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 REGULAR MEETING - 4:00 P.M.
CLOSED SESSION - FOLLOWS MOTION FOR RECONSIDERATION
FEBRUARY 25, 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
February 25, 2025
City Council Meeting
I. ROLL CALL - 4:00 p.m.
II. INVOCATION - Harbormaster Paul Blank
III. PLEDGE OF ALLEGIANCE
IV. PRESENTATION
History of the Balboa Village and Balboa Pavilion by the Newport Beach Historical Society
•
V. 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.
VI. CITY COUNCIL ANNOUNCEMENTS AND ORAL REPORTS FROM CITY COUNCIL
ON COMMITTEE ACTIVITIES
VII. PUBLIC COMMENTS ON CONSENT CALENDAR
This is the time in which Councilmembers may pull items from the CONSENT CALENDAR for discussion (ITEMS 1 - 11). 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.
2 February 25, 2025
City Council Meeting
VIII. CONSENT CALENDAR
READING OF MINUTES AND ORDINANCES
Minutes for the February 1, 2025 Planning Session and February 11, 2025 City Council Meeting
1. Waive reading of subject minutes, approve as written, and order filed.
February 1, 2025 Planning Session Minutes
February 11, 2025 City Council 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.
ORDINANCE FOR ADOPTION
Ordinance No. 2025-1: Granting Non -Exclusive Commercial Solid Waste Franchise Agreements
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) Conduct second reading and adopt Ordinance No. 2025-1, An Ordinance of the City Council of the City of Newport Beach, California, Granting Non -Exclusive Franchise Agreements for Commercial Solid Waste and Divertible Materials Handling Services Within the City of Newport Beach to BC Hauling and Demolition, California Waste Services LLC and Tim Greenleaf Engineering.
Staff Report
Attachment A - Resolution No. 2025-6
Attachment B - Ordinance No. 2025-1
3 February 25, 2025
City Council Meeting
ORDINANCE FOR INTRODUCTION
Ordinance No. 2025-2: Updating the Military Equipment Use Policy for the Newport Beach Police Department
4. 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) Waive full reading, direct the City Clerk to read by title only, and introduce Ordinance No. 2025-2, An Ordinance of the City Council of the City of Newport Beach, California, Updating the Military Equipment Use Policy for the Newport Beach Police Department, and pass to second reading on March 11, 2025.
Staff Report
Attachment A - Ordinance No. 2025-2
Attachment B - Military Equipment Use Policy (redline)
RESOLUTION FOR ADOPTION
Resolution No. 2025-10: Creating the Aviation Ad Hoc Committee to Review the Structure, Membership, Roles and Responsibilities of the Aviation Committee
5. 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. 2025-10, A Resolution of the City Council of the City of Newport Beach, California, Creating the Aviation Ad Hoc Committee to Review the Structure, Membership, Roles and Responsibilities of the Aviation Committee ; and
c) Appoint Mayor Pro Tem Lauren Kleiman, Councilmember Michelle Barto and Councilmember Noah Blom to serve on the Aviation Ad Hoc Committee.
Staff Report
Attachment A - Resolution No. 2025-10
4 February 25, 2025
City Council Meeting
CONTRACTS AND AGREEMENTS
Superior Avenue Pedestrian /Bicycle Bridge and Parking Lot (Project No . 15T09) - Notice of Completion for Contract No. 8020-6
6. 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
OASIS Senior Center Site Lighting Project - Notice of Completion for Contract No. 9009-2 (23F02)
7. 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
Street Pavement Repair Program Fiscal Year 2024-25 - Award of Contract No . 9716-1 (25R03)
8. a) Find this project exempt from the California Environmental Quality Act (CEQA) pursuant to Section 15301(c), Class 1 (maintenance of existing public facilities involving negligible or no expansion of use) 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. 9716-1 to Hardy & Harper, Inc. for the total bid price of $1,425,000 for the Street Pavement Repair Program FY 2024-25 project, and authorize the Mayor and City Clerk to execute the contract; and d) Establish a contingency of $143,000 (approximately 10% of total bid) to cover the cost of unforeseen work not included in the original contract.
Staff Report
Attachment A - Location Map
5 February 25, 2025
City Council Meeting
First Amended and Restated Employment Agreement with the City of Newport Beach Police Chief
9. 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) Authorize the City Manager to execute a First Amended and Restated Employment Agreement between the City of Newport Beach and David Miner for Police Chief Services.
Staff Report
Attachment A - First Amended and Restated Employment Agreement Written Comments
Services and Purchase Agreement with BRINC Drones, Inc. for the Police Department Drone Program
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;
b) Approve a five -year Services and Purchase Agreement with BRINC Drones, Inc . of Seattle, Washington, using the competitive selection process conducted for NPPGov Cooperative Purchasing Agreement No. PS24040 in an amount not-to-exceed $2,176,037.60, and authorize the Mayor and City Clerk to execute the Agreement; and
c) Approve Budget Amendment No. 25-055 to increase expenditure appropriations by $497,516 in the Detective Division Drone Program accounts, 01035355-811065, 01035355-911017 and 01035355-831001.
Staff Report
Attachment A - Agreement
Attachment B - Budget Amendment
On the Agenda
Written Comments
6 February 25, 2025
City Council Meeting
MISCELLANEOUS
Confirmation of Appointments to the General Plan Update Steering Committee and the General Plan Advisory Committee
11. 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 the Mayor ’s appointments to fill scheduled vacancies on the General Plan Update Steering Committee and the General Plan Advisory Committee.
Staff Report
Attachment A - GPUSC and GPAC Roster
Attachment B - Applications
On the Agenda
Written Comments
ACTION: MOVE AFFIRMATIVE ACTION OF THE CONSENT CALENDAR, EXCEPT FOR
THOSE ITEMS REMOVED
IX. ITEMS REMOVED FROM THE CONSENT CALENDAR
X. CURRENT BUSINESS
7 February 25, 2025
City Council Meeting
Ordinance No. 2025-3: Designating a Portion of Corona del Mar as a Safety Enhancement Zone and Expanding West Newport Safety Enhancement Zone to Include Memorial Day, Fourth of July, and Labor Day Holidays
12. 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) Waive full reading, direct the City Clerk to read by title only, and introduce Ordinance No. 2025-3, An Ordinance of the City Council of the City of Newport Beach, California, Designating a Portion of Corona del Mar as a Safety Enhancement Zone During the Memorial Day, Fourth of July Independence Day, and Labor Day Holidays and Expanding the West Newport Safety Enhancement Zone to Include Memorial Day and Labor Day Holidays by Amending Section
1.04.060 (Safety Enhancement Zone ), Chapter 10.58 (Police Services at Large Parties, Gatherings or Events on Private Property ), and Section 10.66.060 (Violation-Penalty-Civil Fine) of the Newport Beach Municipal Code , and pass to second reading on March 11, 2025.
Staff Memo and Amended Ordinance
Staff Report
Attachment A - Ordinance No. 2025-3
Attachment B - NBMC Chapter 1.04.060 (redline)
On the Agenda
Correspondence
Written Comments
8 February 25, 2025
City Council Meeting
Witte Lecture Hall - Increase LED Screen Wall Size13.
a) Determine that the action is exempt from the California Environmental Quality Act (CEQA) pursuant to Sections 15301 (Class 1 - Existing Facilities) and 15303 ( Class 3 - New Construction or Conversion of Small Structures) of the California Code of Regulations, Title 14, Division 6, Chapter 3 and CEQA Guidelines, because this project has no potential to have a significant effect on the environment; and b) Consider the Newport Beach Public Library Foundation ’s request to increase the Witte Hall LED screen wall size and approve one of the following options:
· Option 1 - Deny participating in the cost and continue with the installation of the 9-foot by 16-foot (144 square feet (SF)) LED screen wall per the approved contact documents with no additional cost; or
· Option 2 - Approve the Newport Beach Library Foundation ’s request to increase the screen wall size and install an 11-foot by 19-foot (209 SF) LED screen wall with an all -in estimated change order cost of approximately $130,000, with the total increased cost split evenly between the Newport Beach Public Library Foundation and the City; or
· Option 3 - Provide other direction with regard to the Newport Beach Public Library Foundation ’s request to increase size of the Lecture Hall LED screen wall size.
Staff Report
Attachment A - Letter
On the Agenda
Appointment of a Planning Commissioner to Fill an Unscheduled Vacancy14. 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) Appoint Greg Reed, Loren Smith or Drew Teicheira to fill the vacancy on the Planning Commission.
Staff Report
Attachment A - Applications
On the Agenda
9 February 25, 2025
City Council Meeting
XI. 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.
XII. CLOSED SESSION - Council Chambers Conference Room
CONFERENCE WITH LABOR NEGOTIATORS
(Government Code § 54957.6): 1 matter
A.
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).
PUBLIC EMPLOYMENT - PERFORMANCE EVALUATION
(Government Code § 54957(b)(1)): 3 matters
B.
Titles: Grace Leung, City Manager, Aaron Harp, City Attorney, and Leilani Brown, City Clerk.
CONFERENCE WITH LABOR NEGOTIATORS
(Government Code § 54957.6): 3 matters
C.
Agency Designated Representatives: Joe Stapleton, Mayor, and Lauren Kleiman, Mayor Pro Tem.
Unrepresented Employees: Grace Leung, City Manager, Aaron Harp, City Attorney, and Leilani Brown, City Clerk.
CONFERENCE WITH LEGAL COUNSEL - EXISTING LITIGATION
(Government Code § 54956.9(d)(1)): 1 matter
D.
Barbara Salvini v. City of Newport Beach
Orange County Superior Court Case No. 30-2024-01442980-CU-OE-CJC XIII. CLOSED SESSION REPORT
XiV. 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.
10 CITY OF NEWPORT BEACH
City Council Meeting Minutes
Special Meeting - Planning Session
February 1, 2025
Volume 66 - Page 256
I. CALL THE MEETING TO ORDER – 9:00 a.m.
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
Mayor Stapleton led the Invocation and Pledge of Allegiance.
At Mayor Stapleton’s request, Acting Police Chief Miner shared information about the incident that took place on the Newport Pier in the early morning.
Mayor Stapleton announced that he would be recusing himself during discussions regarding the MacArthur Boulevard Street Revitalization (Campus Drive to Jamboree Road) Project due to conflicts of interest due to the project’s proximity to the Pacific Club.
Councilmember Blom announced that he would be recusing himself during discussions regarding the Balboa Island Utility Undergrounding Project and Balboa Island Drainage Master Plan Project due to real property interest conflicts.
II. UPDATE ON FINANCIAL STATUS AND BUDGET DEVELOPMENT
Finance Director Al-Imam utilized a presentation to review the long-range financial forecast that is in line with what he presented to the Finance Committee last week. He provided an overview of the General Fund revenues, including property tax revenues, residential sales trends, sales tax revenues and major industry groups, Transient Occupancy Tax (TOT) , and comparisons between commercial TOT versus residential TOT.
Mayor Stapleton noted the City’s strong fiscal responsibility and emphasized that the City has a balanced budget with a surplus.
Finance Director Al-Imam continued with the presentation to highlight the General Fund expenditure s, expenditures by department, the FY 2025-26 preliminary G eneral Fund expenditure outlook and preliminary capital funding outlook, and paydown strategy to eliminate the pension liability by 2033.
Dennis Bress thanked the City for paying down the pension by 2033 and noted there will be about $45 million in discretionary money as a result.
Lee Pearl recommended using the interest earned from the pension paydown strategy for programming or investments.
Virginia Anders -Ellmore wondered if “ other revenue ” funds come from the Federal government and are subject to cuts. Finance Director Al-Imam stated that $750,000 is at risk, but City Manager Leung noted that there is Federal funding that has been guaranteed to the City.
III. MAJOR INITIATIVES – SERVICES
Acting Police Chief Miner utilized a presentation to discuss the Crime Information Center (CIC) which will be co-located with dispatch and the Flock License Plate Reader (LPR) Program.
Mayor Stapleton noted the Flock cameras are currently the best technology in the field.
February 25, 2025
Agenda Item No. 1
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11 City of Newport Beach
Planning Session
February 1, 2025
Volume 66 - Page 257
Acting Police Chief Miner continued the presentation by noting that three additional officers have been assigned as Homeless Liaison Officers to the Quality of Life Team and reviewed the Point-in-Time Count and PATH Census results.
Mayor Stapleton applauded Mayor Pro Tem Kleiman, Councilmember Grant, and staff for their hard work on the homelessness matter, and Councilmember Grant reviewed the remarkable results.
Acting Police Chief Miner noted there will be a budget request to add a new City prosecutor position to provide additional support to address recidivism. City Attorney Harp shared that there has been an uptick in cases referred to his office since the municipal code change and City Manager Leung noted a forthcoming budget amendment for the recruitment.
Mayor Pro Tem Kleiman suggested expanding the mounted horse unit in the Police Department. City Manager Leung stated that her suggestion can come back during budget discussions if interest exists among the City Council. The straw vote result was 7-0.
