collect Commercial Solid Waste as provided herein, Franchisee's Collection schedule shall be submitted to the City for review. C. Hours and Days of Collections. 1. Franchisee shall not collect Commercial Solid Waste in any area of the City after 6:30 p.m. and prior to 5:00 a.m. 2. Franchisee shall not Collect Commercial Solid Waste from any Commercial Premises or Multifamily Dwelling located within five hundred (500) feet of an occupied residential premise, motel or hotel, nor shall any of Franchisee's Collection vehicles be operated in any residential areas of the City except between the hours of 7:00 a.m. and 6:30 p.m., Monday through Friday, nor on any Saturday or Sunday, except between the hours of 8:00 a.m. and 6:00 p.m. 3. Franchisee shall neither operate its Collection vehicles nor Collect Commercial Solid Waste from any Commercial Premises, governmental facility, or Multifamily Dwelling located within five hundred (500) feet of a school, community center, church or other educational facility between the hours of 7:30 a.m. and 9:00 a.m. or 1:00 p.m. and 3:00 p.m., Monday through Friday. The limitations in Agreement Section 11(C)(3) notwithstanding, Franchisee's operation of Collection vehicles on East and West Coast Highway, Jamboree Road, MacArthur Boulevard, San Joaquin Hills Road and Newport Coast Drive shall not be prohibited or limited under this Agreement. Non-exclusive Franchise Agreement Page 22 4. Commercial Solid Waste collection on Sundays shall be limited to Food Scraps and Municipal Solid Waste from Commercial Premises, which require Collection every day due to public health and safety concerns. 5. At Franchisee's request, the City shall provide maps illustrating the geographic limitations placed on Franchisee's Collection services pursuant to Agreement Section 11(C)(3) ("Maps"). City expressly disclaims any liability related to or arising from the accuracy of any Maps provided by City. City may update the Maps as needed, and Franchisee's failure to request or secure the Maps, or any updated Maps, shall not relieve Franchisee of any obligations under this Agreement. D. Containers. Franchisee shall provide the appropriate sized Containers to each Customer for storage of the Commercial Solid Waste Collected by Franchisee. Containers provided by Franchisee must be identified with Franchisee's name and be in the color identified by Franchisee in Franchisee's application. SECTION 12. AB 341 RECYCLING PROGRAM FOR COMMERCIAL PREMISES AND MULTIFAMILY DWELLINGS A. Recycling Program. The Act requires all owners or responsible parties of Commercial Premises generating four (4) or more cubic yards of Commercial Solid Waste per week and all Multifamily Dwellings ("AB 341 Generator") to arrange for Recycling services by July 1, 2012. The Act requires all cities to provide a commercial Recycling program for AB 341 Generators on or before July 1, 2012. Franchisee acknowledges these requirements and agrees that, subject to the restrictions contained in Agreement Section 11(A), for all AB 341 Generators that contract with or pay Franchisee to haul Municipal Solid Waste and/or Recyclable Materials, Franchisee shall implement a recycling program as described and set forth in Exhibit "E," which is incorporated herein by reference ("Recycling Program"). B. Act Compliance. The parties agree that provision of a Recycling Program, as set forth in Exhibit "E," is of paramount importance for the City to comply with the Act. The parties further agree that providing high quality Recycling services, public education and technical assistance to AB 341 Generators to obtain their participation in AB 341 requirements is essential for Franchisee to implement an effective Recycling Program for AB 341 Generators. The parties acknowledge that achievement of this requirement is integral to the City's compliance with the Act and that failure to implement said Recycling Program may cause City to be non-compliant with the Act and be grounds for termination of this Agreement. C. Program Implementation. Within ninety (90) calendar days of either: (1) the Effective Date of this Agreement; or (2) the date an AB 341 Generator initiates service with Franchisee to collect or transport Municipal Solid Waste and/or Recyclable Materials, whichever is earlier, Franchisee shall implement a Recycling Program for said AB 341 Generator. For purposes of this Section, Franchisee shall be found to have "implemented" a Recycling Program only if Franchisee completes all of the following: Non-exclusive Franchise Agreement Page 23 1. Franchisee has contacted the AB 341 Generator and explained the requirements in the Act for the AB 341 Generator to have in place a Recycling Program as of July 1, 2012. 2. Franchisee has provided the appropriate type(s) and size(s) of Containers to the AB 341 Generator's premises. 3. Franchisee is collecting the Recyclable Materials from the AB 341 Generator at the frequency of collection needed to adequately service the AB 341 Generator and, at a minimum, is performing services consistent with Agreement Section 11(B). 4. Franchisee has provided public education and training materials to the AB 341 Generator explaining: (a) the requirements of the Act; (b) the operation of the Recycling Program; and (c) what materials may be placed in the Recycling container(s). 5. Franchisee has responded to the AB 341 Generator's questions and to any complaints and has successfully resolved all questions and complaints. D. Waiver. Franchisee may obtain a waiver from the City with regard to implementation of a Recycling Program for a specific AB 341 Generator in the event said generator is already diverting one hundred percent (100%) of Recyclable Materials generated by the AB 341 Generator using one or more of the following methods: 1. The AB 341 Generator is donating or selling its Recyclable Materials to a third party. 2. The AB 341 Generator is self -hauling its Recyclable Materials to a recycler or to a Processing Facility. 3. The AB 341 Generator has subscribed to an AB 341 -compliant Diversion program through another Franchise hauler in the City. If AB 341 Generator uses any of the aforementioned diversion methods Franchisee shall submit a written statement to City describing the type(s) of Recyclable Materials being diverted by the AB 341 Generator, the number and type of containers being used, the method of Collection and the ultimate destination to which the Recyclable Materials are being delivered. Upon the City's verification that the information submitted by Franchisee meets the requirements for a waiver, the City may grant such waiver. SECTION 13. AB 1826 FOOD SCRAP DIVERSION PROGRAM FOR COMMERCIAL PREMISES A. Food Scrap Diversion Program. The Act requires, on or after January 1, 2017, all owners and responsible parties of Commercial Premises generating four (4) or more cubic yards of Food Scraps and/or Green Waste per week to arrange for Recycling services for those materials. The Act further requires, on or after January 1, 2019, all owners and responsible parties of Commercial Premises generating four (4) or more Non-exclusive Franchise Agreement Page 24 cubic yards of Commercial Solid Waste per week to arrange for Recycling services for Food Scraps and Green Waste (hereinafter, owners and responsible parties of Commercial Premises subject to either the 2017 or 2019 Act requirements are collectively referred to as "Food Scrap Generators"). Finally, the Act requires cities to provide a commercial Recycling program for Food Scrap Generators. Franchisee acknowledges these requirements and agrees that, subject to the restrictions contained in Agreement Section 11(A), for all Food Scrap Generators subject to AB 1826 that contract with or pay Franchisee to haul Food Scraps, Franchisee shall implement a diversion program as described and set forth in Exhibit "F" and incorporated herein by reference ("Food Scrap Diversion Program"). The City will maintain a listing of all Food Scrap Generators subject to AB 1826. City expressly disclaims any liability related to or arising from the accuracy of any lists provided by City. Franchisee's failure to request or secure the list on an annual basis shall not relieve Franchisee of any obligations under this Section. B. Act Compliance. The parties agree that provision of a Food Scrap Diversion program as described in Exhibit "F" is of paramount importance for the City to comply with the Act. The parties further agree that providing high quality Diversion services, public education, and technical assistance to Food Scrap Generators to obtain their participation in AB 1826 Diversion requirements is essential for Franchisee to implement an effective Food Scrap Diversion Program for all Food Scrap Generators. The parties acknowledge that achievement of this requirement is integral to the City's compliance with the Act and that failure to implement said Diversion program may cause City to be non-compliant with the Act. C. Program Implementation. Within ninety (90) calendar days of either: (1) the Effective Date of this Agreement; or (2) the date a Food Scrap Generator subject to AB 1826 initiates service with Franchisee to Collect and/or transport Food Scraps, whichever is earlier, Franchisee shall implement a Food Scrap Diversion Program for said Food Scrap Generator. For purposes of this Section, Franchisee shall be found to have "implemented" a Food Scrap Diversion Program for a Food Scrap Generator only if Franchisee completes all of the following: 1. Franchisee has contacted the Food Scrap Generator and explained the requirements in the Act for the Food Scrap Generator. 2. Franchisee has provided the appropriate type(s) and size(s) of Containers to the Food Scrap Generator's premises as set forth in Exhibit "F." 3. Franchisee is collecting Food Scraps from the Food Scrap Generator at the frequency of collection needed to adequately service the Food Scrap Generator and, at a minimum, is performing services consistent with Section 11.13. 4. Franchisee has provided public education and training materials to any Food Scrap Generators explaining (a) the requirements of the Act, (b) the operation of the Food Scrap Diversion Program, and (c) what materials may be placed in the Food Scrap Container(s). Non-exclusive Franchise Agreement Page 25 5. Franchisee has responded to the Customer's questions and complaints and has successfully resolved all questions and complaints. D. Waiver. Franchisee may obtain a waiver from the City with regard to implementation of a Food Scrap Diversion Program for a specific Food Scrap Generator if said generator is diverting one hundred percent (100%) of Food Scraps being generated using one or more of the following methods: The Food Scrap Generator is donating or selling its Food Scraps to a third party. 2. The Food Scrap Generator is self -hauling its Food Scraps to a recycler or to a Processing Facility. 3. The Food Scrap Generator is processing the Food Scraps onsite. 4. The Food Scrap Generator is donating surplus edible Food Scraps for human consumption. 5. The Food Scrap Generator has subscribed to an AB 1826 -compliant Food Scrap Recycling Program through another Franchise hauler in the City. If the Food Scrap Generator uses any of the aforementioned diversion methods and is diverting one hundred percent (100%) of Food Scraps being generated, Franchisee shall submit a written statement to City describing the type(s) of Food Scraps being Diverted by the Food Scrap Generator, the number and type of containers being used, the method of collection and the ultimate destination to which the recyclable materials are being delivered. Upon the City's verification that the information submitted by Franchisee meets the requirements for a waiver, the City shall grant such waiver. SECTION 14. AB 1826 COMMERCIAL AND MULTIFAMILY GREEN WASTE COLLECTION PROGRAM. A. Act Requirements. The Act requires all Commercial Premises generating four (4) or more cubic yards of Food Scraps and/or Green Waste to arrange for Recycling services for Green Waste on or before January 1, 2017. B. Green Waste Program. Franchisee acknowledges these requirements and agrees, subject to the restrictions contained in Agreement Section 11(A), that Franchisee shall provide the following Green Waste collection program at all Commercial Premises and Multifamily Dwellings that generate Green Waste and do not have Green Waste hauled away by a landscape or gardening service: 1. Containers to Be Provided. Franchisee shall provide appropriate sized Containers to each Commercial Premises and Multifamily Dwelling for storage of all Green Waste generated by the Customer on a weekly basis. Non-exclusive Franchise Agreement Page 26 2. Weekly Service. Not less than once per week, and more frequently as required to collect all of the Green Waste generated by each Commercial Premises and Multifamily Dwelling, Franchisee shall Collect all such materials that have been placed for Collection in Containers for each designated material. 3. Waiver. If a Commercial Premises or Multifamily Dwelling has all Green Waste hauled away by a landscaper or gardening service or if another Franchisee is collecting and diverting one hundred percent (100%) of Green Waste from the Commercial Premises or Multifamily Dwelling, Franchisee is not required to provide Green Waste Collection services to that property. In such event, Franchisee shall obtain a signed self -reporting form stating the name, address, telephone number, business license number, and contact person for the landscaper, gardening service(s), or Franchisee providing such service. The form shall include the Processing Facility where the Green Waste is delivered, which must be a City -approved Processing Facility. SECTION 15. CONSTRUCTION AND DEMOLITION DEBRIS RECYCLING PROGRAM A. Act Requirements. The 2016 California Green Building Standards Code requires sixty-five percent (65%) Diversion of Construction and Demolition Debris. B. Construction and Demolition Debris Recycling Program. Franchisee acknowledges these requirements and agrees that, subject to the restrictions contained in Agreement Section 11(A), for all Customers that contract with or pay Franchisee to haul Construction and Demolition Debris, Franchisee shall implement a diversion program as described and set forth in Exhibit "G" and incorporated herein by reference. SECTION 16. REPORTING REQUIREMENTS. A. Monthly Reports. Franchisee shall submit monthly reports to the Municipal Operations Director identifying, at a minimum, the following information: 1. The address of each facility serviced and the precise services provided to each address including, but not limited to, Commercial Solid Waste Handling Services broken down by type (i.e., Recyclable Materials, Food Scraps, Green Waste, Construction and Demolition Debris, and/or Municipal Solid Waste) presented in an Excel format acceptable to the City; 2. The frequency of Commercial Solid Waste Handling Services provided to each address; 3. The number of containers by type and size at each address and the frequency of collection; 4. The tonnage, by material category, collected per month by volume in cubic yards (Tons) and measured by the size of applicable Containers of and removed by them within the City during the previous month; Non-exclusive Franchise Agreement Page 27 5. The location of the Landfill and/or Recycling Facility to which the Municipal Solid Waste, Recyclable Materials, Green Waste and/or Food Scraps were taken during the previous month and the diversion rate achieved if the facility accepts mixed waste mate ria ls/Processable Municipal Solid Waste; 6. AB 341 and AB 1826 compliance information by Generators, including the total number of AB 341 and AB 1826 accounts serviced by the Franchisee, the total number of accounts that have a Recycling Program, Food Scrap Diversion Program, and/or Green Waste Recycling provided by the Franchisee, the number of Customers with Franchisee -documented internal Diversion programs that comply with AB 1826 and AB 341, the number of Customers that comply with AB 341 or AB 1826 via a Clean or Dirty MRF, the number of Customers that do not have an AB 341 or AB 1826 - compliant Diversion program, and a description of outreach efforts for non-compliant Generators; 7. A narrative summary of all outreach efforts to implement AB 341 and AB 1826 Diversion programs at non-compliant Generators' premises including dates of interactions, a description of the nature of the interactions, Generator objections, a log of all new Recycling of Food Scrap Container deliveries during the reporting period, a log of contamination incidents; 8. Such other tonnage or other information as requested by the Municipal Operations Director including weight tickets and Recycling records. B. Form of Report. Monthly reports shall be prepared in an Excel template, or other format approved in writing by the Municipal Operations Director. C. Report Due Date. Each monthly report shall be submitted on or before the 25th day of the month following the end of the month. D. Submission. Franchisee shall submit each monthly report to: Municipal Operations Director City of Newport Beach P.O. Box 1768 100 Civic Center Drive Newport Beach, CA 92658 E. No Waiver. Franchisee shall file the monthly report required under Agreement Section 16(A) regardless of whether Franchisee has provided Commercial Solid Waste Handling Services in the City during the reported month. F. Compliance. Franchisee shall comply with all Recycling and Diversion requirements imposed by law, ordinance, or regulation on the City. At the end of each calendar month, reports will be evaluated for compliance with City Recycling and Diversion requirements. Failure to comply with City Recycling and Diversion requirements shall be a material breach of this Agreement. Non-exclusive Franchise Agreement Page 28 SECTION 17. HAULER REPRESENTATIVE On or before January 1, 2018, Franchisee shall designate, at a minimum, one (1) individual employed by Franchisee to assist City in implementing the Agreement's Recycling and Diversion programs, as applicable, and to manage all reporting requirements set forth herein ("Hauler Representative"). Franchisee shall provide City with the Hauler Representative's contact information, and the Hauler Representative shall be the primary contact for the City. The Hauler Representative shall respond to any City questions or concerns relating to or arising from Franchisee's performance under this Agreement within five (5) business days of City submitting such question or concern. SECTION 18. VEHICLES AND EQUIPMENT A. Containers. Any and all Containers provided to Customers for storage, Collection or transportation of Municipal Solid Waste, Recyclable Materials, Food Scraps, and/or Green Waste shall meet the requirements designated by the Municipal Operations Director as well as State of California minimum standards for solid waste handling established under Public Resources Code Section 43020 and applicable health requirements, or any successor statutes or requirements. B. Identification. All Containers and vehicles used by Franchisee in the performance of Commercial Solid Waste Handling Services shall be marked with Franchisee's name in letters which are not less than four inches (4") high and which are easily read by the general public. C. Equipment. 1. Maintenance; Records. Franchisee shall, at all times, provide such number of vehicles and such equipment as will be adequate for the Commercial Solid Waste Handling Services, which it is authorized to provide under this Agreement. All vehicles utilized by Franchisee in the performance of this Agreement shall be registered with the California Department of Motor Vehicles. All vehicles must pass annual "BIT" and brake inspections and Franchisee shall provide evidence of such to the Municipal Operations Department upon request. Upon request by the City, Franchisee shall provide records from the most recent California Highway Patrol biennial inspection of the terminal(s) responsible for the maintenance and repair of equipment used in the City. All vehicles shall be properly maintained, kept clean and in good repair, and shall be uniformly painted. All Commercial Solid Waste Containers used in the performance of this Agreement shall be kept clean and in good repair and shall be uniformly painted in the color identified by Franchisee in Franchisee's application. All equipment required by City in the performance of this Agreement, including vehicle mirrors and the collision avoidance system, may be subject to inspection by the City upon twenty-four (24) hours' notice by the Municipal Operations Director. All drivers employed by Franchisee and operating equipment in the City shall be properly licensed for the class of vehicle they drive, enrolled in the Department of Motor Vehicles Employee Pull Notice (EPN) program, and abide by all State and federal regulations for driver hours and alcohol and controlled substances testing. Non-exclusive Franchise Agreement Page 29 2. Solid Waste Retention. Each vehicle shall be so constructed and used in a manner so that no rubbish, garbage, debris, oil, grease or other material will blow, fall, or leak out of the vehicle. All Commercial Solid Waste shall be transported by means of vehicles that are covered in such a manner as to securely contain all solid waste and to prevent such solid waste from projecting, blowing, falling or leaking out of the vehicles. Any Commercial Solid Waste dropped or spilled in Collection, transfer or transportation shall be immediately cleaned up by Franchisee. A broom and a shovel shall be carried at all times on each vehicle for this purpose. In addition, each Collection vehicle shall be equipped with trash bags, masking tape and notice of non -Collection tags for the purpose of separating Hazardous Waste for return to the Generator. A communications device such as a two-way radio or a cellular telephone shall also be maintained on each vehicle at all times. 3. Vehicle Mirrors. On or before January 1, 2018, all equipment used by Franchisee for Commercial Solid Waste Handling Services in the City with a gross vehicle weight rating of twenty-six thousand (26,000) pounds or more shall be equipped with a convex mirror on the front of each vehicle, adjusted so as to enable the operator to see all points on an imaginary horizontal line which: (a) Is three feet (3') above the road; (b) Is one foot (1') directly forward from the midpoint of the front of the vehicles; and (c) Extends the full width of the front of the vehicle. 4. Collision Avoidance System. On or before January 1, 2019, all vehicles operated by Franchisee in the City shall have a collision avoidance system installed that is capable of detecting adjacent pedestrians and bicyclists. City reserves the right to inspect Franchisee's vehicles, at any time, to confirm that the installation and capability of Franchisee's collision avoidance system is consistent with Agreement Section 18(C)(4). 5. Storage. Franchisee shall not store any vehicle or equipment on any public street, public right-of-way or other public property in the City without obtaining a Temporary Street Closure Permit from the Public Works Department and prior written consent of the Municipal Operations Director. 6. Compliance. Should the Municipal Operations Director at any time give written notification to Franchisee that any vehicle does not comply with the standards hereunder, the vehicle shall be promptly removed from service by Franchisee and not used again until inspected and authorized in writing by the Municipal Operations Director. 7. Public Works Standards. Placement of Containers and equipment shall be in accordance with the standards set by the Public Works Director. Non-exclusive Franchise Agreement Page 30 M *4& 0Is] . aU41W_1=3_1►UZ0] kiI41X0147 i!k x_11 Z 14 *_1 A. If Franchisee abandons any Commercial Solid Waste Container within the City, the City may remove the Container and/or dispose of the contents of the Container and recover its cost from Franchisee. B. For the purposes of this Section, "abandons" includes: 1. Franchisee's failure to remove the Container within the time period specified by the City Council upon termination of the Franchise pursuant to Section 12.63.140 of the Code, or any successor statute; 2. Franchisee's failure to remove the Container within ten (10) calendar days after the expiration or termination of the Franchise granted to Franchisee, except in the case where Franchisee has been granted an extension of the Term of said Franchise or Franchisee has been granted a subsequent franchise authorizing Franchisee to Collect and transport the type or types of Commercial Solid Waste for which the Container was used pursuant to this Agreement; or 3. Franchisee's failure to collect the Container and dispose of the contents of the Container within five (5) calendar days after the Municipal Operations Director issues written notice to Franchisee to dispose of the contents. 4. Franchisee's failure to replace a Container that fails to comply with the City's aesthetic standards, as set forth in this Agreement, within five (5) calendar days of receiving written notice from the Municipal Operations Director of non-compliance. SECTION 20. COMPLIANCE WITH LAW A. Franchisee shall perform all Commercial Solid Waste Handling Services in accordance with applicable federal, state, and local law, including, but not limited to, Code Chapter 12.63, Article XIII of the City Charter, Ordinance No. 2017-16 and the terms and conditions of this Agreement. B. During the Term of this Agreement, Franchisee and City agree that the City's ordinances may be amended as provided herein, as provided in Chapter 12.63 or as necessary to permit the City to comply with changes to federal, state, and local legislative regulatory requirements, which may affect or alter City's obligations or requirements for Commercial Solid Waste management. Franchisee agrees to comply with any such amendment of the City's ordinances without the need to amend this Agreement. SECTION 21. PERMITS AND LICENSES A. Applicable Permits and Licenses. Franchisee shall obtain and maintain, at Franchisee's sole cost and expense, all permits and licenses applicable to Franchisee's operations under the Franchise, which are required of Franchisee by any governmental agency. Payment of the Franchise Fee and Environmental Liability Fund Fee shall be in Non-exclusive Franchise Agreement Page 31 addition to any permit or license fees or business tax prescribed by the City for the same period. B. Orange County Landfill Account. Franchisee shall obtain and maintain for the Term of this Agreement an account with the Orange County landfills. If Franchisee disposes of any Commercial Solid Waste collected from the City at an Orange County landfill, the Franchisee shall utilize its landfill account only (no "cash" disposal). SECTION 22. PUBLIC EDUCATION ACTIVITIES A. Informational Materials. Each year during the Term of this Agreement, Franchisee shall transmit informational materials to all Customers and to such prospective Customers as it may select, informing them of the Commercial Solid Waste Handling Services that are required of them under State law as well as Hazardous Waste Disposal requirements. B. Customer Compliance Notification. Each year during the Term of this Agreement, Franchisee shall notify all AB 1826 and AB 341 accounts for which it provides Commercial Solid Waste Collection Services of the Customer's compliance obligations. C. Submission to City of Informational Materials. Franchisee's informational materials shall be provided to the Municipal Operations Director upon request if, in City's sole and absolute discretion, such informational materials are necessary for City to comply with State reporting requirements. SECTION 23. SUSPENSION; TERMINATION; APPEAL A. City's Right to Suspend or Terminate. The Franchise granted to Franchisee may be suspended or terminated by the City Council pursuant to Code Section 12.63.140, or any successor statute. B. Notice of Default. Should the Municipal Operations Director determine Franchisee has defaulted in the performance of any obligation hereunder, the Municipal Operations Director may provide written notice to Franchisee of such default ("Default Notice"). The Municipal Operations Director may, in the Default Notice, set a reasonable time within which Franchisee may cure such default. Unless a longer or shorter time is otherwise specified by the Municipal Operations Director, a reasonable time for correction shall be thirty (30) calendar days from the date the Default Notice is issued. C. Municipal Operations Director Review. Within ten (10) business days of the Municipal Operations Director's issuance of the Default Notice, at the request of Franchisee, the Municipal Operations Director will hold a meeting with Franchisee to discuss the failure(s) described in the Default Notice. Such request shall immediately suspend any deadlines set forth in Agreement Section 23(B) or the Default Notice. During Franchisee's meeting with the Municipal Operations Director, Franchisee shall have an opportunity to present evidence explaining or justifying the failures described in the Default Notice. After the meeting, the Municipal Operations Director will make a determination, in his or her sole discretion, as to whether to uphold the Default Notice, or Non-exclusive Franchise Agreement Page 32 any portion thereof, and shall issue such determination within five (5) business days of the meeting. Franchisee will have thirty (30) calendar days from the date the Municipal Operations Director's determination is issued to cure the upheld Default Notice or portion thereof. D. Appeal to City Manager. Within five (5) business days of the Municipal Operations Director issuing his/her determination, Franchisee may appeal the Municipal Operation Director's determination, in writing, to the City Manager. City's receipt of such appeal request shall immediately suspend any deadlines set forth in Agreement Section 23(C). The City Manager will hold a meeting with Franchisee no more than ten (10) business days after receiving Franchisee's written appeal request. After the meeting, the City Manager will make a determination, in his or her sole discretion, as to whether to uphold the Default Notice, or any portion thereof, and shall issue such determination within five (5) business days of the meeting. The decision of the City Manager shall be final. Franchisee will have thirty (30) calendar days from the date the City Manager's determination is issued to cure the upheld Default Notice or any portion thereof. F. Failure to Timely Cure. If Franchisee fails to timely cure a Default Notice, or any portion thereof, then the applicable liquidated damages set forth in Agreement Section 24 shall be final and conclusive and the amount(s) shall be immediately due and payable. Franchisee's failure to timely cure three (3) Default Notices shall be a material breach of this Agreement. G. Audit Findings. Notwithstanding anything to the contrary, if Franchisee disagrees with City's audit findings, then Franchisee may, within ten (10) business days after service of the audit finding, appeal to the City Manager specifying the basis for its disagreement with City's audit findings. If Franchisee fails to timely request such an appeal, then the discrepancy determinations shall be final and conclusive and the violation shall be deemed established. H. Termination Without Right to Cure. City shall have the right of suspension or termination as a result of Franchisee's failure to timely cure any deficiency or default as set forth above, which right is in addition to City's right to terminate this Agreement without affording Franchisee an opportunity to cure in circumstances where Franchisee is determined to have materially breached this Agreement. Notwithstanding anything to the contrary, in the event of any material breach hereof, City shall have the right to terminate this Agreement without affording Franchisee the right to cure including, without limitation, any action, inaction or circumstance defined herein as a material breach and/or under any of the following circumstances which are hereby defined as material breaches: 1. If Franchisee conducts, or attempts to conduct, fraud upon City. 2. If Franchisee becomes insolvent, unable, or unwilling to pay its debts. 3. If Franchisee fails to materially comply with any insurance or indemnification requirement set forth in this Agreement; provided, however, that Franchisee shall have a reasonable opportunity to cure any default relating to the Non-exclusive Franchise Agreement Page 33 Franchisee's failure to provide the City with proof of insurance, so long as such insurance is in effect at all times. 4. If City is required to pay any fine or penalty, which Franchisee is required by the terms hereof to pay, yet which Franchisee fails, refuses, neglects or is unable to timely pay. 5. If Franchisee fails to submit Records thirty (30) calendar days or more following a written request by City, or its designated representative for Records disclosure. 6. Franchisee fails to meet the Diversion requirements of this Agreement or pursuant to applicable laws. I. Removal of Commercial Solid Waste Containers; Customer Notification. In the event this Franchise is terminated or expires without a grant of a subsequent franchise allowing Franchisee to continue performing Commercial Solid Waste Handling Services in City, then within ten (10) calendar days of such termination or expiration Franchisee shall: 1. Remove all of Franchisee's Commercial Solid Waste containers from all Franchisee's collection service locations and properly dispose of all Commercial Solid Waste in such containers within the time period specified by the City Council; and 2. Submit to the Municipal Operations Director a list of the names and addresses of Generators in the City for which Franchisee provided Commercial Solid Waste Handling Services as of the date of termination or expiration (i.e., Franchisee's City of Newport Beach customer list); or 3. Send written notification to each solid waste generator on Franchisee's customer list that Franchisee is no longer authorized to provide Commercial Solid Waste Handling Services in the City. Such notification shall be in the form provided by the Municipal Operations Director and shall be personally delivered or shall be sent by first class mail, postage prepaid, to the customers' billing addresses. Franchisee shall submit to the Municipal Operations Director an affidavit, signed under penalty of perjury, stating that the required notification has been provided by Franchisee to all of Franchisee's City Customers. Continuing Obligations. Upon Agreement termination, suspension or expiration: 1. Franchisee shall have no right or authority to engage in Commercial Solid Waste Handling Services in the City, subject to the provisions of Sections 49520- 49524 of the Public Resources Code, or any successor statutes. 2. Franchisee shall remain liable to City for any and all Franchise Fees and Environmental Liability Fund Fees that would otherwise be payable by Franchisee, for any and all liquidated damages, late charges and/or interest assessed. Non-exclusive Franchise Agreement Page 34 3. Franchisee shall have a continuing obligation to submit to City all reports and records required by this Agreement. Franchisee's obligation shall survive this Agreement shall continue for such period of time as required by this Agreement or applicable law. 4. Franchisee shall allow the Commercial Solid Waste Generators served by Franchisee to arrange for Commercial Solid Waste Handling Services with a Commercial Solid Waste enterprise collector authorized to perform such services, without penalty or liability for breach of contract on the part of the generators, for such period of time as Franchisee is not authorized to perform such services because of termination or suspension. 5. Franchisee's shall have a continuing obligation to provide the indemnifications required in this Agreement. Such indemnifications include, but are not limited to, the Hazardous Materials indemnification and AB 939/AB 341/AB 1829 indemnification as set forth in Agreement Section 10. SECTION 24. CITY'S REMEDIES A. The City incurred considerable time and expense procuring this Agreement to secure an improved level and quality of Recycling and compliance with State Diversion mandates. B. Liquidated Damages. The Parties agree the following liquidated damages schedule represents a reasonable estimate of the amount of damages, considering all the circumstances existing on the date of this Agreement, including the relationship of the sums to the range of harm to City that reasonably could be expected in anticipation that proof of actual damages would be costly or inconvenient: Applicable Failure(s)* Damages Section(s) 6(A), 7(A) Comply with City -mandated Diversion Two hundred fifty requirements within thirty (30) calendar dollars ($250) per days of notification by City business day until compliant 6(B), 7(B) Deliver Commercial Solid Waste as designated 8(B) Provide requested records Two hundred fifty dollars ($250) per truck delivery Two hundred fifty dollars ($250) per business day until completed Non-exclusive Franchise Agreement Page 35 11(A) Provide only those Commercial Solid Two hundred fifty Waste Handling Services for which dollars ($250) Franchisee has applied day until corrected 11(C) Collect at unauthorized locations and/or Two hundred fifty during unauthorized hours five (5) or dollars ($250) more times in a twelve (12) month period ($100) — if not 11(D) Label Containers; paint vehicles and/or Containers corporate color 12(A), 12(C) 13(A), 13(C) 13(A), 13(C) 13(A), 13(C) Establish or Implement Recycling Program Establish or Implement Food Scrap Diversion Program Establish or Implement Green Waste Diversion Program Fifty dollars ($50) per business day until corrected One thousand dollars ($1,000) per occurrence One thousand dollars ($1,000) Five hundred dollars ($500) Establish or Implement Construction and One thousand Demolition Diversion Program dollars ($1,000) 16(A), 16(B), 16(E) Submit complete and accurate monthly One hundred dollars reports ($100) per business day until corrected or completed 16(C) Submit timely monthly reports One hundred dollars ($100) — if not submitted when due Five hundred dollars ($500) — if not submitted w/in thirty (30) calendar days after due date 17 Designate qualified Hauler Fifty dollars ($50) Representative; Failure of Hauler per business day Representative to timely respond to City until completed 18(C) Secure or maintain vehicles or vehicle One hundred dollars equipment ($100) per business day until completed Non-exclusive Franchise Agreement Page 36 19 Remove, replace, or collect abandoned Fifty dollars ($50) Container(s) per business day until completed *Unless otherwise designated, reference to "failure(s)" refers to each occurrence of specified breach (such as for each Customer or each Customer record entry or complaint) and not for aggregate occurrences of those breaches (such as for all Customers on a given route or day). C. City's Remedies Cumulative. The rights and remedies of City set forth herein shall be in addition to any and all other rights and privileges City may have, and shall not be deemed to limit any such other rights or privileges of City under this Agreement or by virtue of any law. By placing its initials below, each party specifically confirms: (1) the accuracy of the statements made in Agreement Section 24; and (2) it has had ample opportunity to consult with legal counsel and obtain an explanation of liquidated damage provisions prior to signing this Agreement. FRANCHISE CITY / Initial Here. Initial Here: SECTION 25. CONFIDENTIAL INFORMATION. A. Confidential Information. In the performance of this Agreement or in contemplation thereof, the parties and their respective employees and agents may have access to private or confidential information owned or controlled by the other party and such information may contain proprietary details and disclosures. All information and data identified in writing as proprietary or confidential by either party ("Confidential Information") and so acquired by the other party or its employees or agents under this Agreement or in contemplation thereof shall be and shall remain the disclosing party's exclusive property. The recipient of Confidential Information shall use all reasonable efforts (which in any event shall not be less than the efforts the recipient takes to ensure the confidentiality of its own proprietary and other confidential information) to keep, and have its employees and agents keep, any and all Confidential Information confidential, and shall not copy, or publish or disclose it to others, nor authorize its employees, agents or anyone else to copy or disclose it to others, without the disclosing party's written approval; nor shall the recipient make use of the Confidential Information except for the purposes of executing its obligations hereunder, and (except as provided for herein) shall return the Confidential Information and data to the first party at its request. The City's duty to maintain confidentiality as described hereunder shall be subject to the laws of the State of California. B. Excluded Information. The foregoing conditions will not apply to information or data which is, or which becomes generally known to the public by publication or by any Non-exclusive Franchise Agreement Page 37 means other than a breach of duty on the part of the recipient hereunder, is information previously known to the recipient, is information independently developed by or for the recipient or is information generally released by the owning party without restriction. C. Public Records Request. Should City receive a public records request, or otherwise be directed by any governmental authority to disclose any or all Confidential Information in City's possession, custody or control, City shall promptly provide notice to Franchisee of such request to allow Franchisee an opportunity to prevent disclosure. D. Right to Injunctive Relief. Because of the unique nature of the Confidential Information, the parties agree that each party may suffer irreparable harm in the event that the other party fails to comply with any of its obligations under this Section, and that monetary damages may be inadequate to compensate either party for such breach. Accordingly, the parties agree that either party will, in addition to any other remedies available to it at law or in equity, be entitled to seek injunctive relief to enforce the terms of this Section. SECTION 26. ASSIGNMENT Franchisee shall not assign, sell, subcontract, transfer or otherwise delegate its authority to perform any portion of the Commercial Solid Waste Handling Services or obligations under the Franchise without prior express consent of the City Council. This prohibition includes any transfer of ownership or control of Franchisee, or the conveyance of a majority of Franchisee's stock to a new controlling interest. City's consent shall not be unreasonably withheld. SECTION 27. MISCELLANEOUS PROVISIONS A. Notices. Except as otherwise provided in this Agreement, all notices required by this Agreement shall be given by personal service or by deposit in the United States mail, postage pre -paid and return receipt requested, addressed to the parties as follows: To: Municipal Operations Director City of Newport Beach P.O. Box 1768 100 Civic Center Drive Newport Beach, CA 92660 To Franchisee: Greenleaf Engineering Attn: Tim Greenleaf 16652 Burke Lane Huntington Beach, CA 92648 Notice shall be deemed effective on the date personally served or, if mailed, three (3) calendar days after the date deposited in the mail. B. Integrated Agreement. This Agreement represents the full and complete understanding of every kind or nature whatsoever between the City and Franchisee, and Non-exclusive Franchise Agreement Page 38 all preliminary negotiations and other agreements of any kind or nature are merged herein. No verbal agreement or implied covenant shall be held to vary the provisions herein. C. Amendments. This Agreement supersedes all prior agreements and understandings between the parties and may not be modified or terminated orally, and no modification, termination or attempted waiver of any of the provisions hereof shall be binding unless in writing and signed by both parties. D. Recitals. The Parties acknowledge that the Recitals are true and correct and are hereby incorporated by reference into this Agreement. E. Applicable Law. The laws of the City, State of California, and applicable Federal law, shall govern this Agreement and all matters relating to it and any action brought relating to this Agreement shall be adjudicated in a court of competent jurisdiction in the County of Orange. F. Authority. The parties signing below represent and warrant that they have the requisite authority to bind the entities on whose behalf they are signing. G. Severability. If any term or portion of this Agreement is held to be invalid, illegal, or otherwise unenforceable by a court of competent jurisdiction, the remaining provisions of this Agreement shall continue in full force and effect. H. Waiver. A waiver by either party of any breach, of any term, covenant or condition contained herein shall not be deemed to be a waiver of any subsequent breach of the same or any other term, covenant or condition contained herein, whether of the same or a difference character. I. Interpretation. The terms of this Agreement shall be construed in accordance with the meaning of the language used and shall not be construed for or against either party by reason of the authorship of this Agreement or any other rule of construction that might otherwise apply. J. Equal Opportunity Employment. Franchisee represents that it is an equal opportunity employer and it shall not discriminate against any authorized subcontractor, employee or applicant for employment because of race, religion, color, national origin, handicap, ancestry, sex or age or any other impermissible basis under law. K. Compliance with Laws. Franchisee shall at its own cost and expense comply with all statutes, ordinances, regulations and requirements of all governmental entities, including federal, state, county or municipal, whether now in force or hereinafter enacted. Franchisee agrees to obtain a business license from the City in accordance with the Code. The parties hereto agree that the Franchise and this Agreement are the only authorizations to conduct Commercial Solid Waste Handling Services in the City and that the issuance of a business license does not grant the Franchisee a right to conduct Commercial Solid Waste Handling Services or other business in the City. Non-exclusive Franchise Agreement Page 39 L. Conflicts of Interest. Franchisee and its employees may be subject to the provisions of the California Political Reform Act of 1974 (the "California Political Reform Act"), which (i) requires such persons to disclose any financial interest that may foreseeably be materially affected by the work performed under this Agreement, and (ii) prohibits such persons from making, or participating in making, decisions that will foreseeably financially affect such interest. If subject to the California Political Reform Act, Franchisee shall conform to all requirements of the California Political Reform Act. Failure to do so constitutes a material breach and is grounds for immediate termination of this Agreement by City. Franchisee shall indemnify and hold harmless City for any and all claims for damages resulting from Franchisee's violation of this subsection. M. Conflicts or Inconsistencies. In the event there are any conflicts or inconsistencies between this Agreement and the Scope of Services or any other attachments attached hereto, the terms of this Agreement shall govern. N. No Attorneys' Fees. In the event of any dispute or legal action arising under this Agreement, the prevailing party shall not be entitled to attorneys' fees. O. Counterparts. This Agreement may be executed in two (2) or more counterparts, each of which shall be deemed an original and all of which together shall constitute one (1) and the same instrument. [SIGNATURES ON FOLLOWING PAGE] Non-exclusive Franchise Agreement Page 40 IN WITNESS WHEREOF, the parties have caused this Agreement to be executed on the day and year written below. APPROVED AS TO FORM: CITY ATTORNEY'S OFFICE Date: /v Lr A /n Ash C. Ha City Attorney CITY OF NEV a California m Date: By: v V.tA lollarjLr Kin Mu ayor ORT BEACH, icipaj,eSrporat ATTEST:, ENGINEERING, AF Date: R NG, a California corporation at oI ((/ Date: if I - Q By: By: Leilani I. Brown Tim Greenleaf City Clerk President Date: i - q - 1:7 �•' VA V.0 D OF SIGNATURES] Attachments: Exhibit A — Faithful Performance Bond Exhibit B — Franchise Hauler Acknowledgement Exhibit C — Franchisee Application Template Exhibit D — Insurance Requirements Exhibit E — Recycling Program Exhibit F — Food Scrap Diversion Program Exhibit G — Construction and Demolition Debris Recycling Program See proper Califomia notarial wording next page attached Non-exclusive Franchise Agreement Page 41 Premium is for contract term and is subject to adjustment based on final contract price Executed in Duplicate EXHIBIT A CITY OF NEWPORT BEACH BOND NO. 12148728 FAITHFUL PERFORMANCE BOND The premium charges on this Bond is $ 200.00 WHEREAS, the City of Newport Beach, State of California, has awarded to Greenleaf Engineering hereinafter designated as the "Principal," a non-exclusive franchise for commercial solid waste handling services ("Franchise Agreement") in the City of Newport Beach, in strict conformity with the Franchise Agreement on file with the office of the City Clerk of the City of Newport Beach, which is incorporated herein by this reference. WHEREAS, Principal has executed or is about to execute the Franchise Agreement and the terms thereof require the furnishing of a Bond for the faithful performance of the Franchise Agreement. NOW, THEREFORE, we, the Principal, and The Guarantee Company of North America USA , duly authorized to transact business under the laws of the State of California as Surety (hereinafter "Surety"), are held and firmly bound unto the City of Newport Beach, in the sum of Seven Thousand, Five Hundred and 00/100 ($ 7,500 .00 ) lawful money of the United States of America, to be paid to the City of Newport Beach, its successors, and assigns; for which payment well and truly to be made, we bind ourselves, our heirs, executors and administrators, successors, or assigns, jointly and severally, firmly by these present. THE CONDITION OF THIS OBLIGATION IS SUCH, that if the Principal, or the Principal's heirs, executors, administrators, successors, or assigns, fail to abide by, and well and truly keep and perform any or all the services, covenants, conditions, and agreements in the Franchise Agreement documents and any alteration thereof made as therein provided on its part, to be kept and performed at the time and in the manner therein specified, and in all respects according to its true intent and meaning, or fails to indemnify, defend, and save harmless the City of Newport Beach, its officers, employees and agents, as therein stipulated, then, Surety will faithfully perform the same, in an amount not exceeding the sum specified in this Bond; otherwise this obligation shall become null and void. As a part of the obligation secured hereby, and in addition to the face amount specified in this Performance Bond, there shall be included costs and reasonable expenses and fees, including reasonable attorneys fees, incurred by City, only in the event City is required to bring an action in law or equity against Surety to enforce the obligations of this Bond. Surety, for value received, stipulates and agrees that no change, extension of time, alterations or additions to the terms of the Franchise Agreement or to the services to be performed thereunder shall in any way affect its obligations on this Bond, and it does Faithful Performance Bond w Page A-1 hereby waive notice of any such change, extension of time, alterations or additions of the Agreement or to the services or to the specifications. This Faithful Performance Bond shall be extended and maintained by the Principal in full force and effect for five (5) years following the date Principal is granted the Franchise Agreement by City. In the event that the Principal executed this bond as an individual, it is agreed that the death of any such Principal shall not exonerate the Surety from its obligations under this Bond. IN WITNESS WHEREOF, this instrument has been duly executed by the Principal and Surety above named, on the 14th day of November , 2017 . Greenleaf Engineering Name of Contractor (Principal) The Guarantee Company of North America USA Name of Surety 6303 Owensmouth Avenue, 10th Floor Woodland Hills, CA 91367 Address of Surety (818) 936-2844 Telephone APPROVED AS TO FORM: CITY ATTORNEY'S OFFICE Date: Aaron C. Harp City Attorney Authorized Signature/Title Authorized— gent Signature William Syrkin, Attorney -In -Fact Print Name and Title NOTARY ACKNOWLEDGMENTS OF CONTRACTOR AND SURETY MUST BE ATTACHED Faithful Performance Bond Page A-2 ACKNOWLEDGMENT A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document. State of California County of _ Los Angeles On November 14 -12017 before me, Corinne L. Hernandez Notary Public, personally appeared William S rkin, who proved to me on the basis of satisfactory evidence to be the person whose name(b�is/afe- subscribed to the within instrument and acknowledged to me that he/at a/therexecuted the same in his/hrer/thel1-authorized capacity( w4 and that by his/last/the�signaturesKon the instrument the person(s� or the entity upon behalf of which the person(>8-acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. CORINNE L. HERNANDEZ -Commission # 2083563 z ;-m Notary Public - California z U Z i. Los Angeles County n My Comm. Expires Sep 27, 2018 Signature a ACKNOWLEDGMENT A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document. State of California County of ^ )SS. On 20 before me, , Notary Public, personally appeared , proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signatures(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. Signature (seal) Faithful Performance Bond Page A-3 THE The Guarantee Company of North America USA GUARANTEES Southfield, Michigan POWER OF ATTORNEY NOW ALL BY THESE PRESENTS: That THE GUARANTEE COMPANY OF NORTH AMERICA USA, a corporation organized and existing under the laws of the State of Michigan, having its principal office in Southfield, Michigan, does hereby constitute and appoint Millennium Corporate Solutions, LLC William Syrkin, Sergio D. Bechara, Rebecca Ann Haas -Bates, Richard Leroy Adair its true and lawful attorney(s)-in-fact to execute, seal and deliver for and on its behalf as surety, any and all bonds and undertakings, contracts of indemnity and other writings obligatory in the nature thereof, which are or may be allowed, required or permitted by law, statute, rule, regulation, contract or otherwise. The execution of such instrument(s) in pursuance of these presents, shall be as binding upon THE GUARANTEE COMPANY OF NORTH AMERICA USA as fully and amply, to all intents and purposes, as if the same had been duly executed and acknowledged by its regularly elected officers at the principal office. The Power of Attorney is executed and may be certified so, and may be revoked, pursuant to and by authority of Article IX, Section 9.03 of the By -Laws adopted by the Board of Directors of THE GUARANTEE COMPANY OF NORTH AMERICA USA at a meeting held on the 31" day of December, 2003. The President, or any Vice President, acting with any Secretary or Assistant Secretary, shall have power and authority: 1. To appoint Attomey(s)-in-fact, and to authorize them to execute on behalf of the Company, and attach the Seal of the Company thereto, bonds and undertakings, contracts of indemnity and other writings obligatory in the nature thereof; and 2. To revoke, at any time, any such Attomey-in-fact and revoke the authority given, except as provided below 3. In connection with obligations in favor of the Florida Department of Transportation only, it is agreed that the power and authority hereby given to the Attorney -in -Fact includes any and all consents for the release of retained percentages and/or final estimates on engineering and construction contracts required by the State of Florida Department of Transportation. It is fully understood that consenting to the State of Florida Department of Transportation making payment of the final estimate to the Contractor and/or its assignee, shall not relieve this surety company of any of its obligations under its bond. 4. In connection with obligations in favor of the Kentucky Department of Highways only, it is agreed that the power and authority hereby given to the Attorney -in -Fact cannot be modified or revoked unless prior written personal notice of such intent has been given to the Commissioner — Department of Highways of the Commonwealth of Kentucky at least thirty (30) days prior to the modification or revocation. Further, this Power of Attorney is signed and sealed by facsimile pursuant to resolution of the Board of Directors of the Company adopted at a meeting duly called and held on the 6th day of December 2011, of which the following is a true excerpt: RESOLVED that the signature of any authorized officer and the seal of the Company may be affixed by facsimile to any Power of Attorney or certification thereof authorizing the execution and delivery of any bond, undertaking, contracts of indemnity and other writings obligatory in the nature thereof, and such signature and seal when so used shall have the same force and effect as though manually affixed. JPytp.NTEE CO) goy h ^ Z (V K 4 054 1 AM>K`P IN WITNESS WHEREOF, THE GUARANTEE COMPANY OF NORTH AMERICA USA has caused this instrument to be signed and its corporate seal to be affixed by its authorized officer, this 2nd day of October, 2015. STATE OF MICHIGAN County of Oakland THE GUARANTEE COMPANY OF NORTH AMERICA USA Stephen C. Ruschak, President & Chief Operating Officer Randall Musselman, Secretary On this 2nd day of October, 2015 before me came the individuals who executed the preceding instrument, to me personally known, and being by me duly sworn, said that each is the herein described and authorized officer of The Guarantee Company of North America USA; that the seal affixed to said instrument is the Corporate Seal of said Company; that the Corporate Seal and each signature were duly affixed by order of the Board of Directors of said Y.f Cynthia A. Takai Notary Public, State of Michigan County of Oakland $+� My Commission Expires February 27, 2018 Acting In Oakland County rl.•t!4wf �.�.. IN WITNESS WHEREOF, I have hereunto set my hand at The Guarantee Company of North America USA offices the day and year above written. I, Randall Musselman, Secretary of THE GUARANTEE COMPANY OF NORTH AMERICA USA, do hereby certify that the above and foregoing is a true and correct copy of a Power of Attorney executed by THE GUARANTEE COMPANY OF NORTH AMERICA USA, which is still in full force and effect. ��PpA1dTEE, IN WITNESS WHEREOF, I have thereunto set my hand and attached the seal of said Company this 14th day of November 2017 M* q j �Rfli AM�F��P Randall Musselman, Secretary \('I. \'Ir{\I I I: II:�'I'.\11. \'r r{\I I.I {II-. �'1 ♦I 1..' "I I:I r{:\ I'.�I'.\r'I.�I rl.l:l rr:\I I:�1 ♦I'1. err{{ ,1.1 rl:. ll:\' \-I r{{'I.I:11. 11:\"I .\I.1 'I r\I I-Irl'\II.�1'.\ I.I I(: \I :� IIrr: \II-� California All-Purpose Certificate of Acknowledgment A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document. State of California County of fZS.S. _ OnN0�(�►1 �1.201-7 before mel U-t 1�LIFT'O ., NOi `f Riau C, personally appeared eq&-6V who proved to me on the basis of satisfactory evidence to be the perso whose nameK = is/are subscribed to the within instrument and acknowledged t=ethalIO/sheAhey executed the same i hi / 4eir authorized capacity(and that byit signature on the instrument person/), or the entity upon behalf of which the personA acted, executed the Instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is KELLIPRIETO NotaryPublic- California z true and correct. _ Orange County Commission p 2220257 WITNESS my hand and official seal. My comm. Expires Oct so,2o2t = OPTIONAL INFORMATION Although the intbnnation in this section is riot required by law, it could prevent fraudulent removal and reattachment of this acknowledgment to an unauthorized document and may prove useful to persons relying on the attached document. Description of Attached Document The preceding Certificate of Acknowledgment is attached to a Method of Signer Identification document titled/for the purpose of Ca�4 Pb Or- Proved to me on the basis of satisfactory evidence: 121 1 lb j j ❑ form(s) of identification [ J credible witness(es) / containing pages, and dated �D`��t? Notarial event is detailed in notary journal on: The signer(s) capacity or authority is/are as: Page # Entry # ❑ Individual(s) Notary contact: _ ❑ Attorney-in-fact Corporate Officer(s) (li$.JT— other Additional Signer [ -) Signer(s) Thumbprints(s) ❑ Guardian/Conservator = D Partner - Limited/General ❑ Trustee(s) ' C I Other: representing: The Guarantee Company of North America USA 1 Towne Square, Suite 1470 Southfield, MI 48076 Phone: 248-281-0281 Fax: 248-750-0431 www.gcna.com CONTINUATION CERTIFICATE The Guarantee Company of North America USA, hereinafter called the Surety, hereby continues in force its Bond No. 12148728 in the sum of seven Thousand, Five Hundred ($ 7,500.00 ) dollars on behalf of Greenleaf Engineering in favor of City of Newport Beach for the (extended) term from 11/14/18 to 11/14/19 This continuation is executed upon the express condition that the Company's liability shall not be cumulative and shall be limited at all times by the amount of the penalty stated in the Bond. In witness whereof, the Company has caused this instrument to be signed by its duly authorized Attorney -in -Fact and its corporate seal to be hereto affixed this 8th day of October . 2018 Greenleaf Engineering Principal By: �• The Guarantee Compa7hy.ofJNorth A erica USA By: _ Attorney -in F a e William Syrkin Cs0029 Continuation Certificate 1 of 1 1/12/2009 jimk- THE The Guarantee Company of North America USA GUARANTEE'"' Southfield, Michigan POWER OF ATTORNEY KNOW ALL BY THESE PRESENTS: That THE GUARANTEE COMPANY OF NORTH AMERICA USA, a corporation organized and existing under the laws of the State of Michigan, having its principal office in Southfield, Michigan, does hereby constitute and appoint William Syrkin, Sergio D. Bechara, Rebecca Ann Haas -Bates, Richard Leroy Adair Millennium Corporate Solutions, LLC its true and lawful attorney(s)-in-fact to execute, seal and deliver for and on its behalf as surety, any and all bonds and undertakings, contracts of indemnity and other writings obligatory in the nature thereof, which are or may be allowed, required or permitted by law, statute, rule, regulation, contract or otherwise. The execution of such instrument(s) in pursuance of these presents, shall be as binding upon THE GUARANTEE COMPANY OF NORTH AMERICA USA as fully and amply, to all intents and purposes, as if the same had been duly executed and acknowledged by its regularly elected officers at the principal office. The Power of Attorney is executed and may be certified so, and may be revoked, pursuant to and by authority of Article IX, Section 9.03 of the By -Laws adopted by the Board of Directors of THE GUARANTEE COMPANY OF NORTH AMERICA USA at a meeting held on the 3151 day of December, 2003, The President, or any Vice President, acting with any Secretary or Assistant Secretary, shall have power and authority: 1. To appoint Attorney(s)-in-fact, and to authorize them to execute on behalf of the Company, and attach the Seal of the Company thereto, bonds and undertakings, contracts of indemnity and other writings obligatory in the nature thereof; and 2. To revoke, at any time, any such Attorney-in-fact and revoke the authority given, except as provided below 3. In connection with obligations in favor of the Florida Department of Transportation only, it is agreed that the power and authority hereby given to the Attorney -in -Fact includes any and all consents for the release of retained percentages and/or final estimates on engineering and construction contracts required by the State of Florida Department of Transportation. It is fully understood that consenting to the State of Florida Department of Transportation making payment of the final estimate to the Contractor and/or its assignee, shall not relieve this surety company of any of its obligations under its bond. 4. In connection with obligations in favor of the Kentucky Department of Highways only, it is agreed that the power and authority hereby given to the Attorney -in -Fact cannot be modified or revoked unless prior written personal notice of such intent has been given to the Commissioner — Department of Highways of the Commonwealth of Kentucky at least thirty (30) days prior to the modification or revocation. Further, this Power of Attorney is signed and sealed by facsimile pursuant to resolution of the Board of Directors of the Company adopted at a meeting duly called and held on the 6th day of December 2011, of which the following is a true excerpt: RESOLVED that the signature of any authorized officer and the seal of the Company may be affixed by facsimile to any Power of Attorney or certification thereof authorizing the execution and delivery of any bond, undertaking, contracts of indemnity and other writings obligatory in the nature thereof, and such signature and seal when so used shall have the same force and effect as though manually affixed. IN WITNESS WHEREOF, THE GUARANTEE COMPANY OF NORTH AMERICA USA has caused this instrument to be signed and its corporate seal to be affixed by its authorized officer, this 2nd day of October, 2015. THE GUARANTEE COMPANY OF NORTH AMERICA USA STATE OF MICHIGAN Stephen C. Ruschak, President & Chief Operating Officer County of Oakland Randall Musselman, Secretary On this 2nd day of October, 2015 before me came the individuals who executed the preceding instrument, to me personally known, and being by me duly sworn, said that each is the herein described and authorized officer of The Guarantee Company of North America USA; that the seal affixed to said instrument is the Corporate Seal of said Company; that the Corporate Seal and each signature were duly affixed by order of the Board of Directors of said company. _ Cynthia A. Takai Notary Public, State of Michigan \oErhr County of Oakland L , = My Commission Expires February 27, 2024 `c 4'•ry;�. Acting in Oakland County IN WITNESS WHEREOF, I have hereunto set my hand at The Guarantee Company of North America USA offices the day and year above written. 