JOE STAPLETON, Mayor
LAUREN KLEIMAN, Mayor Pro Tem
MICHELLE BARTO, Councilmember
ROBYN GRANT, Councilmember
NOAH BLOM, Councilmember
SARA J. WEBER, Councilmember
ERIK WEIGAND, Councilmember
GRACE LEUNG, City Manager
AARON C. HARP, City Attorney
LEILANI BROWN , City Clerk
CITY OF NEWPORT BEACH
CITY COUNCIL AGENDA
COUNCIL CHAMBERS - 100 CIVIC CENTER DRIVE, NEWPORT BEACH, CA 92660 CLOSED SESSION - 4:00 P.M.
REGULAR MEETING - 5:00 P.M.
JANUARY 28, 2025
NOTICE REGARDING PRESENTATIONS REQUIRING USE OF CITY EQUIPMENT Any presentation requiring the use of the City of Newport Beach ’s equipment must be submitted to the City Clerk 24 hours prior to the scheduled City Council meeting.
LEVINE ACT
Under the Levine Act, Section 84308 of the Government Code, a party to a proceeding before the City involving a contract (other than competitively bid, labor, or personal employment contracts ), franchise, license, permit, or other entitlement for use, is required to disclose on the record of the proceeding any contribution in an amount of more than five hundred dollars ($500) made within the preceding 12 months by the party or the party ’s agent to any elected or appointed officer of the City. If you have made a qualifying contribution, please ensure to make this disclosure on the record.
PUBLIC HEARINGS
If in the future, you wish to challenge in court any of the matters on this agenda for which a public hearing is to be conducted, you may be limited to raising only those issues which you (or someone else) raised orally at the public hearing or in written correspondence received by the City at or before the hearing.
NOTICE TO THE PUBLIC
Any times listed in this agenda are provided as a courtesy and the actual item may be heard before or after the time given.
This agenda was prepared by the City Clerk. Copies of the staff reports and supporting materials are on file with the City Clerk and are available for public inspection and copying at the City Clerk ’s Office or online at newportbeachca.gov/agendas. For questions or to request copies of any staff reports or other documentation related to items on this agenda, please contact the City Clerk’s Office at 949-644-3005.
The City of Newport Beach ’s goal is to fully comply with the Americans with Disabilities Act (ADA). If you require special assistance to participate in this meeting, we will attempt to accommodate you in every reasonable manner .
Please contact City Clerk staff prior to the meeting at 949-644-3005 or cityclerk@newportbeachca .gov so that reasonable accommodations can be made. 1
January 28, 2025
City Council Meeting
I. ROLL CALL - 4:00 p.m.
II. PUBLIC COMMENTS ON AGENDA AND NON-AGENDA ITEMS
The City Council of Newport Beach welcomes and encourages community participation .
Public comments are invited on items listed on the agenda and non -agenda items .
Speakers must limit comments to three minutes per person to allow everyone to speak .
Written comments are encouraged as well. The City Council has the discretion to extend or shorten the time limit on agenda or non-agenda items.
III. CLOSED SESSION - Council Chambers Conference Room
CONFERENCE WITH REAL PROPERTY NEGOTIATORS
(Government Code § 54956.8): 1 matter
A.
Property: 3848 Campus Drive, Newport Beach, CA 92660 (Assessor Parcel Number 427-151-08).
City Negotiators: Seimone Jurjis, Assistant City Manager, and Lauren Whitlinger, Real Property Administrator.
Negotiating Parties : John Saunders and Robert McDonald on behalf of 3848 Campus Drive LP.
Under Negotiation: Instruction to City Negotiators regarding price and terms of payment.
CONFERENCE WITH LABOR NEGOTIATORS
(Government Code § 54957.6): 1 matter
B.
Agency Designated Representatives: Grace K. Leung, City Manager, Barbara Salvini, Human Resources Director, and Jonathan Holtzman, Esq., Negotiators.
Employee Organizations: Association of Newport Beach Ocean Lifeguards (ANBOL); Newport Beach City Employees Association (NBCEA); Newport Beach Employees League (NBEL); Newport Beach Firefighters Association (NBFA); Newport Beach Fire Management Association (NBFMA); Newport Beach Lifeguard Management Association (NBLMA); Newport Beach Police Association (NBPA); Newport Beach Police Management Association (NBPMA); Newport Beach Professional and Technical Employees Association (NBPTEA); and Part Time Employees Association of Newport Beach (PTEANB).
IV. RECESS
2 January 28, 2025
City Council Meeting
V. RECONVENE AT 5:00 P.M. FOR REGULAR MEETING
VI. ROLL CALL
VII. CLOSED SESSION REPORT
VIII. INVOCATION - Reverend Ray Jordan, Corona del Mar Community Church IX. PLEDGE OF ALLEGIANCE
X. PRESENTATIONS
Proclamation to the Trauma Intervention Program (TIP) of Orange County• History of Corona del Mar by Paul Wormser•
XI. NOTICE TO THE PUBLIC
The City Council of Newport Beach welcomes and encourages community participation .
Public comments are generally limited to three minutes per person to allow everyone to speak. Written comments are encouraged as well. The City Council has the discretion to extend or shorten the time limit on agenda or non-agenda items.
XII. CITY COUNCIL ANNOUNCEMENTS AND ORAL REPORTS FROM CITY COUNCIL
ON COMMITTEE ACTIVITIES
XIII. MATTERS WHICH COUNCILMEMBERS HAVE ASKED TO BE PLACED ON A
FUTURE AGENDA (NON-DISCUSSION ITEM)
Consider creating an ad hoc committee to review applications for the public service programs funded by Community Development Block Grant (CDBG) on an annual basis [Kleiman and Weber]
•
XIV. PUBLIC COMMENTS ON CONSENT CALENDAR
This is the time in which Councilmembers may pull items from the CONSENT CALENDAR for discussion (ITEMS 1 - 16). Public comments are also invited on Consent Calendar items. Speakers must limit comments to three minutes. Before speaking, please state your name for the record. If any item is removed from the Consent Calendar by a Councilmember, members of the public are invited to speak on each item for up to three minutes per item.
All matters listed under CONSENT CALENDAR are considered to be routine and will all be enacted by one motion in the form listed below. Councilmembers have received detailed staff reports on each of the items recommending an action. There will be no separate discussion of these items prior to the time the City Council votes on the motion unless members of the City Council request specific items to be discussed and /or removed from the Consent Calendar for separate action.
3 January 28, 2025
City Council Meeting
XV. CONSENT CALENDAR
READING OF MINUTES AND ORDINANCES
Minutes for the January 14, 2025 City Council1.
Waive reading of subject minutes, approve as written, and order filed.
Minutes
Written Comments
Reading of Ordinances2.
Waive reading in full of all ordinances under consideration, and direct the City Clerk to read by title only.
RESOLUTION FOR ADOPTION
Resolution No. 2025-6: Resolution of Intention to Conduct a Public Hearing to Consider Granting Non -Exclusive Commercial Solid Waste and Divertible Materials Handling Franchises to BC Hauling and Demolition, California Waste Services LLC, and Tim Greenleaf Engineering
3. a) Determine this action is exempt from the California Environmental Quality Act (CEQA) pursuant to Sections 15060(c)(2) and 15060(c)(3) of the CEQA Guidelines because this action will not result in a physical change to the environment, directly or indirectly; and
b) Adopt Resolution No. 2025-6, A Resolution of the City Council of the City of Newport Beach, California, Declaring Its Intention to Conduct a Public Hearing to Consider Granting Non -Exclusive Commercial Solid Waste and Divertible Materials Handling Franchises.
Staff Report
Attachment A - Resolution No. 2025-6
Attachment B - Sample Agreement
CONTRACTS AND AGREEMENTS
West Coast Highway Joint Manhole & Valve Adjustments (Project No. 24R09) - Notice of Completion for Contract No. 9417-1
4. a) Accept the completed work and authorize the City Clerk to file a Notice of Completion for the project.
Staff Report
Attachment A - Location Map
4 January 28, 2025
City Council Meeting
Central Library Air Handler Replacement - Award of Contract No. 9691-1 (25F02)
5. a) Find this project exempt from the California Environmental Quality Act (CEQA) pursuant to Section 15301 (Existing Facilities) of the CEQA Guidelines, California Code of Regulations, Title 14, Chapter 3, because this project has no potential to have a significant effect on the environment;
b) Approve the project plans and specifications;
c) Award Contract No. 9691-1 to MEP Fusion Inc ., for the total bid price of $1,199,500 for the Central Library Air Handler Replacement, and authorize the Mayor and City Clerk to execute the contract; and
d) Establish a contingency of $180,000 (approximately 15% of total bid) to cover the cost of unforeseen work not included in the original contract.
Staff Report
Attachment A - Location Map
Attachment B - MEP Fusion Protest Letter
Attachment C - Seacliff Mechanical Services Protest Letter Attachment D - Response to Protest (MEP Fusion)
Attachment E - Response to Protest (Seacliff Mechanical Services) On the Agenda
Bay Crossing Water Transmission Main and Sewer Force Main Rehabilitation - Award of Contract No. 8487-3 (16W12)
6. a) Find this project exempt from the California Environmental Quality Act (CEQA) pursuant to Section 15302(c), Class 2 (reconstruction of existing facility involving negligible or no expansion of capacity) of the CEQA Guidelines, because this project has no potential to have a significant effect on the environment; b) Approve the project plans and specifications;
c) Award Contract No. 8487-3 to TE Roberts, Inc. for the total bid price of $1,591,138 for the Bay Crossing Water Transmission Main and Sewer Force Main Rehabilitation project, and authorize the Mayor and City Clerk to execute the contract; and
d) Establish a contingency of $300,000 (approximately 20% of total bid) to cover the cost of unforeseen work not included in the original contract.
Staff Report
Attachment A - Location Map
Written Comments
5 January 28, 2025
City Council Meeting
Approval of Amendment No. Two to Professional Services Agreement with Corrpro Companies, Inc. for Cathodic Protection Program, Contract No . 9483-1 (24W11)
7. a) Find this project exempt from the California Environmental Quality Act (CEQA) pursuant to Section 15302(c), Class 2 (reconstruction of existing facility involving negligible or no expansion of capacity) of the CEQA Guidelines, because this project has no potential to have a significant effect on the environment; and b) Approve Amendment No. Two to Professional Services Agreement with Corrpro Companies, Inc. (Contract No. 9483-1) for additional design services with an increased not -to-exceed amount of $138,755 for a total not -to-exceed amount of $247,610, and authorize the Mayor and City Clerk to execute the amendment.
Staff Report
Attachment A - Amendment No. 2
Written Comments
Approval of Amendment No. One to Residential Solid Waste Collection & Recycling Contract (Contract No. 8823-1) with CR&R Inc. - Addition of 5% De-Escalation Maximum
8. a) Determine this action is exempt from the California Environmental Quality Act (CEQA) pursuant to Sections 15060(c)(2) and 15060(c)(3) of the CEQA Guidelines because this action will not result in a physical change to the environment, directly or indirectly; and
b) Approval of Amendment No. One to the Residential Solid Waste Collection & Recycling Agreement with CR&R Inc. to add a 5% rate de-escalation maximum.
Staff Report
Attachment A - Amendment No. One
Written Comments
6 January 28, 2025
City Council Meeting
Approval of an On -Call Professional Services Agreement with Partners in Control dba Enterprise Automation for SCADA System Services
9. a) Determine this action is exempt from the California Environmental Quality Act (CEQA) pursuant to Sections 15060(c)(2) and 15060(c)(3) of the CEQA Guidelines because this action will not result in a physical change to the environment, directly or indirectly; and
b) Approve an On -Call Professional Services Agreement with Partners in Control, Inc., dba Enterprise Automation to provide SCADA System Services for a five -year term and a total contract compensation amount of $1 million, and authorize the Mayor and City Clerk to execute the Agreement.
Staff Report
Attachment A - Agreement
Approve Professional Services Agreement with Environmental Compliance Inspection Services Corp. for Grease Control Device Inspection Services
10. a) Determine this action is exempt from the California Environmental Quality Act (CEQA) pursuant to Sections 15060(c)(2) and 15060(c)(3) of the CEQA Guidelines because this action will not result in a physical change to the environment, directly or indirectly; and
b) Approve the Professional Services Agreement with Environmental Compliance Inspection Services Corporation for the grease control device inspection program for a five -year term and a total contract compensation amount of $450,000, and authorize the Mayor and City Clerk to execute the agreement.
Staff Report
Attachment A - Agreement
Written Comments
Purchase of Police Patrol Vehicles11.
a) Determine this action is exempt from the California Environmental Quality Act (CEQA) pursuant to Sections 15060(c)(2) and 15060(c)(3) of the CEQA Guidelines because this action will not result in a physical change to the environment, directly or indirectly; and
b) Approve the purchase of three Ford Explorer police patrol vehicles from the National Auto Fleet Group of Watsonville using Sourcewell cooperative pricing and authorize the City Manager to execute a purchase order in the amount of $173,311.80.
Staff Report
Attachment A - Quote
7 January 28, 2025
City Council Meeting
Lease Agreement with Basin Marine, Inc. for Use of a Portion of the Real Property and Tidelands at the Balboa Yacht Basin Located at 829 Harbor Island Drive
12. a) Find this project is exempt from the California Environmental Quality Act (CEQA) pursuant to Section 15301 (Existing facilities) and Section 15302 (Replacement or Reconstruction) of the CEQA Guidelines, California Code of Regulations, Title 14, Chapter 3, because this project has no potential to have a significant effect on the environment;
b) Authorize the City Manager and City Clerk to execute the Lease Agreement Between the City of Newport Beach and Basin Marine, Inc. for use of a portion of the City property known as the Balboa Yacht Basin at 829 Harbor Island Drive, in a form substantially similar to the agreement attached to the staff report; and c) Approve a waiver of City Council Policy F -7 - Income and Other Property based on the findings contained in the staff report and the Agreement, that conducting an open bid process or changing the tenant would result in excessive vacancy, and that charging less than fair market rent promotes the City ’s goals to provide essential or unique services to the community, that cannot otherwise be provided if full market rates were charged, and based on the unique services provided by the tenant.
Staff Report
Attachment A - Lease Agreement
Attachment B - Existing Lease Agreement
Attachment C - Lease Renewal Request Letter
Attachment D - City Council Policy F-7
Attachment E - Appraisal Report
Written Comments
8 January 28, 2025
City Council Meeting
License Agreement with The Regents of the University of California for Operation of a Coastal Observation System at the Newport Pier
13. a) Find this project is exempt from the California Environmental Quality Act (CEQA) pursuant to Section 15301 (Existing facilities) and Section 15302 (Replacement or Reconstruction) of the CEQA Guidelines, California Code of Regulations, Title 14, Chapter 3, because this project has no potential to have a significant effect on the environment;
b) Authorize the City Manager and City Clerk to execute the License Agreement between the City of Newport Beach and The Regents of the University of California for operation of a coastal observation system on City property, on the Newport Pier located at 1 Newport Pier, in a form substantially similar to the amendment attached to the staff report; and
c) Approve a waiver of City Council Policy F -7 - Income and Other Property based on the findings contained in this staff report and the Agreement, that charging less that fair market rent promotes the City ’s goals to provide essential or unique services to the public, that cannot otherwise be provided if full market rates were charged.
