HomeMy WebLinkAboutCR&RACCEPTANCE OF NON-EXCLUSIVE FRANCHISE AGREEMENT FOR SOLID WASTE AND
DIVERTIBLE MATERIALS HANDLING SERVICES
WHEREAS, on September 8, 2020, the City Council of the City of Newport Beach ("City") adopted
Ordinance No. 2020-20, entitled An Ordinance of the City Council of the City of Newport Beach, California,
Granting The 2020 Non -Exclusive Franchise Agreement for Commercial Solid Waste and Divertible
Materials Handling Services Within the City of Newport Beach, which granted CR&R Incorporated
("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 after adoption
of the ordinance granting the franchise; and
WHEREAS, Franchisee wishes to accept the Franchise granted by Ordinance No. 2020-20 by filing
written acceptance thereof.
NOW THEREFORE, Franchisee hereby accepts the Franchise granted by Ordinance No. 2020-20
and hereby agrees to comply, in all operations, with the provisions of the City Charter, Newport Beach
Municipal Code Chapter 12.63, Ordinance No. 2020-20, the franchise agreement awarded pursuant to
Ordinance No. 2020-20, and all applicable federal, state, and local laws.
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: 10/70/z.0 By:
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CITY CLERK'S VERIFICATION OF ACCEPTANCE
I, Leilani I. Brown, City Clerk, certify that the above acceptance of the Franchise granted by Ordinance
No. 2020-20 was received by me on at
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NON-EXCLUSIVE FRANCHISE AGREEMENT BETWEEN THE CITY OF
NEWPORT BEACH AND CR&R INCORPORATED FOR COMMERCIAL
SOLID WASTE AND DIVERTIBLE MATERIALS HANDLING SERVICES
This Non-exclusive Franchise Agreement for Commercial Solid Waste and
Divertible Materials Handling Services ("Agreement") is entered into this 8th day of
October, 2020 ("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 CR&R Incorporated, a California corporation ("Franchisee") (City
and Franchisee may collectively be referred to as "Parties"), whose address is 11292
Western Avenue, Stanton, California 90680 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. Some
smaller commercial generators are 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 and divertible materials handling services.
H. On October 10, 2017, the City Council of the City of Newport Beach ("City
Council") adopted Ordinance No. 2017-16, An Ordinance of the City Council of the City
of Newport Beach, California, Granting Non -Exclusive Solid Waste Franchises to
Provide Commercial Solid Waste Handling Services Within the City of Newport Beach.
I. As part of its adoption of Ordinance No. 2017-16, the City entered into a
number of nonexclusive franchise agreements allowing solid waste haulers to operate in
the City.
J. On October 22, 2019, the City Council approved revisions to the
nonexclusive franchise agreement with solid waste haulers to improve procedures for
compliance with Assembly Bills 341 and 1826. The revised nonexclusive franchise
agreement also extended the term for an additional two (2) years.
K. Pursuant to Code Chapter 12.63, Franchisee has filed a franchise
application with the City to operate under the new Nonexclusive Franchise Agreement for
Commercial Solid Waste and Divertible Materials Handling Services.
L. The Parties now wish to terminate the franchise agreement adopted
pursuant to Ordinance No. 2017-16 and enter into a new Nonexclusive Franchise
Agreement for Commercial Solid Waste and Divertible Materials Handling Services.
M. 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.
N. Pursuant to this Agreement, City desires to authorize Franchisee to provide
those non-exclusive commercial services for collection, transportation, delivery, and
disposal of Municipal Solid Waste and/or collection, transportation, processing and
diversion of recyclable materials, food scraps, green waste, wood waste, and construction
and demolition debris as requested in Franchisee's application and for which Franchisee
has demonstrated capability.
O. 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. 2020-20, City has granted to Franchisee a non-exclusive
Franchise authorizing Franchisee to provide Commercial Franchise Services within all or
any part of the City and to use the public streets and public right-of-ways for such purpose.
Non-exclusive Franchise Agreement Page 2
Franchisee acknowledges that the Franchise is not exclusive and that the Franchise is
subject to all provisions of applicable law, including, but not limited to, Article XIII of the
City Charter, Ordinance No. 2020-20, 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 Franchise 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 abandoned and of no further force or effect except the Franchisee's
obligation(s) to comply with the Diversion requirements set forth in Sections 12 through
15, the Continuing Obligations set forth in Section 23(J), or any other obligations specified
in the franchise agreement granted pursuant to Ordinance No. 2017-16.
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
"AB 341 Generator" means all Municipal Solid Waste generators required by AB
341 (Public Resources Code Section 41780.01) to divert Recyclable Materials generated
on-site from Disposal including (A) all businesses located and operating within the City,
and the responsible party, property owners, owners, operators, property managers,
tenants and lessees of same, that generate four (4) or more cubic yards of Municipal Solid
Waste per week; including but not limited to, retail stores, restaurants, offices,
supermarkets, convenience stores, malls, strip malls, service businesses, hospitals,
assisted living facilities, and federal, state and local government facilities; (B) Multifamily
Dwellings consisting of five (5) or more units regardless of the amount of Municipal Solid
Waste generated; (C) the City, its facilities, its non-residential properties, and (D) special
events that take place in the City that generate four (4) or more cubic yards of municipal
solid waste per event whether or not sponsored by the City.
"AB 1826 Generator" means all food -generating businesses within the City, and
the responsible parties, property owners, owners, operators, property managers, tenants
and lessees of same, that generate four (4) or more cubic yards of Municipal Solid Waste
per week and are required by AB 1826, as codified in Public Resources Code Section
42649.82, to divert all Food Scraps generated on-site from Disposal; including but not
limited to, all restaurants, cafeterias, hospitals, and supermarkets; (B) all non -food -
generating businesses and the responsible parties, property owners, owners, operators,
property managers, tenants and lessees of same, that generate four (4) or more cubic
yards of Municipal Solid Waste per week and that generate Green Waste and/or Wood
Waste (C) all Multifamily Dwellings consisting of five (5) or more units regardless of the
amount of Municipal Solid Waste generated; (D) federal, state and local government
facilities, schools, the City, its facilities, and its non-residential properties, and (E) special
events that take place within the City that generate four (4) or more cubic yards of
municipal solid waste per event, whether or not sponsored by the City. As of the effective
date of this Agreement, the threshold amount of Municipal Solid Waste provided for in
Non-exclusive Franchise Agreement Page 3
Public Resources Code Section 42649.81 is four (4) or more cubic yards of Municipal
Solid Waste per week on or after January 1, 2020. If CalRecycle changes the quantities
of Municipal Solid Waste necessary to be considered an AB 1826 Generator, the
definition of an AB 1826 Generator shall be automatically amended to reflect these new
quantities.
"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).
"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 will not 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.
"Bioengineered Feedstock" means a mixture of materials utilized in Wastewater
Treatment Plants (WWTP's) or publically-owned treatment works (POTW's) to produce
biogas. (This process is also referred to as "wet anaerobic digestion.") Bioengineered
Feedstock may include primary and secondary sludge, greases from the WWTP grease
trap, and organic materials such as Food Scraps from businesses and households or
other organic materials from industries that have been pre-treated and liquefied to the
required consistency.
Non-exclusive Franchise Agreement Page 4
"Bioengineered Feedstock Facility" means a Processing Facility that accepts Food
Scraps and other Bioengineered Feedstock, chops, macerates or otherwise size -reduces
the incoming materials, mixes the material with liquid and produces a slurry which is then
transported or otherwise delivered to a Wastewater Treatment Plant or similar facility that
uses Bioengineered Feedstock to produce methane,
"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," "Finance Director," and "Public Works Director" mean the City
Manager, 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 Franchise Services" means the services provided by Franchisees
pursuant to the terms and conditions of the Franchise and includes the Collection,
transportation, storage, and Disposal of Municipal Solid Waste and the Collection,
transportation, Processing and Diversion of Processible Municipal Solid Waste,
Recyclable Materials, Green Waste, Wood Waste, Food Scraps and/or Construction and
Demolition Debris by private solid waste enterprises, and includes, without limitation, the
Non-exclusive Franchise Agreement Page 5
placement of Commercial Solid Waste and Divertible Materials Containers on public
property.
"Commercial Premises" means all occupied real property in the City used for
commercial purposes 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, federal, state and local government
facilities, schools, Multi -Family Dwellings that receive centralized Collection service and
construction and demolition sites.
"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 6
"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 Container.
"Customer" means the owner, occupant, manager or user of premises at which
Municipal Solid Waste, Recyclable Materials, Green Waste, Wood Waste, Food Scraps
or Construction and Demolition Debris are generated who requests and receives
Commercial or Multifamily Collection services for Municipal Solid Waste and/or Divertible
Materials from one or more Franchisees. In the event a business, non-residential
property, Multifamily dwelling or Commercial Premises shares Containers and/or
Collection services, "Customer" refers only to the entity that arranges and pays for such
services.
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 Waste, Construction and Demolition Debris
and other Divertible 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 Bioengineered Feedstock Facility, and/or 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 Plan" or "the Plan" means a plan prepared for a Customer by
Franchisee pursuant to Exhibit E, Section A 2 of this Franchise Agreement that describes
in detail the Diversion Program(s) recommended by Franchisee to be implemented at
Customer's premises. A Diversion Plan contains estimated quantities of Divertible
Materials generated at the Customer's premises, recommended types and sizes of
outside Containers for storage of Divertible Materials, recommended frequency of
Collection; modifications to sizes, types and Collection frequency for Containers for
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Municipal Solid Waste to adjust for the separate storage and Collection of Divertible
Materials, and plans for the flow of materials through Customer's premises, including the
location and sizing of interior Containers required for separation and interim storage of
Divertible Materials. Diversion Plans also contain projected costs and any projected cost
savings to the Customer for implementing the Diversion Plan.
"Diversion Program(s)," "Recycling Program(s)" and "Diversion Services" mean
Recyclable Materials Collection, Green Waste Collection, Wood Waste Collection, Food
Scraps Collection, Processable Municipal Solid Waste 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
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.
"Divertible Materials" or "Divertible" means Recyclable Materials, Food Scraps,
Green Waste, Wood Waste, Construction and Demolition Debris, electronic waste,
universal waste and all other materials that can be diverted from Landfill Disposal.
Divertible Materials includes, but is not limited to, all materials required to be diverted from
Landfill Disposal by City, CalRecycle or any state or federal agency."
"Edible Food For Human Consumption" or "Edible Food" means food that has been
prepared but not served, and includes, but is not limited to: any appetizer, soup, salad,
entree, dessert, raw fruit and vegetable, that may or may not have been sliced, grated,
cooked, baked or otherwise prepared for consumption but not served; any packaged
sandwich, salad, fruit and fruit salad and any other non -served food that meets state and
local requirements as being edible for human consumption.
"Effective Date" means the date upon which this Agreement is effective as set forth
in the first paragraph of this Agreement.
"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
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the food scraps. "Food Scraps" are Collected and transported to Food Scrap Processing
Facilities which include Compost Facilities, Anaerobic Digestion 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 this 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 for the Collection and
Diversion of 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," "Franchise" or "Franchise Services" 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,
Non-exclusive Franchise Agreement Page 9
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 Franchise 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 Franchise 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 Commercial Franchise Services in the
City, not to exceed three percent (3%) of Gross Receipts; and (3) revenues collected for
Franchisee's Commercial Franchise 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, 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
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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,
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 Divertible Materials contained therein for Recycling.
Processable Municipal Solid Waste may also contain non-divertible constituents including
but not limited to, broken glass, diapers, ashes, Industrial Waste, discarded Bulky Goods
Non-exclusive Franchise Agreement Page 11
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, and concrete and
asphalt grinding facilities. Processing Facilities 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 Diverting 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 Diversion 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
Non-exclusive Franchise Agreement Page 12
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.
"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.
Non-exclusive Franchise Agreement Page 13
"Termination Date" means October 7, 2027.
"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" means a facility using a Transformation process 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 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.
"Wood Waste" means all non -hazardous wood material that is not painted with
lead-based or other paints containing materials identified as hazardous waste, or treated
with creosote or other hazardous materials. Wood Waste includes, but is not limited to,
tree branches and other wood trimmings, dimensional lumber and other pieces of wood
generated during the manufacture or processing of wood products. For wood generated
from construction and/or demolition activities, see the definition of "Construction and
Demolition Debris.
SECTION 4. FRANCHISE FEES
A. During the Term of this Franchise, Franchisee shall pay to City Franchise
Fees for the privilege of providing Commercial Franchise 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
which are reasonably related to the value of Agreement for all Commercial Franchise
Services provided by Franchisee in the City as follows:
1. Ten and one-half percent (10.5%) of the Gross Receipts for all
Commercial Franchise Services provided by the Franchisee in the City ("Commercial
Franchise Service 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 Franchise Services provided by Franchisee in the City shall be paid into an
Environmental Liability Fund, which shall be a separate fund established and maintained
Non-exclusive Franchise Agreement Page 14
by City ("Environmental Liability Fund Fee"). Hereinafter, Environmental Liability Fund
Fee and Commercial Franchise Fee shall be collectively referred to as "Fees."
B. City and Franchisee acknowledge the potential environmental liability that
may result from Commercial Franchise 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 and Divertible Materials generated within the City and the
activities of Franchisee under this Agreement for handling such Commercial Solid Waste
and Divertible Materials. To provide protection and indemnification to City for
Franchisee's Commercial Franchise 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.
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
Non-exclusive Franchise Agreement Page 15
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 October 30, 2020, 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
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 Franchise 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 Public
Works 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
Non-exclusive Franchise Agreement Page 16
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
Sections 7, 12, 13, 14 and 15. 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 Public Works Director, Franchisee shall
provide all documents and information requested by the Public Works 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 be delivered to a fully permitted Disposal facility designated by City and that
Recyclable Materials, Food Scraps, Green Waste and/or Wood Waste be delivered to a
Non-exclusive Franchise Agreement Page 17
fully permitted Processing 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 Divertible 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. Franchisee shall also comply with all
requirements of Section 15. 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 Public Works
Director, Franchisee shall provide all documents and information requested by the Public
Works 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.
Non-exclusive Franchise Agreement Page 18
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 non -Diverted 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.
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
Non-exclusive Franchise Agreement Page 19
merchantability or fitness of Construction and Demolition Debris for any particular
purpose.
SECTION 8. FRANCHISEE'S APPLICATION; RECORDS; AUDITS
A. Application. Franchisee has submitted an application to City in substantially
the same form as the template attached hereto as Exhibit "C" and incorporated herein by
reference as a condition of entering into this Agreement. 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 Franchise 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
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, Municipal Solid Waste
and Divertible Materials 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
Non-exclusive Franchise Agreement Page 20
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 Municipal Solid Waste and Divertible Materials 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 Public Works 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 Franchise Services and/or Franchisee's handling
and transportation of Municipal Solid Waste and/or Divertible Materials 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
Non-exclusive Franchise Agreement Page 21
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 Franchise 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 Franchise 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,
Wood Waste, Construction and Demolition Debris and/or Municipal Solid Waste 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 Franchise 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
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
Non-exclusive Franchise Agreement Page 22
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 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
the 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 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 Divertible 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, Green Waste and Wood Waste streams 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 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 AND DIVERTIBLE MATERIALS
COLLECTION SERVICES
A. Authorized Collection Services. Franchisee may only provide those
Commercial Franchise 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 Municipal Solid Waste
and Divertible Materials 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 Subsections 6.04.110 and 6.04.120 and does not permit the
accumulation of Commercial Solid Waste or Divertible Materials 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
Non-exclusive Franchise Agreement Page 23
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 and Divertible
Materials 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 or Divertible
Materials 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 or Divertible
Materials 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 or Divertible Materials from any Commercial Premises,
governmental facility, or Multifamily Dwelling located within five hundred (500) feet of a
school, 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 any non-
residential arterial roadway within the City are subject to Section 6.04.130(A) but shall not
be prohibited or limited under this Agreement.
4. Commercial Solid Waste and Divertible Materials 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 and Divertible Materials
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
Non-exclusive Franchise Agreement Page 24
A. Diversion Program. The Act requires all AB 341 Generators to arrange for
Recyclable Materials Collection services by July 1, 2012. The Act requires all cities to
provide a commercial Recyclable Materials Collection 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
Divertible Materials, Franchisee shall implement a Recyclable Materials Collection
Program using one or more of the following:
1. Provide Single Stream Recyclable Materials and (if applicable) Single
Material Collection service on a weekly or more frequent basis.
2. Provide Collection of Recyclable Materials commingled with Municipal
Solid Waste and process the Collected material at a City -approved
Dirty MRF that yields Diversion results comparable to source
separation. No Dirty MRF may be used for separation of AB 341
materials unless the Dirty MRF has been approved by City as meeting
the standards and requirements of Public Resources Code Section
42649 and all rules, amendments and regulations promulgated in
furtherance thereof.
3. If Franchisee observes that the AB 341 Generator has one (1) or more
internal Programs that Divert Recyclable Materials, is self -hauling or
backhauling Recyclable Materials, donating or selling Recyclable
Materials to a third party, or is using a third party or other Franchisee
to Collect Recyclable Materials, Franchisee shall report this to City and
City, in its sole discretion, shall make a final determination as to the
adequacy of the internal and/or third party Recyclable Materials
Diversion Program(s). If the City finds the internal and/or third party
Program(s) inadequate, Franchisee shall proceed to implement a
Recyclable Materials Diversion Program to Divert all the remaining AB
341 Recyclable Materials generated by the AB 341 Generator as
described in Exhibit E, which is incorporated herein by reference.
B. Act Compliance. The Parties agree that provision of an AB 341 Diversion
Program, as set forth in this Section 12 and in Exhibit "E," 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 AB 341 Generators to
obtain their full participation in AB 341 Diversion Program is essential for Franchisee to
implement an effective Diversion Program for each and every AB 341 Generator it serves.
The Parties acknowledge that achievement of this requirement is integral to the City's
compliance with the Act and that failure to implement said AB 341 Diversion Programs
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 Divertible Materials,
Non-exclusive Franchise Agreement Page 25
whichever is later, Franchisee shall implement a Recyclable Materials Diversion Program
for said AB 341 Generator. For purposes of this Section 12, "implement" as provided
herein shall mean Franchisee's completion of all of the steps and requirements in Exhibit
E.
SECTION 13. AB 1826 FOOD SCRAP DIVERSION PROGRAM FOR COMMERCIAL
PREMISES
A. Food Scrap Diversion Program. The Act requires AB 1826 Generators to
implement Diversion Programs as follows. 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 must arrange for Diversion Programs for
those materials. 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 must arrange for Diversion Programs for Food Scraps and Green Waste. The
Act requires cities to provide a commercial Food Scrap Diversion Program for AB 1826
Food Scrap Generators on or before January 1, 2016. Franchisee acknowledges these
requirements and agrees that, subject to the restrictions contained in Agreement Section
11(A), for all AB 1826 Food Scrap Generators that contract with or pay Franchisee to haul
Municipal Solid Waste and/or Divertible Materials Franchisee shall implement a Food
Scrap Diversion Program. The City will maintain a listing of all AB 1826 Food Scrap
Generators. 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. Franchisee shall
implement a Food Scrap Diversion Program using one or more of the following:
1. Provide source separated Food Scrap Collection service on a weekly
or more frequent basis.