1� A't� 9. I, Randall Musselmar, Secretary of THE GUARANTEE COMPANY OF NORTH AMERICA USA, do hereby certify that the above and foregoing is a true and corract copy cf a Pcwer of Attorney executed by THE GUARANTEE COMPANY OF NORTH AMERICA USA, which is still in full force and effect. J' TFFF\ IN'NITNFSS WHEREOF, I have thereunto set my hand and attached the seal of said Company this 8th day of October 2018 ;q Randall Musselman, Secretary CALIFORNIA• . •. S.TC s�Ca\S.c\S.. %: S . •,c�S TS .1.0 S.nS.. S..-�.C.�C_o�S.�'�\s�S�La�•s�S.:�S S.:�CTS.T•��.Ls\S c�S..�C..S. .TS_�C .�S..�S.�S.-.aCT .�S A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document. State of California ) County of Los Angeles ) On October 8, 2018 before me, Date personally appeared William Syrkin C. L. Hernandez, Notary Public Here Insert Name and Title of the Officer Name of Signer's,( who proved to me on the basis of satisfactory evidence to be the person(* whose name* is/are— subscribed to the within instrument and acknowledged to me that he/sheAPep-executed the same in histo is authorized capacity(ies), and that by his/betAheir signatures} on the instrument the persons) or the entity upon behalf of which the person*acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand a d official seal. a. C. L. HERNANDEZ Notary Public - California y . - Los Angeles County > Commission # 2256545 Signatur _ Al My Comm. Expires Sep 27, 2022 Signature of Notary Publi Place Notary Seal Above OPTIONAL Though this section is optional, completing this information can deter alteration of the document or fraudulent reattachment of this form to an unintended document. Description of Attached Document Title or Type of Document: .__---------- Document Date: Number of Pages: Signers) Other Than Named Above: Capacity(ies) Claimed by Signer(s) Signer's Name: William Syrkin ❑ Corporate Officer — Title(s): ❑ Partner — ❑ Limited ❑ General ❑ Individual !°Attorney in Fact ❑ Trustee ❑ Guardian or Conservator I l Other: Signer Is Representing: The Guarantee Company ot Northmenca Signer's Name: ❑ Corporate Officer — Title(s): Partner — ❑ Limited ❑ General ❑ Individual ❑ Attorney in Fact CJ Trustee ❑ Guardian or Conservator ❑ Other: Signer Is Representing: 02014 National Notary Association • www.NationaiNotary.org • 1 -800 -US NOTARY (1-800-876-6827) Item #5907 2009-2015 Nola'�y L*,aaning Gonley - All Right,,, {wowed You can P..mhiase copies ofmis forn.li'—com P �-7-7Il. — 11 .11111-A-1-- if —1111 —0—A California All -Purpose Certificate of Acknowledgment ............ . - ---------- ........ . . . .... .......... A notary public or other officer completing this certificate verifies only the identity of the individual who signedihe document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document. State of California County of OvvcNeV5 S.S. OnQCtUI1230�Z 1 Q, 2,015 before me, &-W 02 4a A 11�' Pv�Uc personally appeared QZVN La"^ -P - NIA who proved to me on the basis of satisfactory evidence to be the person(<whose nameW is/are subscrIbQd to the within instrument and acknowledged to e tthhaf!�79/sheftey executed the same in ft5i�herttrieir authorized capacity, and that bto signature�< on the instrument Me person), or the entity upon behalf of which the personw acted, executed the instrument. X I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is KELL! PRI true and correct. Notary Public - Z Orange County Commission # 2220257 WITNESS my hand and official seal. My Comm. Expires Oct 30. va OPTIONAL INFORMATION although tt7e inforn?ation in this section is not required by law, it could prevent fiziuclulent remove/ and reattachu," y Description of Attached Document The preceding Certificate of Acknowledgment is attached to a Method of Signer Identification ..... . ..... .............................. . .... ...... .................. - document titled/for the purpose of &&M�Jtifmcrj Proved tome on the basis of satisfactory evidence: form(s) of identification credible witness(es) containing pages, and dated Notarial event is detailed in notary journal on: ve The signer(s) capacity or authority is/are as: Page # _ Entry # El Individual(s) Notary contact: ❑ Attorney-in-fact )(Corporate Officer(s) Other ............... Additional Signer F Signer(s) Thumbprints(s) Guard ian/Conservator Partner - Limited/General 0 Trustee(s) 01 Other: representing: .................................... . . ............ .................... - ......................................... . .... ... . M, T 1737 1 IrN-.—%7, T`'ZZM I T.T.T57.7. -rurrs—ir, , gw.�';m �'Mc71 2009-2015 Nola'�y L*,aaning Gonley - All Right,,, {wowed You can P..mhiase copies ofmis forn.li'—com P EXHIBIT B FRANCHISE HAULER ACKNOWLEDGEMENT THIS FRANCHISE HAULER ACKNOWLEDGMENT, entered into as of November 9, 2017 (the "Acknowledgment"), by and between the City of Newport Beach, a charter city and municipal corporation (the "City"), and GREENLEAF ENGINEERING, a California corporation (the "Franchise Hauler"). WITNESSETH WHEREAS, the City and the Franchise Hauler have heretofore entered into an agreement entitled NONEXCLUSIVE FRANCHISE AGREEMENT BETWEEN THE CITY OF NEWPORT BEACH AND GREENLEAF ENGINEERING FOR COMMERCIAL SOLID WASTE HAULING SERVICES (the "Franchise"); and WHEREAS, the Franchise provides for the collection and disposal of certain municipal commercial solid waste as described therein ("Franchise Waste") generated within the City; and WHEREAS, Orange County (the "County") owns, manages and operates a sanitary landfill disposal system for municipal solid waste generated within the County; and WHEREAS, the City and the County have heretofore entered into a Waste Disposal Agreement as of 2009, and subsequent Amendment to the Waste Disposal Agreement dated April 28, 2016 (collectively, the "Disposal Agreement"), determining that the execution of such Disposal Agreement will serve the public health, safety and welfare of the residents of the City and County, by maintaining public ownership and stewardship over the Orange County Landfill Disposal System (the "Disposal System"); and WHEREAS, under the Disposal Agreement, the County has agreed to provide long-term disposal of all municipal solid waste generated within the City and the City has agreed to exercise all legal, and contractual power which it possesses from time to time to deliver or cause the delivery of such waste to the Disposal System; and WHEREAS, the provisions of the Waste Disposal Agreement which guarantee capacity for the long term disposal of waste at specified rates generated in the City provide significant benefits to the Franchise Hauler; WHEREAS, notwithstanding any Franchise provisions to the contrary, the Franchise Hauler explicitly acknowledges the aforementioned benefits to the City, the County and the Franchise Hauler in providing for the disposal of all Franchise Waste to the Disposal System; and WHEREAS, the City and the Franchise Hauler desire to enter into this Acknowledgment to assure that the City and the Franchise Hauler will be entitled to the benefits of the Waste Disposal Agreement and to assure conformity with the waste Franchise Hauler Acknowledgement Page B-1 delivery obligations which have been agreed to by the City under the Disposal Agreement through the delivery of waste by the Franchise Hauler to the Disposal System; and WHEREAS, the Franchise Hauler's agreement to deliver Franchise Waste to the Disposal System under this Acknowledgment is given in consideration of the Franchise Hauler's right to receive the Contract Rate for such disposal as provided in the Disposal Agreement. NOW, THEREFORE, in consideration of the premises and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties hereto, intending to be legally bound hereby, agree as follows: 1. Capitalized terms used and not otherwise defined herein are used as defined in the Disposal Agreement. 2. The Franchise Hauler hereby waives any right which it may possess under applicable law to contest on any ground, constitutional, statutory, case law, administrative or otherwise, (a) the right, power or authority of the County or the City to enter into or perform their respective obligations under the Disposal Agreement, (b) the enforceability against the County or the City of the Disposal Agreement, or (c) the right, power or authority of the City to deliver or cause the delivery of all Controllable Waste to the Designated Disposal Facility in accordance with this Acknowledgment. 3. The City and the Franchise Hauler each hereby represent that this Acknowledgment has been duly authorized by all necessary action of their respective governing bodies. 4. The Franchise Hauler shall deliver or cause to be delivered all Controllable Waste (including all residue from the processing by any means, wherever conducted, of Controllable Waste) to the Disposal System, and shall otherwise assist the City in complying with its obligations under the Waste Disposal Covenant in Section 3.1 of the Disposal Agreement. 5. The Franchise Hauler shall not haul Controllable Waste to any materials recovery facility, composting facility, intermediate processing facility, recycling center, transfer station or other waste handling or management facility unless the contract or other agreement or arrangement between the Franchise Hauler and the operator of such facility is sufficient in the opinion of the County to assure that the Residue from such facility constituting City Acceptable Waste (or Tonnage equivalencies) and the City Acceptable Waste transferred by such facility shall be delivered to the Designated Disposal Facility in compliance with the Waste Disposal Covenant. Franchise Hauler Acknowledgement Page B-2 6. The Franchise Hauler shall pay the Contract Rate imposed by the County at the Designated Disposal Facility for the disposal of all Controllable Waste, which rate shall be subject to potential adjustment necessary to reflect the circumstances set forth in the Disposal Agreement. 7. Nothing in this Acknowledgment is intended to restrict any right or responsibility explicitly given the Franchise Hauler in the Franchise to recycle City Acceptable Waste, except as provided in paragraph 5 above with respect to Residue from any such recycling operations. 8. The obligations of the Franchise Hauler under this Acknowledgment shall apply notwithstanding any provision of the Franchise which may conflict herewith. 9. This Acknowledgment may be enforced by the City by any available legal means. In any enforcement action by the City, the burden of proof shall be on the Franchise Hauler to demonstrate compliance herewith. 10. This Acknowledgment shall be in full force and effect and shall be legally binding upon the City and Franchise Hauler from the dated hereof and shall continue in full force and effect until the earlier of (i) the end of the term of the Franchise or (ii) the end of the term of the Disposal Agreement. 11. The City and Hauler agree that the County shall be an express third party beneficiary of this Acknowledgment, and shall be entitled to independently enforce the obligations of the Franchise Hauler hereunder. 12. The Hauler agrees to assist the County in verifying tonnage collected by the Franchise Hauler and providing information required by the County. Hauler will provide upon request refuse tonnage collected within the County, and outside the County (if relevant to confirming tonnage origination), separated by jurisdiction, by load type (residential, commercial, roll -off box), and by facility to which it was delivered (specify which landfill or transfer station). Hauler will provide customer service levels and route lists. Hauler will cooperate with County audits to verify reported origin of tonnage by making records and personnel available to the County and/or its auditors. Franchise Hauler Acknowledgement Page B-3 EXHIBIT C FRANCHISE APPLICATION TEMPLATE Franchisee Application Template Page C-1 P City of Newport Beach Solid Waste Franchise Application Hauler information Legal Name & DBA: ; .3 #M t,, Aj Business Address: Business Phone: .% Business email: Ct a fit;? , Contact Name: r f4U Phone:` ?❑) 1; r Email: r hewport Beach Business License#: .C/ Exp: l r� Type of Organization (Check One) Individual (Owner/Operator) Husband and Wife Corporation General Partnership Desired Franchise: Tier I (Mixed Solid Waste) ❑ Mixed Waste ❑ "Dirty MRF" Processing ❑ Source Separated Dry Recyclables ❑ Food Scraps ❑ Green / Wood Waste f❑ Tier II (Construction & Demolition) i Name of Signatories Limited Partnership []Limited Liability Company ❑Business Trust ❑ Co -Partners Name Title r Name Title ❑ Joint Venture Unincorporated Association - Other than a Partnership F]Public Agency Corp Resolution Needed Yes. No N/A ❑ ❑ '�.,, Yes No NIA 1:1 111�=.1 Additional Information Required with Submission of Franchise Application 1, The applicant must complete Form 200/200q/200P as appropriate, describing officers, partners, etc,, having legal responsibility for the franchise agreement. 2. A current insurance certificate conforming to the requirements listed In the franchise agreement, including the applicable endorsements. 3. if your company has not conducted solid waste hauling services in the City of Newport Beach for the past three (3) years, please provide information from the previous calendar year! ncluding tonnage collected. by activity (residential, commercial, industrial, construction and demolition); corresponding revenue for each activity; tonnage recycled or caused to be recycled by applicant's collection, transportation, and/or disposition of materials collected and categorized by method of recycling, material type recycled, and the tonnage disposed by facility utilized.. In the past year, have you or your firm: Maintained all books of account pursuant to generally accepted accounting principles (GAAP)? Yes F,7 No N/A Generated all income statements using either a cash or accrual accounting method? Yes ,.� No N/A Truthfully and accurately reported all tonnage and/or the disposition of all materials collected in any jurisdiction where you are authorized to D erform solid waste services? Yes I ,;-"<- No N/A AUTHORIZED SIGNATURE(S) OF APPLICANT THE UNDERSIGNED ASSURES THAT THE INFORMATION PROVIDED ON THIS APPLICATION IS TRUE AND CORRECT AND THAT THE APPLICANT HAS READ AND UNDERSTOOD HIS OR HER OBLIGATIONS UNDER ANY FRANCHISE OBTAINED BASED ON'THIS APPLICATION. A. If the applicant Is a sole proprietor, the application shall be signed by the proprietor. 13. If the applicant is a partnership, the application shall be signed by each partner. C. If the application is a firm, association, corporation, county, city, public agency, or other governmental entity, the application shall be signed by the chief executive officer or the Individual legally responsible for representing the agency. D. The appllcant(s) affirms that the facts contained in this application and supporting documents are true and correct. (Signature) (Title) (Date) gnature) (Title) (Date) (Signature) (Title) (Date) City of Newport Beach NON-EXCLUSIVE SOLID WASTE FRANCHISE APPLICATION ADMINISTRATIVE ORGANIZATION & DELEGATION INFORMATION - CORPORATIONS (Form 200 — 2017) INSTRUCTIONS: This form must be updated and submitted to the City each time there is a change in officers or change in the corporation - ----- CORPORATION or oration - CORPORATION Of Principal office of business: (, J,U # �i Address City h1 'f _e Zip Codet!:12&44trelephone j ' ' 7 Contact Person }( �! �•q• Title s c } Telephone fT-�1;. VL✓i `t" W' 4 '�:._ r . i.' `L.....� (�..j h�ii a (�ei �^"{ Names and addresses of all persons who own len per cent (10%) or more of stock In corporation. Governing Board of Directors a. Number of Board Members b. Term of Office c. Frequency of Meetings d. Method of Selection rin�rA Of ltnera and Mnmhara USF A SEPARATE SHEET FOR ADDITIONAL NAMES Off lee Nome Business Address & City & Zip Code Telephone Term Numbor Explration President Vice -President -71 ` Secretary iJ1.t! Treasurer Other City of Newport Beach NON-EXLUSIVE SOLID WASTE FRANCHISE APPLICATION ADMINISTRATIVE ORGANIZATION & DELEGATION INFORMATION - CORPORATIONS PARTNERSHIPS, SOLE PROPRIETOR, AND OTHER ASSOCIATIONS (Form 200P — 2017) PARTNERSHIPS 1. Attach a copy of the partnership agreement 2. Partners Type of Partnership Narne _ Business Address, City and Zip Code Contact Person Title Telephone # SOLE PROPRIETOR/OTHER ASSOCIATIONS Sole Proprietors/other associations must also provide a list of all person(s) legally responsible for the organization, the contact person, and appropriate legal documents (fictitious name statement,.business license) which set forth legal responsibility of the organization and accountability for opening the program, Use the following space or attach a separate sheet, General 1 a PartnerEI ❑ Limited ❑ General 2nd Partner ❑ Limited 3rd PartnerGeneral ❑ Limited El General 41h Partner ❑ Limited Contact Person Title Telephone # SOLE PROPRIETOR/OTHER ASSOCIATIONS Sole Proprietors/other associations must also provide a list of all person(s) legally responsible for the organization, the contact person, and appropriate legal documents (fictitious name statement,.business license) which set forth legal responsibility of the organization and accountability for opening the program, Use the following space or attach a separate sheet, u w 00 t a� z a CJ O E b An C N T � w 7p O �a rk 11 W s -killCl y 0 .0 LL Q u � � p.1�► LL a cr r ,rc Iz r C} O IE ro a MT !� � lu W lU wi `� E �r V L u w rk Solid Waste Collection Recycling Plans Applicants must complete a listing of solid waste collection and diversion plans (Attachment 1), The form must include, at a minimum, each waste stream; the types/sizes of containers to be utilized; description of how waste is processed; a listing of any facility where material may be taken; and the ultimate disposition of any non-processible portion of the waste stream. List of Vehicles to Be Utilized Under the Franchise Applicants must list all vehicles to be used In performing services in the City (Attachment 2). Note: All vehicles must meet the equipment standards listed In the "Vehicles and Equipment" section of the franchise agreement. The Franchise Agreement requires all vehicles and containers to be painted uniform colors. Color of Vehicles: V%1 1-t 1l Color of Containers: Designation of Hauler Representative The franchise requires that waste haulers designate a Hauler Representative to assist In managing your recycling and diversion programs and managage reporting requirements. This person will also be the main contact.for City staff and the hauler's customers in Newport Beach, Please provide the following Information on the Hauler Representative: Name: WAIT ems. Title/Position:_4Ci li I Direct Phone Number: t u m 0) m O CL 3 z u Q1H L"vt opo ono rn mn0dt 00 00 00 0 H Z Ln -i Ln a) N 0 0 0 r -)t7 0 U- (9 T Ln a --I Ln N m X X X X X 0 0 0 0 0 H 1— U u U Z a. a a a m X � �X-I N .XI cxi 3 _ cQ o oo'n .a 0 r a r- H � m 00 o N 0�1 0�0 d t�0 eN-I d cV) V) (A 0 'a tv r O W -Ei3:aZ-3 Y 41 Y Y Y N v a v a v a v a v o. .a m Ln ui u5 n 0 0 0 0 0 t0 OJ oo Ln O1 n N Ln ci Ln Ln N N Ln n rn d' *t W oo 00 e -i 00 r-1 N Ln 00 Ln LL LL LL LL yW 01 Q1 Q1 (n Cl) C R u GREENLEAF ENGINEERING INC ACCOUN'I'NUiVIBER: BT03020557 18685 MAIN ST #A-371 FOUNTAIN VALLEY, CA 92648 EXPIRATION DNFE: 11/30/2017 INSTRUC'rION€y ANY) CONDITIONS Welcome to the City of Newport Beach, and thank you for your business tax payment. This business tax certificate is evidence that the named business has paid a tax to conduct the business activity designated, within the City of Newport Beach, until the expiration date shown. Please notify the Revenue Division immediately if any of the information on the certificate changes. This certificate is valid only at the address indicated and must be displayed in a conspicuous location. If your business is not conducted at a permanent location, Municipal Code requires that any representative, while transacting business within the city, carry this certificate. h s._f usiness fax certificate does not authorize the nartii�d_busirless to conduct any activities regulated by_the City of ew ort BeAptr or other agencies. Autliarization for such activities must.e_obtained from the appropriate departments prior to application for business tax,.. iInChj_!rtjg_land use authorizatfe��� frd��1. fhb pity s _�4_mrnEf�rityr_l�evelop nent_.D!pa.Ctriie.n.fi. Certificates are not transferable to any other party or person and are not pro -rated. Refunds are not provided once the certificate has been issued. Your business tax certificate is valid until the expiration date, and must be renewed annually prior to that date. Changes in type of ownership (i.e. from a sole proprietorship to a partnership or LLC), nature of business, or ownership void the current certificate and require filing of and payment for a new application. Additional certificates are required if additional types of business activity are initiated at the same address, or additional locations of the same business are established (Municipal Code sections 5.04 through 5.08). For your convenience, the Revenue Division will mail a courtesy renewal notice, prior to the expiration date, to the mailing address of record. Non -receipt of the notice does not alleviate the requirement to renew. Penalties are imposed for late renewal at a rate of 25% per month to a maximum of 50% of the base tax. The Revenue Division is available to answer any questions regarding business tax certificate and requirements. Call (949) 644-3141; e-mail . us at: Revenueldelp@newpoi-tbeactica.gov. newportbeactica.gov. or visit us on the internet at www.new ortbeachcax ov and view the Municipal Code online. DISPLAY CONSPICUOUSLY AT PLACE OF BUSINESS FOR WHICH ISSUED C -1 ITY OF NEWPORT BEAD" BUSINESS TAX CERTIFICATE THIS'rAX PAYMENT' EXPIRES: 11/30/2017 SERVICE ADDRESS: GREENLEAF ENGINEERING INC 16652 BURKE LN HUNTINGTON BCH, CA 92647 BUSINESS CE1I'EGORY: EXCAVATION WORK SELLERS PF_,RNIIT: NO SELLERS ACCOUN'I' NUMBER: BT03020557 OWNER/PRINCIPAL NAME_,: GREENLEAF, TIM OWNERSHIP TYPE: CORPORATION T/\X INCLUDES P/MvIENT FOR: 2 EMPLOYEES DATE OIC ISSUE: 02/01/2003 PRINT Dr-\"I'E: 12/08/2016 1W:1:1WIa11 INSURANCE REQUIREMENTS 1. Provision of Insurance. Without limiting Franchisee's indemnification of City, and prior to commencement of Work, Franchisee shall obtain, provide and maintain at its own expense during the term of this Agreement, policies of insurance of the type and amounts described below and in a form satisfactory to City. Franchisee agrees to provide insurance in accordance with requirements set forth here. If Franchisee uses existing coverage to comply and that coverage does not meet these requirements, Franchisee agrees to amend, supplement or endorse the existing coverage. 2. Acceptable Insurers. All insurance policies shall be issued by an insurance company currently authorized by the Insurance Commissioner to transact business of insurance in the State of California, with an assigned policyholders' Rating of A- (or higher) and Financial Size Category Class VII (or larger) in accordance with the latest edition of Best's Key Rating Guide, unless otherwise approved by the City's Risk Manager. 3. Coverage Requirements. A. Workers' Compensation Insurance. Franchisee shall maintain Workers' Compensation Insurance, statutory limits, and Employer's Liability Insurance with limits of at least One Million Dollars ($1,000,000) each accident for bodily injury by accident and each employee for bodily injury by disease in accordance with the laws of the State of California, Section 3700 of the Labor Code. Franchisee shall submit to City, along with the certificate of insurance, a Waiver of Subrogation endorsement in favor of City, its officers, officials, employees and agents. B. General Liability Insurance. Franchisee shall maintain commercial general liability insurance, and if necessary umbrella liability insurance, with coverage at least as broad as provided by Insurance Services Office form CG 00 01, in an amount not less than One Million Dollars ($1,000,000) per occurrence, Two Million Dollars ($2,000,000) general aggregate and Two Million Dollars ($2,000,000) completed operations aggregate. The policy shall cover liability arising from premises, operations, products -completed operations, personal and advertising injury, and liability assumed under an insured contract (including the tort liability of another assumed in a business contract) with no endorsement or modification limiting the scope of coverage for liability assumed under a contract. C. Automobile Liability Insurance. Franchisee shall maintain automobile insurance at least as broad as Insurance Services Office form CA 00 01 covering bodily injury and property damage for all activities of the Franchisee arising out of or in connection with Work to be performed under this Agreement, including coverage for any owned, hired, non -owned or rented vehicles, in an amount not less than One Million Dollars ($1,000,000) combined single limit for each accident. 4. Other Insurance Requirements. The policies are to contain, or be endorsed to contain, the following provisions: Insurance Requirements Page D-1 A. Waiver of Subrogation. All insurance coverage maintained or procured pursuant to this Agreement shall be endorsed to waive subrogation against City, its elected or appointed officers, agents, officials, employees and volunteers or shall specifically allow Franchisee or others providing insurance evidence in compliance with these requirements to waive their right of recovery prior to a loss. Franchisee hereby waives its own right of recovery against City, and shall require similar written express waivers from each of its subcontractors. B. Additional Insured Status. All liability policies including general liability, excess liability, pollution liability, and automobile liability, but not including professional liability (if required), shall provide or be endorsed to provide that City and its officers, officials, employees, and agents shall be included as insureds under such policies. C. Primary and Non Contributory. All liability coverage shall apply on a primary basis and shall not require contribution from any insurance or self-insurance maintained by City. D. Notice of Cancellation. All policies shall provide City with thirty (30) days notice of cancellation (except for nonpayment for which ten (10) days notice is required) or nonrenewal of coverage for each required coverage. 5. Additional Agreements Between the Parties. The parties hereby agree to the following: A. Evidence of Insurance. Franchisee shall provide certificates of insurance to City as evidence of the insurance coverage required herein, along with a waiver of subrogation endorsement for workers' compensation and other endorsements as specified herein for each coverage. Insurance certificates and endorsement must be approved by City's Risk Manager prior to commencement of performance. Current certification of insurance shall be kept on file with City at all times during the term of this contract. City reserves the right to require complete, certified copies of all required insurance policies, at any time. B. City's Right to Revise Requirements. The City reserves the right at any time during the term of this Agreement to change the amounts and types of insurance required by giving the Franchisee ninety (90) days advance written notice of such change. C. Right to Review Subcontracts. Franchisee agrees that upon request, all contracts with subcontractors or others with whom Franchisee enters into contracts with on behalf of City will be submitted to City for review. Failure of City to request copies of such contracts will not impose any liability on City, or its employees. D. Enforcement of Contract Provisions. Franchisee acknowledges and agrees that any actual or alleged failure on the part of the City to inform Franchisee of non-compliance with any requirement imposes no additional obligations on the City nor does it waive any rights hereunder. E. Requirements not Limiting. Requirements of specific coverage features or limits contained in this Section are not intended as a limitation on coverage, limits or other requirements, or a waiver of any coverage normally provided by any insurance. Specific reference to a given coverage feature is for purposes of clarification Insurance Requirements Page D-2 only as it pertains to a given issue and is not intended by any party or insured to be all inclusive, or to the exclusion of other coverage, or a waiver of any type. F. Self-insured Retentions. Any self-insured retentions must be declared to and approved by City. City reserves the right to require that self-insured retentions be eliminated, lowered, or replaced by a deductible. Self-insurance will not be considered to comply with these requirements unless approved by City. G. City Remedies for Non Compliance. If Franchisee or any subcontractor fails to provide and maintain insurance as required herein, then City shall have the right but not the obligation, to purchase such insurance, to terminate this Agreement, or to suspend Franchisee's right to proceed until proper evidence of insurance is provided. Any amounts paid by City shall, at City's sole option, be deducted from amounts payable to Franchisee or reimbursed by Franchisee upon demand. H. Timely Notice of Claims. Franchisee shall give City prompt and timely notice of claims made or suits instituted that arise out of or result from Franchisee's performance under this Agreement, and that involve or may involve coverage under any of the required liability policies. City assumes no obligation or liability by such notice, but has the right (but not the duty) to monitor the handling of any such claim or claims if they are likely to involve City. I. Franchisee's Insurance. Franchisee shall also procure and maintain, at its own cost and expense, any additional kinds of insurance, which in its own judgment may be necessary for its proper protection and prosecution of the Franchise. Insurance Requirements Page D-3 EXHIBIT E RECYCLING PROGRAM Franchisee shall provide an AB 341 Generator all services necessary to support compliance with, and City's enforcement of, AB 341 requirements for Recycling of Municipal Solid Waste and Recyclable Materials. Franchisee's Recycling Program shall include, but not be limited to: (A) Informing the AB 341 Generator of AB 341's Recycling requirements; (B) Providing public education and training materials to the AB 341 Generator explaining (1) the operation of the Recycling Program, and (2) the materials that may be placed in the Recycling Container(s). (C) Making available the following sizes and types of Containers for storage of Municipal Solid Waste and Recyclable Materials: thirty (35) gallon, sixty-five (65) gallon, or ninety- five (95) gallon Carts, two (2), three (3), four (4) and six (6) cubic yard Bins; and two (2), three (3), and four (4) cubic yard split bins; and compactors in the following sizes: three (3) cubic yard and four (4) cubic yard; (D) Consulting with AB 341 Generators to determine, provide, and distribute appropriate Containers, Bins, Roll Off Bins, or compactors; (E) Providing AB 341 Generators with wheeled carts or other Containers and/or Bins, Roll Off Boxes or compactors as necessary for the segregation and storage of Food Scraps to be diverted, which, at a minimum, complies with Section 11.D of the Agreement; (F) Working and coordinating with the AB 341 Generator, or its designee, to ensure a smooth and effective Recycling Program at each Commercial Premises and Multifamily Dwelling for which Franchisee is providing Municipal Solid Waste and/or Recyclable Materials collection; and (G) Processing collected Recyclable Materials and Processable Municipal Solid Waste at a City -approved Clean or Dirty MRF. Recycling Program Page E-1 EXHIBIT F FOOD SCRAP DIVERSION PROGRAM For those Food Scrap Generators subject to AB 1826, Franchisee shall provide all services necessary to support compliance with, and City's enforcement of, AB 1826 requirements for Diversion of Food Scraps. Franchisee's Food Scrap Diversion Program shall include, but not be limited to: (A) Informing the Food Scrap Generator of AB 1826's Food Scrap Diversion requirements; (B) Providing public education and training materials to the Food Scrap Generator explaining (1) the operation of the Recycling Program, and (2) the materials that may be placed in the Recycling Container(s). (C) Making available the following sizes and types of Containers for Food Scrap, storage: thirty (35) gallon, sixty-five (65) gallon, or ninety-five (95) gallon Carts, two (2), cubic yard Bins; and two (2) cubic yard Split Bins. (D) Consulting with Food Scrap Generators to determine, provide, and distribute appropriate Containers, Bins, Roll Off Bins, or compactors; (E) Providing Food Scrap Generators with wheeled carts or other Containers and/or Bins, Roll Off Boxes or compactors as necessary for the segregation and storage of Food Scraps to be diverted, which, at a minimum, complies with Section 11.D of the Agreement; and (F) Working and coordinating with the Food Scrap Generator, or its designee, to ensure a smooth and effective Food Scrap Diversion Program and the Diversion of substantially all Food Scraps generated at each Commercial Premises for which Franchisee is providing Food Scrap collection. Food Scrap Diversion Program Page F-1 EXHIBIT G CONSTRUCTION AND DEMOLITION DEBRIS RECYCLING PROGRAM Franchisee shall provide all services necessary to support Customer compliance with, and City's enforcement of, the California Green Building Standards Code requirements for Diversion of Construction and Demolition Debris. Franchisee's Construction and Demolition Debris Recycling Program shall include, but not be limited to: (A) Informing all Customers requesting Construction and Demolition Debris hauling services of the requirements of the California Green Building Standards Code; (B) Providing Containers and/or Bins, Roll Off Boxes, and Compactors as needed for storage and transport of single -material Construction and Demolition Debris, and commingled Construction and Demolition Debris; (C) Providing Collection service of all Containers on a timely basis, which, at a minimum, complies with Section 11.D of the Agreement; and (D) Working and coordinating with Customer, or customer's recycling coordinator, to ensure a smooth and effective Recycling program and the Diversion of a minimum of sixty-five percent (65%) of all Construction and Demolition Debris generated at each of Customer's job sites for which Franchisee is providing Construction and Demolition Debris Collection service. Franchisee shall inform Customers utilizing Containers and/or Bins and Roll Off Boxes on a temporary basis, that materials being generated must be recycled pursuant to the requirements of City Code and the California Green Building Standards Code. Construction and Demolition Debris Recycling Program Page G-1 CERTIFICATE OF INSURANCE CHECKLIST City of Newport Beach This checklist is comprised of requirements as outlined by the City of Newport Beach. * Date Received: 8/31/17 Dept./Contact Received From: Joan Date Completed: 9/19/17 Sent to: Joan By: Jan Company/Person required to have certificate: Timothy Greenleaf Engineering Type of contract: I. GENERAL LIABILITY EFFECTIVE/EXPIRATION DATE: 2/19/17 — 2/19/18 A. INSURANCE COMPANY: First Specialty Insurance Company B. AM BEST RATING (A-: VII or greater): A+ / XV C. ADMITTED Company (Must be California Admitted): Is Company admitted in California? ❑ Yes N No D. LIMITS (Must be $1 M or greater): What is limit provided? $1M/$2M + $9M Umb E. ADDITIONAL INSURED ENDORSEMENT — please attach ® Yes ❑ No F. PRODUCTS AND COMPLETED OPERATIONS (Must include): Is it included? (completed Operations status does not apply to Waste Haulers or Recreation) N Yes ❑ No G. ADDITIONAL INSURED FOR PRODUCTS AND COMPLETED OPERATIONS ENDORSEMENT (completed Operations status does not apply to Waste Haulers) N Yes ❑ No H. ADDITIONAL INSURED WORDING TO INCLUDE (The City its officers, officials, employees and volunteers): Is it included? ® Yes ❑ No I. PRIMARY & NON-CONTRIBUTORY WORDING (Must be included): Is it included? N Yes ❑ No J. CAUTION! (Confirm that loss or liability of the named insured is not limited solely by their negligence) Does endorsement include "solely by negligence" wording? ❑ Yes N No K. ELECTED SCMAF COVERAGE (RECREATION ONLY): N N/A ❑ Yes ❑ No L. NOTICE OF CANCELLATION: ❑ N/A N Yes ❑ No II. AUTOMOBILE LIABILITY EFFECTIVE/EXPIRATION DATE: 9/17/16 — 9/17/17 A. INSURANCE COMPANY: Financial Pacific Insurance Company B. AM BEST RATING (A- : VII or greater) A / XI C. ADMITTED COMPANY (Must be California Admitted): Is Company admitted in California? N Yes ❑ No D. LIMITS - If Employees (Must be $1 M min. BI & PD and $500,000 UM, $2M min for Waste Haulers): What is limits provided? $1,000,000 E LIMITS Waiver of Auto Insurance / Proof of coverage (if individual) (What is limits provided?) N/A F. PRIMARY & NON-CONTRIBUTORY WORDING (For Waste Haulers only): ❑ N/A N Yes ❑ No G. HIRED AND NON -OWNED AUTO ONLY: ❑ N/A ❑ Yes N No H. NOTICE OF CANCELLATION: ❑ N/A N Yes 0 No III. WORKERS' COMPENSATION EFFECTIVE/EXPIRATION DATE: 11/1/16 —11/1/17 A. INSURANCE COMPANY: Midwest Employers Casualty? B. AM BEST RATING (A-: VII or greater): A+ / XV C. ADMITTED Company (Must be California Admitted): D. WORKERS' COMPENSATION LIMIT: Statutory E. EMPLOYERS' LIABILITY LIMIT (Must be $1 M or greater) F. WAIVER OF SUBROGATION (To include): Is it included? G. SIGNED WORKERS' COMPENSATION EXEMPTION FORM H. NOTICE OF CANCELLATION: ADDITIONAL COVERAGE'S THAT MAYBE REQUIRED IV. PROFESSIONAL LIABILITY V POLLUTION LIABILITY V BUILDERS RISK HAVE ALL ABOVE REQUIREMENTS BEEN MET? IF NO, WHICH ITEMS NEED TO BE COMPLETED? Approved: co Agent of Alliant Insurance Services Broker of record for the City of Newport Beach 9/19/17 Date ® Yes ❑ No ® Yes ❑ No $1,000,000 ® Yes ❑ No ® N/A ❑ Yes ❑ No ❑ N/A ® Yes ❑ No ® N/A ❑ Yes ❑ No ® N/A ❑ Yes ❑ No ® N/A ❑ Yes ❑ No ® Yes ❑ No RISK MANAGEMENT APPROVAL REQUIRED (Non -admitted carrier rated less than Self Insured Retention or Deductible greater than $ ) ❑ N/A ❑ Yes ❑ No Reason for Risk Management approval/exception/waiver: General Liability carrier is non -admitted. 9/18/17 RM approved carrier. Approved: Risk Management Date * Subject to the terms of the contract. �Q 2- CERTIFICATE OF LIABILITY INSURANCE 10(20 2017 PRODUCER NUGEN & ASSOC INSURANCE SVCS INC 10722 Arrow Route #116 Rancho Cucamonga, CA 91730 909-941-0167 THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER. THIS CERTIFICATE DOES NOT AMEND, EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW. INSURERS AFFORDING COVERAGE NAIC# INSURED TIMOTHY GREENLEAF ENG. INC GREENLEAF ENGINEERING 16652 BURKE LANE HUNTINGTON BEACH, CA 92647 714 847-2700 INSURER A: FIRST SPECIALTY INSURANCE COMPANY 34916A+XV INSURER B: FINANCIAL PACIFIC INSURANCE COMPANY 31453 INSURER C: MIDWEST EMPLOYERS CASUALTY COMPANY INSURER D: NAVIGATORS SPECIALTY INS CO 136056 INSURER E: LIBERTY MUT INSUR CO; F:AIG I 0116111VII=#aci=1 THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED. NOTWITHSTANDING ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE MAY BE ISSUED OR MAY PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS, EXCLUSIONS AND CONDITIONS OF SUCH POLICIES. AGGREGATE LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS. NSR LTR ADUL NSRD I TYPEFINSURANCE POLICY NUMBER POLICY EFFECTIVE DATE MM/DDNY POLICY EXPIRATION DATE MM/DDNY LIMITS GENERAL LIABILITY EACH OCCURRENCE $1,000,000.00 X COMMERCIAL GENERAL LIABILITYPREMISES CLAIMSMADE Fx—1 OCCUR Ea oocurence $ 50,000.00 MED EXP (Any one person) $ EXCLUDED A Y IRG2000777 04 02/19/17 02/19/18 PERSONAL&ADV INJURY $1,000,000.00 XSIR DED$5000 GENERAL AGGREGATE $2,000,000.00 GEN'L AGGREGATE LIMIT APPLIES PER: PRODUCTS - COMP/OP AGG $2,000,000.00 X POLICY PRO- JECT LOC AUTOMOBILE X LIABILITY ANYAUTO COMBINED SINGLE LIMIT $1,000,000.00 (Ea accident) ALLOWNEDAUTOS SCHEDULED AUTOS BODILYINJURY $ (Per person) B Y X X HIRED AUTOS NON-OWNEDAUTOS 60467207 09/17/17 09/17/18 BODILY INJURY (Peraccident) $ NX PHY DAMAGE PROPERTY DAMAGE $ (Peraccident) DED $10 0 0 . GAR AGE LIABILITY AUTO ONLY -EA ACCIDENT $ OTHER THAN EAACC $ AUTOONLY: AGG $ ANYAUTO EXCESS/UMBRELLA LIABILITY X OCCUR O CLAIMSMADE EACH OCCURRENCE $9,000,000.00 AGGREGATE $9,000,000.00 LA17EXC8333951C 02/19/17 02/19/18 $ DX DEDUCTIBLE DED$0 $ $ RETENTION $ C WORKERS COMPENSATION AND EMPLOYERS' LIABILITY PROP ANY PROPRIETOR/PARTNER/EXECUTIVE OFFICER/MEMBER EXCLUDED? Ifyes, describeunder SPECIAL PROVISIONS below BNUWC013383502 DED$ 0 . 11/01/17 11/01/18 X I TORYLIMITS I 717ER7 E.L. EACH ACCIDENT $1,000,000.00 E.L. DISEASE - EA EMPLOYE $1, 000, 000.00 E.L. DISEASE - POLICY LIMIT 1 $1 , 000, 000 . 00 E OTHER INLAND MAR LEASE/RENT EQUI BKS(18)56481326 04/24/17 04/24/18 $1,244,203.SCHED EQUIP VALUE$100,000.DED$1000 F POLLUTION CPO13341296 03/25/17 03/25/18 $1 000 000.DED$10 000. DESCRIPTION OF OPERATIONS/ LOCATIONS/VEHICLES / EXCLUSIONS ADDED BY ENDORSEMENT/ SPECIAL PROVISIONS THE CITY OF NEWPORT BEACH,ITS OFFICERS, OFFICIALS,EMPLOYEES AND VOLUNTEERS ARE NAMED AS ADDITIONAL INSURED PER FORM PER FORM CG2033 07/04&CG2037 07/04,PRIMARY PER FORM FSIC33513 06/11,WAIVER OF SUB PER FORM CG2404 05/09 ON GL,AUTO AND W/C l;tK I II-IUA I t CITY OF NEWPORT BEACH,ITS OFFICERS, OFFICIALS,EMPLOYEES AND VOLUNTEERS 100 CIVIC CENTER DR NEWPORT BEACH CA 92660 CANCELLATION SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BVANCELLED BEFORE THE EXPIRATIO DATE THEREOF, THE 5 UING INSURER WILL ENDEAVOR TO MAIL 30 DAYS WRITTEN NOTICE TO THE C FICAT HOLDER NAMED TO THE LEFT, BUT FAILURE TO DO SO SHALL IMPOSE NO OBLI ON 0 LIABILITY OF ANY KIND UPON THE INSURER, ITS AGENTS OR REPRESENTATIV AUTHORIZED REPS ESfFT XTIVE ACORD25(2001/08) / ©ACORD CORPORATION 1988 COMMERCIAL GENERAL LIABILITY CC 20 33 07 04 THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY. ADDITIONAL INSURE® - OWNERS, LESSEES OR CONTRACTORS - AUTOMATIC STATUS WHEN REQUIRE® IN CONSTRUCTION AGREEMENT WITH YOU This endorsement modifies Insurance provided under the following: COMMERCIAL GENERAL LIABILITY COVERAGE PART A. Section If - Who is An Insured I's amended to the rendering of, or the failure to render, Include as an additional insured any person or any professional architectural, engineering organization for whom you are performing op- or surveying services, including: ertions when you and such person or organi- a. The preparing, approving, or failing to zation have agreed In writing in a contract or prepare or approve, maps, shop draw - agreement that such person or organization be Ings, opinions, reports, surveys, field added as an additional insured•on your policy. orders, change orders or drawings and Such person or organization Is an additional in- specifications; or sured only with respect to liability for "bodily "personal b. Supervisory, inspection, architectural or Injury", "property damage" or and engineering activities. advertising Injury" caused, in whole or In part, by: 2. "Bodily Injury" or "property damage" occur - 1. Your acts or omissions; or ring after: 2. The acts or omissions of those acting on a• All work, including materials, parts or equipment furnished in connection with your behalf; such work, on the project (other than in the performance of your ongoing operations service, maintenance or repairs) to be for the additional Insured. performed by or on behalf of the addi- A person's or organization's status as an addl- tlonal Insured(s) at the location of the tional insured under this endorsement ends covered operations has been com- when your operations for that additional in- pleted; or sured are completed. b. That portion of "your work" out of B. With respect to the Insurance afforded to these which the injury or damage arises has additional Insureds, the following additional ex- been put to Its intended use by any per- clusions apply: son or organization other than another contractor or subcontractor engaged in This insurance does not apply to: performing operations for a principal as 1. "Bodily injury", "property damage" or "per- a part of the same project. sonal and advertising Injury" arising out of Name of Insured: TIMOTHY GREENLEAF ENG INC Policy#: IRG2000777 04 CG 20 33 07 04 Copyright, ISO Properties, Inc., 2004 Page 1 of 1 UNIFORM Name of Insured: TIMOTHY GREENLEAF ENG INC COMMERCIAL GENERAL LIABILITY CG 20 37 07 04 Policy#: IRG2000777 04 THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY. ADDITIONAL INSURED -- OWNERS, LESSEES OR CONTRACTORS'-- COMPLETED OPERATIONS This endorsement modifies Insurance provided under the following: COMMERCIAL GENERAL LIABILITY COVERAGE PART SCHEDULE Name Of Additional insured Person(s) Or Or anization(s): Location And Description Of Completed Operations Any person or organization for For commercial construction whom you are performing operations only where required operations when you and such by written contract or person or organization have agreement. Not eligible to be agreed in writing in a provided when requested contract or agreement that additional insured, for whom such person or organization be the insured is performing added as an additional insured operations, is a general on your policy. contractor, contractor, developer, or homeowners assoc and the work is for a residential project. A residential project is one defined as including but not limited to single family dwellings, duplexes, three and four family dwellings, or complexes, townhomes and condominiums. Information required to complete this Schedule, if not shown above, will be shown in the Declarations. Section it - Who Is An Insured Is amended to in- clude as an additional Insured the person(s) or or- ganizations) shown in the Schedule, but only with respect to liability for "bodily Injury" or "property damage" caused, In whole or in part, by "your work" at the location designated and described in the schedule of this endorsement performed for that additional insured and Included in the "products -completed operations hazard". CG 20 37 07 04 Copyright, ISO Properties, Inc., 2004 Page 1 of 1 First Specialty Insurance Corporation PRIMARY AND NON-CONTRIBUTING INSURANCE (Third -Party) THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY. This endorsement modifies insurance provided under the following: COMMERCIAL GENERAL LIABILITY COVERAGE FORM OWNERS AND CONTRACTORS PROTECTIVE LIABILITY COVERAGE FORM PRODUCTS/COMPLETED OPERATIONS LIABILITY COVERAGE FORM RAILROAD PROTECTIVE LIABILITY COVERAGE FORM Section IV: Conditions, Other Insurance, and all subparts thereof, as contained in the policy is deleted in its entirety and replaced with the following condition as respects the Third Party shown below: Section IV: Conditions Other Insurance: With respect to the Third Party shown below, the insurance provided by this policy shall be primary and non-contributing insurance. Any and all other valid and collectible insurance available to such Third Party in respect of work performed by you under written contractual agreements with said Third Party for a loss covered by this policy, shall in no instance be considered as primary, co-insurance, or contributing insurance. Rather, any such other insurance shall be considered excess over and above the insurance provided by this policy. The Third Party to whom this endorsement applies is: Absence of a specifically named Third Party above means that the provisions of this endorsement apply "as required by written contractual agreement with any Third Party for whom you are performing work." All other terms and conditions of this policy shall remain unchanged. This endorsement forms a part of the policy to which attached, effective on the inception date of the policy unless otherwise stated herein. Name of Insured: TIMOTHY GREENLEAF ENG INC policy#: IRG2000777 04 FSIC 33513 0611 Includes copyrighted material of Insurance Services Office, Inc. with its permission. Page l of 1 Name of Insured: TIMOTHY GREENLEAF ENG INC COMMERCIAL GENERAL LIABILITY Policy##: IRG2000777 04 CG 24 04 05 09 WAIVER OF TRANSFER OF RIGHTS OF RECOVERY AGAINST OTHERS TO US This endorsement modifies insurance provided under the following: COMMERCIAL GENERAL LIABILITY COVERAGE PART PRODUCTS/COMPLETED OPERATIONS LIABILITY COVERAGE PART SCHEDULE Name Of Person Or Organization: Any person or organization when you and such person or organization have agreed in writing in a contract or agreement that you wi11 waive any right of recovery against such person or organization. formation required to complete this Schedule, If not shown above, will be shown In the Declarations. The following is added to Paragraph 8. Transfer Of Rights Of Recovery Against Others To Us of Sec- tion IV — Conditions: We waive any right of recovery we may have against the person or organization shown in the Schedule above because of payments we make for injury or damage arising out of your ongoing operations or "your work" done under a contract with that person or organization and included in the "products -completed operations hazard". This waiver applies only to the person or organization shown in the Schedule above. CG 24 04 05 09 © insurance Services Office, Inc., 2008 TM Page 1 of 1 Wolters Kluwer Financial Services I Uniform Forms Kame of. Insured TIMOTHY ENGINEERING INC FPICO200 (12-11) Policy#: 60467207 THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY BUSINESS AUTO ELITE COVERAGE ENDORSEMENT This endorsement modifies Insurance provided under the following: BUSINESS AUTO COVERAGE FORM With respect to coverage provided by this endorsement. the provisions of the Coverage Form apply unless modified by this endorsement. SECTION II — LIABILITY COVERAGE — Amendments WHO IS AN INSURED The following are added to WHO IS AN INSURED: BLANKET ADDITIONAL INSUREDS:. A ny person or organization with whom you agreed, pursuant to a written contract. to provide insurance such as is afforded under this Coverage Part, but only to the extent that the person or organization is held liable for your acts or omissions nvitln respect to your ownership, maintenance or use of a covered "auto:' This provision only applies if the written contract has been executed prior to the "bodily Injury" or "property damage:' This coverage shall be primary and not contributory with respect to the person or organization Included as all "insured" under this section. Any other insurance that person or orgainiz&ation has shall be excess and not contributory ivith respect to this Insurance, but this provision only applies if it is required hn the writtein contract.. Identified In this section, and is permitted by law. BROAD FORM NAMED INSURED Any business entity newly acquired or formed by you, other than a partnership; ,joint venture or limited liability company during the policy period provided you own 50% or more of the business entity and the business entity is not separately insured for Business Auto Coverage. Coverage is extended up to a inaxhmuin of 180 days following acquisition or formation of the business entity. EMPLOYEES AS INSURED — HIRED AUTOS Any "elnployee'' of yours is an "insured'' while operating an "auto- hired or rented under a contract or agreement ha that "employee's" none, with your permission, while performing duties related to the conduct of your business. EMPLOYEES AS INSURED — NONOWNED AUTOS Aub.- "employee" of yours is an "insured'' wi le using a covered "auto" you don't own, !lire or borrow in your business. COVERAGE EXTENSIONS — SUPPLEMENTARY PAYMENTS Supplementary Payments is amended as follows: We will pay tip to $3,000 for cost of ball bonds (including bonds for related traffic law violations) required because of an "accident` we cover. We do not have to furnish these bonds. We will pay all reasonable expenses incurred by the "insured'' at our request, Including actual loss of earnings tip to $300 a day. because of time off from nvork. SECTION III - PHYSICAL DAMAGE COVERAGE - Amenclments AUDIO, VISUAL, AND DATA ELECTRONIC EQUIPMENT COVERAGE EXTENSION Any reference to equipment for tine reproduction of sound also includes video and global positioning system's. EXPANDED TOWING COVERAGE In addition to tine towhng and labor limit shown in Lite Declarations for private passenger type "autos,'' we will pay up to $75 for towing and labor costs incurred each tune tine covered "auto'' is disabled, However. the labor must be performed at the place of disablement. This coverage applies only to all "auto" covered on tills policy for other physical damage coverage. EXPANDED TRANSPORTATION EXPENSE Coverage Ex --tensions — Transportation Expenses is deleted and replaced by the following: We will pay up to $CO per day to a maximum of $1,800 for temporary transportation expense Incurred by you because of the total theft of a covered "auto" of the private passenger type. We. will pay only for those covered "autos" for which you carry either Comprehensive or Specified Causes of Loss Coverage. We will pay for temporary transportation expenses incurred during the period beginning 48 hours after Includes uopyrighted material of ISO Proparties, inn, with Its permission Page 1 of 3 the theft and elndurg. regardless of the policy's expiration. Then the covered "auto" is returned to Ilse or we pay for its "loss. - EXTRA EXPENSE — STOLEN AUTOS We IN -ill pay up to X1;000 for file expense of returning a stolen covered "auto" to you. We will pay Only for those covered "autos" for wlucli you carry Comprehensive or Specified Causes of Loss Coverage, HIRED CAR PHYSICAL DAMAGE COVERAGE For purposes of this section. the term '-auto" is redefined to Mean a land motor vehicle, "trailer' or semitrailer with a gross vehicle weight under 20,000 pounds designed for travel on public roads, but does not include "mobile equipment. if Comprehensive, Specified Causes of Loss or Collision coverage is provided to all owned autos by this policy; you may extend that coverage to apply to Physical Damage "loss" to lured "autos." We will provide coverage equal to the tntitutnum coverage available to arty covered "auto" shown in the Declarations. But. the most we will pay for "loss" to a hired "aero" h1 any one "accident' is the lesser of; 1. $50.000: or 2. Tile actual cash value of the damaged or stolen property as of the time of the "loss:" or 3. The actual cost of repairing or replacing the damaged or stolen property with other property of like kind or quality A part is of like kind and quality when it is of equal or better condition than the pre -accident part. We twill use the origimanufacturer nal equipment from the manufacrer when; a) The operational safety of the vehicle inight otherwise be impaired: b) Reasonable and diligent efforts to locate tine appropriate rebuilt. afterni rket or used part have been unsuccessfill: c) A nett• original equipment part of like hind and duality is available and will result h1 the lowest overall repair cost: (1) For vehicles insured tinder policies written of or before December 31, 2003, the ve111cie has been used no more than 15;000 miles unless tine pre- accident condition warrants otherwise: or e) For vehicles insured tinder policies written on or after January 1. 2004, the vehicle has been used no more thorn 20.000 miles unless the pre -accident condition warrants otherwise. FPICO200 (12-11) For each hired "auto' our obligation to pay "loss' will be reduced by a deductible equal to the highest deductible applicable to any owned "auto" for that coverage. No deductible will be applied to "loss" caused by fire or liglttluug. We will also pay up to $500 per "accident' for loss of use of the hired "auto" if it results from an "accident' for which you are legally liable. Tile lessor must suffer an actual financial "loss" for this coverage to apply. Hired Car Physical Damage Coverage provided by this extension is excess over any other collectible hisnrat)ce, LOAN/LEASE GAP COVERAGE For purposes of this section. the term "auto" is redefined to ntearn 11 land motor vehicle. "trailer' or selrlitrailer with a gross vehicle weight tinder 20,000 pounds designed for travel on public roads, but does not include "mobile equipment." if a long-term leased or fulalnced "auto" is a covered "auto" for the Physical Dainage Coverage applicable to a total "loss." and the lessor or financial ilstit)tion is all additional insured under this Coverage Part.. we twi11 pay up to a 111a.,dmilm of $15,000 the difference between 111110unts yogi owe the lessor or financial institution under the lease or 101111 terms and the amount of insurance paid the lessor or financial institution for the total "loss" of tine covered "auto 1nhuls: any payments overdue at the tlme of the loss: any financial penalties imposed due to wear and tear. High nlileage or similar charges., any security deposits not reflunded by the lessor or financial institution: any costs for'credit life, health and accident, or disability insurance: any costs for extended warranties: or any carry-over balances from previous leases or loans. You are responsible for the deductible applicable to the "foss" for the covered "auto'`. This coverage is excess insurance over any other collectible insurance or lease provision. PERSONAL EFFECTS COVERAGE We twill pay up to $400 for "loss" to wearing apparel atld other personal effects, which are: 1. Owned by an '•iiisttred:" and 2. Inn or on your covered "auto:" Lin tine event of a total theft ..loss'' of your covered "auto." No deductibles apply to Personal Effects Coverage - RENTAL REEvOURSEMENT COVERAGE 1. We will pay for rental reinbursernent expenses incurred by you for the rental of an --auto" because of "loss" to a covered "auto," Paymeilt applies int addition to the otherwise applicable amount of each coverage you have on a covered "auto•'' No deductibles apply to Rental Reimbursement Coverage. 2 of 3 Pa Lichutes copw•ighted material of 150 Prnpertios, tnc, with its parmi.�,ion ge 2, We \\.ill pay oily for those expenses hicurred durhig the policy period beginiilng 24 hours after the "loss' and ending. regardless of the policy's expiration, with the lesser of tine following number of days: a) The number of days reasonably required to repair or replace the covered "auto." If "loss" is caused by theft, this number of days is added to the number of days it takes to locate the covered "auto' and return it to you. b) The number of days shown in the Schedule, 3. This coverage applies only to a covered "auto" for which there is Comprehensive, Specified Causes of Loss or Collision Coverage provided on this covered "auto." if there is no Collision Coverage for a covered "auto then Rental Reimbursement Coverage will not apply to a Collision loss involving that covered "auto,'' .t. Our payment is limited to the lesser of the following ainournts: a) Necessary and actual expenses incurred. b) $75 for any one day or for a nnaxinnum of 30 days, 5. This coverage does not apply while there are spare or reserve "autos" available to you for your operations. G, If "loss" results from tine total theft of a. covered "auto" of the private passenger type, we will pay tinder this coverage only that amount of your rental reimbursement expenses which is not already provided for sunder the PHYSICAL DAMAGE COVERAGE Coverage Exteusioin. 7. Coverage does not apply to any covered "auto" for which coverage is provided by endorsement form CA 9923 on this policy. WAIVER OF DEDUCTIBLE —GLASS Deductible is amended by adding the following: No deductible for a covered "auto" will apply to glass damage if the glass is repaired rather than replaced. SECTION IV — BUSINESS AUTO CONDITIONS — Amenrlments LOSS CONDITIONS FPTCO200 (12-11) subsequent investigation of such claims or "suits". under DUTIES IN THE EVENT OF ACCIDENT. CLAIM. SUIT OR LOSS, do not apply until the "accident" or "loss" is known to: 1. You, if you are an individual: 2. A partner. if you are a partnership: 3. An executive officer or insurance manager. if you are a corporation: 4. Your members, managers or insurance manager, if you are a limited liability company: 5. Your elected or appointed officials, trustees, board members, or your hnsurauce manager, if you are an organization other than a partnership. joint venture; or limited liability company. But, this section does not amend the provisions relating to notification of police, protection or examination of the property, which was subject to the "loss," BLANKET WAIVER OF SUBRO GATION Transfer Of Rights Of Recovem, Against Others To Us is deleted and replaced by the following: We waive any right of recovery nye nnay have against any person or organization to tine extent required of you by a Avrittenn contract executed prior to any "accident" or "loss," provided that the "accident" or "loss" arises out of the operations contemplated by such contract, The waiver applies only to the person or organization designated in. such contract. GENERAL CONDITIONS UNINTENTIONAL ERRORS OR OMISSIONS Concealment, Misrepresentation Or Fraud is amended by adding the following: The unintentional omission of, or unintentional error In, vry Information given by you shall not prejudice your rights under this insurance, However. this provision does not affect our right to collect additional premium or exercise our right of cancellation or non -renewal, SECTION V— DEFINITIONS - Amendment MENTAL ANGUISH KNOWLEDGE OF ACCIDENT, CLAIM, SUIT OR LOSS The definition of "bodily injury' is amended to include mental anguish resulting from any "bodily Injury." sIckness The requirements for reporting and sending claim or "suit` or disease sustained by a person. information to us, including provisions related to the Licludes copyrighted material of ISO Proparties. Inc. with its permission Page 3 of 3 ;r POLICY NUMBER: BNUWC013383502,_ / WC 04 03 06 WORKERS COMPENSATION AND EMPLOYERS LIABILITY INSURANCE POLICY (Ed. 04-84) WAIVER OF OUR RIGHT TO RECOVER FROM OTHERS ENDORSEMENT CALIFORNIA (Blanket) our payments from anyone liable for an injury covered by this policy. We will not enforce uwork against the person or organization naht We have the right to recover med In the Schedule. (Phis agreement applies only to the extent that you perform under a written contract that requires you to obtain this agreementfrom us.) You must maintain payroll records accurately segregating the remuneration of your employees while engaged in the work described in the Schedule. hall be 2.000 % of the California workers' compensation premium otherwise The additional premium for this endorsementshall due on such remuneration. Schedule State Description Any party with whom the insured agrees to waive subrogation in a written contract CA This endorsement changes the policy to which It Is attached and Is effective on the date issued unless otherwise stated. (The information below Is required only when this endorsement Is Issued subsequent to preparation of the policy.) Endorsement Effective Date: Policy Number.. BNUWC013383502 Endorsement No.: Insured Name: GREENLEAF ENGINEERING, INC DBA TIM GREENLEAF Insurance Company Midwest Emmy y Casualty ENGINEERING, INC Countersigned By ACCEPTANCE OF NON-EXCLUSIVE SOLID WASTE MANAGEMENT FRANCHISE WHEREAS, on October 10, 2017, the City Council of the City of Newport Beach ("City") adopted Ordinance No. 2017-16, entitled An Ordinance of the City Council of the City of Newport Beach, California, Granting Non -Exclusive Solid Waste Franchises to Provide Commercial Solid Waste Handling Services with the City of Newport Beach, which granted Tim Greenleaf Engineering, Inc. ("Franchisee") a non-exclusive franchise to operate, maintain, and provide commercial solid waste handling services along, across and over City's public streets, ways, alleys and places ("Franchise"); WHEREAS, pursuant to City Charter Section 1303, any Franchise granted by the City shall not become effective unless and until written acceptance is filed by Franchisee with the City Clerk within ten (10) days after adoption of the ordinance granting the franchise; and WHEREAS, Franchisee wishes to accept the Franchise granted by Ordinance No. 2017-16 by filing written acceptance thereof. NOW THEREFORE, Franchisee hereby accepts the Franchise granted by Ordinance No. 2017- 16. Franchisee agrees such acceptance operates as an abandonment of any such prior franchises, rights and privileges within City limits, as such limits shall at any time exist, and shall constitute a continuing agreement of Franchisee that if and when the City shall thereafter annex, or consolidate with, additional territory, any and all franchises, rights and privileges owned by Franchisee therein shall likewise be deemed to be abandoned within the limits of such territory. FRANCHISEE: Date: 10/13/2017 By: Name:Tim Greenleaf Title: President CITY CLERK'S VERIFICATION OF ACCEPTANCE I, Leilani Brown, City Clerk, certify that the above acceptance of the Franchise granted by Ordinance No. 2017-16 was received by me on October L, 2017, at a.m.16 H � a PO CITY OF T @= NEWPORT BEACH n City Council Staff Report October 10, 2017 Agenda Item No. 3 TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL FROM: Mike Pisani, Municipal Operations Director - 949-644-3055, mpisani@newportbeachca.gov PREPARED BY: Mike Pisani, Municipal Operations Director PHONE: 949-644-3055 TITLE: Non -Exclusive Commercial Solid Waste Franchises ABSTRACT: On September 26, 2017, the City Council held a public hearing to consider granting non- exclusive solid waste franchises to 30 haulers. Following the public hearing, the City Council introduced Ordinance 2017-16 to grant the franchises and passed it to a second reading on October 10, 2017. RECOMMENDATION: a) Determine this action is exempt from the California Environmental Quality Act (CEQA) pursuant to Sections 15060(c)(2) and 15060(c)(3) of the CEQA Guidelines because this action will not result in a physical change to the environment, directly or indirectly; and b) Conduct a second reading and adopt Ordinance No. 2017-16, An Ordinance of the City Council of the City of Newport Beach, California, Granting Non-exclusive Solid Waste Franchises to Provide Solid Waste Handling Services within the City of Newport Beach. FUNDING REQUIREMENTS: There is no fiscal impact related to this item DISCUSSION: The City of Newport Beach ("City") utilizes a non-exclusive franchise system to manage commercial solid waste collection. This system helps the City meet Assembly Bill 939, 341, and 1826 requirements and establishes a competitive commercial solid waste collection system for businesses in the City. There is no limit to the number of franchises the City Council may approve. 