Staff Report
Attachment A - License Agreement
Attachment B - City Council Policy F-7
On the Agenda
Written Comments
MISCELLANEOUS
Planning Commission Agenda for the January 23, 2025 Meeting14.
Receive and file.
Planning Commission Action Report
Planning Commission Agenda
Written Comments
9 January 28, 2025
City Council Meeting
Budget Amendment to Accept Grant Funding from the 2025 Hoag Memorial Hospital Presbyterian Community Benefit Program for the OASIS Transportation Program
15. a) Determine this action is exempt from the California Environmental Quality Act (CEQA) pursuant to Sections 15060(c)(2) and 15060(c)(3) of the CEQA Guidelines because this action will not result in a physical change to the environment, directly or indirectly; and
b) Accept grant funding in the amount of $50,000 from Hoag Memorial Hospital Presbyterian Community Benefit Program and approve Budget Amendment No. 25- 050 to increase revenues by the same amount in 0107033-511045 ( OASIS Transportation).
Staff Report
Attachment A - Grant Award Letter
Attachment B - Check
Attachment C - Budget Amendment
On the Agenda
General Plan Update Steering Committee (GPUSC) Bi-Monthly Update to the City Council
16. a) Determine this action is exempt from the California Environmental Quality Act (CEQA) pursuant to Sections 15060(c)(2) and 15060(c)(3) of the CEQA Guidelines because this action will not result in a physical change to the environment, directly or indirectly; and
b) Receive and file the report.
Staff Report
Attachment A - Memo
Written Comments
ACTION: MOVE AFFIRMATIVE ACTION OF THE CONSENT CALENDAR, EXCEPT FOR
THOSE ITEMS REMOVED
10 January 28, 2025
City Council Meeting
XVI. ITEMS REMOVED FROM THE CONSENT CALENDAR
XVII. PUBLIC COMMENTS ON NON-AGENDA ITEMS
Public comments are invited on non -agenda items generally considered to be within the subject matter jurisdiction of the City Council. Speakers must limit comments to three minutes. Before speaking, please state your name for the record.
XVIII. CURRENT BUSINESS
Appointment of a Parks, Beaches and Recreation Commissioner to Fill an Unscheduled Vacancy
17. a) Determine that the action is exempt from the California Environmental Quality Act (CEQA) pursuant to Sections 15060(c)(2) and 15060(c)(3) of the CEQA Guidelines because it will not result in a physical change to the environment, directly or indirectly; and
b) Appoint Kelly Denner or Travis Pirdy to fill the vacancy on the Parks, Beaches and Recreation Commission for a term that expires on June 30, 2025.
Staff Report
Attachment A - Applications
On the Agenda
Correspondence
XIX. MOTION FOR RECONSIDERATION
A motion to reconsider the vote on any action taken by the City Council at either this meeting or the previous meeting may be made only by one of the Councilmembers who voted with the prevailing side.
XX. ADJOURNMENT
Testimony given before the City Council is recorded.
The timer light will turn yellow when the speaker has one minute remaining.
The timer light will turn red when the speaker has 10 seconds remaining.
PLEASE TURN CELL PHONES OFF OR SET IN SILENT MODE.
11 CITY OF NEWPORT BEACH
City Council Meeting Minutes
Regular Meeting
January 14, 2025
Volume 66 - Page 241
I. ROLL CALL – 4:00 p.m.
Present: Mayor Joe Stapleton , Mayor Pro Tem Lauren Kleiman , Councilmember Michelle Barto , Councilmember Noah Blom, Councilmember Robyn Grant , Councilmember Sara J. Weber , Councilmember Erik Weigand
II. PUBLIC COMMENTS ON AGENDA AND NON-AGENDA ITEMS
Adam Leverenz asked if Closed Session Item III.C is being handled by outside counsel and about negotiations, and requested clarification on the matter.
Jim Mosher suggested the City Council provide an update regarding the City’s fire preparedness and provided suggestions on how to enhance the transparency of closed sessions. He questioned why claims presented to the City Council are not included on the agenda.
City Attorney Harp reported that he and City Manager Leung would be recusing themselves from Closed Session Item III.C.
III. CLOSED SESSION – Council Chambers Conference Room
A. CONFERENCE WITH LABOR NEGOTIATORS
(Government Code § 54957.6): 1 matter
Agency Designated Representatives: Grace K. Leung, City Manager, Barbara Salvini, Human Resources Director, and Jonathan Holtzman, Esq., Negotiators.
Employee Organizations: Association of Newport Beach Ocean Lifeguards (ANBOL); Newport Beach City Employees Association (NBCEA); Newport Beach Employees League (NBEL); Newport Beach Firefighters Association (NBFA); Newport Beach Fire Management Association (NBFMA); Newport Beach Lifeguard Management Association (NBLMA); Newport Beach Police Association (NBPA); Newport Beach Police Management Association (NBPMA); Newport Beach Professional and Technical Employees Association (NBPTEA); and Part Time Employees Association of Newport Beach (PTEANB).
B. CONFERENCE WITH REAL PROPERTY NEGOTIATORS
(Government Code § 54956.): 1 matter
Property: A portion of the public right -of-way adjacent to 929 Zurich Circle (423 -282-04) and 944 Via Lido Nord (423-281-10) (approximately 1,105 square feet).
City Negotiators: Seimone Jurjis, Assistant City Manager, and Lauren Whitlinger, Real Property Administrator.
Negotiating Parties: Palmer Luckey on behalf of the 929 Zurich Circle Trust and the 944 Via Lido Nord Trust.
Under Negotiation: Instruction to City Negotiators regarding price and terms of payment .
C. CONFERENCE WITH LEGAL COUNSEL – EXISTING LITIGATION
(Government Code § 54956.9(d)(1)): 2 matters
Draft
January 28, 2025
Agenda Item No. 1
12 City of Newport Beach
January 14, 2025
Volume 66 - Page 242
John Doe S.C. v. City of Newport Beach et al.
Orange County Superior Court Case No. 30-2022-01299631-CU-PP-CJC
Barbara Salvini v. City of Newport Beach
Orange County Superior Court Case No. 30-2024-01442980-CU-OE-CJC
IV. RECESSED – 4:06 p.m.
V. RECONVENED AT 5:31 P.M. FOR REGULAR MEETING
VI. ROLL CALL
Present: Mayor Joe Stapleton, Mayor Pro Tem Lauren Kleiman, Councilmember Michelle Barto, Councilmember Noah Blom, Councilmember Robyn Grant, Councilmember Sara J. Weber, Councilmember Erik Weigand
VII. CLOSED SESSION REPORT
City Attorney Harp announced that the City Council will be continuing Closed Session Item s III.A through III.C to the end of the meeting.
VIII. INVOCATION – Pastor Phil Eyskens, Lighthouse of Costa Mesa Church of the Nazarene
IX. PLEDGE OF ALLEGIANCE – Webelos Pack 108
X. PRESENTATION
History of Lower Castaways by Bill Lobdell
Bill Lobdell utilized a presentation to share how Newport Beach was established as a port by showing various maps of the Bay’s formation over time. Additionally, he highlighted the history of Captain Samual Dunnells’ discovery of the “new port” in 1870, showed an illustration of the Newport Landing circa 1880, and a photo of Upper Castaways circa 1890 . A narrated video was played that outlined the nine lives of the Castaways area and additional photos were presented of the West Newport saltwater pool that ran from 26th Street to 38th Street, closed in 1940, and was turned into 38th Street Park.
XI. NOTICE TO THE PUBLIC
XII. CITY COUNCIL ANNOUNCEMENTS AND ORAL REPORTS FROM CITY COUNCIL ON
COMMITTEE ACTIVITIES
Without objection, Mayor Stapleton asked for an update on the City’s fire preparedness.
Fire Chief Boyles and Fire Marshal Gillespie provided an overview on the City’s wildfire preparedness response and water system capabilities.
Utilities Director Vukojevic utilized a presentation to highlight Newport Beach’s water sources , reservoir system, water redundancies, and water production division staff.
Councilmember Grant expressed appreciation for staff’s work on the matter.
Councilmember Weigand:
Reported that the Newport Beach Police Department (NBPD) sent units to help with public safety issues in Los Angeles
Draft
13 City of Newport Beach
January 14, 2025
Volume 66 - Page 243
Councilmember Barto:
Thanked first responders and Public Works staff for their hard work • Attended the Water Quality/Coastal Tidelands Committee meeting
Councilmember Grant:
Attended the King’s Cove WellsSpace Grand Opening at Corona del Mar High School • Utilized slides to provide updates on how the Newport Beach Animal Shelter is assisting during the California fires and advised the public about a recent fraudulent phishing text message for unpaid toll fees
Councilmember Weber:
Extended congratulations to participants of the NBPD motor officer test
Mayor Pro Tem Kleiman:
Extended gratitude to the firefighters and continued prayers for the fire victims and their families • At the request of Mayor Pro Tem Kleiman, City Manager Leung provided an u pdate regarding the Police Chief recruitment
Mayor Stapleton:
Discussed the RH ribbon cutting ceremony and grand opening at Fashion Island Extended congratulations on the 116th Annual Christmas Boat Parade Announced a community fair to welcome people affected by the California fires on January 25, 2025, at 9:00 a.m., at the OASIS Senior Center
XIII. PUBLIC COMMENTS ON CONSENT CALENDAR
Mayor Stapleton presented before and after pictures of the 38th Street and Lake Avenue Landscape Improvement Project (Item 10 ) and extended congratulations to staff for a great job on the harbor dredging matter (Item 14).
Adam Leverenz advocated for avoiding impropriety and the appearance of it (Item 3) and for a level of service in the civil service sector (Item 5).
Jim Mosher thought it was limiting to allow for two applications when more than 20 were submitted to fill an unscheduled vacancy on the Parks, Beaches and Recreation Commission (Item 16). Additionally, he urged the Council Policy Review Ad Hoc Committee to carefully review and consider each Council Policy (Item 6) and not bring back all the revisions at one time.
XIV. CONSENT CALENDAR
READING OF MINUTES AND ORDINANCES
1. Minutes for the December 10, 2024 City Council Meeting Waive reading of subject minutes, approve as amended, and order filed.
2. Reading of Ordinances
Waive reading in full of all ordinances under consideration, and direct the City Clerk to read by title only.
RESOLUTIONS FOR ADOPTION
3. Resolution No. 2025 -1: Updating the List of Designated Employees for 2024 Under the City’s Conflict of Interest Code
a) Determine this action is exempt from the California Environmental Quality Act (CEQA) pursuant to Sections 15060(c)(2) and 15060(c)(3) of the CEQA Guidelines because this action will not result in a physical change to the environment, directly or indirectly; and Draft
14 City of Newport Beach
January 14, 2025
Volume 66 - Page 244
b) Adopt Resolution No. 202 5-1, A Resolution of the City Council of the City of Newport Beach, California, Updating the Appendix of Designated Employees and Appendix of Disclosure Categories of the City of Newport Beach Conflict of Interest Code.
4. Pulled from the Consent Calendar
5. Resolution No. 2025 -4: Approving an Amendment to the Key and Management Compensation Plan
a) Determine this action is exempt from the California Environmental Quality Act (CEQA) pursuant to Sections 15060(c)(2) and 15060(c)(3) of the CEQA Guidelines because this action will not result in a physical change to the environment, directly or indirectly; and b) Adopt Resolution No. 2025-4, A Resolution of the City of Newport Beach, California, Approving an Amendment to the Key and Management Compensation Plan.
6. Resolution No. 2025-5: Creating the Ad Hoc Council Policy Review Committee a) Determine this action is exempt from the California Environmental Quality Act (CEQA) pursuant to Sections 15060(c)(2) and 15060(c)(3) of the CEQA Guidelines because this action will not result in a physical change to the environment, directly or indirectly; b) Adopt Resolution No. 2025 -5, A Resolution of the City Council of the City of Newport Beach, California, Creating an Ad Hoc Committee to Review the City Council Policies and Make Recommendations to the City Council Regarding Revisions Thereto; and c) Appoint Mayor Joe Stapleton, Mayor Pro Tem Lauren Kleiman and Councilmember Sara J.
Weber to serve on the Ad Hoc Council Policy Review Committee.
CONTRACTS AND AGREEMENTS
7. Hillsborough Pump Station Rehabilitation – Notice of Completion for Contract No. 8758- 2 (23W12)
a) Accept the completed work and authorize the City Clerk to file a Notice of Completion for the project.
8. Storm Drain System Upgrades – Notice of Completion for Contract No. 9148-1 (23D02) a) Accept the completed work and authorize the City Clerk to file a Notice of Completion for the project.
9. 2023-2024 Facilities Painting Project – Notice of Completion for Contract No. 9393 -1 (24F02)
a) Accept the completed work and authorize the City Clerk to file a Notice of Completion for the project.
10. 38th Street and Lake Avenue Landscape Improvement Project – Notice of Completion for Contract No. 9008-1 (24L01)
a) Accept the completed work and authorize the City Clerk to file a Notice of Completion for the project.
11. Police Department Parking Lot Maintenance – Award of Contract No. 7901-1 (25F02) a) Find this project exempt from the California Environmental Quality Act (CEQA) pursuant to Section 15301 (Existing Facilities) of the CEQA Guidelines, California Code of Regulations, Title 14, Chapter 3, because this project has no potential to have a significant effect on the environment;
b) Approve the project plans and specifications;
c) Award Contract No. 7901-1 to Elegant Construction Inc., for the total bid price of $585,000 for the Police Department Parking Lot Maintenance, and authorize the Mayor and City Clerk to execute the contract; and
d) Establish a contingency of $88,000 (approximately 15% of total bid) to cover the cost of unforeseen work not included in the original contract.
Draft
15 City of Newport Beach
January 14, 2025
Volume 66 - Page 245
12. Approval of Maintenance and Repair Services Agreements with EverFence Corporation (C-9815-1) and Red Hawk Services, Inc. for On-Call Fencing (C-7178-3) a) Determine this action is exempt from the California Environmental Quality Act (CEQA) pursuant to Sections 15060(c)(2) and 15060(c)(3) of the CEQA Guidelines because this action will not result in a physical change to the environment, directly or indirectly; b) Approve a Maintenance and Repair Services Agreement with EverFence Corporation for a five-year term and total not -to-exceed amount of $300,000, and authorize the Mayor and City Clerk to execute the agreement; and
c) Approve a Maintenance and Repair Services Agreement with Red Hawk Services, Inc. for a five-year term and total not -to-exceed amount of $300,000, and authorize the Mayor and City Clerk to execute the agreement.
13. Amendment No. Two to Professional Services Agreement for The Code Group dba VCA Code for Building Safety Related Services (C-8507-1A) a) Determine this action is exempt from the California Environmental Quality Act (CEQA) pursuant to Sections 15060(c)(2) and 15060(c)(3) of the CEQA Guidelines because this action will not result in a physical change to the environment, directly or indirectly; and b) Approve and authorize the Mayor and City Clerk to execute Amendment No. Two to Professional Services Agreement with The Code Group, for Staff Augmentation and Plan Review Services to increase the contract amount by $250,000, for a not-to-exceed amount of $1,270,000.