Mayor Pro Tem Kleiman inquired about other options for the prosecutor position besides hiring a full-time position, but deferred to the City Attorney. City Attorney Harp stated that staff will review options and return to the City Council.
In response to Mayor Pro Tem Kleiman’s question, Acting Police Chief Miner confirmed that a Peninsula Enforcement Team existed years ago.
Acting Police Chief Miner continued with the presentation to discuss the proposed drone program.
In response to Council questions, Finance Director Al-Imam noted that there is currently no funding for a drone program in the current year’s budget.
Assistant City Manager Jurjis utilized a presentation to highlight changes to the Code Enforcement program and beach vendor enforcement.
In response to Council questions, Assistant City Manager Jurjis stated that items resulting from beach vendor enforcement are disposed. He a nd Finance Director Al -Imam reviewed the reactive program for code enforcement and Acting Police Chief Miner relayed the dedicated parking control program. Mayor Pro Tem Kleiman emphasized the need to be proactive, particularly during the summer months and weekends.
Assistant City Manager Jurjis continued with the presentation to outline the Short Term Lodging (STL) inspection program.
In response to Councilmember Weigand’s question, Assistant City Manager Jurjis discussed the proactive enforcement approach and reactive enforcement.
Finance Director Al-Imam continued the presentation to discuss STL permits. Councilmember Grant thought that further discussion on this matter would be valuable. Assistant City Manager Jurjis reviewed the timeline and Councilmember Grant proposed postponing issuing more STL permits before a decision is made by the California Coastal Commission (CCC) possibly in July and reviewed the approach. Mayor Stapleton outlined the STL count and Assistant City Manager Jurjis explained that attrition will bring the STL count to 1,475.
Councilmember Barto supported Councilmember Grant’s suggestion to postpone issuing STLs, but City Manager Leung noted the time it takes to issue a permit and that the City needs to follow the current rules.
City Attorney Harp concurred and discussed potential options.
In response to Council questions, Assistant City Manager Jurjis clarified that 75 STL permits have not been approved yet, Finance Director Al-Imam stated that 1,550 STL permits will not be reached by May, and City Attorney Harp noted that only one permit is processed at a time. Councilmember Grant thought the City should stay with the current STL permit count until further discussion is conducted by Council and deferred the matter to City Attorney Harp who would look into the matter. Councilmember Weigand suggested the total allowable STL permit count be evaluated later. Mayor Stapleton thought the matter needed to be monitored and noted further discussion would occur in May.
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12 City of Newport Beach
Planning Session
February 1, 2025
Volume 66 - Page 258
Finance Director Al-Imam relayed that the mailing discrepancies for STL noticing have been resolved, but a representative for an unresolved hardship appeal is present to address Council. City Attorney Harp stated that the representative can speak during public comments.
Assistant City Manager Jurjis continued with the presentation to review refuse enforcement, SB 1383 (State mandated 3-cart waste system), and code enforcement staffing.
In response to Councilmember Grant’s questions, Code Enforcement Supervisor Murray stated that the City conducts lid flips for commercial addresses to check that materials are in the correct bins, residential inspection is starting with the STLs, and agreed to provide public education on the matter.
City Manager Leung utilized the presentation to review the program enhancement proposals for the FY 2025- 26 budget and asked for feedback relative to the STL hardship appeal.
Carmen Rawson questioned the number of police officers assigned to homelessness, requested beach patrol to monitor e-bike activity and a dashboard to list vendor licensing and permits, noted camping/encampment activity on Balboa Island with no nighttime enforcement, relayed that the 20% CCC restriction on STL permits for multi-units is not implemented and suggested attaching the requirement to the property’s title so, upon the sale of the property the restriction is implemented, noted that a property has been under construction for six years that has two STL permits, and suggested adopting an ordinance to protect recycling fees. Mayor Stapleton assured Ms. Rawson that every item she noted is a high priority and is being dealt with.
Dennis Bress expressed support for the Flock program and for having fire detection drones.
Adam Leverenz expressed concern that reduced homeless numbers for the City have compounded the risks in Costa Mesa , suggested the confiscated beach vendor items be donated instead of disposed , proposed a percentage of STL permits be owner-occupied units, and inquired about drone use.
Councilmember Grant relayed the resources and accommodations the City offers for properly housing homeless individuals instead of moving people from one city to the next.
Jim Mosher asked for a breakdown of the types of prosecutions that are occurring, noted that SB 1383 has an enforcement component that requires inspections, and thought straw polls should occur after public comments.
John Clement, STL appellant, supported establishing a modification to STL permit enforcement that allows for some latitude during unforeseen situations.
Nancy Scarborough suggested a “slow walk” of the current STL permits and having Park Rangers conduct enforcement after hours on the beaches.
Susan De Santis thanked the City and fire department for protecting the community, noted town hall meetings to talk about fire protection in Newport Coast, and expressed concern for the C ity’s efforts with brush maintenance.
Lee Pearl thought that Council’s approach to STL permits is going in the right direction, stated he is not a proponent of STLs on Balboa Island, and shared that he is on the STL permit waitlist to see how long it will take to get to the top of the list.
Virginia Anders-Ellmore suggested reactivating the Environmental Quality Affairs Committee ( EQAC) to address potential fire risks and insurance issues, and noted the good work of the Water Quality/Coastal Tidelands Committee.
Barbara Abbott thought that Balboa Island is saturated with STLs, discussed the impact of STLs on neighbors, and asked if saturation levels are considered when permits are granted.
Tim Stokes inquired about the percentage of rubbish removal by the Costa Mesa Sanitation District, supported an increased use of equestrians by the Police Department, and expressed concern for the use of drones in the same area as an airport.
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13 City of Newport Beach
Planning Session
February 1, 2025
Volume 66 - Page 259
Beverly Jones noted that the retaining wall from Morning Canyon Road to Seaward Road needs repair and asked for it to be added to the budget.
Referencing the STL appeal, City Manager Leung asked if Council would like to consider adding a process to the STL enforcement that considers hardship cases.
Mayor Stapleton and Councilmember Blom suggested authorizing the Finance Director to handle hardship STL cases. Councilmember Weigand suggested there be further discussion if instances increase. City Manager Leung confirmed that authority can be retroactive. The straw vote result was 7-0. Since City Attorney Harp noted that hardship would need to be defined in the municipal code, City Manager Leung indicated that the matter would need to return to Council for approval.
IV. FY 2025-26 CAPITAL IMPROVEMENT PROGRAM
Public Works Director Webb indicated that the City has a residential refuse contract with C R&R that includes enforcement . He utilized a presentation to provide an overview of projects , including the Witte Lecture Hall, Balboa Island Utility Undergrounding ( Councilmember Blom left the room ), and the Lower Harbor Navigation Channel Dredging.
In response to Councilmember Grant’s question, Public Works Director Webb indicated that there would be no cost savings for the Lower Harbor Navigation Channel Dredging, but possibly with the Balboa Yacht Basin Dredging.
Public Works Director Webb continued the presentation to review the Balboa Branch Library and Fire Station Replacement, City Yard Fleet Fueling System with a Compressed Natural Gas (CNG) filling station that creates circulation and security issues, and future electric vehicle regulations.
In response to Councilmember Grant’s question, Public Works Director Webb indicated that the Balboa Ferry may be exempted from needing to become electric since it is privately owned, but that would still need to be looked into further.
Public Works Director Webb continued the presentation to outline the Balboa Island Drainage Master Plan – Pipes and Pump Stations (Councilmember Blom left the room), MacArthur Street Revitalization – Campus Drive to Jamboree Road (Mayor Stapleton left the room), and replacement of the 15th Street Beach Restroom and Beach Trail Split from 14 th Street to Newport Pie r Project. In response to Councilmember Weigand’s question, Public Works Director Webb stated that this is the first phase of the trail split. The presentation continued with the West Coast Highway Pedestrian and Bicycle Bridge at Superior Project, noted that there is a large Orange County Transportation Authority (OCTA) component to the project, and negotiations will take place once a logical property is determined to land the bridge.
Public Works Director Webb presented the development of the FY 2025-26 Capital Improvements Project (CIP) budget, draft CIP budget process, major infrastructure funding sources, and Facilities Financing Plan (FFP). Finance Director Al-Imam reviewed the FFP, including project and funding challenges.
Public Works Director Webb continued with the presentation to highlight community/Council requested projects, such as the retaining wall in Corona del Mar , lights for the Newport Coast Community Center (NCCC) pickleball courts, and additional pickleball courts at the Bonita Canyon Sports Park . In response to Councilmember Weigand’s question, Public Works Director Webb thought parking could be accommodated at the park, but expressed concern for Mayor Stapleton’s idea of putting new pickleball courts next to the existing pickleball courts.
Dennis Bress commended the Public Works Department and its asphalt selection.
Adam Levernz suggested including refuse educational information with the trash bills. He asked the City to review the cost associated with building an aquatic center at Lower Castaways and noted the site is considered as recreational and commercial by the General Plan with a maximum building size of 2,000 square feet, but the proposed plan exceeds this by four times.
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14 City of Newport Beach
Planning Session
February 1, 2025
Volume 66 - Page 260
Susan De Santis thanked staff and Council for preparing the CIP and thought that MacArthur Boulevard (Mayor Stapleton left the room) needs to be looked at with a broader vision when residential development is added to the airport area to incorporate the arterials leading into the area and how to support a thriving mixed use community, including improvements in the City of Irvine within the IBC.
Lee Pearl commended the Balboa Island undergrounding project (Councilmember Blom left the room) and highlighted projects needed on Balboa Island , such as an automated flood control system, an updated playground, public restroom access, a Citywide trolley, and offsite parking.
Ken Rawson reviewed the beach trail split project and asked why the City is doing a partial project without studying a complete boardwalk separation from 36th Street to E Street (City Clerk Brown recused herself due to real property interest conflicts and left the room).
Carmen Rawson expressed concern for pedestrians on the boardwalk (City Clerk Brown left the room).
Mayor Pro Tem Kleiman emphasized that the Corona del Mar retaining walls are City-owned. No further discussion was requested and all Councilmembers expressed support for the project.
Regarding adding lights to the NCCC pickleball courts , all Cou ncilmembers expressed support for the project.
Mayor Stapleton thought that the possible housing development in the pickleball court area is a topic that needed further discussion . Councilmember Weigand expressed the public’s concern about circulation, parking, and noise issues around Bonita Canyon Sports Park. City Manager Leung concurred that this issue should be discussed during a study session.
V. UPDATE ON PROJECTS UNDER NEW HOUSING AND LAND USE ELEMENTS
Assistant City Manager Jurjis utilized a presentation to provide an update on major housing projects in the airport area and Newport Center area, discuss the housing numbers, what to look forward to in 2025, and Finance Director Al-Imam reviewed development-related fees.
In response to Council questions, Assistant City Manager Jurjis stated that the City needs to amend the General Plan to transfer Regional Housing Needs Assessment (RHNA) units between planning areas . He confirmed that the City would prepare a Request for Proposal (RFP) for the development of an airport area master plan, it would be a two year project, and the RFP would go to Council in July or August.
Dennis Bress commended staff and suggested using the words “workforce housing.”
Nancy Scarborough supported developing an inclusionary ordinance and a specific plan for the airport area and the Newport Center area.
Jim Mosher noted Council’s approval of housing units without a Greenlight vote, including new housing in Newport Center and much of the airport area that are not required by the State, and noted the plans do not include 40% affordable housing units at each site. He expressed concern for the risk of decertification of the City’s Housing Element and the loss of local control.
Lee Pearl suggested including public art as part of the community’s development.
In response to Councilmember Barto’s question, Assistant City Manager Jurjis stated that the Newport - Mesa Unified School District ’s property has been identified as housing opportunity , the City will receive credit for it and has jurisdiction for its planning, conversations with the school district have occurred, and the City will work with the school district for project entitlements.
VI. MAJOR INITIATIVES – PROJECTS
Public Works Director Webb utilized the presentation to outline the following proposed projects: the Aquatic Complex at Lower Castaways, MacFadden Plaza and Newport Pier Rehabilitation, new Police Department Building, concrete pavement needs, City Trolley Program, and the potential trolley expansion route.
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15 City of Newport Beach
Planning Session
February 1, 2025
Volume 66 - Page 261
Mayor Stapleton started a conversation about the concrete pavement needs (Councilmember Blom left the room due to real property interest conflicts associated with the Balboa Island Concrete Street Replacement Project) and Public Works Director Webb utilized the presentation to review the project. He responded to Mayor Pro Tem Kleiman’s questions by stating that the concrete on Ocean Boulevard is old and cracked, but can last another 10 years , his department has received a lot of complaints about it, and is included in the project list because there is work that will be occurring in the area . Furthermore, he responded to Councilmember Weigand’s concern for safety by stating that there are no unsafe portions of roadway, and Council can anticipate this type of work by adding it to the plans and suggested a progressive approach. In response to Mayor Stapleton’ s concern for involving the F inance Committee or a subcommittee in the funding discussion, Public Works Director Webb noted that the seawall is in the master plan and the Finance Committee is setting aside money, but these projects are outside of the FFP , and City Manager Leung relayed that the FFP is reviewed yearly with the Finance Committee.