3-1 Non -Exclusive Commercial Solid Waste Franchises October 10, 2017 Page 2 At the September 26, 2017 meeting, the City Council conducted a public hearing to consider granting franchises to 30 entities for a seven-year term. Following the public hearing, the Council introduced Ordinance 2017-16 to grant the franchise, and passed it to a second reading. If the ordinance is approved, the non-exclusive solid waste franchises would take effect on November 9, 2017 following execution of the individual franchise agreements and approval of each firm's insurance and bonds. ENVIRONMENTAL REVIEW: Staff recommends the City Council find this action is not subject to the California Environmental Quality Act (CEQA) pursuant to Sections 15060(c)(2) (the activity will not result in a direct or reasonably foreseeable indirect physical change in the environment) and 15060(c)(3) (the activity is not a project as defined in Section 15378) of the CEQA Guidelines, California Code of Regulations, Title 14, Chapter 3, because it has no potential for resulting in physical change to the environment, directly or indirectly. NOTICING: The agenda item has been noticed according to the Brown Act (72 hours in advance of the meeting at which the City Council considers the item). ATTACHMENT: Attachment A — Ordinance No. 2017-16 3-2 ATTACHMENT A ORDINANCE NO. 2017- 16 AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF NEWPORT BEACH, CALIFORNIA, GRANTING NOW EXCLUSIVE SOLID WASTE FRANCHISES TO PROVIDE COMMERCIAL SOLID WASTE HANDLING SERVICES WITHIN THE CITY OF NEWPORT BEACH WHEREAS, the City Council of the City of Newport Beach ("City") finds and determines the collection of municipal solid waste, recyclable materials, food scraps, green waste and construction and demolition debris (collectively, "Commercial Solid Waste") generated within the City is a vital public service; WHEREAS, the City Council further finds and determines the collection, transportation, storage, transfer, processing and disposal of Commercial Solid Waste ("Commercial Solid Waste Handling Services") is a matter of great public concern because improper control of such matters subjects the City to potential liability, damages and penalties and may create a public nuisance, air pollution, fire hazard, infestation and other problems affecting the public health, safety and welfare; WHEREAS, a non-exclusive franchise to operate, maintain, and provide Commercial Solid Waste Handling Services along, across and over City's public streets, ways, alleys and places ("Franchise") promotes the public health, safety and welfare by promoting permanence and stability among those businesses wishing to provide such service and accountability to the City for compliance with current and future state mandates; WHEREAS, pursuant to Article XIII of the City Charter and Public Resources Code Sections 40059, 49300, and 49500 through 49523, the City is authorized to enter into non-exclusive franchise agreements for solid waste handling services with private solid waste haulers; WHEREAS, pursuant to City Charter Section 1301, a duly noticed public hearing was held on September 26, 2017, to consider the granting of a Franchise on the terms and conditions contained in Resolution No. 2017-60; WHEREAS, pursuant to Newport Beach Municipal Code ("NBMC") Section 12.63.080, the City Council finds, on the basis of the application, information, materials, and testimony submitted, that: • The applications submitted by Franchisees (defined below) complies with NMBC Chapter 12.63; • The Franchisees have not within the past three years: (1) had a Franchise terminated by the City; and/or (2) operated a solid waste enterprise within the City without a Franchise; 3-3 • Awarding this Franchise is in accordance with the objectives of NBMC 12.63; • Granting of this Franchise will not, under the circumstances of the particular case, materially affect adversely the health or safety of persons residing or working in the City or be materially detrimental to the public welfare or injurious to property or public improvements; and • Franchisees have sufficient experience, equipment and a recycling plan to safely comply with the requirements of the Agreement (defined below); and WHEREAS, having considered all oral and documentary evidence presented at the public hearing, the City Council has determined that the granting of this non- exclusive franchise is in the public interest. NOW THEREFORE, the City Council of the City of Newport Beach ordains as follows: Section 1: There is hereby granted to each entity listed below (individually, "Franchisee," collectively, "Franchisees") a Franchise on the terms and conditions specified in Resolution No. 2017-60: a. A2Z Recycling Services, Inc. b. Athens Services C. BC Hauling and Demolition, Inc. d. CAF Services, Inc. e. California Waste Services LLC f. Cousyn Grading & Demo, Inc. g. CR&R Incorporated h. Direct Disposal i. GB Services, Inc. j. Genesis Dispatch Inc. k. Goodwin Enterprises, Inc. I. Haul -Away Rubbish Service Co, Inc. M. Interior Removal Specialist, Inc. n. James R. Blomberg o. JD Demolition & Grading, Inc. P. Key Disposal, Inc. q. Progressive Land Clearing dba Thomas Demolition r. Praisler Hauling & Demolition, Inc. S. Rainbow Disposal Co., Inc. t. RB Holt, Inc. U. Robert's Waste and Recycling, Inc. V. Southern California Environmental, Inc. W. Tim Greenleaf Engineering Inc. X. The Lane Company 2 3-4 Y. Tight Quarters, Inc. Z. United Pacific Waste aa. Universal Bobcat & Hauling, Inc. bb. Universal Waste Systems, Inc. cc. Ware Disposal, Inc. dd. Waste Management Collection & Of OC Recycling, Inc. dba Waste Management Section 2: Franchisees' right to use City's public streets, ways, alleys and places for the purposes set forth in this ordinance, isnot exclusive and the City reserves the right to grant a similar use of public streets, ways, alleys and places to any person at any time during the term of this Franchise. Section 3: Franchisees shall comply with and shall be bound by all terms, provisions and conditions contained in the City Charter, Resolution No. 2017-60, this ordinance, NBMC Chapter 12.63 and the Model Agreement Template for Non -Exclusive Solid Waste Franchises ("Agreement"), attached hereto and hereby adopted, approved and incorporated into this ordinance by reference. Section 4: A Franchise granted under this ordinance shall take effect on November 9, 2017, and shall expire November 8, 2024, unless terminated earlier pursuant to the Agreement. Notwithstanding the effective date above, a Franchise granted by this ordinance shall not become effective unless and until the Franchisee files written acceptance of the Franchise with the City Clerk, and delivers to the City all bonds and insurance policies required to be furnished in accordance with the requirements of NBMC Chapter 12.63 and the Agreement. The written acceptance shall be in form and substance as prescribed by the City Attorney and shall operate as an acceptance of each and every term, condition and limitation contained in this ordinance, the Agreement, Article XIII of the City Charter, City Resolution No. 2017-60, and NBMC Chapter 12.63. A Franchisee shall file written acceptance of the Franchise no later than ten (10) days after the adoption of this ordinance. Section 5: During the term of the Agreement, Franchisee shall pay to City franchise fees for the privilege of providing commercial solid waste handling services in the City of Newport Beach and use of public streets, ways, alleys and places for such purposes. Franchise fee payments shall be paid quarterly and shall be computed and paid on the basis of paid receipts received by the Franchisee for all Commercial Solid Waste Handling Services provided by the Franchisee within the City. Franchise fees shall total sixteen percent (16%) of Franchisee's gross receipts as follows: (a) Franchisee shall pay to the City ten and one-half percent (10.5%) of the Franchisee's gross receipts, of which one-half of one percent (0.5%) shall be attributable to the maintenance and implementation of the City's Source Reduction and Recycling Element. (b) Franchisee shall pay to the City Environmental Liability Fund five and one-half percent (5.5%) of Franchisee's gross receipts. K 3-5 Section 6: The City Council authorizes the Mayor and City Clerk to execute the attached Model Agreement Template for Non -Exclusive Solid Waste Franchises with the Franchisees in substantially the same form as the attached. Section 7: The City Council of the City of Newport Beach finds that this ordinance is categorically exempt from the California Environmental Quality Act ("CEQA") under California Code of Regulations Section 15301 and 15308, which exempts "existing operations and facilities" and "actions by regulatory agencies for protection of the environment." Use of this CEQA exemption is appropriate because neither this ordinance nor the Agreement changes or expands existing solid waste operations and facilities within the. City. This ordinance is also consistent with the goals of California State Assembly Bills 939, 341, and 1826, The California Solid Waste Management Act as well as the objectives of the City's Source Reduction and Recycling Element. Section 8: If any section, subsection, sentence, clause or phrase of this ordinance is, for any reason, held to be invalid or unconstitutional, such decision shall not affect the validity or constitutionality of the remaining portions of this ordinance. The City Council hereby declares that it would have passed this ordinance, and each section, subsection, sentence, clause or phrase thereof, irrespective of the fact that any one or more sections, subsections, sentences, clauses, or phrases be declared invalid or unconstitutional. Section 9: The recitals provided above are true and correct and are incorporated into the substantive portion of this ordinance. Section 10: The Mayor shall sign and the City Clerk shall attest to the passage of this ordinance. The City Clerk shall cause this ordinance, or a summary thereof, to be published pursuant to City Charter Section 414. This ordinance shall be effective thirty (30) calendar days after its adoption. This ordinance was introduced at a regular meeting of the City Council of the City of Newport Beach, held on the 26th day of September, 2017, and adopted on the 10th day of October, 2017, by the following vote to -wit: AYES, COUNCILMEMBERS NOES, COUNCILMEMBERS ABSENT COUNCILMEMBERS 4 3-6 MAYO KEVIN MULDOON ATTEST: LEILANI I. BROWN, CITY CLERK APPROVED AS TO FORM: CITY ATTORNEY'S OFFICE (.11 4i - AARON C. F, CITY ATTORNEY Attachment: Model Agreement Template for Non -Exclusive Solid Waste Franchises 5 3-7 NON-EXCLUSIVE FRANCHISE AGREEMENT BETWEEN THE CITY OF NEWPORT BEACH AND FOR COMMERCIAL SOLID WASTE HANDLING SERVICES This Non-exclusive Franchise Agreement for Commercial Solid Waste Handling Services ("Agreement") is entered into this day of November, 2017 ("Effective Date") by and between the City of Newport Beach, a California municipal corporation'and charter city organized and existing under the laws of the State of California ("City"), and , a [insert name and type of business entity e.g. corporation, LLC, partnership] ("Franchisee"), whose address is and is made with reference to the following: RECITALS This Agreement is entered into on the basis of the following facts: A. Assembly Bill ("AB") 939 (the California Integrated Solid Waste Management Act of 1989, hereinafter the "Act"; Public Resources Code Sections 40000 et seq.) requires the City to divert from landfill disposal a minimum of fifty percent (50%) of all municipal solid waste generated within the City. B. In 2011, the Act was amended by AB 341 to establish a statewide goal of diverting from landfills seventy-five percent (75%) of all municipal solid waste by 2020 and required the City, on or before July 1, 2012, to provide a commercial recycling program. C. AB 341 also requires all businesses generating more than four (4) cubic yards per week of commercial municipal solid waste and all multifamily dwellings of five (5) units or more to arrange for recycling services by July 1, 2012. D. In 2014, the Act was further amended by AB 1826 to require the City, on or before January 1, 2016, to provide a diversion program for collection and diversion of food scraps and green waste. E. AB 1826 also requires commercial generators of certain quantities of food scraps and green waste to participate in a diversion program between April 1, 2016 and January 1, 2019, depending on the quantity of waste generated. Additional smaller commercial generators may be required by CalRecycle to participate on or after January 1, 2020. F. The City has received written notification from CalRecycle of its intention to enforce the deadlines for implementation of AB 341 and AB 1826 programs within the City as required by the Act; therefore, it is important that Franchisee implement and maintain successful AB 341 an AB 1826 diversion programs for all commercial customers as required by the Act, to the satisfaction of both the City and CalRecycle. 3-8 G. Pursuant to Article XIII of the City Charter, Code Chapter 12.63, and Public Resources Code Sections 40059, 49300, and 49500 through 49523, or any successor statutes, the City is authorized to enter into non-exclusive franchise agreements for commercial solid waste handling services. H. Pursuant to Code Chapter 12.63, Franchisee has filed a franchise application with the City. I. City has reviewed Franchisee's application and Franchisee has represented it is capable of providing collection services for commercial recyclable materials, food scraps, green waste, municipal solid waste, and/or construction and demolition debris in the City. J. 'Pursuant to this Agreement, City desires to authorize Franchisee to provide those non-exclusive commercial collection, transportation, delivery, and disposal or diversion services for recyclable materials, food scraps, green waste, construction and demolition debris, and municipal solid waste, as requested in Franchisee's application and for which Franchisee has demonstrated capability. K. The City Council has determined that this grant of a non-exclusive franchise is in the public interest. NOW, THEREFORE, the City and Franchisee do hereby agree as follows: SECTION 1. GRANT OF FRANCHISE A. By Ordinance No. 2017- , City has granted to Franchisee a non- exclusive Franchise authorizing Franchisee to provide Commercial Solid Waste Handling Services within all or any part of the City and to use the public streets and public right-of- ways for such purpose. Franchisee acknowledges that the Franchise is not exclusive and that the Franchise is subject to the all provisions of applicable law, including, but not limited to, Article XIII of the City Charter, Ordinance No. 2017-�, Code Chapter 12.63, and the terms and conditions of this Agreement. B. Upon the Effective Date of this Agreement, the parties agree that any prior authorization relating to the provision of Commercial Solid Waste Handling Services within all or any part of the City arising under and pursuant to any prior franchise issued to Franchisee shall be deemed to be terminated and of no further force or effect. SECTION 2. TERM OF FRANCHISE This Agreement shall commence on the Effective Date, and shall terminate on the Termination Date, unless terminated earlier as set forth herein. SECTION 3. DEFINITIONS "Act" means the California Integrated Waste Management Act of 1989 (Public Resources Code Sections 40000, et seq.) as amended and as implemented by Non-exclusive Franchise Agreement Page 2 3-9 regulations. of CalRecycle (or its successor agency) and the Air Resources Board (or its successor agency). "Alternative Daily Cover" or "ADC" means cover material other than earthen material placed on the surface of the active face of a Municipal Solid Waste Landfill at the end of each operating day to control vectors, flies, fires, odors, blowing litter and scavenging. Prior to 2014, Green Waste was included in the list of CalRecycle-approved ADC materials and use of Green Waste for this purpose was counted as "Diversion" for purposes of the Act. AB 1594, passed and signed into law in 2014, phases out the use of Green Waste as ADC effective January 1, 2020. As of January 1, 2020, no Green Waste Collected within the City shall be used as ADC and Green Waste must be diverted for processing such as mulching, Composting, as feedstock for Anaerobic Digestion or other CalRecycle-approved means that counts as Diversion. "Anaerobic Digestate" or "Digestate" means the material left at the conclusion of a biological process that decomposes organic matter in an enclosed environment with little or no oxygen, resulting in a biogas and a liquid/solid stream called Digestate (CCR Section 17896.2(a)(6)). Any Digestate created from Green Waste, Food Scraps or other organic materials Collected within the City must be further processed at a permitted Composting Facility or utilized in another manner that is fully permitted and approved by all federal, state and local regulatory agencies, including but not limited to CalRecycle, and that is considered as "Diversion" by CalRecycle for purposes of the Act. "Anaerobic Digestion" means a biological process that decomposes organic matter in an environment with little or no oxygen, resulting in a biogas and a liquid/solid stream called Anaerobic Digestate. Such activity takes place at an "Anaerobic Digestion Facility." "Bin(s)" means open top rectangular containers with wheels, with attached plastic or metal lids, used for storage of Municipal Solid Waste, Recyclable Materials, Green Waste, Food Scraps, Construction and Demolition Debris or other materials that are Collected by Franchisees or other Persons authorized to Collect and transport such materials within City. "Biomass Conversion Facility" means a facility which uses the controlled combustion of the following materials (when separated from Municipal Solid Waste) to produce electricity or heat: (1) agricultural crop residues; (2) bard, law, yard or garden clippings (Green Waste); (3) leaves, silviculture residue, tree and brush prunings; (4) wood, wood chips and wood waste; or (5) non -Recyclable pulp or non -Recyclable paper (collectively, "Biomass Conversion"). Such a facility must exclusively burn biomass materials listed herein, comply with all applicable federal, state and local air quality laws and regulations, and test its residue (ash) regularly as required by state law and regulations. If the ash is found to be hazardous, the facility must deliver that ash residue to a Class I Hazardous Waste facility. A biomass facility may burn petroleum coke or natural gas solely for the purpose of maintaining a particular temperature level, if so permitted by federal, state and local laws. Processing of any materials Collected within the City at a Biomass Conversion Facility shall only be allowed if: (a) said facility meets all of the above requirements and all other federal, state and local laws and requirements; Non-exclusive Franchise Agreement Page 3 3-10 and (b) only if such processing is allowed to count as "Diversion" by CalRecycle for purposes of the Act. "CalRecycle" means the California Department of Resources Recycling and Recovery, the successor agency to the former California Integrated Waste Management Board. "Can" means a receptacle for Municipal Solid Waste, Recyclable Materials, Green Waste, Food Scraps or wood provided by the Customer and Collected using manual (instead of automated) means of Collection. "Cart" means a plastic wheeled Container with a hinged lid used to store Municipal Solid Waste, Recyclable Materials, Green Waste or Food Scraps that is Collected by an automated or semi -automated vehicle. "CERCLA" means the Comprehensive Environmental Response, Compensation and Liability Act of 1980 (42 USC §9601 of seq.). "City Council" means the City Council of the City of Newport Beach. "City Manager," "Municipal Operations Director," "Finance Director," and "Public Works Director" mean the City Manager, Municipal Operations Director, Finance Director and Public Works Director of the City or their designee. Clean Materials Recovery Facility ("Clean MRF") means a materials recovery facility ("MRF"), or that portion of a MRF, that processes Recyclable Materials that have been separated from Municipal Solid Waste such as Single Material Recyclables and Single Stream Recyclable Materials, containing no more than the maximum Residue or contamination allowed by CalRecycle (10% Residue). "Code" means the Newport Beach Municipal Code. "Collect" or "Collection" means taking physical possession of Commercial Solid Waste, or other materials, from Customers and transporting such materials by means of a motor vehicle, or other means, to a MRF, Compost Facility, other Organics Processing Facility, Construction and Demolition Debris Processing Facility, transfer station or Landfill. "Commercial Solid Waste" means Municipal Solid Waste, Recyclable Materials, Green Waste, Food Scraps and Construction and Demolition Debris. "Commercial Solid Waste Handling Services" means the services provided by Franchisees pursuant to the terms and conditions of the Franchise and includes the Collection, transportation, storage, transfer, Disposal, Diversion and/or Processing of Municipal Solid Waste, Recyclable Materials, Green Waste, Food Scraps and/or Construction and Demolition Debris by private solid waste enterprises, and includes, without limitation, the placement of Commercial Solid Waste Containers on public property. Non-exclusive Franchise Agreement Page 4 3-11 "Commercial Premises" means all occupied real property in the City used for commercial purposes and not used for dwelling houses including, without limitation, wholesale or retail establishments, restaurants, other food establishments, bars, stores, shops, offices, mechanized manufacturing facilities, repair, research and development or professional services, sports or recreational facilities, industrial facilities, and construction and demolition sites; but shall not include property occupied by governmental agencies or schools that do not consent to their inclusion or residential premises that receive Commercial Solid Waste Handling Services. For purposes of the implementation of the Diversion programs, reporting requirements, and the percentage Diversion requirements, "Commercial Tons" shall include only Tons Collected from Commercial Premises in Carts and Bins and shall not include any Tons Collected from Multifamily Containers. Tons Collected from Multifamily Containers shall be reported separately. "Compactor" means an enclosed rectangular or square metal container containing a ramrod to condense and compress the contents, and is typically used to store Municipal Solid Waste, Green Waste, Recyclable Materials, Food Scraps or Construction and Demolition Debris. Compactors may be small (3 or 4 cubic yards) for use on smaller Commercial Premises or large (10, 20, 30 or cubic yards) for use at large Commercial Premises such as supermarkets, hotels, and large retail stores or at construction sites. A special Roll Off vehicle equipped with hooks and a winch to pull the Compactor on to the railed bed of the vehicle is used to Collect Compactors and transport them to a Landfill or to a Processing Facility. "Compost" means the product resulting from the controlled biological decomposition of organic wastes which are separated from the Municipal Solid Waste stream at the point of generation and includes Food Scraps, Green Waste, and wood that are not hazardous wastes. "Compost Facility" means a facility that processes one (1) or more of the following: Food Scraps, Green Waste, wood and food -soiled fiber such as paper napkins and paper towels, by means of outdoorwindrow composting, aerated static pile composting, covered composting, vermiculture or other outdoor composting methods or covered composting with use of either finished compost or fiber, synthetic or other type(s) of cover(s) applied to the compost piles. "Composting" means the controlled microbial degradation of organic materials yielding a safe and nuisance -free finished product called Compost, a soil amendment suitable for incorporating into topsoil and for growing plants. "Construction and Demolition Debris" means all inert material of every nature, description or kind, which has resulted from the building or demolition of a structure, pavements, sidewalks, curbs, gutters and other concrete structures, including all lumber scraps, shingles, plaster, sheetrock, packaging, rubble, brick, stone, concrete, asphalt, dirt, rock and other building material. A facility that accepts Construction and Demolition Debris for separation and further processing to prepare materials for sale or re -use (such as removing nails and screws from wood, or grinding of concrete and asphalt) and then Non-exclusive Franchise Agreement Page 5 3-12 markets the materials for re -use is a "Construction and Demolition Debris Processing Facility." "Container(s)" means any object designed and used to hold or store Municipal Solid Waste, Recyclable Materials, Food Scraps, Green Waste, or Construction and Demolition Debris to be Collected by Franchisees. Containers include Carts, Bins, open top Roll Off Boxes, and Compactors. "Contamination" means materials that are not specified for Collection in particular Containers or for processing at either a Clean MRF or a Dirty MRF, which would either interfere with such processing and/or reduce the quality and value of the Recovered Materials. For example, for purposes of Collection, metals and plastics would constitute "Contamination" if placed in a Food Scrap Container and tree trimmings would constitute "Contamination" if placed in a Recyclable Materials Containers. "Customer" means the owner, occupant, manager or user of premises at which Municipal Solid Waste, Recyclable Materials, Green Waste, Food Scraps or Construction and Demolition Debris are generated who requests and receives Commercial Solid Waste Handling Services from one or more Franchisees. In the event a business, non- residential property, Multifamily Dwelling or Commercial Premises shares Containers and/or Commercial Solid Waste Handling Services, "Customer" refers only to the entity that arranges and pays for such service(s). Dirty Materials Recovery Facility ("Dirty MRF') means a facility, or that certain portion of a facility, that processes Processable Municipal Solid Waste to separate Recyclable Materials, Green Waste, wood, Construction and Demolition Debris and other Divertable materials for sale to end users. Franchisees shall not utilize any Dirty MRF that has not been approved by City and that does not meet the standards and requirements of Public Resources Code Section 42649 and all subsequent amendments, rules, and regulations promulgated in furtherance thereof requiring a Dirty MRF to be a source -separated comparable MRF. "Disposal" means the final disposition of solid waste of Municipal Solid Waste at a permitted landfill or transformation at a permitted facility, as transformation is defined and limited by the Act other permitted solid waste disposal facility. "Diversion" or "Divert" means any combination of Recycling, sorting, Composting and other processing activities conducted at a Clean MRF, a Dirty MRF, a Compost Facility, an Anaerobic Digestion Facility, a Biomass Conversion Facility, other organics Processing Facility and a Construction and Demolition Debris Processing Facility in order to use or market the materials for re -use, remanufacture, reconstitution or otherwise return the materials to the economic marketplace and to prevent the materials from being Disposed in a Landfill. "Diversion Programs" and "Diversion Services" mean Recyclable Materials Collection, Green Waste Collection, Food Scraps Collection, Processable Municipal Solid Waste Collection, wood Collection, Construction and Demolition Debris Collection and subsequent processing of the Collected materials at a Clean MRF, a Dirty MRF, a Nonexclusive Franchise Agreement Page 6 3-13 Compost Facility, an Anaerobic Digestion Facility, a facility creating Engineered Feedstock for digestion at a wastewater treatment plant, a Biomass Conversion Facility, a Construction and Demolition Debris Processing Facility and all other programs operated by Franchisees, the City, Residents, Customers or other Persons that have the effect of Diverting Municipal Solid Waste from Landfill Disposal. Diversion Programs includes, but is not limited to, all of the programs included in the City's SRRE and all of the programs included in this Agreement. "Effective Date" means the date upon which this Agreement is effective as set forth in the first paragraph of this Agreement. "Engineered Feedstock" means a mixture of materials utilized in wastewater treatment plants to produce biogas. Engineered Feedstock may include organic materials such as Food Scraps from households and Commercial Premises or other organic materials from industries that have been pre-treated and liquefied to the required consistency the reduction or elimination of municipal solid waste, recyclable materials, food scrap, green waste, and construction and demolition debris from disposal. "Environmental Laws" means any and all present and future federal, state or local laws (whether common law, statute, rule, regulation or otherwise), permits, orders and any other requirements of Governmental Authorities relating to the environment or any "Hazardous Substance" or "Hazardous Substance Activity" as defined herein, including, without limitation, the Comprehensive Environmental Response, Compensation and Liability Act of 1980 (42 U.S.C. Sections 9601 et seq.) as amended from time to time and the applicable provisions of the California Health and Safety Code and California Water Code. "Food Scraps" means material resulting from the production, processing, preparation or cooking of food for human consumption that is separated from Municipal Solid Waste. Food scraps include surplus or unsold edible food, raw food left over after food preparation, leftover cooked food, as well as spoiled food such as vegetables and culls, and plate scrapings. Food scraps includes food -soiled paper that is mixed in with the food scraps. "Food Scraps" are Collected and transported to Food Scrap Processing Facilities which include Compost Facilities, Anaerobic Digestion Facilities, Biomass Conversion Facilities, and Wastewater Treatment Plants utilizing Engineered Feedstock. "Food Soiled Paper" means paper towels, tissue products, paper napkins, paper plates and cups, coffee filters, tea bags, waxed paper, butcher paper, paper take-out boxes and containers, greasy pizza boxes, paper bags, cardboard and wax -coated cardboard produce boxes that are Contaminated with Food Scraps. Food Soiled Paper does not include polystyrene, aluminum foil, foil -lined wrap or diapers. "Franchise" or "Franchise Agreement" means an agreement between the City and a Franchisee, granted pursuant to Agreement Section 1(A), providing Franchisee the right, for a specified period of time and pursuant to Article XIII of the City Charter, the Code, and the terms and conditions of this Agreement, to provide Commercial Solid Waste Handling Services to Commercial Premises and Multifamily Dwellings within all or any part of the City of Newport Beach and to use the public streets and public right -of - Non -exclusive Franchise Agreement Page 7 3-14 ways for such purpose. Throughout this Agreement, the terms "Agreement" and "Franchise" may be used interchangeably unless otherwise specified or the context requires otherwise. "Franchisee" means the individual or business entity identified as "Franchisee" on the signature page of this Agreement. "Franchise Fee" means the fee or assessment imposed by the City on a Franchisee, which among other things, is intended to offset the City's expenses related to the administration of the Franchise Agreement, the Integrated Waste Management Program, the maintenance and implementation of the City's Source Reduction and Recycling Element, compliance with the California Integrated Waste Management Act, to compensate the City for damages to its streets, sidewalks, curbs and gutters and other infrastructure resulting from the Franchisee's exercise of its rights under the franchise, City's reporting requirements and other related expenses. "Generator" means a resident, an owner or responsible party for a Multifamily Dwelling, Commercial Premises, or business that Generates Municipal Solid Waste, Recyclable Materials, Green Waste, Food Scraps and/or Construction and Demolition Debris as a result of its business, commercial facility or property activity. Generator may also include tenants, property managers for facilities with leased space, employees and contractors of Generator. "Generate" means to bring into existence or create, or to use, maintain, or possess an item, material or product, the result of which such creation, bringing into existence, use, maintenance or possession is that the item, material or product first becomes, or is converted transformed, evolved or deemed as Municipal Solid Waste, Recyclable Materials, Food Scraps, Green Waste or Construction and Demolition Debris. "Green Waste" means any debris that is composed of organic material or plantlike matter, which is a result of seasonal variations, landscape or gardening activities. Green Waste includes, without limitation, grass clippings, leaves, shrubs, trees, branches, stumps, flowers, plant stalks and non -hazardous wood. Green Waste does not include Food Scraps. "Gross Receipts" means all money, whether paid by cash, check, debit or credit, or other consideration collected from Customers by Franchisee that relates in any way to Commercial Solid Waste Handling Services provided by Franchisee to Customers, whether or not such services occur wholly or partially within the City, including, but not limited to, Collection, processing, removal, marketing and Diversion of Recyclable Materials, Green Waste, Food Scraps, Processable Municipal Solid Waste and Construction and Demolition Debris and Disposal of Non-Processable Municipal Solid Waste, Industrial Waste, trash, litter, as well as fuel surcharges. Gross receipts shall also include all money received by any Person other than the Franchisee, where the money was paid to the Person to avoid the Franchisee's obligations under this chapter and/or the Franchise. Gross Receipts shall not include (or if included there shall be deducted, but only to the extent they have been included) the following: (1) if any sales taxes are levied on the Franchisee's Commercial Solid Waste Handling Services in the City, the Non-exclusive Franchise Agreement Page 8 3-15 amount of State sales taxes collected in connection with Franchisee's provision of such services in the City and remitted to the State pursuant to State law; (2) the amount of documented bad debt write-offs due to uncollectible accounts for Franchisee's Commercial Solid Waste Handling Services in the City, not to exceed three percent (3%) of Gross Receipts; and (3) revenues collected for Franchisee's Commercial Solid Waste Handling Services provided to the City through a written contract. "Hazardous Waste" or "Hazardous Substance" means any (a) chemical, compound, material, mixture or substance that is now or hereinafter defined or listed in, or otherwise classified pursuant to any Environmental Law as a "hazardous substance," "hazardous material," "hazardous waste," "extremely hazardous waste," "infectious waste," "toxic waste," "toxic pollutant," or any other formulation intended to define, list or classify substances by reason of deleterious properties or effect and (b) petroleum, petroleum by-products, natural gas, natural gas liquids, liquefied natural gas, synthetic gas usable for fuel (or mixtures of natural gas in such synthetic gas), ash, Municipal Solid Waste, steam, drilling fluids, produced waters and other wastes associated with the exploration, development and production of crude oil, natural gas or geothermal resources. "Industrial Waste" means solid waste originating from mechanized manufacturing facilities, factories, refineries, construction and demolition projects, publicly operated treatment works, or solid waste placed in Commercial Solid Waste containers excluding hazardous waste. "Landfill" means a fully permitted disposal site that accepts Municipal Solid Waste that is in compliance with all Federal, State and local laws, regulations and permits conditions at the time Municipal Solid Waste is delivered and unloaded at the disposal site. "Multifamily Dwelling" mean housing projects containing or consisting of five (5) or more units, whether apartment houses, condominiums, townhomes, or mixed use projects, mixed use condominiums and rental housing, which use centralized Commercial Solid Waste Containers (including Bins, Carts and/or Compactors) for storage of Municipal Solid Waste, Recyclable Materials, Green Waste and/or Food Scraps. Multifamily Dwelling does not include single family residences, duplexes, tri-plexes or four-plexes that receive individual Collection services for Municipal Solid Waste, Recyclable Materials, Green Waste and/or Food Scraps stored in wheeled carts. For purposes of the implementation of the Diversion programs, reporting requirements, and the percentage Diversion requirements, "Commercial Tons" shall include only Tons Collected from Multifamily Dwellings in Carts, Bins, Compactors or Roll Off Boxes and shall not include any Tons Collected from Containers Collected from Commercial Premises. Tons Collected from Containers Collected from Commercial Premises shall be reported separately. "Municipal Solid Waste" means all Processable Municipal Solid Waste and all Non- Processable Municipal Solid Waste, putrescible and nonputrescible solid and semisolid , wastes, Generated in or upon, related to the occupancy of, remaining in or emanating from residential, commercial, and/or industrial premises, including, but not limited to, Non-exclusive Franchise Agreement Page 9 3-16 garbage, trash, refuse, rubbish, ashes, Industrial Waste, discarded home and industrial appliances, manure, vegetable or animal solid or semisolid wastes, and other solid and semisolid wastes. Municipal Solid Waste excludes Recyclable Materials, Green Waste, Food Scraps, Construction and Demolition Debris, liquid wastes, abandoned vehicles and hazardous, biohazardous and biomedical wastes. "Non-Processable Municipal Solid Waste" means putrescible and non-putrescible solid and semi-solid wastes Generated in or upon, related to the occupancy of, remaining or emanating from residential, Commercial, and/or industrial premises, that has been segregated or separated from Recyclable Materials, Food Scraps, Green Waste, wood and/or Construction and Demolition Debris such that the remaining constituents in the Non-Processable Municipal Solid Waste (such as broken glass, diapers, ashes, Industrial Waste, discarded Bulky Goods that cannot be re -used or dismantled for Recycling, manure, vegetable or animal solid or semi-solid wastes that remain after segregation of Food Scraps and Green Waste) cannot be diverted by reasonable economic or technologically available means. Nan-Processable Municipal Solid Waste does not include Recyclable Materials, Green Waste, Food Scraps, wood, Construction and Demolition Debris, Bulky Goods or other materials that have been segregated for Diversion; liquid wastes; low level radioactive waste regulated under California Health and Safety Code Sections 20015, etseq.; abandoned vehicles and auto parts; hazardous, biohazardous and biomedical wastes. "Person" means an individual, firm, association, organization, partnership, corporation, business trust, joint venture, limited liability company, the United States, the State of California, the County, municipality, special purpose district or any other business entity whatsoever. "Processable Municipal Solid Waste" means putrescible and non-putrescible solid and semi-solid wastes Generated in or upon, related to the occupancy of, remaining or emanating from residential, Commercial, and/or industrial premises that can be sorted at a Dirty MRF to separate any divertable materials contained therein for Recycling. Processable Municipal Solid Waste may also contain non-divertable constituents including but not limited to, broken glass, diapers, ashes, Industrial Waste, discarded Bulky Goods that cannot be re -used or dismantled for Recycling, manure, vegetable or animal solid or semi-solid wastes that remain after segregation of Food Scraps and Green Waste, which cannot be separated or sorted out of the Processable Municipal Solid Waste by reasonable economic or technologically available means. "Processing Facility/Facilities" means a facility or facilities where the following activities are conducted: sorting, cleaning, treating, Composting and reconstituting Collected materials and returning these materials to the economic mainstream in the form of raw materials for new, reused or reconstituted products which meet the quality standards of the market place (activities are herein collectively defined as "Processing"). Processing Facilities include Materials Recovery Facilities (both Clean and Dirty MRF's as defined herein), Composting Facilities, Anaerobic Digestion Facilities, Wastewater Treatment Plants, Construction and Demolition Debris sorting facilities, Biomass Conversion Facilities, and concrete and asphalt grinding facilities. Processing Facilities Non-exclusive Franchise Agreement Page 10 i 3-17 do not include waste -to -energy, thermal destruction or any type of Transformation facilities. "Recycle/Recycling" means the process of collecting, sorting, cleansing, treating, and reconstituting materials that would otherwise become Non-Processable Municipal Solid Waste, and returning them to the economic mainstream in the form of raw materials for new, reused, or reconstituted products which meet the quality standards used in the marketplace. Recycling does not include Transformation. "Recycling Facility" means a Recycling -Materials Recovery Facility (either a Clean or Dirty MRF), a.Construction and Demolition Debris sorting facility or a re -use facility that is fully permitted and operating in compliance with federal, state and local laws and regulations and includes Recycling Facilities that receive, process, and market Recyclable Materials that have been source separated by the Generator or segregated from Processable Municipal Solid Waste., such as Single -Material Recyclables and Single Stream Recyclable Materials. The Recycling Facility may be located at a landfill. "Recyclable Materials" means items in the solid waste stream which can be reused or processed into a form suitable for reuse consistent with the requirements of State law (i.e., AB 939). Recyclable materials include, but are not limited to, aluminum and tin cans, glass bottles, plastic bottles, plastic containers, newspaper, paper, printed materials, paper containers, cardboard and textiles. "Recycling Requirements" means the obligations imposed by or upon the City pursuant to State, Federal and local law, ordinance, resolution, policy, plan or program relative to Recycling all, or a portion, of the Municipal Solid Waste generated within the City including, without limitation, State mandates to Divert fifty percent (50%) of the Municipal Solid Waste Generated within the City, achievement of the per capita Diversion requirements in the Act, and the provision of City -approved Recycling services to all Customers. Recycling Requirements includes future changes to the Act that may require the City to Divert higher percentages of Municipal Solid Waste Generated within the City and/or to provide additional and/or enhanced or expanded Diversion Programs. "Residue" means the Nan-Processable Municipal Solid Waste destined for Disposal in a Landfill, which remains after processing at a Processing Facility has taken place. Residue does not include Anaerobic Digestate. The percent of Residue is calculated by dividing the weight of the Residue by the weight of the total materials delivered for processing at the facility. State law and regulations govern the allowable amount of Residue that can be Generated by a Processing Facility. Franchisees shall not utilize Processing Facilities that exceed State -required maximum Residue Generation rates -For any materials Collected within the City. "Responsible Party" means the individual or entity responsible for the Generator's management of solid waste and/or Recycling at the Generator's commercial premises, business, or non-residential property. Nonexclusive Franchise Agreement Page 11 3-18 "Roll Off Boxes" means large open top rectangular metal Containers used to store and transport Municipal Solid Waste, Recyclable Materials, Green Waste, Construction and Demolition Debris or other materials. "Single Material Recyclables' means those Recyclable Materials which satisfy each of the following requirements: (1) have been segregated from Processable Municipal Solid Waste for separate handling and Diversion by or for the Generator thereof; (2) have been further segregated or sorted so that various types of Recyclable Materials, such as glass, metals, paper, cardboard, plastics are not commingled; and (3) after such segregation, contain no more than five percent (5%) by weight (measured by each load being transported, Collected and/or Disposed) of any Residue or Contamination material which cannot be Recycled, Composted or similarly utilized, and which instead must be Disposed in a Landfill. "Single Stream Recyclable Materials" or "Single Stream Recyclables" means those Recyclable Materials collected as separated from Processable Municipal Solid Waste by the Generator or Customer and consisting of a mixture of metals, glass, plastics #1-7, and all paper from Residential Premises, Commercial Premises, Multifamily Dwellings and industrial premises. Single Stream Recyclable Materials are distinguished from Single -Material Recyclables, which consist of only a single type of material such as cardboard, separated from other Recyclable Materials. "Split Bins" means Bins that have a divider down the middle, dividing the Bin into two (2) separate compartments. Such Bins have separate locking lids for each side of the Bin that allows the Bin to be emptied one (1) side at a time. The lid on the side of the Bin that is for storage of Recyclable Materials is designed such that it allows for the placement of Recyclable Materials in the Bin without unlocking or opening the lid, and yet does not allow Recyclable Materials to spill out when the lid is closed and locked for the emptying of the MSW stored on the opposite side of the Bin. "SRRE" means the Source Reduction and Recycling Element of the Integrated Waste Management document for the City prepared and updated pursuant to the California Public Resources Code. "Term" means the finite amount of time that commences on the Effective Date and terminates on the Termination Date. "Termination Date" means November 8, 2024. "State" means the State of California. "Transformation" means incineration, pyrolysis, distillation, or biological conversion (other than Composting) to turn Municipal Solid Waste and/or organic materials into a fuel used to produce energy (example: waste -to -energy). Transformation does not include Composting, gasification, Biomass Conversion, or wet or dry Anaerobic Digestion. "Transformation Facility" the means described herein to turn Municipal Solid Waste and/or organic materials into a fuel used to produce energy. A Franchisee may only utilize Non-exclusive Franchise Agreement Page 12 3-19 Transformation for the quantity of Municipal Solid Waste allowed by CalRecycle to be counted as Diversion pursuant to the Act, as this may be changed in the future by legislation or regulations. The Act currently provides that a jurisdiction can only use Transformation to divert up to ten percent (10%) of the Municipal Solid Waste generated in the jurisdiction. Therefore, materials collected by a Franchisee and processed at a Transformation Facility shall be limited to ten percent (10%) of the Non-Processable Municipal Solid Waste Collected by the Franchisee within City. "Ton" means a short ton of two -thousand (2,000) pounds avoirdupois. SECTION 4. FRANCHISE FEES A. During the Term of this Franchise, Franchisee shall pay to City Franchise Fees for the privilege of providing Commercial Solid Waste Handling Services in the City and for the use of public streets, right-of-ways and places for such purposes. The Franchise Fees that Franchisee shall pay to the City shall total sixteen percent (16%) of the gross receipts for all Commercial Solid Waste Handling Services provided by Franchisee in the City as follows: 1, Ten and one-half percent (10.5%) of the Gross Receipts for all Commercial Solid Waste Handling Services provided by the Franchisee in the City ("Commercial Solid Waste Handling Fee"), of which one half percent (.5%) shall be attributable to the maintenance and implementation of the City's SRRE, and shall be separately accounted for, and used only for the costs stated in Public Resources Code Section 41901 or any successor provision. 2. Five and one-half percent (5.5%) of the Gross Receipts for all Commercial Solid Waste Handling Services provided by Franchisee in the City shall be paid into an Environmental Liability Fund, which shall be a separate fund established and maintained by City ("Environmental Liability Fund Fee"). Hereinafter, Environmental Liability Fund Fee and Commercial Solid Waste Handling Fee shall be collectively referred to as "Fees.". B. City and Franchisee acknowledge the potential environmental liability that may result from Commercial Solid Waste Handling Services under Federal and State environmental protection laws and the Public Resources Code. City intends to take reasonable actions to obtain protection and indemnification against future environmental liability for Commercial Solid Waste generated within the City and the activities of Franchisee under this Agreement for handling such Commercial Solid Waste. To provide protection and indemnification to City for Franchisee's Commercial Solid Waste Handling Services in the City, Franchisee agrees to collect from its customers an Environmental Liability Fund Fee for payment into the Environmental Liability Fund. The Environmental Liability Fund may be used by the City for any expense associated with this Franchise, including, but not limited to, the purchase of environmental liability insurance and paying all costs, expenses, and penalties that arise from or in any way relate to liability incurred by the City as a result of any act, negligence, or omission by the City, Franchisee, Franchisee Customer, or any of their respective officers, directors, shareholder members, volunteers, partners, employees, agents, subcontractors, suppliers, representatives or Non-exclusive Franchise Agreement Page 13 3-20 affiliates. The Environmental Liability Fund may also be used by the City to pay for any Disposal, Diversion, or Recycling activity required of the City, Franchisee, or any Generator under State, Federal or local law. The Fund shall not be commingled with or included in the City's General Fund. 1. The Fees shall be paid concurrently. 2. Compliance with this Section shall not limit Franchisee's indemnification as set forth in Agreement Section 10; however, the indemnification provisions of Agreement Section 10 shall be secondary to the Environmental Liability Fund established by this Section or any insurance purchased by the Environmental Liability Fund. C. The Fees shall be paid on a calendar quarterly basis on forms prescribed by the Finance Director. D. All payments shall be made in lawful money of the United States of America and shall be paid to City in person or by United States' mail, or overnight mail service, at the Cashier's Office located at 100 Civic Center Drive, P.O. Box 1768, Newport Beach, California, 92658, or to such other address as City may from time to time designate in writing to Franchisee. If requested by City, Franchisee shall make payments electronically (at www.newportbeachca.gov) or by wire transfer (at Franchisee's cost). Franchisee assumes all risk of loss and responsibility for late charges and delinquency rates if payments are not timely received by City regardless of the method of transmittal. E. Franchisee hereby acknowledges that the late payment of Fees or other sums due hereunder will cause City to incur costs not contemplated by this Agreement, the exact amount of which is extremely difficult to ascertain. Such costs include, but are not limited to, processing and accounting charges. Accordingly, any payment of any sum to be paid by Franchisee not paid within five (5) calendar days of its due date shall be subject to a ten percent (10%) late charge plus interest on the amount due at the rate of ten percent (10%) per annum from the date due and payable by the terms of this Agreement until the same shall be paid. City and Franchisee agree that this late charge represents a reasonable estimate of such costs and expenses and is fair compensation to City for its loss suffered by such late payment by Franchisee. F. With the exception of January 30, 2018, Fees shall be due and payable on April 30, July 30, October 30 and January 30 of each calendar year of the Term. Any dates falling on a weekend or holiday may be paid the first business day following the weekend or holiday. Fees must be received by City, not merely postmarked, by or before the aforementioned dates. G. In the event Franchisee believes that it has paid Fees in excess of the Fees due to City, Franchisee may submit a request for refund to the Finance Director on a form provided by the Finance Director. If proof of overpayment is satisfactory to the Finance Director, the Finance Director shall refund to Franchisee any overpayment. Franchisee shall not apply any overpayment as a credit against any other amounts payable to City unless specifically authorized by the Finance Director in writing. Non-exclusive Franchise Agreement Page 14 3-21 H. Each Franchise Fee and Environmental Liability Fund Fee payment shall be accompanied by a written statement described in Code Section 12.63.090, or any successor section, on a form provided by the Finance Director. No statement filed under this Section shall be conclusive as to the matters set forth in such statement, nor shall the filing of such statement preclude the City from collecting by appropriate action the sum that is actually due and payable. I. Franchisee may separately list the actual Franchise Fee rate and Environmental Liability Fund Fee rate as established by this Section, and any other fees required by this Agreement, on its invoices to its customers. In no case may the Franchise Fee rate or Environmental Liability Fund Fee rate listed by the Franchisee on the invoice exceed the actual Franchise Fee or Environmental Liability Fund Fee rates imposed by the City. SECTION 5. PERFORMANCE BOND/DEPOSIT A. Prior to the placement of any Container for Commercial Solid Waste Handling Services on public or private property, Franchisee shall, to ensure compliance with the duties and obligations imposed by the provisions of the Code, State regulation, regulations. adopted by the City Manager and this Agreement, either: (1) provide City with a cash deposit ("Deposit"); or (2) obtain, provide and maintain, at its own expense, a faithful performance bond ("Bond"). The amount of the Deposit and Bond shall be determined in the Municipal Operations Director's sole and absolute discretion. B. If Franchisee decides to provide a Bond, the Bond shall be issued by an insurance organization or surety: (1) currently authorized by the Insurance Commissioner to transact business of insurance in the State of California; (2) listed as an acceptable surety in the latest revision of the Federal Register Circular 570; and (3) .assigned a Policyholders' Rating A (or higher) and Financial Size Category Class VII (or larger) in accordance with the latest edition of Best's Key Rating Guide: Property -Casualty. The Bond shall be in the form attached hereto as Exhibit "A," which is incorporated herein by this reference. SECTION 6, DIVERSION AND DISPOSAL OF MUNICIPAL SOLID WASTE, RECYCLABLE MATERIALS, FOOD SCRAP AND GREEN WASTE A. Franchisee shall comply with all Diversion requirements imposed 'by law, ordinance, or regulation on City, Franchisee, and/or any Commercial Premises or Multifamily Dwelling. On a monthly basis, Franchisee shall Divert a minimum of fifty-five percent (55%) of all Processable Municipal Solid Waste, Recyclable Materials, Food Scraps and Green Waste Collected in the City by Franchisee. This Diversion requirement is separate from and in addition to any Diversion requirements set forth in Agreement Section 7. In the event new or additional Diversion requirements are imposed by law, ordinance or regulation on City, Franchisee, and/or any Commercial Premises or Multifamily Dwelling, the City shall have the right to require Franchisee to Divert additional Municipal Solid Waste, Recyclable Materials, Food Scraps, and/or Green Waste by providing Franchisee with thirty (30) calendar days written notice of the new Diversion requirements. Upon request of the Municipal Operations Director, Franchisee shall Non-exclusive Franchise Agreement Page 15 3-22 provide all documents and information requested by the Municipal Operations Director to prove that Franchisee has complied with this subsection, any applicable law, ordinance, regulation, or condition related to Recycling and Diversion of Municipal Solid Waste, Recyclable Materials, Food Scraps and/or Green Waste. B. Franchisee shall Dispose of all Non-processable Municipal Solid Waste collected in the City, over which Franchisee has control, in accordance with the Franchise Hauler Acknowledgment, attached hereto as Exhibit "B" and incorporated herein by reference. Franchisee hereby accepts and agrees to abide by all terms of the Franchise Hauler Acknowledgment. If, during the Term of this Agreement, the City's Waste Disposal Agreement with Orange County expires, lapses, or is terminated, the Franchise Hauler Acknowledgement shall be null and void and Franchisee shall Dispose of Municipal Solid Waste Collected in the City only by taking it to a fully permitted Orange County certified/licensed landfill or to a fully permitted licensed transfer station, which is lawfully authorized to accept that specific type of solid waste material and has been approved by the City. C. Franchisee shall not Dispose of Municipal Solid Waste, Recyclable Materials, Food Scraps, or Green Waste by depositing it on any land except a permitted facility, whether public or private, or in any river, stream or other waterway, or in any sanitary sewer or storm drainage system. Nothing in this Agreement shall be deemed or construed as authorizing Franchisee to operate a Landfill, Recycling Facility, or other solid waste disposal facility in the City. D. If Franchisee violates the terms in Agreement Section 6(A) and/or Section 6(B) above, Franchisee agrees that the City has the future right to direct that all Municipal Solid Waste, Recyclable Materials, Food Scraps, or Green Waste be delivered to a fully permitted disposal facility designated by City. This exercise of "flow control" by the City shall be made upon at least thirty (30) calendar days prior written notice to Franchisee, and written notice shall include the violation(s) prompting the City's action regarding "flow control." Failure to comply with the Recycling, Diversion, and/or Disposal requirements set forth in this Section shall be a material breach of this Agreement. E. Franchisee shall include as a condition to its contractual agreement with its Customers a provision prohibiting disposal of Hazardous Waste in any Container. F. Franchisee shall implement a load check program that includes, at a minimum, a visual check of all Containers to be emptied to protect against inclusion of Hazardous Waste and shall prepare a written record of all Hazardous Waste discovered during the process. The records shall comply with all State and Federal Hazardous Waste Regulations and shall be maintained for the length of the Term of the Franchise and for a minimum period of three (3) years, or for any longer period required by law, after the Extended Termination Date. The records shall be made available to the City in Franchisee's monthly reports submitted pursuant to Agreement Section 16. G. This Agreement does not purport to grant Franchisee or City ownership over materials that Franchisee's Customers discard for pickup by Franchisee or that Franchisee handles under this Agreement. The right to possession or ownership of those Non-exclusive Franchise Agreement Page 16 3-23 materials shall be determined in accordance with law and any agreement between Franchisee and its Customers, and not as a result of this Agreement. Parties acknowledge that City has no ownership rights in Recyclable Materials or revenue from sale thereof, except as provided in this Agreement. H. City makes no representations or warranties with respect to characterization of Municipal Solid Waste, Recyclable Materials, Food Scraps, or Green Waste within City. City expressly disclaims any representations and warranties, either express or implied, as to the merchantability or fitness of Municipal. Solid Waste, Recyclable Materials, Food Scraps, or Green Waste for any particular purpose. SECTION 7. DIVERSION OF CONSTRUCTION AND DEMOLITION DEBRIS A. On a monthly basis, Franchisee shall Divert a minimum of sixty-five percent (65%) of all Construction and Demolition Debris collected in the City by Franchisee. This Diversion requirement shall be in addition to and separate from any Diversion requirements set forth in Agreement Section 6. If new or additional Diversion requirements are imposed by law, ordinance or regulation on City, Franchisee, and/or any Commercial Premises or Multifamily Dwelling, the City shall have the right to require Franchisee to Divert additional Construction and Demolition Debris by providing Franchisee with ten (10) calendar days written notice of the new Diversion requirements. Upon request of the Municipal Operations Director, Franchisee shall provide all documents and information requested by the Municipal Operations Director to prove that Franchisee has complied with this subsection, any applicable law, ordinance, regulation, or condition related to Recycling and Diversion of Construction and Demolition Debris. B. Franchisee shall Dispose of, or oversee Disposal of, any Construction and Demolition Debris collected in the City by Franchisee, and not diverted pursuant to Agreement Section 7(A), in accordance with the Franchise Hauler Acknowledgment, attached hereto as Exhibit "B." Franchisee hereby accepts and agrees to abide by all terms of the Franchise Hauler Acknowledgment. If, during the Term of this Agreement, the City's Waste Disposal Agreement with Orange County expires, lapses or is terminated, the Franchise Hauler Acknowledgement shall be null and void and Franchisee shall Dispose of Construction and Demolition Debris collected by Franchisee in the City only by taking such debris to an Orange County certified/licensed landfill, State certified/licensed transfer station, State certified/licensed recycling facility or State certified/licensed materials recovery facility which is lawfully authorized to accept that specific type of solid waste material. Franchisee shall not dispose of Construction and Demolition Debris by depositing it on any land except a permitted facility, whether public or private, or in any river, stream or other waterway, or in any sanitary sewer or storm drainage system, C. If Franchisee violates the terms in Agreement Section 7(A) and/or Section 7(B) above, Franchisee agrees that the City has the future right to direct that Construction and Demolition Debris be delivered to a permitted processing and/or disposal facility designated by City. This exercise of "flow control" by the City shall be made upon at least thirty (30) calendar days prior written notice to Franchisee, and written notice shall include the violation(s) prompting the City's action regarding "flow control." Failure to comply with Non-exclusive Franchise Agreement Page 17 3-24 the Recycling, Diversion, and/or Disposal requirements set forth in this Section shall be a material breach of this Agreement. D. Franchisee shall include as a condition to its contractual agreement with its Customers a provision prohibiting disposal of Hazardous Waste in any Container. E. Franchisee shall implement, or require a third party to implement, a load check program that includes, at a minimum, a visual check of all Containers to be emptied to protect against inclusion of Hazardous Waste and shall prepare a written record of all Hazardous Waste discovered during the process. The records shall comply with all local, State and Federal Hazardous Waste regulations, and shall be maintained for the length of the Term of the Franchise and for a minimum period of three (3) years, or for any longer period required by law, after the Extended Termination Date. The records shall be made available to the City upon request. F. This Agreement does not purport to grant Franchisee or City ownership over materials that Franchisee's Customers discard for pickup by Franchisee or that Franchisee handles under this Agreement. The right to possession or ownership of those materials shall be determined in accordance with law and any agreement between Franchisee and its customers, and not as a result of this Agreement. Parties acknowledge that City has no ownership rights in Recyclable Materials or revenue from sale thereof, except as provided in this Agreement. G. City makes no representations or warranties with respect to characterization of Construction and Demolition Debris within City. City expressly disclaims any representations and warranties, either express or implied, as to the merchantability or fitness of Construction and Demolition Debris for any particular purpose. SECTION B. FRANCHISEE'S APPLICATION; RECORDS; AUDITS A. Application. Franchisee shall submit an application to City in substantially the same form as the template attached hereto as Exhibit "C" and incorporated herein by reference. Franchisee hereby represents and warrants that all information contained in the application submitted to City, and any information submitted by Franchisee to City supplementary thereto, is true and correct and does not contain any untrue statement of a material fact nor omit a material fact that makes a statement contained therein misleading. B. Records. Franchisee shall maintain all records relating to Franchisee's Commercial Solid Waste Handling Services provided hereunder including, but not limited to, Customer lists, billing records, accounts payable records, maps, service requests, cash receipts records, AB 939/341/1826 compliance records, tonnage reports, weight tickets and invoices from all Landfills, Processing Facilities, and Recycling Facilities utilized for Commercial Solid Waste collected within City, and all other documents and materials which reasonably relate to Franchisee's compliance with and performance of the provisions of this Agreement ("Records"), for the full Term of this Agreement and an additional period thereafter of not less than three (3) years, or any longer period required Non-exclusive Franchise Agreement Page 18 3-25 by law. Such Records shall be made available to City at Franchisee's regular place of business, but in no event outside the County of Orange. All Records shall be clearly identifiable, and Franchisee shall maintain record