14. Memorandum of Agreement with the City of Long Beach Acting By and Through the Port of Long Beach Board of Harbor Commissioners Authorizing Disposal of Lower Bay Dredged Material Into the Port’s Pier G Slip Fill Project (C-9816-1) a) Find that, pursuant to Section 21166 of the California Public Resources Code and Section 15162 of the CEQA Guidelines, the certified Environmental Impact Report for the Piers G and J Terminal Redevelopment (SCH No. 2000 -021021) addressed all environment al impacts associated with the City of Newport Beach entering into this Memorandum of Agreement, that there are no new or more severe impacts beyond those analyzed in that document, and, as a result, no further environmental review is required by CEQA; b) Approve and execute the Memorandum of Agreement with the City of Long Beach acting by and through the Port of Long Beach Board of Harbor Commissioners authorizing disposal of Lower Bay dredged material into the Port’s Pier G Slip Fill Project; and c) Authorize the City Manager or her designee to execute any future amendments or agreements with the City of Long Beach acting by and through the Port of Long Beach Board of Harbor Commissioners as related to the disposal of Lower Bay dredged material to ensure the City of Newport Beach meets the strict delivery schedule imposed by the Port.
MISCELLANEOUS
15. Planning Commission Agenda for the January 9, 2025 Meeting Receive and file.
16. Confirmation of Nominations to Fill an Unscheduled Vacancy on the Parks, Beaches and Recreation Commission
a) Determine that the action is exempt from the California Environmental Quality Act (CEQA) pursuant to Sections 15060(c)(2) and 15060(c)(3) of the CEQA Guidelines because it will not result in a physical change to the environment, directly or indirectly; and b) Confirm nominations of Kelly Denner and Travis Pirdy to fill the vacancy on the Parks, Beaches and Recreation Commission.
17. Confirmation of Mayor Joe Stapleton’s Appointments
a) Determine this action is exempt from the California Environmental Quality Act (CEQA) pursuant to Sections 15060(c)(2) and 15060(c)(3) of the CEQA Guidelines because this action will not result in a physical change to the environment, directly or indirectly; and b) Confirm Mayor Joe Stapleton’s appointments under City Council Policy A -2, as provided in the staff report.
Draft
16 City of Newport Beach
January 14, 2025
Volume 66 - Page 246
18. Ground Emergency Medical Transport Intergovernmental Transfer Voluntary Participation for Calendar Year 2025 (C-5635-3)
a) Determine this action is exempt from the California Environmental Quality Act (CEQA) pursuant to Sections 15060(c)(2) and 15060(c)(3) of the CEQA Guidelines because this action will not result in a physical change to the environment, directly or indirectly; and b) Approve the City of Newport Beach’s voluntary participation in the Public Provider GEMT Intergovernmental Transfer program per AB 1705 for Calendar Year 2025, and authorize the City Manager to execute the Public Provider Intergovernmental Transfer Progr am for Ground Emergency Medical Transportation Services Certification Forms and pay all necessary invoices.
Motion by Mayor Pro Tem Kleiman, secon ded by Councilmember Weigand, to approve the Consent Calendar, except the item removed (Item 4); and noting the amendment to Item 1.
The motion carried unanimously.
XV. ITEM REMOVED FROM THE CONSENT CALENDAR
4. Resolution Nos. 2025 -2 and 2025 -3: Amending the General Plan Advisory Committee (GPAC) and the General Plan Update Steering Committee (GPUSC)
In response to Councilmember Grant’s questions and concerns, Assistant City Manager Jurjis and Planning Manager Zdeba reviewed the appointment process, noted an opportunity for the current members to continue their service, discussed GPAC membership, and noted it is Council’s discretion to amend the terms of the committees.
In response to Mayor Stapleton’s question, Assistant City Manager Jurjis noted that both committees will sunset once the General Plan is complete, which is scheduled for the end of the year.
Councilmember Grant expressed concern for the cost/benefit s related to conducting annual appointments.
Councilmember Blom thought new members can add input and expertise to GPAC and thanked staff for an amazing job working with the committees.
Jim Mosher, GPAC member but speaking as an individual, noted that GPAC has been working for one year, expressed concerns about new appointments and changing members so close to the end of the process, and recommended continuing with the current members.
Adam Leverenz thought an annual membership renewal could be problematic.
Virginia Anders-Ellmore relayed that the members of GPAC are dedicated and knowledgeable and expressed concern for changing the members.
Motion by Councilmember Blom, seconded by Councilmember Weber, to a) determine this action is exempt from the California Environmental Quality Act (CEQA) pursuant to Sections 15060(c)(2) and 15060(c)(3) of the CEQA Guidelines because this action will not result in a physical change to the environment, directly or indirectly; b) adopt Resolution No. 2025 -2, A Resolution of the City Council of the City of Newport Beach, California, Amending the General Plan Advisory Committee to Update the Membership and Provide for Annual Appointment of Members at the First City Council Meeting Held in February; and c) adopt Resolution No. 2025-3, A Resolution of the City Council of the City of Newport Beach, California, Amending the General Plan Update Steering Committee’s Term of Membership, Responsibilities and Provide for the Annual Appointment of Members at the First City Council Meeting Held in February.
With Councilmember Grant voting “no,” the motion carried 6-1.
Draft
17 City of Newport Beach
January 14, 2025
Volume 66 - Page 247
XVI. PUBLIC COMMENTS ON NON-AGENDA ITEMS
An unidentified speaker thought the City’s online disaster preparedness plan is out of date , suggested developing a simpler but more detailed plan, and suggested involving the public when updating the plan.
Brian Bowis, Newport Beach Fire Department Foundation (NBFDF), expressed his appreciation to the Fire Department and first responders, discussed the purpose and function of the Foundation (www.nbfdfoundation.org), and noted that Elon Musk delivered Starlink devices in Los Angeles for improved cell phone service for first responders.
Anne Stenton, Newport Mooring Association , extended a Happy New Year to Council and expressed excitement to collaborate with the City.
XVII. MOTION FOR RECONSIDERATION – None
Mayor Stapleton recessed the meeting back to Closed Session at 6:40 p.m.
III. CLOSED SESSION – Council Chambers Conference Room
A. CONFERENCE WITH LABOR NEGOTIATORS
(Government Code § 54957.6): 1 matter
Agency Designated Representatives: Grace K. Leung, City Manager, Barbara Salvini, Human Resources Director, and Jonathan Holtzman, Esq., Negotiators.
Employee Organizations: Association of Newport Beach Ocean Lifeguards (ANBOL); Newport Beach City Employees Association (NBCEA); Newport Beach Employees League (NBEL); Newport Beach Firefighters Association (NBFA); Newport Beach Fire Management Association (NBFMA); Newport Beach Lifeguard Management Association (NBLMA); Newport Beach Police Association (NBPA); Newport Beach Police Management Association (NBPMA); Newport Beach Professional and Technical Employees Association (NBPTEA); and Part Time Employees Association of Newport Beach (PTEANB).
B. CONFERENCE WITH REAL PROPERTY NEGOTIATORS
(Government Code § 54956.): 1 matter
Property: A portion of the public right -of-way adjacent to 929 Zurich Circle (423 -282-04) and 944 Via Lido Nord (423-281-10) (approximately 1,105 square feet).
City Negotiators: Seimone Jurjis, Assistant City Manager, and Lauren Whitlinger, Real Property Administrator.
Negotiating Parties: Palmer Luckey on behalf of the 929 Zurich Circle Trust and the 944 Via Lido Nord Trust.
Under Negotiation: Instruction to City Negotiators regarding price and terms of payment.
C. CONFERENCE WITH LEGAL COUNSEL – EXISTING LITIGATION
(Government Code § 54956.9(d)(1)): 2 matters
John Doe S.C. v. City of Newport Beach et al.
Orange County Superior Court Case No. 30-2022-01299631-CU-PP-CJC
Barbara Salvini v. City of Newport Beach
Orange County Superior Court Case No. 30-2024-01442980-CU-OE-CJC Draft
18 City of Newport Beach
January 14, 2025
Volume 66 - Page 248
Mayor Stapleton reconvened the meeting at 8:09 p.m. and Assistant City Attorney Summerhill announced that no reportable actions were taken.
XVIII. ADJOURNMENT – 8:09 p.m.
The agenda was posted on the City's website and on the City Hall electronic bulletin board located in the entrance of the City Council Chambers at 100 Civic Center Drive , Newport Beach, on January 9, 2025, at 4:00 p.m.
____________________________________________
Joe Stapleton
Mayor
__________________________________________
Leilani I. Brown
City Clerk
Draft
19 January 28, 2025, City Council Agenda Comments
The following comments on items on the Newport Beach City Council agenda are submitted by:
Jim Mosher ( [email protected] ), 2210 Private Road, Newport Beach 92660 (949-548-6229) Item III.A. CONFERENCE WITH REAL PROPERTY NEGOTIATORS
I continue to think the City could improve transparency by disclosing why it is interested in leasing or buying properties under negotiation in closed session.
It is a particular mystery to me why the City would be interested in the 1.2 acre office parcel at 3848 Campus Drive, a property facing the airport at the corner of Campus and Quail. According to the CIty’s What's Going on in My Neighborhood? map, the owner is pursuing an application, PA2023-0145, to build a 78,000 square foot self-storage operation on the site.
What is the City’s interest in the property?
If it is considering building a new fire station to serve the residential development anticipated in the Airport Area, this seems unusually close to the existing station in Santa Ana Heights.
Item 1. Minutes for the January 14, 2025 City Council Meeting The passage shown in italics below is from the draft minutes with a suggested correction shown in strikeout underline format. The page number refers to Volume 66.
1870, …” [see presentation, slide 6]
Item 6. Bay Crossing Water Transmission Main and Sewer Force Main Rehabilitation – Award of Contract No. 8487-3 (16W12)
The Location Map provided as Attachment A (page 6-4) is unusual in that the background image of streets is so faded that when printed it is nearly invisible, looking more like a watermark than a reference image intended for study.
Item 7. Approval of Amendment No. Two to Professional Services Agreement with Corrpro Companies, Inc. for Cathodic Protection Program, Contract No. 9483-1 (24W11)
This started as a staff-approved $59,855, contract C-9483-1, entered into on February 1, 2024, which, according to its preamble, was to cover an evaluation of the City’s vulnerability to corrosion in its steel water transmission lines and preparation of a project that could be bid to improve it – although the contractor, in their Scope of Services and Billing Rates, seems to have understood the latter to be an extra, separately-charged task:
Received After Agenda Printed
January 28, 2025
Written Comments
20 January 28, 2025, City Council agenda comments - Jim Mosher Page 2 of 4 It has now ballooned into a $247,610 proposal based largely, it seems, on the contractor’s own recommendations.
Could the size of this effort (going over staff approval limits) have been anticipated at the beginning
so
it
would
have
been
subject
to
a
more
transparent
award
process,
with
Council
approval?
Or, assuming there is more than one company that does this kind of work, should this large next phase
be
separately
bid?
Item 8. Approval of Amendment No. One to Residential Solid Waste Collection
&
Recycling
Contract
(Contract
No.
8823-1)
with
CR&R
Inc.
–
Addition
of
5%
De-Escalation
Maximum
I understand the logic of this request, but I have a number of problems with it:
1. Since I assume CR&R is not requesting this amendment to receive less money from the City,
I
am
completely
baffled
by
the
statement
under
“FISCAL
IMPACT”
on
page
8-2
that
approving
this
action
“
will
lower
costs
to
the
City
by
approximately
$436,000
for
FY
2024-25
relative
to
last
year's
FY
2023-24
cost.
”
Isn’t
the
real
question,
and
the
fiscal
impact,
how
much
more
the
City
will
pay
if
the
Council
approves
this
than
it
would
without
an
approval?
2. The proposed amendment, page 8-3, indicates the Council is being asked to approve a complete replacement of Attachment J to the original contract C-8823-1, but the new Attachment J is not provided in redlined format, so it is difficult for either the Council or the public
to
be
sure
exactly
what
changes
are
being
made
to
it.
3. Far more concerning to me is the statement in the staff report, which seems to be that “ This decrease
would
be
applied
retroactively
to
the
beginning
of
FY
2024-25,
July
1,
2024
.”
Does this mean CR&R will be expecting a refund for services already performed, using a higher
rate,
re-computed
using
a
smaller
adjustment
starting
July
1 of
last
year,
as
if
the
decrease
had
been
capped
back
then?
While I have no problem with changing the terms “going forward,” an increased payment for past services seems completely at odds with the general principle, enshrined in Article XI, Section 10(a), of the California Constitution, that entities contracting with cities are expected to provide the services they promised at the cost agreed to, and cannot demand extra compensation,
not
anticipated
in
the
contract,
for
them.
It might be noted that no system of price adjustments based on year-to-year CPI changes with arbitrarily
imposed
caps
is
ever
going
to
be
fair
and
equitable
because,
as
the
examples
in
the
staff
report
confirm,
there
is
not
symmetry
in
the
long
term
errors
introduced
when
the
actual
change
in
a
given
year
exceeds
the
caps
by
unpredictable
amounts.
If the City wanted a fairer system, it might consider setting rates each year based on the rate in the
contract’s
start
year
corrected
by
the
ratio
of
the
true
CPI
(not
a
capped
one)
in
the
current
year
compared
to
the
CPI
in
the
contract’s
start
year.
If
there
is
a
wish
to
insulate
both
parties
from
unexpectedly
large
fluctuations,
the
increase
or
decrease
in
any
one
year
could
be
limited
to
a
maximum
of
5%.
Unless
the
changes
are
all
one-sided
and
larger
than
that
limit,
the
series
21 January 28, 2025, City Council agenda comments - Jim Mosher Page 3 of 4 of 5%, or smaller, yearly rate adjustments would eventually produce a rate in correct alignment with
the
contractor’s
true,
total
change
in
costs
since
the
contract
started.
1 Item 10. Approve Professional Services Agreement with Environmental
Compliance
Inspection
Services
Corp.
for
Grease
Control
Device
Inspection
Services
As the staff report indicates, only one proposal, from the current incumbent, was received for this
contract.
It seems the same incumbent was also the only proposer when the existing contract was awarded as Item 7 on February 11, 2014. And that may have been the case for over 20 years (see, for example, Item 9 from November 25, 2003, and Item 4 from January 25, 2005). Is there really no competition in this field? Item 12. Lease Agreement with Basin Marine, Inc. for Use of a Portion of
the
Real
Property
and
Tidelands
at
the
Balboa
Yacht
Basin
Located
at
829
Harbor
Island
Drive
I can partially see the justification for collecting less than fair market rent from the operator of what
the
City
considers
to
be
an
essential
service.
But I am unable to see why the choice of operator would not be subject to competitive bidding. The Abstract to the staff report implies that Basin Marine has had its operation at this site since the
1940’s,
an
assertion
repeated
on
page
12-3
(“
The
Tenant
has
operated
the
Premises
under
various agreements since the 1940s ”). However, the earliest contract, C-2490, on file with the City Clerk indicates they have been involved “only” since September 20, 1973 (as seems more correctly
reflected
in
Recital
D
of
the
proposed
lease,
on
page
12-7).
Item 13. License Agreement with The Regents of the University of California
for
Operation
of
a
Coastal
Observation
System
at
the
Newport
Pier
Is there any relation between this and the probes producing similar information about water in the
harbor,
operated
under
the
eyes
of
the
Harbor
Department?