Mayor Stapleton noted funding sources for specific projects and discussed the steps for the Aquatic Complex with City Manager Leung. Public Works Director Webb asked if Council had any additional concerns before the City spends funds. In response to Councilmember Blom’s question, Public Works Director Webb stated that Council approved $500,000 and not much of it has been spent. City Manager Leung stated that the CEQA contract will come before Council in March and the bulk of the funds were allocated to CEQA. In response to Councilmember Barto’s question, Public Works Director Webb indicated that additional funding can be added when Council is presented with a contract in March for environmental and design consultants.
In response to Councilmember Grant’s question, Assistant City Manager Jurjis stated that the CCC is supportive of the project and identified areas needing attention in the design process. Councilmember Blom thought that CEQA approval and community outreach would come before bringing the final design to Council. Public Works Director Webb relayed that CEQA needs aspects of the project defined and a 30% design proposal is satisfactory. Councilmember Weigand indicated he could support minimal spending so Council can continue to study it, but thought there might be a better site for a community pool. City Manager Leung pointed out that CEQA must be specific. Mayor Stapleton noted that the City will conduct a traffic study and outreach.
City Manager Leung, Public Works Director Webb, and Deputy Public Works Director Houlihan reviewed the funding for the MacFadden Plaza and Newport Pier Rehabilitation Project. Public Works Director Webb noted that the consultant will be having a discussion with Council and the community to refine the plan that will lead to concept development and a design contract. Councilmember Blom referred to this area as an iconic piece of Newport Beach and the most difficult section to improve. Public Works Director Webb stated that Council can form an oversight group for this project since there will be many decisions to make.
Mayor Stapleton supported the idea of establishing an oversight group and he, Mayor Pro Tem Kleiman, and Councilmember Blom offered to serve on it. City Attorney Harp stated the matter should come back to Council for adoption, but Councilmember Weigand suggested conducting a study session before creating an ad hoc committee . Public Works Director Webb clarified that community outreach will begin in the next couple of months regarding the project and then the project will come back to Council during a study session for discussion. Mayor Stapleton asked to be involved with the community outreach.
Regarding the Police Department headquarters, Public Works Director Webb confirmed that the project is included in the FFP.
Mayor Stapleton recapped the timeline and funding for the trolley project. Public Works Director Webb utilized the presentation to review the City trolley plans, the partnership with OCTA, and the opportunity to reinvent transportation in the City. Mayor Pro Tem Kleiman, Councilmember Blom, and Councilmember Grant supported starting a Citywide trolley system. Councilmember Grant suggested moving forward more quickly with linking the Back Bay and walking trails. Mayor Stapleton concurred and there was a consensus (7-0) for creating a Citywide trolley system. City Manager Leung indicated that a study session will occur to determine if the trolley will be seasonal or year -round. Public Works Director Webb noted that a study with OCTA will also come back to Council before the summer that will show potential routes and options.
Mayor Pro Tem Kleiman added that staff is working on a real-time parking assessment that is linked to the City’s app to avoid gridlock scenarios. Assistant City Manager Jurjis clarified that the app concept will come back to Council before being implemented and Public Works Director Webb indicated that staff could prepare a chart of options and related costs.
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16 City of Newport Beach
Planning Session
February 1, 2025
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Dennis Bress supported conducting a traffic study for the Aquatic Complex and expressed support for the trolley system.
Virginia Anders -Ellmore suggested establishing a communication system for connect ing homeowner associations, encouraged undergrounding utilities throughout the City, and asked that the trolleys be electric powered.
Adam Leverenz suggested that Council conduct community outreach for the Aquatic Complex and asked Council to consider an alternative location if the matter appears to be divisive and expensive.
Dennis Baker suggested that the City gain a good understanding of what projects and funding sources may be in jeopardy due to the freezing of some Federal grants.
Jim Mosher stated that the agenda did not include concrete pavement needs (Councilmember Blom left the room), Council’s direction should come after public comment s, and the Police Department h eadquarters project needs more transparency.
Carmen Rawson suggested that the trolley system serve the OASIS Senior Center to support the elderly , thought public art should be included on 15th Street, and noted concrete cracks and holes on the boardwalk (City Clerk Brown left the room).
VII. PUBLIC COMMENTS ON NON-AGENDA ITEMS
Dennis Bress reported on noise reductions from John Wayne Airport (JWA). However, he expressed concern about inaccurate Title 21 reporting to the State from JWA’s Access and Noise Office and emphasized a need for the City to support a movement for the County to audit the Access and Noise Office.
Jim Mosher noted that heavier planes use JWA and thought an average departure today is noisier than 25 years ago . He suggested that the Environment Quality Affairs Committee ( EQAC) and Aviation Committee be reactivated.
Nancy Scarborough suggested forming a permanent safety committee.
Jack Callahan agreed that EQAC should return, requested information about the bank issue surrounding the Balboa Island parade, and thanked staff for their support and time.
Mayor Stapleton thanked everyone in attendance.
VI. ADJOURNMENT – 12:26 p.m.
The special meeting 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 on January 29, 2025, at 12:30 p.m.
____________________________________________
Joe Stapleton
Mayor
__________________________________________
Leilani I. Brown
City Clerk
Draft
17 CITY OF NEWPORT BEACH
City Council Meeting Minutes
Regular Meeting
February 11, 2025
Volume 66 - Page 263
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. INVOCATION – Michael Mooslin, First Church of Christ, Scientist, Newport Beach
III. PLEDGE OF ALLEGIANCE – Councilmember Weber
IV. PRESENTATION
History of the Red Car Trolley by Bill Lobdell
Bill Lobdell utilized a presentation to discuss the Pacific Electric red car trolley and its impact on Newport Beach's development , how the trolley, introduced in 1902, shaped the City by bringing tourists and facilitating land development , explained the partnership between W.S. Collins and Henry Huntington that led to the trolley's establishment, and how it connected Newport Beach to the rest of Southern California. He also mentioned the construction of the Balboa Pavilion in 1906 as a key attraction linked to the trolley line. The presentation concluded with information about the trolley's operation until 1953 and its lasting influence on the City's layout.
Mayor Stapleton then provided an update on the city's plans to introduce new trolleys in the summer of 2026, with the goal of connecting different parts of the city and reducing car usage
V. PUBLIC COMMENTS ON AGENDA AND NON-AGENDA ITEMS
Jim Mosher commented on the deviation from the normal protocol of placing public comments on non-agenda items later in the agenda. He congratulated Mayor Pro Tem Klein on her remote participation in a recent California Coastal Commission meeting and questioned why Newport Beach does not offer remote participation for Council meetings. He also suggested that Councilmembers clarify when they are speaking as individuals rather than on behalf of the entire Council.
Adam Leverenz commended City Manager Leung on selecting David Miner as the new Police Chief, expressed approval of hiring from within the department and praised the new Chief's qualities.
VI. CITY COUNCIL ANNOUNCEMENTS AND ORAL REPORTS FROM CITY COUNCIL ON
COMMITTEE ACTIVITIES
Councilmember Barto:
Attended and discussed last week’s Water Quality/Tidelands Committee meeting
Councilmember Grant:
Congratulated the new Police Chief
Reported on a meeting and tour with Supervisor Katrina Foley at the MemorialCare Women’s Health Pavilion - Saddleback Medical Center and discussed a county proposal for a model ordinance addressing sober living facilities
Thanked staff for holding the annual Planning Session • Congratulated Mayor Stapleton for the 43rd Annual Mayor’s Dinner and thanked Speak Up Newport Draft
February 25, 2025
Agenda Item No. 1
18 City of Newport Beach
February 11, 2025
Volume 66 - Page 264
• Attended the Chamber of Commerce’s Wake Up Newport event where Fire Chief Boyles, Battalion Chief Novak, and Fire Marshal Gillespie reported on fire preparedness
Mayor Pro Tem Kleiman:
Hosted a legislative ad hoc committee for the California Sober Living Task Force Spoke with homeowner associations about fire mitigation and public safety Attended the So Cal Advanced Air Mobility working group meeting • Announced that the next Aviation Committee Meeting will be held on February 24, 2025 at the OASIS Senior Center
Mayor Stapleton:
Attended the annual Planning Session, the Police Department Mobile Café event, and the Mayor's Dinner
Provided updates on the trash interceptor project and announced the ribbon cutting will be held on March 7, 2025
Discussed his upcoming self-funded trip to London with Visit Newport Beach for tourism promotion
VII. MATTERS WHICH COUNCILMEMBERS HAVE ASKED TO BE PLACED ON A FUTURE
AGENDA (NON-DISCUSSION ITEM)
Consider creating an ad hoc committee to review the structure, membership, roles and responsibilities of the Aviation Committee [Blom]
The City Council unanimously concurred to bring the item back at a future meeting.
VIII. PUBLIC COMMENTS ON CONSENT CALENDAR
Regarding Item 5 (Slurry Seal Program), Jim Mosher noted that cracks in his street and in the Dover Shores area have reappeared less than a year after the sealing work was completed and stated that the contractor might need to do follow-up work.
IX. CONSENT CALENDAR
READING OF MINUTES AND ORDINANCES
1. Minutes for the January 28, 2025, City Council Meeting Waive reading of subject minutes, approve as written, 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.
RESOLUTION FOR ADOPTION
3. Resolution No. 2025-7: Creating the Community Development Block Grant Ad Hoc Advisory 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 -7, A Resolution of the City Council of the City of Newport Beach, California, Creating the Community Development Block Grant Ad Hoc Advisory Committee; and c) Confirm the appointments of Mayor Pro Tem Lauren Kleiman and Councilmember Sara J.
Weber to serve on the Community Development Block Grant Ad Hoc Advisory Committee .
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19 City of Newport Beach
February 11, 2025
Volume 66 - Page 265
CONTRACTS AND AGREEMENTS
4. East Coast Highway and San Miguel Drive Pavement Rehabilitation and Evening Canyon Road Drainage Improvements – Notice of Completion for Contract No. 8925-2 (23R11) a) Accept the completed work and authorize the City Clerk to file a Notice of Completion for the project.
5. Slurry Seal Program (Fiscal Year 2022-23 and Fiscal Year 2023-24) – Notice of Completion for Contract No. 9380-1 (24R04)
a) Accept the completed work and authorize the City Clerk to file a Notice of Completion for the project.
6. Approval of On -Call Maintenance and Repair Services Agreement for Portable Toilet Services with United Site Services of California, Inc. (C-8445-3) 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 United Site Services of California, Inc. for on -call portable toilet services for a five -year term and total not -to-exceed amount of $200,000; and
c) Authorize the Mayor and City Clerk to execute the agreement.
7. Amendment to Professional Services Agreement with Arts Orange County for Sculpture Exhibition Project Management Extension
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 Amendment No. Two to the Professional Services Agreement with Arts Orange County for Sculpture Exhibition – Phase VIII (C-8463-6), which extends the term of the agreement to September 1, 2026, and increases the contract amount by $7,500, and authorize the Mayor and City Clerk to execute the agreement; and
c) Approve Amendment No. One to the Professional Services Agreement with Arts Orange County for Sculpture Exhibition – Phase IX (C-8463-7), which extends the term of the agreement to October 1, 2027, and increases the contract amount by $7,500, and authorize the Mayor and City Clerk to execute the agreement.
8. Proposal to Reduce Flashy Fuels and Restore Habitat in Buck Gully Reserve (C-9825-1) a) Find this project exempt from the California Environmental Quality Act (CEQA) pursuant to Sections 15304 (Class 4 - Minor Alterations to Land) and 15308 (Class 8 - Actions Taken by Regulatory Agencies for Protection of the Environment) of the CEQA Guide lines, California Code of Regulations, Title 14, Division 6, Chapter 3, because it has no potential to have a significant effect on the environment;
b) Approve Budget Amendment No. 25 -053 transferring $425,055 from the unappropriated General Fund balance to the General Fund CIP and appropriating it into Account No. 01201928-911047-BGFRR; and
c) Authorize the City Manager to execute a contract that is acceptable to the City Attorney with Irvine Ranch Conservancy in the amount of $425,055 to reduce flashy fuels and restore habitat in Buck Gully.
MISCELLANEOUS
9. Confirmation of Nominations to Fill the Vacancy on the Planning 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 Draft
20 City of Newport Beach
February 11, 2025
Volume 66 - Page 266
b) Confirm the nominations of Greg Reed, Loren Smith, and Drew Teicheira to fill the vacancy on the Planning Commission.
10. Confirmation of Councilmember Michelle Barto’s and Councilmember Noah Blom’s Citizen Appointments to the Finance Committee
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 this action will not result in a physical change to the environment, directly or indirectly; and b) Confirm Councilmember Michelle Barto’s appointment of William Kenney, Jr. and Councilmember Noah Blom’s appointment of Kory Kramer to serve on the Finance Committee until June 30, 2025.
11. Financial Statement Audit Results and Related Communication for the Fiscal Year Ended June 30, 2024
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.