security sufficient to preserve records from destruction or damage from foreseeable events. Data maintained in an electronic medium shall be protected, and backed up, with a copy stored at a separate site from the original data. C. CERCLA Defense Records. City's ability to defend against CERCLA and related litigation is a matter of great importance. Franchisee shall maintain and preserve records establishing where Solid Waste Collected in the City was landfilled for the full Term of this Agreement and an additional period thereafter of not less than five (5) years, or any longer period required by law. At any time, including after the expiration of the Term, Franchisee shall provide copies of such records to City within three (3) business days of City's request. D. Inspection; Audit. On an annual or as -needed basis, City shall have the right, upon five (5) business days advance notice, to inspect Franchisee's Records and/or conduct, or to contract with an independent auditing firm to perform, an audit, at City's expense, of Franchisee's Records ("City Audit") to ensure compliance with the provisions of this Agreement. The City Audit shall include, without limitation, review and/or copying of Franchisee's cash receipts, books of account, Commercial Solid Waste tonnage reports, Collection, Disposal and Diversion records, and other related records, as well as those of each of its parent, subsidiary and/or affiliated companies, as appropriate. As part of the City Audit, Franchisee's Customer accounts and related records may be subject to review. While Franchisee will not be required to submit for copying detailed account records, such as Customer names, Franchisee shall make such records and information available for review in connection with the City Audit. The purpose of the City Audit shall be for: (a) verification of the Fees paid by Franchisee under this Agreement, and the accuracy thereof; (b) verification of the amounts of Commercial Solid Waste reported as collected, processed, diverted and disposed by Franchisee pursuant to this Agreement; (c) verification of Recycling/Diversion program implementation efforts and actions taken by Franchisee pursuant to this Agreement; and (d) verification of such other information as is reasonably deemed appropriate by the Municipal Operations Director to evaluate Franchisee's performance hereunder. E. Reimbursement. Franchisee shall reimburse City for all of City's costs in performance of an audit if, as a result of the audit, it is determined: 1. There was any intentional misrepresentation by Franchisee with respect to the amount of Fees due to the City; 2. There is a One Thousand and 00/100 Dollars ($1,000.00) or greater discrepancy in the amount of Fees due to the City. 3. There was any intentional misrepresentation by Franchisee with respect to Franchisee's Commercial Solid Waste Handling Services and/or Franchisee's Non-exclusive Franchise Agreement Page 19 3-26 handling and transportation of Commercial Solid Waste or with regard to any information provided about Diversion; or 4. There is a discrepancy (whether intentional or not) in the number of Tons of Municipal Solid Waste, Recyclable Materials, Green Waste, Foods Scraps and/or Construction and Demolition Debris Collected, Recycled, processed and/or Disposed that equals or exceeds two percent (2%). Such reimbursement shall be paid by Franchisee within ten (10) calendar days of the date City notifies Franchisee in writing that Franchisee is liable to reimburse the City in conformance with this subsection and the amount of City's audit costs. SECTION 9. INSURANCE REQUIREMENTS Without limiting Franchisee's indemnification of City, and prior to commencement of the Effective Date of this Agreement, Franchisee shall obtain, provide copies to City and maintain at its own expense during the Term of this Agreement policies of insurance of the type and amounts described in the Insurance Requirements attached hereto as Exhibit "D" and incorporated herein by reference. SECTION 10. RESPONSIBILITY FOR DAMAGES AND INJURY/INDEMNIFICATION A. Franchisee Responsibility. Franchisee shall be solely responsible for any damages caused as a result of Franchisee's acts, negligence, or omissions including, but not limited to, injuries to or death of any person or damage to public and/or private property and damages to public improvements arising from or as a result of Franchisee's Commercial Solid Waste Handling Services. B. General Indemnification. Franchisee shall indemnify, hold harmless, and defend City, and each of its past, present and future elected officials, officers, employees, agents, consultants, volunteers, affiliates, assignees, representatives, attorneys, subsidiaries, and affiliated entities and their respective successors, heirs and assigns (collectively, "Indemnified Parties") from and against any costs, expenses, damages, and losses, including actual attomeys' fees ("Losses") of any kind or character to any person or property arising directly or indirectly from or caused by any of the following: (i) any act, negligence, or omission of Franchisee or its respective officers, directors, shareholder members, partners, employees, agents, Franchisee's subcontractors, suppliers, representatives and affiliates ("Franchisee Representatives"); (ii) Franchisee's or Franchisee Representative's activities; (iii) any accident or casualty within or arising out of the performance of Franchisee's Commercial Solid Waste Handling Services under this Franchise; (iv) any violation or alleged violation of any law, ordinance or statute now or hereafter enacted arising out of commercial recyclable materials, food scraps, green waste, construction and demolition debris and/or municipal solid waste handling services performed pursuant to the Franchise; (v) the negligence or willful misconduct of Franchisee or any of Franchisee Representatives in the performance of Franchisee's Commercial Solid Waste Handling Services under the Franchise; and (vi) any breach of the Franchise. Non-exclusive Franchise Agreement Page 20 3-27 Franchisee shall not be required to indemnify, hold harmless and defend the Indemnified Parties from the sole negligence, active negligence or willful misconduct of the Indemnified Parties, Nothing in this indemnity shall be construed as authorizing any award of attorneys' fees in any action on or to enforce the terms of this Agreement. This indemnity shall apply to all clairns and liability regardless of whether any insurance policies are applicable. The policy limits do not act as a limitation upon the amount of indemnification to be provided by the Franchisee. C. Hazardous Substances, Indemnification. Franchisee shall indemnify the Indemnified Parties from and against all claims, actual damages including, but not limited to, special and consequential damages, natural resource damage, punitive damages, injuries, costs, response, remediation, and removal costs, losses, demands, debts, liens, liabilities, causes of action, suits, legal or administrative proceedings, interest, fines, charges, penalties and expenses attorneys' and expert witness fees and costs incurred in connection with defending against any of the foregoing or in enforcing this indemnity of any kind whatsoever paid, incurred or suffered by, or asserted against, the Indemnified Parties or Franchisee arising directly or indirectly from or caused by any of the following: (i) the violation of any environmental laws or the failure to clean up and mitigate the consequences of the spill or release of any Hazardous Substance; and (ii) Franchisee's activities under this Agreement concerning any Hazardous Substance at any place where Franchisee stores or disposes of solid or Hazardous Waste pursuant to this Agreement, or preceding Agreements between City and Franchisee. The foregoing indemnity is intended to operate as an agreement pursuant to the Comprehensive Environmental Response, Compensation and Liability Act (42 U.S.C. Section 9607(e)) and any amendments thereto, and California Health and Safety Code Section 25364, or any successor statute, to insure, protect, hold harmless, and indemnify City from liability. D. AB 939 Indemnification. Franchisee agrees to meet all requirements of City's. SRRE as to the portion of the Commercial Solid Waste stream Collected and/or handled by Franchisee. Franchisee agrees to protect, defend, indemnify, and hold the Indemnified Parties harmless against all fines or penalties imposed by the California Integrated Waste Management Board, CalRecycle, or other entity, arising from the failure of Franchisee to meet Act Diversion requirements with respect to the portion of the Commercial Solid Waste stream collected by Franchisee. E. AB 341 Indemnification. Franchisee agrees to meet all requirements of AB 341, specifically Public Resources Code Section 42649, or any successor statute, as to portion of the Municipal Solid Waste and Recyclable Materials stream Collected and/or handled by Franchisee. Franchisee agrees to protect, defend, indemnify, and hold the Indemnified Parties harmless against all fines or penalties imposed by the California Integrated Waste Management Board, Cal Recycle, or other entity, arising from the failure of Franchisee to meet AB 341 diversion and recycling requirements with respect to the Municipal Solid Waste and Recyclable Materials Collected and/or handled by Franchisee. F. AB 1826 Indemnification. Franchisee agrees to meet all requirements of AB 1826, specifically Public Resources Code Section 42649.82, or any successor statute, as to the portion of the Food Scraps and Green Waste stream Collected and/or handled by Franchisee. Franchisee agrees to protect, defend, indemnify, and hold the Indemnified Non-exclusive Franchise Agreement Page 21 3-28 Parties harmless against all fines or penalties imposed by the California Integrated Waste Management Board, CalRecycle, or other entity, arising from the failure of Franchisee to meet AB 1826 recycling requirements with respect to the Food Scraps and Green Waste collected and/or handled by Franchisee. G. Notice. City agrees to give notice to Franchisee when the City receives a claim for damages or other liability for which Franchisee has provided indemnification under this Section. SECTION 11. COMMERCIAL SOLID WASTE COLLECTION SERVICES A. Authorized Collection Services. Franchisee may only provide those Commercial Solid Waste Handling Services designated in Franchisee's application, or any amended application, and for which Franchisee has demonstrated compliance with Code Section 12.63.050, or any successor section. B. Frequency of Collection. Franchisee shall collect all Commercial Solid Waste from Commercial Premises and Multifamily Dwellings on a schedule to be agreed upon between Franchisee and its Customers, subject to the restrictions set forth in Agreement Section 11(C); provided, however, that such schedule complies with Code Subsection 6.04.140 and does not permit the accumulation of Commercial Solid Waste in quantities that are unreasonable or detrimental to the public health or safety. Requests for Collection from Customer Premises with overflowing Containers, or from Customer Premises where there have been missed pickups, shall be serviced within twenty-four (24) hours of any such request by the Customer or City. Should City receive a Customer complaint related to or arising from Franchisee's failure to collect Commercial Solid Waste as provided herein, Franchisee's Collection schedule shall be submitted to the City for review. C. Hours and Days of Collections. 1. Franchisee shall not collect Commercial Solid Waste in any area of the City after 6:30 p.m. and prior to 5:00 a.m. 2. Franchisee shall not Collect Commercial Solid Waste from any Commercial Premises or Multifamily Dwelling located within five hundred (500) feet of an occupied residential premise, motel or hotel, nor shall any of Franchisee's Collection vehicles be operated in any residential areas of the City except between the hours of 7:00 a.m. and 6:30 p.m., Monday through Friday, nor on any Saturday or Sunday, except between the hours of 8:00 a.m. and 6:00 p.m. 3. Franchisee shall neither operate its Collection vehicles nor Collect Commercial Solid Waste from any Commercial Premises, governmental facility, or Multifamily Dwelling located within five hundred (500) feet of a school, community center, church or other educational facility between the hours of 7:30 a.m. and 9:00 a.m. or 1:00 p.m. and 3:00 p.m., Monday through Friday. The limitations in Agreement Section 11(C)(3) notwithstanding, Franchisee's operation of Collection vehicles on East and West Non-exclusive Franchise Agreement Page 22 3-29 Coast Highway, Jamboree Road, MacArthur Boulevard, San Joaquin Hills Road and Newport Coast Drive shall not be prohibited or limited under this Agreement. 4. Commercial Solid Waste collection on Sundays shall be limited to Food Scraps and Municipal Solid Waste from Commercial Premises, which require Collection every day due to public health and safety concerns. 5. At Franchisee's request, the City shall provide maps illustrating the geographic limitations placed on Franchisee's Collection services pursuant to Agreement Section 11(C)(3) ("Maps"). City expressly disclaims any liability related to or arising from the accuracy of any Maps provided by City. City may update the Maps as needed, and Franchisee's failure to request or secure the Maps, or any updated Maps, shall not relieve Franchisee of any obligations under this Agreement. D. Containers. Franchisee shall provide the appropriate sized Containers to each Customer for storage of the Commercial Solid Waste Collected by Franchisee. Containers provided by Franchisee must be identified with Franchisee's name and be in the color identified by Franchisee in Franchisee's application. SECTION 12. AB 341 RECYCLING PROGRAM FOR COMMERCIAL PREMISES AND MULTIFAMILY DWELLINGS A. Recycling Program. The Act requires all owners or responsible parties of Commercial Premises generating four (4) or more cubic yards of Commercial Solid Waste per week and all Multifamily Dwellings ("AB 341 Generator") to arrange for Recycling services by July 1, 2012. The Act requires all cities to provide a commercial Recycling program for AB 341 Generators on or before July 1, 2012. Franchisee acknowledges these requirements and agrees that, subject to the restrictions contained in Agreement Section 11(A), for all AB 341 Generators that contract with or pay Franchisee to haul Municipal Solid Waste and/or Recyclable Materials, Franchisee shall implement a recycling program as described and set forth in Exhibit "E," which is incorporated herein by reference ("Recycling Program"). B. Act Compliance. The parties agree that provision of a Recycling Program, as set forth in Exhibit "E," is of paramount importance for the City to comply with the Act. The parties further agree that providing high quality Recycling services, public education and technical assistance to AB 341 Generators to obtain their participation in AB 341 requirements is essential for Franchisee to implement an effective Recycling Program for AB 341 Generators. The parties acknowledge that achievement of this requirement is integral to the City's compliance with the Act and that failure to implement said Recycling Program may cause City to be non-compliant with the Act and be grounds for termination of this Agreement. C. Program Implementation. Within ninety (90) calendar days of either: (1) the Effective Date of this Agreement; or (2) the date an AB 341 Generator initiates service with Franchisee to collect ortransport Municipal Solid Waste and/or Recyclable Materials, whichever is earlier, Franchisee shall implement a Recycling Program for said AB 341 Nonexclusive Franchise Agreement Page 23 3-30 Generator. For purposes of this Section, Franchisee shall be found to have "implemented" a Recycling Program only if Franchisee completes all of the following: 1. Franchisee has contacted the AB 341 Generator and explained the requirements in the Act for the AB 341 Generator to have in place a Recycling Program as of July 1, 2012. 2. Franchisee has provided the appropriate type(s) and size(s) of Containers to the AB 341 Generator's premises. 3. Franchisee is collecting the Recyclable Materials from the AB 341 Generator at the frequency of collection needed to adequately service the AB 341 Generator and, at a minimum, is performing services consistent with Agreement Section 11(B). 4. Franchisee has provided public education and training materials to the AB 341 Generator explaining: (a) the requirements of the Act; (b) the operation of the Recycling Program; and (c) what materials may be placed in the Recycling container(s). 5. Franchisee has responded to the AB 341 Generator's questions and to any complaints and has successfully resolved all questions and complaints. D. Waiver. Franchisee may obtain a waiver from the City with regard to implementation of a Recycling Program for a specific AB 341 Generator in the event said generator is already diverting one hundred percent (100%) of Recyclable Materials generated by the AB 341 Generator using one or more of the following methods: 1. The AB 341 Generator is donating or selling its Recyclable Materials to a third party. 2. The AB 341 Generator is self -hauling its Recyclable Materials to a recycler or to a Processing Facility. 3. The AB 341 Generator has subscribed to an AB 341 -compliant Diversion program through another Franchise hauler in the City. If AB 341 Generator uses any of the aforementioned diversion methods Franchisee shall submit a written statement to City describing the type(s) of Recyclable Materials being diverted by the AB 341 Generator, the number and type of containers being used, the method of Collection and the ultimate destination to which the Recyclable Materials are being delivered. Upon the City's verification that the information submitted by Franchisee meets the requirements for a waiver, the City may grant such waiver. SECTION 13. AB 1826 FOOD SCRAP DIVERSION PROGRAM FOR COMMERCIAL_ PREMISES A. Food Scrap Diversion Program. The Act requires, on or after January 1, 2017, all owners and responsible parties of Commercial Premises generating four (4) or Non-exclusive Franchise Agreement Page 24 3-31 more cubic yards of Food Scraps and/or Green Waste per week to arrange for Recycling services for those materials. The Act further requires, on or after January 1, 2019, all owners and responsible parties of Commercial Premises generating four (4) or more cubic yards of Commercial Solid Waste per week to arrange for Recycling services for Food Scraps and Green Waste (hereinafter, owners and responsible parties of Commercial Premises subject to either the 2017 or 2019 Act requirements are collectively referred to as "Food Scrap Generators"). Finally, the Act requires cities to provide a commercial Recycling program for Food Scrap Generators. Franchisee acknowledges these requirements and agrees that, subject to the restrictions contained in Agreement Section 11(A), for all Food Scrap Generators subject to AB 1826 that contract with or pay Franchisee to haul Food Scraps, Franchisee shall implement a diversion program as described and set forth in Exhibit °F" and incorporated herein by reference ("Food Scrap Diversion Program"). The City will maintain a listing of all Food Scrap Generators subject to AB 1826. City expressly disclaims any liability related to or arising from the accuracy of any lists provided by City. Franchisee's failure to request or secure the list on an annual basis shall not relieve Franchisee of any obligations under this Section. B. Act Compliance. The parties agree that provision of a Food Scrap Diversion program as described in Exhibit "F" is of paramount importance for the City to comply with the Act. The parties further agree that providing high quality Diversion services, public education, and technical assistance to Food Scrap Generators to obtain their participation in AB 1826 Diversion requirements is essential for Franchisee to implement an effective Food Scrap Diversion Program for all Food Scrap Generators. The parties acknowledge that achievement of this requirement is integral to the City's compliance with the Act and that failure to implement said Diversion program may cause City to be non-compliant with the Act. C. Program Implementation. Within ninety (90) calendar days of either: (1) the Effective Date of this Agreement; or (2) the date a Food Scrap Generator subject to AB 1826 initiates service with Franchisee to Collect and/or transport Food Scraps, whichever is earlier, Franchisee shall implement a Food Scrap Diversion Program for said Food Scrap Generator. For purposes of this Section, Franchisee shall be found to have "implemented" a Food Scrap Diversion Program for a Food Scrap Generator only if Franchisee completes all of the following: 1. Franchisee has contacted the Food Scrap Generator and explained the requirements in the Act for the Food Scrap Generator. 2. Franchisee has provided the appropriate type(s) and size(s) of Containers to the Food Scrap Generator's premises as set forth in Exhibit "F," 3. Franchisee is collecting Food Scraps from the Food Scrap Generator at the frequency of collection needed to adequately service the Food Scrap Generator and, at a minimum, is performing services consistent with Section 11.B. 4. Franchisee has provided public education and training materials to any Food Scrap Generators explaining (a) the requirements of the Act, (b) the operation Non-exclusive Franchise Agreement Page 25 3-32 of the Food Scrap Diversion Program, and (c) what materials may be placed in the Food Scrap Container(s). 5. Franchisee has responded to the Customer's questions and complaints and has successfully resolved all questions and complaints. D. Waiver. Franchisee may obtain a waiver from the City with regard to implementation of a Food Scrap Diversion Program for a specific Food Scrap Generator if said generator is diverting one hundred percent (100%) of Food Scraps being generated using one or more of the following methods: 1. The Food Scrap Generator is donating or selling its Food Scraps to a third party. 2. The Food Scrap Generator is self -hauling its Food Scraps to a recycler or to a Processing Facility. 3, The Food Scrap Generator is processing the Food Scraps onsite. 4. The Food Scrap Generator is donating surplus edible Food Scraps for human consumption. 5. The Food Scrap Generator has subscribed to an AB 1826 -compliant Food Scrap Recycling Program through another Franchise hauler in the City. If the Food Scrap Generator uses any of the aforementioned diversion methods and is diverting one hundred percent (100%) of Food Scraps being generated, Franchisee shall submit a written statement to City describing the type(s) of Food Scraps being Diverted by the Food Scrap Generator, the number and type of containers being used, the method of collection and the ultimate destination to which the recyclable materials are being delivered. Upon the City's verification that the information submitted by Franchisee meets the requirements for a waiver, the City shall grant such waiver. SECTION 14. AB 1826 COMMERCIAL. AND MULTIFAMILY GREEN WASTE COLLECTION PROGRAM. A. Act Requirements. The Act requires all Commercial Premises generating four (4) or more cubic yards of Food Scraps and/or Green Waste to arrange for Recycling services for Green Waste on or before January 1, 2017. B. Green Waste Program. Franchisee acknowledges these requirements and agrees, subject to the restrictions contained in Agreement Section 11(A), that Franchisee shall provide the following Green Waste collection program at all Commercial Premises and Multifamily Dwellings that generate Green Waste and do not have Green Waste hauled away by a landscape or gardening service: Non-exclusive Franchise Agreement 4�T Page 26 3-33 1. Containers to Be Provided. Franchisee shall provide appropriate sized Containers to each Commercial Premises and Multifamily Dwelling for storage of all Green Waste generated by the Customer on a weekly basis. 2. Weekly Service. Not less than once per week, and more frequently as required to collect all of the Green Waste generated by each Commercial Premises and Multifamily Dwelling, Franchisee shall Collect all such materials that have been placed for Collection in Containers for each designated material. 3. Waiver. If a Commercial Premises or Multifamily Dwelling has all Green Waste hauled away by a landscaper or gardening service or if another Franchisee is collecting and diverting one hundred percent (100%) of Green Waste from the Commercial Premises or Multifamily Dwelling, Franchisee is not required to provide Green Waste Collection services to that property. In such event, Franchisee shall obtain a signed self -reporting form stating the name, address, telephone number, business license number, and contact person for the landscaper, gardening service(s), or Franchisee providing such service. The form shall include the Processing Facility where the Green Waste is delivered, which must be a City -approved Processing Facility. SECTION 15. CONSTRUCTION AND DEMOLITION DEBRIS RECYCLING PROGRAM A. Act Requirements. The 2016 California Green Building Standards Code requires sixty-five percent (65%) Diversion of Construction and Demolition Debris. B. Construction and Demolition Debris Recycling Program. Franchisee acknowledges these requirements and agrees that, subject to the restrictions contained in Agreement Section 11(A), for all Customers that contract with or pay Franchisee to haul Construction and Demolition Debris, Franchisee shall implement a diversion program as described and set forth in Exhibit "G" and incorporated herein by reference. SECTION 16. REPORTING REQUIREMENTS. A. Monthly Reports. Franchisee shall submit monthly reports to the Municipal Operations Director identifying, at a minimum, the following information: 1. The address of each facility serviced and the precise services provided to each address including, but not limited to, Commercial Solid Waste Handling Services broken down by type (i.e., Recyclable Materials, Food Scraps, Green Waste, Construction and Demolition Debris, and/or Municipal Solid Waste) presented in an Excel format acceptable to the City; 2. The frequency of Commercial Solid Waste Handling Services provided to each address; 3. The number of containers by type and size at each address and the frequency of collection; Non-exclusive Franchise Agreement Page 27 3-34 4. The tonnage, by material category, collected per month by volume in cubic yards (Tons) and measured by the size of applicable Containers of and removed by them within the City during the previous month; 5. The location of the Landfill and/or Recycling Facility to which the Municipal Solid Waste, Recyclable Materials, Green Waste and/or Food Scraps were taken during the previous month and the diversion rate achieved if the facility accepts mixed waste mate rials/Processable Municipal Solid Waste; 6. AB 341 and AB 1826 compliance information by Generators, including the total number of AB 341 and AB 1826 accounts serviced by the Franchisee, the total number of accounts that have a Recycling Program, Food Scrap Diversion Program, and/or Green Waste Recycling provided by the Franchisee, the number of Customers with Franchisee -documented internal Diversion programs that comply with AB 1826 and AB 341, the number of Customers that comply with AB 341 or AB 1826 via a Clean or Dirty MRF, the number of Customers that do not have an AB 341 or AB 1826 - compliant Diversion program, and a description of outreach efforts for non-compliant Generators; 7. A narrative summary of all outreach efforts to implement AB 341 and AB 1826 Diversion programs at non-compliant Generators' premises including dates of interactions, a description of the nature of the interactions, Generator objections, a log of all new Recycling of Food Scrap Container deliveries during the reporting period, a log of contamination incidents; 8. Such other tonnage or other information as requested by the Municipal Operations Director including weight tickets and Recycling records. B. Form of Report. Monthly reports shall be prepared in an Excel template, or other format approved in writing by the Municipal Operations Director. C. Report Due Date. Each monthly report shall be submitted on or before the 25th day of the month following the end of the month. D. Submission_ Franchisee shall submit each monthly report to: Municipal Operations Director City of Newport Beach P.O. Box 1768 100 Civic Center Dr. Newport Beach, CA 92658 E. No Waiver. Franchisee shall file the monthly report required under Agreement Section 16(A) regardless of whether Franchisee has provided Commercial Solid Waste Handling Services in the City during the reported month. F. Compliance. Franchisee shall comply with all Recycling and Diversion requirements imposed by law, ordinance, or regulation on the City. At the end of each Non-exclusive Franchise Agreement Page 28 3-35 calendar month, reports will be evaluated for compliance with. City Recycling and Diversion requirements. Failure to comply with City Recycling and Diversion requirements shall be a material breach of this Agreement. SECTION 17. HAULER REPRESENTATIVE On or before January 1, 2018, Franchisee shall designate, at a minimum, one (1) individual employed by Franchisee to assist City in implementing the Agreement's Recycling and Diversion programs, as applicable, and to manage all reporting requirements set forth herein ("Hauler Representative"). Franchisee shall provide City with the Hauler Representative's contact information, and the Hauler Representative shall be the primary contact for the City. The Hauler Representative shall respond to any City questions or concerns relating to or arising from Franchisee's performance under this Agreement within five (5) business days of City submitting such question or concern. SECTION 18. VEHICLES AND EQUIPMENT A. Containers. Any and all Containers provided to Customers for storage, Collection or transportation of Municipal Solid Waste, Recyclable Materials, Food Scraps, and/or Green Waste shall meet the requirements designated by the Municipal Operations Director as well as State of California minimum standards for solid waste handling established under Public Resources Code Section 43020 and applicable health requirements, or any successor statutes or requirements. B. Identification. All Containers and vehicles used by Franchisee in the performance' of Commercial Solid Waste Handling Services shall be marked with Franchisee's name in letters which are not less than four inches (4') high and which are easily read by the general public. C. Equipment. 1. Maintenance; Records. Franchisee shall, at all times, provide such number of vehicles and such equipment as will be adequate for the Commercial Solid Waste Handling Services, which it is authorized to provide under this Agreement. All vehicles utilized by Franchisee in the performance of this Agreement shall be registered with the California Department of Motor Vehicles. All vehicles must pass annual "BIT" and brake inspections and Franchisee shall provide evidence of such to the Municipal Operations Department upon request. Upon request by the City, Franchisee shall provide records from the most recent California Highway Patrol biennial inspection of the terminal(s) responsible for the maintenance and repair of equipment used in the City. All vehicles shall be properly maintained, kept clean and in good repair, and shall be uniformly painted. All Commercial Solid Waste Containers used in the performance of this Agreement shall be kept clean and in good repair and shall be uniformly painted in the color identified by Franchisee in Franchisee's application. All equipment required by City in the performance of this Agreement, including vehicle mirrors and the collision avoidance system, may be subject to inspection by the City upon twenty-four (24) hours' notice by the Municipal Operations Director. All drivers employed by Franchisee and operating equipment in the City shall be properly licensed for the class of vehicle they Non-exclusive Franchise Agreement Page 29 3-36 drive, enrolled in the Department of Motor Vehicles Employee Pull Notice (EPN) program, and abide by all State and federal regulations for driver hours and alcohol and controlled substances testing. 2. Solid Waste Retention, Each vehicle shall be so constructed and used in a manner so that no rubbish, garbage, debris; oil, grease or other material will blow, fall, or leak out of the vehicle. All Commercial Solid Waste shall be transported by means of vehicles that are covered in such a manner as to securely contain all solid waste and to prevent such solid waste from projecting, blowing, falling or leaking out of the vehicles. Any Commercial Solid Waste dropped or spilled in Collection, transfer or transportation shall be immediately cleaned up by Franchisee, A broom and a shovel shall be carded at all times on each vehicle for this purpose. In addition, each Collection vehicle shall be equipped with trash bags, masking tape and notice of non -Collection tags for the purpose of separating Hazardous Waste for return to the Generator, A communications device such as a two-way radio or a cellular telephone shall also be maintained on each vehicle at all times. 3. Vehicle Mirrors. On or before January 1, 2018, all equipment used by Franchisee for Commercial Solid Waste Handling Services in the City with a gross vehicle weight rating of twenty-six thousand (26,000) pounds or more shall be equipped with a convex mirror on the front of each vehicle, adjusted so as to enable the operator to see all points on an imaginary horizontal line which: (a) Is three feet (3) above the road; (b) Is one foot (1') directly forward from the midpoint of the front of the vehicles; and (c) Extends the full width of the front of the vehicle. 4. Collision Avoidance System. On or before January 1, 2019, all vehicles operated by Franchisee in the City shall have a collision avoidance system installed that is capable of detecting adjacent pedestrians and bicyclists. City reserves the right to inspect Franchisee's vehicles, at any time, to confirm that the installation and capability of Franchisee's collision avoidance system is consistent with Agreement Section 18(C)(4). 5. Storage. Franchisee shall not store any vehicle or equipment on any public street, public right-of-way or other public property in the City without obtaining a Temporary Street Closure Permit from the Public Works Department and prior written consent of the Municipal Operations Director. 6. Compliance. Should the Municipal Operations Director at any time give written notification to Franchisee that any vehicle does not comply with the standards hereunder, the vehicle shall be promptly removed from service by Franchisee and not used again until inspected and authorized in writing by the Municipal Operations Director. Non-exclusive Franchise Agreement Page 30 3-37 7. Public Works Standards. Placement of Containers and equipment shall be in accordance with the standards set by the Public Works Director. SECTION 19. ABANDONED CONTAINERS A. If Franchisee abandons any Commercial Solid Waste Container within the City, the City may remove the Container and/or dispose of the contents of the Container and recover its cost from Franchisee. B. For the purposes of this Section, "abandons" includes: 1. Franchisee's failure to remove the Container within the time period specified by the City Council upon termination of the Franchise pursuant to Section 12.63.140 of the Code, or any successor statute; 2. Franchisee's failure to remove the Container within ten (10) calendar days after the expiration or termination of the Franchise granted to Franchisee, except in the case where Franchisee has been granted an extension of the Term of said Franchise or Franchisee has been granted a subsequent franchise authorizing Franchisee to Collect and transport the type or types of Commercial Solid Waste for which the Container was used pursuant to this Agreement; or 3. Franchisee's failure to collect the Container and dispose of the contents of the Container within five (5) calendar days after the Municipal Operations Director issues written notice to Franchisee to dispose of the contents. 4. Franchisee's failure to replace a Container that fails to comply with the City's aesthetic standards, as set forth in this Agreement, within five (5) calendar days of receiving written notice from the Municipal Operations Director of non-compliance. SECTION 20. COMPLIANCE WITH LAW A. Franchisee shall perform all Commercial Solid Waste Handling Services in accordance with applicable federal, state, and local law, including, but not limited to, Code Chapter 12.63, Article XIII of the City Charter, Ordinance No. 2017-_ and the terms and conditions of this Agreement. B. During the Term of this Agreement, Franchisee and City agree that the City's ordinances may be amended as provided herein, as provided in Chapter 12.63 or as necessary to permit the City to comply with changes to federal, state, and local legislative regulatory requirements, which may affect or alter City's obligations or requirements for Commercial Solid Waste management. Franchisee agrees to comply with any such amendment of the City's ordinances without the need to amend this Agreement. Non-exclusive Franchise Agreement Page 31 3-38 SECTION 21. PERMITS AND LICENSES A. Applicable Permits and Licenses. Franchisee shall obtain and maintain; at Franchisee's sole cost and expense, all permits and licenses applicable to Franchisee's operations under the Franchise, which are required of Franchisee by any governmental agency. Payment of the Franchise Fee and Environmental Liability Fund Fee shall be in addition to any permit or license fees or business tax prescribed by the City for the same period. B. Orange County Landfill Account. Franchisee shall obtain and maintain for the Term of this Agreement an account with the Orange County landfills. If Franchisee disposes of any Commercial Solid Waste collected from the City at an Orange County landfill, the Franchisee shall utilize its landfill account only (no "cash" disposal). SECTION 22, PUBLIC EDUCATION ACTIVITIES A. Informational Materials. Each year during the Term of this Agreement, Franchisee shall transmit informational materials to all Customers and to such prospective Customers as it may select, informing them of the Commercial Solid Waste Handling Services that are required of them under State law as well as Hazardous Waste Disposal requirements. B. Customer Compliance Notification. Each year during the Term of this Agreement, Franchisee shall notify all AB 1826 and AB 341 accounts for which it provides Commercial Solid Waste Collection Services of the Customer's compliance obligations. C. Submission to City of Informational Materials. Franchisee's informational materials shall be provided to the Municipal Operations Director upon request if, in City's sole and absolute discretion, such informational materials are necessary for City to comply with State reporting requirements. SECTION 23. SUSPENSION; TERMINATION; APPEAL A. City's Right to Suspend or Terminate. The Franchise granted to Franchisee may be suspended or terminated by the City Council pursuant to Code Section 12.63.140, or any successor statute. B. Notice of Default. Should the Municipal Operations Director determine Franchisee has defaulted in the performance of any obligation hereunder, the Municipal Operations Director may provide written notice to Franchisee of such default ("Default Notice"). The Municipal Operations Director may, in the Default Notice, set a reasonable time within which Franchisee may cure such default. Unless a longer or shorter time is otherwise specified by the Municipal Operations Director, a reasonable time for correction shall be thirty (30) calendar days from the date the Default Notice is issued. C. Municipal Operations Director Review. Within ten (10) business days of the Municipal Operations Director's issuance of the Default Notice, at the request of Franchisee, the Municipal Operations Director will hold a meeting with Franchisee to Non-exclusive Franchise Franchise Agreement Page 32 3-39 discuss the failure(s) described in the Default Notice. Such request shall immediately suspend any deadlines set forth in Agreement Section 23(B) or the Default Notice. During Franchisee's meeting with the Municipal Operations Director, Franchisee shall have an opportunity to present evidence explaining or justifying the failures described in the Default Notice. After the meeting, the Municipal Operations Director will make a determination, in his or her sole discretion, as to whether to uphold the Default Notice, or any portion thereof, and shall issue such determination within five (5) business days of the meeting. Franchisee will have thirty (30) calendar days from the date the Municipal Operations Director's determination is issued to cure the upheld Default Notice or portion thereof. D. Appeal to City Manager. Within five (5) business days of the Municipal Operations Director issuing his/her determination, Franchisee may appeal the Municipal Operation Director's determination, in writing, to the City Manager. City's receipt of such appeal request shall immediately suspend any deadlines set forth in Agreement Section 23(C). The City Manager will hold a meeting with Franchisee no more than ten (10) business days after receiving Franchisee's written appeal request. After the meeting, the City Manager will make a determination, in his or her sole discretion, as to whether to uphold the Default Notice, or any portion thereof, and shall issue such determination within five (5) business days of the meeting. The decision of the City Manager shall be final. Franchisee will have thirty (30) calendar days from the date the City Manager's determination is issued to cure the upheld Default Notice or any portion thereof. F. Failure to Timely Cure. If Franchisee fails to timely cure a Default Notice, or any portion thereof, then the applicable liquidated damages set forth in Agreement Section 24 shall be final and conclusive and the amount(s) shall be immediately due and payable. Franchisee's failure to timely cure three (3) Default Notices shall be a material breach of this Agreement. G. Audit Findings. Notwithstanding anything to the contrary, if Franchisee disagrees with City's audit findings, then Franchisee may, within ten (10) business days after service of the audit finding, appeal to the City Manager specifying the basis for its disagreement with City's audit findings. If Franchisee fails to timely request such an appeal, then the discrepancy determinations shall be final and conclusive and the violation shall be deemed established_ H. Termination Without Right to Cure. City shall have the right of suspension or termination as a result of Franchisee's failure to timely cure any deficiency or default as set forth above, which right is in addition to City's right to terminate this Agreement without affording Franchisee an opportunity to cure in circumstances where Franchisee is determined to have materially breached this Agreement. Notwithstanding anything to the contrary, in the event of any material breach hereof, City shall have the right to terminate this Agreement without affording Franchisee the right to cure including, without limitation, any action, inaction or circumstance defined herein as a material breach and/or under any of the following circumstances which are hereby defined as material breaches: If Franchisee conducts, or attempts to conduct, fraud upon City. Non-exclusive Franchise Agreement Page 33 3-40 2. If Franchisee becomes insolvent, unable, or unwilling to pay its debts. 3. If Franchisee fails to materially comply with any insurance or indemnification requirement set forth in this Agreement; provided, however, that Franchisee shall have a reasonable opportunity to cure any default relating to the Franchisee's failure to provide the City with proof of insurance, so long as such insurance is in effect at all times. 4. If City is required to pay any fine or penalty, which Franchisee is required by the terms hereof to pay, yet which Franchisee fails, refuses, neglects or is unable to timely pay. 5. If Franchisee fails to submit Records thirty (30) calendar days or more following a written request by City, or its designated representative for Records disclosure. 6. Franchisee fails to meet the Diversion requirements of this Agreement or pursuant to applicable laws. I. Removal of Commercial Solid Waste Containers: Customer Notification. In the event this Franchise is terminated or expires without a grant of a subsequent franchise allowing Franchisee to continue performing Commercial Solid Waste Handling Services in City, then within ten (10) calendar days of such termination or expiration Franchisee shall: 1. Remove all of Franchisee's Commercial Solid Waste containers from all f=ranchisee's collection service locations and properly dispose of all Commercial Solid Waste in such containers within the time period specified by the City Council; and 2. Submit to the Municipal Operations Director a list of the names and addresses of Generators in the City for which Franchisee provided Commercial Solid Waste Handling Services as of the date of termination or expiration (i.e., Franchisee's City of Newport Beach customer list); or 3. Send written notification to each solid waste generator on Franchisee's customer list that Franchisee is no longer authorized to provide Commercial Solid Waste Handling Services in the City. Such notification shall be in the form provided by the Municipal Operations Director and shall be personally delivered or shall be sent by first class mail, postage prepaid, to the customers' billing addresses. Franchisee shall submit to the Municipal Operations Director an affidavit, signed under penalty of perjury, stating that the required notification has been provided by Franchisee to all of Franchisee's City Customers. J. Continuing Obligations. Upon Agreement termination, suspension or expiration: Non-exclusive Franchise Agreement _ l _ Page 34 3-41 1. Franchisee shall have no right or authority to engage in Commercial Solid Waste Handling Services in the City, subject to the provisions of Sections 49520- 49524 of the Public Resources Code, or any successor statutes. 2. Franchisee shall remain liable to City for any and all Franchise Fees and Environmental Liability Fund Fees that would otherwise be payable by Franchisee, for any and all liquidated damages, late charges and/or interest assessed. 3. Franchisee shall have a continuing obligation to submit to City all reports and records required by this Agreement. Franchisee's obligation shall survive this Agreement shall continue for such period of time as required by this Agreement or applicable law. 4. Franchisee shall allow, the Commercial Solid Waste Generators served by Franchisee to arrange for Commercial Solid Waste Handling Services with a Commercial Solid Waste enterprise collector authorized to perform such services, without penalty or liability for breach of contract on the part of the generators, for such. period of time as Franchisee is not authorized to perform such services because of termination or suspension. 5. Franchisee's shall have a continuing obligation to provide the indemnifications required in this Agreement. Such indemnifications include, but are not limited to, the Hazardous Materials indemnification and AB 939/AB 341/AB 1829 indemnification as set forth in Agreement Section 10. SECTION 24. CITY'S REMEDIES A. The City incurred considerable time and expense procuring this Agreement to secure an improved level and quality of Recycling and compliance with State Diversion mandates. B. Liquidated Damaq . The Parties agree the following liquidated damages schedule represents a reasonable estimate of the amount of damages, considering all the circumstances existing on the date of this Agreement, including the relationship of the sums to the range of harm to City that reasonably could be expected in anticipation that proof of actual damages would be costly or inconvenient: Applicable ; Failure(s)* Damages Section(s) i 6(A), 7(A) 6(B), 7(B) Comply with City -mandated Diversion ` Two hundred fifty requirements within thirty (30) calendar i dollars ($250) per days of notification by City business day until compliant Deliver Commercial Solid Waste as Two hundred fifty designated dollars ($250) per truck delivery Non-exclusive Franchise Agreement Page 35 3-42 8(B) Provide requested records Two hundred fifty dollars ($250) per s business day until E! completed 11(A) ; Provide only those Commercial Solid !Two hundred fifty Waste Handling Services for which dollars ($250) Franchisee has applied 11(C) Collect at unauthorized locations and/or' i I Two hundred fifty during unauthorized hours five (5) or dollars ($250) i more times in a twelve (12) month period i 11(D) Label Containers; paint vehicles and/or Fifty dollars ($50) l Containers corporate color per business day until corrected I 12 A), 12(C) One thousand Establish or Implement Recycling Program dollars ($1,000) per occurrence 13(A), 13(C) Establish or Implement Food Scrap One thousand i Diversion Program I dollars ($1,000) 13(A), 13(C) j Establish or Implement Green Waste 1($500) Five hundred dollars Diversion Program , 13(A), 13(C) ' Establish or Implement Construction and One thousand I Demolition Diversion Program dollars ($1,000) 16(A), 16(B), 16(E) Submit complete and accurate monthly I One hundred dollars reports 1 ($100) per business day until corrected or completed 16(C) Submit timely monthly reports E I One hundred dollars ($100) — if not submitted when due i Five hundred dollars I ($500) — if not 1 submitted w/in thirty (30) calendar days after due date Non-exclusive Franchise Agreement Page 36 3-43 Designate qualified Hauler I Fifty dollars ($50) Representative; Failure of Hauler;per business day Representative to timely respond to City until completed Secure or maintain vehicles or vehicle equipment Remove, replace, or collect abandoned Container(s) One hundred dollars ($100) per business day until completed Fifty dollars ($50) per business day until completed *Unless otherwise designated, reference to "failure(s)" refers to each occurrence of specified breach (such as for each Customer or each Customer record entry or complaint) and not for aggregate occurrences of those breaches (such as for all Customers on a given route or day). C. City's Remedies Cumulative. The rights and remedies of City set forth herein shall be in addition to any and all other rights and privileges City may have, and shall not be deemed to limit any such other rights or privileges of City under this Agreement or by virtue of any law. By placing its initials below, each party specifically confirms: (1) the accuracy of the. statements made in Agreement Section 24; and (2) it has had ample opportunity to consult with legal counsel and obtain an explanation of liquidated damage provisions prior to signing this Agreement. FRANCHISEE CITY Initial Here: Initial Here: SECTION 25. CONFIDENTIAL INFORMATION. A. Confidential Information. In the performance of this Agreement or in contemplation thereof, the parties and their respective employees and agents may have access to private or confidential information owned or controlled by the other party and such information may contain proprietary details and disclosures. All information and data identified in writing as proprietary or confidential by either party ("Confidential Information") and so acquired by the other party or its employees or agents under this Agreement or in contemplation thereof shall be and shall remain the disclosing party's exclusive property. The recipient of Confidential Information shall use all reasonable efforts (which in any event shall not be less than the efforts the recipient takes to ensure the confidentiality of its own proprietary and other confidential information) to keep, and have its employees and agents keep, any and all Confidential Information confidential, and shall not copy, or publish or disclose it to others, nor authorize its employees, agents or anyone else to copy or disclose it to others, without the disclosing party's written approval; nor shall the recipient make use of the Confidential Information except for the Non-exclusive Franchise Agreement Pag_e3 7 3-44 purposes of executing its obligations hereunder, and (except as provided for herein) shall return the Confidential Information and data to the first party at its request. The City's duty to maintain confidentiality as described hereunder shall be subject to the laws of the State of California. B. Excluded Information. The foregoing conditions will not apply to information or data which is, or which becomes generally known to the public by publication or by any means other than a breach of duty on the part of the recipient hereunder, is information previously known to the recipient, is information independently developed by or for the recipient or is information generally released by the owning party without restriction. C. Public Records Request. Should City receive a public records request, or otherwise be directed by any governmental authority to disclose any or all Confidential Information in City's possession, custody or control, City shall promptly provide notice to Franchisee of such request to allow Franchisee an opportunity to prevent disclosure. D. Right to Injunctive Relief. Because of the unique nature of the Confidential Information, the parties agree that each party may suffer irreparable harm in the event that the other party fails to comply with any of its obligations under this Section, and that monetary damages may be inadequate to compensate either party for such breach. Accordingly, the parties agree that either party will, in addition to any other remedies available to it at law or in equity, be entitled to seek injunctive relief to enforce the terms of this Section. SECTION 26. ASSIGNMENT Franchisee shall not assign, sell, subcontract, transfer or otherwise delegate its authority to perform any portion of the Commercial Solid Waste Handling Services or obligations under the Franchise without prior express consent of the City Council. This prohibition includes any transfer of ownership or control of Franchisee, or the conveyance of a majority of Franchisee's stock to a new controlling interest. City's consent shall not be unreasonably withheld. SECTION 27. MISCELLANEOUS PROVISIONS A. Notices. Except as otherwise provided in this Agreement, all notices required by this Agreement shall be given by personal service or by deposit in the United States mail, postage pre -paid and return receipt requested, addressed to the parties as follows: To: Municipal Operations Director City of Newport Beach P.O. Box 1768 100 Civic Center Dr. Newport Beach, CA 92660 To Franchisee: Non-exclusive Franchise Agreement Page 38 3-45 Notice shall be deemed effective on the date personally served or, if mailed, three (3) calendar days after the date deposited in the mail. B. Integrated Agreement. This Agreement represents the full and complete understanding of every kind or nature whatsoever between the City and Franchisee, and all preliminary negotiations and other agreements of any kind or nature are merged herein. No verbal agreement or implied covenant shall be held to vary the provisions herein. C. Amendments. This Agreement supersedes all prior agreements and understandings between the parties and may not be modified or terminated orally, and no modification, termination or attempted waiver of any of the provisions hereof shall be binding unless in writing and signed by both parties. D. Recitals. The Parties acknowledge that the Recitals are true and correct and are hereby incorporated by reference into this Agreement. E. Applicable law. The laws of the City, State of California, and applicable Federal law, shall govern this Agreement and all matters relating to it and any action brought relating to this Agreement shall be adjudicated in a court of competent jurisdiction in the County of Orange. F. Authority. The parties signing below represent and warrant that they have the requisite authority to bind the entities on whose behalf they are signing. G. Severability. If any term or portion of this Agreement is held to be invalid, illegal, or otherwise unenforceable by a court of competent jurisdiction, the remaining provisions of this Agreement shall continue in full force and effect. H. Waiver. A waiver by either party of any breach, of any term, covenant or condition contained herein shall not be deemed to be a waiver of any subsequent breach of the same or any other term, covenant or condition contained herein, whether of the same or a difference character. I. Interpretation. The terms of this Agreement shall be construed in accordance with the meaning of the language used and shall not be construed for or against either party by reason of the authorship of this Agreement or any other rule of construction that might otherwise apply. J. Equal Opportunity Employment. Franchisee represents that it is an equal opportunity employer and it shall not discriminate against any authorized subcontractor, employee or applicant for employment because of race, religion, color, national origin, handicap, ancestry, sex or age or any other impermissible basis under law. K. Compliance with laws. Franchisee shall at its own cost and expense comply with all statutes, ordinances, regulations and requirements of all governmental entities, including federal, state, county or municipal, whether now in force or hereinafter enacted. Non-exclusive Franchise Agreement Page 39 3-46 Franchisee agrees to obtain a business license from the City in accordance with the Code. The parties hereto agree that the Franchise and this Agreement are the only authorizations to conduct Commercial Solid Waste Handling Services in the City and that the issuance of a business license does not grant the Franchisee a right to conduct Commercial Solid Waste Handling Services or other business in the City. L. Conflicts of Interest. Franchisee and its employees may be subject to the provisions of the California Political Reform Act of 1974 (the "California Political Reform Act"), which (i) requires such persons to disclose any financial interest that may foreseeably be materially affected by the work performed under this Agreement, and (ii) prohibits such persons from making, or participating in making, decisions that will foreseeably financially affect such interest. If subject to the California Political Reform Act, Franchisee shall conform to all requirements of the California Political Reform Act, Failure to do so constitutes a material breach and is grounds for immediate termination of this Agreement by City, Franchisee shall indemnify and hold harmless City for any and all claims for damages resulting from Franchisee's violation of this subsection. M. Conflicts or Inconsistencies. In the event there are any conflicts or inconsistencies between this Agreement and the Scope of Services or any other attachments attached hereto, the terms of this Agreement shall govern. N. No Attorneys' Fees. In the event of any dispute or legal action arising under this Agreement, the prevailing party shall not be entitled to attorneys' fees. Q. Counterparts. This Agreement may be executed in two (2) or more counterparts, each of which shall be deemed an original and all of which together shall constitute one (1) and the same instrument. [SIGNATURES ON FOLLOWING PAGE] Non-exclusive Franchise Agreement Page 40 3-47 IN WITNESS WHEREOF, the parties have caused this Agreement to be executed on the day and year written below. APPROVED AS TO FORM: CITY ATTORNEY'S OFFICE Date: ME Aaron C. Harp City Attorney ATTEST: Date: CITY OF NEWPORT BEACH, a California municipal corporation Date: Mayor FRANCHISEE: Date: By: By:— Leilani I. Brown City Clerk Date: [END OF SIGNATURES] Attachments: Exhibit A – Faithful Performance Bond Exhibit B – Franchise Hauler Acknowledgement Exhibit C – Franchisee Application Template Exhibit D -- lnsurance Requirements Exhibit E – Recycling Program Exhibit F – Food Scrap Diversion Program Exhibit G – Construction and Demolition Debris Recycling Program Non-exclusive Franchise Agreement Page 41 3-48 EXHIBIT A CITY OF NEWPORT BEACH BOND NO. FAITHFUL PERFORMANCE BOND The premium charges on this Bond is $ WHEREAS, the City of Newport Beach, State of California, has awarded to hereinafter designated as the "Principal," a non-exclusive franchise for commercial solid waste handling services ("Franchise Agreement") in the City of Newport Beach, in strict conformity with the Franchise Agreement on file with the office of the City Clerk of the City of Newport Beach, which is incorporated herein by this reference. WHEREAS, Principal has executed or is about to execute the Franchise Agreement and the terms thereof require the furnishing of a Bond for the faithful performance of the Franchise Agreement. NOW, THEREFORE, we, the Principal, and 'duly authorized to transact business under the laws of the State of California as Surety (hereinafter "Surety"), are held and firmly bound unto the City of Newport Beach, in the sum of ($ ) lawful money of the United States of America, to be paid to the City of Newport Beach, its successors, and assigns; for which payment well and truly to be made, we bind ourselves, our heirs, executors and administrators, successors, or assigns, jointly and severally, firmly by these present. THE CONDITION OF THIS OBLIGATION IS SUCH, that if the Principal, or the Principal's heirs, executors, administrators, successors, or assigns, fail to abide by, and well and truly keep and perform any or all the services, covenants, conditions, and agreements in the Franchise Agreement documents and any alteration thereof made as therein provided on its part, to be kept and performed at the time and in the manner therein specified, and in all respects according to its true intent and meaning, or fails to indemnify, defend, and save harmless the City of Newport Beach, its officers, employees and agents, as therein stipulated, then, Surety will faithfully perform the same, in an amount not exceeding the sum specified in this Bond; otherwise this obligation shall become null and void. As a part of the. obligation secured hereby, and in addition to the face amount specified in this Performance Bond, there shall be included costs and reasonable expenses and fees, including reasonable attorneys fees, incurred by City, only in the event City is required to bring an action in law or equity against Surety to enforce the obligations of this Bond. Surety, for value received, stipulates and agrees that no change, extension of time, alterations or additions to the terms of the Franchise Agreement or to the services to be performed thereunder shall in any way affect its obligations on this Bond, and it does Faithful Performance Bond Page A-1 3-49 hereby waive notice of any such change, extension of time, alterations or additions of the Agreement or to the services or to the specifications. This Faithful Performance Bond shall be extended and maintained by the Principal in full force and effect for five (5) years following the date Principal is granted the Franchise Agreement by City. In the event that the Principal executed this bond as an individual, it is agreed that the death of any such Principal shall not exonerate the Surety from its obligations under this Bond. IN WITNESS WHEREOF, this instrument has been duly executed by the Principal and Surety above named, on the day of , 20 Name of Contractor (Principal) Name of Surety Address of Surety Telephone APPROVED AS TO FORM: CITY ATTORNEY'S OFFICE Date: Aaron C. Harp City Attorney Authorized Signature/Title Authorized Agent Signature Print Name and Title NOTARY ACKNOWLEDGMENTS OF CONTRACTOR AND SURETY MUST BE ATTACHED Faithful Performance Bond Page A-2 3-50 ACKNOWLEDGMENT A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document. State of California County of } ss. On , 20 before me, Notary Public, personally appeared who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signatures(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. Signature (seal) ACKNOWLEDGMENT A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document. State of California County of )SS. On , 20 before me, Notary Public, personally appeared proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) islare subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signatures(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. certify under PENALTY OF PERJURY under the laws of the State of Califomia that the foregoing paragraph is true and correct. WITNESS my hand and official seal. Signature (seal) Faithful Performance Bond Page A-3 3-51 EXHIBIT B FRANCHISE HAULER ACKNOWLEDGEMENT THIS FRANCHISE HAULER ACKNOWLEDGMENT, entered into as of November 7, 2017 (the "Acknowledgment"), by and between the City of Newport Beach, a charter city and municipal corporation (the "City"), and (the "Franchise Hauler"). WITNESSETH WHEREAS, the City and the Franchise Hauler have heretofore entered into an agreement entitled NONEXCLUSIVE FRANCHISE AGREEMENT BETWEEN THE CITY OF NEWPORT BEACH AND FOR COMMERCIAL SOLID WASTE HAULING SERVICES (the "Franchise"); and WHEREAS, the Franchise provides for the collection and disposal of certain municipal commercial solid waste as described therein ("Franchise Waste") generated within the City; and WHEREAS, Orange County (the "County") owns, manages and operates a sanitary landfill disposal system for municipal solid waste generated within the County; and WHEREAS, the City and the County have heretofore entered into a Waste Disposal Agreement as of 2009, and subsequent Amendment to the Waste Disposal Agreement dated April 28, 2016 (collectively, the "Disposal Agreement"), determining that the execution of such Disposal Agreement will serve the public health, safety and welfare of the residents of the City and County, by maintaining public ownership and stewardship over the Orange County Landfill Disposal System (the "Disposal System"); and WHEREAS, under the Disposal Agreement, the County has agreed to provide long-term disposal of all municipal solid waste generated within the City and the City has agreed to exercise all legal, and contractual power which it possesses from time to time to deliver or cause the delivery of such waste to the Disposal System; and WHEREAS, the provisions of the Waste Disposal Agreement which guarantee capacity for the long term disposal of waste at specified rates generated in the City provide significant benefits to the Franchise Hauler; WHEREAS, notwithstanding any Franchise provisions to the contrary, the Franchise Hauler explicitly acknowledges the aforementioned benefits to the City, the County and the Franchise Hauler in providing for the disposal of all Franchise Waste to the Disposal System; and WHEREAS, the City and the Franchise Hauler desire to enter into this Acknowledgment to assure that the City and the Franchise Hauler will be entitled to the benefits of the Waste Disposal Agreement and to assure conformity with the waste Franchise Hauler Acknowledgement Page B-1 3-52 delivery obligations which have been agreed to by the City under the Disposal Agreement through the delivery of waste by the Franchise Hauler to the Disposal System; and WHEREAS, the Franchise Hauler's agreement to deliver Franchise Waste to the Disposal System under this Acknowledgment is given in consideration of the Franchise Hauler's right to receive the Contract Rate for such disposal as provided in the Disposal Agreement. NOW, THEREFORE, in consideration of the premises and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties hereto, intending to be legally bound hereby, agree as follows: 1. Capitalized terms used and not otherwise defined herein are used as defined in the Disposal Agreement. 