2. If Franchisee observes that the AB 1826 Food Scrap Generator has
one (1) or more internal Food Scrap Diversion Programs, is self -hauling
or backhauling Food Scraps, is donating or selling Food Scraps, is
donating edible food for human consumption, and/or is using a third
party or other Franchisee to Collect Food Scraps, Franchisee shall
report this to City and City, in its sole discretion, shall make a final
determination as to the adequacy of the internal and/or third party Food
Scrap Diversion Program(s). If the City finds the internal and/or third
party program(s) are inadequate, Franchisee shall proceed to
implement a Diversion Program to Divert all the remaining AB 1826
Food Scraps generated by the AB 1826 Generator.
B. Act Compliance. The parties agree that provision of a Food Scrap Diversion
Program as described in this Section 13 and in Exhibit "E" 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 AB 1826 Food Scrap
Generators to obtain their full participation in AB 1826 Diversion Programs is essential for
Franchisee to implement an effective Food Scrap Diversion Program for each and every
AB 1826 Food Scrap Generator it serves. The parties acknowledge that achievement of
Non-exclusive Franchise Agreement Page 26
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 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 1826 Food Scrap Generator
initiates service with Franchisee to Collect and/or transport Municipal Solid Waste and/or
Divertible Materials , whichever is later, Franchisee shall implement a Food Scrap
Diversion Program for said AB 1826 Food Scrap Generator. For purposes of this Section,
Franchisee shall be found to have "implemented" a Food Scrap Diversion Program for an
AB 1826 Food Scrap Generator only if Franchisee completes all of the steps and
requirements in Exhibit E.
SECTION 14. AB 1826 COMMERCIAL AND MULTIFAMILY GREEN WASTE AND
WOOD WASTE COLLECTION PROGRAM.
A. Act Requirements. The Act requires all AB 1826 Generators of Green
Waste and/or Wood Waste to implement Diversion Programs as follows. All Commercial
Premises and all Multifamily Dwellings generating four (4) or more cubic yards of Food
Scraps and/or Green Waste and Wood Waste must arrange for Diversion Programs for
Green Waste and Wood Waste on or before January 1, 2017. On or after January 1,
2019, all owners and responsible parties of Commercial Premises and Multifamily
Dwellings generating four (4) or more cubic yards of Commercial Solid Waste per week
are required to arrange for Diversion Programs for Green Waste and Wood Waste. The
Act requires cities to provide Commercial and Multifamily Green Waste and Wood Waste
Diversion Programs for AB 1826 Green Waste and Wood Waste Generators on or before
January 1, 2016. Franchisee acknowledges these requirements and agrees that, subject
to the restrictions contained in Agreement Section 11(A), for all AB 1826 Green Waste
and Wood Waste Generators that contract with or pay Franchisee to haul Municipal Solid
Waste and/or Divertible Materials, Franchisee shall implement a Green Waste and Wood
Waste Diversion Program. (For wood generated by construction and demolition projects,
the requirements of Sections 7 and 15 shall apply.) The City will maintain a listing of all
AB 1826 Green Waste and Wood Waste Generators. 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. Franchisee shall implement a Green Waste and Wood
Waste Diversion Program using one or more of the following:
Provide source separated Green Waste and Wood Waste Collection service on a
weekly or more frequent basis.
Provide Collection of Green Waste and Wood Waste co -mingled with
Municipal Solid Waste and process the Collected material at a City -
approved Dirty MRF that yields Diversion results comparable to
source separation. No Dirty MRF may be used for separation of AB
1826 Green Waste or Wood Waste materials unless the Dirty MRF
has been approved by City as meeting the standards and
Non-exclusive Franchise Agreement Page 27
requirements of Public Resources Code Section 42649 and all rules,
amendments and regulations promulgated in furtherance thereof.
2. If Franchisee observes that the AB 1826 Green Waste and Wood
Waste Generator has one (1) or more internal Green Waste and/or
Wood Waste Diversion Program(s), is self -hauling or backhauling
Green Waste and/or Wood Waste, is donating or selling Green
Waste and/or Wood Waste, or is using a third party or other
Franchisee to Collect Green Waste and/or Wood Waste, Franchisee
shall report this to City and City, in its sole discretion, shall make a
final determination as to the adequacy of the internal and/or third
party Green Waste and/or Wood Waste Diversion Program(s). If the
City finds the internal and/or third party program(s) are inadequate,
Franchisee shall proceed to implement a Diversion Program to Divert
all the remaining Green Waste and Wood Waste generated by the
Customer.
3. If the AB 1826 Green Waste and Wood Waste Generator is using a
landscaping company to haul away Green Waste and Wood Waste,
Franchisee shall report this to the City and City, in its sole discretion,
shall make a final determination as to the adequacy of the landscaper
program to Divert all the Green Waste and Wood Waste. If the City
finds the landscaper program to be inadequate and/or lacking the
proper documentation of the end use for the Collected Green Waste
and Wood Waste, Franchisee shall proceed to implement a
Diversion Program to Divert all the Green Waste and Wood Waste
generated by the AB 1826 Generator.
All Green Waste and Wood Waste Collected by Franchisee shall be delivered to a
permitted Green Waste and/or Wood Waste Processing Facility for Diversion. No Green
Waste or Wood Waste Collected in City may be used as Alternative Daily Cover at a
landfill as an end use. This prohibition includes Green Waste and Wood Waste processed
at a permitted Processing Facility as well as the residue from such Facility.
B. Act Compliance. The parties agree that provision of a Green Waste and
Wood Waste Diversion Program as described in this Section 14 and in Exhibit "E" 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
AB 1826 Green Waste and Wood Waste Generators to obtain their full participation in AB
1826 Diversion Programs is essential for Franchisee to implement an effective Green
Waste and Wood Waste Diversion Program for each and every AB 1826 Green Waste
and Wood Waste Generator it serves. 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 Programs 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 1826 Green Waste and Wood
Non-exclusive Franchise Agreement Page 28
Waste Generator initiates service with Franchisee to Collect and/or transport Municipal
Solid Waste and/or Divertible Materials, whichever is later, Franchisee shall implement a
Green Waste and Wood Waste Diversion Program for said AB 1826 Green Waste and
Wood Waste Generator. For purposes of this Section, Franchisee shall be found to have
"implemented" a Green Waste and Wood Waste Diversion Program for an AB 1826
Green Waste and Wood Waste Generator only if Franchisee completes all of the steps
and requirements in Exhibit E.
SECTION 15. CONSTRUCTION AND DEMOLITION DEBRIS RECYCLING PROGRAM
A. Act Requirements. The California Green Building Standards Code codified
in the California Code of Regulations Title 24, Part 11, ("CalGreen") and adopted by
reference in Code Section 15.11.010, requires mandatory diversion of Construction and
Demolition Debris. Contractor shall comply with all requirements of CalGreen, as it may
be amended from time to time. In the event CalGreen and the City's Construction and
Demolition Debris diversion requirements differ, Franchisee shall comply with the highest
Construction and Demolition Debris Diversion percentage. Further, City reserves the right
to amend and/or expand its own Construction and Demolition Debris Recycling ordinance
at any time during the Term. Contractor shall provide all services necessary to (a) inform
Customers of, (b) support Customer compliance with, and (c) support City's enforcement
of, the Construction and Demolition Debris Recycling requirements pursuant to CalGreen
and the Code.
B. Construction and Demolition Debris Diversion 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 "F" which is incorporated herein by
reference.
SECTION 16. REPORTING REQUIREMENTS.
A. Monthly Reports. Franchisee shall submit monthly reports to the Public
Works Director identifying, at a minimum, the following information. -
1 .
nformation:
1. The address of each facility serviced and the precise services
provided to each address including, but not limited to, Commercial Franchise Services
broken down by type (i.e., Recyclable Materials, Food Scraps, Green Waste, Wood
Waste, Construction and Demolition Debris, and/or Municipal Solid Waste) presented in
an Excel format acceptable to the City;
2. The frequency of Commercial Franchise 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 29
4. The actual tonnage, by material category, collected per month in
tons;
5. The location of the Landfill and/or Processing Facility to which the
Municipal Solid Waste, Recyclable Materials, Green Waste, Wood Waste and/or Food
Scraps were taken during the previous month and the Diversion rate achieved if the facility
accepts mixed waste materials/Processable Municipal Solid Waste,-
6.
aste;
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/ Wood Waste Diversion Program 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. The "Exhibit E Tracking Document" described in subparts D, E and
F of Exhibit E.
8. Such other tonnage or other information as requested by the Public
Works Director including weight tickets and Diversion records.
B. Form of Report. Monthly reports shall be included in the City provided
electronic template. No other templates or formats will be accepted. Use of any alternate
format or template shall result in the monthly report being considered incomplete and
inaccurate and the Franchisee shall be subject to assessment of liquidated damages
pursuant to Section 24(B) of the Franchise.
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:
Public Works 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
Franchise 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
Non-exclusive Franchise Agreement Page 30
Diversion requirements. Failure to comply with City Recycling and Diversion
requirements shall be a material breach of this Agreement.
SECTION 17. HAULER REPRESENTATIVE
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 Public Works 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 Franchise 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
Franchise 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 Public Works
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 condition and repair, shall not leak
any fluids, and shall be uniformly painted. All Commercial Solid Waste and Divertible
Materials Containers used in the performance of this Agreement shall be kept clean and
in good repair, shall not leak any fluids, 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 Public Works 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
Non-exclusive Franchise Agreement Page 31
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 and Divertible Materials 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 Municipal Solid Waste and
Divertible Materials shall be transported by means of vehicles that are covered in such a
manner as to securely contain all Solid Waste and Divertible Materials and to prevent
such Municipal Solid Waste and Divertible Materials from projecting, blowing, falling or
leaking out of the vehicles. Any Municipal Solid Waste or Divertible Materials 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. All equipment used by Franchisee for Commercial
Franchise 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. All vehicles operated by Franchisee in
the City shall include the best available collision avoidance system 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 Section 18(C)(4).
On or before January 1 of each year, Franchisee shall submit to City a
certification signed under penalty of perjury containing the following:
List of any collection vehicle (including front loader, rear
loader, side loader, and roll off vehicles and all "spares") of
such vehicles that franchisee operate in the City.
ii. Collision Avoidance System installed on each vehicle
including name of system, manufacturer, date installed, name
of Person who installed the system, name of Person(s) who
Non-exclusive Franchise Agreement Page 32
tested the system to ensure proper installation and operation
of system.
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 Public Works Development.
6. Compliance. Should the Public Works 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 Public Works Director.
7. City Standards. Placement of Containers and equipment shall be in
accordance with the standards set by the City.
8. Equipment Standards. All equipment provided by Franchisee shall
be in accordance with standards set by the Public Works Department.
SECTION 19. ABANDONED CONTAINERS
A. If Franchisee abandons any Commercial Solid Waste or Divertible Materials
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 .
ncludes:
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.
tatute;
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 two (2) calendar days after the Public Works 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 Public Works Director of non-compliance.
Non-exclusive Franchise Agreement Page 33
SECTION 20. COMPLIANCE WITH LAW
A. Franchisee shall perform all Commercial Franchise 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. 2020-20 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
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 Municipal 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 Franchise
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 Franchise Services of the Customer's compliance obligations.
C. Submission to City of Informational Materials. Franchisee's informational
materials shall be provided to the Public Works Director upon request if, in City's sole and
absolute discretion, such informational materials are necessary for City to comply with
State reporting requirements.
Non-exclusive Franchise Agreement Page 34
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 Public Works Director determine Franchisee
has defaulted in the performance of any obligation hereunder, the Public Works Director
may provide written notice to Franchisee of such default ("Default Notice"). The Public
Works 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
Public Works Director, a reasonable time for correction shall be thirty (30) calendar days
from the date the Default Notice is issued.
C. Public Works Director Review. Within ten (10) business days of the
Public Works Director's issuance of the Default Notice, at the request of Franchisee, the
Public Works 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 Public Works Director, Franchisee shall have an opportunity to present evidence
explaining or justifying the failures described in the Default Notice. After the meeting, the
Public Works 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 Public Works 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 Public
Works Director issuing his/her determination, Franchisee may appeal the Public Works
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
Non-exclusive Franchise Agreement Page 35
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
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 and Divertible Materials 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
Franchise Services in City, then within ten (10) calendar days of such termination or
expiration Franchisee shall:
1. Remove all of Franchisee's Municipal Solid Waste and Divertible
Materials Containers from all Franchisee's Collection service locations and properly
dispose of all Municipal Solid Waste in such containers and deliver all Divertible Materials
to Processing Facilities for Diversion within the time period specified by the City Council;
and
Non-exclusive Franchise Agreement Page 36
2. Submit to the Public Works Director a list of the names and
addresses of Generators in the City for which Franchisee provided Commercial Franchise
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, AB 341
Generator and AB 1826 Generator on Franchisee's customer list that Franchisee is no
longer authorized to provide Commercial Franchise Services in the City. Such notification
shall be in the form provided by the Public Works 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 Public Works 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:
1. Franchisee shall have no right or authority to engage in Commercial
Franchise 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
Feesand 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, AB
341 Generators and AB 1826 Generators served by Franchisee to arrange for
Commercial Franchise Services with another Franchise Holder or Person 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 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, and AB 1826
indemnifications asset 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.
Non-exclusive Franchise Agreement Page 37
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
nconvenient:
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)
8(B)
11(A)
Deliver Commercial Solid Waste as
designated
Provide requested records
Two hundred fifty
dollars ($250) per
truck delivery
Two hundred fifty
dollars ($250) per
business day until
completed
Provide only those Commercial Two hundred fifty
Franchise Services for which Franchisee dollars ($250)
has applied
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
11(D) Label Containers; paint vehicles and/or Fifty dollars ($50)
Containers corporate color per business day
until corrected
12(A), 12(C), Implement AB 341 Diversion Program One thousand
Exhibit E, Parts A, including Tasks 1-16 in Exhibit E, Part A dollars ($1,000) per
B and C within the timeframe in Franchise occurrence
Section 12C. Comply with the
requirements of Exhibit E, Parts B and C
within ninety (90) days of the events
described in Part B, or within ninety (90)
days of a previously operating AB 341
Program malfunctioning as required by
Part C.
13(A), 13(C), Implement AB 1826 Food Scrap One thousand
Exhibit E, Parts A, Diversion Program including Tasks 1-16 dollars ($1,000)
B and C in Exhibit E, Part A, within the timeframe
in Franchise Section 13C. Comply with
Non-exclusive Franchise Agreement Page 38
the requirements of Exhibit E, Parts B
and C within ninety (90) days of the
events described in Part B or within
ninety (90) days of a previously
operating Food Scrap Diversion Program
malfunctioning as required by Part C.
14(A), 14(C),
Implement AB 1826 Green Waste and
Five hundred dollars
Exhibit E, Parts A,
Wood Waste Diversion Program
($500)
B and C
including Tasks 1-16 in Exhibit E, Part A,
within the timeframe in Franchise
Section 14C. Comply with the
requirements of Exhibit E, Parts B and C
within ninety (90) days of the events
described in Part B or within ninety (90)
days of a previously operating Green
Waste and Wood Waste Diversion
Program malfunctioning as required by
Part C.
15(B)
Implement Construction and Demolition
One thousand
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 Min 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 39
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.
FRANCHIS� 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
means other than a breach of duty on the part of the recipient hereunder, is information
Non-exclusive Franchise Agreement Page 40
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 Franchise 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: Public Works Director
City of Newport Beach
P.O. Box 1768
100 Civic Center Dr.
Newport Beach, CA 92660
To Franchisee: CR&R Incorporated
11292 Western Avenue
Stanton, CA 90680
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
Non-exclusive Franchise Agreement Page 41
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 Franchise Services in the City and that the
issuance of a business license does not grant the Franchisee a right to conduct
Commercial Franchise Services or other business in the City.
Non-exclusive Franchise Agreement Page 42
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 43
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:'q1113100-Z-1:2
I -
CITY OF NEWPORT BEACH,
a California municipal corporation
Date:
By: ,G A,- -� By:
Aaron C. Harp �M 0.0(olu
City Attorney
ATTEST: Q
Date: p' 00• a(
i
�1�Mil
-BrownCity Clerk
&?: '- "'- - Z/� �
Brad Avery
FRANCHISEE: CR&R INCORPORATED,
a Californi cor oration
Date: (n 26
B G�
y�
Clifford Ronnenberg
Chief Executive Officer
Date: 10 /:7_6 /17n
By:
I
Secretary / Division
[END OF SIGNATURES]
Attachments: Exhibit A - Faithful Performance Bond
Exhibit B - Franchise Hauler Acknowledgement
Exhibit C - Franchisee Application Template
President
Exhibit D - Insurance Requirements
Exhibit E - Required Tasks for Implementation of Diversion Programs
Exhibit F - Construction and Demolition Debris Diversion Program
Non-exclusive Franchise Agreement Page 44
EXHIBIT A
CITY OF NEWPORT BEACH
BOND NO. 800016838
FAITHFUL PERFORMANCE BOND
The premium charges on this Bond is $100.00 per annum
WHEREAS, the City of Newport Beach, State of California, has awarded to CR&R
Incorporated, a California corporation, hereinafter designated as the "Principal," a Non-
exclusive Franchise for Commercial Solid Waste and Divertible Materials 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 Atlantic Specialty Insurance Company
, duly authorized to
transact business under the laws of the State of California as Surety (hereinafter
"Surety"), are held and firmly bound unto the City of Newport Beach, in the sum of Seven
Thousand Five Hundred Dollars and 00/100 ($7,500.00) lawful money of the United
States of America, to be paid to the City of Newport Beach, its successors, and assigns;
for which payment well and truly to be made, we bind ourselves, our heirs, executors and
administrators, successors, or assigns, jointly and severally, firmly by these present.
THE CONDITION OF THIS OBLIGATION IS SUCH, that if the Principal, or the
Principal's heirs, executors, administrators, successors, or assigns, fail to abide by, and
well and truly keep and perform any or all the services, covenants, conditions, and
agreements in the Franchise Agreement documents and any alteration thereof made as
therein provided on its part, to be kept and performed at the time and in the manner
therein specified, and in all respects according to its true intent and meaning, or fails to
indemnify, defend, and save harmless the City of Newport Beach, its officers, employees
and agents, as therein stipulated, then, Surety will faithfully perform the same, in an
amount not exceeding the sum specified in this Bond; otherwise this obligation shall
become null and void.
As a part of the obligation secured hereby, and in addition to the face amount
specified in this Performance Bond, there shall be included costs and reasonable
expenses and fees, including reasonable attorney's fees, incurred by City, only in the
event City is required to bring an action in law or equity against Surety to enforce the
obligations of this Bond.
Surety, for value received, stipulates and agrees that no change, extension of time,
alterations or additions to the terms of the Franchise Agreement or to the services to be
performed thereunder shall in any way affect its obligations on this Bond, and it does
Faithful Performance Bond
Page A-1
hereby waive notice of any such change, extension of time, alterations or additions of the
Agreement or to the services or to the specifications.
This Faithful Performance Bond shall be extended and maintained by the Principal
in full force and effect for seven (7) 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 16th day of October , 2020 .
CR&R Incorporated
Name of Contractor (Principal)
Atlantic Specialty Insurance Company
Name of Surety
115 N. EI Molino Avenue
Pasadena, CA 91101
Address of Surety
626-795-9000
Telephone
APPROVED AS TO FORM:
CITY ATTORNEY'S OFFICE
Date-__._. %IM 171000
4tho�r�izedSign=atur itle0040
Aaron C. Harp Woalid
City Attorney
ALTthomVed Agent Signature
Margareta T. Thorsen, 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 oO r-aV4 ss. v
On la 110A0--—�6-' before me, 1�-IVYI i1. �guyevl
Notary Public, personally appeared I h oR'� p� . go)j� A) p��j,2Gr
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.
