HomeMy WebLinkAbout2020-14 - Terminating those Certain 2017 Non-Exclusive Franchise Agreements for Commercial Solid Waste and Divertible Materials Handling Services within the City of Newport BeachORDINANCE NO. 2020-14
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF
NEWPORT BEACH, CALIFORNIA, TERMINATING THOSE
CERTAIN 2017 NON-EXCLUSIVE FRANCHISE
AGREEMENTS FOR COMMERCIAL SOLID WASTE AND
DIVERTIBLE MATERIALS HANDLING SERVICES WITHIN
THE CITY OF NEWPORT BEACH
WHEREAS, pursuant to Article XIII (Franchises) of the Charter of the City of
Newport Beach ("City Charter"), Chapter 12.63 (Solid Waste Management) of the
Newport Beach Municipal Code ("NBMC"), and California Public Resources Code
Sections 40059, 49300, and 49500 through 49523, the City is authorized to enter into
non-exclusive franchise agreements for Commercial Franchise Services with private solid
waste haulers;
WHEREAS, in 2017, the City Council adopted a model non-exclusive commercial
solid waste franchise agreement for private solid waste haulers and, thereafter, entered
into franchise agreements with several commercial solid waste franchise haulers ("2017
Franchise"), effective through November 8, 2024;
WHEREAS, Section 18.C.4 of the 2017 Franchise requires a collision avoidance
system that can detect adjacent pedestrians and bicyclists be installed on the vehicles by
January 1, 2019;
WHEREAS, Section 9 of the 2017 Franchise requires each franchisee to obtain
and maintain policies of insurance of the types and amounts determined by the City and
allows for the City to modify the types and amounts of insurance by providing the
franchisee with ninety (90) days advance written notice of the change;
WHEREAS, on or about September 20, 2019, the City provided ninety (90) days
advance written notice to all franchisees regarding a change to the insurance
requirements set forth in the 2017 Franchise, along with a notification that the franchisees
had not adhered to Section 18.C.4 of the 2017 Franchise by providing proof of compliance
with the auto collision avoidance system installation requirement;
WHEREAS, on or about January 30, 2019, the City provided a second written
notice to franchisees in default under Sections 9 and 18.C.4 of the 2017 Franchise,
requesting that all documentation be received by February 10, 2020, and informing the
franchisees that failure to comply would result in City staff initiating the process for the
City Council to consider terminating their respective 2017 Franchise,
Ordinance No. 2020-14
Page 2 of 4
WHEREAS, some franchisees have not complied with either Sections 9 and/or
18.C.4, and City staff is recommending to the City Council that it terminate these
franchisees' 2017 Franchise;
WHEREAS, Section 23(B) of the 2017 Franchise authorizes termination by the
City if the franchisee has defaulted in the performance of any obligation;
WHEREAS, NBMC Section 12.63.140(D) provides that the City Council shall have
the right to terminate the 2017 Franchise if the City Council finds, after notice and a
hearing, that a franchisee has violated any provision of the franchise agreement;
WHEREAS, NBMC Section 12.63.140(B) provides that a notice of intent to
terminate a nonexclusive franchise shall be mailed to the franchisee, stating the grounds
for termination, and shall give the franchisee notice of the time, date and place of a
hearing before the City Council, which shall be convened not less than fifteen (15) days
and no more than sixty (60) days after the date of the notice, subject to a continuance
with the consent of the parties;
WHEREAS, on or about April 7, 2020, the City provided franchisees in default of
Sections 9 and/or 18.C.4 written notice that on April 28, 2020 at 7:00 pm in the Newport
Beach City Council Chambers located at 100 Civic Center Drive, Newport Beach, CA
92660, the City Council of the City of Newport Beach will consider termination of the 2017
Franchise Agreement for the violations set forth in the notice;
WHEREAS, at the April 28, 2020 City Council meeting, the City Council continued
the public hearing to May 12, 2020. A notice of time, place and purpose of the public
hearing was given in accordance with the Government Code Section 54950 et seq.
("Ralph M. Brown Act") and by publication in accordance with Charter Section 1301;
WHEREAS, the continued public hearing was held telephonically due to the
Declaration of a State of Emergency and Proclamation of Local Emergency related to
COVID-19 on May 12, 2020, in the Council Chambers located at 100 Civic Center Drive,
Newport Beach, CA. A notice of time, place and purpose of the continued public hearing
was given in accordance with the Government Code Section 54950 et seq. ("Ralph M.
Brown Act"). Evidence, both written and oral, was presented to, and considered by, the
City Council at this public hearing; and
WHEREAS, having considered all oral and documentary evidence presented at
the public hearing, the City Council determines that the franchisees in violation of
Sections 9 and/or 18.C.4 of the 2017 Franchise shall be terminated.