12. Acceptance of the National Highway Traffic Safety Administration (NHTSA) Illegal Passing of Stopped School Buses-High Visibility Enforcement Pilot Project 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) Accept a $57,800 NHTSA Illegal Passing of School Buses -High Visibility Enforcement Pilot Project award granted to the Newport Beach Police Department by Toxcell LLC; and c) Approve Budget Amendment No. 25 -052 increasing NBPD revenue estimates and expenditure appropriations by $57,800.
Motion by Mayor Pro Tem Kleiman, seconded by Councilmember Barto, to approve the Consent Calendar.
The motion carried unanimously.
X. ITEMS REMOVED FROM THE CONSENT CALENDAR – None
XI. PUBLIC HEARINGS
13. Ordinance No. 2025 -1: Granting Non -Exclusive Commercial Solid Waste Franchise Agreements
Mayor Stapleton opened the public hearing. Hearing no testimony, he closed the public hearing.
Motion by Councilmember Weigand, seconded by Councilmember Blom, 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; and b) waive full reading, direct the City Clerk to read by title only, and introduce Ordinance No. 2025-1, An Ordinance of the City Council of the City of Newport Beach, California, Granting Non-Exclusive Franchise Agreements for Commercial Solid Waste and Divertible Materials Handling Services Within the City of Newport Beach , and pass to second reading on February 25, 2025.
The motion carried unanimously.
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21 City of Newport Beach
February 11, 2025
Volume 66 - Page 267
14. Resolution No. 2025-8: Amending the Schedule of Rents, Fines and Fees to Provide a Pass- Through of Credit Card Transaction Fee Charged by Third Parties Directly to the Consumer
Mayor Stapleton opened the public hearing.
Jim Mosher expressed concern for the public’s understanding of the new fee structure.
City Manager Leung explained that credit card fees charged to the City from the merchant payment processor will be passed along to the public.
Hearing no further testimony, Mayor Stapleton closed the public hearing.
Motion by Mayor Stapleton, seconded by Councilmember Grant, to b) 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. 2025-8, A Resolution of the City Council of the City of Newport Beach, California, Amending the Schedule of Rents, Fines and Fees to Provide a Pass-Through of Credit Card Transaction Fee Charged by Third Parties Directly to the Consumer.
The motion carried unanimously.
15. Resolution No. 2025 -9: Approving a Request to Waive City Council Policy L -2, Driveway Approaches, and a Coastal Development Permit for a Duplex at 3601 Lake Avenue
Assistant Planner Arregui utilized a presentation to explain the reasons for the waiver request and the project's compliance with coastal development permit requirements . He also noted proposed amendments to the resolution.
Mayor Stapleton opened the public hearing. Hearing no testimony, he closed the public hearing.
Motion by Councilmember Weigand, seconded by Councilmember Weber, to a) find this project exempt from the California Environmental Quality Act (CEQA) pursuant to Section 15303 of the CEQA Guidelines, California Code of Regulations, Title 14, Chapter 3, under Class 3 (New Construction or Conversion of Small Structures), because it has no potential to have a significant effect on the environment; and b) adopt amended Resolution No. 2025 -9, A Resolution of the City Council of the City of Newport Beach, California, Waiving City Council Policy L -2 (Driveway Approaches) and Approving a Coastal Development Permit to Demolish an Existing Single -Unit Dwelling and Construct a New Duplex Located at 3601 Lake Avenue (PA2024-0105).
The motion carried unanimously.
XII. CURRENT BUSINESS
16. Employment Agreement for City of Newport Beach Police Chief (C-9826-1)
City Manager Leung outlined the key components of the employment agreement, including the annual base salary, cost of living increases, termination clause, and contract term.
In response to Councilmember Blom’s questions, City Manager Leung stated that the salary range has been in effect since the last salary survey, the salary is in line with the former Police Chief’s salary, Cost of Living Adjustments (COLA) are associated with the Police Management Association’s (PMA) and are not reflected in the base pay, and the range reflects only the base salary.
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22 City of Newport Beach
February 11, 2025
Volume 66 - Page 268
Mayor Pro Tem Kleiman supported Police Chief Miner’s appointment; however, suggested clarifying that the base pay is subject to the salary range of the Police Chief’s position exempting scholastic and other pay, and any conflicts between the Key and Management Plan and PMA for COLA versus other benefits. She thought that Section 4E was arbitrary and inconsistent with the Fire Chief ’s agreement and suggested amending the contract to have more concrete bonus pay s that are not discretionary. City Manager Leung noted that there are no set adjustment s on the merit bonuses for executive management. Mayor Pro Tem Kleiman proposed leaving that in and adding a provision with a set increase. City Attorney Harp discussed “locked in” salary increases in the Fire Chief ’s employment contract and proposed annual locked in increases for the Police Chief up to the range of the salary schedule or a bonus that is not tied to performance that does not impact the base pay or salary schedule.
In response to Councilmember Blom ’s question, City Manager Leung confirmed that the whole salary range coincides with the COLA increase that is tied to PMA and is separate from a merit increase.
Councilmember Blom suggested a 3% merit bonus increase yearly.
Motion by Councilmember Blom, seconded by Mayor Pro Tem Kleiman , to 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) authorize the City Manager to Execute an amended Employment Agreement Between the City of Newport Beach and David Miner for Police Chief Services, including the amendments suggested by Mayor Pro Tem Kleiman and adding the 3% annual merit bonus.
At Councilmember Grant’s request, City Attorney Harp reviewed the two options for how to handle the bonus: 1) for a base pay annual increase of 3% up to the maximum of the salary schedule which is PERS -able; or 2) a 3% bonus of the base salary that is paid independent of a performance evaluation and is not PERS-able.
Councilmember Blom indicated that his intent is to ensure there is a merit bonus piece in the Police Chief’s agreement that is attributed to his performance and expressed concern regarding the current salary range which is derived from an outdated compensation survey.
In response to Councilmember Barto’s question, City Manager Leung stated that the 3% increase will be outside of the salary range.
In response to City Manager Leung’s question, Councilmember Blom indicated that he envisions that the bonus would be a one-time lump payment at the end of the year once the contract is fulfilled.
Councilmember Weigand asked what the disqualifier would be. Councilmember Blom stated that right now there is no bonus locked in and this amendment will be adding a floor to the bonus.
Councilmember Barto suggested that the draft language be brought back at the February 25, 2025 City Council meeting.
City Attorney Harp stated that Council can approve the item and then bring back an amendment to the contract. Councilmember Weigand asked about retroactive pay to the contract. City Attorney Harp indicated that there is time for the bonus discussion to return to Council since it would not be paid until a year from now.
City Manager Leung thought it was best to approve the bulk of the agreement now, so it is in place for the next pay period.
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23 City of Newport Beach
February 11, 2025
Volume 66 - Page 269
Substitute motion by Councilmember Grant, seconded by Councilmember Barto , to bring back language regarding the bonus structure at the February 25, 2025 City Council meeting.
With Mayor Pro Tem Kleiman, Councilmember Blom, and Councilmember Weber voting “no,” the motion carried 4-3.
Motion by Mayor Pro Tem Kleiman, seconded by Councilmember Blom , to 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) authorize the City Manager to Execute an Employment Agreement Between the City of Newport Beach and David Miner for Police Chief Services, including the amendments suggested by Mayor Pro Tem Kleiman.
The motion carried unanimously.
XIII. MOTION FOR RECONSIDERATION – None
XIX. ADJOURNMENT – 4:54 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 February 6, 2025, at 4:00 p.m.
____________________________________________
Joe Stapleton
Mayor
__________________________________________
Leilani I. Brown
City Clerk
Draft
24 February 25, 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 1. Minutes for the February 1, 2025 Planning Session and February 11, 2025 City Council Meeting
The passages shown in italics below are from the draft minutes with suggested corrections shown in strikeout underline format. The page number refers to Volume 66.
held. Shouldn’t they?
removal by the Costa Mesa Sanitation District, supported an increased use of equestrians by the Police Department, and expressed concern for the use of drones in the same area as an airport.”
information with the trash bills. He asked the City to review the cost associated with building an aquatic center at Lower Castaways and noted the site is considered as recreational and commercial by the General Plan with a maximum building size of 2,000 square feet, but the proposed plan exceeds this by four times.”
City Manager Jurjis stated that the NewportMesa Unified School District’s property has been identified as a housing opportunity site, the City will receive credit for it and has jurisdiction for its planning, conversations with the school district have occurred, and the City will work with the school district for project entitlements.”
Leung stated that the salary range has been in effect since the last salary survey, the salary is in line with the former Police Chief’s salary, Cost of Living Adjustments (COLA) are associated with the Police Management Association’s agreements (PMA) and are not reflected in the base pay, and the range reflects only the base salary.” [?] Item 9. First Amended and Restated Employment Agreement with the City of Newport Beach Police Chief
The proposed minimum 3% annual base salary increase seems rather different from the bonus discussed at the last Council meeting, and the staff report does not explain what variations were considered, by whom, or why this particular one was selected.
Moreover, when amendments to contracts are proposed, it is customary to provide a redline so the detailed changes can be seen and compared to the summary of their purported effects provided in the staff report. It is unclear why no redline has been provided here.
It is unclear why so many words are needed (on agenda packet page 9-5) to describe a 3% increase capped by the upper limit of the salary range – and even then requiring an example of how those words mean the cap might cause the increase to be limited to 2% instead of 3%.
Received After Agenda Printed
February 25, 2025
Written Comments
25 February 25, 2025, City Council agenda comments - Jim Mosher Page 2 of 3 Couldn’t something like the more concise language in the next paragraph, imposing the same cap
on
the
City
Manager’s
authority
to
raise
the
base
salary,
have
been
used,
eliminating
the
need
for
an
example?
More importantly, despite the many words, it is unclear how this 3% paragraph 1 adjustment is intended
to
interact
with
the
3%
increase
described
in
paragraph
3 on
page
9-6.
Would
the
3%
increase
pursuant
to
paragraph
3 fulfill,
in
the
year
it
occurs,
the
paragraph
1 promise
of
a
3%
increase?
Or
is
it
in
addition?
Item 10. Services and Purchase Agreement with BRINC Drones, Inc. for
the
Police
Department
Drone
Program
This proposal is obviously extremely expensive compared to what, according to Item 4 of the present
agenda
(page
4-41)
was
the
$1,449
cost
of
the
NBPD’s
evaluation
drone.
Indeed, the price of the six new drones is not obvious from the five-year Agreement Costs schedule
on
page
10-4,
since
they
seem
to
be
delivered
at
the
beginning
of
year
1,
but
paid
for
over
the
five
years
with
their
cost
folded
into
some
not
clearly-stated
annual
maintenance
cost.
Assuming the drones are designed to last more than five years, is the annual cost expected to drop
after
year
5?
The
statement
at
the
end
of
the
Fiscal
Impact
paragraph
(page
10-5)
that
“
Funding
for
subsequent
fiscal
years
will
be
addressed
in
the
annual
budget
preparation
process
”
is
hardly
informative
on
that
point.
Is
it
unreasonable
to
ask
what
it
is
expected
to
be?
Additionally, isn’t the implementation of this program supposed to be preceded by development of
a
drone
policy?
What
is
the
status
of
that
policy?
Item 11. Confirmation of Appointments to the General Plan Update Steering
Committee
and
the
General
Plan
Advisory
Committee
As a former GPAC member, but commenting as an individual, I continue to find this process of terminating
and
then
reappointing
the
GPUSC
and
GPAC
pointlessly
disruptive.
According to the timeline shown when the full GPAC last met on November 6, 2024, the City’s consultant team was expected to be completing its draft of its proposed new general plan in January,
with
GPAC
review
in
February
and
March,
which,
I
believe,
was
expected
to
complete
our
role.
Instead,
we
were
told
our
appointments
would
terminate
on
February
11 and
we
would
have
to
be
later
reappointed
to
finish
the
job
we
had
promised
to
do.
I understand a single new application was received in response to the vacancy announcement, and
four
dispirited
existing
members
showed
no
further
interest
in
serving.
In my view, this has done nothing but pointlessly delay the process by a month or more. Moreover, I now see that two of the former members who did express an interest in concluding their
job,
Charles
Klobe
and
Nancy
Scarbrough,
are
not
being
recommended
for
reappointment.
I cannot guess the reason they were singled out, and think an explanation should be provided. Charles chaired the subcommittee reviewing the Recreation and Natural Resources Elements, while
Nancy
chaired
the
subcommittee
reviewing
the
Safety
Element.
Both
were
fully
engaged,
26 February 25, 2025, City Council agenda comments - Jim Mosher Page 3 of 3 came prepared to the meetings, had better attendance records than a number of the former members
that
are
being
recommended
for
reappointment,
and
ran
efficient
and
thoughtful
subcommittee
meetings.
Nancy, in particular, even ran for City Council in 2024 and 16,359 residents of our City expressed confidence in her judgment. While a greater number seem to have preferred a different
viewpoint,
if
the
Council
wants
a
diversity
of
outlooks,
as
the
GPAC
was
originally
intended
to
have,
as
well
as
maintaining
continuity
on
the
subcommittees,
I
think
one
or
both
of
these
former
members
should
be
continued,
in
addition
to
the
new
appointees.