Item 14. Planning Commission Agenda for the January 23, 2025 Meeting
As Item 3 on its agenda, the Commission heard an item of considerable public interest – involving
allowing
areas
in
Newport
Center
currently
limited
to
32 feet
in
height
to
go
to
heights
1 The City instituted a similar system for the biennial adjustment of electoral campaign contribution limits with
Ordinance No. 2019-19, choosing a fixed reference year of 2019. Because the limit is rounded to the nearest
$100,
the
former
system
based
on
short-term
changes
in
CPI
did
not
accurately
capture
the
cumulative
effect
of
small
annual
changes
in
CPI.
Possibly
to
“save”
words,
or
possibly
unknowingly,
the
City
reverted
to
what
looks
like
that
flawed
former
system
(see
NBMC
Subsection 1.25.030.C)
somewhere
in
the
ill-conceived
471-page
Ordinance No. 2023-22.
22 January 28, 2025, City Council agenda comments - Jim Mosher Page 4 of 4 up to 270 feet for residential development. Yet it passed largely unknown to the general public (the
only
speaker
from
the
general
public,
other
than
myself,
being
someone
I
had
told
about
it).
I believe the lack of public involvement was due both to the very limited amount of information provided
in
the
agenda
announcement
(which
refers
only
to
height
“adjustments”
and
not
to
amounts)
and
to
an
antiquated
system
of
noticing
which,
for
proposals
where
there
are
more
than
1,000
people
within
300
feet
of
impacted
properties,
requires
only
publication
of
a
small,
one-time ad in the “Legal Notices” section of the City’s “official newspaper,” the Daily Pilot. I think it is fair to guess very few people see those notices, especially if they read the “paper” online
(where
that
isn’t
even
a
section
with
a
link
to
it).
Since the Item 3 proposal will be coming to the Council for final action, it is probably not necessary
to
comment
on
its
substance
at
this
time,
but
in
my
view
increasing
heights
allowed
“by
right,”
rather
than
allowing
them
as
an
incentive
for
incorporating
affordable
units,
is
counter-productive
to
meeting
the
City’s
RHNA
obligations.
It
removes
that
incentive
and,
instead,
encourages
construction
of
the
large,
luxury
units
which
are
not
being
requested
by
the
state.
While
it
has
been
said
that
the
City
only
has
to
plan
for
affordable
housing,
not
build
it,
a
failure
to
produce
what
has
been
promised
puts
the
City
at
risk
of
de-certification
of
its
Housing
Element
and
the
consequences
that
flow
from
that,
including
loss
of
local
control
over
the
construction
of
those
lower
income
units.
Item 16. General Plan Update Steering Committee (GPUSC) Bi-Monthly
Update
to
the
City
Council
In the four months since the last “Bi-Monthly” Update, one of the main developments has been the
update
committee
members'
discovery
that
all
their
memberships
will
end
on
February
11. As a GPAC member, but speaking as an individual, I can say that has been very discouraging and
somewhat
put
on
hold
plans
to
continue
meetings
of
the
Noise
Subcommittee
mentioned
in
the
last
bullet
on
page
16-5,
since
its
future
membership
is
unknown.
In that respect, if there is, indeed, to be a change in membership, I see a lack of plan as to how the
current
committee
members
are
expected
to
pass
on
any
insights
they
have
gained
to
the
new
members.
With regard to the consultant’s recommendation to change the format of our General Plan, as mentioned
in
GPUSC
Chair
Gardner’s
memo
on
the
final
page,
which
includes
a
proposal
to
adopt
a
“primarily
web-based”
format,
I
have
some
misgivings
about
that.
While
progress
and
innovation
can
be
helpful,
other
cities’
and
counties’
efforts
in
that
direction
have
been
less
than
successful.
Online
projects
started
with
the
best
of
intentions
tend
to
fall
into
neglect.
And
while
new,
official
documents
and
amendments
are
approved
in
printed,
form,
the
web-based
products
may
or
may
not
be
accurately
and
timely
updated
to
reflect
them,
so
they
become
unreliable. One of the most complex efforts of this sort in California is the San Bernardino Countywide Plan, which, after changing its URL, seems not have figured out how to incorporate their changing Housing Element and has a “Tracking & Implementation” section (hidden under the
“Business
Plan”)
that
is
still,
at
least
four
years
after
its
debut,
in
a
“coming
soon”
state.
23 3-1
NEWPORT BEACH
City Council Staff Report
COUNCIL STAFF REPORT
CITY OF
January 28, 2025
Agenda Item No. 3
ABSTRACT:
As required by Article XIII of the City Charter, staff requests City Council approval of a resolution declaring its intention to conduct a public hearing to consider granting non-exclusive commercial solid waste and divertible materials handling franchises to BC Hauling and Demolition, California Waste Services LLC, and Tim Greenleaf Engineering. The public hearing will take place at the February 11, 2025, City Council meeting.
RECOMMENDATIONS:
a) Determine this action is exempt from the California Environmental Quality Act (CEQA) pursuant to Sections 15060(c)(2) and 15060(c)(3) of the CEQA Guidelines because this action will not result in a physical change to the environment, directly or indirectly; and
b) Adopt Resolution No. 2025-6, A Resolution of the City Council of the City of Newport Beach, California, Declaring Its Intention to Conduct a Public Hearing to Co nsider Granting Non-Exclusive Commercial Solid Waste and Divertible Materials Handling Franchises.
DISCUSSION:
The City utilizes a non -exclusive solid waste franchise system for the collection of solid waste throughout the city from commercial and industrial sources, as well as multi- family residential complexes, and any construction and demolition waste.
Article XIII of the City Charter requires City Council pass a resolution declaring its intention to grant any franchise, stating the proposed grantee’s name, the franchise’s character, and the terms and conditions it proposes to grant it upon.
TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL
FROM: David A. Webb, Public Works Director - 949-644-3311, [email protected]
PREPARED BY: Charles Springer, Senior Management Analyst, 949-718-3466, [email protected]
TITLE: Resolution No. 2025-6: Resolution of Intention to Conduct a Public Hearing to Consider Granting Non-Exclusive Commercial Solid Waste and Divertible Materials Handling Franchises to BC Hauling and Demolition, California Waste Services LLC, and Tim Greenleaf Engineering
24 Resolution of Intention to Conduct a Public Hearing to Consider Granting Non-Exclusive Commercial Solid Waste and Divertible Materials Handling Franchises January 28, 2025
3-2
The resolution must establish the date, time and location where interested persons may appear and be heard before City Council, be published by the City Clerk at least once in the official newspaper within 15 days of passage, and at least 10 days prior to the hearing date.
Staff reviewed the applications submitted by BC Hauling and Demolition, California Waste Services LLC, and Tim Greenleaf Engineering and requests City Council approval of this resolution of intention to conduct the public hearing at the February 11, 2025, City Council meeting to consider granting a Non-Exclusive Commercial Solid Waste Franchise to the aforementioned applicants.
FISCAL IMPACT:
Revenue is generated for the City by these agreements. Per Chapter 12.63 of Newport Beach Municipal Code, franchisees pay the City a fixed 16% of quarterly gross receipts derived from solid was te handling services within the City. Per the franchise agreement, 10.5% is used in line with Public Resources Code Section 41901, with a portion attributable to implementation and maintenance of the City’s Source Reduction and Recycling Element (SRRE). The remaining 5.5.% is paid into Environmental Liability Fund 160.
ENVIRONMENTAL REVIEW:
Staff recommends the City Council find this action is not subject to the California Environmental Quality Act (CEQA) pursuant to Sections 15060(c)(2) (the activity will not result in a direct or reasonably foreseeable indirect physical change in the environment) and 15060(c)(3) (the activity is not a project as defined in Section 15378) of the CEQA Guidelines, California Code of Regulations, Title 14, Chapter 3, because it has no potential for resulting in physical change to the environment, directly or indirectly.
NOTICING:
The agenda item has been noticed according to the Brown Act (72 hours in advance of the meeting at which the City Council considers the item).
ATTACHMENTS:
Attachment A – Resolution No. 2025-6
Attachment B – Sample Non-Exclusive Commercial Solid Waste Franchise Agreement 25 ATTACHMENT A
3-3
6 26
3-4
27 3-5
28 3-6
29 3-7
30 3-8
31 3-9
32 3-10
33 3-11
34 3-12
35 3-13
36 3-14
37 3-15
38 3-16
39 3-17
40 3-18
41 3-19
42 3-20
43 3-21
44 3-22
45 3-23
46 3-24
47 3-25
48 3-26
49 3-27
50 3-28
51 3-29
52 3-30
53 3-31
54 3-32
55 3-33
56 3-34
57 3-35
58 3-36
59 3-37
60 3-38
61 3-39
62 3-40
63 3-41
64 3-42
65 3-43
66 3-44
67 3-45
68 3-46
69 3-47
70 3-48
71 3-49
72 3-50
73 3-51
74 3-52
75 3-53
76 3-54
77 3-55
78 3-56
79 3-57
80 3-58
81 3-59
82 3-60
83 3-61
84 3-62
85 3-63
86 3-64
87 3-65
88 3-66
89 3-67
90 3-68
91 3-69
92 3-70
93 3-71
94 3-72
95 NON-EXC
LUSIVE FRANCHISE AGREEMENT BETWEEN THE CITY OF
NEWPORT BEACH AND __________________ 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 ___ day of ____________, 2025 (“Effective Date”) by and between the City of Newport Beach, a California municipal corporation and charter city organized and existing under the laws of the State of California (“City”), and _______________________________, a [insert name and type of business entity e.g. corporation, LLC, partnership] (“Franchisee”) (City and Franchisee may collectively be referred to as “Parties”), whose address is
___________________________________________________ and is made with reference to the following:
RECITALS
This
Agreement is entered into on the basis of the following facts:
A. Ass
embly 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 s olid waste by 2020 and required the City, on or before July 1, 2012, to provide a commercial recycling program.
C. AB 341 al
so requires all businesses generating more than four (4) cubic yards per week of commercial municipal s olid 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 als
o 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 C
ity has received written notification from CalRecycle of its intention to enforce the deadlines for implementation of AB 341 and AB 1826 programs wit hin the City as required by the Act ; therefore, it is importan t 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.
Attachment B
3-73
96 Non-exclusive Franchise Agreement Page 2
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 Oc
tober 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 par
t 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 Oc
tober 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. Purs
uant 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 P
arties 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.
ALT
ERNATIVE, IF THEY DO NOT HAVE A CURRENT FRANCHISE
AGREEMENT, THEN L . WOULD READ, “The Parties now wish to enter into a Nonexclusive Franchise Agreement for Commercial Solid Waste and Divertible Materials Handling Services.”
M. Cit
y 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. Purs
uant 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 C
ity Council has determined that this grant of a non-exclusive franchise is in the public interest.
3-74
97 Non-exclusive Franchise Agreement Page 3
NOW, THEREFORE, the City and Franchisee do hereby agree as follows:
SE
CTION 1. GRANT OF FRANCHISE
A. By
Ordinance No. 202_-XX, 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.
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. 202_-XX, Code Chapter 12.63, and the terms and conditions of this Agreement.
B. Upon t
he 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.
SE
CTION 2. TERM OF FRANCHISE
Th
is Agreement shall commence on the Effective Date, and shall terminate on the Termination Date, unless terminated earlier as set forth herein.
SE
CTION 3. DEFINITIONS
“A
B 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. “A
B 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, operator s, property managers, tenants and lessees of same, that generate four (4) or more cubic 3-75
98 Non-exclusive Franchise Agreement Page 4
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 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).
“Al
ternative 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. “Anaer
obic 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 Di gestate (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. “Anaer
obic 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.” “Bi
n(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.
3-76
99 Non-exclusive Franchise Agreement Page 5
“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.
“B
ioengineered 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,
“CalRe
cycle” 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.
“Ca
rt” 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.
“C
ERCLA” 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. “Ci
ty Manager,” “ Finance Director,” and “Public Works Director ” mean the City Manager, Finance Director and Public Works Director of the City or their designee.
Clean M
aterials 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 m aximum Residue or contamination allowed by CalRecycle (10% Residue).
“Code
” means the Newport Beach Municipal Code.
“Colle
ct” 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.
3-77
100
Non-exclusive Franchise Agreement Page 6
“Com
mercial Franchise Services” means the services provided by Franchisees pursuant to the terms and conditions of the Franchise and includes the Collection, transportation, storage, and D isposal 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 placement of Commercial Solid Waste and Divertible Materials Containers on public property.
“Com
mercial P remises” 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.
“Com
pactor” 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.
“Com
post” 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.
“Com
post 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 cover ed composting with use of either finished compost or fiber, synthetic or other type(s) of cover(s) applied to the compost piles.
“Com
posting” 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. “Cons
truction and Demolition D ebris” 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, 3-78
101
Non-exclusive Franchise Agreement Page 7
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.”
“Cont
ainer(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.
“Cont
amination” 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. “Cus
tomer” 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 busines s, non -residential property, Multifamily d welling or Commercial P remises shares Containers and/or Collection services, “Customer” refers only to the entity that arranges and pays for such services.
Dirt
y 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 h as 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.
“Di
sposal” 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. “Div
ersion” 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 F acility 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. 3-79
102
Non-exclusive Franchise Agreement Page 8
“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 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. “Di
version 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 Collec ted 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.
“D
ivertible 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.” “E
dible 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, entrée, 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. “Effe
ctive Date” means the date upon which this Agreement is effective as set forth in the first paragraph of this Agreement.
“Env
ironmental 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 3-80
103
Non-exclusive Franchise Agreement Page 9
the applicable provisions of the California Health and Safety Code and California Water Code.
“Food S c
raps” 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, 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. “Fr
anchise” or “Franchise Agreement” means this Agreement between the City and a Franchisee, granted pursuant to Agreement Section 1(A) , p roviding 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 P remises 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. “Fr
anchisee” means the individual or business entity identified as “Franchisee” on the signature page of this Agreement.
“Fr
anchise 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 Franc hisee’s exercise of its rights under the franchise, City’s reporting requirements and other related expenses. “Gener
ator” means a resident, an owner or responsible party for a Multif amily Dwelling, Commercial Premises, or business that Generates Municipal Solid Waste, Recyclable Materials, Green Waste, Food Scraps and/or Construction and Demoli tion Debris as a result of its business, commercial facility or property activity. Generator may also include tenants, property managers for facilities with leased s pace, employees and contractors of Generator.
3-81
104
Non-exclusive Franchise Agreement Page 10
“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. “Gr
een 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.
“Gr
oss 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 Ci ty 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.
“Haz
ardous 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. “Indus
trial 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 W aste containers excluding hazardous waste.
3-82
105
Non-exclusive Franchise Agreement Page 11
“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 Wast e is delivered and unloaded at the disposal site.
“Mu
ltifamily 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 W aste 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 includ e any Tons Collected from Containers Collected from Commercial Premises. Tons Collected from Containers Collected from Commercial Premises shall be reported separately.
“Muni
cipal 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 limit ed to, garbage, trash, refuse, rubbish, ashes, Industrial W aste, 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 Was te, Food Scraps, Construction and Demolition Debris, liquid wastes, abandoned vehicles and hazardous, biohazardous and biomedical wastes.
“Non-P
rocessable 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 Mat erials, 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.