Ordinance No. 2020-14
Page 3 of 4
NOW THEREFORE, the City Council of the City of Newport Beach ordains as
follows:
Section 1: The 2017 Franchise held with each entity listed below is hereby
terminated based on noncompliance with providing proof of the installation of an auto
collision avoidance system pursuant to Section 18.C.4 of the 2017 Franchise:
a. CAF Services, Inc.;
b. Genesis Dispatch, Inc.;
c. Goodwin Enterprises, Inc.;
d. Praisler Hauling & Demolition, Inc.; and
e. S Jade Corporation.
Section 2: The 2017 Franchise held with each entity listed below is hereby
terminated for noncompliance with providing proof of insurance pursuant to Section 9 of
the 2017 Franchise and noncompliance with providing proof of the installation of an auto
collision avoidance system pursuant to Section 18.C.4 of the 2017 Franchise:
a. A2Z Recycling Services Inc.;
b. G.B. Services, Inc.;
c. RB Holt Inc.; and
d. Skyline Construction Services DBA SCOR Industries.
Section 3: The City Council of the City of Newport Beach finds that this
ordinance is not a project subject to the California Environmental Quality Act ("CEQA") in
accordance with Sections 15060(c)(2), 15060(c)(3), 15061(b)(3) and 15308 of the
California Code of Regulations Title 14, Division 6, Chapter 3. The City Council further
finds that adoption of this ordinance is categorically exempt under Section 15321, which
exempts enforcement actions by regulatory agencies. Application of Section 15321 is
appropriate because the franchisees set forth above have not complied with the terms of
the 2017 Franchise.
Section 4: The recitals provided above are true and correct and are
incorporated into the substantive portion of this ordinance.
Ordinance No. 2020-14
Page 4 of 4
Section 5: If any section, subsection, sentence, clause or phrase of this
ordinance is, for any reason, held to be invalid or unconstitutional, such decision shall not
affect the validity or constitutionality of the remaining portions of this ordinance. The City
Council hereby declares that it would have passed this ordinance, and each section,
subsection, sentence, clause or phrase thereof, irrespective of the fact that any one or
more sections, subsections, sentences, clauses, or phrases be declared invalid or
unconstitutional.
Section 6: The Mayor shall sign and the City Clerk shall attest to the passage
of this ordinance. The City Clerk shall cause this ordinance, or a summary thereof, to be
published pursuant to City Charter Section 414. This ordinance shall be effective thirty
(30) calendar days after its adoption.
This ordinance was introduced at a regular meeting of the City Council of the City
of Newport Beach, held on the 12th day of May, 2020, and adopted on the 26th day of
May, 2020, by the following vote to -wit:
AYES: Mayor O'Neill, Mayor Pro Tem Avery, Council Member Brenner, Council
Member Dixon, Council Member Duffield, Council Member Herdman
Council Member Muldoon
NAYS:
ABSENT:
ATTES
LEILANI I. BROWN, CITY CLERK
WILL O'NEILL, MAYOR
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NEW
APPROVED AS TO FORM: ��<;;°f' *~�P
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CITY ATTORNEY'S OFFICE
,_ C. /(,.,
AARON C. HARP, ciV ATTORNEY
STATE OF CALIFORNIA }
COUNTY OF ORANGE } ss.
CITY OF NEWPORT BEACH }
I, Leilani I. Brown, City Clerk of the City of Newport Beach, California, do hereby certify that the
whole number of members of the City Council is seven; that the foregoing ordinance, being Ordinance
No. 2020-14 was duly introduced on the 12th day of May, 2020, at a regular meeting, and adopted by the
City Council at a regular meeting duly held on the 26th day of May, 2020, and that the same was so
passed and adopted by the following vote, to wit:
AYES: Mayor Will O'Neill, Mayor Pro Tem Brad Avery, Council Member Joy Brenner, Council
Member Diane Dixon, Council Member Duffy Duffield, Council Member Jeff Herdman,
Council Member Kevin Muldoon
NAYS: None
IN WITNESS WHEREOF, I have hereunto subscribed my name and affixed the official seal of
said City this 27th day of May, 2020.
STATE OF CALIFORNIA }
COUNTY OF ORANGE }
CITY OF NEWPORT BEACH }
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Leilani I. Brown, MMC
City Clerk
City of Newport Beach, California
CERTIFICATE OF PUBLICATION
ss.
I, LEILANI I. BROWN, City Clerk of the City of Newport Beach, California, do hereby certify that
Ordinance No. 2020-14 has been duly and regularly published according to law and the order of the City
Council of said City and that same was so published in The Daily Pilot, a newspaper of general circulation
on the following dates:
Introduced Ordinance: May 16, 2020
Adopted Ordinance: May 30, 2020
In witness whereof, I have hereunto subscribed my name this Nday ofjrUO
2020.
n
Leilani I. Brown, MMC
City Clerk
City of Newport Beach, California