Item 12. Ordinance No. 2025-3: Designating a Portion of Corona del Mar
as
a
Safety
Enhancement
Zone
and
Expanding
West
Newport
Safety
Enhancement
Zone
to
Include
Memorial
Day,
Fourth
of
July,
and
Labor
Day
Holidays
This seems like a bit of an overreaction to me. I thought the current limited program of enhanced
enforcement
had
been
thought
to
have
worked,
and
the
problem
it
addressed
on
the
4th
of
July
in
West
Newport
to
have
gotten
better,
not
worse,
so
there
would
be
no
need
to
expand
it
to
more
areas
or
more
days.
How do the numbers of calls for service and arrests on the days cited in CdM compare to the numbers
in
the
same
area
on
other
peak
days
of
the
year?
And
under
this
relaxed
standard,
wouldn’t
a
much
larger
portion
of
the
Peninsula
qualify
as
an
equally
problematic
area?
Don’t
they
attract
holiday
beachgoers
and
vacationers
as
well?
Whatever the need, the “legal” description of the new “Corona del Mar Safety Enhancement Zone”
proposed
on
page
12-9
(unlike
that
for
the
existing
“West
Newport
Safety
Enhancement
Zone”)
does
not
seem
complete:
“ the area bounded by the Pacific Ocean on the south, San Joaquin Hills Road on the north,
MacArthur
Blvd.
on
the
west
and
Hazel
Drive
on
the
east
,
…”
How does one draw the line from MacArthur Blvd. to the Pacific Ocean? Or from Hazel Drive to San
Joaquin
Hills
Road?
The
roads
do
not
go
through.
Apparently
a
person
wanting
to
know
if
they
are
in
the
CdM
Enhancement
Zone,
or
not,
would
need
to
know
the
boundaries
of
“
Newport
Beach
Police
Department
Reporting
District
44 of
Area
4 .”
But
where
does
one
find
a
map
of
that?
Does
a
map
need
to
be
included
in
the
ordinance?
Additionally, the staff report is not clear as to what the consequences of being in a designated Safety Enhancement Zone are. As I read NBMC Section 1.04.010.B, the fines for any violation of any provision of the entire Municipal Code are tripled in the designated areas during the designated
hours.
Do
the
good
residents
and
business
owners
of
these
areas
really
want
to
face
the
threat
of
fines
for
code
violations
unrelated
to
partying
arbitrarily
triplied
on
certain
days
of
the
year
to
mitigate
a
problem
they
may
not
even
feel
needs
addressing?
And
do
they
really
want
their
guests
and
patrons
to
see
signs
warning
them
they
are
entering
a
problem
area?
27 3-1
NEWPORT BEACH
City Council Staff Report
COUNCIL STAFF REPORT
CITY OF
February 25, 2025
Agenda Item No. 3
ABSTRACT:
On February 11, 2025, the City Council held a public hearing to consider granting Non-Exclusive Commercial Solid Waste Franchises to BC Hauling and Demolition, California Waste Services LLC and Tim Greenleaf Engineering and introduced Ordinance No. 2025 -1. Should the Council adopt the ordinance and thereby grant the franchise agreements to the three entities , the effective date would be March 27, 2025 , and the expiration date would be October 7, 2027.
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) Conduct second reading and adopt Ordinance No. 2025-1, An Ordinance of the City Council of the City of Newport Beach, California, Granting Non -Exclusive Franchise Agreements for Commercial Solid Waste and Divertible Materials Handling Services Within the City of Newport Beach to BC Hauling and Demolition, California Waste Services LLC and Tim Greenleaf Engineering.
DISCUSSION:
On February 11, 2025, the City Council held a public hearing to consider granting non-exclusive commercial solid waste and divertible materials handling franc hises to BC Hauling and Demolition, California Waste Services LLC , and Tim Greenleaf Engineering, and introduced Ordinance No. 2025-1.
No protests were received during the hearing . Based upon its review, staff believes the three franchise applicants met the Newport Beach Municipal Code Section 12.63.080 franchise application requirements.
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: Ordinance No. 2025-1: Granting Non -Exclusive Commercial Solid Waste Franchise Agreements
28 Ordinance No. 2025-1: Granting Non-Exclusive
Commercial Solid Waste Franchise Agreements
February 25, 2025
3-2
Staff recommends the City Council adopt Ordinance No. 2025-1 and grant the applicants’ Non-Exclusive Commercial Solid Waste Franchise Agreements . If the City Council determines changes should be made in the terms and conditions of a franchise, a new resolution of intention must be adopted, and the proceedings repeated. The franchises would become effective 30 days after the ordinance adoption, on March 27, 2025, contingent on the execution of the franchise agreement s and approval of each firm’s insurance and bond requirements. The franchises would expire October 7, 2027.
FISCAL IMPACT:
Approved franchisees that are granted Non -Exclusive Franchise Agreements for Commercial Solid Waste Handling Services within the city must pay a franchise fee to the City of Newport Beach equal to 16% of the gross receipts of all commercial franchise services provided by the franchisee in the city.
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 – Ordinance No. 2025-1
29 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
WHEREAS, the City Council of the City of Newport Beach (" City") finds and determines that the collection of municipal solid waste and divertible materials, including recyclable materials, food scraps, green waste, wood waste, construction and demolition debris, and all other materials that can be diverted from landfill disposal ( collectively Commercial Solid Waste") generated within the City is a vital public service; WHEREAS, the City Council further finds and determines that the collection, transportation, storage, and disposal of municipal solid waste and the collection, transportation, processing, and diversion of processable municipal solid waste and divertible materials (" Commercial Franchise Services") is a matter of great public concern because improper control of such matters subjects the City to potential liability, damages and penalties, and may create a public nuisance, air pollution, fire hazard, infestation and other problems affecting the public health, safety and welfare; WHEREAS, the non- exclusive franchises for the use of public streets to provide Commercial Franchise Services promotes the public health, safety and welfare by providing permanence and stability among those businesses wishing to provide such service and accountability to the City for compliance with current and future state mandates;
WHEREAS, on October 22, 2019, the City Council approved a new model franchise agreement in compliance with state law (" 2020 Franchise"), which expires in the year 2027;
WHEREAS, the City has received applications from: ( 1) BC Hauling & Demolition, Inc.; ( 2) California Waste Services LLC, and ( 3) Greenleaf Engineering ( collectively, Proposed Grantees"), who wish to perform work under the 2020 Franchise; WHEREAS, pursuant to Article XIII ( Franchises) of the City Charter, Chapter
12. 63 ( Solid Waste Management) of the Newport Beach Municipal Code (" NBMC"), and California Public Resources Code Sections 40059, 49300, and 49500 through 49523, or any successor statutes, the City is authorized to enter into non-exclusive franchise agreements for Commercial Franchise Services with private solid waste haulers;
ATTACHMENT A
3-3
30 Resolution No. 2025- 6
WHEREAS, pursuant to City Charter Section 1301 ( Resolution of Intention.
Notice and Public Hearing), the City Council, prior to granting any franchise, shall pass a resolution declaring its intention to grant a franchise, stating the name of the proposed grantee( s), the character of the franchise, and the terms and conditions upon which it is proposed to be granted; and
WHEREAS, such resolution shall fix and set forth the day, hour and place when and where any personshaving any interest therein or any objection to the granting thereof may appear before the City Council and be heard thereon.
NOW, THEREFORE, the City Council of the City of Newport Beach resolves as follows:
Section 1: The City Council does hereby declare its intention to grant non- exclusive franchises, subject to the following general terms and conditions (" Non - Exclusive Franchise"):
a. Effective date. March 27, 2025;
b. Franchise fees. Sixteen percent ( 16%) of gross monthly receipts. Five and one- half percent ( 5. 5%), shall be earmarked for the purposes of indemnifying and holding the City harmless from environmental liability associated with the franchisee's operations in the City. This portion of the franchise fee shall be paid into the City's Environmental Liability Fund. One- half percent ( 0. 5%) shall be attributable to the maintenance and implementation of the City's Source Reduction and Recycling Element; C. Term. March 27, 2025, to October 7, 2027;
d. Rates. The City shall not set franchisee' s bin rates; e. Indemnification. Franchisee shall indemnify and hold City harmless from penalties and damagesfor failure to meet state recycling requirements with respectto the portion of the Commercial Solid Waste stream collected by franchisee; f. Diversion requirements. Franchisee shall divert the minimum amounts required by state law, of all processable municipal solid waste, recyclable materials, food scraps, green waste, and construction and demolition debris collected by commercial franchisee;
3-4
31 Resolution No. 2025- 6
g. Disposal requirements. Franchisee shall dispose of Commercial Solid Waste, not otherwise diverted, in Orange County landfills pursuant to the City' s waste disposal agreement with the County of Orange. City maintains the right to designate disposal facilities to be used by franchisee;
h. Billing. Franchisee shall be responsible for all billing and collection for its accounts;
i. Termination. A Franchise may be terminated pursuant to Section 12.63. 140 Solid Waste Management - Termination) of the NBMC if the Council finds that franchisee has failed to comply with, or to do anything required of the franchisee by Chapter 12.63 Solid Waste Management) of the NBMC; has violated any provision of the ordinance grantingthe franchise; hasviolatedany provisionof the 2020 Franchiseor any federal, state or local law or regulation applicable to franchisee' s operations under the franchise, or if any provisionof Chapter12.63 (SolidWasteManagement) ofthe NBMCor the 2020 Franchise is repealed or becomes or is declared to be invalid, and the City Council expressly finds that such provision constitutes a material consideration to the granting or continuation of such Non - Exclusive Franchise;
j. Application requirements. Prior to obtaining the 2020 Franchise, franchisee shall designate the specific Commercial Franchise Services for which it desires to apply and shall demonstrate competence in and compliance with the City' s insurance, equipment, and diversion requirements with respect to those Commercial Franchise Services,
k. Public education. Franchisee shall meet City' s requirements to implement recycling, diversion, and source reduction public education activities; I. Recycling/ diversion programs. Franchisee shall implement and provide recycling and diversion programs for all customers subject to California State Assembly Bills 939, 341, and 1826, Senate Bill 1383, and the California Green Building Standards Code, codified in the California Code of Regulations Title 24, Part 11 (" CALGreen"), M. Hauler representative. Franchisee shall designate a representative to assist in implementing State -imposed recycling and diversion programs; and n. Compliance. Franchisee shall comply with all state, federal laws and regulations, terms and conditions of the 2020 Franchise, the City Charter and the NBMC. 3-5
32 Resolution No. 2025- 6
Section 2: The City intends to grant the 2020 Franchiseto the following entities:
a. BC Hauling & Demolition, Inc.
b. California Waste Services LLC
C. Greenleaf Engineering
Section 3: The City Council shall conduct a public hearing on February 11, 2025, at 4: 00 p.m., or as soon thereafter as the matter may be heard, in the City Council Chambers located at 100 Civic Center Drive, Newport Beach, California, to consider granting the Proposed Granteesthe 2020 Franchise. Persons who have an interest in or objection to the granting of the 2020 Franchise to the Proposed Grantees may appear before the City Council and be heard at that date and time.
Section 4: The City Council finds the adoption of this resolution is not subject to the California Environmental Quality Act (" CEQA") pursuant to Sections 15301 and 15308 of the CEQA Guidelines, California Code of Regulations, Title 14, Division 6, Chapter 3, because the resolution does not change nor expand existing solid waste operations and facilities within the City. This resolution is also consistentwith the goals of California State Assembly Bills 939, 341, and 1826, Senate Bill 1383 and The California Solid Waste Management Act, CALGreen, as well as the objectives of the City' s Source Reduction and Recycling Element.
Section 5: The recitals provided in this resolution are true and correct and are incorporated into the operative part of this resolution.
Section 6: If any section, subsection, sentence, clause or phrase of this resolution is, for any reason, held to be invalid or unconstitutional, such decision shall not affect the validity or constitutionality of the remaining portions of this resolution. The City Council hereby declares that it would have passed this resolution, and each section, subsection, sentence, clause or phrase hereof, irrespective of the fact that any one or more sections, subsections, sentences, clauses or phrases be declared invalid or unconstitutional.
3-6
33 Resolution No. 2025- 6
Section 7: This resolution shall take effect immediately upon its adoption by the City Council, and the City Clerk shall certify the vote adopting the resolution.
Section 8: Pursuant to City Charter Section 1301, this resolution shall be published in the City's official newspaper within fifteen (15) days of its adoption and at least ten ( 10) days prior to February 11, 2025.
ADOPTED this 28th day of January, 2025.
ATTEST:
APPROVED AS TO FORM:
CITY ATTORNEY' S OFFICE
C, 1
Aarolln C. Harp
City Attorney
Attachment: 2020 Non - Exclusive Commercial Franchise Agreement Sample 3-7
34 NON- EXCLUSIVE 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 2022 (" 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:
PPrITAI S
This Agreement is entered into on the basis of the following facts:
A. Assembly Bill (" AB") 939 ( the California Integrated Solid Waste Management Act of 1989, hereinafter the " Act"; Public Resources Code Sections 40000 et seq.) requires the City to divert from landfill disposal a minimum of fifty percent ( 50%) of all municipal solid waste generated within the City.