2. The Franchise Hauler hereby waives any right which it may possess under applicable law to contest on any ground, constitutional, statutory, case law, administrative or otherwise, (a) the right, power or authority of the County or the City to enter into or perform their respective obligations under the Disposal Agreement, (b) the enforceability against the County or the City of the Disposal Agreement, or (c) the right, power or authority of the City to deliver or cause the delivery of all Controllable Waste to the Designated Disposal Facility in accordance with this Acknowledgment. 3. The City and the Franchise Hauler each hereby represent that this Acknowledgment has been duly authorized by all necessary action of their respective governing bodies. 4. The Franchise Hauler shall deliver or cause to be delivered all Controllable Waste (including all residue from the processing by any means, wherever conducted, of Controllable Waste) to the Disposal System, and shall otherwise assist the City in complying with its obligations under the Waste Disposal Covenant in Section 3.1 of the Disposal Agreement. 5, The Franchise Hauler shall not haul Controllable Waste to any materials recovery facility, composting facility, intermediate processing facility, recycling center, transfer station or other waste handling or management facility unless the contract or other agreement or arrangement between, the Franchise Hauler and the operator of such facility is sufficient in the opinion of the County to assure that the Residue from such facility constituting City Acceptable Waste (or Tonnage equivalencies) and the City Acceptable Waste transferred by such facility shall be delivered to the Designated Disposal Facility in compliance with the Waste Disposal Covenant. Franchise Hauler Acknowledgement Page B-2 3-53 6. The Franchise Hauler shall pay the Contract Rate imposed by the County at the Designated Disposal Facility for the disposal of all Controllable Waste, which rate shall be subject to potential adjustment necessary to reflect the circumstances set forth in the Disposal Agreement. 7. Nothing in this Acknowledgment is intended to restrict any right or responsibility explicitly given the Franchise Hauler in the Franchise to recycle City Acceptable Waste, except as provided in paragraph 5 above with respect to Residue from any such recycling operations. 8. The obligations of the Franchise Hauler under this Acknowledgment shall apply notwithstanding any provision of the Franchise which may conflict herewith. 9. This Acknowledgment may be enforced by the City by any available legal means. In any enforcement action by the City, the burden of proof shall be on the Franchise Hauler to demonstrate compliance herewith. 10. This Acknowledgment shall be in full force and effect and shall be legally binding upon the City and Franchise Hauler from the dated hereof and shall continue in full force and effect until the earlier of (i) the end of the term of the Franchise or (ii) the end of the term of the Disposal Agreement. 11. The City and Hauler agree that the County shall be an express third party beneficiary of this Acknowledgment, and shall be entitled to independently enforce the obligations of the Franchise Hauler hereunder. 12. The Hauler agrees to assist the County in verifying tonnage collected by the Franchise Hauler and providing information required by the County. Hauler will provide upon request refuse tonnage collected within the County, and outside the County (if relevant to confirming tonnage origination), separated by jurisdiction, by load type (residential, commercial, roll -off box), and by facility to which it was delivered (specify which landfill or transfer station). Hauler will provide customer service levels and route lists. Hauler will cooperate with County audits to verify reported origin of tonnage by making records and personnel available to the County and/or its auditors. Franchise Hauler Acknowledgement Page B-3 3-54 EXHIBIT C FRANCHISE APPLICATION TEMPLATE Franchisee Application Template Page C-1 3-55 City of Newport Beach ^trrnn�r Solid Waste Franchise Application Mauler Information Legal Name & DBA: Business Address: Business Phone: _ Business email: Contact Name: Phone: Email: . Type of Organization (Check one) I—Indlvidua! (Owner/Operator) Husband and Wife Corporation ❑General Partnership Desired Franchise: Tier I (Mixed Solid Waste) ❑j Mixed Waste ❑ "Dirty MRF" Processing ❑ Source Separated Dry Recyclables ❑ Food Scraps ❑ Green / Wood Waste ❑ Tier II (construction &.Demolitior) ❑ Name of Slgnatorles Name Narne Newport Beach Business License#: Exp: Limited Partnership Limited Liability Company FIBusiness Trust FICo-Partners Title Title nJoint Venture Unincorporated Association . Otherthan a Partnership F]Public Agency Corp Resolution Needed Yes. No N/A 17 F n Yes 11 - NIA 3-56 I Solid W ate Collection Recycling Plans Applicants must complete a listing of solid waste collection and diversion plans (Attachment 1), The form must include, at a minimum, each waste stream; the types/sizes of containers to be utilized; description of how waste is processed; a listing of any facility where material may be taken; and the ultimate disposition of any non-processible portion of the waste stream. List gf Vehicles to Be Utilized Under the Franchise Applicants must list all vehicles to be used in performing services in the City (Attachment 2). Note: All vehicles must meet the equipment standards listed In the "Vehicles and Equipment" section of the franchise agreement. The Franchise Agreement requires all vehicles and containers to be painted uniform colors. Color of Vehicles: Cclor of Containers: Designation of Hauler Representative The franchise requires that waste haulers designate a Hauler Representative to assist in managing your recycling and diversion programs and managage reporting requirements. This person will also be the main contact.for City staff and the hauler's customers in Newport Beach. Please provide the following Information on the Hauler Representative: . Name: Title/Position: Direct Phone Number: 3-57 Additional Information Required with Submission of Franchise Application 3. The applicant must complete Form 200/200D/200P as appropriate, describing officers, partners, etc., having legal responsibility for the franchise agreement. 2. A current insurance certificate conforming to the requirements listed In the franchise agreement, Including the applicable endorsements. 3. If your company has not conducted solid waste hauling services In the City of Newport Beach for the past three (3) years, please provide information from the previous calendar year Including tonnage collected. by activity (residential, commercial, industrial, construction and demolition); corresponding revenue for each activity; tonnage recycled or caused to be recycled by applicant's collection, transportation, and/or disposition of materials collected and categorized by method of recycling, material type recycled, and the,tonnage disposed by facility utilized.. In the past year, have you or your firm: Maintained all books of account pursuant to generally accepted accounting principles (GAAP)? Yes No N/A Generated all income statements using either a cash or accrual accounting method? Yes � Na � N/A Truthfully and accurately reported all tonnage and/or the disposition of all materials collected in any Jurisdiction where you are authorized to perform solid waste services? Yes No N/A 3-58 AUTHORIZED SIGNATURE(S) OF APPLICANT THE UNDERSIGNED ASSURES THAT THE IN FORMATION PROVIDED ON THIS APPLICATION IS TRUE AND CORRECT AND THAT THE APPLICANT HAS READ AND UNDERSTOOD i•EIS OR HER OBLIGATIONS UNDER ANY FRANCHISE OBTAINED BASED ON THIS APPLICATION. A. If the applicant Is a sole proprietor, the application shall -be signed by the proprietor. B. If the applicant is a partnership, the application shall be signed by each partner. C. If the application Is a firm, association, corporation, county, city, public agency, or other governmental entity, the application, shall be signed by the chief executive officer orthe individual legally responsible for representing the agency. D. The applicantis) affirms that the facts contained in this application and supporting documents are true and correct. (Signature) (Tale) (Date) (Signature) (Title) (Date) (Signature) (Title) (Date) 3-59 City of Newport Beach NON-EXCLUSIVE SOLID WASTE FRANCHISE APPLICATION ADMINISTRATIVE ORGANIZATION & DELEGATION INFORMATION - CORPORATIONS (Form 200 --2017) INSTRUCTIONS; ThIS form muss: be updated and stibmltted to the City each time there is a change in officers or chanaa In the corporation. CORPORATION Namo (as listed with the Socretary of State) Chief Executive Officer Incorporation Date Place of Incorporation Principal office of business; Address City Zip Code Telephone Contact Person Tule Telephone Names and addresses of all persons who nwn ten per cent (10%) or more of stock In corporation, Governing Board of Irectors a, Number of Board Members c. Frequency of Meatings b, Term of office d, Method of Selectbn Board Officers and Meir era USE A SEPARATE" SHEET FOR ADDITIONAL NAMES office Name Business Address & City & Zip Code Telephone Number Term Expiration Presldert Vicr President Secretary Treasurer Other 3-60 City of Newport Beach NON-EXLUSIVE SOLID WASTE FRANCHISE APPLICATION ADMINISTRATIVE ORGANIZATION & DELEGATION INFORMATION -CORPORATIONS PARTNERSHIPS, SOLS PROPRIETOR, AND OTHER ASSOCIATIONS (Form 200P — 201 7) PARTNERSHIPS 1. Attach a copy of ine partnership agreement 2: Partnere Type of Partnership Name . Business Address, Gity and Zip Gode Contact Person Tile Telephone# SOLE PROP RIETORIOTHSR ASSOCIATIONS Sole Proprietors/othor assoclallons must also provide a list of all person(s) legally responslblo for the organization, the contact person, and appropriate legal documents (fictitious name statement, bus( nes s license) whlch set forth legal responsibl y of the organization and accountability for opening the program, Use the following space or attach a separate sheet, 3-61 Ge 1st Partner Llmlneral tad El General 2nd Partner D Limited General 3rd PartnerC. Limited ©General 41h Partner Q Limited Contact Person Tile Telephone# SOLE PROP RIETORIOTHSR ASSOCIATIONS Sole Proprietors/othor assoclallons must also provide a list of all person(s) legally responslblo for the organization, the contact person, and appropriate legal documents (fictitious name statement, bus( nes s license) whlch set forth legal responsibl y of the organization and accountability for opening the program, Use the following space or attach a separate sheet, 3-61 ? % } � � . . E E e t . � . q! ° k / \ 8 B 8 8 8 \n C4 �| # ! 3 { { � £ { \ \ 3 t } 9 w m . ) a / .Ln 77c ,= w\ � , a * � ? % M m Gi CL all d - v a • a � I .J I f 4 II I i i i i I f j j d V r. W 1 L � a 0�0 O O t uL, DG w a C!7 I, d - EXHIBIT D INSURANCE REQUIREMENTS 1. Provision of Insurance. Without limiting Franchisee's indemnification of City, and prior to commencement of Work, Franchisee shall obtain, provide and maintain at its own expense during the term of this Agreement, policies of insurance of the type and amounts described below and in a form satisfactory to City. Franchisee agrees to provide insurance in accordance with requirements set forth here. If Franchisee uses existing coverage to comply and that coverage does not meet these requirements, Franchisee agrees to amend, supplement or endorse the existing coverage. 2. Acceptable Insurers. All insurance policies shall be issued by an insurance company currently authorized by the Insurance Commissioner to transact business of insurance in the State of California, with an assigned policyholders' Rating of A- (or higher) and Financial Size Category Class VII (or larger) in accordance with the latest edition of Best's Key Rating Guide, unless otherwise approved by the City's Risk Manager. 3. Coverage Requirements. A. Workers' Compensation Insurance. Franchisee shall maintain Workers' Compensation Insurance, statutory limits, and Employer's Liability Insurance with limits of at least One Million Dollars ($1,000,000) each accident for bodily injury by accident and each employee for bodily injury by disease in accordance with the laws of the State of California, Section 3700 of the Labor Code. Franchisee shall submit to City, along with the certificate of insurance, a Waiver of Subrogation endorsement in favor of City, its officers, officials, employees and agents. B. General Liability Insurance. Franchisee shall maintain commercial general liability insurance, and if necessary umbrella liability insurance, with coverage at least as broad as provided by Insurance Services Office form CG 00 01, in an amount not less than One Million Dollars ($1,000,000) per occurrence, Two Million Dollars ($2,000,000) general aggregate and Two Million Dollars ($2,000,000) completed operations aggregate. The policy shall cover liability arising from premises, operations, products -completed operations, personal and advertising injury, and liability assumed under an insured contract (including the tort liability of another assumed in a business contract) with no endorsement or modification limiting the scope of coverage for liability assumed under a contract. C. Automobile Liability Insurance. Franchisee shall maintain automobile insurance at least as broad as Insurance Services Office form CA 00 01 covering bodily injury and property damage for all activities of the Franchisee arising out of or in connection with Work to be performed under this Agreement, including coverage for any owned, hired, non -owned or rented vehicles, in an amount not less than One Million Dollars ($1,000,000) combined single limit for each accident. 4. Other Insurance Requirements. The policies are to contain, or be endorsed to contain, the following provisions: Insurance Requirements Page D-1 3-65 A. Waiver of Subrogation. All insurance coverage maintained or procured pursuant to this Agreement shall be endorsed to waive subrogation against City, its elected or appointed officers, agents, officials, employees and volunteers or shall specifically allow Franchisee or others providing insurance evidence in compliance with these requirements to waive their right of recovery prior to a loss. Franchisee hereby waives its own right of recovery against City, and shall require similar written express waivers from each of its subcontractors. B. Additional Insured Status. All liability policies including general liability, excess liability, pollution liability, and automobile liability, but not including professional liability (if required), shall provide or be endorsed to provide that City and its officers, officials, employees, and agents shall be included as insureds under such policies. C. Primary and Non Contributory. All liability coverage shall apply on a primary basis and shall not require contribution from any insurance or self-insurance maintained by City. D. Notice of Cancellation. All policies shall provide City with thirty (30) days notice of cancellation (except for nonpayment for which ten (10) days notice is required) or nonrenewal of coverage for each required coverage. 5. Additional Agreements Between the Parties, The parties hereby agree to the following: A. Evidence of Insurance. Franchisee shall provide certificates of insurance to City as evidence of the insurance coverage required herein, along with a waiver of subrogation endorsement for workers' compensation and other endorsements as specified herein for each coverage. Insurance certificates and endorsement must be approved by City's Risk Manager prior to commencement of performance. Current certification of insurance shall be kept on file with City at all times during the term of this contract. City reserves the right to require complete, certified copies of all, required insurance policies, at any time. B. City's Right to Revise Requirements. The City reserves the right at anytime during the term of this Agreement to change the amounts and types of insurance required by giving the Franchisee ninety (90) days advance written notice of such change. C. Right to Review Subcontracts. Franchisee agrees that upon request, all contracts with subcontractors or others with whom Franchisee enters into contracts with on behalf of City will be submitted to City for review. Failure of City to request copies of such contracts will not impose any liability on City, or its employees. D. Enforcement of Contract Provisions. Franchisee acknowledges and agrees that any actual or alleged failure on the part of the City to inform Franchisee of non-compliance with any requirement imposes no additional obligations on the City nor does it waive any rights hereunder. E. Requirements not Limiting. Requirements of specific coverage features or limits contained in this Section are not intended as a limitation on coverage, limits or other requirements, or a waiver of any coverage normally provided by any insurance. Specific reference to a given coverage feature is for purposes of clarification Insurance Requirements Page D-2 3-66 only as it pertains to a given issue and is not intended by any party or insured to be all inclusive, or to the exclusion of other coverage, or a waiver of any type. F. Self-insured Retentions. Any self-insured retentions must be declared to and approved by City. City reserves the right to require that self-insured retentions be eliminated, lowered, or replaced by a deductible, Self-insurance will not be considered to comply with these requirements unless approved by City. G. City Remedies for Non Compliance. If Franchisee or any subcontractor fails to provide and maintain insurance as required herein, then City shall have the right but not the obligation, to purchase such insurance, to terminate this Agreement, or to suspend Franchisee's right to proceed until proper .evidence of insurance is provided. Any amounts paid by City shall, at City's sole option, be deducted from amounts payable to Franchisee or reimbursed by Franchisee upon demand. H. Timely Notice of Claims. Franchisee shall give City prompt and timely notice of claims made or suits instituted that arise out of or result from Franchisee's performance under this Agreement, and that involve or may involve coverage under any of the required liability policies. City assumes no obligation or liability by such notice, but has the right (but not the duty) to monitor the handling of any such claim or claims if they are likely to involve City. I. Franchisee's Insurance. Franchisee shall also procure and maintain, at its own cost and expense, any additional kinds of insurance, which in its own judgment may be necessary for its proper protection and prosecution of the Franchise. Insurance Requirements Page D-3 3-67 EXHIBIT E RECYCLING PROGRAM Franchisee shall provide an AB 341 Generator all services necessary to support compliance with, and City's enforcement of, AB 341 requirements for Recycling of Municipal Solid Waste and Recyclable Materials. Franchisee's Recycling Program shall include, but not be limited to: (A) Informing the AB 341 Generator of AB 341's Recycling requirements; (B) Providing public education and training materials to the AB 341 Generator explaining (1) the operation of the Recycling Program, and (2) the materials that may be placed in the Recycling Container(s). (C) Making available the following sizes and types of Containers for storage of Municipal Solid Waste and Recyclable Materials: thirty (35) gallon, sixty-five (65) gallon, or ninety- five (95) gallon Carts, two (2), three (3), four (4) and six (6) cubic yard Bins; and two (2), three (3), and four (4) cubic yard split bins; and compactors in the following sizes: three (3) cubic yard and four (4) cubic yard; (D) Consulting with AB 341 Generators to determine, provide, and distribute appropriate Containers, Bins, Roll Off Bins, or compactors; (E) Providing AB 341 Generators with wheeled carts or other Containers and/or Bins, Roll Off Boxes or compactors as necessary for the segregation and storage of Food Scraps to be diverted, which, at a minimum, complies with Section 11.D of the Agreement; (F) Working and coordinating with the AB 341 Generator, or its designee, to ensure a smooth and effective Recycling Program at each Commercial Premises and Multifamily Dwelling for which Franchisee is providing Municipal Solid Waste and/or Recyclable Materials collection; and (G) Processing collected Recyclable Materials and Processable Municipal Solid Waste at a City -approved Clean or Dirty MRF. Recycling Program Page E-1 3-68 EXHIBIT F FOOD SCRAP DIVERSION PROGRAM For those Food Scrap Generators subject to AS 1826, Franchisee shall provide all services necessary to support compliance with, and City's enforcement of, AB 1826 requirements for Diversion of Food Scraps. Franchisee's Food Scrap Diversion Program shall include, but not be limited to: (A) Informing the Food Scrap Generator of AB 1826's Food Scrap Diversion requirements; (B) Providing public education and training materials to the Food Scrap Generator explaining (1) the operation of the Recycling Program, and (2) the materials that may be placed in the Recycling Container(s). (C) Making available the following sizes and types of Containers for Food Scrap, storage: thirty (35) gallon, sixty-five (65) gallon, or ninety-five (95) gallon Carts, two (2), cubic yard Bins; and two (2) cubic yard Split Bins. (D) Consulting with Food Scrap Generators to determine, provide, and distribute appropriate Containers, Bins, Roll Off Bins, or compactors; (E) Providing Food Scrap Generators with wheeled carts or other Containers and/or Bins, Roll Off Boxes or compactors as necessary for the segregation and storage of Food Scraps to be diverted, which, at a minimum, complies with Section 11.D of the Agreement; and (F) Working and coordinating with the Food Scrap Generator, or its designee, to ensure a smooth and effective Food Scrap Diversion Program and the Diversion of substantially all Food Scraps generated at each Commercial Premises for which Franchisee is providing Food Scrap collection. Food Scrap Diversion Program Page F-1 3-69 EXHIBIT G CONSTRUCTION AND DEMOLITION DEBRIS RECYCLING PROGRAM Franchisee shall provide all services necessary to support Customer compliance with, and City's enforcement of, the California Green Building Standards Code requirements for Diversion of Construction and Demolition Debris. Franchisee's Construction and Demolition Debris Recycling Program shall include, but not be limited to: (A) Informing all Customers requesting Construction and Demolition Debris hauling services of the requirements of the California Green.Building Standards Code; (B) Providing Containers and/or Bins, Roil Off Boxes, and Compactors as needed for storage and transport of single -material Construction and Demolition Debris, and commingled Construction and Demolition Debris; (C) Providing Collection service of all Containers on a timely basis, which, at a minimum, complies with Section 11.D of the Agreement; and (D) Working and coordinating with Customer, or customer's recycling coordinator, to ensure a smooth and effective Recycling program and the Diversion of a minimum of sixty-five percent (65%) of all Construction and Demolition Debris generated at each of Customer's job sites for which Franchisee is providing Construction and Demolition . Debris Collection service. Franchisee shall inform Customers utilizing Containers and/or Bins and Roll Off Boxes on a temporary basis, that materials being generated must be recycled pursuant to the requirements of City Code and the California Green Building Standards Code. Construction and Demolition Debris Recycling Program Page G-1 3-70 AMENDMENT NO. ONE TO COMMERCIAL SOLID WASTE COLLECTION NONEXCLUSIVE FRANCHISE AGREEMENT BETWEEN THE CITY OF NEWPORT BEACH AND GREENLEAF ENGINEERING THIS AMENDMENT NO. ONE TO COMMERCIAL SOLID WASTE COLLECTION NONEXCLUSIVE FRANCHISE AGREEMENT ("Amendment No. One") is made and entered into as of this 28th day of February, 2017 ("Effective Date"), by and between the CITY OF NEWPORT BEACH, a California municipal corporation and charter city ("City"), and GREENLEAF ENGINEERING, a California corporation ("Franchisee"), whose address is 19685 Main Street, #A-371, Huntington Beach, California 92648, and is made with reference to the following: RECITALS A. On March 1, 2007, City and Franchisee entered into a Nonexclusive Franchise Agreement for commercial solid waste collection services in the City ("Agreement"). B. The Agreement is set to expire on March 1, 2017. C. The parties desire to enter into this Amendment No. One to extend the term of the Agreement to November 8, 2017. NOW, THEREFORE, it is mutually agreed by and between the undersigned parties as follows: 1. TERM Section 2 of the Agreement is amended in its entirety and replaced with the following: "The term of this Agreement shall commence on the Effective Date, and shall terminate on November 8, 2017 ("Termination Date"), unless terminated earlier as set forth herein ("Term"). 2. INTEGRATED CONTRACT Except as expressly modified herein, all other provisions, terms, and covenants set forth in the Agreement shall remain unchanged and shall be in full force and effect. [SIGNATURES ON NEXT PAGE] Greenleaf Engineering Page 1 IN WITNESS WHEREOF, the parties have caused this Amendment No. One to be executed on the dates written below. APPROVED AS TO FORM: CITY ATTORNEY'S FFICE Date: j - By: Aaron C. Harp City Attorney ATTEST: Date: 91 z By: LQ& - Leilani I. Brown City Clerk !' 0 F CITY OF NEWPORT BEACH, a California municipal corporation Date: 3) 254 CA By. J4" Dave Kiff City Manager FRANCHISEE: GREENLEAF ENGINEERING, a California corporation Date: By: Tim Greenleaf Chief Executive Offic r and Chief Financial Officer [END OF SIGNATURES] Greenleaf Engineering Page 2 CITY OF s NEWPORT BEACH °Atip: City Council Staff Report January 24, 2017 Agenda Item No. 3 TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL FROM: Mike Pisani, Municipal Operations Director - 949-644-3055, -mpisani@newportbeachca.gov -- — --- - -- - - . - --- - _ TITLE: Second Reading of Ordinance to Temporarily Extend the Nonexclusive Solid Waste Franchises ABSTRACT: The second reading and adoption of Ordinance No. 2017-1, would temporarily extend the 37 nonexclusive solid waste franchises from March 1, 2017 to November 8, 2017, to allow staff to continue to evaluate franchise revisions in light of new State regulations. RECOMMENDATION: a) Determine that the action is exempt from the California Environmental Quality Act (CEQA) pursuant to Sections 15060(c)(2) and 15060(c)(3) of the CEQA Guidelines because it will not result in a physical change to the environment, directly or indirectly; and b) Conduct second reading and adopt Ordinance No. 2017-1, An Ordinance of the City Council of the City of Newport Beach, California, Temporarily Extending Nonexclusive Solid Waste Franchises from March 1, 2097 to November 8, 2017 to Ensure Adequate Provision of Solid Waste Collection Services within the City of Newport Beach. FUNDING REQUIREMENTS: There is no fiscal impact related to this item. DISCUSSION: On January 10, 2017, the City Council introduced and passed to second reading Ordinance 2017-1, which allows for the temporary extension of the 37 nonexclusive solid waste franchises from March 1, 2017 to November 8, 2017. This extension will allow staff to develop franchise and Municipal Code language that will best service the needs of the city's residents, businesses, and visitors, while complying with newly adopted State regulations. 3-1 Second Reading of Ordinance to Temporarily Extend the Nonexclusive Solid Waste Franchises January 24, 2017 Page 2 ENVIRONMENTAL REVIEW: Staff recommends the City Council find this action is not subject to the California Environmental Quality Act (CEQA) pursuant to Sections 15060(c)(2) (the activity will not result in a direct or reasonably foreseeable indirect physical change in the environment) and 15060(c)(3) (the activity is not a project as defined in Section 15378) of the CEQA Guidelines, California Code of Regulations, Title 14, Chapter 3, because it has no potential for resulting in physical Change -to theenvifonment, directly -or -indirectly. - - - NOTICING: The agenda item has been noticed according to the Brown Act (72 hours in advance of the meeting at which the City Council considers the item). ATTACHMENT: Attachment A - Ordinance No. 2017-1 3-2 ATTACHMENT A ORDINANCE NO. 2017- 1 AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF NEWPORT BEACH, CALIFORNIA, TEMPORARILY EXTENDING NONEXCLUSIVE SOLID WASTE FRANCHISES FROM MARCH 1, 2017 to NOVEMBER 8, 2017 TO ENSURE ADEQUATE PROVISION OF SOLID WASTE COLLECTION SERVICES WITHIN THE CITY OF NEWPORT BEACH WHEREAS, Article XIII of the City Charter and Sections 49500 through 49524 of the Public Resources Code authorize the City of Newport Beach ("City") to enter into nonexclusive franchise agreements for commercial solid waste handling services with private solid waste enterprises; WHEREAS, the City Charter and Newport Beach Municipal Code ("NBMC") Chapter 12.63 establish requirements and procedures to grant a franchise to provide solid waste handling services within the City; WHEREAS, the City Council complied with state law, the City Charter and the NBMC in granting nonexclusive franchise agreements for commercial solid waste handling services to the private solid waste enterprises listed on Exhibit A, which is attached hereto and incorporated herein by reference; WHEREAS, the current nonexclusive solid waste franchise agreements are set to expire on March 1, 2017; and WHEREAS, the City desires to temporarily extend the term of solid waste franchise agreements to November 8, 2017, to allow City staff time to evaluate the existing haulers and agreements to ensure they are best serving the needs of the City's residents, businesses, and visitors. NOW THEREFORE, the City Council of the City of Newport Beach ordains as follows: Section 1: The City Council authorizes the City Manager or his or her designee, to execute an amendment, in a form substantially similar to the attached Exhibit B, which is incorporated herein by reference, extending the term of existing nonexclusive franchise agreements for commercial solid waste handling services to November 8, 2017. All other provisions of the nonexclusive solid waste franchise agreements shall remain unchanged. Section 2: In the event of any conflict between any nonexclusive solid waste franchise agreement expiration term provided in this ordinance and any other previously adopted ordinance, the expiration term in this ordinance shall prevail. 3-3 Section 3: The recitals provided in this ordinance are true and correct and are incorporated into the substantive portion of this ordinance. Section 4: If any section, subsection, sentence, clause or phrase of this ordinance is for any reason held to be invalid or unconstitutional, such decision shall not affect the validity or constitutionality of the remaining portions of this ordinance. The City Council hereby declares that it would have passed this ordinance and each section, subsection, sentence, clause or phrase hereof, irrespective of the fact that any one (1) or more sections, subsections, sentences, clauses or phrases be declared invalid or unconstitutional. Section 5: The City Council finds the introduction and adoption of this ordinance is not subject to the California Environmental Quality Act ("CEQA") pursuant to Section 15060(c)(2) (the activity will not result in a direct or reasonably foreseeable indirect physical change in the environment) and 15060(c)(3) (the activity is not a project as defined in Section 15378) of the CEQA Guidelines, California Code of Regulations, Title 14, Chapter 3, because it has no potential to have a significant effect on the environment. Section 6: The Mayor shall sign and the City Clerk shall attest to the passage of this ordinance. The City Clerk shall cause the ordinance, or a summary thereof, to be published pursuant to City Charter Section 414. This ordinance was introduced at a regular meeting of the City Council of the City of Newport Beach held on the 10th day of January , 2017, and adopted on the day of , 2017, by the following vote, to -wit: AYES, COUNCILMEMBERS NOES, COUNCILMEMBERS ABSENT COUNCILMEMBERS MAYOR KEVIN MULDOON ATTEST: LEILANI I. BROWN, CITY CLERK 2 3-4 APPROVED AS TO FORM: CITY AT 'S OFFICE AARONM HARP, CITY ATTORNEY Exhibits: (A) List of Current Solid Waste Franchise Haulers; and (B) Draft Amendment Extending Commercial Solid Waste Collection Nonexclusive Franchise Agreements until November 8, 2017, 3 3-5 No. ' Name 1 A2Z Recycling Services, Inc. 2 American Wrecking, Inc. 3 Athens Services 4 California Waste Services, LLC. 5 CR&R 6 Cousyn Grading and Demolition 7 Direct Disposal 8 Ecology Auto Parts, Inc. 9 GB Services, Inc. 10 Genesis Dispatch, Inc. 11 Goodwin Enterprises 12 Hartfield Construction Corp. 13 Haul Away Rubbish Service Co., Inc. 14 IRS Demolition 15 James Blomberg 16 1B Services 17 JD Demolition and Grading, Inc. 18 Kevin Ray Demolition 19 Key Disposal, Inc. 20 The Lane Company 21 Newport Coast Demolition 22 Praisler Hauling & Demolition, Inc. 23 Progressive Land Clearing, dba Thomas Demolition 24 Rainbow Disposal 25 RB Holt (Pacific Earthworks) 26 Robert's Waste Recycling, Inc. 27 Roche Excavating 28 Skyline Construction Services, Inc. dba Scor Industries 29 Southern California Environmental 30 Tierra Verde Industries 31 Tight Quarters, Inc. 32 Tim Greenlead Engineering 33 United Pacific Waste 34 Universal Bobcat & Hauling 35 Universal Waste Systems Inc. 36 Ware Disposal 37 Waste Management of OC 3-6 AMENDMENT NO. ONE TO COMMERCIAL SOLID WASTE COLLECTION NONEXCLUSIVE FRANCHISE AGREEMENT BETWEEN THE CITY OF NEWPORT BEACH AND THIS AMENDMENT NO. ONE TO COMMERCIAL SOLID WASTE COLLECTION NONEXCLUSIVE FRANCHISE AGREEMENT ("Amendment No. One") is made and entered into as of this day of , 2017 ("Effective Date"), by and between the CITY OF NEWPORT BEACH, a California municipal corporation and charter city ("City"), and , a ("Franchisee"), whose address is , and is made with reference to the following: RECITALS A. On , 20_, City and Franchisee entered into a Nonexclusive Franchise Agreement for commercial solid waste collection services in the City ("Agreement"). B. The Agreement is set to expire on March 1, 2017. C. The parties desire to enter into this Amendment No. One to extend the term of the Agreement to November 8, 2017. NOW, THEREFORE, it is mutually agreed by and between the undersigned parties as follows: 1. TERM Section _ of the Agreement is amended in its entirety and replaced with the following: "The term of this Agreement shall commence on the Effective Date, and shall terminate on November 8, 2017 ("Termination Date"), unless terminated earlier as set forth herein ("Term"). 2. INTEGRATED CONTRACT Except as expressly modified herein, all other provisions, terms, and covenants set forth in the Agreement shall remain unchanged and shall be in full force and effect. [SIGNATURES ON NEXT PAGE] Page 1 3-7 IN WITNESS WHEREOF, the parties have caused this Amendment No. One to be executed on the dates written below. APPROVED AS TO FORM: CITY ATTORNEY'S OFFICE Date: By: Aaron C. Harp City Attorney ATTEST: Date: By: Leilani I. Brown City Clerk CITY OF NEWPORT BEACH, a California municipal corporation Date: Bv: Dave Kiff City Manager FRANCHISEE: I a Date: By: Date: [END OF SIGNATURES] Page 2 3-8 ACCEPTANCE OF SOLID WASTE MANAGEMENT FRANCHISE WHEREAS, on March 27, 2007, the City Council of the City of Newport Beach adopted Ordinance No. 2007-7 entitled an Ordinance of the City Council of the City of Newport Beach Granting a Non -Exclusive Solid Waste Franchise to Franchisees to Provide Solid Waste Collection Services Upon the City Streets and Within the City of Newport Beach; and WHEREAS, the Charter of the City of Newport Beach, Section 1303, and Ordinance No. 2007-7 provide that any franchise granted shall not become effective until written acceptance is filed by the Grantee with the City Clerk. The acceptance shall be filed within ten (10) days after the adoption of Ordinance No. 2007-7. WHEREAS, the undersigned Grantee wishes to accept the grant of the Franchise. NOW THEREFORE_,yj (apFN i�►JF, cam¢ jiJcnC� hereby accepts the grant of the Nonexclusive Franchise granted by Ordinance No. 2007-7 and hereby agrees to comply with the provisions of the Newport Beach Charter, Chapter 12.63, Ordinance No. 2007-7_ and the Franchise Agreement in all its operations pursuant to the grant of the Franchise. DATE: �M (5,2F�r-)t E,o>✓Nc,���3F.C� at�c;� �i FRANCHISE BY: ' NAME. 5 NA TITLE:: � 'R-05 I DFS i CITY CLERKS'S VERIFICATION OF ACCEPTANCE I LaVonne M. Harkless ity Clerk, rtify that the above acceptance of Franchise was received by me on ,Qii % �� , 2007, at e 3� , as p.m. CITY CLERK �</2-0 COMMERCIAL SOLID WASTE COLLECTION NONEXCLUSIVE FRANCHISE AGREEMENT BETWEEN THE CITY OF NEWPORT BEACH AND SOLID WASTE HAULERS LISTED IN EXHIBIT A. This Nonexclusive Franchise Agreement for Commercial Solid Waste Handling Services ("Agreement") is entered into this 1" day of March 2007 ("Effective Date") by and between the CITY OF NEWPORT BEACH, a municipal corporation and Charter City organized and existing under the laws of the State of California ("City"), and Tim Greenleaf Engineering, Inc., a sole proprietorship whose address is 18685 Main Street A-371, Huntington Beach, California, 92648 ("Franchisee") and is made with reference to the following: RECITALS This Agreement is entered into on the basis of the following facts: A. Franchisee has provided or is capable of providing commercial solid waste collection services in the City. B. Pursuant to Article XIII of the City Charter, Chapter 12.63 of the City of Newport Beach Municipal Code ("Code"), and Sections 49300 and 49500-49523 of the Public Resources Code, the City is authorized to enter into nonexclusive franchise agreements for commercial solid waste handling services. C. Pursuant to this Agreement, City desires to authorize Franchisee to provide nonexclusive commercial solid waste handling services within the City. Franchisee shall furnish all personnel, equipment, and supplies necessary to collect, transport, or otherwise remove and dispose of solid waste and recyclable materials from commercial, institutional, or industrial premises within the City. D. The City Council has determined that the grant of a nonexclusive franchise is in the public interest. NOW, THEREFORE, CITY AND FRANCHISEE DO HEREBY AGREE AS FOLLOWS: SECTION 1. GRANT OF FRANCHISE A. By Ordinance No. 2007-7, City has granted to Franchisee a nonexclusive franchise authorizing Franchisee to provide commercial solid waste handling services for solid waste kept, accumulated, or generated in the City of Newport Beach and to use the public streets and public right-of-ways for such purpose ("Franchise"). Franchisee acknowledges that the Franchise is not exclusive and that the Franchise is subject to the provisions of Article XIII of the City Charter, Ordinance No. 2007-7, Chapter 12.63 of the Code, and the terms and conditions of this Agreement. 1 B. Upon the Effective Date of this Agreement, the parties agree that any prior authorization relating to the conduct of commercial solid waste handling services in the City arising under and pursuant to any prior franchise issued to Franchisee shall be deemed to be terminated and of no further force or effect. SECTION 2. TERM OF FRANCHISE The term of this Agreement shall commence on the Effective Date, and shall terminate on the 1 st day of March, 2017 ("Termination Date"), unless terminated earlier as set forth herein ("Term"). SECTION 3. DEFINITIONS Unless otherwise defined herein, or if the use or context clearly requires a different definition, all words, terms and phrases in this Agreement and the derivations thereof shall have the meanings set forth in Section 12.63.020 of the Code. SECTION 4. FRANCHISE FEES A. During the term of the Franchise, Franchisee shall pay to City franchise fees for the privilege of providing commercial solid waste handling services in the City of Newport Beach and for the use of public streets, right-of-ways and places for such purposes. The franchise fee that Franchisee shall pay to the City shall be ten and a half percent (10.5%) of the gross receipts for all commercial solid waste handling services provided by the Franchisee in the City of Newport Beach ("Franchise Fees"). One half percent (.5%) of the Franchise Fee shall be attributable to the maintenance and implementation of the City's Source Reduction and Recycling Element "SRRE," and shall be separately accounted for, and used only for the costs stated in Public Resources Code Section 41901 or any successor provision. B Franchise Fees shall be paid quarterly on forms prescribed by the Administrative Services Director. C. Franchisee shall pay all required* Franchise Fees to: City of Newport Beach Attn: Administrative Services Director 3300 Newport Boulevard Newport Beach, CA 92658 D. Franchise Fees shall be due and payable on the thirtieth (30th) day of the month following the end of each quarter. Because the Effective Date for this Agreement is starting in the middle of a quarter, the first payment of the Franchise Fees due and payable to the City from the Effective Date to the end of the first quarter (i.e. March 31, 2007) will be due and payable on the thirtieth (30th) day of April 2007. E. The parties hereto agree that Franchisee's failure to make Franchise Fee and Enviromnental Liability Fund Fee, as set forth in Section 8 (hereinafter the Franchise Fee and 2 E. The parties hereto agree that Franchisee's failure to make Franchise Fee and Environmental Liability Fund Fee, as set forth in Section 8 (hereinafter the Franchise Fee and Environmental Liability Fund Fee shall collectively be referred to as "Fee(s)"), payments within the time allowed will result in damages being sustained by City. Such damages are, and will continue to be, impracticable and extremely difficult to determine. If Fees are not paid by Franchisee when due then in addition to the Fees, Franchisee shall pay a late charge in an amount equal to ten percent (10%) of the amount of the Fee that was not timely paid by Franchisee. If Franchisee fails to pay delinquent Fees within thirty (30) days of the date due, Franchisee shall pay a second (2nd) late charge in an amount equal ten percent (10%) on both the amount of the Fee outstanding and the first late charge. The second (2nd) late charge shall be in addition to the first (1S) late charge. Execution of this Agreement shall constitute agreement by the parties that the late charges set forth in this subsection is the minimum value of the costs and actual damages caused by the failure of the Franchisee to pay the Fees within the allotted time. Such sum is liquidated damages and shall not be construed as a penalty. In addition to the late charges imposed on Franchisee for failing to pay Fees in accordance with this Agreement, Franchisee shall pay interest on the amount of Fees and late charges due and owing at the rate of one and one-half percent (1% %) per month for each month or portion of a month that the Fees and late charges remain unpaid. F. In the event Franchisee believes that it has paid Fees in excess of the Fees due to City, Franchisee may submit a request for refund to the Administrative Services Director on a form provided by the Director. If proof of overpayment is satisfactory to the Director, the Director shall refund to Franchisee any overpayment. Franchisee shall not apply any overpayment as a credit against any other amounts payable to City unless specifically authorized by the Administrative Services Director in writing. G. Each Franchise Fee payment shall be accompanied by a written statement described in Section 12.63.090 of the Code on a form provided by the Administrative Services Director. No statement filed under this Section shall be conclusive as to the matters set forth in such statement, nor shall the filing of such statement preclude the City from collecting by appropriate action the sum that is actually due and payable. H. Franchisee may separately list the actual Franchise Fee rate and Environmental Liability Fund Fee rate as established by this Section, and any other fees required by this Agreement, on its invoices to its customers. In no case may the Franchise Fee rate or Environmental Liability Fund Fee rate listed by the Franchisee on the invoice exceed the actual Franchise Fee or Environmental Liability Fund Fee rates imposed by the City. SECTION 5. CASH DEPOSIT Franchisee shall, prior to the placement of any commercial solid waste container on public property, provide City with a cash deposit in the sum of Five Thousand Dollars ($5,000.00) to ensure compliance with the duties and obligations imposed by the provisions of the Code, regulations adopted by the City Manager or his designee and this Agreement. 3 SECTION 6. DISPOSAL OF SOLID WASTE A. Franchisee shall comply with all recycling and diversion requirements imposed by law, ordinance, or regulation on the City and/or Franchisee. On a quarterly basis Franchisee shall divert solid waste collected from landfills as follows: Year 1: fifty percent (50%); Year 2: fifty- one percent (51%); Year 3: fifty-two percent (52%); Year 4: fifty-three percent (53%); Year 5: fifty-four percent (54%); Years 6-10: fifty-five percent (55%). In no event shall Franchisee deposit more solid waste at any landfill during any calendar quarter than the required diversion rate mandated by the City. In the event new or additional diversion requirements are imposed by law, ordinance or regulation on City and/or Franchisee, the City shall have the right to require Franchisee to divert additional solid waste from landfills by providing Franchisee with ten (10) days written notice of the new diversion requirements. Upon request of the General Services Director, Franchisee shall provide all documents and information requested by the General Services Director to prove that Franchisee has complied with this subsection, any applicable law, ordinance, regulation, or condition related to recycling and diversion of solid waste. B. Franchisee shall dispose of solid waste collected or transported by Franchisee only by taking such solid waste to a State certified/licensed landfill, State certified/licensed transfer station, State certified/licensed recycling facility or State certified/licensed materials recovery facility which is lawfully authorized to accept that specific type of solid waste material. Franchisee shall not dispose of solid waste by depositing it on any land, (except a permitted facility) whether public or private, or in any river, stream or other waterway, or in any sanitary sewer or storm drainage system. Nothing in this Agreement shall be deemed or construed as authorizing Franchisee to operate a landfill, recycling center, or other solid waste disposal facility. C. All solid waste, in addition to recyclables, collected by Franchisee shall become the property of Franchisee upon placement by the customer for collection. If Franchisee violates the terms in Section 6(A) and Section 6(B) above, Franchisee agrees that the City has the future right to direct that solid waste be delivered to a permitted disposal facility designated by City. This exercise of "flow control" by the City shall be made upon at least 30 days prior written notice to Franchisee, and written notice shall include the violation(s) prompting the City's action regarding "flow control." Failure to comply with the recycling/diversion requirements and delivery/disposal of materials to a certified/licensed facility shall be a material breach of this agreement.. D. Franchisee shall include as a condition to its contractual agreement with its customers a provision prohibiting disposal of hazardous waste in any of Franchisees vehicles or disposal bins/containers, and other equipment. E. Franchisee shall implement a load check program that includes, at a minimum, a visual check of all containers to be emptied to protect against inclusion of hazardous waste and shall prepare a written record of all hazardous waste discovered during the process. The records shall comply with all State and Federal Hazardous Waste Regulations, shall be maintained for the length of the term of the Franchise, and shall be made available to the City upon request. 4 SECTION 7. REPORTS A. Franchisee shall submit to City monthly reports stating the total amount (in tons) of solid waste which Franchisee collected in the City of Newport Beach during the reportable month; the total weight (in tons) of solid waste disposed of by Franchisee at landfills and transfer stations which Franchisee collected in the City of Newport Beach during the reportable month; the total weight and the weight by material category (in tons) of solid waste disposed of by Franchisee at recycling and materials recovery facilities during the reportable month which Franchisee collected in the City of Newport Beach; the name and location of all solid waste and recycling facilities where City of Newport Beach materials were delivered; such other tonnage or other information as requested by the General Services Director including weigh tickets, recycling records; and any complaints received by the Franchisee. Such monthly reports shall be prepared on such form as required by the General Services Director. Each monthly report shall be submitted on or before the 15th day of the month following the end of the month (i.e. report due April 15 for first month after the Effective Date) and submitted to: General Services Director City of Newport Beach 3300 Newport Blvd. Newport Beach, CA 92663 B. If the report required under Subsection A is not filed by the due date specified above, the report shall be deemed delinquent. If the report remains delinquent for more than fifteen (15) days, Franchisee shall pay to City a delinquent report charge in the amount of One Hundred Dollars ($100). If the report remains delinquent for more than forty-five (45) days, Franchisee shall pay to City a delinquent report charge in the amount of Five Hundred Dollars ($500). Such delinquent report charges shall be in addition to any Franchise Fees or other charges payable by Franchisee under this Agreement. C. Franchisee shall comply with all recycling and diversion requirements imposed by law, ordinance, or regulation on the City. Monthly reports stating the total amount (in tons) of solid waste which Franchisee landfilled, recycled and collected should accurately reflect the diversion rate required by the City (Year 1- 50%, Year 2- 51%, Year 3- 52%, Year 4- 53%, Year 5- 54%, Years 6-10- 55%). At the end of each quarter, monthly reports will be evaluated for compliance with City diversion requirements. Failure to comply with the recycling and diversion requirements shall be a material breach of this Agreement. SECTION 8. ENVIRONMENTAL LIABILITY FUND FEE A. City and Franchisee acknowledge the potential liability which can result from commercial solid waste handling services under Federal and State environmental laws. City intends to take reasonable actions to obtain protection and indemnification against future environmental liability for solid waste generated within the City of Newport Beach and the activities of Franchisee under this Agreement for handling such solid waste. To provide protection and indemnification to City for Franchisee's solid waste handling activities in the City of Newport Beach, Franchisee agrees to collect from its customers a fee for payment into an Environmental Liability Fund which shall be a separate Fund established and maintained by City. 5 The Fund shall be used to purchase insurance which will insure the City against environmental liability which may be imposed upon City as a result of Franchisee's activities under this Franchise and/or shall be used to pay environmental liability costs and expenses arising from or related in any way to commercial solid waste handling services. The Fund shall not be commingled with or included in the City's General Fund. B. The fee that Franchisee shall pay to the City Environmental Liability Fund shall be five and a half percent (5.5%) of the gross receipts for all commercial solid waste handling services provided by the Franchisee in the City of Newport Beach ("Environmental Liability Fund Fee(s)"). Payment of the Environmental Liability Fund Fee shall be made concurrently with the payment of the Franchise Fees specified in Section 4 of this Agreement. Franchisee agrees to pay late charges and interest as provided in Section 4(E) of this Agreement if Franchisee fails to pay the Environmental Liability Fund Fee within the time frames set forth herein. C. Compliance with this obligation shall not limit Franchisee's indemnification as set forth in Section 11, however, the indemnification provisions of 11(C) shall be secondary to the Fund established by this Section or any insurance purchased with the funds provided. SECTION 9. FRANCHISEE'S RECORDS A. Franchisee shall keep and maintain books of account, income statements, tonnage reports and supporting documents and all other documents that relate in any way to business transactions conducted by Franchisee in connection with the commercial solid waste handling services of Franchisee under this Agreement during the Term of this Agreement and for a minimum period of three (3) years, or for any longer period required by law, after the Termination Date. Such records shall be kept at Franchisee's place of business and shall be clearly identifiable B. Franchisee shall allow a representative of City to examine, audit and make transcripts or copies of the books of account, income statements, tonnage reports and supporting documents, and all other documents that relate in any way to business transactions conducted by Franchisee in connection with the commercial solid waste handling services of Franchisee under this Agreement at Franchisee's place of business during normal business hours within three (3) working days of the City Manager, or his designees request or demand to inspect and/or audit these records. The purpose of such inspection and/or audit shall be for verification of the Fees paid by Franchisee under this Agreement, and the accuracy thereof; and for verification of the amounts of solid waste reported by Franchisee pursuant to this Agreement. Franchisee's books of account, income statements, tonnage reports and other documents accessed by City shall be kept confidential unless these documents are deemed necessary by City to enforce the terms of this Agreement or are required to be produced pursuant to any applicable law. C. The parties agree that Franchisee's failure to provide its records in accordance with City's request to examine, audit and make transcripts or copies of the books of account, income statements, tonnage reports and supporting documents in accordance with Subsection B above, shall be considered a material breach of this Agreement and will result in damages being 0 sustained by City. Such damages are, and will continue to be, impracticable and extremely difficult to determine. The parties agree that if Franchisee fails to provide its records in accordance with Subsection B above, the City may, in its discretion terminate this Agreement and/or charge a late charge in the amount of Two Hundred Fifty and No/100 Dollars ($250.00) for each working day that Franchisee does not provide said records. Execution of this Agreement shall constitute agreement by the parties that the late charge set forth in this subsection is the minimum value of the costs and actual damages caused by the failure of the Franchisee to provide records in accordance with Subsection B above. Such sum is liquidated damages and shall not be construed as a penalty. D. Franchisee shall reimburse City for City's costs in performance of an audit if, as a result of the audit it is determined: 1. There was any intentional misrepresentation by Franchisee with respect to the amount of Fees due to the City, or 2. There is a one thousand dollars ($1,000.00) or greater discrepancy in the amount of Fees due to the City. Such reimbursement shall be paid by Franchisee within thirty (30) days of the date City notifies Franchisee in writing that the Franchisee is liable to reimburse the City in conformance with this subsection and the amount of City's audit costs. E. If Franchisee refuses to provide City's auditor with its records as required by Subsection B above or disagrees with City's audit findings, then Franchisee may, within ten (10) days after written request by City's designated representative for records disclosure, or within ten (10) days after service of the audit finding, appeal the imposition of late charge or the audit findings by filing a written appeal with the City Council specifying the basis of Franchisee's failure to provide records, or the reason for its disagreement with City's audit findings. If Franchisee fails to timely request such an appeal to the City Council, then the late charges and/or discrepancy determinations shall be final and conclusive and the amounts shall become immediately due and payable and/or the violation shall be deemed established. SECTION 10. INSURANCE REQUIREMENTS Without limiting Franchisee's indemnification of City, Franchisee shall obtain, provide and maintain at its own expense during the term of this Agreement, a policy or policies of liability insurance of the type and amounts described below and in a form satisfactory to City. A. Certificates of Insurance. Franchisee shall provide certificates of insurance with original endorsements to City as evidence of the insurance coverage required herein. Insurance certificates must be approved by City's Risk Manager prior to commencement of the Franchise. Current certification of insurance shall be kept on file with City at all times during the term of this Agreement. B. Signature. A person authorized by the insurer to bind coverage on its behalf shall sign certification of all required policies. 7 C. Acceptable Insurers. All insurance policies shall be issued by an insurance company currently authorized by the Insurance Commissioner to transact business of insurance in the State of California, with an assigned policyholders' Rating of A (or higher) and Financial Size Category Class VII (or larger) in accordance with the latest edition of Best's Key Rating Guide, unless otherwise approved by the City's Risk Manager. D. Coverage Requirements. 1. Workers' Compensation Coverage. Franchisee shall maintain Workers' Compensation Insurance and one million dollars ($1,000,000) Employer's Liability Insurance for his or her employees in accordance with the laws of the State of California. Any notice of cancellation or non -renewal of all Workers' Compensation policies must be received by City at least thirty (30) calendar days (10 calendar days written notice of non-payment of premium) prior to such change. The insurer shall agree to waive all rights of subrogation against City, its officers, agents, employees and volunteers for losses arising from work performed by Franchisee that relates in any way to this Agreement. 2. General Liability Coverage. Franchisee shall maintain commercial general liability insurance in an amount not less than one million dollars ($1,000,000) per occurrence for bodily injury, personal injury, and property damage, including without limitation, contractual liability. If commercial general liability insurance or other form with a general aggregate limit is used, either the general aggregate limit shall apply separately to the work to be performed under this Agreement, or the general aggregate limit shall be at least twice the required occurrence limit. 3. Automobile Liability Coverage. Franchisee shall maintain automobile insurance covering bodily injury and property damage for all activities of the Franchisee arising out of or in connection with work to be performed under this Agreement, including coverage for any owned, hired, non -owned or rented vehicles, in an amount not less than two million dollars ($2,000,000) combined single limit for each occurrence. E. Endorsements. Each general liability and automobile liability insurance policy shall be endorsed with the following specific language: 1. The City, its elected or appointed officers, officials, employees, agents and volunteers are to be covered as additional insureds with respect to liability arising out of work performed by or on behalf of the Franchisee. 2. This policy shall be considered primary insurance as respects to City, its elected or appointed officers, officials, employees, agents and volunteers as respects to all claims, losses, or liability arising directly or indirectly from the Franchisee's operations or services provided to City. Any insurance maintained by City, including any self-insured retention City may have, shall be considered excess insurance only and not contributory with the insurance provided hereunder. N. 3. This insurance shall act for each insured and additional insured as though a separate policy had been written for each, except with respect to the limits of liability of the insuring company. 4. The insurer waives all rights of subrogation against City, its elected or appointed officers, officials, employees, agents and volunteers. 5. Any failure to comply with reporting provisions of the policies shall not affect coverage provided to City, its elected or appointed officers, officials, employees, agents or volunteers. 6. The insurance provided by this policy shall not be suspended, voided, canceled, or reduced in coverage or in limits, by either party except after thirty (30) calendar days (10 calendar days written notice of non-payment of premium) written notice has been received by City. F. Timely Notice of Claims. Franchisee shall give City prompt and timely notice of claim(s) made or suit instituted arising out of or resulting from Franchisee's performance under this Agreement. G. Additional Insurance. Franchisee shall also procure and maintain, at its own cost and expense, any additional kinds of insurance, which in its own judgment may be necessary for its proper protection and prosecution of the work. SECTION 11. RESPONSIBILITY FOR DAMAGES AND INJURY/INDEMNIFICATION A. Franchisee Responsibility. Franchisee shall be responsible for any damages caused as a result of Franchisees acts or omissions including, but not limited to injuries to or death of any person or damage to public and/or private property and damages public improvements as a result of Franchisees placement and retrieval of the commercial solid waste containers. B. General Indemnification. Franchisee shall indemnify, hold harmless, and defend City, and each of its past, present and future elected officials, officers, employees, agents, consultants, volunteers, affiliates, assignees, representatives, attorneys, subsidiaries, and affiliated entities and their respective successors, heirs and assigns (collectively, "Indemnified Parties") harmless for, from and against any costs, expenses, damages, and losses, including actual attorneys fees ("Losses") of any kind or character to any person or property arising directly or indirectly from or caused by any of the following: (i) any act or omission of Franchisee or its respective officers, directors, shareholder members, partners, employees, agents, contractors, subcontractors, suppliers, representatives and affiliates ("Franchisee Representatives"); (ii) Franchisee's or Franchisee Representative's activities; (iii) any accident or casualty within or arising out of the services/work performed under the Franchise and/or this Agreement; (iv) any violation or alleged violation of any law, ordinance or statute now or hereafter enacted arising out of services/work performed pursuant to the Franchise and/or this Agreement; (v) the negligence or willful misconduct of Franchisee or any of Franchisee representatives in the performance of 0 the services/work under the Franchise and/or this Agreement; and (vi) any breach of the Franchise and/or this Agreement. Franchisee shall not be required to indemnify, hold harmless and defend the Indemnified Parties from the sole negligence, active negligence or willful misconduct of the Indemnified Parties. Nothing in this indemnity shall be construed as authorizing any award of attorney's fees in any action on or to enforce the terms of this Agreement. This indemnity shall apply to all claims and liability regardless of whether any insurance policies are applicable. The policy limits do not act as a limitation upon the amount of indemnification to be provided by the Franchisee. C. Hazardous Substances Indemnification. Franchisee shall indemnify the Indemnified Parties from and against all claims, actual damages including, but not limited to, special and consequential damages, natural resource damage, punitive damages, injuries, costs, response, remediation, and removal costs, losses, demands, debts, liens, liabilities, causes of action, suits, legal or administrative proceedings, interest, fines, charges, penalties and expenses attorneys' and expert witness fees and costs incurred in connection with defending against any of the foregoing or in enforcing this indemnity of any kind whatsoever paid, incurred or suffered by, or asserted against, the Indemnified Parties or Franchisee arising directly or indirectly from or caused by any of the following: (i) the violation of any Environmental Laws or the failure to clean up and mitigate the consequences of the spill or release of any Hazardous Substance; and (ii) Franchisee's activities under this Agreement concerning any Hazardous Substance at any place where Franchisee stores or disposes of solid or hazardous waste pursuant to this Agreement, or preceding Agreements between City and Franchisee. The foregoing indemnity is intended to operate as an agreement pursuant to the Comprehensive Environmental Response, Compensation and Liability Act 42. U.S.C. Section 9607(e) and any amendments thereto; California Health and Safety Code Section 25364, to insure, protect, hold harmless, and indemnify City from liability. As used herein, the term `Environmental Laws" shall mean "any and all present and future federal, state or local laws (whether common law, statute, rule, regulation or otherwise), permits, orders and any other requirements of Governmental Authorities relating to the environment or any "Hazardous Substance" or "Hazardous Substance Activity" (as defined herein) (including, without limitation, the Comprehensive Environmental Response, Compensation and Liability Act of 1980 (42 U.S.C. §§ 9601 et seq.) as amended from time to time and the applicable provisions of the California Health and Safety Code and California Water Code). As used herein, the term "Hazardous Substance" shall mean "any (a) chemical, compound, material, mixture or substance that is now or hereinafter defined or listed in, or otherwise classified pursuant to any Environmental Law as a "hazardous substance", "hazardous material," "hazardous waste," "extremely hazardous waste," "infectious waste," "toxic waste," "toxic pollutant," or any other formulation intended to define, list or classify substances by reason of deleterious properties or affect and (b) petroleum, petroleum by-products, natural gas, natural gas liquids, liquefied natural gas, synthetic gas usable for fuel (or mixtures of natural gas in such synthetic gas), ash, municipal solid waste, steam, drilling fluids, produced waters and other wastes associated with the exploration, development and production of crude oil, natural gas or geothermal resources." 