( �L'
Signature
ACKNOWLEDGMENT
KIM U. NGUYEN
Notary Public - California
i Zft +' Orange County n
Commission # 2256335
My Comm. Expires Sep 26, 2022
(seal)
A notary public or other officer completing this
certificate verifies only the identity of the individual who See attached CA All Purpose
signed the document to which this certificate is Acknowledgement for Surety
attached, and not the truthfulness, accuracy, or validity
of that document.
State of California
County of )SS.
On 20 before me,
Notary Public, personally appeared
proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are
subscribed to the within instrument and acknowledged to me that he/she/they executed the same
in his/her/their authorized capacity(ies), and that by his/her/their signatures(s) on the instrument
the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing
paragraph is true and correct.
WITNESS my hand and official seal.
Signature
(seal)
Faithful Performance Bond Page A-3
CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT CIVIL CODE g 1189
�`�:�.'� _ ���u�. 4'•,::a3'�`�„�`�Y'-"."t'•:'.�{`+�a''.i��t.`�h'`h`'..:u�i".,��si�=?�FEG2;.:Kidz)��iiv+��.5.;�',:�+'wS�:-c.^a:rr.;.cis
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
I 2a
On _ before me, Sonia Vizcarrondo, Notary Public
Date Here Insert Name and Title of the Officer
personally appeared Margareta T. Thorsen
Name(s) of Signer(s)
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 signature(s) on the instrument the person(s), or the entity
upon behalf of which the person(s) acted, executed the instrument.
Place Notary Seal and/or Stamp Above
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
Signature, Notary Public
OP -1 r®NAL
Completing this information can deter alteration of the document or
fraudulent reattachment of this form to an unintended document.
Description of Attacher! Document
Title or Type of Document:
Document Date:
Signer(s) Other Than Named Above:
Capacity(fes) Claimed by Signer(s)
Signer's Name:
El Corporate Officer — Title(s):
❑ Partner — a Limited ❑ General
❑ Individual ❑ Attorney in Fact
❑ Trustee ❑ Guardian of Conservator
❑ Other:
Signer is Representing:
Oc 2017 National Notary Association
Number of Pages:
Signer's Name:
❑ Corporate Officer — Title(s):
❑ Partner — ❑ Limited ❑ General
❑ Individual ❑ Attorney in Fact
❑ Trustee ❑ Guardian of Conservator
❑ Other:
Signer is Representing:
'
My
SONIA VIZCARRONDO ■
Notary Public - California
Los Angeles County n
Commission,-; 2256337
Comm. Expires Sep 24, 2022
Place Notary Seal and/or Stamp Above
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
Signature, Notary Public
OP -1 r®NAL
Completing this information can deter alteration of the document or
fraudulent reattachment of this form to an unintended document.
Description of Attacher! Document
Title or Type of Document:
Document Date:
Signer(s) Other Than Named Above:
Capacity(fes) Claimed by Signer(s)
Signer's Name:
El Corporate Officer — Title(s):
❑ Partner — a Limited ❑ General
❑ Individual ❑ Attorney in Fact
❑ Trustee ❑ Guardian of Conservator
❑ Other:
Signer is Representing:
Oc 2017 National Notary Association
Number of Pages:
Signer's Name:
❑ Corporate Officer — Title(s):
❑ Partner — ❑ Limited ❑ General
❑ Individual ❑ Attorney in Fact
❑ Trustee ❑ Guardian of Conservator
❑ Other:
Signer is Representing:
V-10
OneBeacon
I N S U R A N C E GROUP
Power ' Attorney
KNOW ALL MEN BY THESE PRESENTS, that ATLANTIC SPECIALTY INSURANCE COMPANY, a New York corporation with its principal office in Plymouth,
Minnesota, does hereby constitute and appoint: Margareta T. Thorsen, each individually if there be more than one named, its true and lawful Attorney -in -Fact, to make,
execute, seal and deliver, for and on its behalf as surety, any and all bonds, recognizances, contracts of indemnity, and all other writings obligatory in the nature thereof; provided
that no bond or undertaking executed under this authority shall exceed in amount the sum of: sixty million dollars ($60,000,000) and the execution of such bonds,
recognizances, contracts of indemnity, and all other writings obligatory in the nature thereof in pursuance of these presents, shall be as binding upon said Company as if they had
been fully signed by an authorized officer of the Company and sealed with the Company seal. This Power of Attorney is made and executed by authority of the following
resolutions adopted by the Board of Directors of ATLANTIC SPECIALTY INSURANCE COMPANY on the twenty-fifth day of September, 2012:
Resolved: That the President, any Senior Vice President or Vice -President (each an "Authorized Officer") may execute for and in behalf of the Company any and
all bonds, recognizances, contracts of indemnity, and all other writings obligatory in the nature thereof, and affix the seal of the Company thereto; and that the
Authorized Officer may appoint and authorize an Attorney -in -Fact to execute on behalf of the Company any and all such instruments and to affix the Company
seal thereto; and that the Authorized Officer may at any time remove any such Attorney -in -Fact and revoke all power and authority given to any such Attomey-in-
Fact.
Resolved: That the Attorney -in -Fact may be given full power and authority to execute for and in the name and on behalf of the Company any and all bonds,
recognizances, contracts of indemnity, and all other writings obligatory in the nature thereof, and any such instrument executed by any such Attorney -in -Fact shall
be as binding upon the Company as if signed and sealed by an Authorized Officer and, further, the Attorney -in -Fact is hereby authorized to verify any affidavit
required to be attached to bonds, recognizances, contracts of indemnity, and all other writings obligatory in the nature thereof.
This power of attomey is signed and sealed by facsimile under the authority of the following Resolution adopted by the Board of Directors of ATLANTIC SPECIALTY
INSURANCE COMPANY on the twenty-fifth day of September, 2012:
Resolved: That the signature of an Authorized Officer, the signature of the Secretary or the Assistant Secretary, and the Company seal may be affixed by
facsimile to any power of attomey or to any certificate relating thereto appointing an Attomey-in-Fact for purposes only of executing and sealing any bond,
undertaking, recognizance or other written obligation in the nature thereof, and any such signature and seal where so used, being hereby adopted by the Company
as the original signature of such officer and the original seal of the Company, to be valid and binding upon the Company with the same force and effect as though
manually affixed.
IN WITNESS WHEREOF, ATLANTIC SPECIALTY INSURANCE COMPANY has caused these presents to be signed by an Authorized Officer and the seal of the Company
to be affixed this twenty-ninth day of April, 2019.
On this twenty-ninth day of April, 2019, before me personally came Paul J. Brehm, Senior Vice President of ATLANTIC SPECIALTY INSURANCE COMPANY, to me
personally known to be the individual and officer described in and who executed the preceding instrument, and he acknowledged the execution of the same, and being by me
duly swom, that he is the said officer of the Company aforesaid, and that the seal affixed to the preceding instrument is the seal of said Company and that the said seal and the
signature as such officer was duly affixed and subscribed to the said instrument by the authority and at the direction of the Company.
MANDALY ANN LAMERE
' NOTARY PUBLIC • MINNESOTA
My Commission Expires
January 31, 2023
Notary Public
I, the undersigned, Secretary of ATLANTIC SPECIALTY INSURANCE COMPANY, a New York Corporation, do hereby certify that the foregoing power of attomey is in full
force and has not been revoked, and the resolutions set forth above are now in force.
Signed and sealed. Dated -1 6th day of October 2020
�¢G GppPaRgTf,�y�:;
SEAL rn t /
1986 o
This Power of Attorney expires=L2A. �Fw yoW b,
January 31, 2023
^' "' Christopher V. Jerry, Secretary
yw, cpRP�RATF- ?�'_
€� SEAL
sY 1986 'o
By
STATE OF MINNESOTA '-Zbj41, voP+ ..t
HENNEPIN COUNTY orb k }�,v'
Paul J. Brehm, Senior Vice President
On this twenty-ninth day of April, 2019, before me personally came Paul J. Brehm, Senior Vice President of ATLANTIC SPECIALTY INSURANCE COMPANY, to me
personally known to be the individual and officer described in and who executed the preceding instrument, and he acknowledged the execution of the same, and being by me
duly swom, that he is the said officer of the Company aforesaid, and that the seal affixed to the preceding instrument is the seal of said Company and that the said seal and the
signature as such officer was duly affixed and subscribed to the said instrument by the authority and at the direction of the Company.
MANDALY ANN LAMERE
' NOTARY PUBLIC • MINNESOTA
My Commission Expires
January 31, 2023
Notary Public
I, the undersigned, Secretary of ATLANTIC SPECIALTY INSURANCE COMPANY, a New York Corporation, do hereby certify that the foregoing power of attomey is in full
force and has not been revoked, and the resolutions set forth above are now in force.
Signed and sealed. Dated -1 6th day of October 2020
�¢G GppPaRgTf,�y�:;
SEAL rn t /
1986 o
This Power of Attorney expires=L2A. �Fw yoW b,
January 31, 2023
^' "' Christopher V. Jerry, Secretary
EXHIBIT B
FRANCHISE HAULER ACKNOWLEDGEMENT
THIS FRANCHISE HAULER ACKNOWLEDGMENT is entered into as of this 8th
day of October, 2020 (the "Acknowledgment"), by and between the City of Newport
Beach, a charter city and municipal corporation (the "City"), and CR&R Incorporated, 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 CR&R INCORPORATED FOR COMMERCIAL SOLID
WASTE AND DIVERTIBLE MATERIALS HANDLING 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, the County of Orange (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; and
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 date 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. Franchise Hauler agrees to assist the County in verifying tonnage collected by the
Franchise Hauler and providing information required by the County. Franchise
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). Franchise Hauler
will provide customer service levels and route lists. Franchise 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
O`` agW �Rr
e
u
C,C/FC0)fL
CITY OF NEWPORT BEACH
SOLID WASTE AND DIVERTIBLE MATERIALS FRANCHISE INFORMATION AND
APPLICATION
2020 UPDATE
Requirements for Solid Waste and Divertible Materials Franchise
Section 12.63.030 of the Newport Beach Municipal Code states:
No person shall provide commercial solid waste handling services or conduct a solid waste
enterprise in the City without having first been awarded a franchise and entered into a
franchise agreement with the City. The franchise agreement shall include terms and
conditions for the commercial solid waste handling services in the City. The franchise shall
be in addition to any business license or permit otherwise required by the City. All the
franchisees shall comply with all of the requirements of the City Charter, the ordinance
granting the franchise, the franchise agreement and this chapter.
Procedure for Obtaining a Solid Waste and Divertible Materials Franchise
Application. Solid Waste Franchise applicants are required to:
• Submit the written application in a complete form, including all attachments;
• Pay a non-refundable application fee of $884.00;
• Provide an insurance certificate(s) evidencing coverage that meets requirements listed in
the franchise agreement and insert the certificates as Attachment 5 to the application.
• Carefully review the 2020 Non -Exclusive Franchise Agreement.
City Approval Process. Municipal Operations Division staff will review the application for
completeness and evaluate the submitted collection and diversion plans. Following this analysis,
staff will notify the applicant of any deficiencies in the application. If there are no deficiencies, the
City will include your firm in a resolution of intent presented to the City Council at the March 10,
2020 meeting. Upon approval of the resolution by the City Council, the City will prepare the
franchise agreement for signature by your company and email a copy of the franchise to your
company. Prior to the City sending the final version of the franchise to your company for signature,
the City will 1) fill in your company's corporate name and address as shown in Section 1 of this
application and 2) incorporate this completed application as Exhibit C to the franchise agreement.
Your company will be required to download, print, and execute two (2) original, paper -versions
of the signed franchise agreement and submit them to the City by March 27, 2020 (hand delivery
or priority/overnight delivery is recommended). The City must have the signed franchise
agreement from your company in hand prior to City Council consideration of your franchise. After
the resolution of intent is approved by the City Council, a separate Ordinance granting the new
2020 franchises will be considered by the City Council on April 28, 2020. A second reading of the
Ordinance will be scheduled for the May 12, 2020 City Council meeting. If approved, the new
�dEW�Rr
G s
City of Newport Beach
<oaSolid Waste Franchise Application
franchise will become effective 30 days after the second reading of the Ordinance. Please note
that by the terms of the new 2020 franchise and the Ordinance, once the agreement is signed
by your company, approved and signed by the City, and the Ordinance becomes effective
(which will be 30 days after the second reading of the Ordinance), any existing or prior
franchise agreement between your company and the City will be automatically terminated
simultaneously with the new 2020 franchise becoming effective.
Where to Find More Information
Applicants should review Chapter 12.63 of the Newport Beach Municipal Code (see link below)
and the complete information included in the application packet. Applicants should also review
Sections 6.04 and 6.06 of the Newport Beach Municipal Code which contain additional solid waste
and divertible materials collection and handling requirements. For more information, the applicant
may contact the Municipal Operations Division at (949) 644-3055.
https•//www codepublishingcom/CA/NewportBeach/#!/NewportBeachl2/NewportBeachl263 ht
ml# 12.63
Where to Send a Completed Application
Please do not bind or place the application in a protective covering. Applicants should retain a
copy of completed materials for their records. Please submit the completed application, including
application fee payment, to:
City of Newport Beach
Municipal Operations Division
100 Civic Center Drive
Newport Beach, CA 92660
Alternatively, the application may be hand delivered to the Municipal Operations Department
administrative office:
City of Newport Beach
Corporation Yard
592 Superior Avenue, Building A
Newport Beach, CA 92663
To expedite the City's processing of your company's franchise application, you may submit an
electronic version of your application to the following email address provided a paper copy, with
the application fee, is concurrently mailed or delivered to one of the two addresses noted above:
khinckleynnewportbeachca. gov
Authorized Signatories
O� aEW POa e
3 City of Newport Beach
<roaSolid Waste Franchise Application
Items below only apply if entering into this Agreement as a Corporation, LLC or with a
Fictitious Business Name ("DBA'):
1. Corporations. If the Contractor is a corporation (including any non-profit corporation), two
(2) officers of the corporation (on the Board of Directors) must sign the contract (Corp.
Code § 313). One officer from column A and one officer from column B must sign. It is
permissible for one signatory to hold two officer titles. In this instance, one signature is
sufficient if both titles are listed.
A.
President
Any Vice President
Chairman of the Board
B.
Secretary
Chief Financial Officer
Any Assistant Secretary
Any Assistant Treasurer
If the corporation cannot provide the above signatures, it may have one officer sign only if
an authorizing resolution from the Board of Directors is also provided (Corp Code § 314).
Limited Liability Company. If the limited liability company has officers, see the
requirements applicable to corporations above. If the limited liability company has
members and managers, as opposed to officers, two (2) managers/members must sign or
one managing member may sign if the articles of organization provide that such member
has authority to execute documents on behalf of the limited liability company (Corp Code
§ 17703.01(b)(2) and (d)).
Fictitious Business Name. If doing business under a Fictitious Business Name (i.e., FBN
or DBA), please provide a copy of the fictitious business name statement filed with the
County.
These documents must be included in the application, as they will be required for developing the
franchise agreement.
Business Tax Certificate (aka Business License)
All persons operating a solid waste enterprise in Newport Beach must apply to the City's Revenue
Division and receive a City Business Tax Certificate to begin and/or continue operations. A valid
Business License issued by the City of Newport Beach must be submitted with the application as
Attachment 1.
For more information, please see www.newportbeachca.gov/business
Public Information
Information provided by the applicant(s) for a Solid Waste and Divertible Materials Franchise will
be made available for public review unless otherwise exempted by law.
i City of Newport Beach
Solid Waste Franchise Application
Section 1: Company Information
Legal Name and
DBA*:
Individual
Business Address*:
❑
Business
Phone:
Business
Email
❑
Contact name:
Phone
1 Limited partnership
Email:
Newport Beach Business License # (include copy of current license as
Attachment 1):
Tier 2 (Construction and Demolition)
Website:
*These will be used to prepare the 2020 non-exclusive franchise agreement for signature by your
company. Please provide the exact corporate or legal name under which your company will sign
the actual franchise agreement.
Section 2: Type of Organization
Section 3: Desired Franchise
Tier 1 (MSW and Divertible
Materials
Individual
MSW
❑
Dirty MRF Processing
❑
❑
(owner/operator)
❑
1 Limited partnership
❑
Joint venture
Tier 2 (Construction and Demolition)
❑
Limited liability
Unincorporated
El
Husband and wife
❑
❑
association other than a
company
partnership
❑
Corporation
❑
Business trust
❑
Public agency
❑
General partnership
-1
Co-partners
Section 3: Desired Franchise
Tier 1 (MSW and Divertible
Materials
❑
MSW
❑
Dirty MRF Processing
❑
Source -separated Dry
Rec clables
❑
Food Scraps
❑
Green / Wood Waste
❑
Tier 2 (Construction and Demolition)
❑
Section 4: Name of Signatories
Corporate Resolution
Corporate Resolution
Needed
Needed
N/A
Yes No N/A
Name
Title ❑ ❑
❑
Corporate Resolution
Needed
Yes No
N/A
Name
Title
0 ❑
❑
aEwPORr
z City of Newport Beach
Solid Waste Franchise Application
section _n: Jona waste uollection and Kecvchng Flans
Applicants must complete a listing of solid waste collection and diversion plans (Attachment 2) The form must include,
at a minimum, each waste stream; the type/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 portions of the
waste stream.
I ❑ I have completed Attachment 2 and included it in this application packet.
Section 6: List of Vehicles to Be Utilized Under the Franchise and Certification of Installed
t-oiusion Avoiaance �!istems for hacn venicle
Applicants must list all vehicles to be used in performing services in the City in Attachment 3. Further, Applicants
must certify that they have installed the collision avoidance system(s) on all vehicles in service within the City as
required by Section 18.0 4. Note: All vehicles must meet the equipment standards listed in the 2020 franchise
agreement, including, but not limited to, those listed in Section 18 of the agreement.
❑ I have completed Attachment 3 and included it in this application packet.
Section 7: Vehicle and Container Color Scheme
The franchise agreement re uires all vehicles and containers to be painted uniform colors.
Color of vehicles:
Color of containers:
Section 8: Designation of Hauler Representative
The franchise agreement requires that waste haulers designate a Hauler Representative to assist in managing your
recycling and diversion programs and mange 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:
Email address:
Section 9: Additional information Required with Submission of Franchise Application
1. The applicant must complete Form 200/200D/200P as appropriate, describing officers, partners, etc., having legal
responsibility for the franchise agreement.
111 have completed the Form 200/200D/200P and included it as Attachment 4 to this application packet.
2. A current insurance certificate conforming to the requirements listed in the franchise agreement, including the
applicable endorsements.
❑ I have included the applicable insurance certificates as Attachment 5 to this application packet.
3. The applicant hereby represents that he/she read the 2020 non-exclusive franchise agreement and the company has
the experience, capability, and all required vehicles, personnel, and equipment to provide the services indicated in
Section 3 of this application.
4. If your company has not conducted solid waste handling 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 types recycled, and the tonnage disposed by facility utilized; and a
listing of all California jurisdictions where your firm was authorized to provide, and did provide, collection services.