B. In 2011, the Act was amended by AB 341 to establish a statewide goal of diverting from landfills seventy-five percent ( 75%) of all municipal solid waste by 2020 and required the City, on or before July 1, 2012, to provide a commercial recycling program.
C. AB 341 also requires all businesses generating more than four ( 4) cubic yards per week of commercial municipal solid waste and all multifamily dwellings of five 5) units or more to arrange for recycling services by July 1, 2012.
D. In 2014, the Act was further amended by AB 1826 to require the City, on or before January 1, 2016, to provide a diversion program for collection and diversion of food scraps and green waste.
E. AB 1826 also requires commercial generators of certain quantities of food scraps and green waste to participate in a diversion program beginning on a date between April 1, 2016 and January 1, 2019, depending on the quantity of waste generated. Some smaller commercial generators are required by CalRecycle to participate on or after January 1, 2020.
F. The City has received written notification from CalRecycle of its intention to enforce the deadlines for implementation of AB 341 and AB 1826 programs within the City as required by the Act; therefore, it is important that Franchisee implement and maintain successful AB 341 an AB 1826 diversion programs for all commercial customers as required by the Act, to the satisfaction of both the City and CalRecycle. 3-8
35 G. Pursuant to Article XIII of the City Charter, Code Chapter 12.63, and Public Resources Code Sections 40059, 49300, and 49500 through 49523, or any successor statutes, the City is authorized to enter into non-exclusive franchise agreements for commercial solid waste and divertible materials handling services.
H. On October 10, 2017, the City Council of the City of Newport Beach (" City Council") adopted Ordinance No. 2017- 16, An Ordinance of the City Council of the City of Newport Beach, California, Granting Non -Exclusive Solid Waste Franchises to Provide Commercial Solid Waste Handling Services Within the City of Newport Beach.
I. As part of its adoption of Ordinance No. 2017-16, the City entered into a number of nonexclusive franchise agreements allowing solid waste haulers to operate in the City.
J. On October 22, 2019, the City Council approved revisions to the nonexclusive franchise agreement with solid waste haulers to improve procedures for compliance with Assembly Bills 341 and 1826. The revised nonexclusive franchise agreement also extended the term for an additional two ( 2) years.
K. Pursuant to Code Chapter 12. 63, Franchisee has filed a franchise application with the City to operate under the new Nonexclusive Franchise Agreement for Commercial Solid Waste and Divertible Materials Handling Services.
L. The Parties now wish to terminate the franchise agreement adopted pursuant to Ordinance No. 2017- 16 and enter into a new Nonexclusive Franchise Agreement for Commercial Solid Waste and Divertible Materials Handling Services.
ALTERNATIVE, 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. City has reviewed Franchisee' s application and Franchisee has represented it is capable of providing collection services for commercial recyclable materials, food scraps, green waste, municipal solid waste, and/or construction and demolition debris in the City.
N. Pursuant to this Agreement, City desires to authorize Franchisee to provide those non- exclusive commercial services for collection, transportation, delivery, and disposal of Municipal Solid Waste and/ or collection, transportation, processing and diversion of recyclable materials, food scraps, green waste, wood waste, and construction and demolition debris as requested in Franchisee' s application and for which Franchisee has demonstrated capability.
O. The City Council has determined that this grant of a non-exclusive franchise is in the public interest.
Non- exclusive Franchise Agreement Page 2
3-9
36 NOW, THEREFORE, the City and Franchisee do hereby agree as follows:
SECTION 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 anypartof the Cityandto usethe publicstreetsand publicright-of-waysfor suchpurpose.
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 the Effective Date of this Agreement, the parties agree that any prior authorization relating to the provision of Commercial Franchise Services within all or any part of the City arising under and pursuant to any prior franchise issued to Franchisee shall be deemed to be abandoned and of no further force or effect except the Franchisee' s obligation( s) to comply with the Diversion requirements set forth in Sections 12 through 15, the Continuing Obligations set forth in Section 23(J), or any other obligations specified in the franchise agreement granted pursuant to Ordinance No. 2017-16.
SECTION 2. TERM OF FRANCHISE
This Agreement shall commence on the Effective Date, and shall terminate on the Termination Date, unless terminated earlier as set forth herein.
SECTION 3. DEFINITIONS
AB 341 Generator" means all Municipal Solid Waste generators required by AB 341 ( Public Resources Code Section 41780. 01) to divert Recyclable Materials generated on -site from Disposal including ( A) all businesses located and operating within the City, and the responsible party, property owners, owners, operators, property managers, tenants and lessees of same, that generate four (4) or more cubic yards of Municipal Solid Waste per week; including but not limited to, retail stores, restaurants, offices, supermarkets, convenience stores, malls, strip malls, service businesses, hospitals, assisted living facilities, and federal, state and local government facilities; ( B) Multifamily Dwellings consisting of five (5) or more units regardless of the amount of Municipal Solid Waste generated; ( C) the City, its facilities, its non-residential properties, and ( D) special events that take place in the City that generate four ( 4) or more cubic yards of municipal solid waste per event whether or not sponsored by the City.
AB 1826 Generator" means all food -generating businesses within the City, and the responsible parties, property owners, owners, operators, property managers, tenants and lessees of same, that generate four (4) or more cubic yards of Municipal Solid Waste per week and are required by AB 1826, as codified in Public Resources Code Section 42649. 82, to divert all Food Scraps generated on -site from Disposal; including but not limited to, all restaurants, cafeterias, hospitals, and supermarkets; ( B) all non - food - generating businesses and the responsible parties, property owners, owners, operators, property managers, tenants and lessees of same, that generate four ( 4) or more cubic Non- exclusive Franchise Agreement Page 3
3-10
37 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).
Alternative Daily Cover" or " ADC" means cover material other than earthen material placed on the surface of the active face of a Municipal Solid Waste Landfill at the end of each operating day to control vectors, flies, fires, odors, blowing litter and scavenging. Prior to 2014, Green Waste was included in the list of CalRecycle- approved ADC materials and use of Green Waste for this purpose was counted as "Diversion" for purposes of the Act. AB 1594, passed and signed into law in 2014, phases out the use of Green Waste as ADC effective January 1, 2020. As of January 1, 2020, no Green Waste Collected within the City will not be used as ADC and Green Waste must be diverted for processing such as mulching, Composting, as feedstock for Anaerobic Digestion or other CalRecycle- approved means that counts as Diversion.
Anaerobic Digestate" or " Digestate" means the material left at the conclusion of a biological process that decomposes organic matter in an enclosed environment with little or no oxygen, resulting in a biogas and a liquid/solid stream called Digestate ( CCR Section 17896. 2( a)( 6)). Any Digestate created from Green Waste, Food Scraps or other organic materials Collected within the City must be further processed at a permitted Composting Facility or utilized in another manner that is fully permitted and approved by all federal, state and local regulatory agencies, including but not limited to CalRecycle, and that is considered as " Diversion" by CalRecycle for purposes of the Act.
Anaerobic Digestion" means a biological process that decomposes organic matter in an environment with little or no oxygen, resulting in a biogas and a liquid/ solid stream called Anaerobic Digestate. Such activity takes place at an "Anaerobic Digestion Facility." Bin( s)" means open top rectangular containers with wheels, with attached plastic or metal lids, used for storage of Municipal Solid Waste, Recyclable Materials, Green Waste, Food Scraps, Construction and Demolition Debris or other materials that are Collected by Franchisees or other Persons authorized to Collect and transport such materials within City.
Non- exclusive Franchise Agreement Page 4
3-11
38 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.
Bioengineered Feedstock Facility" means a Processing Facility that accepts Food Scraps and other Bioengineered Feedstock, chops, macerates or otherwise size - reduces the incoming materials, mixes the material with liquid and produces a slurry which is then transported or otherwise delivered to a Wastewater Treatment Plant or similar facility that uses Bioengineered Feedstock to produce methane,
CalRecycle" means the California Department of Resources Recycling and Recovery, the successor agency to the former California Integrated Waste Management Board.
Can" means a receptacle for Municipal Solid Waste, Recyclable Materials, Green Waste, Food Scraps or wood provided by the Customer and Collected using manual instead of automated) means of Collection.
Cart" means a plastic wheeled Container with a hinged lid used to store Municipal Solid Waste, Recyclable Materials, Green Waste or Food Scraps that is Collected by an automated or semi - automated vehicle.
CERCLA" means the Comprehensive Environmental Response, Compensation and Liability Act of 1980 ( 42 USC § 9601 et seq.).
City Council" means the City Council of the City of Newport Beach.
City Manager," " Finance Director," and " Public Works Director" mean the City Manager, Finance Director and Public Works Director of the City or their designee.
Clean Materials Recovery Facility (" Clean MRF") means a materials recovery facility (" MRF'), or that portion of a MRF, that processes Recyclable Materials that have been separated from Municipal Solid Waste such as Single Material Recyclables and Single Stream Recyclable Materials, containing no more than the maximum Residue or contamination allowed by CalRecycle ( 10% Residue).
Code" means the Newport Beach Municipal Code.
Collect" or " Collection" means taking physical possession of Commercial Solid Waste, or other materials, from Customers and transporting such materials by means of a motor vehicle, or other means, to a MRF, Compost Facility, other Organics Processing Facility, Construction and Demolition Debris Processing Facility, transfer station or Landfill.
Non- exclusive Franchise Agreement Page 5
3-12
39 Commercial Franchise Services" means the services provided by Franchisees pursuant to the terms and conditions of the Franchise and includes the Collection, transportation, storage, and Disposal of Municipal Solid Waste and the Collection, transportation, Processing and Diversion of Processible Municipal Solid Waste, Recyclable Materials, Green Waste, Wood Waste, Food Scraps and/ or Construction and Demolition Debris by private solid waste enterprises, and includes, without limitation, the placement of Commercial Solid Waste and Divertible Materials Containers on public property.
Commercial Premises" means all occupied real property in the City used for commercial purposes including, without limitation, wholesale or retail establishments, restaurants, other food establishments, bars, stores, shops, offices, mechanized manufacturing facilities, repair, research and development or professional services, sports or recreational facilities, industrial facilities, federal, state and local government facilities, schools, Multi -Family Dwellings that receive centralized Collection service and construction and demolition sites.
Compactor" means an enclosed rectangular or square metal container containing a ramrod to condense and compress the contents, and is typically used to store Municipal Solid Waste, Green Waste, Recyclable Materials, Food Scraps or Construction and Demolition Debris. Compactors may be small ( 3 or 4 cubic yards) for use on smaller Commercial Premises or large ( 10, 20, 30 or cubic yards) for use at large Commercial Premises such as supermarkets, hotels, and large retail stores or at construction sites. A special Roll Off vehicle equipped with hooks and a winch to pull the Compactor on to the railed bed of the vehicle is used to Collect Compactors and transport them to a Landfill or to a Processing Facility.
Compost" means the product resulting from the controlled biological decomposition of organic wastes which are separated from the Municipal Solid Waste streamat the pointof generationand includesFoodScraps, GreenWaste, and wood that are not hazardous wastes.
Compost Facility" means a facility that processes one (1) or more of the following:
Food Scraps, Green Waste, wood and food -soiled fiber such as paper napkins and paper towels, by means of outdoor windrow composting, aerated static pile composting, covered composting, vermiculture or other outdoor composting methods or covered composting with use of either finished compost or fiber, synthetic or other type( s) of cover( s) applied to the compost piles.
Composting" means the controlled microbial degradation of organic materials yielding a safe and nuisance -free finished product called Compost, a soil amendment suitable for incorporating into topsoil and for growing plants.
Construction and Demolition Debris" means all inert material of every nature, description or kind, which has resulted from the building or demolition of a structure, pavements, sidewalks, curbs, gutters and other concrete structures, including all lumber scraps, shingles, plaster, sheetrock, packaging, rubble, brick, stone, concrete, asphalt, Non- exclusive Franchise Agreement Page 6
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40 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 removingnails and screwsfrom wood, or grinding of concreteand asphalt) and then markets the materials for re -use is a " Construction and Demolition Debris Processing Facility."
Container( s)" means any object designed and used to hold or store Municipal Solid Waste, Recyclable Materials, Food Scraps, Green Waste, or Construction and Demolition Debris to be Collected by Franchisees. Containers include Carts, Bins, open top Roll Off Boxes, and Compactors.
Contamination" means materials that are not specified for Collection in particular Containers or for processing at either a Clean MRF or a Dirty MRF, which would either interfere with such processing and/or reduce the quality and value of the Recovered Materials. For example, for purposes of Collection, metals and plastics would constitute Contamination" if placed in a Food Scrap Container and tree trimmings would constitute Contamination" if placed in a Recyclable Materials Container.
Customer" means the owner, occupant, manager or user of premises at which Municipal Solid Waste, Recyclable Materials, Green Waste, Wood Waste, Food Scraps or Construction and Demolition Debris are generated who requests and receives Commercial or Multifamily Collection services for Municipal Solid Waste and/or Divertible Materials from one or more Franchisees. In the event a business, non- residential property, Multifamily dwelling or Commercial Premises shares Containers and/or Collection services, " Customer" refers only to the entity that arranges and pays for such services.