“Per
son” means an individual, firm, association, organization, partnership, corporation, business trust, joint venture, Limited Liability Company, the United States, 3-83
106
Non-exclusive Franchise Agreement Page 12
the State of California, the County, municipality, special purpose district or any other business entity whatsoever.
“Pr
ocessable 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 D ivertible 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 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. “Pr
ocessing 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.
“Rec
ycle/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. “Rec
ycling 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. “Rec
yclable 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.
“Rec
ycling 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 3-84
107
Non-exclusive Franchise Agreement Page 13
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 provis ion 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. “Res
idue” 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. St ate 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.
“Res
ponsible Party” means the individual or entity responsible for the Generator’s management of solid waste and/or R ecycling at the G enerator’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.
“Si
ngle 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.
“Si
ngle 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, M ultifamily 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.
“Sp
lit 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 3-85
108
Non-exclusive Franchise Agreement Page 14
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.
“Te
rm” means the finite amount of time that commences on the Effective Date and terminates on the Termination Date.
“Ter
mination Date” means October 7, 2027.
“Sta
te” means the State of California.
“Tr
ansformation” 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. “Tr
ansformation 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. “W
ood 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.
SECT
ION 4. FRANCHISE FEES
A. Dur
ing 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:
3-86
109
Non-exclusive Franchise Agreement Page 15
1. Ten and one- half percent (10.5%) of the Gross R eceipts 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. Fi
ve and one-half percent (5.5%) of the Gross R eceipts 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 by City ( “Environmental Liability Fund Fee” ). Hereinafter, Environmental Liability Fund Fee and Commercial Franchise Fee shall be collectively referred to as “Fees.” B. Ci
ty 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 C ity, 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. Com
pliance 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. Al
l 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, 3-87
110
Non-exclusive Franchise Agreement Page 16
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. Fr
anchisee 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 t his 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. Wit
h 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 t
he 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. Eac
h 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. Fr
anchisee 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.
SE
CTION 5. PERFORMANCE BOND/DEPOSIT
A. Pr
ior to the placement of any Container for Commercial Franchise Services on public or private property, Franchisee shall, to ensure compliance with the duties and 3-88
111
Non-exclusive Franchise Agreement Page 17
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 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.
SE
CTION 6. DIVERSION AND DISPOSAL OF MUNICIPAL SOLID WASTE ,
RECYCLABLE MATERIALS, FOOD SCRAP AND GREEN WASTE
A. Franchi
see 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 requirement s 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 D welling, the City shall have the right to require Franchisee to Divert additional Municipal Solid W aste, Recyclable M aterials, 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 R ecycling and D iversion of Municipal Solid Waste, Recyclable Materials, Food Scraps and/or Green Waste.
B. Fr
anchisee shall D ispose of all Non -Processable Municipal Solid W aste 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 Cou nty 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.
3-89
112
Non-exclusive Franchise Agreement Page 18
C. Franchisee shall not D ispose 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 F
ranchisee 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 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. Fr
anchisee shall include as a condition to its contractual agreement with its Customers a provision prohibiting disposal of Hazardous Waste in any Container.
F. Fr
anchisee 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. Thi
s Agreement does not purport to grant Franchisee or City ownership over materials that Franchisee’ s C ustomers 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. Ci
ty 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.
SE
CTION 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 D iversion 3-90
113
Non-exclusive Franchise Agreement Page 19
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.
B. Franc
hisee shall Dispose of, or oversee Disposal of, any Construction and Demolition Debris collected in the City by Franchisee, and not d iverted 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 D ebris 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 D ebris 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 D ebris 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. Fr
anchisee shall include as a condition to its contractual agreement with its Customers a provision prohibiting disposal of Hazardous Waste in any Container.
E. Fr
anchisee 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 r egulations, 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.
3-91
114
Non-exclusive Franchise Agreement Page 20
F. This Agreement does not purport to grant Franchisee or City ownership over materials that Franchisee’ s C ustomers 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 a s 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. Ci
ty makes no representations or warranties with respect to characterization of Construction and Demolition D ebris within City. City expressly disclaims any representations and warranties, either express or implied, as to the merchantability or fitness of Construction and Demolition D ebris for any particular purpose.
SE
CTION 8. FRANCHISEE’S APPLICATION; RECORDS; AUDITS
A. Ap
plication. 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 Ag reement ("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 t he expiration of the Term, Franchisee shall provide copies of such records to City within three (3) business days of City’s request.
3-92
115
Non-exclusive Franchise Agreement Page 21
D. Inspection; Audit. On an annual or as -needed basis, City shall have the right, upon five (5) business days advance not ice, 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 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. Th
ere was any intentional misrepresentation by Franchisee with respect to the amount of Fees due to the City;
2. Th
ere is a One Thousand and 00/100 Dollars ($1,000.00) or greater discrepancy in the amount of Fees due to the City.
3. Th
ere 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. Th
ere 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%).
Suc
h 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. 3-93
116
Non-exclusive Franchise Agreement Page 22
SECTION 9. INSURANCE REQUIREMENTS
Wi
thout 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.
SE
CTION 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 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 C ommercial Recyclable Materials, Food Scraps, G reen 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 R epresentatives in the performance of Franchisee’ s Commercial Franchise Services under the Franchise ; and ( vi) any breach of the Franchise.
Fr
anchisee 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 ins urance 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, 3-94
117
Non-exclusive Franchise Agreement Page 23
liabilities, causes of actio n, 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 l aws 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 A greement, or preceding A greements 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 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 W aste and Recyclable M aterials 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 S craps, 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 S craps a nd Green W aste 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.
3-95
118
Non-exclusive Franchise Agreement Page 24
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 Co de Subsections 6.04.110 and 6.04.1 20 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 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. Fr
anchisee 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. Fr
anchisee shall not C ollect Commercial Solid Waste or Divertible Materials from any C ommercial 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. Fr
anchisee shall neither operate its Collection vehicles nor C ollect 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. Com
mercial Solid Waste and Divertible Materials collection on Sundays shall be limited to Food Scraps and Municipal Solid W aste from Commercial Premises, which require Collection every day due to public health and safety concerns. 3-96
119
Non-exclusive Franchise Agreement Page 25
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.
SE
CTION 12. AB 341 RECYCLING PROGRAM FOR COMMERCIAL PREMISES AND
MULTIFAMILY DWELLINGS
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. Pr
ovide Single Stream Recyclable Materials and (if applicable) Single Material Collection service on a weekly or more frequent basis.
2. Pr
ovide 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 3-97
120
Non-exclusive Franchise Agreement Page 26
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, 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.
SE
CTION 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 S craps and/or Green W aste per week must arrange for Diversion Programs for those materials . O n 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 Gr een 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 al l 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. Pr
ovide 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 3-98
121
Non-exclusive Franchise Agreement Page 27
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 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.
SE
CTION 1 4. AB 1826 COMMERCIAL AND MULTI FAMILY 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 W aste 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, 3-99
122
Non-exclusive Franchise Agreement Page 28
the requirements of Sections 7 and 15 shall apply.) T he 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:
Pr
ovide source separated Green Waste and Wood Waste Collection service on a weekly or more frequent basis.
1. Pr
ovide 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
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.
Al
l 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 3-100
123
Non-exclusive Franchise Agreement Page 29
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 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.
SE
CTION 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 D iversion Program as described and set forth in Exhibit “F” which is incorporated herein by reference.
3-101
124
Non-exclusive Franchise Agreement Page 30
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. Th
e 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. Th
e frequency of Commercial Franchise Services provided to each address;
3. Th
e number of containers by type and size at each address and the frequency of collection;
4. The
actual tonnage, by material category, collected per month in tons.;
5. Th
e 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. 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 Pro gram 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. Th
e “Exhibit E Tracking Document” described in subparts D, E and F of Exhibit E.
8. Suc
h 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.
3-102
125
Non-exclusive Franchise Agreement Page 31
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:
Pu
blic Works Director
City of Newport Beach
P.O. Box 1768
100 Civic Center Dr.
Newport Beach, CA 92658
E. No W aiver. 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 D iversion 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 D iversion requirements shall be a material breach of this Agreement.
SE
CTION 17. HAULER REPRESENTATIVE
Fr
anchisee 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.
SE
CTION 18. VEHICLES AND EQUIPMENT
A. Containers. Any and all C ontainers 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 C ontainers 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.
3-103
126
Non-exclusive Franchise Agreement Page 32
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 vehic les 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 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 o f 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. Ve hicle 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) I
s one foot (1’) directly forward from the midpoint of the front of the vehicles; and
3-104
127
Non-exclusive Franchise Agreement Page 33
(c) E
xtends 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:
i. Lis
t 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. Col
lision Avoidance System installed on each vehicle
including name of system, manufacturer, date installed, name of Person who installed the system, name of P erson(s) who 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.
SE
CTION 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:
3-105
128
Non-exclusive Franchise Agreement Page 34
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. Fra
nchisee’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. Fr
anchisee’s failure to collect the Container and dispose of the contents of the C ontainer within two (2) calendar days after the Public Works Director issues written notice to Franchisee to dispose of the contents.
4. Fr
anchisee’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.
SE
CTION 20. COMPLIANCE WITH LAW
A. Fr
anchisee 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. Dur
ing the T erm 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 Wast e management. Franchisee agrees to comply with any such amen dment of the City ’s ordinances without the need to amend this Agreement.
SE
CTION 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). 3-106
129
Non-exclusive Franchise Agreement Page 35
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.
SECT
ION 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 Cod e 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 ). 3-107
130
Non-exclusive Franchise Agreement Page 36
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 Franchise e 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 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.
3-108
131
Non-exclusive Franchise Agreement Page 37
5. If Franchisee fails to submit Records thirty (30) calendar days or more following a written request by City, or its designated representative for R ecords disclosure.
6. Fr
anchisee 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. Rem
ove all of Franchisee’s Municipal Solid Waste and Divertible Materials C ontainers 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
2. Sub
mit 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 S olid 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 shal l 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, suspe nsion or expiration:
1. Fr
anchisee 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. Fr
anchisee 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. Fr
anchisee 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.
3-109
132
Non-exclusive Franchise Agreement Page 38
4. Fr
anchisee 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. Fr
anchisee 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 182 6 indemnifications as set forth in Agreement Section 10.
SECT
ION 24. CITY’S REMEDIES
A. Th
e City incurred considerable time and expense procuring this Agreement to secure an improved level and quality of Recycling and compliance with State Diversion mandates.
B. Liquidated Damages. The Parties agree the following liquidated damages schedule represents a reasonable estimate of the amount of damages, considering all the circumstances existing on the date of this Agreement, including the relationship of the sums to the range of harm to City that reasonably could be expected in anticipation that proof of actual damages would be costly or inconvenient:
Applicable
Section(s)
Failure(s)* Damages
6(A), 7(A) Comply with City -mandated Diversion
requirements within thirty (30) calendar
days of notification by City
Two hundred fifty
dollars ($250) per
business day until
compliant
6(B), 7(B) Deliver Commercial Solid Waste as
designated
Two hundred fifty
dollars ($250) per
truck delivery
8(B) Provide requested records Two hundred fifty
dollars ($250) per
business day until
completed
11(A) Provide only those Commercial
Franchise Services for which Franchisee
has applied
Two hundred fifty
dollars ($250)
11(C) Collect at unauthorized locations and/or
during unauthorized hours five (5) or
more times in a twelve (12) month period
Two hundred fifty
dollars ($250)
3-110
133
Non-exclusive Franchise Agreement Page 39
11(D) Label Containers; paint vehicles and/or
Containers corporate color
Fifty dollars ($50)
per business day
until corrected
12(A), 12(C) ,
Exhibit E, Parts A,
B and C
Implement AB 341 Diversion Program
including Tasks 1-16 in Exhibit E, Part A
within the timeframe in Franchise
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.
One thousand
dollars ($1,000) per
occurrence
13(A), 13(C) ,
Exhibit E, Parts A,
B and C
Implement AB 1826 Food Scrap
Diversion Program including Tasks 1-16
in Exhibit E, Part A, within the timeframe
in Franchise Section 13C. 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 Food Scrap Diversion Program
malfunctioning as required by Part C.
One thousand
dollars ($1,000)
14(A), 14(C),
Exhibit E, Parts A,
B and C
Implement AB 1826 Green Waste and
Wood Waste Diversion Program
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.
Five hundred dollars
($500)
15(B) Implement Construction and Demolition
Diversion Program
One thousand
dollars ($1,000)
16(A), 16(B), 16(E) Submit complete and accurate monthly reports
One hundred dollars
($100) per business
day until corrected
or completed
3-111
134
Non-exclusive Franchise Agreement Page 40
16(C) Submit timely monthly reports One hundred dollars ($100) – if not
submitted when due
Fi
ve hundred dollars
($500) – if not
submitted w/in thirty
(30) calendar days
after due date
17 Designate qualified Hauler
Representative; Failure of Hauler
Representative to timely respond to City
Fifty dollars ($50)
per business day
until completed
18(C) Secure or maintain vehicles or vehicle
equipment
One hundred dollars
($100) per business
day until completed
19 Remove, replace, or collect abandoned
Container(s)
Fifty dollars ($50)
per business day
until completed
*U
nless 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.
FR
ANCHISEE CITY
Initial Here:_______ Initial Here:______
SE
CTION 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 3-112
135
Non-exclusive Franchise Agreement Page 41
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. Ex cluded Information. The foregoing conditions will not apply to information or data which is, or which becomes generally known to the public by publication or by any means other than a breach of duty on the part of the recipient hereunder, is information previously known to the recipient, is information independently developed by or for the recipient or is information generally released by the owning party without restriction.
C. Public Records Request. Should City receive a public records request, or otherwise be directed by any governmental authority to disclose any or all Confidential Information in City’s possession, custody or control, City shall promptly provide notice to Franchisee of such request to allow Franchisee an opportunity to prevent disclosure.
D. Right to Injunctive Relief. Because of the unique nature of the Confidential Information, the parties agree that each party may suffer irreparable harm in the event that the other party fails to comply with any of its obligations under this Section, and that monetary damages may be inadequate to compensate either party for such breach.
Accordingly, the parties agree that either party will, in addition to any other remedies available to it at law or in equity, be entitled to seek injunctive relief to enforce the terms of this Section.
SECTION 26. ASSIGNMENT
Fr
anchisee 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.
SE
CTION 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:
3-113
136
Non-exclusive Franchise Agreement Page 42
To: Public Works Director
City of Newport Beach
P.O. Box 1768
100 Civic Center Dr.
Newport Beach, CA 92660
To
Franchisee: __________________
__________________
__________________
Not
ice shall be deemed effective on the date personally served or, if mailed, three (3) calendar days after the date deposited in the mail.
B. Integrated Agreement . This Agreement represents the full and complete understanding of every kind or nature whatsoever between the City and Franchisee, and all preliminary negotiations and other agreements of any kind or nature are merged herein. No verbal agreement or implied covenant shall be held to vary the provisions herein.
C. Amendments. This Agreement supersedes all prior agreements and understandings between the parties and may not be modified or terminated orally, and no modification, termination or attempted waiver of any of the provisions hereof shall be binding unless in writing and signed by both parties.
D. Recitals. The Parties acknowledge that the Recitals are true and correct and are hereby incorporated by reference into this Agreement.