❑ Our firm has not provided solid waste services to Newport beach in the past three years. I have included the
requested documentation as Attachment 6.
0 Our firm has conducted solid waste handling services in the City of Newport Beach within the past three 3 ears.
aEv/aoRr
City of Newport Beach
u s
Cq4p0.t Solid Waste Franchise Application
Section 10: Accounting Practices Disclosures
In the past year, have you or your firm:
1. Maintained all books of account pursuant to generally accepted accounting principles
(GAAP)?
❑ Yes I ❑ No ❑ N/A
2. Generated all income statements using either a cash or accrual accounting method?
❑ Yes 1 ❑ No 1 ❑ N/A
3. Truthfully and accurately reported all tonnage and/or the disposition of all materials collected
in an jurisdiction where you are authorized to perform solid waste services?
❑ Yes
1 ❑ No I ❑ N/A
Section 11: Authorized Signature(s) of Applicant
THE UNDERSIGNED HEREBY DECLARES THAT THE INFORMATION INCLUDED
ON THIS APPLICATION IS TRUE AND CORRECT AND THAT THE APPLICANT
HAS READ AND UNDERSTOOD HIS OR HER OBLIGATIONS UNDER ANY
FRANCHISE OBTAINED BASED ON THIS APPLICATION.
A. If the applicant is a sole proprietor, the application shall be signed by the proprietor.
B. If the application is a partnership, the application shall be signed by each partner.
C. If the application is a firm, association, corporation, county, city, public agency, or other
governmental entity, the application shall be signed by the chief executive officer or the
individual legally responsible for representing the agency.
D. The applicant(s) affirms that all facts and representations contained in this application
and supporting documents are true and correct.
(Signature )
(Title)
(Date)
(Signature)
(Title)
(Date)
(Signature )
(Title)
(Date)
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$ City of Newport Beach
Solid Waste Franchise Application
Attachment 1: Copy of Valid City of Newport Beach Business License
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Attachment 4: Form 200 and Form 200P
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5 City of Newport Beach
Solid Waste Franchise Application
City of Newport Beach
Solid Waste Franchise Application — Information
Attachment 5: Insurance Certificates
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 City Council, boards and
commissions, officers, agents, volunteers, employees, and any person or entity
owning or otherwise in legal control of the property upon which Contractor performs
the Project and/or Services contemplated by this Agreement.
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 Two Million Dollars ($2,000,000) per occurrence, Four Million Dollars
($4,000,000) general aggregate and Four Million Dollars ($4,000,000) 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 Ten
Million Dollars ($10,000,000) combined single limit for each accident.
Insurance Requirements Page D-1
D. Pollution Liability Insurance. Franchisee shall maintain pollution
liability insurance covering all of the Franchisee's operations to include onsite and offsite
coverage for bodily injury (including death and mental anguish), property damage, non -
owned disposal site liability, defense costs, cleanup costs, and pollution conditions that
arise from or in connection with the transportation (including loading and unloading) by or
on behalf of the Franchisee, of any waste or waste materials. Coverage shall be provided
for both sudden and accidental and gradual and continuous pollution events with limits
no less than $5,000,000 each loss and $10,000,000 in the aggregate. The policy shall
not exclude any hazardous materials for which there is an exposure. If all or any portion
of the pollution liability coverage is available only on a claims -made basis, then a 10 -year
extended reporting period shall also be purchased. The policy shall not contain any
provision or exclusion (including any so-called "insured versus insured" exclusion or
"cross -liability" exclusion) the effect of which would be to prevent, bar, or otherwise
preclude any insured or additional insured under the policy from making a claim which
would otherwise be covered by such policy on the grounds that the claim is brought by
an insured or additional insured against an insured or additional insured under the policy.
4. Other Insurance Requirements. The policies are to contain, or be endorsed
to contain, the following provisions:
A. Waiver of Subrogation. All insurance coverage maintained or
procured pursuant to this Agreement shall be endorsed to waive subrogation against City,
its City Council, boards and commissions, officers, agents, volunteers, employees, and
any person or entity owning or otherwise in legal control of the property upon which
Franchisee performs the Services contemplated by this Agreement 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 a its
City Council, boards and commissions, officers, agents, volunteers, employees, and any
person or entity owning or otherwise in legal control of the property upon which
Franchisee performs the Services contemplated by this Agreement shall be included as
additional 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
Insurance Requirements Page D-2
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
Agreement. The certificates and endorsements for each insurance policy shall be signed
by a person authorized by that insurer to bind coverage on its behalf. At least fifteen (15)
days prior to the expiration of any such policy, evidence of insurance showing that such
insurance coverage has been renewed or extended shall be filed with the City. If such
coverage is cancelled or reduced, Franchisee shall, within ten (10) days after receipt of
written notice of such cancellation or reduction of coverage, file with the City evidence of
insurance showing that the required insurance has been reinstated or has been provided
through another insurance company or companies. 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 sixty (60) 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. Franchisee shall
require and verify that all subcontractors maintain insurance meeting all the requirements
stated herein, and Franchisee shall ensure that City is an additional insured on insurance
required from subcontractors. For CGL coverage, subcontractors shall provide coverage
with a format at least as broad as CG 20 38 04 13.
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
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.
Insurance Requirements Page D-3
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-4
Reyes, Raymund
From:
Customer Service <customerservice@ebix.com>
Sent:
Tuesday, August 10, 2021 5:48 PM
To:
Reyes, Raymund; Morgan, Shelby
Cc:
sagar@ebix.com
Subject:
Compliance Alert -Vendor Number FV00000265
[EXTERNAL EMAIL] DO NOT CLICK links or attachments unless you recognize the sender and know the content is safe.
This Account has moved from non-compliant to COMPLIANT status and is currently in compliance for certificate of
insurance requirements. FV00000265 CR & R, Inc.
Sent by Ebix, designated insurance certificate reviewer for the City of Newport Beach.
*N:111:11111111:11
REQUIRED TASKS FOR IMPLEMENTATION OF DIVERSION PROGRAMS
A. For purposes of complying with Sections 12 through 14 of this Agreement
Franchisee shall complete all of the following to the satisfaction of the City:
1. Franchisee has contacted the Authorized Customer Representative.
For purposes of this section, the "Authorized Customer Representative" is the
Person who subscribes to and pays for any service provided by the Franchisee
and/or for any Municipal Solid Waste Collection or Diversion Services provided by
any other entity. The Authorized Customer Representative may be the owner or
on-site manager; or if Customer is a corporation with multiple locations and
centralized decision-making, the manager with decision-making authority; or in the
case of a broker or waste arranger, the Authorized Customer Representative is the
Person who has the decision-making authority to subscribe to and pay for
Municipal Solid Waste Collection and Diversion Services. Franchisee shall provide
written notice of the requirements of the Act and the City Code for the Customer
to have in place specified Diversion Program(s) as of the date(s) applicable to that
Customer. If applicable, Franchisee shall also provide written notice of the
requirements of CalGreen.
2. Franchisee shall estimate the quantities of Municipal Solid Waste,
Recyclable Materials, Food Scraps (for businesses), Green Waste/Wood and any
other Divertible Materials generated by the Customer, calculate the appropriate
number and size of Containers required for storage, calculate the recommended
frequency of service to optimize cost for the Customer, prepare a written Diversion
Plan containing estimated costs and recommended levels of service, and submit
the Plan to the Authorized Customer Representative. Franchisee shall discuss the
Plan with the Authorized Customer Representative and obtain the Authorized
Customer Representative's approval to implement the finalized Diversion Plan.
3. If the Customer is generating Food Scraps, Franchisee shall provide
the Authorized Customer Representative with information on the available edible
food donation programs in City including coordinators, vendors and non-profit
agencies, as directed by City, and shall factor any applicable edible food donation
opportunities into the calculations for sizing of Food Scrap Containers and
frequency of Food Scrap Collection service. Franchisee shall cooperate fully and
in good faith with all edible food donation efforts of City, all third parties and
Customer.
4. If the Customer is already Diverting Recyclable Materials and/or
Food Scraps using an in-house program, backhauling, on site processing, self -
hauling, or donating or selling materials to a third party, Franchisee shall notify City
so City can obtain a completed and signed "Self -Certification Form" for that
program. Franchisee shall record the notification to City on the "Exhibit E Tracking
Document" described in subpart D herein. City will obtain a completed Self -
Required Tasks For Implementation Of Diversion Programs Page E-1
Certification Form, evaluate the information provided and take steps to verify the
in-house program(s). City will inform the Franchisee of City's decision regarding
the adequacy of the in-house program(s).
(i) In the event City notifies the Franchisee that the in-house program(s)
are inadequate, Franchisee shall comply with all the requirements
contained in Sections 12, 13, 14 and in this Exhibit E to fully
implement all Diversion Programs required by this Franchise.
(ii) In the event City notifies the Franchisee that some, but not all, of the
in-house program(s) are adequate, (a) Franchisee shall be relieved
from its responsibility to implement the Diversion Programs targeting
materials that are being Diverted by the City -verified in-house
program(s) for a period of 12 months; and (b) Franchisee shall
comply with all the requirements contained in this Exhibit E to fully
implement all Diversion Programs for Recyclable Materials, Food
Scraps, Green Waste and Wood Waste not adequately Diverted
through the City -verified in-house program(s). At the end of twelve
(12) months, Franchisee shall submit a written request to City to
determine whether the Customer filed a new Self -Certification Form
and whether the City has determined that any of the Customer's in-
house program(s) are adequate. If so, Franchisee shall record this
in the Exhibit E Tracking Document and shall be relieved from its
responsibility to implement the Diversion Programs targeting
materials that are being Diverted by the City -verified in-house
program(s) for an additional period of 12 months. Franchisee shall
continue to provide and maintain all Diversion Programs required by
this Franchise for which there is no City -verified in-house program(s).
This process shall be repeated by Franchisee annually as long as
the Customer is served by the Franchisee at the same premises. In
the event a Customer ceases operation of any or all of its in-house
program(s) and/or the City makes a determination that any or all of
the previously City -verified in-house program(s) are no longer
operating or are no longer adequate, then Franchisee shall comply
with all the requirements contained in Sections 12, 13, 14 and in this
Exhibit E to fully implement all Diversion Programs required by this
Franchise.
(iii) In the event City notifies the Franchisee that the in-house program(s)
are adequate, Franchisee shall be relieved from its responsibility to
implement the Diversion Programs targeting materials that are being
Diverted by the City -verified in-house program(s) for a period of 12
months. At the end of twelve (12) months, Franchisee shall submit a
written request to City to determine whether the Customer filed a new
Self -Certification Form and whether the City has determined that the
in-house program(s) are adequate. If the City determines any or all
of the in-house programs are adequate, Franchisee shall record this
in the Exhibit E Tracking Document and shall be relieved from its
Required Tasks For Implementation Of Diversion Programs Page E-2
responsibility to implement the Diversion Programs targeting
materials that are being Diverted by the City -verified in-house
program(s) for an additional period of 12 months. Franchisee shall
continue to provide and maintain all Diversion Programs required by
this Franchise for which there is no City -verified in-house program(s).
This process shall be repeated by Franchisee annually as long as
the Customer is served by the Franchisee at the same premises. In
the event a Customer ceases operation of any or all of its in-house
program(s) and/or the City makes a determination that any or all of
the in-house program(s) are no longer adequate, then Franchisee
shall comply with all the requirements contained in Sections 12, 13,
14 and in this Exhibit E to fully implement all Diversion Programs
required by this Franchise.
5. If the Customer is using a landscaping company to haul away Green
Waste/Wood, Franchisee shall notify City so City can obtain a completed and
signed "Landscaper Self -Certification Diversion Form" for Green Waste/Wood at
that Premises. Franchisee shall record the notification to City on the Exhibit E
Tracking Document. City will obtain a completed Self -Certification Form, and take'
steps to verify the landscaper program(s). City will inform the Franchisee of City's
decision regarding the adequacy of the landscaper program(s).
(i) In the event City notifies the Franchisee that the landscaper
program(s) are inadequate, Franchisee shall comply with all the
requirements contained in Section 14 and in this Exhibit E to fully
implement all Diversion Programs for Green Waste/Wood required
by this Franchise.
(ii) In the event City notifies the Franchisee that some, but not all, of the
landscaper program(s) are adequate, (a) Franchisee shall be
relieved from its responsibility to implement the Diversion Programs
targeting Green Waste and/or Wood Waste that is being Diverted by
the City -verified landscaper program(s) for a period of 12 months;
and (b) Franchisee shall comply with all the requirements contained
In Section 14 and in this Exhibit E to fully implement all Diversion
Programs for Green Waste and/or Wood Waste not adequately
Diverted through the City -verified landscaper program(s). At the end
of twelve (12) months, Franchisee shall submit a written request to
City to determine whether the Customer filed a new "Landscaper
Self -Certification Form" and whether the City has determined that
any or all of the Customer's landscaper program(s) are adequate. If
the City has determined that any or all of the in-house program(s)
are adequate, Franchisee shall record this in the Exhibit E Tracking
Document and shall be relieved from its responsibility to implement
the Diversion Programs targeting Green Waste and/or Wood Waste
that are being Diverted by the City -verified landscaper program(s) for
an additional period of twelve (12) months. Franchisee shall continue
to provide and maintain all Diversion Programs required by this
Required Tasks For Implementation Of Diversion Programs Page E-3
Franchise for which there is no City -verified in-house program(s).
This process shall be repeated by Franchisee annually as long as
the Customer is served by the Franchisee at the same premises. In
the event a Customer ceases operation of any or all of its landscaper
program(s) and/or the City makes a determination that any or all of
the previously City -verified landscaper program(s) are no longer
operating or are no longer adequate, then Franchisee shall comply
with all the requirements contained in Section 14 and in this Exhibit
E to fully implement all Diversion Programs for Green Waste and
Wood Waste required by this Franchise.
(iii) In the event City notifies the Franchisee that the landscaper
program(s) are adequate, Franchisee shall be relieved from its
responsibility to implement the Diversion Programs targeting Green
Waste and Wood Waste that are being Diverted by the City -verified
landscaper program(s) for a period of twelve (12) months. At the end
of twelve (12) months, Franchisee shall submit a written request to
City to determine whether the Customer filed a new "Landscaper
Self -Certification Form" and whether the City has determined that the
landscaper program(s) are adequate. If so, Franchisee shall record
this in the Exhibit E Tracking Document and shall be relieved from
its responsibility to implement the Diversion Programs targeting
Green Waste and Wood Waste that are being Diverted by the City -
verified landscaper program(s) for an additional period of twelve (12)
months. This process shall be repeated by Franchisee annually as
long as the Customer is served by the Franchisee at the same
premises. In the event a Customer ceases operation of its
landscaper program(s) and/or the City makes a determination that
the landscaper program(s) are no longer adequate, then Franchisee
shall comply with all the requirements contained in Section 14 and in
this Exhibit E to fully implement all Diversion Programs for Green
Waste and Wood Waste required by this Franchise.
6. In the event Franchisee has taken all required actions and completed
all required tasks in Steps 1 through 5 herein, and the Authorized Customer
Representative has refused the service or has refused to implement all of the
recommended programs in the Diversion Plan(s) prepared by the Franchisee, the
Franchisee shall notify the City of the Customer's refusal. The Franchisee shall
request that the City or its agent accompany the Franchisee on a site visit to the
Customer's premises to meet with the Authorized Customer Representative to
explain the requirements of the Act and the City Code that require implementation
of the Diversion Program(s) described in the Plan prepared by the Franchisee and
submitted to the Authorized Customer Representative in Step 2. If, after a site visit
with the City and the Franchisee, the Authorized Customer Representative
continues to refuse to implement the recommended Diversion Program(s)
contained in the Plan submitted to the Authorized Customer Representative in
Step 2, the Franchisee shall include details about the meeting date, attendees,
and the Customer's decision in Franchisee's next monthly Exhibit E Tracking
Required Tasks For Implementation Of Diversion Programs Page E-4
Document submittal. Franchisee shall fully and completely cooperate with, and
reinforce, City's efforts to enforce the City Code and to obtain the Authorized
Customer Representative's approval to implement the required Diversion
Program(s).
7. In the event City is successful in obtaining the recalcitrant Authorized
Customer Representative's approval to implement the required Diversion
Program(s), City will notify the Franchisee and the Franchisee shall proceed to
implement the Diversion Program(s) as described in the Diversion Plan prepared
in Step 2 hereof, by completing implementation Steps 1 through 16 of this Exhibit
E.
8. In the event the Customer initially approved the Diversion Program
plan prepared by the Franchisee in Step 2, and Franchisee has completed Steps
3, 4 and 5, Franchisee shall proceed to implement Steps 9 through 16.
9. Franchisee shall deliver the appropriate type(s) and size(s) of
Containers to the Customer's premises for storage of Single Material Recyclables
and Single Stream Recyclable Materials. In the case of a Food Scrap Generator,
Franchisee shall also provide the appropriate type(s) and size(s) of Containers for
storage and collection of Food Scraps. If the Customer is generating Green
Waste/Wood the Franchisee shall provide the appropriate type(s) and size(s) of
Containers for storage and collection of Green Waste/Wood.
10. Franchisee shall Collect the Recyclable Materials, Food Scraps, and
Green Waste/Wood (as applicable) from the Customer's Containers at the
frequency of Collection required to prevent litter, vectors, odors and Contamination
of Divertible Materials in Containers and is, at a minimum, performing Collection
of Recyclable Materials and Green Waste/Wood at least once each week. In the
case of a Food Scrap Generator, Franchisee is Collecting the Food Scraps one (1)
to six (6) times each week as needed to prevent litter, vectors, odors and
Contamination of Divertible Materials in Containers.
11. Franchisee shall evaluate and reduce the level of the Customer's
Municipal Solid Waste Collection service to complement the separate Collection
of Recyclable Materials, Green Waste/Wood and Food Scraps. Franchisee shall
check back with the Authorized Customer Representative and make at least two
(2) additional on-site visits to determine if the initial sizing of the Containers and
frequency of service is optimal for the Customer. Franchisee shall recommend
appropriate adjustments as needed to the Authorized Customer Representative
and implement all adjustments agreed to by the Authorized Customer
Representative.
12. Franchisee has provided employee education and training materials
to the Customer (or in the case of Multifamily Dwellings, Gated Communities,
HOA's and mobile home parks, to all management) explaining (a) the requirements
of the Act and of the City Code, (b) the operation of each Diversion Program and
(c) specifically what Divertible Materials may be placed in the Recycling
Required Tasks For Implementation Of Diversion Programs Page E-5
Container(s) and the Green Waste/Wood Containers and what materials are to be
placed in the Municipal Solid Waste Container(s). In the case of a Food Scrap
generator, Franchisee shall explain what Food Scrap materials are to be placed in
the Food Scrap Container. Employee/management training shall include at least
one on-site training conducted by the Franchisee for all management and all
employees of Customer. If there are multiple shifts, or if management and/or
employees work on different days, Franchisee shall conduct multiple trainings until
all management and employees have been trained. Internal containers for the
Divertible Materials are to be provided by the Customer, pursuant to the City Code.
If directed by the City, Franchisee shall provide City -approved training posters,
signage, and stickers/labels for the internal Containers showing what materials are
allowed in each. Franchisee shall provide training and training materials in English
and in any other language requested by the Authorized Customer Representative.