Dirty Materials Recovery Facility (" Dirty MRF") means a facility, or that certain portion of a facility, that processes Processable Municipal Solid Waste to separate Recyclable Materials, Green Waste, Wood Waste, Construction and Demolition Debris and other Divertible materials for sale to end users. Franchisees shall not utilize any Dirty MRF that has not been approved by City and that does not meet the standards and requirements of Public Resources Code Section 42649 and all subsequent amendments, rules, and regulations promulgated in furtherance thereof requiring a Dirty MRF to be a source - separated comparable MRF.
Disposal" means the final disposition of solid waste of Municipal Solid Waste at a permitted landfill or transformation at a permitted facility, as transformation is defined and limited by the Act other permitted solid waste disposal facility.
Diversion" or "Divert" means any combination of Recycling, sorting, Composting and other processing activities conducted at a Clean MRF, a Dirty MRF, a Compost Facility, an Anaerobic Digestion Facility, a Bioengineered Feedstock Facility, and/or a Construction and Demolition Debris Processing Facility in order to use or market the materials for re -use, remanufacture, reconstitution or otherwise return the materials to the economic marketplace and to prevent the materials from being Disposed in a Landfill.
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41 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.
Diversion Program( s)," " Recycling Program( s)" and " Diversion Services" mean Recyclable Materials Collection, Green Waste Collection, Wood Waste Collection, Food Scraps Collection, Processable Municipal Solid Waste Collection, Construction and Demolition Debris Collection and subsequent processing of the Collected materials at a Clean MRF, a Dirty MRF, a Compost Facility, an Anaerobic Digestion Facility, a facility creating Engineered Feedstock for digestion at a wastewater treatment plant, a Construction and Demolition Debris Processing Facility and all other programs operated by Franchisees, the City, Residents, Customers or other Persons that have the effect of Diverting Municipal Solid Waste from Landfill Disposal. Diversion Programs includes, but is not limited to, all of the programs included in the City' s SRRE and all of the programs included in this Agreement.
Divertible Materials" or " Divertible" means Recyclable Materials, Food Scraps, Green Waste, Wood Waste, Construction and Demolition Debris, electronic waste, universal waste and all other materials that can be diverted from Landfill Disposal.
Divertible Materials includes, but is not limited to, all materials required to be diverted from Landfill Disposal by City, CalRecycle or any state or federal agency." Edible Food For Human Consumption" or " Edible Food" means food that has been prepared but not served, and includes, but is not limited to: any appetizer, soup, salad, entree, dessert, raw fruit and vegetable, that may or may not have been sliced, grated, cooked, baked or otherwise prepared for consumption but not served; any packaged sandwich, salad, fruit and fruit salad and any other non -served food that meets state and local requirements as being edible for human consumption.
Effective Date" means the date upon which this Agreement is effective as set forth in the first paragraph of this Agreement.
Environmental Laws" means any and all present and future federal, state or local laws ( whether common law, statute, rule, regulation or otherwise), permits, orders and any other requirements of Governmental Authorities relating to the environment or any Hazardous Substance" or " Hazardous Substance Activity" as defined herein, including, without limitation, the Comprehensive Environmental Response, Compensation and Liability Act of 1980 ( 42 U. S. C. Sections 9601 et seq.) as amended from time to time and Non- exclusive Franchise Agreement Page 8
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42 the applicable provisions of the California Health and Safety Code and California Water Code.
Food Scraps" means material resulting from the production, processing, preparation or cooking of food for human consumption that is separated from Municipal Solid Waste. Food scraps include surplus or unsold edible food, raw food left over after food preparation, leftover cooked food, as well as spoiled food such as vegetables and culls, and plate scrapings. Food scraps includes food -soiled paper that is mixed in with the food scraps. " Food Scraps" are Collected and transported to Food Scrap Processing Facilities which include Compost Facilities, Anaerobic Digestion Facilities, and Wastewater Treatment Plants utilizing Engineered Feedstock.
Food Soiled Paper" means paper towels, tissue products, paper napkins, paper plates and cups, coffee filters, tea bags, waxed paper, butcher paper, paper take- out boxes and containers, greasy pizza boxes, paper bags, cardboard and wax -coated cardboard produce boxes that are Contaminated with Food Scraps. Food Soiled Paper does not include polystyrene, aluminum foil, foil -lined wrap or diapers.
Franchise" or " Franchise Agreement" means this Agreement between the City and a Franchisee, granted pursuant to Agreement Section 1(A), providing Franchisee the right, for a specified period of time and pursuant to Article XIII of the City Charter, the Code, and the terms and conditions of this Agreement, to provide for the Collection and Diversion of Commercial Solid Waste Handling Services to Commercial Premises and Multifamily Dwellings within all or any part of the City of Newport Beach and to use the public streets and public right-of-ways for such purpose. Throughout this Agreement, the terms " Agreement," " Franchise" or " Franchise Services" may be used interchangeably unless otherwise specified or the context requires otherwise.
Franchisee" means the individual or business entity identified as "Franchisee" on the signature page of this Agreement.
Franchise Fee" means the fee or assessment imposed by the City on a Franchisee, which among other things, is intended to offset the City's expenses related to the administration of the Franchise Agreement, the Integrated Waste Management Program, the maintenance and implementation of the City's Source Reduction and Recycling Element, compliance with the California Integrated Waste Management Act, to compensate the City for damages to its streets, sidewalks, curbs and gutters and other infrastructure resulting from the Franchisee' s exercise of its rights under the franchise, City's reporting requirements and other related expenses.
Generator" means a resident, an owner or responsible party for a Multifamily Dwelling, Commercial Premises, or business that Generates Municipal Solid Waste, Recyclable Materials, Green Waste, Food Scraps and/ or Construction and Demolition Debris as a result of its business, commercial facility or property activity. Generator may also include tenants, property managers for facilities with leased space, employees and contractors of Generator.
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43 Generate" means to bring into existence or create, or to use, maintain, or possess an item, material or product, the result of which such creation, bringing into existence, use, maintenance or possession is that the item, material or product first becomes, or is converted transformed, evolved or deemed as Municipal Solid Waste, Recyclable Materials, Food Scraps, Green Waste or Construction and Demolition Debris.
Green Waste" means any debris that is composed of organic material or plantlike matter, which is a result of seasonal variations, landscape or gardening activities. Green Waste includes, without limitation, grass clippings, leaves, shrubs, trees, branches, stumps, flowers, plant stalks and non -hazardous wood. Green Waste does not include Food Scraps.
Gross Receipts" means all money, whether paid by cash, check, debit or credit, or other consideration collected from Customers by Franchisee that relates in any way to Commercial Franchise Services provided by Franchisee to Customers, whether or not such services occur wholly or partially within the City, including, but not limited to, Collection, processing, removal, marketing and Diversion of Recyclable Materials, Green Waste, Food Scraps, Processable Municipal Solid Waste and Construction and Demolition Debris and Disposal of Non- Processable Municipal Solid Waste, Industrial Waste, trash, litter, as well as fuel surcharges. Gross receipts shall also include all money received by any Person other than the Franchisee, where the money was paid to the Person to avoid the Franchisee' s obligations under this chapter and/ or the Franchise.
Gross Receipts shall not include ( or if included there shall be deducted, but only to the extent they have been included) the following: ( 1) if any sales taxes are levied on the Franchisee' s Commercial Franchise Services in the City, the amount of State sales taxes collected in connection with Franchisee' s provision of such services in the City and remitted to the State pursuant to State law; (2) the amount of documented bad debt write- offs due to uncollectible accounts for Franchisee' s Commercial Franchise Services in the City, not to exceed three percent ( 3%) of Gross Receipts; and ( 3) revenues collected for Franchisee' s Commercial Franchise Services provided to the City through a written contract.
Hazardous Waste" or " Hazardous Substance" means any ( a) chemical, compound, material, mixture or substance that is now or hereinafter defined or listed in, or otherwise classified pursuant to any Environmental Law as a " hazardous substance," hazardous material," " hazardous waste," " extremely hazardous waste," " infectious waste," " toxic waste," " toxic pollutant," or any other formulation intended to define, list or classify substances by reason of deleterious properties or effect and ( b) petroleum, petroleum by-products, natural gas, natural gas liquids, liquefied natural gas, synthetic gas usable for fuel (or mixtures of natural gas in such synthetic gas), ash, steam, drilling fluids, produced waters and other wastes associated with the exploration, development and production of crude oil, natural gas or geothermal resources.
Industrial Waste" means solid waste originating from mechanized manufacturing facilities, factories, refineries, construction and demolition projects, publicly operated treatment works, or solid waste placed in Commercial Solid Waste containers excluding hazardous waste.
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44 Landfill" means a fully permitted disposal site that accepts Municipal Solid Waste that is in compliance with all Federal, State and local laws, regulations and permits conditions at the time Municipal Solid Waste is delivered and unloaded at the disposal site.
Multifamily Dwelling" mean housing projects containing or consisting of five (5) or more units, whether apartment houses, condominiums, townhomes, or mixed use projects, mixedusecondominiumsand rentalhousing, which use centralizedCommercial Solid Waste Containers ( including Bins, Carts and/ or Compactors) for storage of Municipal Solid Waste, Recyclable Materials, Green Waste and/ or Food Scraps.
Multifamily Dwelling does not include single-family residences, duplexes, tri-plexes or four-plexes that receive individual Collection services for Municipal Solid Waste, Recyclable Materials, Green Waste and/ or Food Scraps stored in wheeled carts. For purposesof the implementationof the Diversionprograms, reportingrequirements, and the percentage Diversion requirements, " Commercial Tons" shall include only Tons Collected from Multifamily Dwellings in Carts, Bins, Compactors or Roll Off Boxes and shall not include any Tons Collected from Containers Collected from Commercial Premises. Tons Collected from Containers Collected from Commercial Premises shall be reported separately.
Municipal Solid Waste" means all Processable Municipal Solid Waste and all Non- Processable Municipal Solid Waste, putrescible and nonputrescible solid and semisolid wastes, Generated in or upon, related to the occupancy of, remaining in or emanating from residential, commercial, and/or industrial premises, including, but not limited to, garbage, trash, refuse, rubbish, ashes, IndustrialWaste, discarded home and industrial appliances, manure, vegetable or animal solid or semisolid wastes, and other solid and semisolid wastes. Municipal Solid Waste excludes Recyclable Materials, Green Waste, Food Scraps, Construction and Demolition Debris, liquid wastes, abandoned vehicles and hazardous, biohazardous and biomedical wastes.
Non- Processable Municipal Solid Waste" means putrescible and non- putrescible solid and semi -solid wastes Generated in or upon, related to the occupancy of, remaining or emanating from residential, Commercial, and/or industrial premises, that has been segregated or separated from Recyclable Materials, Food Scraps, Green Waste, wood and/or Construction and Demolition Debris such that the remaining constituents in the Non-Processable Municipal Solid Waste (such as broken glass, diapers, ashes, Industrial Waste, discarded Bulky Goods that cannot be re -used or dismantled for Recycling, manure, vegetable or animal solid or semi - solid wastes that remain after segregation of Food Scraps and Green Waste) cannot be diverted by reasonable economic or technologically available means. Non- Processable Municipal Solid Waste does not include Recyclable Materials, Green Waste, Food Scraps, wood, Construction and Demolition Debris, Bulky Goods or other materials that have been segregated for Diversion; liquid wastes; low level radioactive waste regulated under California Health and Safety Code Sections 20015, etseq.; abandoned vehicles and auto parts; hazardous, biohazardous and biomedical wastes.
Person" means an individual, firm, association, organization, partnership, corporation, businesstrust, joint venture, Limited Liability Company, the United States, Non- exclusive Franchise Agreement Page 11
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45 the State of California, the County, municipality, special purpose district or any other business entity whatsoever.
Processable Municipal Solid Waste" means putrescible and non-putrescible solid and semi -solid wastes Generated in or upon, related to the occupancy of, remaining or emanating from residential, commercial, and/or industrial premises that can be sorted at a Dirty MRF to separate any Divertible Materials contained therein for Recycling.
Processable Municipal Solid Waste may also contain non-divertible constituents including but not limited to, broken glass, diapers, ashes, Industrial Waste, discarded Bulky Goods that cannot be re -used or dismantled for Recycling, manure, vegetable or animal solid or semi - solid wastes that remain after segregation of Food Scraps and Green Waste, which cannot be separated or sorted out of the Processable Municipal Solid Waste by reasonable economic or technologically available means.
Processing Facility/ Facilities" means a facility or facilities where the following activities are conducted: sorting, cleaning, treating, Composting and reconstituting Collected materials and returning these materials to the economic mainstream in the form of raw materials for new, reused or reconstituted products which meet the quality standards of the market place (activities are herein collectively defined as "Processing").