10 D. AB939 Indemnification. Franchisee agrees to meet all requirements of City's Source Reduction and Recycling Element as to the portion of the solid waste stream handled by Franchisee. Franchisee agrees to protect, defend, indemnify, and hold City harmless against all fines or penalties imposed by the California Integrated Waste Management Board, or other entity, arising from the failure of Franchisee to meet the Integrated Waste Management Act diversion requirements with respect to the portion of the commercial waste stream collected by Franchisee. E. Notice. City agrees to give notice to Franchisee when the City receives a claim for damages or other liability for which Franchisee has provided indemnification under this Section. SECTION 12. COMMERCIAL SOLID WASTE COLLECTION SERVICES A. Frequency of Collection. Franchisee shall collect all solid waste, including recyclable materials, as authorized in this Agreement, on a schedule to be agreed upon between the Franchisee and its customers. The schedule shall provide for collection service at least once per week; provided, however, that such schedule shall not permit the accumulation of solid waste in quantities that are unreasonable or detrimental to the public health or safety. Requests for collection from premises with overflowing bins or containers, or from premises where there have been missed pickups, shall be serviced within 24 hours of any such request by the customer or City. If requested by the City at any time, Franchisee's collection schedule shall be submitted to the City for its approval. B. Hours and Days of Collections. No collection of solid waste shall occur in any area of the City after 6:30 p.m. and prior to 5:00 a.m. No collection of solid waste from commercial premises within 500 feet of occupied residential premises, motels or hotels shall be made by Franchisee, nor shall any of Franchisee's collection vehicles be operated in any residential areas of the City except between the hours of 7:00 a.m. and 6:30 p.m., Monday through Friday, nor on any Saturday or Sunday, except between the hours of 8:00 a.m. and 6:00 p.m. Collection on Sundays shall be limited to the disposal of commercial waste from commercial premises which require collection every day due to public health and safety concerns. SECTION 13. VEHICLES AND EQUIPMENT A. Any and all containers provided to customers of Franchisee for storage, collection or transportation of commercial solid wastes shall meet the requirements designated by the General Services Director as well as State of California minimum standards for solid waste handling established under Public Resources Code Section 43020 and applicable health requirements. B. All containers and all vehicles used by Franchisee in the performance of commercial solid waste handling services shall be marked with Franchisee's name and telephone number in letters which are not less than four inches (4") high or which are easily read by the general public. 11 C. Equipment. 1. Franchisee shall, at all times, provide such number of vehicles and such equipment as will be adequate for the collection, transportation and disposal services which it is authorized to provide under this Agreement. All vehicles utilized by Franchisee in the performance of this Agreement shall be registered with the California Department of Motor Vehicles. All vehicles must pass the required periodic "BIT" inspection and Franchisee shall provide evidence of such to the General Services Department as requested. Upon request by the City, Franchisee shall provide records from the most recent California Highway Patrol biennial inspection of the terminal(s) responsible for the maintenance and repair of equipment used in the City. All vehicles shall be properly maintained, kept clean and in good repair, and shall be uniformly painted. All commercial solid waste containers used in the performance of this Agreement shall be kept clean and in good repair and shall be uniformly painted to the satisfaction of the General Services Director. All vehicles and equipment used by Franchisee in the performance of this Agreement may be subject to inspection by the City upon twenty-four (24) hours notice by the General Services Director. All drivers employed by Franchisee and operating equipment in the City shall be properly licensed for the class of vehicle they drive, enrolled in the Department of Motor Vehicles Employee Pull Notice (EPN) program, and abide by all State and federal regulations for driver hours and alcohol and controlled substances testing. 2. Each vehicle shall be so constructed and used in a manner so that no rubbish, garbage, debris, oil, grease or other material will blow, fall, or leak out of the vehicle. All solid waste shall be transported by means of vehicles which are covered in such a manner as to securely contain all solid waste and to prevent such solid waste from projecting, blowing, falling or leaking out of the vehicles. Any solid waste dropped or spilled in collection, transfer or transportation shall be immediately cleaned up by Franchisee. A broom and a shovel shall be carried at all times on each vehicle for this purpose. In addition, each collection vehicle shall be equipped with trash bags, masking tape and notice of non -collection tags for the purpose of separating hazardous waste for return to the generator. A communications device such as a two- way radio or a cellular telephone shall also be maintained on each vehicle at all times. 3. Franchisee shall not store any vehicle or equipment on any public street, public right-of-way or other public property in the City of Newport Beach without obtaining a Temporary Street Closure Permit from the Public Works Department and prior written consent of the General Services Director. 4. Should the General Services Director at any time give written notification to Franchisee that any vehicle does not comply with the standards hereunder, the vehicle shall be promptly removed from service by Franchisee and not used again until inspected and authorized in writing by the General Services Director. 5. Placement of containers and equipment shall be in accordance with the standards set by the Director of Public Works and in accordance with the standards set forth in Exhibit A which is incorporated herein by this reference. Any deviation from the standards set by the Director of Public Works or the standards set forth in Exhibit A shall require written approval from the Public Works Director. 12 SECTION 14. ABANDONED CONTAINERS A. If Franchisee abandons any commercial solid waste container within the City of Newport Beach, the City may remove the container and/or dispose of the contents of the container. B. If City is required to remove a roll -off or compactor container abandoned by Franchisee and/or disposes of the contents of any container abandoned by Franchisee, City may charge Franchisee for City's costs incurred in such removal/disposal and for City's costs of storage of the container. Franchisees who are engaged in providing roll -off containers shall maintain a Five Thousand Dollars and No Cents ($5,000.00) cash deposit with City Revenue Division to reimburse City for such costs within ten (10) days of the date of City's invoice for such costs. C. For the purposes of this Section, "abandoned" includes: 1. Franchisee's failure to remove the container within the time period specified by the City Council upon termination of the Franchise pursuant to Section 12.63.140 of the Code; 2. Franchisee's failure to remove the container within ten (10) working days after the expiration of the Franchise granted to Franchisee, except in the case where Franchisee has been granted an extension of the term of said Franchise or Franchisee has been granted a subsequent franchise authorizing Franchisee to collect and transport the type or types of solid waste for which the container was used pursuant to this Agreement. 3. Franchisee's failure to collect the container and dispose of the contents of the container within five (5) calendar days after City's Director of General Services issues written notice to Franchisee to dispose of the contents. SECTION 15. COMPLIANCE WITH LAW A. Franchisee shall perform all commercial solid waste handling services in accordance with applicable federal, state, and local law including Chapter 12.63 of the Code, Article XIII of the City Charter, Ordinance No. 200' - I and in accordance with the terms and conditions of this Agreement. B. During the Term of this Agreement, Franchisee and City agree that the City's ordinances may be amended as provided herein, as provided in Chapter 12.63 or as necessary to permit the City to comply with changes to federal, state, and local legislative regulatory requirements, which may affect or alter City's solid waste handling obligations or requirements for solid waste management. Franchisee agrees to comply with any such amendment of the City's ordinances. 13 SECTION 16. PERMITS AND LICENSES Franchisee shall obtain and maintain, at Franchisee's sole cost and expense, all permits and licenses applicable to Franchisee's operations under the Franchise which are required of Franchisee by any governmental agency. Payment of Franchise Fees and Environmental Liability Fund Fees shall be in addition to any permit or license fees or business tax prescribed by the City for the same period. Franchisee shall obtain and maintain for the Term of this Agreement an account with the Orange County landfills. If Franchisee disposes of solid waste at an Orange County landfills, the Franchisee shall only dispose of Newport Beach solid waste at Orange County landfills utilizing their account (no "cash only" disposal). SECTION 17. PUBLIC EDUCATION ACTIVITIES A. City and Franchisee shall cooperate in co -sponsoring not more than one promotional event per year, as mutually agreed upon in advance by the parties, which is related to the implementation of commercial solid waste handling services and recycling services. B. Each year during the term of this Agreement, on an annual basis, Franchise shall transmit promotional brochures or fliers to its customers, and to such prospective customers as it may select, informing them of the commercial solid waste handling services and recycling services which are provided by the Franchisee as well as hazardous waste disposal requirements. C. All promotional brochures, fliers or other information distributed by Franchisee hereunder shall be printed on recycled paper. All such informational materials shall be approved in advance by the City's General Services Director. SECTION 18. TERMINATION AND SUSPENSION A. The franchise granted to Franchisee may be terminated by the City Council pursuant to Section 12.63.140 of the Code. B. In the event the Franchise is terminated pursuant to Subsection A above or the term of this Agreement expires: 1. Franchisee shall have no right or authority to engage in commercial solid waste handling operations in the City of Newport Beach, subject to the provisions of Sections 49520-49523 of the Public Resources Code. 2. Franchisee shall, however, remain liable to City for any and all Franchise Fees and Environmental Liability Fund Fees that would otherwise be payable by Franchisee, for any and all late charges and interest assessed pursuant to Section 4 of this Agreement, and for any and all delinquent report/record charges assessed pursuant to Sections 7 or 9 of this Agreement. 3. Franchisee shall have a continuing obligation to submit to City all reports required by Sections 7 and 9 of this Agreement which relates to commercial solid waste handling 14 services performed by Franchisee up to and including the date of termination, suspension, or expiration. 4. Franchisee shall allow the solid waste generators served by Franchisee to arrange for commercial solid waste handling services with a solid waste enterprise collector authorized to perform such services, without penalty or liability for breach of contract on the part of the generators, for such period of time as Franchisee is not authorized to perform such services because of termination or suspension. 5. Franchisee agrees to continue to provide the indemnifications required in this contract after its suspension or termination. Such indemnifications include, but are not limited to, the hazardous materials indemnification and AB939 indemnification as set forth in Section 11. C. In the event this Franchise is terminated pursuant to Subsection A above, then within the time period specified by the City Council, Franchisee shall remove all of Franchisee's commercial solid waste containers, from all Franchisee's collection service locations and shall properly dispose of all solid waste in such containers. D. In the event the Franchise is terminated pursuant to Subsection A above or expires without an extension of the term and without a grant of a subsequent franchise allowing Franchisee to continue performing such services, then within ten (10) days of such termination or expiration Franchisee shall either: 1. Submit to City's General Services Director a list of the names and addresses of solid waste generators in Newport Beach for which Franchisee provided services as of the date of termination or expiration (i.e. Franchisee's City of Newport Beach customer list); or 2. Send written notification to each solid waste generator on Franchisee's customer list that Franchisee is no longer authorized to provide commercial solid waste handling services in the City of Newport Beach. Such notification shall be in the form provided by City's General Services Director and shall be personally delivered or shall be sent by first class mail, postage prepaid, to the customers' billing addresses. Franchisee shall submit to City's General Services Director an affidavit, signed under penalty of perjury, stating that the required notification has been provided by Franchisee to all of Franchisee's City of Newport Beach customers. SECTION 19. ASSIGNMENT Franchisee shall not assign, sell, subcontract, transfer or otherwise delegate its authority to perform any portion of the solid waste handling services or obligations under the Franchise without prior express consent of the City Council. This prohibition includes any transfer of ownership or control of Franchisee, or the conveyance of a majority of Franchisee's stock to a new controlling interest. City's consent shall not be unreasonably withheld. 15 SECTION 20. MISCELLANEOUS PROVISIONS A. Notices. Except as otherwise provided in this Agreement, all notices required by this Agreement shall be given by personal service or by deposit in the United States mail, postage pre -paid and return receipt requested, addressed to the parties as follows: To: General Services Director City of Newport Beach 3300 Newport Blvd. Newport Beach, CA 92663 To Franchisee: —11 t U\ C-19- k�r} (1--A- F_ £r\)< -Ii ( 2ac�'C),�lj� , `�)(Ac_-',, MA iW —IK—Ef A -:�>-1 ecu -I CA Notice shall be deemed effective on the date personally served or, if mailed, three (3) days after the date deposited in the mails. B. Integrated Agreement. This Agreement represents the full and complete understanding of every kind or nature whatsoever between the City and Franchisee, and all preliminary negotiations and other agreements of any kind or nature are merged herein. No verbal agreement or implied covenant shall be held to vary the provisions herein. C. Amendments. This Agreement supersedes all prior agreements and understandings between the parties and may not be modified or terminated orally, and no modification, termination or attempted waiver of any of the provisions hereof shall be binding unless in writing and signed by the party against whom the same is sought to be enforced. D. Applicable Law. The laws of the State of California, and applicable Federal law, shall govern this Agreement and all matters relating to it and any action brought relating to this Agreement shall be adjudicated in a court of competent jurisdiction in the County of Orange. E. Authority. The parties signing below represent and warrant that they have the requisite authority to bind the entities on whose behalf they are signing. F. Severability. If any term or portion of this Agreement is held to be invalid, illegal, or otherwise unenforceable by a court of competent jurisdiction, the remaining provisions of this Agreement shall continue in full force and effect. G. Waiver. A waiver by either party of any breach, of any term, covenant or condition contained herein shall not be deemed to be a waiver of any subsequent breach of the same or any other term, covenant or condition contained herein, whether of the same or a difference character. 16 H. Interpretation. The terms of this Agreement shall be construed in accordance with the meaning of the language used and shall not be construed for or against either party by reason of the authorship of this Agreement or any other rule of construction that might otherwise apply. I. Equal Opportunity Employment. Franchisee represents that it is an equal opportunity employer and it shall not discriminate against any authorized subcontractor, employee or applicant for employment because of race, religion, color, national origin, handicap, ancestry, sex or age. J. Compliance with Laws: Franchisee shall at its own cost and expense comply with all statutes, ordinances, regulations and requirements of all governmental entities, including federal, state, county or municipal, whether now in force or hereinafter enacted. Franchisee agrees to obtain a business license from the City in accordance with the Code. The parties hereto agree that the Franchise and this Agreement are the only authorizations to conduct solid waste collection business in the City and that the issuance of a business license does not grant the Franchisee a right to conduct solid waste collection or other business in the City. K. Conflicts of Interest: Franchisee or its employees may be subject to the provisions of the California Political Reform Act of 1974 (the "Act"), which (i) requires such persons to disclose any financial interest that may foreseeably be materially affected by the work performed under this Agreement, and (ii) prohibits such persons from making, or participating in making, decisions that will foreseeably financially affect such interest. If subject to the Act, Franchisee shall conform to all requirements of the Act. Failure to do so constitutes a material breach and is grounds for immediate termination of this Agreement by City. Franchisee shall indemnify and hold harmless City for any and all claims for damages resulting from Franchisee's violation of this subsection. [SIGNATURES ON FOLLOWING PAGE] 17 IN WITNESS WHEREOF, the parties have caused this Agreement to be executed on the day and year first written above. ATTEST: "CITY" CITY OF NEWPORT BEACH, a Municipal Corporation t2�eBY: STEVEN ROS Y, Mayor LAVONNE M. HARKLESS City Clerk APPROVED AS TO FORM: AARON C. HARP Assistant City Attorney "FRANCHISEE" NAME f f MC�� E0 (Print) TITLE:�esldn�� DATE: LA1'L� n BY: NA] TIT. DA' Coup- cl9CF1'aA CITY OF NEWPORT BEACH CITY COUNCIL STAFF REPORT Agenda Item No. 19 March 13, 2007 TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL FROM: General Services -Department Mark Harmon, Director, 949-644-3055, mharmondlcitv.newport beach.ca.us SUBJECT: COMMERCIAL SOLID WASTE COLLECTION: Award of Non - Exclusive Solid Waste .Collection Franchise to Franchisees ISSUE: Should the City Council award a Non-exclusive Solid Waste Franchise for commercial collection to those Solid Waste Collection Companies fisted in Exhibit. A, and pass to second reading on March 27, 2007? 0 RECOMMENDATION: Conduct the. public hearing; Introduce Ordinance No. 2007-_ granting a Non- exclusive Solid Waste Franchise for commercial collection to those Solid Waste collection companies listed in Exhibit A of the staff report; and pass to second. reading on March 27, 2007. DISCUSSION: Background: Solid waste is collected, recycled, and disposed of by either City crews or commercial solid waste haulers. City crews collect approximately 75% of all residential solid waste while private haulers collect the remainder of the residential wastesbwm and all commercial solid waste. The City's integrated solid waste management program is structured to ensure the health and safety of all residents and business owners. In addition, AB939 requires cities in Califomia to divert 50% of municipal solid waste from the landfill each year. Since this mandate was initiated in 2000, the City has met the statewide requirements in 2001, 2002, 2003, 2004 and 2005. If the City fails to achieve the 50% diversion rate, a fine of up to $10,000 can be imposed by the California Integrated Waste Management Board. Award of Non -Exclusive Solid Waste Collection Franchise to Solid Waste Franchisees March 13, 2007 Page 2 The City utilizes a non-exclusive franchise system to manage commercial solid waste collection. This system helps the City in its efforts to meet AB939 requirements and also establishes a competitive commercial solid waste collection system for businesses in the City. Additionally, the franchise system stipulates a franchise fee in the amount of 16% of gross monthly paid receipts be paid to the City. These funds are used to fund environmental insurance premiums, maintenance of city infrastructure, and administrative costs tied to managing the franchise system. Artide XIII of the City Charter (Granting of Franchises) and Chapter 12.63 of the Municipal Code (Solid Waste Management) establish requirements and procedures to grant a franchise to provide solid waste handling services within the City. There are currently twenty -fire solid waste franchisees operating under separate agreements to collect and transport solid waste generated within the City limits. There is no limit on the number of franchises that Council may approve. Such a policy permits competitive, service-odent6d refuse operations. Franchise Agreement Staff proposes to update and renew the current non-exclusive solid waste franchise agreements and include all the current haulers to participate . in the change: American Wrecking, Inc., CR&R, Cousyn Grading and Demolition, Direct Disposal, Federal Disposal, Goodwin Enterprises, Greenleaf Grading, Company, IRS Demolition, JB Services, Kevin Ray Demolition, Key Disposal, Newport Coast Demolition, Pacific Earthworks d.b.a. RB Holt, Progressive Land Clearing d.b.a. Thomas Demolition, Rainbow Disposal, Republic Services, Robert's Waste Recycling, Inc., Roche Excavating, Southern California Environmental, The Lane Company, Tight Quarters, Inc., Tim Greenleaf Engineering, Ware Disposal, Waste Management, West Coast Land Clearing, Inc. No additional franchised haulers are added with this action. The following is a summary of the significant changes to the Non -Exclusive Solid Waste Collection Franchise Agreement: • Section 2: New Agreement length will be five years, with five 1 -year extensions. • Section 4E, Franchise Fees: The late charge amount and interest fees were slightly revised • Section 5, Cash Deposit: The cash deposit was .raised to $5,000 from $3,000 in order to place any commercial solid waste container on public Property • Section 6, Disposal of Solid Waste: This section further defines recycling and disposal requirements. More specifically, a diversion rate of at least 50% is explicitly .required in the new Agreement. 11 n U Award of Non-Excktsive Solid Waste Collection Franchise to Solid Waste Franchisees March 13, 2007 Page 3 ® Section 9c, Franchisee's Records: This section was added to assist in auditing purposes. It helps protect the City from financial damages incurred due to the hauler not providing accurate information. o Section 9e, Franchisee's Records: This section was added to allow the hauler to appeal any late charges imposed bythe City. ® Sectionl2b, Commercial Solid Waste Collection Services: This section was added to extend the hours of operation for haulers. a Section 13, Vehicles and Equipment: This section was added to ensure that haulers are using properly licensed drivers and vehicles that have been approved according to California Highway Patrol. standards. Pending completion of the public hearing and Council approval on March 27, 2007, the franchise with those Solid Waste Collection Companies listed in Exhibit A will take effect March 1, 2007, retroactively, and will expire on March 1, 2012. Environmental Review. The Ordinance and Franchise Agreement are categorically exempt under the Califomia Code of Regulations Sections 15301 and 15308 defined as "existing operations and facilities" and as "actions by regulatory agencies for protection of the environment" respectively. Use of the above exemption classifications are appropriate because the Ordinance and Franchise Agreement do not change nor expand existing solid waste operations and facilities within the City. The Ordinance is also consistent with the goals of California Slate Assembly Bill 939, The California Solid Iftste ManagrerrrentAct as well as the objectives of the City's Source Reduction and Recycling Element (ERRE). Prepared by: Andrea M. Riles Management Assistant Submitted Maris Harrison I General Services Director Reviewed by: Award of Non -Exclusive Solid Waste Collection Franchise to Solid Waste Franchisees March 13, 2007 Page 4 Attachments: (1) Ordinance No. 2007- Ordinance granting a Non -Exclusive Solid Waste Franchise to Solid.Waste Collection Companies in Exhibit A. (2) Non -Exclusive Commercial Solid Waste Franchise Agreement (3) Exhibit A • 0 . ORDINANCE NO. 2007 - AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF NEWPORT BEACH GRANTING A NON-EXCLUSIVE SOLID WASTE FRANCHISE TO FRANCHISEES. TO PROVIDE SOLID WASTE COLLECTION SERVICES UPON THE .CITY STREETS AND WITHIN THE CITY OF NEWPORT -BEACH The City Council of the City of Newport Beach does ordain as follows: SECTION 1: Findings A. Article XIII of the. City Charter, Chapter 12.63 of the City of Newport Beach Municipal Code, and Sections 49300 and 49500-49523 of the Public Resources Code, authorize the City to enter. into non-exclusive franchise agreements for commercial solid. waste handling serviceswith private solid waste enterprises. B. The City Charter and Chapter 12.63 establish requirements and procedures to grant a . franchise to provide solid waste handling services within the City of Newport Beach. C. In compliance with the City Charter, a duly noticed public hearing was held on March 13'' and 27" 2007 to consider the granting of a franchise to those persons and entities listed in Exhibit A ("Franchisees"). 01D. Having considered all oral and documentary evidence, presented to the City Council at the public hearing, the City Council has determined that the granting of a non-exclusive franchise to each of the Franchisees is in the -public intent. SECTION 2: Definitions Unless defined herein,. all words, terns, phrases in this Ordinance shall have the meanings set forth in Section 12.63.020 of Chapter 12.63 of the Newport Beach Municipal Code. SECTION 3: Franchise Agreements A. Grant of Franchise. There is hereby granted each of the Franchisees listed in Exhibit A, a non-exclusive franchise to operate, maintain and provide solid waste handling services along, across and over the public streets, alleys, public ways and public places dedicated forpublic use in the City. S. 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 tern of this franchise. C. Term of Franchises. The term of the franchise per Section 2 of the Franchise /agreement ("Agreement") attached hereto as Exhibit B, Commercial Solid Waste Collection Nonexclusive Franchise Agreement between the City of Newport Beach and Franchisee is hereby adopted, approved and incorporated into this Ordinance by reference, shall commence at 12:01 a.m., on March 1, 2007 and expire on Manch 1, 2012. The franchise shall take effect on the date specified above. provided that the applicable franchisee has filed written notice of acceptance in accordance with the requirement of Section 4 of this Ordinance. D. Franchise Fees. (1) 'During the term of the franchise, Franchisees shall pay to City franchise fees for the privilege of providing commercial solid waste handling services in the City of Newport Beach and for the use of public streets, right-of-ways and places for such purposes. The franchise fee that each. franchisee shall pay to the City shall be ten and a half percent (10.5%) of the gross receipts for all commercial solid waste handling services provided by the applicable franchisee in the City of Newport Beach (°Franchise Fees"). One half percent (.5%) of the Franchise Fees shall be attributable to the maintenance and'- Implementation of the City's Source Reduction and Recycling Element "SRRE," and shall be separately accounted for, and used only for the costs stated in Public Resources. Code Section 41901 or any successor provision.. (2) The fee that each franchisee shall pay to the City Environmental Liability Fund shall be five and a half percent (5.5%) of the gross receipts for alFcommeicial solid waste handling services provided by the applicable franchisee in- the City'of Newport Beach ("Environmental Liability Fund Fee"). Payment of the Environmental Liability Fund Fee shall be made concurrently with the payment of the Franchise Fees specified in Section 4 of the Franchise Agreement. E. Inclusion of Franchise Documents. Franchisees shall comply, with and shall be bound by all of the terms, provisions and conditions contained in the City Charter, this Ordinance, Chapter 12.63 of the Newport Beach Municipal Code and the Franchise Agreement. SECTION 4: Effective Date This Ordinance shall become effective 30 days from and after the date of its .adoption; provided, however, franchises granted by this Ordinance shall not become effective unless and until the applicable franchisee files written acceptance of the franchise with - the City Clerk, and .delivers to the City all bonds and insurance policies required to be furnished in accordance with the requirements of the Franchise Agreement. The written acceptance shall be in form and substance as prescribed by the City Attorney and shall operate as an acceptance of each and every term, condition and limitation contained in this Ordinance, the Franchise Agreement, Article XII1 of the City Charter, and Chapter 12.63 of the Newport Beach Municipal Code. Each franchisee shall file written acceptance of the franchise no later than ten (10) days after the adoption of this Ordinance. SECTION 5: CEQA Exemption The City Council_ of the City of Newport Beach finds that this Ordinance is categorically exempt under the California Code of Regulations - Sections 15301 and 15308 defined as "existing operations and facilities" and as "actions by regulatory agencies for protection of the environment" respectively. Use of the above exemption classifications are appropriate because this Ordinance does not change nor expand existing solid waste operations and facilities within the City. The Ordinance is also consistent with the goals of California State Assembly Bill 939, The California Solid Waste Management Act as well as the objectives of the City's Source Reduction and Recycling Element (SRRE). The City Manager is . authorized to execute and the City Clerk to file a Notice of Exemption with the Orange County Clerk. SECTION 6: Severability If any section, subsection, sentence, clause or phrase of this Ordinance is, for any reason, held to be invalid or unconstitutional, such decision shall not affect the 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 7: Adoption of Ordinance This Ordinance was introduced at a regular meeting of the City Council of the City of Newport Beach, held on the 13th day of March 2007 and adopted on the 27th day of March 2007, by the following vote to wit: AYES, COUNCIL MEMBERS NOES, COUNCIL MEMBERS ABSTAINED, COUNCIL MEMBERS ABSENT, COUNCIL MEMEBERS KI MAYOR ATTEST: CITY CLERK 4 • COM31ERCIAL SOLID WASTE COLLECTION NONEXCLUSIVE FRANCHISE AGREEMENT BETWEEN THE CITY OF NEWPORT BEACH AND This Nonexclusive Franchise Agreement for Commercial Solid Waste Handling Services ("Agreement") is entered into this 1" day of March 2007 ("Effective Date-) by and between the CITY OF NEWPORT BEACH, a municipal corporation and Charter City organized and existing under the laws of the State of Califomia ("City"), and a [type of business, i.e., an individual, a partnership, a joint venture, a California Corporation or some other business entity] whose address is California, C'Frarchisee") and is made with reference to the following: RECITALS This Agreement is entered into on the basis of the following facts: A. Franchisee has provided or is capable of providing commercial solid waste collection services in the City. B. Pursuant to Article XIII of the City Charter, Chapter 12.63 of the City of Newport Beach Municipal Code ("Code"), and Sections 49300 and 49500-49523 of the Public Resources Code, the City is authorized to enter into nonexclusive fianchise agreements for commercial.: solid waste handling services. C. Pursuant to this Agreement, City desires to authorize Franchisee. to provide nonexclusive commercial solid waste handling services within the City. Franchisee shall furnish all personnel, equipment, and supplies necessary to collect, transport, or otherwise remove and. dispose of solid waste and recyclable materials from commercial, institutional, or industrial premises within the City. D. The City Council has determined that the grant of a nonexclusive franchise is in the public interest. NOW, THEREFORE, CITY AND FRANCHISEE DO HEREBY AGREE AS FOLLOWS: SECTION 1. GRANT OF FRANCHISE A. By Ordinance No. 200_- _ , City has granted to Franchisee a nonexclusive franchise authorizing Franchisee to provide commercial solid waste handling services for solid waste kept, accumulated, or generated in the City of Newport Beach and to use the public streets and public right-of-ways for such purpose ("Franchise"). Franchisee acknowledges that the Franchise is not exclusive and that the Franchise is subject to the provisions of Article YM of the City Charter, Ordinance No. 200= Chapter 12.63 of the Code, and the terms and conditions of this Agreement. B. Upon the Effective Date of this Agreement, the parties agree that any prior authorization relating to the conduct of commercial solid waste handling services in the City arising under and pursuant to any prior franchise issued to Franchisee shall be deemed to be terminated and of no further force or effect. SECTION 2. TERM OF FRANCHISE The term of this Agreement shall continence on the Effective Date, and shall terminate on the 1st day of March, 2012 (`"Termination Date"'), unless terminated earlier as set forth herein ("Term'). The City Manager may approve up to five, additional one-year extensions with 60 -day written notice from the City. SECTION 3. DEFINITIONS Unless otherwise defined herein, or if the use or context clearly requires a different definition, all words, terms and phrases in this Agreement and the derivations thereof shall have the meanings set forth in Section 12.63.020 of the Code. SECTION 4. FRANCHISE FEES A. During the term of the Franchise, Franchisee shall pay to City franchise fees for the privilege of providing commercial solid waste handling services in the City of Newport Beach and for the use of public streets, right-of-ways and places for such purposes. The franchise fee that Franchisee shall pay to the Cityshall be ten and a half percent (10.5%) of the gross receipts for all commercial solid waste handling services provided by the Franchisee in the City of Newport Beach (`Franchise Fees"). One half percent (.5019) of the Franchise Fee shall be attributable'to the maintenance and implementation of the City's Source Reduction and Recycling Element "SRRE," and shall be separately accounted for, and used only for the costs stated in Public Resources Code Section 41901 or any successor provision. B Franchise Fees shall be paid quarterly on forms prescribed by the Administrative Services Director. C. Franchisee shall pay all required Franchise Fees to: City of Newport Beach Attn: Administrative Services Director 3300 Newport Boulevard Newport Beach, CA 92658 D. Franchise Fees shall be due and payable on the thirtieth (30th) day of the month following the end of each quarter. Because the Effective Date for this Agreement is starting in the middle of a quarter, the first payment of the Franchise Fees due and payable to the City from the Effective Date to the end of the first quarter (i.e. March 31, 2007) will be due and payable on the thirtieth (300) day of April 2007. E. The parties hereto agree that Franchisee's failm to make Franchise Fee and Environmental Liability Fund Fee, as set forth in Section 8 (hereinafter the Franchise Fee and Environmental Liability Fund Fee shall collectively be referred to as "Fee(s)"), payments within the time allowed will result in damages being sustained by City. Such damages are, and will continue to be, impracticable and extremely difficult to determine. If Fees are not paid by Franchisee when due then in addition to the Fees, Franchisee shalt pay a late charge in an amount equal to ten percent (10%) of the. amount of the Fee that was not timely paid by Franchisee. If Franchisee fails to pay delinquent Fees within thirty (30) days of the date due, Franchisee shall pay a second (r) late charge in an amount equal ten percent (10%) on both the amount of the Fee outstanding and the first late charge. The second (2n late charge shall be inaddition to .the first (I4)'late charge. Execution _of this Agreement shallconstitute agreement by the parties that the late charges set forth in this subsection is the minimum value of the costs and actual damages caused by the failure of the Franchisee to pay the Fees within the allotted time. Such sum is liquidated damages and shall not be construed as a penalty. In addition to the late charges imposed on Franchisee for failing to pay Fees in accordance with this Agreement, Franchisee shall pay interest on the amount of Fees and late charges due and owing at the rate of one and one-half percent (I V2 °/a) per month for each month or portion of a month that the Fees and late charges remain unpaid. F. In the event Franchisee believes that it has paid Fees in excess of the Fees due to City, Franchisee may submit a request for refimd to the Administrative Services Directbr on a form provided by the Director. If proof of overpayment is satisfactory to the Director, the Director shall refund to Franchisee any overpayment. Franchisee shall not apply - any overpayment as a credit against any other amounts payable to City unless specifically authorized by the Administrative Services Director in writing. G. Each Franchise Fee payment shall be accompanied by a written statement described in Section 12.53.090 of the Code on a form provided by the Administrative Services Director. No statement filed under this Section shall be conclusive as to the matters set forth in such statement, nor shall . the filing of such statement preclude the City from collecting by appropriate action the sum that is actually due and payable. H. Framhisee may separately list the actual Franchise Fee rate and Environmental Liability Fund Fee rate as established by this Section, and any other fees required by this Agreement, on its invoices : to its customers. In no case may the Franchise Fee rate or Environmental Liability Fund Fee rate listed by the Franchisee on the invoice exceed the actual Franchise Fee of Environmental Liability Fund Fee rates imposed by the City. SECTION 5. CASH DEPOSIT Franchisee shall, prior to the placement of any commercial solid waste container on public property, provide City with a cash deposit in the sum of Five Thousand Dollars ($5,000.00) to ensure compliance with the duties and obligations imposed by the provisions of the Code, regulations adopted by the City Manager or his designee and this Agreement. 0 SECTION 6. DISPOSAL OF SOLID WASTE 3 A. Franchisee shall comply with all recycling and diversion requirements imposed by law, ordinance, or regulation on the City and/or Franchisee. On a quarterly basis, Franchisee • shall divert fifty percent (50%) of all solid waste collected by Franchisee from landfills. In no event shall Franchisee deposit fifty percent (50%) or more of the solid waste collected pursuant to this Agreement, at any landfill during any calendar quarter. In the event new or additional diversion requirements are imposed by law, ordinance or regulation on City and/or Franchisee, the City shall have the right to require Franchisee to divert additional solid waste from landfills by providing Franchisee with ten (10) days written notice of the new diversion requirements. Upon. request of the General Services Director, Franchisee shall provide all documents and information requested by the General Services Director to prove that Franchisee has complied with this subsection, any applicable law, ordinance, regulation, or condition related to recycling and diversion of solid waste. B. Franchisee shall dispose of solid waste collected or transported by Franchisee only by taking such solid waste to a State certified/licensed landfill, State certified/licensed transfer station, State certified/licensed recycling facility or State certifiedAkm sed materials recovery facility which is lawfully authorized to accept that specific .type of solid waste material. Franchisee shall not dispose of solid waste by depositing it on any land, (except a permitted facility) whether public or private, or in -any, river, stream or other waterway, or in any sanitary sewer or storm drainage system. Nothing in this Agreement shall. be deemed or construed as authorizing Franchisee to operate a landfill, recycling center, or other solid waste disposal: facility. C. All solid waste, in addition to recyclables, collected by Franchisee shall become the property of Franchisee upon placement by the customer for collection. If Franchisee violates the terms in Section 6(A) and Section 6(B) above, Franchisee agrees that the City has the future right to direct that solid waste be delivered to a permitted,disposal facility designated by City. This exercise of "flow control" by the City shall be made upon at least 30 days prior written notice to Franchisee, and. written notice shall include the violation(s) prompting the City's action regarding. 'flow control." Failure to comply with the recycling/diversion requirements and delivery/disposal of materials to a certified/licensed facility shall be a material breach of this agreement D. Franchisee shall include as a condition to its contractual agreement with its customers a provision prohibiting disposal of hazardous waste in any of Franchisees vehicles or disposal binslcontainers, and other equipmem E. Franchisee shall implement a load check program that includes, at a minimum, a visual check of all containers to be emptied to protect against inclusion of hazardous waste and shall prepare a written record of all hazardous waste discovered during the process. The records shall comply with all State and Federal Hazardous Waste Regulations, shall be maintained for the length of the teen of the Franchise, and shall be made available to the City upon request. SECTION 7. REPORTS 11 A. Franchisee shall submit to City monthly reports stating the total amount (in tons) of solid waste which Franchisee collected in the City of Newport Beach during the reportable month; the total weight (in tons) of solid waste disposed of by Franchisee at landfills and transfer stations which Franchisee collected in the City of Newport Beach during the reportable month, the total weight and the weight by material category (in tons) of solid waste disposed of by Franchisee at recycling and materials recovery facilities during the reportable month which Franchisee collected in the City of Newport Beach; the name and location of all solid waste and recycling facilities where City of Newport Beach materials were delivered; such other tonnage or other information as requested by the General Services Director including weigh tickets, recycling records; and any complaints received by the Franchisee. Such monthly reports shall be prepared on such form as required by the General Services Director. Each monthly report shall be submitted on or before the 15th day of the month following the end of the month (i.e. report due April 15 for first month after the Effective Date) and submitted to: General Services Director City of Newport Beach 3300 Newport Blvd. Newport Beach, CA 92663 B. If the report required under Subsection A is not filed by the due date specified above, the report shall be deemed delinquent. If the report remains delinquent for more than fifteen (15) days, Franchisee shall pay to City a delinquent report charge in the amount of One Hundred Dollars ($100). If the report remains delinquent for more than forty. -five (45) days, Franchisee shall pay to City a delinquent report charge in the amount of Five Hundred Dollars ($500). Such delinquent report charges shall be in addition to any Franchise Fees or other charges•payable by Franchisee under this Agreement. C. Franchisee shall comply with all recycling and diversion requirements imposed by law, ordinance, or regulation on the City. Monthly reports stating the total amount (in tons). of solid waste which Franchisee landfilled, recycled and collected should accurately reflect a 50% diversion rate as required by AB939. At the end of each quarter, monthly reports will be evaluated for AB939 compliance. Failure to comply with the recycling and diversion requirements shall be a material breach of this Agreement. SECTION & ENVIRONMENTAL LIABI LM FOND FEE A. City and Franchisee acknowledge the potential liability which can result from commercial solid waste handling services. under Federal and State environmental laws. City intends to take reasonable actions to obtain protection and indemnification against future environmental liability for solid waste generated within the City of Newport Beach and ' the activities of Franchisee under this Agreement for handling such solid waste. To provide protection and indemnification to City for Franchisee's solid waste handling activities in the City of Newport Beach, Franchisee agrees to collect from its customers a fee for payment into an Environmental Liability Fund which shall be a-separateFund established and maintained by City. The Fund shall be used to purchase insurance which will insure the City against environmental liability which may be imposed upon City as a result of Fxanchisee's activities under this Franchise and/or shall be used to pay environmental liability costs and expenses arising from or 5 related in any way to commercial solid waste handling services. The Find shall not be commingled with or included in the City's General Fund. B. The fee that Franchisee shall pay to the City Environmental Liability Fund shall be five and a half percent ' (5.5%) of the gross receipts for all commercial solid waste handling services provided by the Franchisee in the City of Newport Beach ("Environmental Liability Fund Fee(s)"). Payment of the Environmental Liability Fund Fee shall be made concurrently with the payment of the Franchise Fees specified in Section 4 of this Agreement. Franchisee agrees to pay late charges and interest. as provided in Section 4(E) of this Agreement if Franchisee fails to pay the Environmental Liability Fund Fee within the time frames set forth. herein. C. Compliance with this obligation shall not limit Franchisee's indemnification as set forth in Section 11; however, the indemnification provisions of 11(C) shall be secondary to the Fund established by this Section or any insurance purchased with the fiords provided. SECTION 9. FRANCHISEE'S RECORDS A. Franchisee shall keep and maintain books of account, income statements, tonnage reports and supporting documents and all other documents that relate in any way to business trsmsactions conducted by Franchisee in connection with the commercial solid waste handling services of Franchisee under this Agreement during the Term of this Agreement and -for a minimum period of three (3) years, or for any longer period required by law, after the Termination Date. Such records shall be kept at Franchisee's place of business .and shall be clearly identifiable . 0 B. Franchisee shall allow a representative of City to examine, audit and make transcripts or copies of the books of account, income statements, tonnage reports and supporting documents, and all other documents that relate in any way to business transactions conducted by Franchisee in connection with the commercial solid waste handling services of "Franchisee under.. this Agreement at Franchisee's place of business during normal business hours within three (3) working days of the City Manager, or his designees request or demand to inspect and/or audit these records. The purpose of such inspection and/or audit shall be for verification of the Fees paid by Franchisee. under this Agreement, and the accuracy themg and for verification of the amounts of solid waste reported by Franchisee pursuant to this Agreement. Franchisee's books of account, income statements, tonnage reports and other documents accessed by City -shall be kept confidential unless these documents are: deemed necessary by City to enforce the terms of this Agreement or are required to be produced pursuant to any applicable law. C. The parties agree that Franchisee's failure to provide its records in accordance with City's request to examine, audit and make transcripts or copies of the books of account, income statements, tonnage reports and supporting documents m accordance with Subsection B above, shall be considered a material breach of this Agreement and will result in damages being sustained by City. Such damages are, and will continue to be, impracticable and extremely difficult to determine. The parties agree that if Franchisee fails to provide its records in accordance with Subsection B above, the City may, in its discretion terminate this Agreement 6 and/or charge a late charge in the amount of Two Hundred Fifty and No/100 Dollars ($250.00) for each working day that Franchisee does not provide said records. Execution of this Agreement shalt constitute agreement by the pasties that the late charge set .forth in this subsection is the minimum value of the costs and actual damages caused by the failure of the Franchisee to provide records in accordance with Subsection B above. Such sum is liquidated damages and shall not be construed as a penalty. D. Franchisee shall reimburse City for City's casts in performance of an audit if, as a result of the audit it is determined: 1. There was any intentional misrepresentation by Franchisee with respect to the amount of Fees due to the City, or 2. There is a one thousand dollars ($1,000.00) or greater.discrepancy in the amount of Fees due to the City. Such reimbursement. shall be paid by Franchisee within thirty (30) days of the date City notifies Franchisee in writing that the Franchisee is liable to reimburse the City in conformance with this subsection and the amount of City's audit costs. E. If Franchisee refuses to provide City's auditor with its records as required by Subsection B above or disagrees with City's audit findings, then Franchisee may, within ten (10) days after written request by City's designated representative for records disclosure, or within ten (10) days after service of the audit finding, appeal the imposition of late charge or the audit findings by filing a written appeal with the City Council specifying the basis of Franchisee's failure to provide records, or the reason for its disagreement with City's audit findings. If Franchisee fails to timely request such an appeal to,the City Council, then.. the late charges and/or discrepancy determinations shall be final and conclusive and the amounts shall become immediately due and payable and/or the violation shall be deemed established. SECTION 10. INSURANCE REQUEtEMENTS Without limiting Franchisee's indemnification of City, Franchisee shall obtain, provide and maintain at its own expense during the term of this Agreement, a policy or policies of liability insurance of the type and amounts described below and in a form satisfactory to City. A. Certificates of Insurance. Franchisee shall provide certificates of insurance with original endorsements to City as evidence of the insurance coverage required herein. Insurance certificates must be approved by City's Risk Manager prior to commencement of the Franchise. Current certification of insurance shall be kept on file with City at all times during the term of this Agreement. B. Signature. A person authorized by the insurer to bind coverage on its behalf shall sign certification of all required policies. C. Acceptable Insurers. All insurance policies shall be- issued by an insurance company currently authorized by the Insurance Commissioner to transact business of insurance in 7 the State of California, with an assigned policyholders' Rating- of A (or higher) and Financial Size Category Class VII (or larger) in accordance with the latest edition of Best's Key Rating Guide, unless otherwise approved by the City's Risk Manager. D. Coverage Requirements. 1. Workers' Compensation Coverage. Franchisee shall maintain Workers' Compensation Insurance and one million dollars ($1,000,000) Employer's Liability Insurance for his or her employees in accordance with the laws of the State of California. Any notice of cancellation or non -renewal of all Workers' Compensation policies must be received by City at least thirty (30) calendar days (10 calendar days written notice ofnon-payment of premium) prior to such change. The insurer shall agree to waive all rights of subrogation against City, its officers, agents, employees and volunteers for losses arising from work performed by Franchisee that relates in any way to this Agreement. 2. General Liability Coverage. Franchisee shall maintain commercial general liability insurance in an amount not less than one million dollars ($1,000,000) per occurrence for fly injury, personal injury, and property damage, including without limitation, contractual liability. 'If commercial general liability insurance or other form with a general aggregate limit is used, either the general aggregate limit shall apply separately to the work to be performed under this Agreement, or the general aggregate limit shall be at least twice the required occurrence limit. 3:. Automobile Liability Coverage. Franchisee shall maintain automobile insurance covering bodily injury and property damage for all activities of the Franchisee arising out of or in correction with work to be performed under this Agreement, including coverage for any owned, hired, non -owned or rented vehicles, in an amount not less than two million dollars ($2,000,000) combined single limit for each occurrence. E. Endorsements. Each general liability and automobile liability insurance policy shall be endorsed with the following specific language: 1. The City, its elected or appointed officers, officials, employees, agents'and volunteers are to be covered as additional insureds with respect to liability arising out of work performed by or on behalf of the Franchisee. 2. This policy shall be considered primary insurance as respects to City, its elected or appointed officers, officials, employees, agents and volunteers as respects to all claims, losses, or liability arising directly or indirectly from the Franchisee's operations or services provided to City. Any insurance maintained by City, including any self-insured retention City may have, shall be considered excess insurance only and not contributory with the insurance provided hereunder. 3. This insurance. shall act for each insured and additional insured as though a separate policy had been written for each, except with respect to the limits of liability of the insuring company. 8 / 4. The insurer waives all rights of subrogation against City, its elected or _,ointed officers, officials, employees, agents and volunteers. affectcov 5. A4y failure to comply with reporting provisions of the policies shall not Provided to City, its elec volunteers. ted or appointed. officers, officials, employees, agents or b. The insuraIICe provided by thislic Y shall not be suspended, void canceled, or reduced in coveragePo � or in ��, by either party ex (10 calendar days written notice of non payment of rpt alter thirty (30) calendar days City. P um) written notice has Been.received by F. Timely Notice of Claims. Franchisee shall giv claim(s) made or suit instituted e Ciprompt and timely notice of ty this Agreement. ming out of or .resulting from. Franchisee's performance under G. Additionallnsurauce. Franchisee shall also procure and maintain, at its own cost and expense, any additional kinds of insurance, which in its own judgment may be necessary for its PmPer protection and Prosecution of the work SECITON 11. RESPONSIBILITY FOR DAMAGES AND IN.l!URY/MDE MCATTON A. Franchisee Responsibility. Franchisee shall be caused as a result of Franchisees acts oro responsible for any damages death °f any person or clams missi°ns including; but not limited to injuries to or improvements as a result of Francchiseesp lace and/or private Property and damages public. containers. placement and retrieval .of the commercial solid waste D- General Indemnification. Franchisee shall indemnify, City, and each of its Past, present and � hold harmless, and defend consultants, volunteers future elected officials, officers, employees, agents, affiliates, assignees, representatives, attorneys ' affiliated entities and their respective successors,r subsidiaries, and Farties") harmless for, from and a heirs and assigns (collectivelY, 'Indemnified against any costs, expenses, damages, and - losses, including actual attorneys fees (`mosses") of any kind or character to any person or ro or indirectly from or caused by any of the folio P Ply directly respective officers, ,Ors, : (i) any act or omission of Franchisee or its subcontractors, h molder members, partners, employees, agents, contracto suppliers, representatives and affiliates ra' Franchisees or Franchisee Representative's activities; iii ("Franchisee chisee Representatives h (ii) arising out of the �rvces/work � (�) Y accident or casualty within or violation t elle performed under the Franchise and/or this Agreement; (iv) any Of servicm/wo performed ur any law, ordinance or statute now or hereafter enacted arising P pursuant to the Franchise and/or this out or willful misconduct of Franchisee or any of Franchisee Agent, (v) the negligence the Services/work under the Franchise and/or this A rePentatives in the perfomiance of Franchise and/or this Agreement. Agreement; and (vi) any breach of the Franchisee shall not be required to indemnify, 0Parties from the sole negligence,ehold harmless and defend the Indecnnifiied active negligence or misconduct of the Indemnified C� shall be cons�� as authorizing any award of attorney's fees pe5: Nothing in flus indemnity Agreement- This indemnity shall apply to all in any action on or to enforce the terms of this Ag�m licies are applicable. The policy limits claims and liability regardless of whether any insurance Po Provided by the Franchisee• do not act as a limitation upon the anoint of indemnification to be pro C. Hazardous Substances Indemnification. Franchisee shall indemnify the indemnified Parties from and againstall claims, actual damages including, but not limited to, e damage, Punitive dam, injuries, ousts, speciurc al and consequential damages, natural demands,' debts, liens, liabilities, causes of sponse, remediation, and removal costs, losses, and expenses hve proceedings, interest, fines, charges, penalties action, salts, legal rt administrative P in connection with defending agate any of attorneys' and expert witness fees and costs incurred bwarred or suffered by, the foregoing or in enforcing this indemnity of any kind whatsoever Ped' or indirectly from or or asserted against, the Indemnified Parties or Franchisee arising directlyyor the failure to clean causedbyany of the following: (i) the violation of any Envirotunental La Subst�ice; and (u) up and mitigate the consequences of the spill or release n any aSubstance at any place Franchisee's activities under this Agreement concerning any Hazardous Agreement, or. . where Franchisee stores or disposes of solid or hazardous waste pursuant to this The foregoing indemnity is intended to preceding Agreements between City and Franchisee• anon as an agreement pursaant to the Comprehensive Environmental Response; Cbmpens operate amendments thereto; California Health and and Liability Act 42: U.S.C. Section 9607(e) and any d indemnify City from liability. Safety Code Section 25364, to insure, Protect, hold harmless, an ental Laws" shall mean "any and all present and As used herein, the terra . "&ivironm rale, regulation or otherwise); future federal, state or local laws (whether common law, statute, 'ts,. orders. and any other requirements of Governmental Authorities relating to the pe�f "Hazardous Substance. Activity" (as defined enviromnen"Hazardous Substance" or any " or rehensive Environmental Response, herein) (including, without limitation, the Comp Compensation and Liability Act of 1980 (42 U.S.C. §§ 9601 et seq.) as amended from time to time and the applicable provisions of the California Health and Safety Code and California Water Code). As used herein, the term "Hazardous Substance" shall mean "any (a} chemical, compound, material, mixture or substance that is now or hereinafter defined or listed in, or otherwise classified pursuant to any Envi�ronniental Law as a "hazardous substariceto�hazardous� " "extremely hazardous waste," "infectious waste, material," "hazardous waste, substances by "toxic pollutant," or any other formulation intended to define, list or classify Mural gam, es or affect and (b) petroleum, petroleum by-products, reason of deleterious properti synthetic gas usable for fuel (or mixtures of natural gas natural gas liquids, liquefied natural gas, id fluids, produced waters and in such synthetic gas), ash, municipal solid waste, steam, drilling and production of crude oil, natural other wastes associated with the exploration, development gas or geothermal resources a to meet all requirements of City's D. AIB Indemnification- Franchisee hof the solid waste stream > by Source Reduction and Recycling Element as to the portion Franchisee. Franchisee agrees to protect, defend' indennnify,Management ard, od hold City r harmless against fines or penalties imposed by the California Integrated Waste 10 arising from the failure of Franchisee to meet the Integrated Waste Management Act diversion requirements with respect to the portion of the commercial waste stream collected by Franchisee. SE. Notice. City agrees to give notice to Franchisee when the City receives a claim for damages or other liability for which Franchisee has provided indemnification under this Section. SECTION 12. COMMERCIAL SOLID WASTE COLLECTION SERVICES A. Frequency of Collection. Franchisee shall collect all solid waste, including recyclable materials, as authorized in this Agreement, on a schedule to be agreed upon between the Franchisee and its customers. The schedule shall provide for collection service at least once Per week provided, however, that such schedule shall not permit the accumulation of solid waste in quantities that are unreasonable or detrimental to the public health or safety. Requests for collection from premises with overflowing bins or containers, or from premises where there have been missed pickups, shall be serviced within 24 hours of any such request by the customer or City. If requested by the City at any time, Franchisee's collection schedule shall be submitted to the City for its approval. B. hours and Days of Collections. No collection of solid waste shall occur in any area of the Cityafter 6:30 p.m. and prior to 5:00 a.m. No collection of solid waste from commercial premises within 500 feet of occupied residential premises, motels or hotels shall be made by Franchisee, nor shall any of Franchisee's collection vehicles be operated in any residential areas of the City except between the hours of 7:00 a.m. and 6:30 p:m., - Monday through Friday, nor on any Saturday or Sunday, except betwem the hours of 8:00 a.m. and 6:00 Pim Collection on Sundays shall be limited to the disposal of, commercial waste from commercial premises which require collection every day due to public health and safety concerns. SECTION 13. VEHICLES AND EQUIPMENT . A. Any and all containers provided to customers of Franchisee for storage, collection or trrausportation of commercial solid wastes shall meet the requirements designated by the General Services Director as well as State of all 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 11 performance of this Agreement shall be registered with the California Department of Motor Vehicles. All vehicles must pass the required periodic `BTT" inspection and Franchisee shall provide evidence of such to the General Services Department as requested. Upon request by the City, Franchisee shall provide records from the most recent California Mghway Patrol biennial . inspection of the terminal(s) responsible for the maintenance and repair of equipment used in the City. All vehicles shall be properly maintained, kept clean and in good repair, and shall be uniformly painted. All commercial solid waste containers used in the performance of this Agreement shall be kept clean and in good repair and shall be uniformly painted to the satisfaction of the General Services Director. All vehicles and equipment used by Franchisee in the performance of this Agreement may be subject to inspection by the City upon twenty-four (24) hours notice by the General Services Director. All drivers employed by Franchisee and operating equipment in the City shall be properly licensed for the class of vehicle they drive, enrolled in the Department of Motor Vehicles Employee Pull Notice (EPN) program, and abide by all State and federal regulations for driver hours and alcohol and controlled substances testing. 