13. Franchisee shall make at least two (2) follow-up site visits to confirm
the Diversion Program(s) is/are operating optimally within the first two weeks after
program initiation. (These site visits are in addition to the site checks to confirm
Municipal Solid Waste quantities and optimization of Municipal Solid Waste service
described in Step 11 above.) Franchisee shall respond to the Customer's
questions and to any complaints and shall promptly and successfully resolve all
questions and complaints.
14. Within ninety (90) days after implementation of each Diversion
Program at the premises of the Customer, Franchisee shall ensure that the
programs are operating effectively such that the Municipal Solid Waste
Container(s) at the premises contain no more than twenty percent (20%)
Recyclable Materials and Food Scraps (combined), and the Recyclable Materials
Container(s) contain no more than ten percent (10%) Municipal Solid Waste and
Food Scraps, combined (if the Customer generates Food Scraps). If the Customer
is participating in the Food Scrap Diversion Program, the Food Scrap Container(s)
shall contain no more than ten percent (10%) of any non-food materials. If these
performance standards are not being achieved, Franchisee shall work with the
Customer, Authorized Customer Representative, owner(s), manager(s) and
employees as needed to re-train, troubleshoot and otherwise provide technical
assistance to ensure the Contamination standards described herein are met.
15. Franchisee shall conduct a minimum of one (1) annual on-site review
of the Diversion Plan prepared for the Customer in Step 2, and of each Diversion
Program at each Customer, and conduct and annual re-training for all employees,
residents and tenants (that meets all of the requirements listed for the initial training
required in Step 12). Franchisee has conducted troubleshooting for each Diversion
Program and ensure that each Diversion Program is robust and successfully
Diverting the targeted materials within the Contamination limits identified in Step
14.
16. In the event the Customer has a functioning Diversion Program that
has been implemented by the Franchisee through the completion of all required
actions and tasks in steps 1 through 15 and the Diversion Program(s) is not
Required Tasks For Implementation Of Diversion Programs Page E-6
successfully Diverting all targeted Material(s) and/or is not meeting the
Contamination performance standards in Step 14, the non-compliant Customer
shall be reported to City on the Exhibit E Tracking Document in the section labeled
"Non -Compliant Customers Referred to City for Compliance Action Under Newport
Beach Municipal Code". City will contact the Customer concerning the
requirements of the Act and the City Code. This may include warnings to the
Customer, Notice of Violation, fines and/or other enforcement actions. If the
Authorized Customer Representative agrees to take all necessary steps to fully
implement the Diversion Program(s) as required by the Act and the City Code, City
will refer the Customer back to the Franchisee for additional on-site work, training
of the Customer's management and employees, troubleshooting and all Steps in
this Exhibit E required to achieve full implementation of the program(s). In such
event, the Customer shall be removed from the list of "Non -Compliant Customers
Referred to City for Compliance Action Under Newport Beach Municipal Code" in
the Exhibit E Tracking Document. If the Authorized Customer Representative
continues to refuse to take the steps necessary to fully implement one or more of
the required Diversion Programs after City action, the Customer will remain on the
Non -Compliant Customer list. In the City's sole discretion, upon receipt of written
notice by the City, the Franchisee may be relieved of the responsibility to
implement the Diversion Program(s) specified by City, at that non-compliant
Customer's premises.
B. In the event there is a change of ownership, management or other change
resulting in cessation of a Diversion Program(s) or causing any one of the steps herein to
not be fully complied with at all times, Franchisee shall repeat all steps necessary to
establish or re-establish a fully implemented Diversion Program. Franchisee shall
complete re-establishment of a fully implemented Diversion Program within ninety (90)
days of either (i) discovering any malfunction in the Program, or (ii) City or Customer
reporting a problem to Franchisee, whichever is earlier.
C. For each Diversion Program required by this Franchise for each Customer,
Franchisee shall be responsible for maintaining fully implemented, successfully operating
program(s) as described herein, for as long as the Customer is served by the Franchisee.
In the event a program malfunctions or is not operating optimally at any time, Franchisee
shall repeat all steps included in this Exhibit E that are necessary to re-establish a fully
implemented Diversion Program. Franchisee shall accomplish this within ninety (90) days
of either (i) discovering any sub -optimal functioning of the Program, or (ii) City or
Customer reporting such sub -optimal functioning to Franchisee, whichever is earlier.
D. Franchisee shall submit, as part of Franchisee's monthly reports described
in Section 16 of the Franchise, a monthly report describing the status of each step listed
herein for each type of Diversion Program, for each Customer and shall include details
for each step as follows:
• Details of all Customer interactions for the month (and for prior months)
including telephone calls, texts, e-mails, site visits, Authorized
Representative and/or other persons contacted
Required Tasks For Implementation Of Diversion Programs Page E-7
• Dates of all such contacts
• Photos from the site visits and assessments conducted
• Photos of any internal Diversion Programs being conducted by the
Customer
• Customer objections
• Log of contamination incidents
• Franchisee staff/representative(s) making the contacts
• Franchisee lead staff person responsible for each Customer's Diversion
Program implementation.
With regard to Customers with fully implemented, successfully operating Diversion
Programs, the Exhibit E Tracking Document shall include any changes in the program(s)
during the preceding month (change of Containers, Container sizes, frequency of
Collection) and shall also list the date of Franchisee's next planned site visit to that
Customer's premises.
This portion of the monthly report shall be called the "Exhibit E Tracking
Document".
E. The Exhibit E Tracking Document shall be filled in on the City -provided
electronic template. No other templates or formats will be accepted. Use of any alternate
format or template shall result in the monthly report being considered incomplete and
inaccurate and the Franchisee shall be subject to assessment of liquidated damages
pursuant to Section 24B of the Franchise.
F. Each monthly report shall also include a copy of the Diversion Plan(s)
prepared by Franchisee for Customers as described in Step 2 of this Exhibit E, during the
preceding month. When Containers for any Diversion Program are delivered, changed or
removed, the number, sizes and types of Containers delivered, changed or removed shall
be noted in the Exhibit E Tracking Document along with the frequency of service for each
Container. All changes in frequency of Collection service for a Diversion Program shall
also be noted in the Exhibit E Tracking Document.
G. The City Code provides a process for Customers to request a waiver from
the requirements to implement Diversion Program(s) due to lack of available space and/or
de minimus quantity(ies) of Divertible Materials. In the event a Customer served by
Franchisee has applied for such a waiver, Franchisee shall note this in the Exhibit E
Tracking Document.
If the waiver is approved by the City, Franchisee shall confirm this with City and
shall record this in the Exhibit E Tracking Document. Franchisee shall be relieved of its
duty to provide the Diversion Program(s) that are specified in the waiver granted by the
City, for the effective dates of the waiver.
Annually thereafter, thirty (30) days prior to the termination date of the waiver, (or
in the event of a waiver of less than twelve months, thirty (30) days prior to the termination
date of the waiver) Franchisee shall submit a written request to City to determine whether
Required Tasks For Implementation Of Diversion Programs Page E-8
the Customer applied for, and was granted a new waiver for another twelve (12) month
(or shorter) period. If so, Franchisee shall record this in the Exhibit E Tracking Document
and shall be relieved of its duty to provide the Diversion Program(s) that are specified in
the new waiver granted by the City for the period the new waiver is effective.
This process shall be repeated by Franchisee thirty (30) days prior to the expiration
date of each waiver, as long as the Customer is served by the Franchisee at the same
premises.
In the event a Customer's request for a waiver is denied by the City, Franchisee shall
comply with all the requirements contained in Sections 12, 13 and 14 and in this Exhibit
E to fully implement all Diversion Programs required by this Franchise.
Required Tasks For Implementation Of Diversion Programs Page E-9
EXHIBIT F
CONSTRUCTION AND DEMOLITION DEBRIS DIVERSION 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 Diversion 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 for all Containers on a timely basis, which, at a minimum,
complies with Section 11 of the Agreement; and
(D) Working and coordinating with Customer, or customer's recycling coordinator, to
ensure a smooth and effective Diversion 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 (or a higher percentage Diversion if required by the California Green
Building Standards Code) 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 Diverted pursuant to the
requirements of City Code and the California Green Building Standards Code.
Construction and Demolition Debris Diversion Program Page F-1
VERIFICATION CERTIFICATE FOR
INDEFINITE TERM SURETY BOND
THIS IS TO CERTIFY that Bond No. 800016838 issued by Atlantic Specialty Insurance Company, in the
amount of Seven Thousand Five Hundred Dollars and 00/100 Dollars ($7,500.00), on behalf of CR&R
Incorporated (as Principal), and in favor of City of Newport Beach (as Obligee) , covers a renewal term which
began on the 16 day of October, 2021, and ends only with the cancellation of said bond or other legal
termination thereof, and that the said bond remains in effect, subject to all its agreements, conditions and
limitations.
Signed, sealed and dated* (enter below) Atlantic Specialty Insurance Company
• Ma areta T. Thorsen
Attorney -in -Fact
9/9/2021
*Use current or renewal date.
CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT
CIVIL CODE g 1169
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 .^ R\(� t `-' before me, Sonia Vizcarrondo, Notary Public
Date Here Insert Name and Title of the Officer
personally appeared Margareta T. Thorsen
Nome(s) of Signer(s)
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 signature(s) on the instrument the person(s), or the entity
upon behalf of which the person(s) acted, executed the instrument.
Place Notary Seal and/or Stamp Above
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 L2--,
Signature otary Public
Completing this information can deter alteration of the document or
fraudulent reattachment of this form to on unintended document.
Description of Attached Document
Title or Type of Document:
Document Date:
Signer(s) Other Than Named Above:
Capacity(ies) Claimed by Signer(s)
Signer's Name:
❑ Corporate Officer — Title(s):
❑ Partner — ❑ Limited ❑ General
❑ Individual ❑ Attorney in Fact
❑ Trustee ❑ Guardian of Conservator
❑ Other:
Signer is Representing:
02017 National Notary Association
Number of Pages:
Signer's Name:
❑ Corporate Officer — Title(s):
❑ Partner — ❑ Limited ❑ General
❑ Individual ❑ Attorney in Fact
❑ Trustee ❑ Guardian of Conservator
❑ Other:
Signer is Representing:
SONIAVIZCARROidDO {�
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Notary Public - California it
l �, i
Los Angeles County
v
Commissio 2256337
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co : m. Expes Sep 24, 2022
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Place Notary Seal and/or Stamp Above
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 L2--,
Signature otary Public
Completing this information can deter alteration of the document or
fraudulent reattachment of this form to on unintended document.
Description of Attached Document
Title or Type of Document:
Document Date:
Signer(s) Other Than Named Above:
Capacity(ies) Claimed by Signer(s)
Signer's Name:
❑ Corporate Officer — Title(s):
❑ Partner — ❑ Limited ❑ General
❑ Individual ❑ Attorney in Fact
❑ Trustee ❑ Guardian of Conservator
❑ Other:
Signer is Representing:
02017 National Notary Association
Number of Pages:
Signer's Name:
❑ Corporate Officer — Title(s):
❑ Partner — ❑ Limited ❑ General
❑ Individual ❑ Attorney in Fact
❑ Trustee ❑ Guardian of Conservator
❑ Other:
Signer is Representing:
intact
INSURANCE
Power of Attorney
KNOW ALL MEN BY THESE PRESENTS, that ATLANTIC SPECIALTY INSURANCE COMPANY, a New York corporation with its principal office in Plymouth,
Minnesota, does hereby constitute and appoint: Margareta T. Thorsen, each individually if there be more than one named, its true and lawful Attomey-in-Fact, to make,
execute, seal and deliver, for and on its behalf as surety, any and all bonds, recognizances, contracts of indemnity, and all other writings obligatory in the nature thereof; provided
that no bond or undertaking executed under this authority shall exceed in amount the sum of: unlimited and the execution of such bonds, recognizances, contracts of indemnity,
and all other writings obligatory in the nature thereof in pursuance of these presents, shall be as binding upon said Company as if they had been fully signed by an authorized
officer of the Company and sealed with the Company seal. This Power of Attorney is made and executed by authority of the following resolutions adopted by the Board of
Directors of ATLANTIC SPECIALTY INSURANCE COMPANY on the twenty-fifth day of September, 2012:
Resolved: That the President, any Senior Vice President or Vice -President (each an "Authorized Officer") may execute for and in behalf of the Company any and
all bonds, recognizances, contracts of indemnity, and all other writings obligatory in the nature thereof, and affix the seal of the Company thereto; and that the
Authorized Officer may appoint and authorize an Attorney -in -Fact to execute on behalf of the Company any and all such instruments and to affix the Company
seal thereto; and that the Authorized Officer may at any time remove any such Attorney -in -Fact and revoke all power and authority given to any such Attorney -in -
Fact.
Resolved: That the Attorney -in -Fact may be given full power and authority to execute for and in the name and on behalf of the Company any and all bonds,
recognizances, contracts of indemnity, and all other writings obligatory in the nature thereof, and any such instrument executed by any such Attorney -in -Fact shall
be as binding upon the Company as if signed and sealed by an Authorized Officer and, further, the Attorney -in -Fact is hereby authorized to verify any affidavit
required to be attached to bonds, recognizances, contracts of indemnity, and all other writings obligatory in the nature thereof.
This power of attorney is signed and sealed by facsimile under the authority of the following Resolution adopted by the Board of Directors of ATLANTIC SPECIALTY
INSURANCE COMPANY on the twenty-fifth day of September, 2012:
Resolved: That the signature of an Authorized Officer, the signature of the Secretary or the Assistant Secretary, and the Company seal may be affixed by
facsimile to any power of attorney or to any certificate relating thereto appointing an Attomey-in-Fact for purposes only of executing and sealing any bond,
undertaking, recognizance or other written obligation in the nature thereof, and any such signature and seal where so used, being hereby adopted by the Company
as the original signature of such officer and the original seal of the Company, to be valid and binding upon the Company with the same force and effect as though
manually affixed.
TN WITNESS WHEREOF, ATLANTTC SPECTALTY INSURANCE COMPANY has caused these presents to be signed by an Authorized Officer and the seal of the Company
to be affixed this twenty-seventh day of April, 2020.
0`11
�Q4G\GpHP ORgTF�� n.
SEAL ^'
���
SEAL m:
Y . 1986 o =
STATE OF MINNESOTA
�1y Y
By
Paul J. Brehm, Senior Vice President
HENNEPIN COUNTY IP'0.°
On this twenty-seventh day of April, 2020, before me personally came Paul J. Brehm, Senior Vice President of ATLANTIC SPECIALTY INSURANCE COMPANY, to me
personally known to be the individual and officer described in and who executed the preceding instrument, and he acknowledged the execution of the same, and being by me
duly sworn, that he is the said officer of the Company aforesaid, and that the seal affixed to the preceding instrument is the seal of said Company and that the said seal and the
signature as such officer was duly affixed and subscribed to the said instrument by the authority and at the direction of the Company.
E
ALISON DWAN NASH•TROUTNOTARY PUBLIC • MINNESOTA
My Commission Expires
1pq January 31, 2025
41w_
Notary Public
I, the undersigned, Secretary of ATLANTIC SPECIALTY INSURANCE COMPANY, a New York Corporation, do hereby certify that the foregoing power of attorney is in full
force and has not been revoked, and the resolutions set forth above are now in force.
Signed and sealed. Dated 9th day of September .2021.
Please direct bond verifications to suretyPn intactinsurance.com
;Q<v GpFPOggTF n:
SEAL m:
1986 0
This Power of Attorney expires " A. 'rw'o"N" b l
January 31, 2025 1 11 ''•��b ti��'
1 "
Kara Barrow, Secretary
Please direct bond verifications to suretyPn intactinsurance.com
Insurance Brokers &
Consultants
September 14, 2023
City of Newport Beach
Attn: Public Works
100 Civic Center Dr.
Bay E, 2n6 Floor
Newport Beach, CA 92660
(949)667-4158
RE: Name of Principal: CR&R Incorporated
Name of Obligee: City of Newport Beach
Bond No. 800016838
In accordance with the renewal terms of the above bond, a bond
continuation certificate is enclosed as evidence that the above referenced
bond has been renewed and remains in full force and effect.
Should you have any questions, please do not hesitate to contact us. Thank
you.
Sincerely
C•
Mar reta T. Thorsen
Senior Vice President - Surety
115 North El MoHno Avenue
Pasadena, CA 91101 EPICBROKERS.COM
EDGEWOOD PARTNERS INSURANCE CENTER I CA LICENSE 0629370
VERIFICATION CERTIFICATE FOR
INDEFINITE TERM SURETY BOND
THIS IS TO CERTIFY that Bond No. 800016838, issued by Atlantic Specialty
Insurance Company, in the amount of Seven Thousand Five Hundred Dollars and
00/100 Dollars ($7,500.00), on behalf of CR&R Incorporated (as Principal), and in
favor of City of Newport Beach (as Obligee) for Refuse removal and related services,
covers a renewal term which began on the 16th Day of October, 2023, and ends only
with the cancellation of said bond or other legal termination thereof; and that the
said bond remains in effect, subject to all its agreements, conditions and limitations.
Signed, sealed and dated* (enter below)
Atlantic S ialty Insurance Company
Name of Surety)
t
BY:
Margareta T. Thorsen, Attorney -in -Fact
9/14/2023
CALIFORNIA ALL-PURPOSE 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 Sacramento
On `� �`� `'L3
before me, Sandra R. Black
, Notary Public,
Date
personally appeared Margareta T. Thorsen
Insert Name of Notary exactly as it appears on the official seal
Name(s) of Signer(s)
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),
BLACK
and that by his/her/their signature(s) on the instrument the
person(s), or the entity upon behalf of which the person(s)
comm.385775 9
CALIFORNIAO
acted, executed the instrument.
COUNTY,
OEM
8, 2025 7
v�T
I certify under PENALTY OF PERJU and r the laws of
the State of California th a fore oing par graph is true
and corre .
Witness ha d and i ' I
Signature
Place Notary Seal Above
ignature f a
OPTIONAL
Though the information below is not required
by law, it may prove valuable to persons relying on the document
and could prevent fraudulent removal and reattachment of the form to another document.
Description of Attached Document
Title or Type of Document:
Document Date:
Number of Pages:
Signer(s) Other Than Named Above:
Capacity(ies) Claimed by Signer(s)
Signer's Name:
❑ Individual
❑ Corporate Officer—Title(s):_
❑ Partner ❑ Limited ❑ General
❑ Attorney in Fact
❑ Trustee
❑ Guardian or Conservator
❑ Other:
Signer is Representing:
Signer's Name:
❑ Individual
❑ Corporate Officer —Title(s):
❑ Partner ❑ Limited ❑ General
❑ Attorney in Fact
❑ Trustee
❑ Guardian or Conservator
❑ Other:
Signer is Representing:
intact
INSURANCE
Power of Attorney
KNOW ALL MEN BY THESE PRESENTS, that ATLANTIC SPECIALTY INSURANCE COMPANY, a New York corporation with its principal office in Plymouth,
Minnesota, does hereby constitute and appoint: Margareta T. Thorsen, each individually if there be more than one named, its true and lawful Attorney -in -Fact, to make,
execute, seal and deliver, for and on its behalf as surety, any and all bonds, recognizances, contracts of indemnity, and all other writings obligatory in the nature thereof; provided
that no bond or undertaking executed under this authority shall exceed in amount the sum of: unlimited and the execution of such bonds, recognizances, contracts of indemnity,
and all other writings obligatory in the nature thereof in pursuance of these presents, shall be as binding upon said Company as if they had been fully signed by an authorized
officer of the Company and sealed with the Company seal. This Power of Attorney is made and executed by authority of the following resolutions adopted by the Board of
Directors of ATLANTIC SPECIALTY INSURANCE COMPANY on the twenty-fifth day of September, 2012:
Resolved: That the President, any Senior Vice President or Vice -President (each an "Authorized Officer") may execute for and in behalf of the Company any and
all bonds, recognizances, contracts of indemnity, and all other writings obligatory in the nature thereof, and affix the seal of the Company thereto; and that the
Authorized Officer may appoint and authorize an Attorney -in -Fact to execute on behalf of the Company any and all such instruments and to affix the Company
seal thereto; and that the Authorized Officer may at any time remove any such Attorney -in -Fact and revoke all power and authority given to any such Attorney -in -
Fact.
Resolved: That the Attorney -in -Fact may be given full power and authority to execute for and in the name and on behalf of the Company any and all bonds,
recognizances, contracts of indemnity, and all other writings obligatory in the nature thereof, and any such instrument executed by any such Attomey-in-Fact shall
be as binding upon the Company as if signed and sealed by an Authorized Officer and, further, the Attorney -in -Fact is hereby authorized to verify any affidavit
required to be attached to bonds, recognizances, contracts of indemnity, and all other writings obligatory in the nature thereof.
This power of attorney is signed and sealed by facsimile under the authority of the following Resolution adopted by the Board of Directors of ATLANTIC SPECIALTY
INSURANCE COMPANY on the twenty-fifth day of September, 2012:
Resolved: That the signature of an Authorized Officer, the signature of the Secretary or the Assistant Secretary, and the Company seal may be affixed by
facsimile to any power of attorney or to any certificate relating thereto appointing an Attomey-in-Fact for purposes only of executing and sealing any bond,
undertaking, recognizance or other written obligation in the nature thereof, and any such signature and seal where so used, being hereby adopted by the Company
as the original signature of such officer and the original seal of the Company, to be valid and binding upon the Company with the same force and effect as though
manually affixed.
IN WITNESS WHEREOF, ATLANTIC SPECIALTY INSURANCE COMPANY has caused these presents to be signed by an Authorized Officer and the seal of the Company
to be affixed this first day of January, 2023.
aG` GGFPORgrF��+�_ ,
SEAL m_
c ° 1986 6 z By
STATE OF MINNESOTA r26 tiew voa� . a
Sarah A. Kolar, Vice President and General Counsel
HENNEPIN COUNTY
On this first day of January, 2023, before me personally came Sarah A. Kolar, Vice President and General Counsel of ATLANTIC SPECIALTY INSURANCE COMPANY, to
me personally ]mown to be the individual and officer described in and who executed the preceding instrument, and she acknowledged the execution of the same, and being by me
duly swom, that she is the said officer of the Company aforesaid, and that the seal affixed to the preceding instrument is the seal of said Company and that the said seal and the
signature as such officer was duly affixed and subscribed to the said instrument by the authority and at the direction of the Company.
a�a ALISON DWAN NASH TROUT
NOTARY PUBLIC • MINNEsOTA
My Commission Expires
January 31, 2025
Notary Public
I, the undersigned, Secretary of ATLANTIC SPECIALTY INSURANCE COMPANY, a New York Corporation, do hereby certify that the foregoing power of attorney is in full
force and has not been revoked, and the resolutions set forth above are now in force.
Signed and sealed. Dated 14th day of September , 2023
:^q�0 GOPPOAgrE,9�=:
=A SEAL
1986 0
This Power of Attorney expires 'rya sty yo?,
January 31, 2025 �� ti su > �• O
Kara L.B. Barrow, Secretary
Please direct bond verifications to surety@intactinsurance.com
NON-EXCLUSIVE FRANCHISE AGREEMENT BETWEEN THE CITY OF
NEWPORT BEACH AND CR&R INCORPORATED FOR COMMERCIAL
SOLID WASTE HANDLING SERVICES
This Non-exclusive Franchise Agreement for Commercial Solid Waste Handling
Services ("Agreement') is entered into this gch 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
CR&R INCORPORATED, a California corporation ("Franchisee"), whose address is
11292 Western Avenue, Stanton, California 90680, 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 Containerwith 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, 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
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, orfor 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.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
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:
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:
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 materials/Processable Municipal Solid Waste;
6. AB 341 and AB 1826 compliance information by Generators,
including the total number of AB 341 and AB 1826 accounts serviced by the Franchisee,
the total number of accounts that have a Recycling Program, Food Scrap Diversion
Program, and/or Green Waste Recycling provided by the Franchisee, the number of
Customers with Franchisee -documented internal Diversion programs that comply with AB
1826 and AB 341, the number of Customers that comply with AB 341 or AB 1826 via a
Clean or Dirty MRF, the number of Customers that do not have an AB 341 or AB 1826 -
compliant Diversion program, and a description of outreach efforts for non-compliant
Generators;
7. A narrative summary of all outreach efforts to implement AB 341 and
AB 1826 Diversion programs at non-compliant Generators' premises including dates of
interactions, a description of the nature of the interactions, Generator objections, a log of
all new Recycling of Food Scrap Container deliveries during the reporting period, a log of
contamination incidents;
8. Such other tonnage or other information as requested by the
Municipal Operations Director including weight tickets and Recycling records.
B. Form of Report. Monthly reports shall be prepared in an Excel template, or
other format approved in writing by the Municipal Operations Director.
C. Report Due Date. Each monthly report shall be submitted on or before the
25th day of the month following the end of the month.
D. Submission. Franchisee shall submit each monthly report to:
Municipal Operations Director
City of Newport Beach
P.O. Box 1768
100 Civic Center Drive
Newport Beach, CA 92658
E. No Waiver. Franchisee shall file the monthly report required under
Agreement Section 16(A) regardless of whether Franchisee has provided Commercial
Solid Waste Handling Services in the City during the reported month.
F. Compliance. Franchisee shall comply with all Recycling and Diversion
requirements imposed by law, ordinance, or regulation on the City. At the end of each
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
SECTION 19. ABANDONED CONTAINERS
A. If Franchisee abandons any Commercial Solid Waste Container within the
City, the City may remove the Container and/or dispose of the contents of the Container
and recover its cost from Franchisee.
B. For the purposes of this Section, "abandons" includes:
1. Franchisee's failure to remove the Container within the time period
specified by the City Council upon termination of the Franchise pursuant to Section
12.63.140 of the Code, or any successor statute;
2. Franchisee's failure to remove the Container within ten (10) calendar
days after the expiration or termination of the Franchise granted to Franchisee, except in
the case where Franchisee has been granted an extension of the Term of said Franchise
or Franchisee has been granted a subsequent franchise authorizing Franchisee to Collect
and transport the type or types of Commercial Solid Waste for which the Container was
used pursuant to this Agreement; or
3. Franchisee's failure to collect the Container and dispose of the
contents of the Container within five (5) calendar days after the Municipal Operations
Director issues written notice to Franchisee to dispose of the contents.
4. Franchisee's failure to replace a Container that fails to comply with
the City's aesthetic standards, as set forth in this Agreement, within five (5) calendar days
of receiving written notice from the Municipal Operations Director of non-compliance.
SECTION 20. COMPLIANCE WITH LAW
A. Franchisee shall perform all Commercial Solid Waste Handling Services in
accordance with applicable federal, state, and local law, including, but not limited to, Code
Chapter 12.63, Article XIII of the City Charter, Ordinance No. 2017-16 and the terms and
conditions of this Agreement.
B. During the Term of this Agreement, Franchisee and City agree that the
City's ordinances may be amended as provided herein, as provided in Chapter 12.63 or
as necessary to permit the City to comply with changes to federal, state, and local
legislative regulatory requirements, which may affect or alter City's obligations or
requirements for Commercial Solid Waste management. Franchisee agrees to comply
with any such amendment of the City's ordinances without the need to amend this
Agreement.
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.
J. 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 Damaqes. 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
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)
_-7-Provide only those Commercial Solid Two hundred fifty
Fifty dollars ($50)
Waste Handling Services for which dollars ($250)
Containers corporate color
Franchisee has applied
11(C)
Collect at unauthorized locations and/or Two hundred fifty
until corrected
during unauthorized hours five (5) or dollars ($250)
Establish or Implement Recycling
more times in a twelve (12) month period
11(D)
Label Containers; paint vehicles and/or
Fifty dollars ($50)
Containers corporate color
per business day
until corrected
12(A), 12(C)
Establish or Implement Recycling
One thousand
Program
dollars ($1,000) per
j
occurrence
13(A), 13(C)
Establish or Implement Food Scrap
One thousand
Diversion Program
dollars ($1,000)
13(A), 13(C)
Establish or Implement Green Waste
Five hundred dollars
Diversion Program
($500)
13(A), 13(C)
Establish or Implement Construction and
One thousand
Demolition Diversion Program
dollars ($1,000)
16(A), 16(B), 16(E)
Submit complete and accurate monthly
One hundred dollars
reports
($100) per business
day until corrected
or completed
16(C)
Submit timely monthly reports
One hundred dollars
($100) if not
submitted when due
Five hundred dollars
($500) — if not
submitted Win thirty
(30) calendar days
after due date
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
equipment
One hundred dollars
($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.
FRANCHISEE
Initial Here:'
CITY
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: CR&R Incorporated
Attn: George Lazaruk
11292 Western Avenue
Stanton, CA 90680
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. Severabilitv. If any term or portion of this Agreement is held to be invalid,
illegal, or otherwise unenforceable by a court of competent jurisdiction, the remaining
provisions of this Agreement shall continue in full force and effect.
H. Waiver. A waiver by either party of any breach, of any term, covenant or
condition contained herein shall not be deemed to be a waiver of any subsequent breach
of the same or any other term, covenant or condition contained herein, whether of the
same or a difference character.
I. Interpretation. The terms of this Agreement shall be construed in accordance
with the meaning of the language used and shall not be construed for or against either
party by reason of the authorship of this Agreement or any other rule of construction that
might otherwise apply.
J. Equal Opportunity Employment. Franchisee represents that it is an equal
opportunity employer and it shall not discriminate against any authorized subcontractor,
employee or applicant for employment because of race, religion, color, national origin,
handicap, ancestry, sex or age or any other impermissible basis under law.
K. Compliance with Laws. Franchisee shall at its own cost and expense comply
with all statutes, ordinances, regulations and requirements of all governmental entities,
including federal, state, county or municipal, whether now in force or hereinafter enacted.
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
Aaron C. Harp
City Attorney
ATTEST: I I �.
Date:
By: L_ C ft�'
Leilani I. Brown
City Clerk
CITY OFNEW ORT BEACH
a California ni i I corpor
Date:
By:
K/vnrMul on
M
FRANCHISEE: CR&R INCORPORATED,
a California corporation
Date:
Clifford Ronnenberg
Chief Executive Officer
Date: to -� C -
By:
1
J ce Amato
Chief Financial Officer
[END OF SIGNATURES]
Attachments: Exhibit A — Faithful Performance Bond
Exhibit B — Franchise Hauler Acknowledgement
Exhibit C — Franchisee Application Template
Exhibit D — Insurance Requirements
Exhibit E — Recycling Program
Exhibit F — Food Scrap Diversion Program
Exhibit G — Construction and Demolition Debris Recycling Program
Non-exclusive Franchise Agreement Page 41
1W4:11:31k&I
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 CR&R
INCORPORATED, a California corporation, hereinafter designated as the "Principal," a
non-exclusive franchise for commercial solid waste handling services ("Franchise
Agreement") in the City of Newport Beach, in strict conformity with the Franchise
Agreement on file with the office of the City Clerk of the City of Newport Beach, which is
incorporated herein by this reference.
WHEREAS, Principal has executed or is about to execute the Franchise
Agreement and the terms thereof require the furnishing of a Bond for the faithful
performance of the Franchise Agreement.
NOW, THEREFORE, we, the Principal, and
'duly authorized to
transact business under the laws of the State of California as Surety (hereinafter
"Surety"), are held and firmly bound unto the City of Newport Beach, in the sum of Seven
Thousand Five Hundred Dollars and 00/100 ($7,500.00) lawful money of the United
States of America, to be paid to the City of Newport Beach, its successors, and assigns;
for which payment well and truly to be made, we bind ourselves, our heirs, executors and
administrators, successors, or assigns, jointly and severally, firmly by these present.
THE CONDITION OF THIS OBLIGATION IS SUCH, that if the Principal, or the
Principal's heirs, executors, administrators, successors, or assigns, fail to abide by, and
well and truly keep and perform any or all the services, covenants, conditions, and
agreements in the Franchise Agreement documents and any alteration thereof made as
therein provided on its part, to be kept and performed at the time and in the manner
therein specified, and in all respects according to its true intent and meaning, or fails to
indemnify, defend, and save harmless the City of Newport Beach, its officers, employees
and agents, as therein stipulated, then, Surety will faithfully perform the same, in an
amount not exceeding the sum specified in this Bond; otherwise this obligation shall
become null and void.
As a part of the obligation secured hereby, and in addition to the face amount
specified in this Performance Bond, there shall be included costs and reasonable
expenses and fees, including reasonable attorneys fees, incurred by City, only in the
event City is required to bring an action in law or equity against Surety to enforce the
obligations of this Bond.
Surety, for value received, stipulates and agrees that no change, extension of time,
alterations or additions to the terms of the Franchise Agreement or to the services to be
performed thereunder shall in any way affect its obligations on this Bond, and it does
Faithful Performance Bond Page A-1
hereby waive notice of any such change, extension of time, alterations or additions of the
Agreement or to the services or to the specifications.
This Faithful Performance Bond shall be extended and maintained by the Principal
in full force and effect for five (5) years following the date Principal is granted the
Franchise Agreement by City.
In the event that the Principal executed this bond as an individual, it is agreed that
the death of any such Principal shall not exonerate the Surety from its obligations under
this Bond.
IN WITNESS WHEREOF, this instrument has been duly executed by the Principal
and Surety above named, on the day of
Name of Contractor (Principal)
Name of Surety
Address of Surety
Telephone
APPROVED AS TO FORM:
CITY ATTORNEY'S OFFICE
Aaron C. Har
City Attorney
20
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
9:L10[y.16y:8:/_IIJI=I:L elrN MOITAA218Zd4ird21►kI
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 CR&R INCORPORATED, 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 CR&R INCORPORATED 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
w�PpgF
City of Newport Beach
Solid Waste Franchise Application
Hauler Information
Legal Name & DBA:
Business Address:
Business Phone:
Business email:
Contact Name:
Phone:
Email:
Newport Beach Business
License#; Exp:
Type of Organization (Check One)
Individual (Owner/Operator)
Limited Partnership
Joint Venture
4
aHusbandand Wife
aLimltedLiability Company
aUnincorporatedAssociation -
❑Corporation
� Business Trust
Other than a Partnership
❑General Partnership
aCo-Partners
Public Agency
Deslred Franchise:
Tier I (Mixed Solid Waste)
Mixed Waste
❑
"Dirty MRF" Processing
Source Separated Dry Recyclables
❑
Food Scraps
❑
Green/ Wood Waste
❑
Tier II (Construction & Demolition)
❑
Name of Signatories
Corp Resolutlon Needed
Yes. No
l—N/A�
❑ l
Name
Title
Yeas No N A
Name
Title
Splid Waste Collection Reiycilne 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 pll vehicles to be used in performing services in the City (Attachment 2).
Note: All vehicles must meet the equipment standards listed In the "Vehicles and Equipment" section of
the franchise agreement.
The franchise Agreement requires all vehicles and containers to be painted uniform colors.
Color of Vehicles:
Color of Containers:
pesianation 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:
Additional Information Required with submission of Franchise Application
1. .The applicant must complete Form 200/200D/200P as appropriate, describing officers, partners,
etc., having legal responsibility forthe franchise agreement.
2. A current Insurance certificate conforming to the requirements listed In the franchise agreement,
Including the applicable endorsements.
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 calendaryear including
tonnage collected.by activity (residential, commercial, Industrial, construction and demolition);
corresponding revenue for each activity; tonnage recycled or caused to be recycled by applicant's
collection, transportation, and/or disposition of materials collected and categorized by method of
recycling, material type recycled, and the tonnage disposed by facility utilized..
In the past year, have you or your firm:
Maintained all books of account pursuant to enerally accepted raccounting principles (GAAP)?
Yes No N/A I I
Generated all Income statements using either a cash or accrual accounting method?
Yes No O N/A
Truthfully and accurately reported all tonnage and/or the disposition of all materials collected In any
Jurisdiction where you are authorized to perform solid waste services?
Yes No N/A
AUTHORIZED SIGNATUREIS) 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.
B. If the applicant Is a partnership, the application shall be signed by each partner.
C. If the application Is a firm, association, corporation, county, city, public agency, or other
governmental entity, the application shall be signed by the chief executive officer or the
Individual legally responsible for representing the agency.
D. The applicant(s) affirms that the facts contained In this application and supporting documents
are true and correct,
(Signature) (Title) (Date)
(Signature) (Title) (Date)
(Signature) (Title) (Date)
City of Newport Beach
NON-EXCLUSIVE SOLID WASTE FRANCHISE APPLICATION
ADMINISTRATIVE ORGANIZATION & DELEGATION INFORMATION . CORPORATIONS
(Form 200 — 2017)
INSTRUCTIONS: This form must be Updated and submitted to the City each time there is a change in officers or
change In the corporation.
CORPORATION
Name (as listed with the Secretary of State) Chief Executive Officer
Incorporation Data Place of Incorporation
Address City
Contact Person Title
Zip Code Telephone
Telephone
Names and addresses of all persons who own len per cent (10%) or more of stock In corporation.
Govem ng Board of Directors
a, Number of Board Members
c. Frequency of Meetings
b. Term of Office
d. Method of Selection
Board Officers and Members USE A SEPARATE SHEET FOR ADDITIONAL NAMES
Office
Name
Business Address & City & Zip Code^f
Telephone
Number
Term
Expiration
President
Vice -President
Secretary
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 Name Business Address, City and Zip Code
Contact Person Title Telephone $ _,___
SOLE PROPRIETORIOTHER ASSOCIATIONS ^
Sole Proprletorslother associations must also provide a list of all person(s) legally responslblo for the organization, the contact person, and appropriate legal
documents (fictitious name statement, business Ilunse) which set forth legal responsibility of the organization and accountablllty for opening the program.
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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: 9/7/17 Dept./Contact Received From: Joan
Date Completed: 11/9/17 Sent to: Joan By: Jan
Company/Person required to have certificate: CR&R Incorporated
Type of contract: All Other
I. GENERAL LIABILITY
EFFECTIVE/EXPIRATION DATE: 9/3/17 - 9/3/18
A.
INSURANCE COMPANY: Greenwich Insurance Co.
B.
AM BEST RATING (A-: VII or greater): A / XV
C.
ADMITTED Company (Must be California Admitted):
Is Company admitted in California?
® Yes ❑ No
D.
LIMITS (Must be $1M or greater): What is limit provided?
1M/2M
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)
® Yes ❑ No
G.
ADDITIONAL INSURED FOR PRODUCTS AND
COMPLETED OPERATIONS ENDORSEMENT (completed
Operations status does not apply to Waste Haulers)
® Yes ❑ No
H.
ADDITIONAL INSURED WORDING TO INCLUDE (The City
its officers, officials, employees and volunteers): Is it
included?
® Yes ❑ No
I.
PRIMARY & NON-CONTRIBUTORY WORDING (Must be
included): Is it included?
® Yes ❑ No
J.
CAUTION! (Confirm that loss or liability of the named insured
is not limited solely by their negligence) Does endorsement
include "solely by negligence" wording?
❑ Yes ®No
K.
ELECTED SCMAF COVERAGE (RECREATION ONLY):
® N/A ❑ Yes ❑ No
L.
NOTICE OF CANCELLATION:
❑ N/A ® Yes ❑ No
II. AUTOMOBILE LIABILITY
EFFECTIVE/EXPIRATION DATE: 9/3/17 - 9/3/18
A.
INSURANCE COMPANY: XL Specialty Ins Co.
B.
AM BEST RATING (A-: VII or greater) A / XV
C.
ADMITTED COMPANY (Must be California Admitted):
Is Company admitted in California?
® Yes ❑ No
D.
LIMITS - If Employees (Must be $1M min. BI & PD and $500,000
UM, $2M min for Waste Haulers): What is limits provided?
$IM + $5M Excess
E
LIMITS Waiver of Auto Insurance / Proof of coverage (if individual)
(What is limits provided?)
N/A
F.
PRIMARY & NON-CONTRIBUTORY WORDING (For Waste
Haulers only):
❑ N/A ® Yes ❑ No
G.
HIRED AND NON -OWNED AUTO ONLY:
❑ N/A ❑ Yes ® No
H.
NOTICE OF CANCELLATION:
❑ N/A ® Yes ❑ No
III. WORKERS' COMPENSATION
EFFECTIVE/EXPIRATION DATE: 4/1/17-4/1/18
A.
INSURANCE COMPANY: XL Insurance America Inc.
B.
AM BEST RATING (A-: VII or greater): A / XV
C.
ADMITTED Company (Must be California Admitted):
® Yes
❑ No
D.
WORKERS' COMPENSATION LIMIT: Statutory
® Yes
❑ No
E.
EMPLOYERS' LIABILITY LIMIT (Must be $1M or greater)
$1,000,000
F.
WAIVER OF SUBROGATION (To include): Is it included?
® Yes
❑ No
G.
SIGNED WORKERS' COMPENSATION EXEMPTION FORM:
IN N/A ❑ Yes
❑ No
H.
NOTICE OF CANCELLATION:
❑ N/A ® Yes
❑ No
ADDITIONAL COVERAGE'S THAT MAYBE REQUIRED
IV. PROFESSIONAL LIABILITY
® N/A ❑ Yes ❑ No
V POLLUTION LIABILITY EFF: 7/5/16-7/5/19 CARRIER: INDIAN HARBOR INS CO
RATING: A: XV Non -Admitted LIMIT: 1M ❑ N/A ® Yes ❑ No
fT�Y�11 A�7�:%9:769:1
HAVE ALL ABOVE REQUIREMENTS BEEN MET?
IF NO, WHICH ITEMS NEED TO BE COMPLETED?
11/9/17
Agent of Alliant Insurance Services Date
Broker of record for the City of Newport Beach
® N/A ❑ Yes ❑ No
® Yes ❑ No
RISK MANAGEMENT APPROVAL REQUIRED (Non -admitted carrier rated less than _.
Self Insured Retention or Deductible greater than $ 1 ❑ N/A ❑ Yes ❑ No
Reason for Risk Management approval/exception/waiver:
Risk Management approval needed due to Pollution Liability carrier being non -admitted. 10/26/16 Sheri
Approved:
Risk Management Date
* Subject to the terms of the contract.
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 CR&R Incorporated
("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: October 16, 2017 By.
Name, Clifford Ronnenberg
CEO
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,, 2017, at Jr�q/
V_ a.m./p.m
AMENDMENT NO. ONE TO
COMMERCIAL SOLID WASTE COLLECTION
NONEXCLUSIVE FRANCHISE AGREEMENT
BETWEEN THE CITY OF NEWPORT BEACH AND CR&R INCORPORATED
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 CR&R INCORPORATED, a California corporation
("Franchisee"), whose address is 11292 Western Avenue, Stanton, California 90680,
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]
CR&R Incorporated 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 Of FICE
Date: a
By: `
Aaron C. Harp vu^^ ti 1z•17
City Attorney
ATTEST:? )
Date: cJ��l• /�
By: dk�
NvL�"�-
Leilani I. Brown
City Clerk
CITY OF NEWPORT BEACH,
a California municipal corporation
Date: 31,n h4
By:
Dave i
City Manager
FRANCHISEE: CR&R INCORPORATED,
a California corporation
aeu eiai y
[END OF SIGNATURES]
CR&R Incorporated Page 2
AMENDMENT NO. 1
TO COMMERCIAL SOLID WASTE COLLECTION
NONEXCLUSIVE FRANCHISE AGREEMENT BETWEEN THE CITY OF
NEWPORT BEACH AND CR&R INCORPORATED
THIS AMENDMENT NO. 1 TO COMMERCIAL SOLID WASTE FRANCHISE
AGREEMENT, is entered into as of this 18th day of March, 2008, by and between the CITY OF
NEWPORT BEACH, a Municipal Corporation ("CITY"), and CR&R INCORPORATED
("FRANCHISEE"), and is made with reference to the following:
RECITALS:
A. On March 1, 2007 CITY and FRANCHISEE entered into a Commercial Solid
Waste Nonexclusive Franchise Agreement, hereinafter referred to as
"AGREEMENT".
B. The CITY is currently is currently in negotiations with the County of Orange over
the tipping fee charged for the disposal of solid waste. To obtain a more
favorable rate from the County of Orange for all Franchisees, the City must
require Franchisees to deliver all residual solid waste materials (materials that
are not delivered to a recycling facility) to a landfill/disposal site owned and/or
operated by the County of Orange.
C. CITY and FRANCHISEE mutually desire to amend AGREEMENT, hereinafter
referred to as "AMENDMENT NO. 1, as provided here below.
NOW, THEREFORE, it is mutually agreed by and between the undersigned parties as
follows:
1. Section 6(B) of the Agreement shall be amended to delete the first sentence and
replace it with the following:
"Franchisee shall dispose of solid waste collected or transported by Franchisee
only by taking such solid waste to a Orange County certified/licensed landfill,
State certified/licensed transfer station, State certified/licensed recycling facility
or State certified/licensed materials recovery facility which is lawfully authorized
to accept that specific type of solid waste material."
2. Section 6(c) of the Agreement shall be amended to delete the last sentence and
replace it with the following:
"Failure to comply with the recycling/diversion requirements and delivery/disposal
of materials in accordance to the designated certified/licensed facility shall be a
material breach of this agreement."
3. Except as expressly modified herein, all other provisions, terms, and covenants
set forth in AGREEMENT shall remain unchanged and shall be in full force and
effect.
IN WITNESS WHEREOF, the parties hereto have executed this AMENDMENT NO. 1
on the date first above written.
APP VED AS TO FORM:
City Attorney
for the City of Newport Beach
ATTEST:
ByC7 JN7 / 0 / . A�/
LaVonne Harkless,
City Clerk796 ,_
0
for the City of Newport Beach
E
DIV/Sl4eU VESA A//
Print Name: 7JA Vi D �DrtJyC7v'$
�%/ mo/ (Financial Officer)
Title: GFG
Print Name:
COMMERCIAL SOLID WASTE COLLECTION
NONEXCLUSIVE FRANCHISE AGREEMENT BETWEEN THE CITY OF
NEWPORT BEACH AND SOLID WASTE HAULERS LISTED IN EXHIBIT A.
This Nonexclusive Franchise Agreement for Commercial Solid Waste Handling Services
("Agreement") is entered into this 0 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 CR&R, Inc., a California Corporation,
whose address is 11292 Western Avenue, Stanton, California, 90680 ("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.
r r
B. Upon the Effective Date of this Agreement, the parties agree that any prior
authorization relating to the conduct of commercial solid waste handling services in the City
arising under and pursuant to any prior franchise issued to Franchisee shall be deemed to be
terminated and of no further force or effect.
SECTION 2. TERM OF FRANCHISE
The term of this Agreement shall commence on the Effective Date, and shall terminate on
the 1st day of March, 2017 ("Termination Date"), unless terminated earlier as set forth herein
("Term").
SECTION 3. DEFINITIONS
Unless otherwise defined herein, or if the use or context clearly requires a different
definition, all words, terms and phrases in this Agreement and the derivations thereof shall have
the meanings set forth in Section 12.63.020 of the Code.
SECTION 4. FRANCHISE FEES
A. During the term of the Franchise, Franchisee shall pay to City franchise fees for
the privilege of providing commercial solid waste handling services in the City of Newport
Beach and for the use of public streets, right-of-ways and places for such purposes. The
franchise fee that Franchisee shall pay to the City shall be ten and a half percent (10.5%) of the
gross receipts for all commercial solid waste handling services provided by the Franchisee in the
City of Newport Beach ("Franchise Fees"). One half percent (.5%) of the Franchise Fee shall be
attributable to the maintenance and implementation of the City's Source Reduction and Recycling
Element "SRRE," and shall be separately accounted for, and used only for the costs stated in
Public Resources Code Section 41901 or any successor provision.
B Franchise Fees shall be paid quarterly on forms prescribed by the Administrative
Services Director.
C. Franchisee shall pay all required'Franchise Fees to:
City of Newport Beach
Attn: Administrative Services Director
3300 Newport Boulevard
Newport Beach, CA 92658
D. Franchise Fees shall be due and payable on the thirtieth (30th) day of the month
following the end of each quarter. Because the Effective Date for this Agreement is starting in
the middle of a quarter, the first payment of the Franchise Fees due and payable to the City from
the Effective Date to the end of the first quarter (i.e. March 31, 2007) will be due and payable on
the thirtieth (30`h) day of April 2007.
E. The parties hereto agree that Franchisee's failure to make Franchise Fee and
Environmental Liability Fund Fee, as set forth in Section 8 (hereinafter the Franchise Fee and
E. The parties hereto agree that Franchisee's failure to make Franchise Fee and
Environmental Liability Fund Fee, as set forth in Section 8 (hereinafter the Franchise Fee and
Environmental Liability Fund Fee shall collectively be referred to as "Fee(s)"), payments within
the time allowed will result in damages being sustained by City. Such damages are, and will
continue to be, impracticable and extremely difficult to determine. If Fees are not paid by
Franchisee when due then in addition to the Fees, Franchisee shall pay a late charge in an amount
equal to ten percent (10%) of the amount of the Fee that was not timely paid by Franchisee. If
Franchisee fails to pay delinquent Fees within thirty (30) days of the date due, Franchisee shall
pay a second (2"d) late charge in an amount equal ten percent (10%) on both the amount of the
Fee outstanding and the first late charge. The second (2"d) late charge shall be in addition to the
first (15`) late charge. Execution of this Agreement shall constitute agreement by the parties that
the late charges set forth in this subsection is the minimum value of the costs and actual damages
caused by the failure of the Franchisee to pay the Fees within the allotted time. Such sum is
liquidated damages and shall not be construed as a penalty.
In addition to the late charges imposed on Franchisee for failing to pay Fees in
accordance with this Agreement, Franchisee shall pay interest on the amount of Fees and late
charges due and owing at the rate of one and one-half percent (1 %2 %) per month for each month
or portion of a month that the Fees and late charges remain unpaid.
F. In the event Franchisee believes that it has paid Fees in excess of the Fees due to
City, Franchisee may submit a request for refund to the Administrative Services Director on a
form provided by the Director. If proof of overpayment is satisfactory to the Director, the
Director shall refund to Franchisee any overpayment. Franchisee shall not apply any
overpayment as a credit against any other amounts payable to City unless specifically authorized
by the Administrative Services Director in writing.
G. Each Franchise Fee payment shall be accompanied by a written statement
described in Section 12.63.090 of the Code on a form provided by the Administrative Services
Director. No statement filed under this Section shall be conclusive as to the matters set forth in
such statement, nor shall the filing of such statement preclude the City from collecting by
appropriate action the sum that is actually due and payable.
H. Franchisee may separately list the actual Franchise Fee rate and Environmental
Liability Fund Fee rate as established by this Section, and any other fees required by this
Agreement, on its invoices to its customers. In no case may the Franchise Fee rate or
Environmental Liability Fund Fee rate listed by the Franchisee on the invoice exceed the actual
Franchise Fee or Environmental Liability Fund Fee rates imposed by the City.
SECTION 5. CASH DEPOSIT
Franchisee shall, prior to the placement of any commercial solid waste container on
public property, provide City with a cash deposit in the sum of Five Thousand Dollars
($5,000.00) to ensure compliance with the duties and obligations imposed by the provisions of
the Code, regulations adopted by the City Manager or his designee and this Agreement.
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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.
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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.
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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
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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.
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C. Acceptable Insurers. All insurance policies shall be issued by an insurance
company currently authorized by the Insurance Commissioner to transact business of insurance in
the State of California, with an assigned policyholders' Rating of A (or higher) and Financial
Size Category Class VII (or larger) in accordance with the latest edition of Best's Key Rating
Guide, unless otherwise approved by the City's Risk Manager.
D. Coverage Requirements.
1. Workers' Compensation Coverage. Franchisee shall maintain Workers'
Compensation Insurance and one million dollars ($1,000,000) Employer's Liability Insurance for
his or her employees in accordance with the laws of the State of California. Any notice of
cancellation or non -renewal of all Workers' Compensation policies must be received by City at
least thirty (30) calendar days (10 calendar days written notice of non-payment of premium) prior
to such change. The insurer shall agree to waive all rights of subrogation against City, its
officers, agents, employees and volunteers for losses arising from work performed by Franchisee
that relates in any way to this Agreement.
2. General Liability Coverage. Franchisee shall maintain commercial general
liability insurance in an amount not less than one million dollars ($1,000,000) per occurrence for
bodily injury, personal injury, and property damage, including without limitation, contractual
liability. If commercial general liability insurance or other form with a general aggregate limit is
used, either the general aggregate limit shall apply separately to the work to be performed under
this Agreement, or the general aggregate limit shall be at least twice the required occurrence
limit.
3. Automobile Liability Coverage. Franchisee shall maintain automobile
insurance covering bodily injury and property damage for all activities of the Franchisee arising
out of or in connection with work to be performed under this Agreement, including coverage for
any owned, hired, non -owned or rented vehicles, in an amount not less than two million dollars
($2,000,000) combined single limit for each occurrence.
E. Endorsements. Each general liability and automobile liability insurance policy
shall be endorsed with the following specific language:
1. The City, its elected or appointed officers, officials, employees, agents and
volunteers are to be covered as additional insureds with respect to liability arising out of work
performed by or on behalf of the Franchisee.
2. This policy shall be considered primary insurance as respects to City, its
elected or appointed officers, officials, employees, agents and volunteers as respects to all claims,
losses, or liability arising directly or indirectly from the Franchisee's operations or services
provided to City. Any insurance maintained by City, including any self-insured retention City
may have, shall be considered excess insurance only and not contributory with the insurance
provided hereunder.
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3. This insurance shall act for each insured and additional insured as though a
separate policy had been written for each, except with respect to the limits of liability of the
insuring company.
4. The insurer waives all rights of subrogation against City, its elected or
appointed officers, officials, employees, agents and volunteers.
5. Any failure to comply with reporting provisions of the policies shall not
affect coverage provided to City, its elected or appointed officers, officials, employees, agents or
volunteers.
6. The insurance provided by this policy shall not be suspended, voided,
canceled, or reduced in coverage or in limits, by either party except after thirty (30) calendar days
(10 calendar days written notice of non-payment of premium) written notice has been received by
City.
F. Timely Notice of Claims. Franchisee shall give City prompt and timely notice of
claim(s) made or suit instituted arising out of or resulting from Franchisee's performance under
this Agreement.
G. Additional Insurance. Franchisee shall also procure and maintain, at its own cost
and expense, any additional kinds of insurance, which in its own judgment may be necessary for
its proper protection and prosecution of the work.
SECTION 11. RESPONSIBILITY FOR 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
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the services/work under the Franchise and/or this Agreement; and (vi) any breach of the
Franchise and/or this Agreement.
Franchisee shall not be required to indemnify, hold harmless and defend the Indemnified
Parties from the sole negligence, active negligence or willful misconduct of the Indemnified
Parties. Nothing in this indemnity shall be construed as authorizing any award of attorney's fees
in any action on or to enforce the terms of this Agreement. This indemnity shall apply to all
claims and liability regardless of whether any insurance policies are applicable. The policy limits
do not act as a limitation upon the amount of indemnification to be provided by the Franchisee.
C. Hazardous Substances Indemnification. Franchisee shall indemnify the
Indemnified Parties from and against all claims, actual damages including, but not limited to,
special and consequential damages, natural resource damage, punitive damages, injuries, costs,
response, remediation, and removal costs, losses, demands, debts, liens, liabilities, causes of
action, suits, legal or administrative proceedings, interest, fines, charges, penalties and expenses
attorneys' and expert witness fees and costs incurred in connection with defending against any of
the foregoing or in enforcing this indemnity of any kind whatsoever paid, incurred or suffered by,
or asserted against, the Indemnified Parties or Franchisee arising directly or indirectly from or
caused by any of the following: (i) the violation of any Environmental Laws or the failure to clean
up and mitigate the consequences of the spill or release of any Hazardous Substance; and (ii)
Franchisee's activities under this Agreement concerning any Hazardous Substance at any place
where Franchisee stores or disposes of solid or hazardous waste pursuant to this Agreement, or
preceding Agreements between City and Franchisee. The foregoing indemnity is intended to
operate as an agreement pursuant to the Comprehensive Environmental Response, Compensation
and Liability Act 42. U.S.C. Section 9607(e) and any amendments thereto; California Health and
Safety Code Section 25364, to insure, protect, hold harmless, and indemnify City from liability.
As used herein, the term `Environmental Laws" shall mean "any and all present and
future federal, state or local laws (whether common law, statute, rule, regulation or otherwise),
permits, orders and any other requirements of Governmental Authorities relating to the
environment or any "Hazardous Substance" or "Hazardous Substance Activity" (as defined
herein) (including, without limitation, the Comprehensive Environmental Response,
Compensation and Liability Act of 1980 (42 U.S.C. §§ 9601 et seq.) as amended from time to
time and the applicable provisions of the California Health and Safety Code and California Water
Code).
As used herein, the term "Hazardous Substance" shall mean "any (a) chemical,
compound, material, mixture or substance that is now or hereinafter defined or listed in, or
otherwise classified pursuant to any Environmental Law as a "hazardous substance", "hazardous
material," "hazardous waste," "extremely hazardous waste," "infectious waste," "toxic waste,"
"toxic pollutant," or any other formulation intended to define, list or classify substances by
reason of deleterious properties or affect and (b) petroleum, petroleum by-products, natural gas,
natural gas liquids, liquefied natural gas, synthetic gas usable for fuel (or mixtures of natural gas
in such synthetic gas), ash, municipal solid waste, steam, drilling fluids, produced waters and
other wastes associated with the exploration, development and production of crude oil, natural
gas or geothermal resources."
D. AB939 Indemnification. Franchisee agrees to meet all requirements of City's
Source Reduction and Recycling Element as to the portion of the solid waste stream handled by
Franchisee. Franchisee agrees to protect, defend, indemnify, and hold City harmless against all
fines or penalties imposed by the California Integrated Waste Management Board, or other entity,
arising from the failure of Franchisee to meet the Integrated Waste Management Act diversion
requirements with respect to the portion of the commercial waste stream collected by Franchisee.