E. Applicable Law. The laws of the City, State of California, and applicable Federal law, shall govern this Agreement and all matters relating to it and any action brought relating to this Agreement shall be adjudicated in a court of competent jurisdiction in the County of Orange.
F. Authority. The parties signing below represent and warrant that they have the requisite authority to bind the entities on whose behalf they are signing.
G. Severability. If any term or portion of this Agreement is held to be invalid, illegal, or otherwise unenforceable by a court of competent jurisdiction, the remaining provisions of this Agreement shall continue in full force and effect.
H. Waiver. A waiver by either party of any breach, of any term, covenant or condition contained herein shall not be deemed to be a waiver of any subsequent breach of the same or any other term, covenant or condition contained herein, whether of the same or a difference character.
I. Interpretation. The terms of this Agreement shall be construed in accordance with the meaning of the language used and shall not be construed for or against either party by reason of the authorship of this Agreement or any other rule of construction that might otherwise apply.
3-114
137
Non-exclusive Franchise Agreement Page 43
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.
L. Conflicts of Interest . Franchisee and its employees may be subject to the provisions of the California Poli tical 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.
[S
IGNATURES ON FOLLOWING PAGE]
3-115
138
Non-exclusive Franchise Agreement Page 44
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
CITY OF NEWPORT BEACH,
a California municipal corporation
Date:________________
By:______________________________
Date:________________
By:______________________________
Aaron C. Harp
City Attorney
Will O’Neill
Mayor
ATTEST:
Date:________________
FRANCHISEE:
Date:________________
By:______________________________ By:_______________________________ Leilani I. Brown
City Clerk
Date:________________
By:_______________________________
[EN
D OF SIGNATURES]
At
tachments: Exhibit A – Faithful Performance Bond
Exhibit B – Franchise Hauler Acknowledgement
Exhibit C – Franchisee Application Template
Exhibit D – Insurance Requirements
Exhibit E – Required Tasks for Implementation of Diversion Programs Exhibit F – Construction and Demolition Debris Diversion Program 3-116
139
Faithful Performance Bond Page A-1
EXHIBIT A
CIT
Y OF NEWPORT BEACH
BOND NO. ________
FAITHFUL PERFORMANCE BOND
The premium charges on this Bond is $ _________.
WHEREAS, the City of Newport Beach, State of California, has awarded to ____________________________________________ hereinafter designated as the “Principal,” a Non-exclusive Franchise for Commercial S olid W aste and D ivertible 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
, dul y 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 3-117
140
Faithful Performance Bond Page A-2
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 _____ day of ________________, 20___. ______________________________
Name of Contractor (Principal) Authorized Signature/Title ______________________________
Name of Surety Authorized Agent Signature
______________________________
Address of Surety Print Name and Title
______
________________________
Telephone
APPROVED AS TO FORM:
CITY ATTORNEY’S OFFICE
Date:__________________
By:_______________________________
Aaron C. Harp
City Attorney
NOT
ARY ACKNOWLEDGMENTS OF
CONTRACTOR AND SURETY MUST BE ATTACHED
3-118
141
Faithful Performance Bond Page A-3
ACKNOWLEDGMENT
St
ate of California
County of ______________________} ss.
On _________________________, 20_____ before me, ______________________________, Notary Public, personally appeared _______________________________________________, who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signatures(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.
I c
ertify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct.
WI
TNESS my hand and official seal.
_
________________________________
S
ignature (seal)
AC
KNOWLEDGMENT
St
ate 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 c
ertify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct.
WI
TNESS my hand and official seal.
_________________________________
S
ignature (seal)
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.
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.
3-119
142
Franchise Hauler Acknowledgement Page B-1
EXHIBIT B
FRANCHISE HAULER ACKNOWLEDGEMENT
THIS FRANCHISE HAULER ACKNOWLEDGMENT is entered into as of this __ day of __________, 2025 (the “A cknowledgment”), by and between the City of Newport Beach, a charter city and municipal corporation (the “City ”), and (the “Franchise Hauler”).
WITNESSETH
WHEREAS, the City and the Franchise Hauler have heretofore entered into an agreement entitled NONEXCLUSIVE FRANCHISE AGREEMENT BETWEEN THE CITY O
F NEWPORT BEACH AND _______________ FOR COMMERCIAL SOLID WASTE A
ND 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 3-120
143
Franchise Hauler Acknowledgement Page B-2
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 WH
EREAS, 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.
NO
W, 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. Capi
talized terms used and not otherwise defined herein are used as defined in the Disposal Agreement.
2. Th
e 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. Th
e 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. Th
e 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. Th
e 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.
3-121
144
Franchise Hauler Acknowledgement Page B-3
6. Th
e 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. Not
hing 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. Th
e obligations of the Franchise Hauler under this Acknowledgment shall apply notwithstanding any provision of the Franchise which may conflict herewith.
9. Thi
s 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. Thi
s 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. Th
e 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. Fr
anchise 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. 3-122
145
Franchisee Application Template Page C-1
EX
HIBIT C
FR
ANCHISE APPLICATION TEMPLATE
3-123
146
Insurance Requirements Page D-1
EXHIBIT D
INS
URANCE 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 Ci ty. 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 occurrenc e, 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 Ins urance. 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. 3-124
147
Insurance Requirements Page D-2
D. Pollution Liability Insurance. Franchisee shall maintain p ollution 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 3-125
148
Insurance Requirements Page D-3
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 comme ncement 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. 3-126
149
Insurance Requirements Page D-4
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. 3-127
150
Required Tasks For Implementation Of Diversion Programs Page E-1 EX
HIBIT E
REQ
UIRED 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. Fr
anchisee 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 - 3-128
151
Required Tasks For Implementation Of Diversion Programs Page E-2 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 3-129
152
Required Tasks For Implementation Of Diversion Programs Page E-3 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, Fr anchisee 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 landscap er 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 Was te 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 3-130
153
Required Tasks For Implementation Of Diversion Programs Page E-4 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 w ith 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 3-131
154
Required Tasks For Implementation Of Diversion Programs Page E-5 Document submittal. Franchisee shall fully and completely cooperate with, and reinforce, City’s e fforts 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) spe cifically what Divertible Materials may be placed in the Recycling 3-132
155
Required Tasks For Implementation Of Diversion Programs Page E-6 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 W aste 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 succes sfully 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 3-133
156
Required Tasks For Implementation Of Diversion Programs Page E-7 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 Di version 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 th e Program, or (ii) City or Customer reporting such sub-optimal functioning to Franchisee, whichever is earlier.
D. Fr
anchisee 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:
• Det
ails 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
3-134
157
Required Tasks For Implementation Of Diversion Programs Page E-8 • 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.
Wi
th 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.
Thi
s portion of the monthly report shall be called the “Exhibit E Tracking Document”.
E. Th
e 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. Eac
h 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. Th
e 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 Divert ible 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.
Annu
ally 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 3-135
158
Required Tasks For Implementation Of Diversion Programs Page E-9 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.
Thi
s 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. 3-136
159
Construction and Demolition Debris Diversion Program Page F-1
EXHIBIT F
CONS
TRUCTION 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. 3-137
160
4-1
NEWPORT BEACH
City Council Staff Report
COUNCIL STAFF REPORT
CITY OF
January 28, 2025
Agenda Item No. 4
ABSTRACT:
On January 9, 2024, the City Council awarded Contract No. 9417-1 for the West Coast Highway Joint Manhole & Valve Adjustments project to R.J. Noble Company. The project lowered and raised manholes and valve boxes for both the City of Newport Beach and the Orange County Sanitation District , and was performed in conjunction with the pavement rehabilitation by Caltrans along West Coast Highway between Jamboree Road and the Santa Ana River bridge. The work is now complete and staff requests City Council acceptance and close out of the contract.
RECOMMENDATION:
a) Accept the completed work and authorize the City Clerk to file a Notice of Completion for the project.
DISCUSSION:
Overall Contract Cost/Time Summary
Awarded Contract
Amount
Final Total Contract
Amount
Total Contract
Change Amount
Percent Contract
Cost Change
$922,925.00 $1,020,426.22 +$97,501.22 10.6%
Allowed Contract Time + Approved
Extensions (Days) = 45 Actual Time Used (Days) 45
This project ensured that City and Orange County Sanitation District (OC San) facilities were properly lowered before the pavement rehabilitation and raised to final grade after the paving process.
TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL
FROM: David A. Webb, Public Works Director - 949-644-3311, [email protected]
PREPARED BY: Michael J. Sinacori, Assistant City Engineer - 949-644-3342, [email protected]
TITLE: West Coast Highway Joint Manhole & Valve Adjustments (Project No. 24R09) – Notice of Completion for Contract No. 9417-1 161
West Coast Highway Joint Manhole & Valve Adjustments
– Notice of Completion for Contract No. 9417-1
January 28, 2025
4-2
The contracted work has been completed to the satisfaction of the Public Works Department. A summary of the construction cost is as follows:
Original Bid Amount: $ 922,925.00
Actual Cost of Bid Items Constructed: $ 922,925.00
Total Change Orders: $ 97,501.22
Final Contract Cost: $ 1,020,426.22
The final total contract amount was $ 1,020,426.22, which was approximately 10.6% higher than the original bid amount. This cost increase was primarily due to a need to modify the construction trucks and equipment to reduce the back-up alarm noise because of the required night work next to residential areas ; additional slip cans install ed at City water valve boxes ; further concrete improvements along West Coast Highway ; as well as OC San and other outside agencies requesting additional facilities grade adjustments.
A summary of the project schedule milestones is as follows:
The long period between lowering manholes/valves at the start of the project and raising them again at the end of the project was due to the duration of the pavement rehabilitation work performed by Caltrans. Facilities were lowered in March and April of 2024 and raised in October through December of 2024.
FISCAL IMPACT:
The West Coast Highway Joint Manhole & Valve Adjustments project was included within the FY 2024-25 Capital Improvement Program (CIP) Budget. Funds for the construction contract were expended from the following account(s):
Account Description Account Number Amount
Water Capital 70201-980000-24R09 $ 252,377.24
CMSD Contribution Account 13501-980000-24R09 $ 9,217.46 Mesa WD Contribution Account 13501-980000-24R09 $ 13,480.21 OCWD Contribution Account 13501-980000-24R09 $ 6,561.44 Concrete Replacement Program
(General Fund CIP)
01201927-980000-25R06 $ 39,660.90
Wastewater Enterprise 71101-980000-24R09 $ 175,455.00
OC Sanitation Contributions 13501-980000-24R09 $ 523,673.97 Total: $ 1,020,426.22
Estimated Start of Construction per Annual Baseline Schedule March 11, 2024 Actual Start of Construction Per Notice to Proceed March 18, 2024 Estimated Completion per Annual Baseline Schedule November 29, 2024 Substantial Completion Date Inclusive of Extra Work December 5, 2024 162
West Coast Highway Joint Manhole & Valve Adjustments
– Notice of Completion for Contract No. 9417-1
January 28, 2025
4-3
Of the total project cost, $467,493.14 was funded by City accounts. Additional accounts were added to the project to recoup the $552,933.08 of costs associated with raising the facilities of outside agencies. The Water and Wastewater Enterprise Funds generate revenue primarily through water and wastewater rates collected by service users.
ENVIRONMENTAL REVIEW:
On January 9 , 2024 , the City Council found this project exempt from the California Environmental Quality Act (CEQA) pursuant to Section 15301 (repair and maintenance of existing highways and streets, sidewalks, and gutters involving no expansion of use ) of the CEQA Guidelines, California Code of Regulations, Title 14, Chapter 3, because it has no potential to have a significant effect on the environment.
NOTICING:
The agenda item has been noticed according to the Brown Act (72 hours in advance of the meeting at which the City Council considers the item).
ATTACHMENT:
Attachment A – Location Map
163
I:\Users\PBW\Shared\Contracts\FY23-24 CURRENT\800_MISC\WCH Joint Manhole_Valve Adjmnts C-9417_24R09\PLANS & EXHIBITS\Location Map.dwg 12/06/23 - 1:37pm abaldenegro
LIMITS OF WORK
WEST COAST HIGHWAY JOINT MANHOLE &
VALVE ADJUSTMENTS
CITY OF NEWPORT BEACH
PUBLIC WORKS DEPARTMENT
C-9417-1 1/28/2025LOCATION MAP
WEST
24R09
ATTACHMENT A
JAMBOREE
NTS
HIGHWAY
COAST ROAD
4-4
164
5-1
NEWPORT BEACH
City Council Staff Report
COUNCIL STAFF REPORT
CITY OF
January 28, 2025
Agenda Item No. 5
ABSTRACT:
The City of Newport Beach received construction bids for the Central Library Air Handler Replacement project. Staff requests City Council approval to award the construction contract to MEP Fusion Inc., of Studio City. This project replaces the aged air handlers and hot water pumps of the Central Library, located at 1000 Avocado Avenue.
RECOMMENDATIONS:
a) Find this project exempt from the California Environmental Quality Act (CEQA) pursuant to Section 15301 (Existing Facilities) of the CEQA Guidelines, California Code of Regulations, Title 14, Chapter 3, because this project has no potential to have a significant effect on the environment;
b) Approve the project plans and specifications;
c) Award Contract No. 9691-1 to MEP Fusion Inc., for the total bid price of $1,199,500 for the Central Library Air Handler Repl acement, and authorize the Mayor and City Clerk to execute the contract; and
d) Establish a contingency of $180,000 (approximately 15% of total bid) to cover the cost of unforeseen work not included in the original contract.
DISCUSSION:
As part of the F iscal Year 2024-25 Facilities Maintenance Master Plan Program, maintenance is needed at the Central Library facility, located at 1000 Avocado Avenue.
The library’s original air handlers and hot water pumps are beyond their intended service life and have be come maintenance nuisances . The project replaces these aged components ensuring smooth operation for decades to come.
At 2 p.m. o n December 12, 2024, the City Clerk opened and read the following bids for this project:
TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL
FROM: David A. Webb, Public Works Director - 949-644-3311, [email protected]
PREPARED BY: Tom Sandefur, Assistant City Engineer - 949-644-3321, [email protected]
TITLE: Central Library Air Handler Replacement – Award of Contract No. 9691-1 (25F02)
165
Central Library Air Handler Replacement Project –
Award of Contract No. 9691-1 (25F02)
January 28, 2025
5-2
BIDDER TOTAL BID AMOUNT
Low MEP Fusion Inc. $ 1,199,500
2nd Seacliff Mechanical Services $ 1,445,075
3rd Simco Mechanical Inc. $ 1,597,001
The City received three bids for this project. The apparent low bidder, MEP Fusion Inc., possesses a California State Contractor’s License Clas sification “C-20”, as required by the project specifications. A review of the contractor’s references shows satisfactory completion of similar contracts for other public agencies including the California Department of State Hospitals, the City of Riverside, and the City of Torrance.
The apparent low bid received from MEP Fusion Inc . was approximately 9% over the engineer’s estimate of $1,100,000. The difference between the apparent lowest bid and engineer’s estimate is a reasonable margin appropriate for the extremely tight schedule required for this project.
After the bid opening, the City received a bid protest claiming deficiencies in the apparent low bidder’s responsiveness and ability to perform the work. A similar bid protest claiming deficiencies in the apparent 2nd lowest bidder’s responsiveness and ability to perform the work was also received. The apparent lowest bidder and apparent 2nd lowest bidder both provided response letters which were reviewed. Staff is satisfied with the responses and determined that the protest s were without merit, and recommends the contract be awarded to the lowest bidder. The protest letter s and response s are included as attachments to this report.
Pursuant to the contract specifications, the contractor shall have 180 consecutive days for material and equipment procurement followed by six consecutive weeks (34 working days) to complete the project. Work is scheduled to start in the fall of 2025.
The project plans and specifications will be available for review at the January 28, 2025, City Council meeting or upon request.
FISCAL IMPACT:
The adopted Capital Improvement Program budget includes sufficient funding for this contract. The contract will be expensed to the Facilities Maintenance Master Plan (General Fund) Program Account in the Public Works Department, 57101-980000-25F02.
Account Description Account Number Amount
Facilities Maintenance Master Plan 01201925-980000-25F02 $ 999,147 Facilities Maintenance Master Plan 57101-980000-25F02 $ 382,853 Total: $ 1,382,000
166
Central Library Air Handler Replacement Project –
Award of Contract No. 9691-1 (25F02)
January 28, 2025
5-3
Proposed fund uses are as follows:
Vendor Purpose Amount
MEP Fusion Inc. Construction Contract $ 1,199,500
MEP Fusion Inc. Construction Contingency $ 180,000
Various Printing & Incidentals $ 2,500
Total: $ 1,382,000
Due to the unique nature and location of the work (large and special-order equipment in the basement of the Central Library), s taff recommends establishing $180,000 (approximately 15% of total bid) for contingency purposes and unforeseen conditions associated with construction.
ENVIRONMENTAL REVIEW:
Staff recommends the City Council find this project exempt from the Califor nia Environmental Quality Act (CEQA) pursuant to Section 15301 (Existing Facilities) of the CEQA Guidelines, California Code of Regulations, Title 14, Chapter 3, because it has no potential to have a significant effect on the environment.
NOTICING:
The agenda item has been noticed according t o the Brown Act (72 hours in advance of the meeting at which the City Council considers the item).
ATTACHMENTS:
Attachment A – Location Map
Attachment B – Simco Mechanical Inc. Protest Letter (MEP Fusion Inc.) Attachment C – Simco Mechanical Inc. Protest Letter (Seacliff Mechanical Services) Attachment D – Response to Protest (MEP Fusion Inc.)
Attachment E – Response to Protest (Seacliff Mechanical Services) 167
AVOCADO AVENUE
MACARTHUR BLVD
SAN MIGUEL DRIVE
EAST COAST HIGHWAY
I:\Users\PBW\Shared\Contracts\FY23-24 CURRENT\100_FACILITIES\FMMP\Cent Libr Elevator Mdrniztn C-8939-1_23F02\COUNCIL MEMOS\Attachment A - Map Location.dwg 04/04/24 - 11:04am kaube
CENTRAL LIBRARY ELEVATOR MODERNIZATION CITY OF NEWPORT BEACH
PUBLIC WORKS DEPARTMENT
C-8939-1 04/23/2423F02
ATTACHMENT A
LOCATION MAP
PROJECT
LOCATION
5-4
168
SIM
CO Mechanical, Inc.
787 W. Woodbury Rd, #12
Altadena, CA 91011
P: (818) 957-4994 / F: (818) 957-4804
CSLB No. 974288 (exp 06/30/26) DIR #1000005424 (exp 06/30/26) December 20, 2024
Ellis Petersen
Associate Civil Engineer
City of Newport Beach
100 Civic Center Drive
Newport Beach, CA 92660
Re: Protest – MEP Fusion, Inc. - Bid Package and Qualifications Project: Central Library Air Handler Replacement
Co
ntract: 9691-1
Bid Date: December 12, 2024
Dear Ellis,
Simco Mechanical, Inc. (“Simco”) submitted a bid for the above referenced project. The City of Newport Beach (“City’) has initially determined that MEP Fusion, Inc (“MEP”) is the apparent low bidder based upon preliminary bid results. The City also determined that Simco is the third apparent low bidder. Please consider this letter as Simco’s formal protest of award MEP based on the following facts:
1. MEP’s bid is non-responsive because it does not conform to the bid documents or Public Contract Code due to their failure to list properly licensed subcontractors such as electrical, plumbing/piping, insulation, and rigging on their Designation of Subcontractor(s) Affidavit form. The document clearly references that “ State law requires the listing of all subcontractors who will perform work in an amount in excess of one-half of one percent of the Contractor's total bid. If a subcontractor is not listed, the Contractor represents that he/she is fully qualified to and will be responsible for performing that portion of the work. Substitution of subcontractors shall be made only in accordance with State law and/or the Standard Specifications for Public Works Construction, as applicable. “
2. Per the CSLB website, MEP has been in business as a licensed mechanical company since October 23, 2023. Based on the stated date, MEP does not meet the three-year qualification period as indicated on the “Contractor Industrial Safety Record” form within the bid package.
As such, Simco believes that MEP should be disqualified for lack of compliance in this category as well.
Based upon these facts, Simco requests that the City grant Simco’s bid protest by rejecting MEP’s bid as being non-responsive and awarding the contract to Simco Mechanical, Inc., the lowest responsive and responsible bidder.
ATTACHMENT B
5-5
169
Please feel free to contact me with any questions or comments regarding this matter.
Respectfully.
Cesar Rossignoli
CEO
5-6
170
SIMCO Mechanical, Inc.
787 W. Woodbury Rd, #12
Altadena, CA 91011
P: (818) 957-4994 / F: (818) 957-4804
CSLB No. 974288 (exp 06/30/26) DIR #1000005424 (exp 06/30/26)
December 20, 2024
Ellis Petersen
Associate Civil Engineer
City of Newport Beach
100 Civic Center Drive
Newport Beach, CA 92660
Re: Protest – Seacliff Mechanical Services - Bid Package and Qualifications Project: Central Library Air Handler Replacement
Contract: 9691-1
Bid Date: December 12, 2024
Dear Ellis,
Simco Mechanical, Inc. (“Simco”) submitted a bid for the above referenced project. The City of Newport Beach (“City’) has initially determined that Seacliff Mechanical Services (“Seacliff”) is the apparent lowest second bidder based upon preliminary bid results. The City also determined that Simco is the apparent lowest third bidder. Please consider this letter as Simco’s formal protest to disqualify and remove Seacliff’s bid based on the following facts:
1. Seacliff’s bid is non-responsive because it does not conform to the bid documents or Public Contract Code due to their failure to list properly licensed subcontractors such as electrical and insulation on their Designation of Subcontractor(s) Affidavit form. The document clearly references that “ State law requires the listing of all subcontractors who will perform work in an amount in excess of one-half of one percent of the Contractor's total bid. If a subcontractor is not listed, the Contractor represents that he/she is fully qualified to and will be responsible for performing that portion of the work. Substitution of subcontractors shall be made only in accordance with State law and/or the Standard Specifications for Public Works Construction, as applicable. “
2. Seacliff’s references listed in the “Technical Ability and Experience Reference” form do not meet the minimum requirements of $500,000 per project, performed per year, for the past five years. As such, Simco believes that Seacliff should be disqualified for lack of compliance in this category as well.
Based upon these facts, Simco requests that the City grant Simco’s bid protest by rejecting Seacliff’s bid as being non-responsive and awarding the contract to Simco Mechanical, Inc., the lowest responsive and responsible bidder.
ATTACHMENT C
5-7
171
Please feel free to contact me with any questions or comments regarding this matter.
Respectfully.
Cesar Rossignoli
CEO
5-8
172
Ellis Petersen
Associate Civil Engineer
City of Newport Beach
100 Civic Center Drive
Newport Beach, CA 92660
Re: Response to Protest – MEP Fusion, Inc. – Central Library Air Handler Replacement Project Project No.: 9691-1
Dear Mr. Petersen,
This letter responds to the protest submitted by Simco Mechanical, Inc. (“Simco”) regarding MEP Fusion, Inc.’s (“MEP Fusion”) bid for the Central Library Air Handler Replacement Project. Below, we address the issues raised in Simco’s protest:
Response to Issue 1: Subcontractor Designation
Simco claims that MEP Fusion’s bid is non-responsive due to an alleged failure to list subcontractors for certain portions of work. This assertion is incorrect.
MEP Fusion holds both a “B” General Building Contractor license and a “C-20” Warm-Air Heating, Ventilating, and Air-Conditioning Contractor license issued by the California Contractors State License Board (CSLB). Under California law, a contractor holding a “B” license is authorized to self-perform all work encompassed within the general scope of the project, provided it falls under the permissible classifications for such a license. This includes electrical, plumbing, insulation, and rigging work, as these tasks are incidental and necessary components of the general building project.
In accordance with the bid documents and Public Contract Code requirements, MEP Fusion represents that it is fully qualified and capable of self-performing the entirety of the work scope under its “B” license classification without the need to subcontract. This is expressly permitted under the Designation of Subcontractor(s) Affidavit, which states that failure to list a subcontractor affirms the contractor’s responsibility for performing the work.
As evidence of our qualifications, we have attached a copy of MEP Fusion’s “B” General Building Contractor license and “C-20” license. Both licenses are valid, and our experience in self-performing such work is well-documented and consistent with state licensing laws and City standards.
12/30/2024
5-9
ATTACHMENT D
173
Simco further alleges that MEP Fusion fails to meet the three-year qualification period stated in the bid documents due to the issuance date of our current CSLB license. This claim is based on a misunderstanding of our licensing history.
The issuance of our current CSLB license (No. 1111182) in October 2023 resulted from an administrative adjustment related to our company name. Specifically, a discrepancy existed between the records of the CSLB and the California Secretary of State regarding the inclusion of “Inc.” in our company name. To resolve this, we requested a revision with CSLB to remove “Inc.” from our name, and CSLB issued us a new license number. This was a procedural matter and does not reflect any lapse in our qualifications, business operations, or experience.
Based on the above, MEP Fusion’s bid is fully compliant with all applicable laws and bid documents. Simco’s protest lacks merit, and we respectfully request that the City dismiss the protest and proceed with awarding the contract to MEP Fusion as the lowest responsive and responsible bidder.
We are available to provide any further information or clarification as required.
Sincerely,
Adel Aziz
President
MEP Fusion
Attachments:
Copy of CSLB License – Classification B,C-20
adelaziz
adelaziz
Response to Issue 2: Company License History
Conclusion :
12/30/2024
5-10
174
5-11
175
ATTACHMENT E
5-12
176
5-13
177
5-14
178
5-15
179
5-16
180
On the Agenda: January 28 City Council Meeting
The next meeting of the Newport Beach City Council will be on Tuesday, January 28. A closed session meeting will begin at 4 p.m. The regular meeting begins at 5 p.m. The full agenda is available here.
Agenda items include:
• A $1.2 million construction contract with MEP Fusion Inc., of Studio City, to replace air handlers and hot water pumps at the Central Library. The current system has outlived its expected lifespan and presents maintenance challenges.
• An updated license agreement with the Regents of the University of California for operation of a coastal observation system at the Newport Pier. Under a 2005 agreement with the City, the University of California San Diego (UCSD) installed an ocean observat ion system at the Newport Pier to measure and monitor ocean water. The updated,10 -year agreement would allow UCSD to install additional ocean monitoring equipment and public education signs. • Acceptance of a $50,000 grant from Hoag Hospital toward OASIS Senior Center transportation services. The OASIS transportation program provides more than 16,000 rides a year for residents who can no longer drive.
• Consideration of an appointment to the Parks, Beaches and Recreation Commission. The appointment would fill a vacancy created when former commissioner Sara J. Weber was elected to the City Council.
VIEW THE FULL AGENDA >>
181
6-1
NEWPORT BEACH
City Council Staff Report
COUNCIL STAFF REPORT
CITY OF
January 28, 2025
Agenda Item No. 6
ABSTRACT:
The City of Newport Beach received construction bids for the Bay Crossing Water Transmission Main and Sewer Force Main Rehabilitation project. Staff requests City Council approval to award the construction contract to TE Roberts, Inc. of Irvine. This project will install flexible fabric reinforced pipe (FFRP) liners within a water pipeline and two sewer pipelines that cross the bay within Newport Harbor.
RECOMMENDATIONS:
a) Find this project exempt from the California Environmental Quality Act (CEQA) pursuant to Section 15302(c) , Class 2 (reconstruction of existing facility involving negligible or no expansion of capacity) of the CEQA Guidelines, because this project has no potential to have a significant effect on the environment; b) Approve the project plans and specifications;
c) Award Contract No. 8487-3 to TE Roberts, Inc. for the total bid price of $1,591,138 for the Bay Crossing Water Transmission Main and Sewer Force Main Rehabilitation project, and authorize the Mayor and City Clerk to execute the contract; and d) Establish a contingency of $300,000 (approximately 20% of total bid) to cover the cost of unforeseen work not included in the original contract.
DISCUSSION:
The Bay Crossing Water Transmission Main and Sewer Force Main Rehabilitation project is the first of three water and sewer line maintenance projects in Newport Harbor.
The proposed project will line three pipelines to extend their lives an estimated 50 years.
The project includes excavating pits for lining access; demolition of existing piping, valves and appurtenances at points of liner entrance and exit; dewatering, cleaning and inspecting the host pipelines; liner installation; pressure testing; disinfection of water mains; restoration of piping and valves and connections to the existing water and sewer systems; BC -01 pressure reducing station modifications; access pit and surface restoration and repairs; and all appurtenant work.
TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL
FROM: David A. Webb, Public Works Director - 949-644-3311, [email protected]
PREPARED BY: Mike J. Sinacori, Assistant City Engineer - 949-644-3342, [email protected]
TITLE: Bay Crossing Water Transmission Main and Sewer Force Main Rehabilitation – Award of Contract No. 8487-3 (16W12)
182
Bay Crossing Water Transmission Main and Sewer Force Main Rehabilitation – Award of Contract No. 8487-3 (16W12)
January 28, 2025
6-2
At 10 a.m. on January 9, 2025, the City Clerk opened and read the following bids for this project:
BIDDER TOTAL BID AMOUNT
Low TE Roberts, Inc. $ 1,591,138
2nd RE Chaffee Construction $ 1,873,000
3rd Paulus Engineering Inc. $ 1,992,777
4th Minako America Corporation $ 2,237,770
5th Mike Prlich and Sons, Inc. $ 2,339,000
The City received five bids for this project. The low bidder, TE Roberts, Inc., possesses a California State Contractor ’s License Classification “A”, as required by the project specifications. A review of references for TE Roberts, Inc. shows satisfactory completion of similar contracts for the City and other municipalities.
The low bid was 20.4% below the Engineer’s E stimate of $2,000,000. The difference between the low bid and the Engineer’s Estimate is primarily due to the lower bid price for the installation of the liners.
Pursuant to the contract specifications, the contractor will have 150 consecutive working days to complete the work. Work is scheduled to start in March 2025.
The project plans and specifications will be available for review at the January 28, 2025, City Council meeting or upon request.