2. Each vehicle shall be so constructed and used in a manner so that no rubbish, garbage, debris, oil, grease. or other material will blow, fall, or leak out of the vehicle. All solid waste shall be transported by means of vehicles which are covered in such a manner as to securely contain all solid waste and to prevent such solid waste from projecting, blowing, Ming 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 collectionvehicle shall be equipped with trash bags, masking tape and notice of non -collection tags for the purpose of- separating hazardous waste for return to the generator. A communications device such as a two- way radio or a cellular -telephone shall also be maintained on each vehicle at all times. 3. Franchisee shall not store any vehicle or equipment on any public street, public right-of-way or other public property in the City of Newport Beach without obtaining a Temporary Street Closure Permit from the Public Works Department and prior written consent of the General. Services Director. 4. Should the General Services Director at any tune give written notification to Franchisee that any vehicle does not comply with the standards hereunder, the vehicle shall be promptly removed from service -by Franchisee and not used again until inspected and authorized in writing by the General Services Director. 5. Placement of containers and equipment shall be in accordance with the standards set by the Director of Public Works and in accordance with the standards set forth in Exhibit A which is incorporated herein by this reference. Any deviation from the standards set by the Director of Public Works or the standards set forth in Exhibit A shall require written approval from the Public Works Director. SECTION 14. ABANDONED CONTAINERS A. If Franchisee abandons any commercial solid waste container within the City of Newport Beach, the City may remove the container and/or dispose of the contents of the container. 12 • B. If City is required to remove a roll -off or compactor container abandoned by Franchisee and/or disposes of the contents of any container abandoned by Franchisee,. City may charge Franchisee for City's costs incurred in such removal/disposal and for City's costs of storage of the container. Franchisees who are engaged in providing rolloff containers shall maintain a Five Thousand Dollars and No Cents ($5,000.00) cash deposit with City Revenue Division to reimburse City for such costs within ten (10) days of the date of City's invoice for such costs. C. For the purposes of this Section, "abandoned" includes: 1. Franchisee's failure to remove the container within the time period specified by the City Council upon termination of the Franchise pursuant to Section 12.63.140 of the Code; 2. Franchisee's failure to remove the container within ten (10) working days after the expiration of the Franchise granted to Franchisee, except in the case where Franchisee has been granted an extension of the term of said Franchise or Franchisee. has been granted a subsequent franchise authorizing Franchisee to collect and transport the type or types of solid waste for which the container was used pursuant to this Agreement. 3. 'Franchisee's failure to collect the container and dispose of the contents of the container within five (5) calendar days after City's Director of General Services issues written notice to Franchisee to dispose of the contents. SECTION 15. COMPLIANCE WITH LAW A. Franchisee shall perform all commercial solid waste handling services in accordance with applicable federal, state, and local law, including Chapter 12.63 of the Code, Article XM of the City Charter, Ordinance No. 200_- and in accordance with the terms and conditions of this Agreement. B. During the Term of this Agreement, Franchisee and City agree that the City's ordinances may be amended as provided herein, as provided in Chapter 12.63 or as necessary to permit the City to comply with changes to federal, state, and local legislative regulatory requirements, which may affect or alter City's solid waste handling obligations or requirements for solid waste management. Franchisee agrees to comply with any such amendment of the City's ordinances. SECTION 16. PERMITS AND LICENSES Franchisee shall obtain and maintain, at Franchisee's sole cost and expense, all permits and licenses applicable to Franchisee's operations under the Franchise which are required of Franchisee by any governmental agency. Payment o f Franchise Fees and Environmental Liability Fund Fees shall be in addition to any permit or license fees or business tax prescribed by the City for the same period. I3 Franchisee shall obtain and maintain for the Term of this Agreement an account with the Orange County landfills. if Franchisee disposes of solid waste at an Orange County landfills, the Franchisee shall only dispose of Newport Beach solid waste at Orange County landfills utilizing • their account (no "cash only" disposal). SECTION 17. PUBLIC EDUCATION ACTIVITIES A_ City and Franchisee shall cooperate in co -sponsoring not more than one promotional event per year, as mutually agreed upon in advance by the parties, which is related to the implementation of commercial solid waste handling services and recycling services. B. Each year during the term of this Agreement, on an annual basis, Franchise shall transmit promotional brochures or fliers to its customers, and to such prospective customers as it may select, informing them of the commercial solid waste handling services and recycling services which are provided by the Franchisee as well as hazardous waste disposal requirements. C. All promotional brochures, fliers or other information distributed by Franchisee hereunder shall be printed on recycled paper. All such informational materials shall be approved in advance by the City's General Services Director. SECTION M TERM NATION AND SUSPENSION A. The franchise granted to Franchisee may be terminated by the City Council pursumrt•to Section 12.63.144 of the Code. B. in the event the Franchise is terminated pursuant to Subsection A above or the term of this Agreement expires: 1. Franchisee shall have no right or authority to engage in commercial solid waste handling operations in the City of Newport Beach, subject to the provisions of Sections 49520-49523 of the Public Resources Code. 2. Franchisee shall, however, remain liable to City for any and all Franchise Fees and Environmental Liability Fund Fees that would otherwise be payable by Franchisee, for any and all We charges and interest assessed pursuant to Section 4 of this Agreement, and for any and all delinquent reportlrecord charges assessed pursuant to Sections 7 or 9 of this Agreement. 3. Franchisee shall have a continuing obligation to submit to City all reports required by Sections 7 and 9 of this Agreement which relates to commercial solid waste handling services performed by Franchisee up to and including the date of termination, suspension, or expiration. 4. Franchisee shall allow the solid waste generators served by Franchisee to arrange for commercial solid waste handling services with a solid waste enterprise collector authorized to perform such services, without penalty or liability for breach of contract on the part of the generators, for such period of time as Franchisee is not authorized to perform such services because termination of or suspension. 14 5. Franchisee agrees to continue to provide the indemnifications required in this contract after its suspension or termination. Such indemnifications include, but are not limited to, the hazardous materials indemnification and AB939 indemnification as set forth in Section 11. C. In the event this Franchise is terminated pursuant to Subsection A above, then within the time period specified by the City Council, Franchisee shall remove all of Franchisee's commercial solid waste containers, from all Franchisee's collection service locations and shall properly dispose of all solid waste in such containers. D. in the event the Franchise is terminated pursuant to Subsection A above or expires without an extension of the term and without a grant of a subsequent franchise allowing Franchisee to continue performing such services, then within ten (10) days of such termination or expiration Franchisee shall either: 1. Submit to City's General Services Director a list of the names and addresses of solid waste generators in Newport Beach for which Franchisee provided services as of the date of termination or expiration (i.e. Franchisee's City of Newport Beach customer list); or 2. Send written notification to each solid waste generator on Franchisee's customer list that Franchisee is no longer authorized to provide commercialsolid waste handling services in the City of Newport Beach. Such notification shall be in the form provided by City's General Services Director and shall be personally delivered or shall be sent by first class mai% postage prepaid, to the customers' billing addresses. Franchisee shall submit to City's General Services Director an affidavit, signed under penalty of perjury, stating that the required notification has been provided by Franchisee to all of Franchisee's City of Newport Beach customers. SECTION 19. ASSIGNMENT Franchisee shall not assign, sell, subcontract, transfer or otherwise delegate its authority to perform any portion of the solid waste handling services or obligations under the Franchise without prior express consent of the City Council. This prohibition includes any transfer of ownership or control of Franchisee, or the conveyance of a majority of Franchisee's stock to a new controlling interest. City's consent shall not be unreasonably withheld. SECTION 20. MISCELLANEOUS PROVISIONS A. Notices. Except as otherwise provided in this Agreement; all notices required by this Agreement shall be given by personal service or by deposit in the United States mail, postage pre -paid and return receipt requested, addressed to the parties as follows: 0 To: General Services Director 15 City ofNewport Beach 3300 Newport Blvd Newport Beach, CA 92663 • To Franchisee: Notice shall be deemed effective on the date personally served or, if mailed, three (3) days after the date deposited in. the mails. B. integrated Agreement. This Agreement represents the full and complete ur�erstanding of every kind or nature whatsoever between the City and Franchisee, and all preliminary negotiations and other agreements of any kind or nature are merged herein. No verbal agreement or implied covenant shall be held to vary the provisions herein. C. Amendments. This Agreement supersedes all prior agreements and understandings between the parties and may not be modified or terminated orally, and no. modification, termination or attempted waiver of any of the provisions hereof shall he binding unless in writing and signed by the party against whom the same is sought to be enforced D. Applicable Law. The laws of the State, of California, and applicable Federal law, shall govern this Agreement and all matters relating to it and any action brought relating to Ibis Agreement shall be adjudicated in a court of competent jurisdiction in the County of Orange. E. Authori The parties signing below represent and warrant that they have the requisite authority to bind the entities on whose behalf they are signing. F. Severability. If any term or portion of this Agreement is held to be invalid, illegal, or otherwise unenforceable by a court of competent jurisdiction, the remaining provisions of this Agreement shall continue in full force and effect. G. Waiver. A waiver by either party of any breach, of any terns, covenant or condition contained herein shall not be deemed to be a waiver of any subsequent breach of the same or any other term, covenant or condition contained herein, whether of the same or a difference character. H. Interpretation. The terms of this Agreement shall be construed in accordance with the meaning of the language used and shall not be construed for or against either party by reason of the authorship of this Agreement or any other rule of construction that might otherwise apply. I. Equal Qpggrtum Employment. Franchisee represents that it is an equal opportunity employer and it shall not discriminate against any authorized subcontractor, employee or applicant for employment because of race, religion, color, national origin, handicap, ancestry, sex or age. . 16 • • I. Compliance with Laws: Franchisee shall at its own cost and expense comply with all statutes, ordinances, regulations and requirements of all governmental entities, including federal, state, county or municipal, whether now in force or hereinafter enacted Franchisee agrees to obtain a business license from the City in accordance with the. Code. The parties hereto agree that the Franchise and this Agreement are the only authorizations to conduct solid waste collection business in the City and that the issuance of a business license does not grant the Franchisee a right to conduct solid waste collection or other business in the City. K. Conflicts of Interest: Franchisee or its employees may be subject to the provisions Of the California Political Reform Act of 1974 (the "Act"), which (i) requires such persons to disclose any financial interest that may foreseeably be materially affected by the work performed under this Agreement, and (ii) prohibits such persons from making, or participating in making, decisions that will foreseeably financially affect such interest. If subject to the Act, Franchisee shall conform to all requirements of the Act. Failure to do so constitutes a material breach and is grounds for immediate termination of this Agreement by City. Franchisee shall indemnify and hold harmless City for any and all claims for damages resulting from Franchisee's violation of this subsection. [SIGNATURES ON FOLLOWING PAGE] 17 IN WITNESS WHEREOF, the parties have caused this Agreement to be executed on the day and year first written above. "CITY" CITY OF NEWPORT BEACH, a Municipal Corporation ATTEST LAVONNE M. HARKLESS . City Clerk APPROVED AS TO FORM: AARON C. HARP Assistant City Attorney 18 BY: STEVEN ROSANSKY, Mayor `ZRANCHISEE" BY: NAME: (om) TITLE: DATE: BY: NAME: (Print} TITLE: • • • Exhibit A ddoh qW City of Newport Such LICENSED & FRANCHISED CON MEiZCIAL SOLID WASTE HAULERS Russell Dix, General Manager Jerry Maw Assistant Vice -President Republic- SaNkem(Comlidated Rainbow Disposal 12949 Telegraph Road Santa Fe 17121 Nichols Street Springs, CA 90670 Huntington Beach, CA 92647 Phone (714) 238-3300 Fax (714) 238-3304 Phone (714) 847-3581 Fax (714) 841-4660 Dna► Shubin, President Judith Ware, President Fodersa Disposal Ware Disposal PO Box 14730 P.O. Box 8206 Irvine, CA 92623 Newport Beach, CA 92658 Phone (714) 259.0908 Fax (714) 259-0284 Phone (714) 834-0234 Fax (714) 664-0696 George Lamuk David Ross, District Manager CR&R Waste Management of Orange County 11292 Weston Avenue 1800 S. Oraod Street Stanton, CA 90680 Santa Ana, CA 92705 Panne (714) 890-6300 Fax (714) 890-0961 Phone (71.4) 480-2300 Fax (714) 559-1742 Jesus Roberto Robert's Waste Recycling Inc. 926 W. Pomona Strut Senna Ana, CA 92707 (714) 557-2533 Fax (714) 664-2946 Daniel Agajanian Direct Disposal 5901 Warner Ave #229 Huntington Beach, CA 92649 Phone (323) 262-1604 Fax (714) 848-5056 John Kstangian, President Key Disposal, Ine. 1141 South Taylor Avenue Montebdl% CA 90640 Phone (323) 721-5441 Fax (323) 721-8601 Newport Beach Municipal Code 12.63.030 Franchise to Operate Required - No person shall provide comanercW solid waste handeling services or conduct a solid waste. cmarprise in the City without having Tim boon awarded a franchiw and entered into a franchise agmement with the City. 03A02F"7 • • • City of Newport Beach OTHER FRANCHISED SOLID WASTE HAULERS (Conshvetion & DemoWon) Robert T. Hall, Vice President American Wreddag, for- 2459 or2459 Lee Ave. South El Monte, CA 91733 Phone (626) 350-8303 Fax (626) 350-8322 Bud GreenkA Owner Greenleaf Grading Company 7702 Yukon Drive Huntington Beach, CA 92648 Phone (714) 842-7655 David Later, Owner The Lane Company 5113 W. Kest Ave. Santa Ana, CA 92704 Phone (71.4) 775-6905 Telford T. Cottain, President Tight Quarters, Inc. 2031 S. Anne Street Santa Ana, CA 92704 Phone (714) 557-7901 Fax (714) 241-3820 Kevin Ray David Thomas, President Kevin Ray DemoliUkm West Coast Land Clearing, Inc. 580 Explorer Street P. O. Box 90126 Brea, CA 92821 Coag Beach, CA 90809-0126 Phone (714) 990-8937 Fax (714) 990-8941 Phone (562) 599-2882 1Fax (562) 599-2787 Nick Cousyty Owner Rich B. Holt Coup Grading and Demolition Pacific Earthworks 2034 N. Capella Corot 34249 Camino Capistrano # 216 Costa Mesa, Ca 92626 Capistrano Beach, CA 92624 Phone (714) 557-1566 Fax (714)557-1212 Phone (949) 496-1660 David Roche, Owner Don Goodwin Roche Excavating Goodwin Enterprises 1051 East 6th Street P.O. Box 7388 Santa Ana, CA 92701 Capistrano Beach, CA 92624 Phone (714) 953-1650 Fax (714) 953-1663 Phone (949) 498-4680 Tim Greenleaf John Thomas Tim Greenleaf Engineering Progressive Land. Clearing, dba Thomas Demolition. 18685 Main Street, Suite A-371 4.505 ManhaUm Beach Blvd. Huntington Beach, CA 92648 Lawndale, CA 90260 Phone (714) 964-1753 Fax (714) 964-1783 Phone (310) 263-0400 Mark Sabegian Southern California Euvlreameahi 25422 Ttabuco Rd #105-409 Lake Forest, CA 92630 Phone (949) 770-1768 Richard Ludt IRS Demolition 9309 Rayo Avenue South Gate, CA 90280 Phone (323) 357-6900 Jodi Preston Newport Coast Demolition 1278 Gleuneyrc St #198 Laguna Beach, CA 92651 Phone(949)645-1479 John Branston JB services PO Box 6982 Oranges CA 92863 Phone (714).547-2555 10Newport Beach Municipal Code 12.63.030 Franchise to Operate Required - No person shall provide cormnercial solid waste haodeliug services or conduct a solid waste enterprise in the City without having first been awarded a 5a3chW and entered into a franchise agreement with the (Sty. 03WJ2007 >uchonzc.. to .:^iisit Ad;_..cements ,;fail tiros inc:udim c!+._ ._.u_.._ T, Der ee of rite Superior Court of Orange Cauntr, Caiiforua NNumber ,?-d_:!. Secte ;lber 29. 196 i . ard A-2-1331 June 11, 196_. PROOF OF PUBLICATION STATE OF CALIFORNIA) ) ss. COUNTY OF ORANGE ) I am a Citizen of the United States and a resident of the County aforesaid; I am over the age of eighteen years, and not a party to or interested in the below entitled matter. I am a principal cleric of the NEWPORT BEACH - COSTA MESA. DAILY PILOT, a newspaper of general circulation, printed and published in the City of Costa Mesa, County of Orange, State of California, and that attached Notice is a true and complete copy as was printed and published on the following dates: MARCH 31,2007 I decla i!31aer pvnQlLV 03' per]Unj, th2-t the foregoing is true and Coo ract. Executed on MARCH 31 , 2 0 0 7 at Costa Mesa, California. Signature MI -7 %CE Of N[I! Of iWPORT CINs A E SOLID 1ISE TO O PRO - Subject ordinance was introduced on the 13th day of March, 2007, and was adopted on thl 27thday of March, ?007. AYES, COUNCIL MEM- BERS: CURRY, SELICH. MAYOR ROSANSKY. HENN, DAIGLE, GARD• NER, WEBB NOES. COUNgIL MEIIF- BERS: NONE ABSENT COUNCIL MEM BERS: NONE ABSTAIN COUNCIL MEMBERS: NONE MAYOR- Steven Rosansky CITY CLERK: Lavonne M_ Harkless The entire taxt is avail able for raview in the City Clerk's office of the City of Newport Beach. Published Newport Beachlcosta Mesa Daily Pilot. March 31. 2007 Sa709 E r CITY OF NEWPORT BEACH CITY COUNCIL STAFF REPORT COUNCI GENDA N0. D -13-2007 Agenda Item No. 6 February 27,2007 TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL FROM: City Attorney's Office Aaron Harp, Assistant City Attorney 949/644-3131 or aharp@city.newport-beach.ca.us SUBJECT: COMMERCIAL SOLID WASTE COLLECTION: RESOLUTION. EXPRESSING THE CITY'S INTENT TO GRANT NON-EXCLUSIVE COMMERCIAL SOLID WASTE COLLECTION FRANCHISES TO FRANCHISEES ISSUE: Should the City publish a notice that it intends to award Franchises and enter into franchise agreements with those Commercial Solid Waste Collection Companies listed, In Exhibit A? RECOMMENDATION: Adopt the attached resolution expressing the City's intent to award Franchises and enter into franchise agreements with those Commercial Solid Waste Companies listed in Exhibit A. DISCUSSION: Solid waste is collected, recycled, and disposed of by either City crews or commercial solid waste haulers. City crews collect approximately 75% of all residential solid waste while private haulers collect the remainder of the residential waste stream and all commercial solid waste. The City has an integrated solid waste management program wherein all solid waste collection is monitored to ensure the health and safety of all residents and business owners. A secondary consideration is the achievement of the State recycling mandates (AB939), which include a 50% recycling rate. One of the ways that staff has developed to manage solid waste operations and ensure meeting the recycling mandate is through the issuance of non-exclusive solid waste franchises to solid waste haulers and demolition contractors who apply to operate in the Resolution of Intent — Solid Waste Franchise Agreement February 27, 2007 Page 2 City. In addition to mandating the recycling requirements for the private haulers, the franchise stipulates a franchise fee in the amount of 16% of gross monthly paid receipts to be paid to the City which, among other things, funds environmental insurance premiums, staff work, and road and alley repairs. Article Xlll of the City Charter (Granting of Franchises) and Chapter 12.63 of the Municipal Code (Solid Waste Management) establish requirements and procedures to, grant a franchise to provide solid waste handling services within the City. There are currently twenty-five solid waste franchisees operating under separate agreements to collect and transport solid waste generated within the City limits. There is no limit on the number of franchises that Council may approve. Such a policypermits competitive, service-oriented.refuse operations. All of the existing franchises are set to expire as of March 1, 2007. Pending completion of the public hearing and Council approval on March 13th and 27th, 20070 the franchises awarded to those -persons and entities listed in Exhibit A will be applied retroactively to March 1, 2007 and will expire on March 1, 2012. Environmental Anal semis: WA _ Public Notice: This agenda item may be noticed according to the Brown Act (72 hours in advance of the public meeting at which the City Council considers the item)., Prepared by: Submitted by: Aaron Harp, Robin Clauson, Assistant City Attorney City Attorney Attachments: Exhibit °A" Resolution 2007 - EJ I RESOLUTION NO. 200i- _ • A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF NEWPORT BEACH DECLARING ITS INTENTION TO CONDUCT A PUBLIC HEARING TO CONSIDER THE GRANTING OF NON-EXCLUSIVE COMMERCIAL SOLID WASTE COLLECTION FRANCHISES TO FRANCHISEES WHEREAS, the City Council finds and determines that providing for the collection of commercial solid waste within the City is a vital public service and is a matter of great public concern because solid waste haulers use the public right-of-way and improper solid waste management creates the potential for public nuisance, air pollution, fire hazards, rat and insect infestation and other problems affecting the public health, safety and welfare; and WHEREAS, non-exclusive franchises for use of the public -right-of-way to provide I commercial solid waste handling services will promote the public health, safety, and Welfare by promoting permanence and stability among those businesses wishing to provide such service and accountability to the City for compliance with current and future state mandates; and, WHEREAS, pursuant to Article Xlll of the City Charter; Chapter 92.63 of the Newport Beach Municipal Code, and Sections 49300 and 49500-49523 of the Public Resources Code, the City is authorized to grant a franchise to provide commercial solid waste handling services with. private solid waste providers; and, WHEREAS, those persons 'and entities set forth in Exhibit A hereto ffranchiseee) have requested a non-exclusive franchise to provide commercial solid i waste handling services. r� -9- r NOW, THEREFORE, the City Council of the City of Newport Beach resohres as fogows: Section 1: A public hearing shall be conducted on March 13, 2007, at 7:00 p.m., or as soon thereafter as. practical, in the City Council Charmers, 3300 Newport Boulevard, Newport Beach, California, to consider the granting of non-exclusive franchises to the Franchisees pursuant to the following tems and conditions: a. Franchise effective date: Upon approval of the City Council, each franchise will be effective as of March 1, 2007. b. Franchise fee: Ten and a half percent (10.5°x6) of gross receipts for all commercial solid waste handling services provided. by the Franchisee in the City. C. Environmental liability fund fee: Five and a half percent (5.5%) of gross receipts for all commercial solid waste handling services provided by the Franchisee in the City. d. Term of Franchise: From the effective date to March 1, 2012. e. Laws: Franchisee shag comply with all State, Federal and City laws and 'regulations, the terms and conditions of the franchise . agreement, the City Charter, and the Newport Beach Municipal Code. Section 2: The City proposes to offer a non-exclusive franchise to Franchisees who are all presently licensed and permitted to conduct business in the. City. Persons who have an interest in or objection to the proposed franchise may appear before the City Council and be heard on the date and time fisted above. -2- Section 3: This Resolution of Intention shalt be published in the City's official ' newspaper within fifteen (15 days of 'rts adoption and at (east ten (10) days prior to March 13, 2007. ADOPTED this day of , 200,, ATTEST: LaVonne Harkless, City Cferk s Steven Rosansky, Mayor -3- t MISIT A AMMk City of Newport Beach LICENSED & FRANCHISED COMMERCIAL SOLID WASTE HAULERS Russell Dix, Genal Mmftw Jerry Mohnen, Assistant VimPresideut Republic ServicaslCo0ao11dated Rainbow Disposal 12949 Telegraph Road Santa Fe 17121 Nichols Street Springs, CA 90670 Huntington 13each, CA 92647 Phone (714) 238-3300 Fax (714) 238-3304 Phone (714) 847-3581 Fax (714) 841-4660 Don Shubin, President Judith ware, President Federal Disposal . ware Disposal PO Boat 14730 P.O. Box 8206 Irvine, CA 92623 Newport Beach, CA 92658 Phone (714) 259-0408 Fax (714) 259-0284 Phone (714) $34-0234 Fax (714) 664-0696 George Lummk CR&R 11292 Western Avolm Stanton, CA 90680 Phone (714) 890-6300 Fax (714) M-0961 Jesus Roberto RoberNs Waste Recyclieg lnc. 926 W. Pomona Street Santa Ana, CA 92707 (714)557-2533 Fax (714) 664-2946 Daniel Agajanian Direet (Disposal 5901 Warner Ave #229 HunthNo n Beach, CA 92649 Phone(323)262-1604 Fax (714) 848-30% David Roes, District Manage' waste Mum V=mt of Orange County I too S. Grand Street Santa Ana, CA 92705 Phase (71'4) 480-2300 Fax (714) 559-1742 John Kzta� President Key Disposes fie. 1141 South Taylor Avenue h fontebellay CA 90640 ... Phone (323) 721-5441 Fax (323) 721-8601 Newport Beach Municipal Code 12.63.030 Franchise to Operate Required - No person shall provide commercial solid waste haudeling services or conduct a solid waste enterprise in the City withourt having fns been awarded a fiwohise, and entered into a &michise agreement with the City. C. VCfWIT A CStp. of Newport Beach OTHER FRANCHISED SOLID WASTE HAULERS (Constmetion & Demolition Robert T. Hall, Vice President David Lane, Owner American Wrecking, inc. The Lane Company 2459 Lee Ave_ 5113 W. Kent Ave. South El Monte, CA 91733 Santa Ana, CA 92704 Phone (626) 350-8303 Fax (626) 350-8322 Phone (714) 775-6905 Bud GreeNeal Owner Telford T. Cottam, President Greenleaf Grading Company Tight Quartets, Inc. 7702 Yukon Drive 2031 S. Anne Sued Huntington Brach, CA 92648 Santa Ana, CA 92704 Phone(714)942-7655 Phone(714)557-7901 Fax(714)241-3820 Kevin Ray David Thomas, President Kevin Rap DemoRdoo West coast Land Clearing, Inc. 580 Explorer Street P. O. Baas 90126 Brea, CA 92821 Long Beach, CA 90809-0126 Phone (714) 990-8937 Fax (714) 990-8941 Phone (562) 599-2882 Fax (562) 599-2787 Nick Cousyn, Owner Rich B. Holt Cousyn Grading and Demolition Pacific Eartbworio 2034 N. Capella Court 34249 Camino Capistrano # 216 Costa Mesa, Ca 92626 Capistrano Beach, CA 92624 Phone (714) 557-1566 Fax (714)557-1212 Phone (949) 496-1660 David Roche, Owner Don Goodwin Roche Excavating Goodwin Enterprises 1051 East 6th Street. P.O. Box 7388 Sasha Ana, CA 92701 Capistrano Beach, CA 92624 Phone(714)953-1650 Fax(714)953-1663 Phone(949)498-4680 Tim Greenleaf John Thomas 77m Greenleaf Engiaeeretg Progressive Laud Clearing, dba 71omas Dem fffion 18685 Main Street Suite A-371 4505 Manhattest Beach Bivd. Huntington Beach, CA 92648 Lowndale, CA 90260 Phone (714) 964-1753 Fax (714) 964.1783 Phone (310) 263-0400 Mark Sahagim Southern California Environmental 25422 Trabuc:o Rd # 105-409 Lake Forest, CA 92630 Phone (949) 770-1768 Richard Ludt IRS Demolition 9309 Rayo Avenue South Gate, CA 90280 Phone(323)357-6900 Jodi Preston Newport Coast Demolition 1278 Oienwfre St. # 198 Laguna Beach, CA 92651 Phone (949) 645-1479 John Branston in Services PO Box 6982 Orange, CA 92863 Phone (714) 547-2555 iftewpmt Beach Municipal Code 12.63.030 Franchise to Operate Required - No person shall provide commercial %Molid waste handeling services or conduct a solid waft .ermgwise in the City without having fust been awarded a franchise and entered into a fianchise agreement with the City. FRANCHISE EXTENSION AGREEMENT BETWEEN THE CITY OF NEWPORT BEACH AND GREENLEAF ENGINEERING ALSO KNOWN AS TIM GREENLEAF ENGINEERING, INC. This Franchise Extension Agreement is entered into between the City of Newport Beach ("City") and Greenleaf Engineering also known as Tim Greenleaf Engineering, Inc. ("Greenleaf") this 13th day of December, 2005, with regards to the following facts: RECITALS WHEREAS, by approving Ordinance No. 2002-25 on or about October 22, 2002, the City granted Greenleaf a non-exclusive franchise to provide solid waste collection services ("Franchise") and entered into a solid waste franchise agreement ("Franchise Agreement") with Greenleaf. The Franchise and Franchise Agreement will expire on January 9, 2006; and WHEREAS, City and Greenleaf 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 Greenleaf 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 Greenleaf 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, C)K Ma ager APPROVED AS TO FORM: ,,— C Aaron C. Harp, Assistant City Attorney GREENLEAF ENGINEERING ALSO KNOWN AS TIM GREENLEAF ENGINEERING, INC. A California Corporation By: Name--� el�� Title: 2a c,A By: _ Name: Title: ATTEST: EWp°R�. -✓ LaVonri Har I s, City Clerk c [END SIGNATURES] CITY OF NEWPORT BEACH CITY COUNCIL STAFF REPORT Agenda Item No. 3 November 22, 2005 TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL FROM: Mark Harmon, General Services Director ext. 3055, mharmon@city.newport-beach.ca.us SUBJECT: ORDINANCE EXTENDING NON-EXCLUSIVE SOLID WASTE FRANCHISES WITH FRANCHISED SOLID WASTE ENTERPRISES AND APPROVAL OF ASSIGNMENT TO USA WASTE OF CALIFORNIA ISSUE: 1. Should the City of Newport Beach extend the non-exclusive franchises for commercial solid waste handling services with private solid waste enterprises? 2. Should the City Council approve the assignment of the Waste Management of Orange County, Inc.'s franchise to USA Waste of California? RECOMMENDATION: 1. It is recommended that the City Council approve first reading and pass to second reading and adoption at the City Council's next regularly scheduled meeting. 2. Approve the assignment of the Waste Management of Orange County, Inc.'s franchise to USA Waste of California. DISCUSSION: Background: Since 1996, the City Council has approved franchises with the private solid waste enterprises listed on Exhibit A. City staff has been reviewing possible modifications to Chapter 12.63 of the Newport Beach Municipal Code and the franchise agreement to encourage additional recycling, reduce auditing costs, and update reporting requirements. However, the solid waste franchises previously awarded by the City are set to expire between January 1, 2006 and March 1, 2006. City staff is recommending that the City Council adopt the attached ordinance to extend the franchises until March 1, 2007. City staff has adopted a work schedule that will accomplish negotiations with the franchisees so that a new solid waste franchise ordinance and franchise agreement can be brought to the City Council prior to March 1, 2007. The Ordinance also seeks City Council approval of the assignment of the Waste Management of Orange County, Inc.'s franchise to USA Waste of California, Inc. dba as Ordinance Extending Non -Exclusive Solid Waste Franchises November 22, 2005 Page 2 Waste Management of Orange County. Waste Management of Orange County, Inc. recently informed City staff that that it has merged with USA Waste of California, Inc., a Delaware corporation, dba as Waste Management of Orange County and this Ordinance would allow for the assignment of the franchise. Prepared by: Andrea Riles, Management Assistant Qi ihmiffori hir General Services Director Attachments: Exhibit A — Franchised Solid Waste Enterprises Proposed Ordinance EXHIBIT A FRANCHISED SOLID WASTE ENTERPRISES Pagel of 2 Jeffrey Moffat, President Judy Ware, Owner RAINBOW DISPOSAL CO., INC. WARE DISPOSAL, INC. 17121 Nichols Street P.O. Box 8206 Huntington Beach, CA, 92647 Newport Beach, CA, 92658 (714) 847-3581 (949) 833-9901 FAX 841-4660 FAX 664-0696 Waste Management of Orange County, Telford T. Cottam, President Inc. franchise to USA Waste of TIGHT QUARTERS, INC. California, Inc. dba as Waste 2031 S. Anne Street Management of Orange County Santa Ana, CA, 92704 1800 South Grand Street (714) 557-7901 Santa Ana, CA, 92705 FAX 241-3820 (714) 480-2300 FAX 559-1742 John Katangian, President Robert T. Tall, President KEY DISPOSAL, INC. AMERICAN WRECKING, INC. 1141 South Taylor Avenue 2459 Lee Avenue Montebello, CA, 90640 South EI Monte, CA, 91733 (323) 721-5441 (626) 350-8303 FAX 721-8601 FAX 350-8322 David Thomas, President Bud Greenleaf, Owner WEST COAST LAND CLEARING GREENLEAF GRADING, CO P.O. Box 90126 7702 Yukon Drive Long Beach, CA, 90809-0126 Huntington Beach, CA, 92648 (562) 599-2882 (714) 842-7655 FAX 599-2787 FAX 848-0167 David Lane, Owner Kevin Ray, Owner THE LANE COMPANY KEVIN RAY DEMOLITION 5113 W. Kent Avenue 580 Explorer Street Santa Ana, CA, 92704 Brea, CA, 92821 (714) 775-6905 (714) 990-8937 FAX 990-8941 EXHIBIT A FRANCHISED SOLID WASTE ENTERPRISES Page 2 of 2 Rich B. Holt. Owner Nick Cousyn, Owner PACIFIC EARTHWORKS/R.B. HOLT, INC. COUSYN GRADING AND DEMOLITION 34249 Camino Capistrano #216 2034 N. Capella Court Capistrano Beach, CA, 92624 Costa Mesa, CA, 92626 (949) 496-1660 (714) 557-1566 FAX 496-5588 FAX 557-1212 David Roche, Owner Tim Greenleaf ROCHE EXCAVATING, INC. GREENLEAF ENGINEERING aka: 1051 East 6th Street TIM GREENLEAF ENGINEERING Santa Ana, CA, 92701 18685 Main Street (714) 953-1650 Suite A-371 FAX 953-1663 Huntington Beach, CA, 92648 (714) 964-1753 FAX 964-1783 Mark Sahagian John Thomas SOUTHERN CALIFORNIA PROGRESSIVE LAND CLEARING, DBA ENVIRONMENTAL, THOMAS DEMOLITION INC. 4505 Manhattan Beach Blvd. 25422 Trabuco Road Lawndale, CA, 90260 #105-409 (310) 263-0400 Lake Forest, CA, 92630 949 770-1768 Ric Collett, General Manager Don Goodwin REPUBLIC SERVICES, INC. GOODWIN ENTERPRISES, INC. 1131 N. Blue Gum Street P.O. Box 7388 Anaheim, CA, 92815 Capistrano Beach, CA, 92624 (714) 238-3300 (949) 4984680 FAX 238-3304 i Daniel Agajanian Jesus Roberto DIRECT DISPOSAL, INC. ROBERT'S WASTE AND RECYCLING, INC. 5901 Warner Avenue #229 1580 E. Edinger Avenue Huntington Beach; CA, 92649 Santa Ana, CA, 92705 (714) 848-4088 (714) 557-2533 FAX 848-5056 ORDINANCE NO. 2005 - AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF NEWPORT BEACH EXTENDING NON-EXCLUSIVE FRANCHISES 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: RECITALS WHEREAS, by approving Ordinance No. 95-64, the City of Newport Beach entered into solid waste franchise agreements with Rainbow Disposal Co., Inc., a California corporation, 17121 Nichols Street, Huntington Beach, California 92647, Ware Disposal, Inc., a California corporation, P.O. Box 8206, Newport Beach, California 92658, Federal Disposal, P.O. Box 14730, Irvine, California 92623, and Waste Management of Orange County, Inc., which was subsequently merged with USA Waste of California, Inc., a Delaware corporation, dba as Waste Management of Orange County, 1800 S. Grand Street, Santa Ana, California 92705. The franchises and franchise agreements approved by Ordinance No. 95-64 will expire on January 1, 2006. WHEREAS, by approving Ordinance No. 97-4, the City of Newport Beach entered into a solid waste franchise agreement with Tight Quarters, Inc., a California corporation, 2031 S. Anne Street, Santa Ana, California 92704. The franchise and franchise agreement approved by Ordinance No. 97-4 will expire on March 1, 2006. WHEREAS, by approving Ordinance No. 97-38, the City of Newport Beach entered into a solid waste franchise agreement with Key Disposal, Inc., a California corporation, 1141 S. Taylor Avenue, Montebello, California 90640. The franchise and franchise agreement approved by Ordinance No. 97-38 will expire on January 1, 2006. WHEREAS, by approving Ordinance No. 99-3, the City of Newport Beach entered into solid waste franchise . agreements with American Wrecking, Inc., a California corporation, 2459 Lee Avenue, South EI Monte, California 91733, and West Coast Land Clearing, Inc., P. O. Box 90126, Long Beach, California 90809. The franchises and franchise agreements approved by Ordinance No. 99-3 will expire on January 9, 2006. WHEREAS, by approving Ordinance No. 99-5, the City of Newport Beach entered into solid waste franchise agreements with Greenleaf Grading Co., Inc., a California corporation, 7702 Yukon Drive, Huntington Beach, California 92648, and The Lane Company, a sole proprietorship, 5113 W. Kent Avenue, Santa Ana, California 92704. The franchises and franchise agreements approved by Ordinance No. 99-5 will expire on January 9, 2006. WHEREAS, by approving Ordinance No. 99-8, the City of Newport Beach entered into a solid waste franchise agreement with Kevin Ray Demolition, sole proprietorship, 580 Explorer Street, Brea, California 92821. The franchise and franchise agreement approved by Ordinance No. 99-8 will expire on January 9, 2006. WHEREAS, by approving Ordinance No. 2001-17, the City of Newport Beach entered into solid waste franchise agreements with Pacific Earthworks, 34249 Camino Capistrano No. 216, Capistrano Beach, California 92624 and Cousyn Grading and Demolition, a sole proprietorship, 2034 N. Capella Court, Costa Mesa, California 92626. The franchises and franchise agreements approved by Ordinance No. 2001-17 will expire on January 9, 2006. WHEREAS, by approving Ordinance No. 2002-10, the City of Newport Beach entered into a solid waste franchise agreement with Roche Excavating, Inc., a California corporation, 1051 E. 6t' Street, Santa Ana, California 92701. The franchise and franchise agreement approved by Ordinance No. 2002-10 will expire on January 9, 2006. WHEREAS, by approving Ordinance No. 2002-25, the City of Newport Beach entered into a solid waste franchise agreement with Greenleaf Engineering, a California corporation, which is also known as Tim Greenleaf Engineering, 18685 Main Street, Suite A-371, Huntington Beach, California 92648. The franchise and franchise agreement approved by Ordinance No. 2002-25 will expire on January 9, 2006. WHEREAS, by approving Ordinance No. 2002-28, the City of Newport Beach entered into solid waste franchise agreements with Southern California Environmental, Inc., a California corporation, 25422 Trabuco Road No. 105-409, Lake Forest, California 92630, and Progressive Land Clearing, a California corporation, dba Thomas Demolition, 4505 Manhattan Beach Blvd., Lawndale, California 90260. The franchises and franchise agreements approved .by Ordinance No. 2002-28 will expire on January 9, 2006. WHEREAS, by approving Ordinance No. 2004-14, the City of Newport Beach entered into a solid waste franchise agreement with Goodwin Enterprises, Inc., a California corporation, P.O. Box 7388, Capistrano Beach, California 92624. The franchise and franchise agreement approved by Ordinance No. 2004-14 will expire on January 9, 2006. WHEREAS, by approving Ordinance No. 2004-17, the City of Newport Beach entered into a solid waste franchise agreement with Direct Disposal, Inc., a California corporation, 5901 Warner Avenue, No. 229, Huntington Beach, California 92649. The franchise and franchise agreement approved by Ordinance No. 2004-17 will expire on January 9, 2006. 1►: WHEREAS, by approving Ordinance No. 2004-28, the City of Newport Beach entered into a solid waste franchise agreement with Robert's Waste and Recycling, Inc., a California corporation, 1580 E. Edinger Avenue, Suite L, Santa Ana, California 92705. The franchise and franchise agreement approved by Ordinance No. 2004-28 will expire on January 9, 2006. WHEREAS, by approving Ordinance No. 95-64, the City of Newport Beach entered into solid waste franchise agreement with Orco Disposal Services. The franchise and franchise agreement approved by Ordinance No. 95-64 will expire on January 1, 2006. WHEREAS, by adopting Resolution No. 98-78, the City of Newport Beach approved the assignment of the Orco Disposal Services franchise and franchise agreement to CR&R, Incorporated, California corporation, 11292 Western Avenue, Stanton, California 90680. WHEREAS, by approving Ordinance No. No. 99-5 the City of Newport Beach entered into solid waste franchise agreement with Briggeman Disposal Services, Inc., a California corporation. The franchise and franchise agreement approved by Ordinance No. 99-5 will expire on January 9, 2006. WHEREAS, by adopting Resolution No. 99-76, the City of Newport Beach approved the assignment of the Briggeman Disposal Inc., franchise and franchise agreement to Consolidated Disposal Services, LLC, dba Briggeman Disposal Services. WHEREAS, by adopting Resolution No. 2003-43, the City of Newport Beach approved the assignment of Consolidated Disposal Services, L.L.C. franchise and franchise agreement to Republic Services, Inc., a Delaware corporation, dba Briggeman Disposal, L.L.C., Consolidated Disposal Services, L.L.C., and Taormina Industries, L.L.C, 1131 N. Blue Gum Street, Anaheim, California 92815. WHEREAS, City and each franchisee desire to extend each of the franchises and franchise agreements until March 1, 2007 to allow additional time for negotiations related to the terms of new franchises and franchise agreements. NOW THEREFORE the City Council of the City of Newport Beach does ordain as follows: SECTION 1: Section 3(C) of Ordinance No. 95-64 for solid waste services between the City of Newport Beach and Rainbow Disposal Co., Inc., Ware Disposal, Inc., Federal Disposal, USA Waste of California, Inc., dba as Waste Management of Orange County, the successor in interest to the franchise and franchise agreement awarded to Waste Management of Orange County, Inc., and CR&R, Incorporated, the successor in interest to the franchise and franchise agreement awarded to Orco Disposal, is hereby amended to read as follows: 3 3(C) Term of Franchise The franchise shall commence at 12:01 a.m., on January 1, 1996 and expire on March 1, 2007, provided that the grantee has filed written notice of acceptancwiro accordance with the requirement of Section 4 of this Ordinance. SECTION 2: The City Council hereby approves the assignment of the Waste Management of Orange County, Inc.'s franchise to USA Waste of California, Inc. dba as Waste Management of Orange County. The City Manager is hereby authorized to execute an agreement in a form executed and approved by the City Attorney to assign the Commercial Solid Waste Collection Franchise Agreement between the City of Newport Beach and Waste Management of Orange County, Inc. to USA Waste of California, Inc. dba as Waste Management of Orange County ("Assignment Agreement"). The Assignment Agreement shall require that USA Waste of California, Inc. dba as Waste Management of Orange County accept the terms of the franchise and perform all conditions thereof. SECTION 3: Section 3(C) of Ordinance No. 97-4 for solid waste services between the City of Newport Beach and Tight Quarters, Inc. is hereby amended to read as follows: The franchise shall commence at 12:01 a.m., on March 1, 1997 and expire on March 1, 2007, provided that the grantees have filed written notice of acceptance in accordance with the requirement of Section 4 of this Ordinance. SECTION 4: Section 3(C) of Ordinance No. 97-38 for solid waste services between the City of Newport Beach and Key Disposal, Inc., is hereby amended to read as follows: 3(C) Term of Franchise The franchise shall commence at 12:01 a.m., on January 1, 1998 and expire March 1, 2007, provided that the grantee has filed written notice of acceptance in accordance with the requirement of Section 4 of this Ordinance. SECTION 5: Section 3(C) of Ordinance No. 99-3 for solid waste services between the City of Newport Beach and American Wrecking, Inc., and West Coast Land Clearing, Inc., is hereby amended to read as follows: 3(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 4 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 March 1, 2007. 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. SECTION 6: Section 3(C) of Ordinance No. 99-5 for solid waste services between the City of Newport Beach and Greenleaf Grading Co., The Lane Company, and Republic Services, Inc., the successor in interest to the franchise agreement awarded to Briggeman Disposal Services is hereby amended to read as follows: 3(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 Greenleaf Grading Company, Exhibit B Commercial Solid Waste Collection Franchise Agreement between the City of Newport Beach and The Lane Company, and Exhibit C Commercial Solid Waste Collection Franchise Agreement between the City of Newport Beach and Briggeman Disposal Services, Inc. which are hereby adopted, approved and incorporated into this Ordinance by reference, shall commence at 12:01 a.m., on April 21, 1999 and expire on March 1, 2007. 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. SECTION 7: Section 3(C) of Ordinance No. 99-8 for solid waste services between the City of Newport Beach and Kevin Ray Demolition is hereby amended to read as follows: 3(C) Term of Franchise The term of each franchise per Section 2 of the Franchise Agreement ("Agreement") attached hereto as Exhibit A, Commercial Solid Waste Collection Franchise Agreement between the City of Newport Beach and Kevin Ray Demolition which is hereby adopted, approved and incorporated into this Ordinance by reference, shall commence at 12:01 a.m., on May 26, 1999 and expire on March 1, 2007. The franchise shall take effect on the date specified above provided that the grantee has filed written notice of acceptance in accordance with the requirement of Section 4 of this Ordinance. SECTION 8: Section 3(C) of Ordinance No. 2001-17 for solid waste services between the City of Newport Beach, Pacific Earthworks and Cousyn Grading and Demolition is hereby amended to read as follows: 5 3(C) Term of Franchises The term of the franchise per Section 2 of the Franchise Agreement ("Agreement') attached hereto as Exhibit A, Commercial Solid Waste Collection Franchise Agreement between the City of Newport Beach and Pacific Earthworks, and 6hibit B Commercial Solid Waste Collection Franchise Agreement between the City of Newport Beach and Cousyn Grading and Demolition which are hereby adopted, approved and incorporated into this Ordinance by reference, shall commence at 12:01 a.m., on September 27, 2001 and expire on March 1, 2007. The franchise shall take effect on the date specified above provided that the grantee has filed written notice of acceptance in accordance with the requirement of Section 4 of this Ordinance. SECTION 9: Section 3(C) of Ordinance No. 2002-10 for solid waste services between the City of Newport Beach and Roche Excavating, Inc. is hereby amended to read as follows: 3(C) Term of Franchises The term of each franchise per Section 2 of the Franchise Agreement ("Agreement') attached hereto as Exhibit A, Commercial Solid Waste Collection Franchise Agreement between the City of Newport Beach and Roche Excavating, Inc. is hereby adopted, approved and incorporated into this Ordinance by reference, shall commence at 12:01 a.m., on June 27, 2002 and expire on March 1, 2007. The franchises shall take effect on the date specified above provided that the grantee has filed written notice of acceptance in accordance with the requirement of Section 4 of this Ordinance. The franchise shall take effect on the date specified above provided that the grantee has filed written notice of acceptance in accordance with the requirement of Section 4 of this Ordinance. SECTION 10: Section 3(C) of Ordinance No. 2002-25 for solid waste services between the City of Newport Beach and Greenleaf Engineering, also known as Tim Greenleaf Engineering, is hereby amended to read as follows: 3(C) Term of Franchises The term of each franchise per Section 2 of the Franchise Agreement ("Agreement") 8ttached hereto as Exhibit A, Commercial Solid Waste Collection Franchise Agreement between the City of Newport Beach and Greenleaf Engineering, also known as Tim Greenleaf Engineering is hereby adopted, approved and incorporated into this Ordinance by reference, shall commence at 12:01 a.m., on November 21, 2002 and expire on March 1, 2007. The franchise shall take effect on the date specified above provided that the grantee has filed written notice of acceptance in accordance with the requirement of Section 4 of this Ordinance. 1:9 SECTION 11: Section 3(C) of Ordinance No. 2002-28 for solid waste services between the City of Newport Beach and Southern California Environmental, Inc., and Progressive Land Clearing, dba Thomas Demolition, is hereby amended to read as follows: 3(C) Term of Franchises The term of each franchise per Section 2 of the Franchise Agreement ("Agreement') attached hereto as Exhibit A, Commercial Solid Waste Collection Franchise Agreement between the City of Newport Beach and Southern California Environmental, and Exhibit B, Commercial Solid Waste Collection Franchise Agreement between the City of Newport Beach and Progressive Land Clearing, dba Thomas Demolition, are hereby adopted, approved and incorporated into this Ordinance by reference, shall commence at 12:01 a.m., on December 25, 2002 and expire on March 1, 2007. The franchise shall take effect on the date specified above provided that the grantee has filed written notice of acceptance in accordance with the requirement of Section 4 of this Ordinance. SECTION 12: Section 3(C) of Ordinance No. 2004-14 for solid waste services between the City and Goodwin Enterprises, Inc. is hereby amended to read as follows: 3(C) Term of Franchises The term of each franchise per Section 2 of the Franchise Agreement ("Agreement') attached hereto as Exhibit A, Commercial Solid Waste Collection Franchise Agreement between the City of Newport Beach and Goodwin Enterprise, Inc. is hereby adopted, approved and incorporated into this Ordinance by reference, shall commence at 12:01 a.m., on August 12, 2004 and expire on March 1, 2007. The franchise shall take effect on the date specified above provided that the grantee has filed written notice of acceptance in accordance with the requirement of Section 4 of this Ordinance. SECTION 13: Section 3(C) of Ordinance No. 2004-17 for solid waste services between the City of Newport Beach and Direct Disposal, Inc. is hereby amended to read as follows: 3(C) Term of Franchises The term of each franchise per Section 2 of the Franchise Agreement ("Agreement') attached hereto as Exhibit A, Commercial Solid Waste Collection Franchise Agreement between the City of Newport Beach and Direct Disposal, Inc. is hereby adopted, approved and incorporated into this Ordinance by reference, shall commence at 12:01 a.m., on October 14, 2004 and expire on March 1, 2007. The franchise shall take effect on the date specified above provided that the grantee has filed written notice of acceptance in accordance with the requirement of Section 4 of this Ordinance. ri SECTION 14: Section 3(C) of Ordinance No. 2004-28 for solid waste services between the City of Newport Beach and Robert's Waste and Recycling, Inc. is hereby amended to read as follows: 3(C) Term of Franchises The term of each franchise per Section 2 of the Franchise Agreement ("Agreement") attached hereto as Exhibit A, Commercial Solid Waste Collection Franchise Agreement between the City of Newport Beach and Robert's Waste and Recycling, Inc. is hereby adopted, approved and incorporated into this Ordinance by reference, shall commence at 12:01 a.m., on February 10, 2005 and expire on March 1, 2007. The franchise shall take effect on the date specified above provided that the grantee has filed written notice of acceptance in accordance with the requirement of Section 4 of this Ordinance. SECTION 15: This extension of franchise shall not become effective until written acceptance of the extension of the franchise and a written amendment of the franchise agreement, in a form acceptable to the City Attorney, has been fully executed and fled with the City Clerk by the franchisee. Each franchisee shall file written acceptance of the extension of the franchise and a written amendment to the franchise agreement, in a form acceptable to the City Attorney, no later than ten (10) days after the adoption of this Ordinance. SECTION 16: Except as expressly modified herein, all other provisions, terms, and covenants set forth in Ordinance Nos. 95-64, 97-4, 97-38, 99-3, 99-5, 99-8, 2001-17, 2002-10, 2002-25, 2002-28, 2004-14, 2004-17, and 2004-28 shall remain unchanged and shall be in full force and effect SECTION 17: 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 hereof, irrespective of the fact that any one or more sections, subsections, sentences, clauses and phrases be declared unconstitutional. SECTION 18: The Mayor shall sign and the City Clerk shall attest to the passage of this ordinance. The City Clerk shall cause the same to be published once in the official newspaper of the City, and it shall be effective thirty (30) days after its adoption. SECTION 19: This ordinance was introduced at a regular meeting of the City Council of the City of Newport Beach, held on the day of , 2005, and adopted on the day of , 2005, by the following vote, to wit: 91 AYES, COUNCILMEMBERS NOES, COUNCILMEMBERS ABSENT COUNCILMEMBERS MAYOR ATTEST: CITY CLERK M • "RECEIVED AF ER AGENDA PRINTED:" Al Lla-05 ORDINANCE NO. 2005 - AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF NEWPORT BEACH EXTENDING NON-EXCLUSIVE FRANCHISES 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: RECITALS WHEREAS, by approving Ordinance No. 95-64, the City of Newport Beach entered into solid waste franchise agreements with Rainbow Disposal Co., Inc., a California corporation, 17121 Nichols Street, Huntington Beach, California 92647, Ware Disposal, Inc., a California corporation, P.O. Box 8206, Newport Beach, California 92658, Federal Disposal, P.O. Box 14730, Irvine, California 92623, and Waste Management of Orange County, Inc., which was subsequently merged with USA Waste of California, Inc., a Delaware corporation, dba as Waste Management of Orange County, 1800 S. Grand Street, Santa Ana, California 92705. The franchises and franchise agreements approved by Ordinance No. 95-64 will expire on January 1, 2006. • WHEREAS, by approving Ordinance No. 97-4, the City of Newport Beach entered into a solid waste franchise agreement with Tight Quarters, Inc., a California corporation, 2031 S. Anne Street, Santa Ana, California 92704. The franchise and franchise agreement approved by Ordinance No. 97-4 will expire on March 1, 2006. • WHEREAS, by approving Ordinance No. 97-38, the City of Newport Beach entered into a solid waste franchise agreement with Key Disposal, Inc., a California corporation, 1141 S. Taylor Avenue, Montebello, California 90640. The franchise and franchise agreement approved by Ordinance No. 97-38 will expire on January 1, 2006. WHEREAS, by approving Ordinance No. 99-3, the City of Newport Beach entered into solid waste franchise agreements with American Wrecking, Inc., a California corporation, 2459 Lee Avenue, South El Monte, California 91733, and West Coast Land Clearing, Inc., P. O. Box 90126, Long Beach, California 90809. The franchises and franchise agreements approved by Ordinance No. 99-3 will expire on January 9, 2006. WHEREAS, by approving Ordinance No. 99-5, the City of Newport Beach entered into solid waste franchise agreements with Greenleaf Grading Co., Inc., a California corporation, 7702 Yukon Drive, Huntington Beach, California 92648, and The Lane Company, a sole proprietorship, 5113 W. Kent Avenue, Santa Ana, California 92704. The franchises and franchise agreements approved by Ordinance No. 99-5 will expire on January 9, 2006. WHEREAS, by approving Ordinance No. 99-8, the City of Newport Beach entered into a solid waste franchise agreement with Kevin- Ray Demolition, sole proprietorship, 580 Explorer Street, Brea, California 92821. The franchise and franchise agreement approved by Ordinance No. 99-8 will expire on January 9, 2006. WHEREAS, by approving Ordinance No. 2001-17, the City of Newport Beach entered into solid waste franchise agreements with Pacific Earthworks, 34249 Camino Capistrano No. 216, Capistrano Beach, California 92624 and Cousyn Grading and Demolition, a sole proprietorship, 2034 N. Capella Court, Costa Mesa, California 92626. The franchises and franchise agreements approved by Ordinance No. 2001-17 will expire on January 9, 2006. WHEREAS, by approving Ordinance No. 2002-10, the City of Newport Beach entered into a solid waste franchise agreement with Roche Excavating, Inc., a California corporation, 1051 E. 6t" Street, Santa Ana, California 92701. The franchise and. franchise agreement approved by Ordinance No. 2002-10 will expire on January 9, 2006. WHEREAS, by approving Ordinance No. 2002-25, the City of Newport Beach entered into a solid waste franchise agreement with Greenleaf Engineering, a California corporation, which is also known as Tim Greenleaf Engineering, 18685 Main Street, Suite A-371, Huntington Beach, California 92648. The franchise and franchise agreement approved by Ordinance No. 2002-25 will expire on January 9, 2006. • WHEREAS, by approving Ordinance No. 2002-28, the City of Newport Beach entered into solid waste franchise agreements with Southern California Environmental, Inc., a California corporation, 25422 Trabuco Road No. 105-409, Lake Forest, California 92630, and Progressive Land Clearing, a California corporation, dba Thomas Demolition, 4505 Manhattan Beach Blvd., Lawndale, California 90260. The franchises and franchise agreements approved by Ordinance No. 2002-28 will expire on January 9, 2006. WHEREAS, by approving Ordinance No. 2004-14, the City of Newport Beach entered into a solid waste franchise agreement with Goodwin Enterprises, Inc., a California corporation, P.O. Box 7388, Capistrano Beach, California 92624. The franchise and franchise agreement approved by Ordinance No. 2004-14 will expire on January 9, 2006_ WHEREAS, by approving Ordinance No. 2004-17, the City of Newport Beach entered into a solid waste franchise agreement with Direct Disposal, Inc., a California corporation., 5901 Warner Avenue, No. 229, Huntington Beach, California 92649. The franchise and franchise agreement approved -by Ordinance No. 2004-17 will expire on January 9, 2006. 