E. Notice. City agrees to give notice to Franchisee when the City receives a claim
for damages or other liability for which Franchisee has provided indemnification under this
Section.
SECTION 12. COMMERCIAL SOLID WASTE COLLECTION SERVICES
A. Frequency of Collection. Franchisee shall collect all solid waste, including
recyclable materials, as authorized in this Agreement, on a schedule to be agreed upon between
the Franchisee and its customers. The schedule shall provide for collection service at least once
per week; provided, however, that such schedule shall not permit the accumulation of solid waste
in quantities that are unreasonable or detrimental to the public health or safety. Requests for
collection from premises with overflowing bins or containers, or from premises where there have
been missed pickups, shall be serviced within 24 hours of any such request by the customer or
City. If requested by the City at any time, Franchisee's collection schedule shall be submitted to
the City for its approval.
B. Hours and Days of Collections. No collection of solid waste shall occur in any
area of the City after 6:30 p.m. and prior to 5:00 a.m. No collection of solid waste from
commercial premises within 500 feet of occupied residential premises, motels or hotels shall be
made by Franchisee, nor shall any of Franchisee's collection vehicles be operated in any
residential areas of the City except between the hours of 7:00 a.m. and 6:30 p.m., Monday
through Friday, nor on any Saturday or Sunday, except between the hours of 8:00 a.m. and 6:00
p.m. Collection on Sundays shall be limited to the disposal of commercial waste from
commercial premises which require collection every day due to public health and safety
concerns.
SECTION 13. VEHICLES AND EQUIPMENT
A. Any and all containers provided to customers of Franchisee for storage, collection
or transportation of commercial solid wastes shall meet the requirements designated by the
General Services Director as well as State of California minimum standards for solid waste
handling established under Public Resources Code Section 43020 and applicable health
requirements.
B. All containers and all vehicles used by Franchisee in the performance of
commercial solid waste handling services shall be marked with Franchisee's name and telephone
number in letters which are not less than four inches (4") high or which are easily read by the
general public.
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C. Equipment.
1. Franchisee shall, at all times, provide such number of vehicles and such
equipment as will be adequate for the collection, transportation and disposal services which it is
authorized to provide under this Agreement. All vehicles utilized by Franchisee in the
performance of this Agreement shall be registered with the California Department of Motor
Vehicles. All vehicles must pass the required periodic "BIT" inspection and Franchisee shall
provide evidence of such to the General Services Department as requested. Upon request by the
City, Franchisee shall provide records from the most recent California Highway Patrol biennial
inspection of the terminal(s) responsible for the maintenance and repair of equipment used in the
City. All vehicles shall be properly maintained, kept clean and in good repair, and shall be
uniformly painted. All commercial solid waste containers used in the performance of this
Agreement shall be kept clean and in good repair and shall be uniformly painted to the
satisfaction of the General Services Director. All vehicles and equipment used by Franchisee in
the performance of this Agreement may be subject to inspection by the City upon twenty-four
(24) hours notice by the General Services Director. All drivers employed by Franchisee and
operating equipment in the City shall be properly licensed for the class of vehicle they drive,
enrolled in the Department of Motor Vehicles Employee Pull Notice (EPN) program, and abide
by all State and federal regulations for driver hours and alcohol and controlled substances testing.
2. Each vehicle shall be so constructed and used in a manner so that no
rubbish, garbage, debris, oil, grease or other material will blow, fall, or leak out of the vehicle.
All solid waste shall be transported by means of vehicles which are covered in such a manner as
to securely contain all solid waste and to prevent such solid waste from projecting, blowing,
falling or leaking out of the vehicles. Any solid waste dropped or spilled in collection, transfer or
transportation shall be immediately cleaned up by Franchisee. A broom and a shovel shall be
carried at all times on each vehicle for this purpose. In addition, each collection vehicle shall be
equipped with trash bags, masking tape and notice of non -collection tags for the purpose of
separating hazardous waste for return to the generator. A communications device such as a two-
way radio or a cellular telephone shall also be maintained on each vehicle at all times.
3. Franchisee shall not store any vehicle or equipment on any public street,
public right-of-way or other public property in the City of Newport Beach without obtaining a
Temporary Street Closure Permit from the Public Works Department and prior written consent of
the General Services Director.
4. Should the General Services Director at any time give written notification
to Franchisee that any vehicle does not comply with the standards hereunder, the vehicle shall be
promptly removed from service by Franchisee and not used again until inspected and authorized
in writing by the General Services Director.
5. Placement of containers and equipment shall be in accordance with the
standards set by the Director of Public Works and in accordance with the standards set forth in
Exhibit A which is incorporated herein by this reference. Any deviation from the standards set
by the Director of Public Works or the standards set forth in Exhibit A shall require written
approval from the Public Works Director.
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SECTION 14. ABANDONED CONTAINERS
A. If Franchisee abandons any commercial solid waste container within the City of
Newport Beach, the City may remove the container and/or dispose of the contents of the
container.
B. If City is required to remove a roll -off or compactor container abandoned by
Franchisee and/or disposes of the contents of any container abandoned by Franchisee, City may
charge Franchisee for City's costs incurred in such removal/disposal and for City's costs of
storage of the container. Franchisees who are engaged in providing roll -off containers shall
maintain a Five Thousand Dollars and No Cents ($5,000.00) cash deposit with City Revenue
Division to reimburse City for such costs within ten (10) days of the date of City's invoice for
such costs.
C. For the purposes of this Section, "abandoned" includes:
1. Franchisee's failure to remove the container within the time period
specified by the City Council upon termination of the Franchise pursuant to Section 12.63.140 of
the Code;
2. Franchisee's failure to remove the container within ten (10) working days
after the expiration of the Franchise granted to Franchisee, except in the case where Franchisee
has been granted an extension of the term of said Franchise or Franchisee has been granted a
subsequent franchise authorizing Franchisee to collect and transport the type or types of solid
waste for which the container was used pursuant to this Agreement.
3. Franchisee's failure to collect the container and dispose of the contents of
the container within five (5) calendar days after City's Director of General Services issues
written notice to Franchisee to dispose of the contents.
SECTION 15. COMPLIANCE WITH LAW
A. Franchisee shall perform all commercial solid waste handling services in
accordance with applicable federal, state, and local law, including Chapter 12.63 of the Code,
Article XIII of the City Charter, Ordinance No. 2001-__-3_ 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
r"l r
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, staring 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
(0'�' r
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: CR&R INCORPORATED
11292 WESTERN AVE.
P.O. BOX 125
STANTON, CA 90680
(714) 826-9049
Notice shall be deemed effective on the date personally served or, if mailed, three
(3) days after the date deposited in the mails.
B. Integrated ted Agreement. This Agreement represents the full and complete understanding
of every kind or nature whatsoever between the City and Franchisee, and all preliminary
negotiations and other agreements of any kind or nature are merged herein. No verbal agreement
or implied covenant shall be held to vary the provisions herein.
C. Amendments. This Agreement supersedes all prior agreements and
understandings between the parties and may not be modified or terminated orally, and no
modification, termination or attempted waiver of any of the provisions hereof shall be binding
unless in writing and signed by the party against whom the same is sought to be enforced.
D. Applicable Law. The laws of the State of California, and applicable Federal law,
shall govern this Agreement and all matters relating to it and any action brought relating to this
Agreement shall be adjudicated in a court of competent jurisdiction in the County of Orange.
E. Authori . The parties signing below represent and warrant that they have the
requisite authority to bind the entities on whose behalf they are signing.
F. 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.
i[9
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 maybe 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
r
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed on the day
and year first written above.
ATTEST:
T AXff)XTXTVAif UA1?VTFC4Q
titucvrN %.. ntvrcr
Assistant City Attorney
W-1
"CITY"
CITY OF NEWPORT BEACH, a Municipal
Corporation
BY:
STEVEN ROS S Y,
Mayor
NAME: David Ronnenberg
(Print)
TITLE: President
DATE: March 14, 2007
CR&R INCORPORATED
BY:
NAME: George Lazaruk
(Print)
TITLE: Vice President
DATE:
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, `CR&R Incorporated 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: Mar. 30, 07 CR&R Incorporated
FRANCHISE
BY:
07
NAME: George Lazaruk
Vice President
(949) 463-5805
CITY CLERKS'S VERIFICATION OF ACCEPTANCE
I, LaVonne M. Harkless City Clerk certify that the above acceptance of Franch' was
received by me on -�(i / 2007, at �' 3O , a.m
Z�17� CLERK
FRANCHISE EXTENSION AGREEMENT
BETWEEN
THE CITY OF NEWPORT BEACH AND CR&R, INC.
This Franchise Extension Agreement is entered into between the City of Newport Beach ("City') and
CR&R, Inc. ("CR&R") this 13`h day of December, 2005, with regards to the following facts:
RECITALS
WHEREAS, by approving Ordinance No. 95-64 on or about November 27, 1995, the City granted
CR&R's predecessor in interest Orco Disposal Services a non-exclusive franchise to provide solid
waste collection services ("Franchise') and entered into a solid waste franchise agreement ("Franchise
Agreement") with CR&R's predecessor in interest Orco Disposal Services. The Franchise and
Franchise Agreement will expire on January 1, 2006; and
WHEREAS, City and CR&R desire to extend the Franchise and Franchise Agreement until March 1,
2007 to allow for additional time for negotiations to consider the renewal of the Franchise and
Franchise Agreement.
NOW THEREFORE, the Parties agree as follows:
The Franchise and Franchise Agreement shall be extended to March 1, 2007. During said
extension, the terms and conditions of the current Franchise and Franchise Agreement shall
remain in full force and effect without modification.
Nothing herein shall be deemed or construed as a waiver, release or surrender of any right that
either party may have under any applicable law. Nothing herein shall waive, release or
otherwise relieve CR&R 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 CR&R 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, CR&R, INC.
A Muni ipal Corporation A California Corporation
omer Bludau, O y Manager Name:
Title: y�
APPROVED AS TO FORM:
�—
Aaron C. Harp,
Assistant City Attorney
By: _
Name:
Title:
ATTEST:
By�
LaVonne Harkless,
City Clerk
[END SIGNATURES]
RESOLUTION NO. 98- 78
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF NEWPORT
BEACH TERMINATING THE COMMERCIAL SOLID WASTE COLLECTION
FRANCHISE AGREEMENT BETWEEN THE CITY OF NEWPORT BEACH
AND HAUL AWAY CONTAINERS AND ASSIGNING THE COMMERCIAL
SOLID WASTE FRANCHISE AGREEMENT BETWEEN THE CITY OF
NEWPORT BEACH AND ORCO DISPOSAL TO CR&R, INC.tj
WHEREAS, on January 2, 1996, the City of Newport Beach entered into two (2)
Franchise Agreements for commercial solid waste collection services. The first was issued to
Haul Away Containers ("Haul Away"), which was a Doing Business As (dba) of CR&R,
Incorporated ("CR&R"). The second was issued to Orco Disposal ("Orco") which was also a
dba of CR&R, Incorporated. Since 1996, Haul Away and Orco have operated separately within
the City of Newport Beach; and
WHEREAS, the City was notified that Haul Away and Orco are no longer operating
separately within the City of Newport Beach, and that all Haul Away and Orco operations have
been transferred to, and are now operating as CR&R; and
WHEREAS, CR&R has requested that the City consolidate the Haul Away and Orco
Franchise Agreements into one agreement issued to CR&R. CR&R agrees to assume all of the
conditions and responsibilities of the Franchise Agreements; and
WHEREAS, the City Council has been presented with an agreement to terminate the
Haul Away Franchise Agreement; and
WHEREAS, the City Council has also been presented with an agreement to assign the
Orco Franchise Agreement to CR&R.
NOW THEREFORE, the City Council resolves as follows:
1. The City Council hereby approves the termination of the Franchise Agreement
with Haul Away Containers. The Agreement to Surrender the Commercial Solid Waste
Collection Franchise Agreement Between the City of Newport Beach and Haul Away Containers
attached hereto as Exhibit "A", is hereby approved and the City Manager is authorized to execute
the Agreement as written.
FAUse.\GSV\MEldHdge\NOV Eh1UER MCouncil-CR &RAssignmt.doc
r
2. The City Council hereby approves the assignment of the Orco Disposal Franchise
to CR&R. The Agreement to Assign the Orco Disposal Solid Waste Franchise Agreement to
CR&R attached hereto as Exhibit "B is hereby approved and the City Manager is authorized to
execute the Assignment as written.
ADOPTED this 14tWay of December
Dated: December 15, 1998
ATTEST
LaVonne Harkless, City Clerk
M
1993.
"CITY"
CITY OF WPORT BEACH,
a Muni ' 1 Corporation
Mayor
FdUsemOSVIk[Eldddgc`NO V EYIEER 93TOU1161-CR.@ R.assig.Lduc
EXHIBIT "A"
AGREEMENT TO SURRENDER
COMMERCIAL SOLID WASTE COLLECTION FRANCHISE AGREEMENT
BETWEEN THE CITY OF NEWPORT BEACH AND HAUL AWAY CONTAINERS
This Agreement is entered into on this day, thelyif\ day of -)/;, ; r,n h-, , 1998 and
executed by and between the CITY OF NEWPORT BEACH, a municipal corporation ("CITY"),
and CR&R Incorporated ("CR&R), dba Haul Away Containers ("FRANCHISEE").
RECITALS
Pursuant to City Ordinance No. 95-63, CITY and FRANCHISEE entered into a
Commercial Solid Waste Collection Franchise Agreement dated January 2, 1996
("AGREEMENT").
On September 29, 1998, CITY was notified that FRANCHISEE is no longer conducting
business as Haul Away Containers and is operating solely as CR&R Incorporated effective
immediately.
NOW THEREFORE, CITY and FRANCHISEE agree as follows:
1. The AGREEMENT is hereby terminated effective September 30, 1998 and shall
be of no further force and effect.
2. By signing this agreement, FRANCHISEE agrees to surrender all rights to do
business as Haul Away containers to operate commercial solid waste collection services within
the City limits.
3. CR&R shall be liable for payment to the CITY of all applicable fees associated with
FRANCHISEE's performance of solid waste collection services performed during the term of
the AGREEMENT through October 31, 1998 including but not limited to the following:
a. Current and outstanding Franchise Fees
b. All applicable charges associated with late payment of Franchise Fees
pursuant to Section 4 of the AGREEMENT
c. All applicable charges associated with report delinquencies pursuant to
Section 6 of the AGREEMENT.
4. FRANCHISEE agrees to submit any outstanding Disposal Reports per Section 6 of
the AGREEMENT including a Quarterly Disposal Report for third quarter activity performed
from July 1998 through September 1998.
5. FRANCHISEE agrees that it has removed, or will remove within fifteen days after
City Council approval of this agreement all Haul Away equipment from FRANCHISEE's
service locations in the City limits.
F:\Users\GS V\MEldridge\OCTOBER 98\Counci1-CR&RAssignm[.doc
6. FRANCHISEE agrees that it will obtain a new franchise agreement with the CITY
prior to initiating future solid waste collection services as Haul Away Containers within the
City limits.
WITNESS THE EXECUTION OF THIS AGREEMENT ON THE DATE
WRITTEN BELOW EACH SIGNATURE:
I
Dated: /
ATTEST
LaVonne Harkless
City Clerk
APPROVED AS TO FORM:
a-4 -
Robin L. Clauson
Assistant City Attorney
F:\Uscm\GSV\MEldddge\OCTOBER 98\Council-CR&RAssignmt.duc
"CITY"
CITY OF NEWPORT BEACH,
a Municipal Corp tion
By:
enriis Danner
Interim City Manager
"FRANCHISEE"
CR&R Inc orated
dba Haul Away ainers
By:XE7 --
Names: OA�Ad 1=.
Tltle: O. �'i s io n Prmsi dem �i-
Date:— '11ir 19e
EXHIBIT "B"
ASSIGNMENT OF SOLID WASTE FRANCHISE AGREEMENT
This Assignment is made and entered into this J `l fh day of 'Ic e P i;.> '1998 by and between the
City of Newport Beach, a municipal corporation, hereinafter referred to as "City" and CR&R
Incorporated ("CR&R"), dba Orco Disposal , hereinafter referred to as the "Franchisee."
RECITALS
A. On January 2, 1996 Orco Disposal entered into a Franchise Agreement for commercial
solid waste collection services with the City of Newport Beach ("Agreement'); and
B. Franchisee has ceased operations as Orco Disposal and all solid waste collection fimctions
are now operating under CR&R.
C. Section 18 of the Agreement provides that Franchisee may not assign, sell or transfer its
authority to perform any portion of the solid waste collection services under the Agreement
without prior express written consent of the City Council
D. Franchisee desires to obtain City Council approval of the assignment of the Agreement to
CR&R Incorporated.
NOW THEREFORE, it is mutually agreed by and between the undersigned parties as
follows:
Assignment
City hereby consents to the assignment of the Agreement from Orco Disposal to
CR&R Incorporated.
2. Conditions of Assignment
CR&R Incorporated agrees to the following conditions of assignment:
(a) All terms and conditions of the Agreement shall remain in full force and
effect and the full and complete obligation of CR&R Incorporated. CR&R
agrees to fully comply with all terms and conditions of the Agreement.
(b) CR&R agrees that all solid waste collected by CR&R will be disposed of per
the provisions of the Agreement at a location identified by City, which is
currently any Orange County landfill.
(c) CR&R agrees that the Agreement shall terminate on December 31, 2005 and
no extension of the Agreement is granted by this Assignment.
FXsve\GSV\MEldridge\OCTOBER 98\Coun61-CR&RAss1gnmWoc
(d) CR&R shall pay to City any and all deficient franchise fees, or other fees or
obligations incurred by Orco Disposal under the Agreement.
IN WITNESS WHEREOF, the parties hereto have executed this Assignment.
Dated: l - l _) cr
ATTEST:
LaVonne Harkless
City Clerk
APPROVED AS TO FORM:
By: 0'��
Robin L. Clauson
Assistant City Attorney
F:-Cat\Shared\Resolution\SolidWasteHaulers\HaulAway\Resolution 100698.doc
F: Users\GSVWEldridge\OCTOBER 98\Council-CR&RAssignmt.doc
CITY OF NEWPORT BEACH,
A Municipal Corporation
Dermis Danner
Interim City Manager
CR&R, Incorporated
By:
Name: Df}vid
Title: p;vision Pr-asidmnt
STATE OF CALIFORNIA }
COUNTY OF ORANGE } ss.
CITY OF NEWPORT BEACH }
I, LAVONNE M. HARKLESS, City Clerk of the City of Newport Beach, California, do
hereby certify that the whole number of members of the City Council is seven; that the foregoing
resolution, being Resolution No. 98-78, was duly and regularly introduced before and adopted by the
City Council of said City at a regular meeting of said Council, duly and regularly held on the 14th day
of December, 1998, and that the same was so passed and adopted by the following vote, to wit:
Ayes: Adams, Glover, Thomson, Debay, Ridgeway, Noyes, Mayor O'Neil
Noes: None
Absent: None
Abstain: None
IN WITNESS WHEREOF, I have hereunto subscribed my name and affixed the
official seal of said City this 15th day of December, 1998.
(Seal)
City Clerk of the City of
Newport Beach, California