FISCAL IMPACT:
The adopted Capital Improvement Program budget includes sufficient funding for the award of this contract. The following funds will be expended:
Account Description Account Number Amount
Wastewater Enterprise 71101-980000-24S03 $ 112,242
Wastewater Enterprise 71101-980000-25S03 $ 702,204
Water Capital Master Plan All 70201931-980000-16W12 $ 1,076,692 Total: $ 1,891,138
Proposed fund uses are as follows:
Vendor Purpose Amount
TE Roberts, Inc. Construction Contract $ 1,591,138
TE Roberts, Inc. Construction Contingency $ 300,000
Total: $ 1,891,138
The Wastewater Enterprise Fund generates revenue primarily through sewer rates collected by service users. The Water Capital Fund generates revenue primarily through water rates collected by service users.
183
Bay Crossing Water Transmission Main and Sewer Force Main Rehabilitation – Award of Contract No. 8487-3 (16W12)
January 28, 2025
6-3
Due to the unique nature and location of the water and sewer line maintenance work, staff recommends establishing $ 300,000 (approximately 20% of total bid) for contingency purposes and unforeseen conditions associated with construction.
ENVIRONMENTAL REVIEW:
Staff recommends the City Council find this project exempt from the California Environmental Quality Act (CEQA) pursuant to Section 15302(c), Class 2 (reconstruction of existing facility involving negligible or no expansion of capacity) of the CEQA Guidelines, California Code of Regulations, Title 14, Chapter 3, because this project has no potential to have a significant effect on the environment.
NOTICING:
The agenda item has been noticed according to the Brown Act (72 hours in advance of the meeting at which the City Council considers the item).
ATTACHMENT:
Attachment A – Location Map
184
SCALE: NTS
C-8487-3 16W12
CITY OF NEWPORT BEACH
PUBLIC WORKS DEPARTMENTAND SEWER FORCE MAIN REHABILITATION
BAY CROSSING WATER TRANSMISSION MAIN
BALBOA
ISLAND
BALBOA
PENINSULA
FM-01
BC-01
LOCATION MAP
BAYSIDE DR
BALBOA BLVD
MARINE AVE
ATTACHMENT A
01/28/25
6-4 185
January 28, 2025, City Council Agenda Comments
The following comments on items on the Newport Beach City Council agenda are submitted by:
Jim Mosher ( [email protected] ), 2210 Private Road, Newport Beach 92660 (949-548-6229) Item III.A. CONFERENCE WITH REAL PROPERTY NEGOTIATORS
I continue to think the City could improve transparency by disclosing why it is interested in leasing or buying properties under negotiation in closed session.
It is a particular mystery to me why the City would be interested in the 1.2 acre office parcel at 3848 Campus Drive, a property facing the airport at the corner of Campus and Quail. According to the CIty’s What's Going on in My Neighborhood? map, the owner is pursuing an application, PA2023-0145, to build a 78,000 square foot self-storage operation on the site.
What is the City’s interest in the property?
If it is considering building a new fire station to serve the residential development anticipated in the Airport Area, this seems unusually close to the existing station in Santa Ana Heights.
Item 1. Minutes for the January 14, 2025 City Council Meeting The passage shown in italics below is from the draft minutes with a suggested correction shown in strikeout underline format. The page number refers to Volume 66.
1870, …” [see presentation, slide 6]
Item 6. Bay Crossing Water Transmission Main and Sewer Force Main Rehabilitation – Award of Contract No. 8487-3 (16W12)
The Location Map provided as Attachment A (page 6-4) is unusual in that the background image of streets is so faded that when printed it is nearly invisible, looking more like a watermark than a reference image intended for study.
Item 7. Approval of Amendment No. Two to Professional Services Agreement with Corrpro Companies, Inc. for Cathodic Protection Program, Contract No. 9483-1 (24W11)
This started as a staff-approved $59,855, contract C-9483-1, entered into on February 1, 2024, which, according to its preamble, was to cover an evaluation of the City’s vulnerability to corrosion in its steel water transmission lines and preparation of a project that could be bid to improve it – although the contractor, in their Scope of Services and Billing Rates, seems to have understood the latter to be an extra, separately-charged task:
Received After Agenda Printed
January 28, 2025
Written Comments
186
January 28, 2025, City Council agenda comments - Jim Mosher Page 2 of 4 It has now ballooned into a $247,610 proposal based largely, it seems, on the contractor’s own recommendations.
Could the size of this effort (going over staff approval limits) have been anticipated at the beginning
so
it
would
have
been
subject
to
a
more
transparent
award
process,
with
Council
approval?
Or, assuming there is more than one company that does this kind of work, should this large next phase
be
separately
bid?
Item 8. Approval of Amendment No. One to Residential Solid Waste Collection
&
Recycling
Contract
(Contract
No.
8823-1)
with
CR&R
Inc.
–
Addition
of
5%
De-Escalation
Maximum
I understand the logic of this request, but I have a number of problems with it:
1. Since I assume CR&R is not requesting this amendment to receive less money from the City,
I
am
completely
baffled
by
the
statement
under
“FISCAL
IMPACT”
on
page
8-2
that
approving
this
action
“
will
lower
costs
to
the
City
by
approximately
$436,000
for
FY
2024-25
relative
to
last
year's
FY
2023-24
cost.
”
Isn’t
the
real
question,
and
the
fiscal
impact,
how
much
more
the
City
will
pay
if
the
Council
approves
this
than
it
would
without
an
approval?
2. The proposed amendment, page 8-3, indicates the Council is being asked to approve a complete replacement of Attachment J to the original contract C-8823-1, but the new Attachment J is not provided in redlined format, so it is difficult for either the Council or the public
to
be
sure
exactly
what
changes
are
being
made
to
it.
3. Far more concerning to me is the statement in the staff report, which seems to be that “ This decrease
would
be
applied
retroactively
to
the
beginning
of
FY
2024-25,
July
1,
2024
.”
Does this mean CR&R will be expecting a refund for services already performed, using a higher
rate,
re-computed
using
a
smaller
adjustment
starting
July
1 of
last
year,
as
if
the
decrease
had
been
capped
back
then?
While I have no problem with changing the terms “going forward,” an increased payment for past services seems completely at odds with the general principle, enshrined in Article XI, Section 10(a), of the California Constitution, that entities contracting with cities are expected to provide the services they promised at the cost agreed to, and cannot demand extra compensation,
not
anticipated
in
the
contract,
for
them.
It might be noted that no system of price adjustments based on year-to-year CPI changes with arbitrarily
imposed
caps
is
ever
going
to
be
fair
and
equitable
because,
as
the
examples
in
the
staff
report
confirm,
there
is
not
symmetry
in
the
long
term
errors
introduced
when
the
actual
change
in
a
given
year
exceeds
the
caps
by
unpredictable
amounts.
If the City wanted a fairer system, it might consider setting rates each year based on the rate in the
contract’s
start
year
corrected
by
the
ratio
of
the
true
CPI
(not
a
capped
one)
in
the
current
year
compared
to
the
CPI
in
the
contract’s
start
year.
If
there
is
a
wish
to
insulate
both
parties
from
unexpectedly
large
fluctuations,
the
increase
or
decrease
in
any
one
year
could
be
limited
to
a
maximum
of
5%.
Unless
the
changes
are
all
one-sided
and
larger
than
that
limit,
the
series
187
January 28, 2025, City Council agenda comments - Jim Mosher Page 3 of 4 of 5%, or smaller, yearly rate adjustments would eventually produce a rate in correct alignment with
the
contractor’s
true,
total
change
in
costs
since
the
contract
started.
1 Item 10. Approve Professional Services Agreement with Environmental
Compliance
Inspection
Services
Corp.
for
Grease
Control
Device
Inspection
Services
As the staff report indicates, only one proposal, from the current incumbent, was received for this
contract.
It seems the same incumbent was also the only proposer when the existing contract was awarded as Item 7 on February 11, 2014. And that may have been the case for over 20 years (see, for example, Item 9 from November 25, 2003, and Item 4 from January 25, 2005). Is there really no competition in this field? Item 12. Lease Agreement with Basin Marine, Inc. for Use of a Portion of
the
Real
Property
and
Tidelands
at
the
Balboa
Yacht
Basin
Located
at
829
Harbor
Island
Drive
I can partially see the justification for collecting less than fair market rent from the operator of what
the
City
considers
to
be
an
essential
service.
But I am unable to see why the choice of operator would not be subject to competitive bidding. The Abstract to the staff report implies that Basin Marine has had its operation at this site since the
1940’s,
an
assertion
repeated
on
page
12-3
(“
The
Tenant
has
operated
the
Premises
under
various agreements since the 1940s ”). However, the earliest contract, C-2490, on file with the City Clerk indicates they have been involved “only” since September 20, 1973 (as seems more correctly
reflected
in
Recital
D
of
the
proposed
lease,
on
page
12-7).
Item 13. License Agreement with The Regents of the University of California
for
Operation
of
a
Coastal
Observation
System
at
the
Newport
Pier
Is there any relation between this and the probes producing similar information about water in the
harbor,
operated
under
the
eyes
of
the
Harbor
Department?
Item 14. Planning Commission Agenda for the January 23, 2025 Meeting
As Item 3 on its agenda, the Commission heard an item of considerable public interest – involving
allowing
areas
in
Newport
Center
currently
limited
to
32 feet
in
height
to
go
to
heights
1 The City instituted a similar system for the biennial adjustment of electoral campaign contribution limits with
Ordinance No. 2019-19, choosing a fixed reference year of 2019. Because the limit is rounded to the nearest
$100,
the
former
system
based
on
short-term
changes
in
CPI
did
not
accurately
capture
the
cumulative
effect
of
small
annual
changes
in
CPI.
Possibly
to
“save”
words,
or
possibly
unknowingly,
the
City
reverted
to
what
looks
like
that
flawed
former
system
(see
NBMC
Subsection 1.25.030.C)
somewhere
in
the
ill-conceived
471-page
Ordinance No. 2023-22.
188
January 28, 2025, City Council agenda comments - Jim Mosher Page 4 of 4 up to 270 feet for residential development. Yet it passed largely unknown to the general public (the
only
speaker
from
the
general
public,
other
than
myself,
being
someone
I
had
told
about
it).
I believe the lack of public involvement was due both to the very limited amount of information provided
in
the
agenda
announcement
(which
refers
only
to
height
“adjustments”
and
not
to
amounts)
and
to
an
antiquated
system
of
noticing
which,
for
proposals
where
there
are
more
than
1,000
people
within
300
feet
of
impacted
properties,
requires
only
publication
of
a
small,
one-time ad in the “Legal Notices” section of the City’s “official newspaper,” the Daily Pilot. I think it is fair to guess very few people see those notices, especially if they read the “paper” online
(where
that
isn’t
even
a
section
with
a
link
to
it).
Since the Item 3 proposal will be coming to the Council for final action, it is probably not necessary
to
comment
on
its
substance
at
this
time,
but
in
my
view
increasing
heights
allowed
“by
right,”
rather
than
allowing
them
as
an
incentive
for
incorporating
affordable
units,
is
counter-productive
to
meeting
the
City’s
RHNA
obligations.
It
removes
that
incentive
and,
instead,
encourages
construction
of
the
large,
luxury
units
which
are
not
being
requested
by
the
state.
While
it
has
been
said
that
the
City
only
has
to
plan
for
affordable
housing,
not
build
it,
a
failure
to
produce
what
has
been
promised
puts
the
City
at
risk
of
de-certification
of
its
Housing
Element
and
the
consequences
that
flow
from
that,
including
loss
of
local
control
over
the
construction
of
those
lower
income
units.
Item 16. General Plan Update Steering Committee (GPUSC) Bi-Monthly
Update
to
the
City
Council
In the four months since the last “Bi-Monthly” Update, one of the main developments has been the
update
committee
members'
discovery
that
all
their
memberships
will
end
on
February
11. As a GPAC member, but speaking as an individual, I can say that has been very discouraging and
somewhat
put
on
hold
plans
to
continue
meetings
of
the
Noise
Subcommittee
mentioned
in
the
last
bullet
on
page
16-5,
since
its
future
membership
is
unknown.
In that respect, if there is, indeed, to be a change in membership, I see a lack of plan as to how the
current
committee
members
are
expected
to
pass
on
any
insights
they
have
gained
to
the
new
members.
With regard to the consultant’s recommendation to change the format of our General Plan, as mentioned
in
GPUSC
Chair
Gardner’s
memo
on
the
final
page,
which
includes
a
proposal
to
adopt
a
“primarily
web-based”
format,
I
have
some
misgivings
about
that.
While
progress
and
innovation
can
be
helpful,
other
cities’
and
counties’
efforts
in
that
direction
have
been
less
than
successful.
Online
projects
started
with
the
best
of
intentions
tend
to
fall
into
neglect.
And
while
new,
official
documents
and
amendments
are
approved
in
printed,
form,
the
web-based
products
may
or
may
not
be
accurately
and
timely
updated
to
reflect
them,
so
they
become
unreliable. One of the most complex efforts of this sort in California is the San Bernardino Countywide Plan, which, after changing its URL, seems not have figured out how to incorporate their changing Housing Element and has a “Tracking & Implementation” section (hidden under the
“Business
Plan”)
that
is
still,
at
least
four
years
after
its
debut,
in
a
“coming
soon”
state.
189
7-1
NEWPORT BEACH
City Council Staff Report
COUNCIL STAFF REPORT
CITY OF
January 28, 2025
Agenda Item No. 7
ABSTRACT:
Many of the City’s water transmission main pipelines are mortar lined and cement coated steel pipes that must be protected from corrosion. Amendment No. Two to the Professional Services Agreement with Corrpro Companies, In c. provide s funding for detailed cathodic protection system design plans, specifications, and bid and construction phase inspection services for the waterline Cathodic Protection Program.
RECOMMENDATIONS:
a) Find this project exempt from the California Environmental Quality Act (CEQA) pursuant to Section 15302(c) , Class 2 (reconstruction of existing facility involving negligible or no expansion of capacity)] of the CEQA Guidelines, because this project has no potential to have a significant effect on the environment; and b) Approve Amendment No. Two to Professional Services Agreement with Corrpro Companies, Inc. (Contract No. 9483 -1) for additional design services with an increased not-to-exceed amount of $138,755 for a total not -to-exceed amount of $247,610, and authorize the Mayor and City Clerk to execute the amendment.
DISCUSSION:
Corrpro Companies, Inc . is the consultant working on the waterline c athodic protection program. T he cathodic protection program involves the installation of new sacrificial anodes near new and existing test stations along each water transmission main pipeline.
Anodes are connected to the metal pipelines to prevent corrosion and extend the useful life of the pipelines.
The City of Newport Beach Department requested proposals from three firm s to implement a cathodic protection program. The proposals were evaluated and Corrpro Companies, Inc. (Corrpro) was determined to be the most qualified consultant. Corrpro was retained to perform a 2024 survey of the existing cathodic protection test stat ions along nine water transmission main pipelines and to create a report identifying its findings.
TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL
FROM: David A. Webb, Public Works Director - 949-644-3311, [email protected]
PREPARED BY: Michael J. Sinacori, Assistant City Engineer - 949-644-3342, [email protected]
TITLE: Approval of Amendment No. Two to Professional Services Agreement with Corrpro Companies, Inc. for Cathodic Protection Program, Contract No. 9483-1 (24W11)
190
Approval of Amendment No. Two to Professional Services Agreement for Cathodic Protection Program, Contract No. 9483-1 (24W11) January 28, 2025