2 0 WHEREAS, by approving Ordinance No. 2004-28, the City of Newport Beach entered into a solid waste franchise agreement with Robert's Waste and Recycling, Inc., a California corporation, 1580 E. Edinger Avenue, Suite L, Santa Ana, California 92705. The franchise and franchise agreement approved by Ordinance No. 2004-28 will expire on January 9, 2006. WHEREAS, by approving Ordinance No. 95-64, the City of Newport Beach entered into solid waste franchise agreement with Orco Disposal Services. The franchise and franchise agreement approved by Ordinance No. 95-64 will expire on January 1, 2006. WHEREAS, by adopting Resolution No. 98-78. the City of Newport Beach approved the assignment of the Orco Disposal Services franchise and franchise agreement to CR&R, Incorporated, California corporation, 11292 Western Avenue, Stanton, California 90680. WHEREAS, by approving Ordinance No. No. 99-5 the City of Newport Beach entered into solid waste franchise agreement with Briggeman Disposal Services, Inc., a California corporation. The franchise and franchise agreement approved by Ordinance No. 99-5 will expire on January 9, 2006. WHEREAS, by adopting Resolution No. 99-76, the City of Newport Beach approved the assignment of the Briggeman Disposal Inc., franchise and franchise agreement to Consolidated Disposal Services, LLC, dba Briggeman Disposal Services. •WHEREAS, by adopting Resolution No. 2003-43, the City of Newport Beach approved the assignment of Consolidated Disposal Services, L.L.C. franchise and franchise agreement to Republic Services, Inc., a Delaware corporation, dba Briggeman Disposal, L.L.C., Consolidated Disposal Services, L.L.C., and Taormina Industries, L.L.C, 1131 N. Blue Gum Street, Anaheim, California 92815. WHEREAS, City and each franchisee desire to extend each of the franchises and franchise agreements until March 1, 2007 to allow additional time for negotiations related to the terms of new franchises and franchise agreements. NOW THEREFORE the City Council of the City of Newport Beach does ordain as follows: SECTION 1: Section 3(C) of Ordinance No. 95-64 for solid waste services between the City of Newport Beach and Rainbow Disposal Co., Inc., Ware Disposal, Inc., Federal Disposal, USA Waste of California, Inc., dba as Waste Management of Orange County, the successor in interest to the franchise and franchise agreement awarded to Waste Management of Orange County, Inc., and CR&R, Incorporated, the successor in interest to the franchise and franchise agreement awarded to Orco Disposal, is hereby amended to read as follows: 0 3 3(C) Term of Franchise The franchise shall commence at 12:01 a.m., on January 1, 1996 and expire on March • 1, 2007. SECTION 2: The City Council hereby approves the assignment of the Waste Management of Orange County, Inc.'s franchise to USA Waste of California, Inc. dba as Waste Management of Orange County. The City Manager is hereby authorized to execute an agreement in a form executed and approved by the City Attorney to assign the Commercial Solid Waste Collection Franchise Agreement between the City of Newport Beach and Waste Management of Orange County, Inc. to USA Waste of California, Inc. dba as Waste Management of Orange County ("Assignment Agreement"). The Assignment Agreement shall require that USA Waste of California, Inc. dba as Waste Management of Orange County accept the terms of the franchise and perform all conditions thereof. SECTION 3: Section 3(C) of Ordinance No. 97-4 for solid waste services between the City of Newport Beach and Tight Quarters, Inc. is hereby amended to read as follows: The franchise shall commence at 12:01 a.m., on March 1, 1997 and expire on March 1, 2007. SECTION 4: Section 3(C) of Ordinance No. 97-38 for solid waste services between • the City of Newport Beach and Key Disposal, Inc., is hereby amended to read as follows: 3(C) Term of Franchise The franchise shall commence at 12:01 a.m., on January 1, 1998 and expire March 1, 2007. SECTION 5: Section 3(C) of Ordinance No. 99-3 for solid waste services between the City of Newport Beach and American Wrecking, Inc., and West Coast Land Clearing, Inc., is hereby amended to read as follows: 3(C) Term of Franchises The term of each franchise per Section 2 of the Franchise Agreements ("Agreements") attached to Ordinance No. 99-3 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 were adopted, approved and incorporated into Ordinance 99-3 by reference, and on file in the Office of 4 0 the City Clerk, shall commence at 12:01 a.m., on March 10, 1999 and expire on March • 1, 2007. SECTION 6: Section 3(C) of Ordinance No. 99-5 for solid waste services between the City of Newport Beach and Greenleaf Grading Co., The Lane Company, and Republic Services, Inc., the successor in interest to the franchise agreement awarded to Briggeman Disposal Services is hereby amended to read as follows: 3(C) Term of Franchises The term of each franchise per Section 2 of the Franchise Agreements ("Agreements") attached to Ordinance No. 99-5 as Exhibit A, Commercial Solid Waste Collection Franchise Agreement between the City of Newport Beach and Greenleaf Grading Company, Exhibit B Commercial Solid Waste Collection Franchise Agreement between the City of Newport Beach and The Lane Company, and Exhibit C Commercial Solid Waste Collection Franchise Agreement between the City of Newport Beach and Republic Services, Inc., the successor in interest to Briggeman Disposal Services, Inc. which were adopted, approved and incorporated into Ordinance No. 99-5 by reference, and on file in the Office of the City Clerk, shall commence at 12:01 a.m., on April 21, 1999 and expire on March 1, 2007. SECTION 7: Section 3(C) of Ordinance No. 99-8 for solid waste services between the City of Newport Beach and Kevin Ray Demolition is hereby amended to read as • follows: 3(C) Term of Franchise The term of each franchise per Section 2 of the Franchise Agreement ("Agreement') attached to Ordinance No. 99-8 as Exhibit A, Commercial Solid Waste Collection Franchise Agreement between the City of Newport Beach and Kevin Ray Demolition which was adopted, approved and incorporated into Ordinance No. 99-8 by reference, and on file in the Office of the City Clerk, shall commence at 12:01 a.m., on May 26, 1999 and expire on March 1, 2007. SECTION 8: Section 3(C) of Ordinance No. 2001-17 for solid waste services between the City of Newport Beach, Pacific Earthworks and Cousyn Grading and Demolition is hereby amended to read as follows: 3(C). Term of Franchises The term of the franchise per Section 2 of the Franchise Agreement ("Agreement') attached to Ordinance No. 2001-17 as Exhibit A, Commercial Solid Waste Collection Franchise Agreement between the City of Newport Beach and Pacific Earthworks, and Exhibit B Commercial Solid Waste Collection Franchise Agreement between the City of Newport Beach and Cousyn Grading and Demolition which was adopted, approved and • 5 incorporated into Ordinance No. 2001-17 by reference, and on file in the Office of the City Clerk, shall commence at 12:01 a.m., on September 27, 2001 and expire on March 1, 2007. SECTION 9: Section 3(C) of Ordinance No. 2002-10 for solid waste services between the City of Newport Beach and Roche Excavating, Inc. is hereby amended to read as follows: 3(C) Term of Franchises The term of each franchise per Section 2 of the Franchise Agreement ("Agreement") attached to Ordinance 2002-10 as Exhibit A, Commercial Solid Waste Collection Franchise Agreement between the City of Newport Beach and Roche Excavating, Inc. adopted, approved and incorporated into Ordinance No. 2002-10 by reference, and on file in the Office of the City Clerk, shall commence at 12:01 a.m., on June 27, 2002 and expire on March 1, 2007. SECTION 10: Section 3(C) of Ordinance No. 2002-25 for solid waste services between the City of Newport Beach and Greenleaf Engineering, also known as Tim Greenleaf Engineering, is hereby amended to read as follows: 3(C) Term of Franchises The term of each franchise per Section 2 of the Franchise Agreement ("Agreement') attached to Ordinance No. 2002-25 as Exhibit A, Commercial Solid Waste Collection Franchise Agreement between the City of Newport Beach and Greenleaf Engineering, also known as Tim Greenleaf Engineering adopted, approved and incorporated into Ordinance No. 2002-25 by reference, and on file in the Office of the City Clerk, shall commence at 12:01 a.m., on November 21, 2002 and expire on March 1, 2007, SECTION 11: Section 3(C) of Ordinance No. 2002-28 for solid waste services between the City of Newport Beach and Southern California Environmental, Inc., and Progressive Land Clearing, dba Thomas Demolition, is hereby amended to read as follows: 3(C) Term of Franchises The term of each franchise per Section 2 of the Franchise Agreement ("Agreement") attached to Ordinance No. 2002-28 as Exhibit A, Commercial Solid Waste Collection Franchise Agreement between the City of Newport Beach and Southern California Environmental, and Exhibit. B, Commercial Solid Waste Collection Franchise Agreement between the City of Newport Beach and Progressive Land Clearing, dba Thomas Demolition, adopted, approved and incorporated into Ordinance No. 2002-28 by reference, and on file in the Office of the City Clerk, shall commence at 12:01 a.m., on December 25, 2002 and expire on March 1, 2007. • • SECTION 12: Section 3(C) of Ordinance No. 2004-14 for solid waste services between the City and Goodwin Enterprises, Inc. is hereby amended to read as follows: 3(C) Term of Franchises The term of each franchise per Section 2 of the Franchise Agreement ("Agreement") attached to Ordinance No. 2004-14 as Exhibit A, Commercial Solid Waste Collection Franchise Agreement between the City of Newport Beach and Goodwin Enterprise, Inc. adopted, approved and incorporated into Ordinance No. 2004-14 by reference, and on file in the Office of the City Clerk, shall commence at 12:01 a.m., on August 12, 2004 and expire on March 1, 2007. SECTION 13: Section 3(C) of Ordinance No. 2004-17 for solid waste services between the City of Newport Beach and Direct Disposal, Inc. is hereby amended to read as follows: 3(C) Term of Franchises The term of each franchise per Section 2 of the Franchise Agreement ("Agreement") attached to Ordinance No. 2004-17 as Exhibit A, Commercial Solid Waste Collection Franchise Agreement between the City of Newport Beach and Direct Disposal, Inc. adopted, approved and incorporated into Ordinance No. 2004-17 by reference, and on • file in the Office of the City Clerk, shall commence at 12:01 a.m., on October 14, 2004 and expire on March 1, 2007. SECTION 14: Section 3(C) of Ordinance No. 2004-28 for solid waste services between -the City of Newport Beach and Robert's Waste and Recycling, Inc. is hereby amended to read as follows: 3(C) Term of Franchises The term of each franchise per Section 2 of the Franchise Agreement ("Agreement") attached to Ordinance No. 2004-28 as Exhibit A, Commercial Solid Waste Collection Franchise Agreement between the City of Newport Beach and Robert's Waste and Recycling, Inc. adopted, approved and incorporated into Ordinance No. 2004-28 by reference, and on file in the Office of the City Clerk, shall commence at 12:01 a.m., on February 10, 2005 and expire on March 1, 2007. SECTION 15: This extension of franchise shall not become effective until written acceptance of the extension of the franchise and a written amendment of the franchise agreement, in a form acceptable to the City Attorney, has been fully executed and fled with the City Cleric by the franchisee. Each franchisee shall file written acceptance of the extension of the franchise and a written amendment to the franchise agreement, in a form 40 acceptable to the City Attorney, no later than ten (10) days after the adoption of this Ordinance. • SECTION 16: Except as expressly modified herein, all other provisions, terms, and covenants set forth in Ordinance Nos. 95-64, 97-4, 97-38, 99-3, 99-5, 99-8, 2001-17, 2002-10, 2002-25, 2002-28, 2004-14, 2004-17, and 2004-28 shall remain unchanged and shall be in full force and effect. SECTION 17: 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 hereof, irrespective of the fact that any one or more sections, subsections, sentences, clauses and phrases be declared unconstitutional. SECTION 18: The Mayor shall sign and the City Clerk shall attest to the passage of this ordinance. The City Clerk shall cause the same to be published once in the official newspaper of the City, and it shall be effective thirty (30) days after its adoption. SECTION 19: This ordinance was introduced at a regular meeting of the City Council of the City of Newport Beach, held on the _ day of , 2005, and adopted on the day of , 2005, by the following vote, to wit: AYES, COUNCILMEMBERS NOES, COUNCILMEMBERS ABSENT COUNCILMEMBERS MAYO ATTEST: CITY CLERK 8 • /i�aa�os �3 Tuesday, November 22, 2005 To: The Mayor and all members of The City Council A matter which amends and modifies City Ordinance 14.24.020 is being brought before you this evening. Due to previous commitments I will not be able to make a public comment on this item tonight in your Council meeting. I was only informed that this matter would be on your consent calender about an hour ago and can not be present. However t would like you to consider the following letter as a request to delay any action upon this matter for the time being. Over the last several months and in reality over the last decade, I have held the position that all work required by a joint memorandum between The Building Department and The Utilities Departments requiring persons performing work on their residences to be compelled to improve the city owned sewer lateral, upon city property, at their expense was an unenforceable 'Memorandum". In many, recent, discussions, letters and telephone conversations between myself and officials within the Building Department, Utilities Department and City Attorneys Office, I made that position clear. Only now, when many people including myself, either have gone on, or are planning to leave on a Thanksgiving vacation does a request to amend a City Ordinance which will make legal, past unenforceable practices, does the matter come before the City Council. have read the Staff Report regarding the subject and find many points which are incorrect or misleading which need to be corrected and clarified. I also take particular offense with the staff report based on the fact that it was written by Mr. Daniel K Ohl. Mr. Ohl was my primary contact within the City attorney's office over the last several months. It appears that Mr. Ohl has been preparing this document, which amend several deficiencies to the City Ordinance 14.24.020 in secret, while all the while contending that the current City Ordinances were compelling enough to have myself and everyone else perform the requirements of new sewer lateral clean outs for the city. My request for you, and the entire City Council is to not conduct any business on this Item until you can know and understand all of the facts in this matter. I also feel that I have a unique perspective of the situation which may influence how you will react when deciding how to vote on this matter. As you know, I have written you all a brief letter regarding the matter. Unfortunately I do not know exactly how a modification becomes law within the City of Newport Beach. If this modification request on tonight's consent calender is only a formality which will lead to further discussions and public hearings I could agree to this. If this allows for placing the modification into law I would have serious reservations. I think that the City Council should shine a bright light upon this item prior to changing any current City ordinances. Zer , ona 500 Morning Star Lane Newport Beach, CA 92660 949-675-3252 Fax 949-650-5571 ACCEPTANCE OF SOLID WASTE MANAGEMENT FRANCHISE WHEREAS, on October 22, 20Gthe City Council of the City of Newport Beach adopted Ordinance No2002'=25 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 No2002-25 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. 2002-4 WHEREAS, the undersigned Grantee wishes to accept the grant of the Franchise. NOW THEREFORE, Tim Greenleaf Engineering , hereby accepts the grant of the Nonexclusive Franchise granted by Ordinance No.2002-25 and hereby agrees to comply with the provisions of the Newport Beach Charter, Chapter 12.63, Ordinance No.2002-25 and the Franchise Agreement in all its operations pursuant to the grant of the Franchise. DATE: -� L o" z- Leo-ee ) FRANCHISEE BY: -7- r'•• , L--e,-,-7lte� k NAME: .T � b 1,e -e i %rcJ TITLE: pr CITY CLERKS'S VERIFICATION OF ACCEPTANCE I, LaVonne M. Harkless, City Clerk, certify that the above acceptance of Franchise was received by me on // - q -,r, 'A , 2001 at XAZ) p.m. , & �- Y-)�' �4-zaz" CITY CLERK COMMERCIAL SOLID WASTE COLLECTION FRANCHISE AGREEMENT BETWEEN THE CITY OF NEWPORT BEACH AND TIM GREENLEAF ENGINEERING. 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 Tim Greenleaf Engineering ("Franchisee"). RECITALS This Agreement is entered into on the basis of the following facts: A. Franchisee has provided or is capable of providing commercial solid waste collection services in the City pursuant to a permit issued in accordance with the Newport Beach Municipal Code ("Code"). B. City has duly adopted Ordinance No. 95-63 which has repealed the former Chapter 12.63 and added a new Chapter 12.63 of the Code and requires a franchise for all persons providing commercial solid waste handling services for solid waste generated in the City, C. Article XIII of the City Charter, Chapter 12.63, and Sections 49300 and 49500-49523 of the Public Resources Code authorize the City to enter into nonexclusive franchise agreements for commercial solid waste handling services. D. Pursuant to this Agreement, City desires to authorize Franchisee to provide nonexclusive commercial solid waste handling services within the City. Franchisee shall furnish all personnel, equipment, and supplies necessary to collect, transport, or otherwise remove and dispose of residential solid waste and recyclable materials, as defined herein, from commercial, institutional, or industrial premises within the City. E. The City Council has determined that the grant of a nonexclusive franchise is in the public interest. NOW, THEREFORE, CITY AND FRANCHISEE DO HEREBY AGREE AS FOLLOWS: SECTION 1. GRANT OF FRANCHISE A. By Ordinance No. 2002-25, 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. 2002-25, 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 November 21, 2002 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 10.5% (ten and one half percent) of the gross receipts for all commercial solid waste handling services provided by the Franchisee in the City. (2) Franchise fee payments shall be paid quarterly and shall be computed and paid on the basis of paid receipts received by the Franchisee for all solid waste handling services within the City. (3) (One half of one percent) .5% of the franchise fee shall be attributable to the maintenance and implementation of the City's Source Reduction and Recycling Element "SRRE," and shall be separately accounted for, and used only for the costs stated in Public Revenue Code Section 41901 or any successor provision. 2 B. Franchisee shall pay all required franchise fees to: Administrative Services Director City of Newport Beach 3300 Newport Boulevard Newport Beach, CA 92659 C. Franchise fees shall be due and payable on the thirtieth (30th) day of the month following the end of each quarter. If franchise fees are not paid by Franchisee when due, then in addition to the franchise fees, Franchisee shall pay a late payment penalty in an amount equal to ten percent (10%) of the franchise fee that was not timely paid by Franchisee. If Franchisee fails to pay delinquent franchise fees within thirty (30) days of the date due, Franchisee shall pay a second late payment penalty in an amount equal ten percent (10%) of the franchise fee outstanding after such thirty day period. The second late payment penalty shall be in addition to the first late payment penalty. In addition, Franchisee shall pay interest on all unpaid franchise fees at the rate of ten percent (10%) per annum or the legal rate allowed, whichever is less, from the date the franchise fees were due and payable to the date actually paid. Franchisee will be responsible for all billing and collection from all its customer accounts. D. If Franchisee remits franchise fees by personal delivery to City, such franchise fees shall be deemed timely paid only if delivered on or before the due date set forth in Section 12.63.070 of the Code. If Franchisee remits franchise fees by mail or other delivery service, such franchise fees shall be deemed timely only if (1) the envelope containing the franchise fee payment bears a postmark or receipt showing that the payment was mailed or sent on or before the due date or (2) Franchisee submits proof satisfactory to the Administrative Services Director that the franchise fee payment was in fact deposited in the mail or sent on or before the due date. E. For any quarter in which Franchisee determines that any outstanding delinquent payment for commercial solid waste handling services is uncollectible, Franchisee shall attach to the report a list of the customers for which Franchisee has written off the delinquent payment determined to be uncollectible. F. In the event Franchisee believes that it has paid franchise fees in excess of the fees due to City, Franchisee may submit a request for refund to the Administrative Services Director on a form provided by the Director. If proof of overpayment is satisfactory to the Director, the Director shall refund to Franchisee any overpayment. Franchisee shall not apply any overpayment as a credit against any other amounts payable to City unless specifically so authorized by the Administrative Services Director in writing. G. Each franchise fee payment shall be accompanied by a written statement described in Section 12.63.070 of the Code on a form provided by the Administrative Services Director. H. No maximum nor minimum service fee will be set by the City. The fees will fluctuate with market demand. SECTION 5. DISPOSAL OF COMMERCIAL SOLID WASTE A. Franchisee shall dispose of solid waste collected or transported by Franchisee only by taking such solid waste to a landfill, transfer station, recycling facility or materials recovery facility which is lawfully authorized to accept such solid waste. Franchisee shall not dispose of solid waste by depositing it on any land, (except a permitted recycling facility) whether public or private, or in any river, stream or other waterway, or in any sanitary sewer or storm drainage system. Nothing in this Agreement shall be deemed or construed as authorizing Franchisee to operate a landfill, recycling center, or other solid waste disposal facility. B. All solid waste, in addition to recyclables, collected by Franchisee shall become the property of Franchisee upon placement by the customer for collection. Franchisee agrees that the City has the future right, at any time, to direct that solid waste be delivered to a permitted disposal facility designated by City. For example, the City may exercise this right in order to save solid waste generators money on disposal costs, to avoid disposal sites with potential cleanup problems, or to meet the requirements for access to a disposal site. Franchisee agrees to deliver the solid waste which it collects to any disposal facility directed by the City. This exercise of "flow control" by the City shall be made upon at least one hundred twenty (120) days prior written notice to Franchisee. Franchisee represents and agrees that since November 6, 1995, Franchisee has not entered and will not enter into any agreements with a disposal facility for disposal of any solid waste which it collects in the City for more than one hundred twenty (120) days without the written consent of the City. City shall not withhold its consent to any written agreement which provides that the agreement may be terminated by Franchisee at any time, without cause, upon 120 days notice. C. Franchisee shall include as a condition to its contractual agreement with its customers a provision prohibiting disposal of hazardous solid waste in any of Franchisees vehicles or disposal bins/containers, and other equipment. D. Franchisee shall implement a load check program that includes at a minimum a visual check of all containers to be emptied to protect against inclusion of hazardous waste and shall prepare a written record of all hazardous waste discovered during the process. The records shall comply with all State and Federal Hazardous Waste Regulations, shall be maintained for the length of the term of the Franchise, and shall be made available to the City upon request. SECTION 6. REPORTS A. Franchisee shall submit to City quarterly reports stating the total amount of solid waste which Franchisee collected in the City during the reportable quarter; the total weight (in tons) of solid waste disposed of by Franchisee at landfills and transfer stations during the reportable quarter; and the total weight and the weight by material category (in tons) of solid waste disposed of by Franchisee at recycling and materials recovery facilities during the reportable quarter. Such quarterly reports shall be prepared on the form attached to this Agreement as EXHIBIT A or on such other form as required by the General Services Director. Each quarterly report shall be submitted on or before the 15th day of the month following the end of the quarter (i.e. report due April 15 for first quarter of the year) and submitted to: 0 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 within 24 hours of any such request. If requested by the City at any time, Franchisee's collection schedule shall be submitted to the City for its approval. B. Hours and Days of Collections. No collection of solid waste from commercial premises within 500 feet of occupied residential premises, motels or hotels shall be made by Franchisee between the hours of 9:00 p.m., and 7:00 a.m. on the next day, nor shall any of Franchisee's collection vehicles be operated in any residential areas of the City between the hours of 9:00 p.m. and 7:00 a.m. on the next day. SECTION 8. ENVIRONMENTAL LIABILITY FUND A. City and Franchisee acknowledge the potential liability which can result from solid waste handling services under Federal and State environmental laws. City intends to take reasonable actions to obtain protection and indemnification against future environmental liability for solid waste generated within the City and the activities of Franchisee under this Agreement for handling such solid waste. To provide protection and indemnification to City for Franchisee's solid waste handling activities in the City, Franchisee agrees to collect from its customers a fee for payment into an Environmental Liability Fund which shall be a separate Fund established and maintained by City. The Fund shall be used to either purchase insurance which will ensure the City against environmental liability which may be imposed upon City as a result of Franchisee's activities under this franchise and/or shall to be used to defend and indemnify the City if insurance is not available or cannot be provided at a cost acceptable to City. The Fund shall not be commingled with or included in the City's General Fund. E 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 are maintained at approximately two hundred twenty five thousand dollars ($225,000.00) a year. The fee may be decreased or waived as deemed appropriate by City if subsequent changes in Federal and State law diminish or eliminate liability of City under Federal and State environmental laws. D. Compliance with this obligation shall not limit Franchisee's indemnification as set forth in Section 11, however, the indemnification provisions of 11B shall be secondary to the Fund established by this Section or any insurance purchased with the funds provided. SECTION 9. FRANCHISEE'S RECORDS A. Franchisee shall keep and maintain books of account, income statements and supporting documents of all business transactions conducted by Franchisee in connection with the commercial solid waste handling services of Franchisee under this Agreement. Such records shall be kept at Franchisee's place of business. B. The books of account, income statements and supporting documents shall be made available to City at Franchisee's place of business during normal business hours upon request or demand of the City Manager, City Administrative Services Director, City Attorney, or other City officer, employee or consultant authorized by any of these officers. The purpose of such inspection and/or audit shall be for verification of the fees paid by Franchisee under this Agreement, and the accuracy thereof; and for verification of the amounts of solid waste reported by Franchisee pursuant to this Agreement. To the extent authorized by law, Franchisee's books of account, income statements and other documents accessed by City shall be kept confidential. C. Franchisee shall reimburse City for City's costs in performance of an audit if, as a result of the audit it is determined: i. There was any intentional misrepresentation by Franchise with respect to the amount of franchise fees due to the City; or ii. There is a one thousand dollars ($1,000.00) or greater discrepancy in the amount of franchise fees due to the City. Such reimbursement shall be paid by Franchisee WITHIN THIRTY (30) days of the date City notifies Franchisee in writing of the amount of City's costs. 0 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 volunteers; 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 volunteers 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 volunteers. 7 b. Franchisee's insurance coverage shall be primary insurance as respects City, its officers, employees, agents and volunteers. Any insurance or self-insurance maintained by City, its officers, employees, agents or volunteers 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 volunteers. d. Coverage shall state that Franchisee's insurance shall apply separately to each insured against whom claim is made or suit is brought, except with respect to the limits of the insurer's liability. 2. All Coverages Each insurance policy required by this Agreement shall be endorsed to state that coverage shall not be suspended, voided, canceled, or reduced in limits except after thirty (30) days' prior written notice has been given to the City. D. Placement of Insurance. Insurance shall be placed with an insurance company certified to do business in the State of California, with Best's rating A -VII or better, unless otherwise approved by the City Risk Manager. E. Proof of Insurance. Franchisee shall furnish City with certificates of insurance and with original endorsements affecting coverage required by this Agreement. The certificates and endorsements for each insurance policy are to be signed by a person authorized by that insurer to bind coverage on its behalf. Proof of insurance shall be mailed or personally delivered to the following address or to such other address as may be directed in writing by the City's Risk Manager: City of Newport Beach Risk Manager 3300 Newport Boulevard Newport Beach, CA 92659 F. Subcontractors. Franchisee shall include all subcontractors as insureds under Franchisee's policies or shall obtain separate certificates and endorsements for each subcontractor. G. Failure to Provide Insurance. Franchisee agrees that if any policy of insurance required by this Agreement is not maintained in full force and effect, the City Manager may, in his sole discretion, suspend this Agreement, immediately, until such time as the required insurance is in effect and the required certificates and endorsements are delivered to the City. 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 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. E 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 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 give written notification to Franchisee that any vehicle does not comply with the standards hereunder, the vehicle shall be promptly removed from service by Franchisee and not 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 10 $3,000 performance bond, certificate of deposit or other form of security acceptable to the City, with City Revenue Division to reimburse City for such costs within ten (10) days of the date of City's invoice for such costs. D. For the purposes of this Section, "abandoned" includes: (1) Franchisee's failure to remove the container within the time period specified by the City Council upon termination of the Franchise pursuant to Section 12.63.130 of the Code; (2) Franchisee's failure to remove the container within ten (10) working days after the expiration of the Franchise granted to Franchisee, except in the case where Franchisee has been granted an extension of the term of said Franchise or Franchisee has been granted a subsequent Franchise authorizing Franchisee to collect and transport the type or types of solid waste for which the container was used pursuant to this Agreement. (3) Franchisee's failure to collect the container and dispose of the contents of the container within five (5) days after City's Director of General Services issues written notice to Franchisee to dispose of the contents. SECTION 14. COMPLIANCE WITH LAW A. Franchisee shall perform all solid waste handling services in accordance with applicable federal, state, and local law, including Chapter 12.63 of the Code, Article XIII of the City Charter, Ordinance No. 95-63 and in accordance with the terms and conditions of this Agreement. B. Over the course of the franchise term, Franchisee and City agree that the City's ordinances may be amended as necessary to permit the City to comply with changes to federal, state, and local legislative regulatory requirements, which may affect or alter City's solid waste handling obligations or requirements for solid waste management. Franchisee agrees to comply with any such amendment of the City's ordinances. 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 11 services and recycling services which are provided by the Franchisee as well as hazardous waste disposal requirements. C. All promotional brochures, fliers or other information distributed by Franchisee hereunder shall be printed on recycled paper. All such informational materials shall be approved in advance by the City's General Services Director. SECTION 17. TERMINATION AND SUSPENSION A. The franchise granted to Franchisee may be terminated by the City Council pursuant to Section 12.63.130 of the Code. B. In the event the Franchise is terminated pursuant to Subsection A above or the term of this Agreement expires: (1) Franchisee shall have no right or authority to engage in commercial solid waste handling operations in the City of Newport Beach, subject to the provisions of Sections 49520-49523 of the Public Resources Code. (2) Franchisee shall, however, remain liable to City for any and all franchise fees that would otherwise be payable by Franchisee, for any and all late payment charges and interest assessed pursuant to Section 4 of this Agreement, and for any and all delinquent report charges assessed pursuant to Section 6 of this Agreement. (3) Franchisee shall have a continuing obligation to submit to City all reports required by Section 6 of this 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 A113939 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. 12 D. In the event the Franchise is terminated pursuant to Subsection A above or expires without an extension of the term and without a grant of a Subsequent Franchise allowing Franchisee to continue performing such services, then within ten (10) days of such termination or expiration Franchisee shall either: (1) Submit to City's General Services Director a list of the names and addresses of solid waste generators in Newport Beach for which Franchisee provided services as of the date of termination or expiration (i.e. Franchisee's Newport Beach customer list); or (2) Send written notification to each solid waste generator on Franchisee's customer list that Franchisee is no longer authorized to provide commercial solid waste handling services in Newport Beach. Such notification shall be in the form provided by City's General Services Director and shall be personally delivered or shall be sent by first class mail, postage prepaid, to the customers' billing addresses. Franchisee shall submit to City's General Services Director an affidavit, signed under penalty of perjury, stating that the required notification has been provided by Franchisee to all of Franchisee's Newport Beach customers. SECTION 18. ASSIGNMENT Franchisee shall not assign, sell, subcontract, transfer or otherwise delegate its authority to perform any portion of the solid waste handling services or obligations under the Franchise without prior express written consent of the City Council. This prohibition includes any transfer of ownership or control of Franchisee, or the conveyance of a majority of Franchisee's stock to a new controlling interest. City's consent shall not be unreasonably withheld. SECTION 19. MISCELLANEOUS PROVISIONS A. Notices. Except as otherwise provided in this Agreement, all notices required by this Agreement shall be given by personal service or by deposit in the United States mail, postage pre- paid and return receipt requested, addressed to the parties as follows: To: General Services Director City of Newport Beach 3300 Newport Boulevard Newport Beach, CA 92659 To Franchisee: Tim Greenleaf Engineering 18885 Main Street, Suite A-371 Huntington Beach, CA 92648 Notice shall be deemed effective on the date personally served or, if mailed, three days after the date deposited in the mails. 13 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 and 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. 14 WITNESS THE EXECUTION OF THIS AGREEMENT ON THE DATE WRITTEN BELOW EACH SIGNATURE: "CITY" CITY OF NEWPORT BEACH, a Municipal Corporation f iT! PCO) J.L f ATTEST a`` ,P o�+u Foa`' BY: /w LJ LAVONNE M. HARKLESS TOD W. RIDG AY City Clerk Mayor DATE: 11--q—ca APPR VED AS TO FORM: ROBIN CLAUSON "FRANCHISEE" Assistant City Attorney �► r"1 �".^ art �� �' Fill y- 4 COMPANY NAME BY: Signature NAME: `t r'.." (Print) TITLE: 0 --+1 r DATE: 72-30-02 F:\Users\GSV\KRieff\Databases\RefuseRecycling\Haulers200l\Solid Waste FrancbiseBlank2001.doc 15 a,. C1"'opNr City Council Agenda Item No. October 22, 2002 TO: Mayor and City Council FROM: General Services Director SUBJECT: Award of Non -Exclusive Solid Waste Collection Franchise to Tim Greenleaf Engineering Recommendations Conduct a public hearing. Adopt the Ordinance No. 2002-_ granting a Non-exclusive Solid Waste Franchise to Tim Greenleaf Engineering. Background The franchise application from Tim Greenleaf Engineering meets the minimum qualifications per Section 12.63.050 (Application for a Franchise) of the Municipal Code. Please refer to Agenda Item #5 of the October 8, 2002 City Council Agenda for more background information and discussion regarding the proposed franchise award. Very respectfully, David E. Niederhaus FAUSERS\GSW Hammoud\Sta ff Reports\) 02202_PublicHearing7imGreeneleaf doc � �tiv°A°Rr es GeeItsPC�D._�p�------- ---- - C,,�tFO Arch City Council Agenda Item No. 5 October 8, 2002 TO: Mayor and City Council FROM: General Services Director SUBJECT: Award of Non -Exclusive Solid Waste Collection Franchise to Tietz Greenleaf Engineering Recommendations Adopt the attached Resolution of Intention (Resolution No. 2002-_j to award a Non-exclusive Solid Waste Franchise to Tim Greenleaf Engineering, and to conduct a public hearing on October 22, 2002. That the attached Ordinance No. 2002-� granting a Non-exclusive Solid Waste Franchise to Tim Greenleaf Engineering be introduced for a First Reading. It is recommended that Council adopts the Ordinance granting the franchise at the conclusion of the October 22, 2002 public hearing. Background Solid waste is collected, recycled, and disposed of by either City crews or commercial solid waste haulers. City crews collect approximately 75% of all residential solid waste while private haulers collect the remainder of the residential wastestream and all commercial solid waste. The City has an integrated solid waste management program wherein all solid waste collection is monitored to ensure the health and safety of all residents and business owners. A secondary consideration is the achievement of the State recycling mandates (AB939), which includes a 25% recycling rate by December 31, 1995, and a 50% recycling rate by December 31, 2000. The 1995 mandate was achieved. The City was found to have met the 2000 recycling mandate by the California Integrated Waste Management Board. If the City fails to continue to achieve the 50% recycling rate on an annual basis, a fine of up to $10,000 per day can be imposed by the State for failure to make a good faith effort at recycling. F.AUSERS\GS V UHammondlStaff Reports%3 00802_TimGreenleaf doc One of the ways that staff has developed to manage solid waste operations and ensure meeting the recycling mandate is through the issuance of non-exclusive solid waste franchises to solid waste haulers and demolition contractors who apply to operate in the City. In addition to mandating the recycling requirements for the private haulers, the franchise stipulates a franchise fee in the amount of 16% of gross monthly paid receipts to be paid to the City which funds environmental insurance premiums, staff work, and road and alley repairs. Article XIII of the City Charter (Granting of Franchises) and Chapter 12.63 of the Municipal Code (Solid Waste Management) establish requirements and procedures to grant a franchise to provide solid waste handling services within the City. There are currently twenty solid waste franchisees operating under separate agreements to collect and transport solid waste generated within the City limits. There is no limit on the number of franchises that Council may approve. Such a policy permits competitive, service-oriented refuse operations. Staff recently received franchise applications from the following solid waste hauling firm: Tim Greenleaf Engineering. The application submitted by Tim Greenleaf Engineering meet the minimum qualifications per Section 12.63.050 (Application for a Franchise) of the Municipal Code. Discussion Per the California Integrated Waste Management Board's diversion calculations, the City of Newport Beach achieved the recycling mandate through a good faith effort. In order to continue to meet the State's fifty -percent diversion mandate, the City is making every effort to account for diversion activities that occur at construction and demolition sites within City limits. The City accomplishes this by issuing and managing solid waste franchises for solid waste haulers and demolition companies such as Tim Greenleaf Engineering. Pending completion of the public hearing and Council approval on October 22, 2002, the franchise will take effect November 21, 2002 and will expire on January 9, 2006 at the end of the City's ten-year franchise program that began in 1996. It is anticipated that cooperation from solid waste and demolition haulers and increased staff enforcement of the solid waste ordinance will make a significant difference in achieving the State diversion mandate of AB939. Very respectfully, David E. Niederhaus Attachments: (1) Resolution No. 2002- Resolution of Intent to conduct a public hearing to consider the granting of a Non -Exclusive Solid Waste Franchise to Tim Greenleaf Engineering. (2) Ordinance No. 2002 -_Ordinance granting a Non -Exclusive Solid Waste Franchise to Tim Greenleaf Engineering. FAUSERS\GSW Hanmrond\Staff Reports\100802_TimGreenleaf doe RESOLUTION NO. 2002- A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF NEWPORT BEACH DECLARING ITS INTENTION TO CONDUCT A PUBLIC HEARING TO CONSIDER THE GRANTING OF A NON-EXCLUSIVE SOLID WASTE FRANCHISE TO TIM GREENLEAF ENGINEERING. WHEREAS, the City Council finds and determines that the collection of solid waste generated within the City is a vital public service and that the storage, accumulation, collection, and disposal of solid waste and recyclables is a matter of great public concern because improper control of such matters would subject the City to potential liability, damages and penalties and may create a public nuisance, air pollution, fire hazard, infestation, and other problems affecting the public health, safety and welfare; and, WHEREAS, non-exclusive franchises for the use of public streets to provide commercial solid waste hauling services will promote the public health, safety, and welfare by promoting permanence and stability among those businesses wishing to provide such service and accountability to the City for compliance with current and future state mandates; and, WHEREAS, pursuant to Article XIII of the City Charter and pursuant to Sections 49500 through 49523 of the Public Resources Code, the City is authorized to enter into non-exclusive franchise agreements for commercial solid waste collection services with private solid waste haulers; and, WHEREAS, Tim Greenleaf Engineering, and private firm, has submitted an application requesting a Non-exclusive Solid Waste Franchise that satisfies the City's application requirements. NOW, THEREFORE, be it resolved by the City Council of the City of Newport Beach that: 1. A public hearing shall be conducted on October 22, 2002, at 7:00 p.m., or as soon thereafter as practical in the City Council Chambers, 3300 Newport Boulevard, Newport Beach, 1 California, to consider the granting of a franchise to the applicants listed under Item 2 below pursuant to the following terms and conditions: a. Franchise effective date: November 21, 2002. b. Franchise fee: 16% of gross monthly receipts. c. A portion of the Franchise fee, 5.5%, shall be earmarked for the purposes of indemnifying and holding the City harmless from environmental liability associated with the Franchisee's operations in the City. This portion of the Franchise fee shall be paid into the City's Environmental Liability Fund. d. Term of Franchise: November 21, 2002 to January 9, 2006 with renewal rights upon mutual agreement of the franchisee and City. e. The City shall not set the Franchisee's bin rates. f. Franchisee shall indemnify and hold City harmless from penalties and damages for failure to meet current and future state recycling requirements with respect to the portion of the commercial solid waste stream collected by Franchisee. g. Designated disposal facility: City maintains the right to designate disposal facilities to be used by Franchisee. h. Franchisee shall be responsible for all billing and collection for its accounts. i. Franchise shall not be revoked unless there is default under the agreement. j. Prior to obtaining a Solid Waste Franchise, the applicants shall satisfy the City's minimum qualifications regarding liability insurance, equipment, knowledge of solid waste regulations, load check programs, etc. k. Franchisee shall meet City's requirements to implement recycling and source reduction public education activities. 1. City has authority to annually audit Franchisee's financial records relating to the payment of fees required under the franchise. in. Franchisee shall comply with all State, Federal laws and regulations, terms and conditions of the franchise agreement, City Charter and Municipal Code. 2. The City proposes to offer a non-exclusive solid waste collection franchise to the following applicants listed below that are presently licensed and permitted to conduct business 2 in the City. Persons who have an interest in or objection to the proposed franchises may appear before the City Council and be heard on the date and time listed above. a. Tim Greenleaf Engineering. Tim Greenleaf, Owner 3. This Resolution of Intention shall be published in the City's official newspaper within 15 days of its adoption and at least 10 days prior to October 22, 2002. ATTEST: CITY CLERK Adopted this 8th day October, 2002 3 MAYOR ORDINANCE NO. 2002 - AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF NEWPORT BEACH GRANTING A NON-EXCLUSIVE SOLID WASTE FRANCHISE TO TIM GREENLEAF ENGINEERING 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 October 22, 2002, to consider the granting of a franchise to Tim Greenleaf Engineering. D. Having considered all oral and documentary evidence presented at the public hearing, the City Council has determined that the granting of a non-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 the enterprises listed below (hereinafter, "Franchisee") 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) Tim Greenleaf Engineering 1 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 the franchise per Section 2 of the Franchise Agreement ("Agreement") attached hereto as Exhibit A, Commercial Solid Waste Collection Franchise Agreement between the City of Newport Beach and Tim Greenleaf Engineering is hereby adopted, approved and incorporated into this Ordinance by reference, shall commence at 12:01 a.m., on November 21, 2002 and expire on January 9, 2006. The franchise shall take effect on the date specified above provided that the grantee has filed written notice of acceptance in accordance with the requirement of Section 4 of this Ordinance. D. Franchise Fees (1) During the term of the Agreement, Franchisee shall pay to City franchise fees for the privilege of providing commercial solid waste handling services in the City of Newport Beach and use of public streets, right of ways and places for such purposes. Fees shall be in the following amounts: Franchisee shall pay to the City 10.5% (ten and one-half percent) of the Franchisee's gross receipts. 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 provided by the Franchisee within the City. One-half of one percent (0.5%) 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 provisions. (2) Franchisee 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 Franchisee in the City. Payment shall be made concurrently with the payment of the franchise fee and the filing of reports specified in Section 4 and Section 6 of the Agreements. 2 E. Inclusion of Franchise Documents Franchisee shall comply with and shall be bound by all of the terms, provisions and conditions contained in the City Charter, this Ordinance, Chapter 12.63 of the Newport Beach Municipal Code and the Franchise Agreement. SECTION 4: Effective Date This Ordinance shall become effective 30 days from and after the date of its adoption; provided, however, franchises granted by this Ordinance shall not become effective unless and until the grantee files written acceptance of the franchise with the City Clerk, and delivers to the City all bonds and insurance policies required to be furnished in accordance with the requirements of Chapter 12.63 of the Newport Beach Municipal code and the Franchise Agreement. The written acceptance shall be in form and substance as prescribed by the City Attorney and shall operate as an acceptance of each and every term, condition and limitation contained in this Ordinance, the Franchise Agreement, Article XIII of the City Charter, and Chapter 12.63 of the Newport Beach Municipal Code. The grantee shall file written acceptance of the franchise no later than ten (10) days after the adoption of this Ordinance. SECTION 5: CEQA Exemption The City Council of the City of Newport Beach finds that this Ordinance is categorically exempt under the California Code of Regulations Sections 15301 and 15308 defined as "existing operations and facilities" and as "actions by regulatory agencies for protection of the environment" respectively. Use of the above exemption classifications are appropriate because this Ordinance does not change nor expand existing solid waste operations and facilities within the City. The Ordinance is also consistent with the goals of California State Assembly Bill 939, The California Solid Waste Management Act as well as the objectives of the City's Source Reduction and Recycling Element (SRRE). The City Manager is authorized to execute and the City Clerk to file a Notice of Exemption with the Orange County Clerk. SECTION 6: Severability If any section, subsection, sentence, clause or phrase of this Ordinance is, for any reason, held to be invalid or unconstitutional, such decision shall not affect the 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, 3 irrespective of the fact that any one or more sections, subsections, sentences, clauses, or phrases be declared unconstitutional. SECTION 7: Adoption of Ordinance This Ordinance was introduced at a regular meeting of the City Council of the City of Newport Beach, held on the 8th day of October 2002, and adopted on the 22nd day of October 2002, by the following vote to wit: AYES, COUNCIL MEMBERS NOES, COUNCIL MEMBERS ABSTAINED, COUNCIL MEMBERS ABSENT, COUNCIL MEMEBERS MAYOR ATTEST: CITY CLERK 4 COMMERCIAL SOLID WASTE COLLECTION FRANCHISE AGREEMENT BETWEEN THE CITY OF NEWPORT BEACH AND TIM GREENLEAF ENGINEERING 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 Tim Greenleaf Engineering ("Franchisee"). RECITALS This Agreement is entered into on the basis of the following facts: A. Franchisee has provided or is capable of providing commercial solid waste collection services in the City pursuant to a permit issued in accordance with the Newport Beach Municipal Code ("Code"). B. City has duly adopted Ordinance No. 95-63 which has repealed the former Chapter 12.63 and added a new Chapter 12.63 of the Code and requires a franchise for all persons providing commercial solid waste handling services for solid waste generated in the City, C. Article XIII of the City Charter, Chapter 12.63, and Sections 49300 and 49500-49523 of the Public Resources Code authorize the City to enter into nonexclusive franchise agreements for commercial solid waste handling services. D. Pursuant to this Agreement, City desires to authorize Franchisee to provide nonexclusive commercial solid waste handling services within the City. Franchisee shall furnish all personnel, equipment, and supplies necessary to collect, transport, or otherwise remove and dispose of residential solid waste and recyclable materials, as defined herein, from commercial, institutional, or industrial premises within the City. E. The City Council has determined that the grant of a nonexclusive franchise is in the public interest. NOW, THEREFORE, CITY AND FRANCHISEE DO HEREBY AGREE AS FOLLOWS: SECTION 1. GRANT OF FRANCHISE A. By Ordinance No. _-�, 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. 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 November 21, 2002 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 10.5% (ten and one half percent) of the gross receipts for all commercial solid waste handling services provided by the Franchisee in the City. (2) Franchise fee payments shall be paid quarterly and shall be computed and paid on the basis of paid receipts received by the Franchisee for all solid waste handling services within the City. (3) (One half of one percent) .5% of the franchise fee shall be attributable to the maintenance and implementation of the City's Source Reduction and Recycling Element "SRRE," and shall be separately 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 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 (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: 4 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. SECTION 8. ENVIRONMENTAL LIABILITY FUND A. City and Franchisee acknowledge the potential liability which can result from solid waste handling services under Federal and State environmental laws. City intends to take reasonable actions to obtain protection and indemnification against future environmental liability for solid waste generated within the City and the activities of Franchisee under this Agreement for handling such solid waste. To provide protection and indemnification to City for Franchisee's solid waste handling activities in the City, Franchisee agrees to collect from its customers a fee for payment into an Environmental Liability Fund which shall be a separate Fund established and maintained by City. The Fund shall be used to either purchase insurance which will ensure the City against environmental liability which may be imposed upon City as a result of Franchisee's activities under this franchise and/or shall to be used to defend and indemnify the City if insurance is not available or cannot be provided at a cost acceptable to City. The Fund shall not be commingled with or included in the City's General Fund. 5 B. Franchisee shall pay to the City Environmental Liability Fund 5.5% of gross receipts for all commercial solid waste handling services provided by the Franchisee in the City during the prior reporting period. Payment shall be made concurrently with the payment of the Franchise fees and the filing of reports specified in Section 4 and 6 of this Agreement. C. Payments under paragraph B above may be adjusted by City, on an annual basis, upon one hundred twenty (120) days prior notice to Franchisee, as appropriate, to ensure that total payments by all Franchisees into the Fund is maintained at approximately two hundred twenty five thousand dollars ($225,000.00) a year. The fee may be decreased or waived as deemed appropriate by City if subsequent changes in Federal and State law diminish or eliminate liability of City under Federal and State environmental laws. D. Compliance with this obligation shall not limit Franchisee's indemnification as set forth in Section 11, however, the indemnification provisions of 11B shall be secondary to the Fund established by this Section or any insurance purchased with the funds provided. SECTION 9. FRANCHISEE'S RECORDS A. Franchisee shall keep and maintain books of account, income statements and supporting documents of all business transactions conducted by Franchisee in connection with the commercial solid waste handling services of Franchisee under this Agreement. Such records shall be kept at Franchisee's place of business. B. The books of account, income statements and supporting documents shall be made available to City at Franchisee's place of business during normal business hours upon request or demand of the City Manager, City Administrative Services Director, City Attorney, or other City officer, employee or consultant authorized by any of these officers. The purpose of such inspection and/or audit shall be for verification of the fees paid by Franchisee under this Agreement, and the accuracy thereof; and for verification of the amounts of solid waste reported by Franchisee pursuant to this Agreement. To the extent authorized by law, Franchisee's books of account, income statements and other documents accessed by City shall be kept confidential. C. Franchisee shall reimburse City for City's costs in performance of an audit if, as a result of the audit it is determined: i. There was any intentional misrepresentation by Franchise with respect to the amount of franchise fees due to the City; or ii. There is a one thousand dollars ($1,000.00) or greater discrepancy in the amount of franchise fees due to the City. Such reimbursement shall be paid by Franchisee WITHIN THIRTY (30) days of the date City notifies Franchisee in writing of the amount of City's costs. G SECTION 10. INSURANCE REQUIREMENTS Without limiting the indemnification provided in Section 11, Franchisee shall obtain and shall maintain throughout the term of this Agreement, at Franchisee's sole cost and expense, insurance against claims for injuries to persons or damages to property which may arise from or in connection with the commercial solid waste handling services provided under this Agreement by Franchisee, its agents, representatives, employees or contractors. A. Minimum Scope and Limits of Insurance. Franchisee shall maintain at least the following minimum insurance coverages: 1. Commercial General Liability: $1,000,000 combined single limit per occurrence for bodily injury, personal injury and property damage. The Commercial General Liability insurance limit shall apply separately to this Agreement or the general aggregate limit shall be twice the required occurrence limit. 2. Automobile Liability: $2,000,000 combined single limit per occurrence for bodily injury and property damage, and shall include sudden and accidental coverage. 3. Workers' Compensation and Employers Liability: Workers' Compensation statutory limits as required by the California Labor Code and Employers Liability limits of $1,000,000 per accident. B. Deductibles and Self -Insured Retentions. Any deductibles or self-insured retentions must be declared to and approved by City's Risk Manager. At the option of City either: the insurer shall reduce or eliminate such deductibles or self- insured retentions as respects City, its officers, employees, agents and contractors; or Franchisee shall procure a bond guaranteeing payment of losses and related investigations, claim administration and defense expenses in an amount specified by City's Risk Manager. C. Endorsements. The required insurance policies are to contain, or be endorsed to contain, he following provisions: 1. General Liability and Automobile Liability Coverages. a. The City of Newport Beach, its officers, employees, agents and contractors are to be covered as an additional insured as respects: liability arising out of activities performed by, or on behalf of Franchisee; products and completed operations of Franchisee;.premises owned, leased or used by Franchisee; and automobiles owned, leased, hired or borrowed by Franchisee. The coverage shall contain no special limitations on the scope of protection afforded to City, its officers, employees and agents and contractors. b. Franchisee's insurance coverage shall be primary insurance as respects City, its officers, employees, agents and contractors. Any insurance or self-insurance maintained by City, its officers, employees, agents or contractors shall be excess of Franchisee's insurance and shall not contribute with it. C. Any failure to comply with reporting provisions of the policies shall not affect coverage provided to City, its officers, employees, agents or contracts. d. Coverage shall state that Franchisee's insurance shall apply separately to each insured against whom claim is made or suit is brought, except with respect to the limits of the insurer's liability. 2. All Coverages Each insurance policy required by this Agreement shall be endorsed to state that coverage shall not be suspended, voided, canceled, or reduced in limits except after thirty (30) days' prior written notice has been given to the City. D. Placement of Insurance. Insurance shall be placed with an insurance company certified to do business in the State of California, with Best's rating A -VII or better, unless otherwise approved by the City Risk Manager. 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. 0 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 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. Z C. Equipment. (1) Franchisee shall, at all times, provide such number of vehicles and such equipment as will be adequate for the collection, transportation and disposal services which it is authorized to provide under this Agreement. All vehicles utilized by Franchisee in the performance of this Agreement shall be registered with the California Department of Motor Vehicles. All vehicles shall be properly maintained, kept clean and in good repair, and shall be uniformly painted. All commercial solid waste containers used in the performance of this Agreement shall be kept clean and in good repair and shall be uniformly painted to the satisfaction of the General Services Director. All vehicles and equipment used by Franchisee in the performance of this Agreement may be subject to inspection by the City on a semi-annual basis. (2) Each vehicle shall be so constructed and used that no rubbish, garbage, debris, oil, grease or other material will blow, fall, or leak out of the vehicle. All solid waste shall be transported by means of vehicles which are covered in such a manner as to securely contain all solid waste and to prevent such solid waste from projecting, blowing, falling or leaking out of the vehicles. Any solid waste dropped or spilled in collection, transfer or transportation shall be immediately cleaned up by Franchisee. A broom and a shovel shall be carried at all times on each vehicle for this purpose. In addition, each collection vehicle shall be equipped with trash bags, masking tape and notice of non -collection tags for the purpose of separating hazardous waste for return to the generator. A communications device such as a two-way radio or a cellular telephone shall also be maintained on each vehicle, (3) Franchisee shall not store any vehicle or equipment on any public street or other public property in the City without the prior written consent of the General Services Director. (4) Should the General Services Director at any time given written notification to Franchisee that any vehicle does not comply with the standards hereunder, the vehicle shall be promptly removed from service by Franchisee and not again be so used until inspected and authorized in writing by the General Services Director. SECTION 13. ABANDONED CONTAINERS A. Franchisee shall comply with the regulations adopted by the City Manager for placement of commercial solid waste containers on public property. B. If Franchisee abandons any commercial solid waste container within the City, the City may remove the container and/or dispose of the contents of the container. C. If City is required to remove a roll -off or compactor container abandoned by Franchisee and/or disposes of the contents of any container abandoned by Franchisee, City may charge Franchisee for City's costs incurred in such removal/disposal and for City's costs of storage of the container. Franchisees who are engaged in providing roll -off containers shall maintain a $3,000 performance bond, certificate of deposit or other form of security acceptable to the City, with City Revenue Division to reimburse City for such costs within ten (10) days of the date of City's invoice for such costs. 10 D. For the purposes of this Section, "abandoned" includes: (1) Franchisee's failure to remove the container within the time period specified by the City Council upon termination of the Franchise pursuant to Section 12.63.130 of the Code; (2) Franchisee's failure to remove the container within ten (10) working days after the expiration of the Franchise granted to Franchisee, except in the case where Franchisee has been granted an extension of the term of said Franchise or Franchisee has been granted a subsequent Franchise authorizing Franchisee to collect and transport the type or types of solid waste for which the container was used pursuant to this Agreement. (3) Franchisee's failure to collect the container and dispose of the contents of the container within five (5) days after City's Director of General Services issues written notice to Franchisee to dispose of the contents. SECTION 14. COMPLIANCE WITH LAW A. Franchisee shall perform all solid waste handling services in accordance with applicable federal, state, and local law, including Chapter 12.63 of the Code, Article XIII of the City Charter, Ordinance No. 95-63 and in accordance with the terms and conditions of this Agreement. B. Over the course of the franchise term, Franchisee and City agree that the City's ordinances may be amended as necessary to permit the City to comply with changes to federal, state, and local legislative regulatory requirements, which may affect or alter City's solid waste handling obligations or requirements for solid waste management. Franchisee agrees to comply with any such amendment of the City's ordinances. SECTION 15. PERMITS AND LICENSES Franchisee shall obtain and maintain, at Franchisee's sole cost and expense, all permits and licenses applicable to Franchisee's operations under the Franchise which are required of Franchisee by any governmental agency. SECTION 16. PUBLIC EDUCATION ACTIVITIES A. City and Franchisee shall cooperate in co -sponsoring not more than one promotional event per year, as mutually agreed upon in advance by the parties, which is related to the implementation of commercial solid waste handling services and recycling services. B. Each year during the term of this Agreement, on an annual basis, Franchise shall transmit promotional brochures or fliers to its commercial customers, and to such prospective commercial customers as it may select, informing them of the commercial solid waste handling services and recycling services which are provided by the Franchisee as well as hazardous waste disposal requirements. 11 C. All promotional brochures, fliers or other information distributed by Franchisee hereunder shall be printed on recycled paper. All such informational materials shall be approved in advance by the City's General Services Director. SECTION 17. TERMINATION AND SUSPENSION A. The franchise granted to Franchisee may be terminated by the City Council pursuant to Section 12.63.130 of the Code. B. In the event the Franchise is terminated pursuant to Subsection A above or the term of this Agreement expires: (1) Franchisee shall have no right or authority to engage in commercial solid waste handling operations in the City of Newport Beach, subject to the provisions of Sections 49520-49523 of the Public Resources Code. (2) Franchisee shall, however, remain liable to City for any and all franchise fees that would otherwise be payable by Franchisee, for any and all late payment charges and interest assessed pursuant to Section 4 of this Agreement, and for any and all delinquent report charges assessed pursuant to Section 6 of this Agreement. (3) Franchisee shall have a continuing obligation to submit to City all reports required by Section 6 of this Agreement which relates to commercial solid waste handling activities performed by Franchisee up to and including the date of termination, suspension, or expiration. (4) Franchisee shall allow the solid waste generators served by Franchisee to arrange for solid waste handling services with a solid waste enterprise collector authorized to perform such services, without penalty or liability for breach of contract on the part of the generators, for such period of time as Franchisee is not authorized to perform such services because of termination or suspension. (5) Franchisee agrees to continue to provide the indemnifications required in this contract after its suspension or termination. Such indemnifications include, but are not limited to, the hazardous materials indemnification and AB939 indemnification in Section 11. C. In the event this Franchise is terminated pursuant to Subsection A above, then within the time period specified by the City Council, Franchisee shall remove all of Franchisee's commercial solid waste containers, and all of such containers used by Franchisee's subcontractors in performance of solid waste handling services pursuant to the Franchise, from all Franchisee's collection service locations and shall properly dispose of all solid waste in such containers. D. In the event the Franchise is terminated pursuant to Subsection A above or expires without an extension of the term and without a grant of a Subsequent Franchise allowing Franchisee to continue performing such services, then within ten (10) days of such termination or expiration Franchisee shall either: 12 (1) Submit to City's General Services Director a list of the names and addresses of solid waste generators in Newport Beach for which Franchisee provided services as of the date of termination or expiration (i.e. Franchisee's Newport Beach customer list); or (2) Send written notification to. each solid waste generator on Franchisee's customer list that Franchisee is no longer authorized to provide commercial solid waste handling services in Newport Beach. Such notification shall be in the form provided by City's General Services Director and shall be personally delivered or shall be sent by first class mail, postage prepaid, to the customers' billing addresses. Franchisee shall submit to City's General Services Director an affidavit, signed under penalty of perjury, stating that the required notification has been provided by Franchisee to all of Franchisee's Newport Beach customers. SECTION 18. ASSIGNMENT Franchisee shall not assign, sell, subcontract, transfer or otherwise delegate its authority to perform any portion of the solid waste handling services or obligations under the Franchise without prior express written consent of the City Council. This prohibition includes any transfer of ownership or control of Franchisee, or the conveyance of a majority of Franchisee's stock to a new controlling interest. City's consent shall not be unreasonably withheld. SECTION 19. MISCELLANEOUS PROVISIONS A. Notices. Except as otherwise provided in this Agreement, all notices required by this Agreement shall be given by personal service or by deposit in the United States mail, postage pre- paid and return receipt requested, addressed to the parties as follows: To: General Services Director City of Newport Beach 3300 Newport Boulevard Newport Beach, CA 92659 To Franchisee: Tim Greenleaf Engineering 18885 Main St. Suite A-371 Huntington Beach, CA 92648 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. 13 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. 14 WITNESS THE EXECUTION OF THIS AGREEMENT ON THE DATE WRITTEN BELOW EACH SIGNATURE: ATTEST LAVONNE M. HARKLESS City Clerk APPROVED AS TO FORM: ROBIN CLAUSON Assistant City Attorney "CITY" CITY OF NEWPORT BEACH, a Municipal Corporation EFl M3, GAROLD B. ADAMS Mayor DATE: "FRANCHISEE" COMPANY NAME BY: Signature NAME: (Print) TITLE: DATE: