DATE:
March 7, 2023
TO:
Mayor and Council Members
FROM:
Nils Bentsen, City Manager
BY:
Rachel Molina, Assistant City Manager
Tammy Pelayes, Assistant to the City Manager
Lesa Byars, Management Analyst
SUBJECT:
Amendment to Advance Disposal Franchise Agreement Establishing Procurement and Capacity Planning
RECOMMENDED ACTION
It is recommended that the City Council authorize the City Manager to execute an amendment, in a form approved by the City Attorney, to add Section 6.5.4 and Section 8 in addition to language to establish the capacity planning of the Bestway Disposal, Inc., dba Advance Disposal (Advance Disposal) Franchise Agreement.
BACKGROUND
On April 20, 2000, the City and Advance Disposal agreed upon the original “Agreement and Exclusive Permit for the Collection and Disposal of Solid Waste” (the “Franchise Agreement”) for the collection, transportation, disposal, and recycling of residential, industrial, and commercial waste.
On February 21, 2012, the City Council approved an Amended and Restated Exclusive Franchise Agreement with Advance Disposal. The Amendment of 2012 was drafted in accordance with the provisions of Assembly Bill 939 (AB 939), the California Integrated Waste Management Act of 1989 which required each California County and City to reduce landfill waste by 25% in 1995 and 50% by 2000.
On October 18, 2016, the City Council approved an Amendment No. 1 to the Amended and Restated Exclusive Franchise Agreement with Advance Disposal. The Amendment of 2016 amended the Franchise Agreement to change the service start time of certain commercial businesses.
On October 19, 2021, the City Council approved an Amendment No. 2 to the Amended and Restated Exclusive Franchise Agreement with Advance Disposal. The Amendment of 2021 was to incorporate the Hesperia Environmental Assistance Response Team (HEART) Program that would take a proactive approach to mitigating the perpetual illegal dumping issue that plagues much of the high desert.
Since the previous Amendment to Advance Disposal Franchise Agreement, there have been several additional environmental bills approved by the California legislature which further impact the way local agencies manage solid waste and recycling. Assembly Bill 32 (AB 32), global Warming Solutions, Assembly Bill 341 (AB 341), Mandatory Commercial Recycling, and Assembly Bill 1826 (AB 1826), Mandatory Commercial Organics, establishing statewide methane emissions goals. Senate Bill 1383 expands upon the goals of the forementioned.
Senate Bill 1383 (SB 1383) was signed into California law in 2016, establishing statewide methane emission reduction goals. Methane emission resulting from the decomposition of organic waste in landfills are a significant source of greenhouse gas (GHG) emissions contributing to global climate change. To reduce organic waste in landfills, SB 1383 has two main goals. The first being to reduce the amount of organic material disposed in landfills by 75% by 2025. The second being to donate 20% of edible food to organizations who help feed people in need.
ISSUES/ANALYSIS
The amendment to the Amended and Restated Exclusive Franchise Agreement for Provision of Solid Waste Handling Services is necessary to determine and finalize the requirements, provisions, and responsibilities of the City of Hesperia and Advance Disposal in facilitating SB 1383 regulations.
The amended Franchise Agreement between the City of Hesperia and Advance Disposal addresses items such as Compliance with Organic Waste Reporting; Procurement; and Capacity Planning. The Amended Agreement includes both proactive and reactive measures to address issues within City boundaries and is included in Attachment 2; changes are reflected in blue. Key points as well as new provisions not included in the previous Franchise Agreement:
6.5.f - expands the compliance to include collecting, maintaining and providing the City with all records and information necessary to respond to requests from San Bernardino County regarding the amount of organic waste recycling.
6.5.3.e – adds wording that neither party intends that a change in the collection program shall result in Franchisee suffering losses outside the commercially reasonable expectations of the parties, and each has an obligation to the other to act reasonably and to cooperate in arriving at an appropriate Rate adjustment subject to a Prop 218 hearing. Additionally, if needed, the City may elect to terminate the Franchise Agreement with 180 days written notice to prevent the City from incurring fees or other penalties from CalRecycle.
6.5.4 is the addition of Procurement. Beginning in calendar year 2022, Franchisee shall annually procure a quantity of recovered organic waste products sufficient to meet or exceed City’s annual organic waste procurement target. Advance Disposal shall also take any additional actions necessary to ensure that City received credit for Franchisee’s procurement activities for purposes of compliance with State Organics Laws.
Franchisee’s indemnification obligation refers to capacity planning for the annual mixed waste organic content recovery rate.
Section 8 is the addition of Due Execution. The general overview is referencing the person executing this amendment is authorized to do so.
FISCAL IMPACT
There are no fiscal impacts associated with the recommended actions.
ALTERNATIVE(S)
Provide alternative direction to staff.
ATTACHMENTS:
Resolution No. 2023-13
Amendment No. 3 to Amended and Restated Exclusive Franchise Agreement City of Hesperia STAFF REPORT City of Hesperia STAFF REPORT City of Hesperia
STAFF REPORT
City of Hesperia
STAFF REPORT
Staff Report to the Mayor and Council Members
Franchise Agreement Amendment
March 7, 2023