Processing Facilities include Materials Recovery Facilities ( both Clean and Dirty MRF' s as defined herein), Composting Facilities, Anaerobic Digestion Facilities, Wastewater Treatment Plants, Construction and Demolition Debris sorting facilities, and concrete and asphalt grinding facilities. Processing Facilities do not include waste -to -energy, thermal destruction or any type of Transformation facilities.
Recycle/ Recycling" means the process of collecting, sorting, cleansing, treating, and reconstituting materials that would otherwise become Non-Processable Municipal Solid Waste, and returning them to the economic mainstream in the form of raw materials for new, reused, or reconstituted products which meet the quality standards used in the marketplace. Recycling does not include Transformation.
Recycling Facility" means a Recycling Materials Recovery Facility (either a Clean or Dirty MRF), a Construction and Demolition Debris sorting facility or a re -use facility that is fully permitted and operating in compliance with federal, state and local laws and regulations and includes Recycling Facilities that receive, process, and market Recyclable Materials that have been source separated by the Generator or segregated from Processable Municipal Solid Waste, such as Single - Material Recyclables and Single Stream Recyclable Materials. The Recycling Facility may be located at a landfill.
Recyclable Materials" means items in the solid waste stream which can be reused or processed into a form suitable for reuse consistent with the requirements of State law i. e., AB 939). Recyclable materials include, but are not limited to, aluminum and tin cans, glass bottles, plastic bottles, plastic containers, newspaper, paper, printed materials, paper containers, cardboard and textiles.
Recycling Requirements" means the obligations imposed by or upon the City pursuant to State, Federal and local law, ordinance, resolution, policy, plan or program relative to Diverting all, or a portion, of the Municipal Solid Waste generated within the Non- exclusive Franchise Agreement Page 12
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46 City including, without limitation, State mandates to Divert fifty percent ( 50%) of the Municipal Solid Waste Generated within the City, achievement of the per capita Diversion requirements in the Act, and the provision of City -approved Diversion services to all Customers. Recycling Requirements includes future changes to the Act that may require the City to Diverthigherpercentagesof MunicipalSolidWaste Generatedwithin the City and/or to provide additional and/or enhanced or expanded Diversion Programs.
Residue" means the Non- Processable Municipal Solid Waste destined for Disposal in a Landfill, which remains after processing at a Processing Facility has taken place. Residue does not include Anaerobic Digestate. The percent of Residue is calculated by dividing the weight of the Residue by the weight of the total materials delivered for processing at the facility. State law and regulations govern the allowable amount of Residue that can be Generated by a Processing Facility. Franchisees shall not utilize Processing Facilities that exceed State -required maximum Residue Generation rates for any materials Collected within the City.
Responsible Party" means the individual or entity responsible for the Generator' s management of solid waste and/ or Recycling at the Generator' s commercial premises, business, or non- residential property.
Roll Off Boxes" means large open top rectangular metal Containers used to store and transport Municipal Solid Waste, Recyclable Materials, Green Waste, Construction and Demolition Debris or other materials.
Single Material Recyclables" means those Recyclable Materials which satisfy each of the following requirements: ( 1) have been segregated from Processable Municipal Solid Waste for separate handling and Diversion by or for the Generator thereof; ( 2) have been further segregated or sorted so that various types of Recyclable Materials, such as glass, metals, paper, cardboard, plastics are not commingled; and (3) after such segregation, contain no more than five percent ( 5%) by weight ( measured by each load being transported, Collected and/ or Disposed) of any Residue or Contamination material which cannot be Recycled, Composted or similarly utilized, and which instead must be Disposed in a Landfill.
Single Stream Recyclable Materials" or " Single Stream Recyclables" means those Recyclable Materials collected as separated from Processable Municipal Solid Waste by the Generator or Customer and consisting of a mixture of metals, glass, plastics # 1- 7, and all paper from Residential Premises, Commercial Premises, Multifamily Dwellings and industrial premises. Single Stream Recyclable Materials are distinguished from Single -Material Recyclables, which consist of only a single type of material such as cardboard, separated from other Recyclable Materials.
Split Bins" means Bins that have a divider down the middle, dividing the Bin into two ( 2) separate compartments. Such Bins have separate locking lids for each side of the Bin that allows the Bin to be emptied one ( 1) side at a time. The lid on the side of the Bin that is for storage of Recyclable Materials is designed such that it allows for the placement of Recyclable Materials in the Bin without unlocking or opening the lid, and yet Non- exclusive Franchise Agreement Page 13
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47 does not allow Recyclable Materials to spill out when the lid is closed and locked for the emptying of the MSW stored on the opposite side of the Bin.
SRRE" means the Source Reduction and Recycling Element of the Integrated Waste Management document for the City prepared and updated pursuant to the California Public Resources Code.
Term" means the finite amount of time that commences on the Effective Date and terminates on the Termination Date.
Termination Date" means October 7, 2027.
State" means the State of California.
Transformation" means incineration, pyrolysis, distillation, or biological conversion otherthanComposting) to turn MunicipalSolidWaste and/or organicmaterialsinto a fuel used to produce energy ( example: waste -to -energy). Transformation does not include Composting, gasification, Biomass Conversion, or wet or dry Anaerobic Digestion.
Transformation Facility" means a facility using a Transformation process to turn Municipal Solid Waste and/ or organic materials into a fuel used to produce energy. A Franchisee may only utilize Transformation for the quantity of Municipal Solid Waste allowed by CalRecycle to be counted as Diversion pursuant to the Act, as this may be changed in the future by legislation or regulations. The Act currently provides that a jurisdiction can only use Transformation to divert up to ten percent ( 10%) of the Municipal Solid Waste generated in the jurisdiction. Therefore, materials collected by a Franchisee and processed at a Transformation Facility shall be limited to ten percent ( 10%) of the Non- Processable Municipal Solid Waste Collected by the Franchisee within City.
Ton" means a short ton of two -thousand ( 2,000) pounds avoirdupois.
Wood Waste" means all non -hazardous wood material that is not painted with lead -based or other paints containing materials identified as hazardous waste, or treated with creosote or other hazardous materials. Wood Waste includes, but is not limited to, tree branches and other wood trimmings, dimensional lumber and other pieces of wood generatedduring the manufactureor processingof wood products. For wood generated from construction and/ or demolition activities, see the definition of " Construction and Demolition Debris.
SECTION 4. FRANCHISE FEES
A. During the Term of this Franchise, Franchisee shall pay to City Franchise Fees for the privilege of providing Commercial Franchise Services in the City and for the use of public streets, right-of-ways and places for such purposes. The Franchise Fees that Franchisee shall pay to the City shall total sixteen percent ( 16%) of the gross receipts which are reasonably related to the value of Agreement for all Commercial Franchise Services provided by Franchisee in the City as follows:
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48 1. Ten and one- half percent ( 10. 5%) of the Gross Receipts for all Commercial Franchise Services provided by the Franchisee in the City (" Commercial Franchise Service Fee"), of which one half percent (. 5%) shall be attributable to the maintenance and implementation of the City's SRRE, and shall be separately accounted for, and used only for the costs stated in Public ResourcesCode Section41901 or any successor provision.
2. Five and one- half percent ( 5.5%) of the Gross Receipts for all Commercial Franchise Services provided by Franchisee in the City shall be paid into an Environmental Liability Fund, which shall be a separate fund established and maintained by City (" Environmental Liability Fund Fee"). Hereinafter, Environmental Liability Fund Fee and Commercial Franchise Fee shall be collectively referred to as "Fees." B. City and Franchisee acknowledge the potential environmental liability that may resultfrom CommercialFranchise Services under Federaland State environmental protection laws and the Public Resources Code. City intends to take reasonable actions to obtain protection and indemnification against future environmental liability for Commercial Solid Waste and Divertible Materials generated within the City and the activities of Franchisee under this Agreement for handling such Commercial Solid Waste and Divertible Materials. To provide protection and indemnification to City for Franchisee' s Commercial Franchise Services in the City, Franchisee agrees to collect from its customers an Environmental Liability Fund Fee for payment into the Environmental Liability Fund. The Environmental Liability Fund may be used by the City for any expense associatedwiththis Franchise, including, but notlimitedto, 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 Recyclingactivity requiredof the City, Franchisee, or any Generatorunder State, Federal or local law. The Fund shall not be commingled with or included in the City's General Fund.
1. The Fees shall be paid concurrently.
2. Compliance with this Section shall not limit Franchisee' s indemnification as set forth in Agreement Section 10; however, the indemnification provisions of Agreement Section 10 shall be secondary to the Environmental Liability Fund established by this Section or any insurance purchased by the Environmental Liability Fund.
C. The Fees shall be paid on a calendar quarterly basis on forms prescribed by the Finance Director.
D. All payments shall be made in lawful money of the United States of America and shall be paid to City in person or by United States' mail, or overnight mail service, at the Cashier' s Office located at 100 Civic Center Drive, P. O. Box 1768, Newport Beach, Non- exclusive Franchise Agreement Page 15
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49 California, 92658, or to such other address as City may from time to time designate in writing to Franchisee. If requested by City, Franchisee shall make payments electronically ( at www.newportbeachca. gov) or by wire transfer ( at Franchisee' s cost).
Franchisee assumes all risk of loss and responsibility for late charges and delinquency rates if payments are not timely received by City regardless of the method of transmittal.
E. Franchisee hereby acknowledges that the late payment of Fees or other sums due hereunder will cause City to incur costs not contemplated by this Agreement, the exact amount of which is extremely difficult to ascertain. Such costs include, but are not limited to, processing and accounting charges. Accordingly, any payment of any sum to be paid by Franchisee not paid within five ( 5) calendar days of its due date shall be subject to a ten percent ( 10%) late charge plus interest on the amount due at the rate of ten percent ( 10%) per annum from the date due and payable by the terms of this Agreement until the same shall be paid. City and Franchisee agree that this late charge represents a reasonable estimate of such costs and expenses and is fair compensation to City for its loss suffered by such late payment by Franchisee.
F. With the exception of October 30, 2020, Fees shall be due and payable on April 30, July 30, October 30 and January 30 of each calendar year of the Term. Any dates falling on a weekend or holiday may be paid the first business day following the weekend or holiday. Fees must be received by City, not merely postmarked, by or before the aforementioned dates.
G. In the event Franchisee believes that it has paid Fees in excess of the Fees due to City, Franchiseemaysubmit a requestfor refundto the FinanceDirectoron a form provided by the Finance Director. If proof of overpayment is satisfactory to the Finance Director, the Finance Director shall refund to Franchisee any overpayment. Franchisee shall not apply any overpayment as a credit against any other amounts payable to City unless specifically authorized by the Finance Director in writing.
H. Each Franchise Fee and Environmental Liability Fund Fee payment shall be accompanied by a written statement described in Code Section 12.63.090, or any successor section, on a form provided by the Finance Director. No statement filed under this Section shall be conclusive as to the matters set forth in such statement, nor shall the filing of such statement preclude the City from collecting by appropriate action the sum that is actually due and payable.
I. Franchisee may separately list the actual Franchise Fee rate and Environmental Liability Fund Fee rate as established by this Section, and any other fees required by this Agreement, on its invoices to its customers. In no case may the Franchise Fee rate or Environmental Liability Fund Fee rate listed by the Franchisee on the invoice exceed the actual Franchise Fee or Environmental Liability Fund Fee rates imposed by the City.
SECTION 5. PERFORMANCE BOND/ DEPOSIT
A. Prior to the placement of any Container for Commercial Franchise Services on public or private property, Franchisee shall, to ensure compliance with the duties and Non- exclusive Franchise Agreement Page 16
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50 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.
SECTION 6. DIVERSION AND DISPOSAL OF MUNICIPAL SOLID WASTE,
RECYCLABLE MATERIALS, FOOD SCRAP AND GREEN WASTE
A. Franchisee shall comply with all Diversion requirements imposed by law, ordinance, or regulation on City, Franchisee, and/or any Commercial Premises or Multifamily Dwelling. On a monthly basis, Franchisee shall Divert a minimum of fifty-five percent ( 55%) of all Processable Municipal Solid Waste, Recyclable Materials, Food Scraps and Green Waste Collected in the City by Franchisee. This Diversion requirement is separate from and in addition to any Diversion requirements set forth in Agreement Sections 7, 12, 13, 14 and 15. In the event new or additional Diversion requirements are imposed by law, ordinance or regulation on City, Franchisee, and/or any Commercial Premises or Multifamily Dwelling, the City shall have the right to require Franchisee to Divert additional Municipal Solid Waste, Recyclable Materials, Food Scraps, and/ or Green Waste by providing Franchisee with thirty ( 30) calendar days written notice of the new Diversion requirements. Upon request of the Public Works Director, Franchisee shall provide all documents and information requested by the Public Works Director to prove that Franchisee has complied with this subsection, any applicable law, ordinance, regulation, or condition related to Recycling and Diversion of Municipal Solid Waste, Recyclable Materials, Food Scraps and/ or Green Waste.
B. Franchisee shall Dispose of all Non- Processable Municipal Solid Waste collected in the City, over which Franchisee has control, in accordance with the Franchise Hauler Acknowledgment, attached hereto as Exhibit " B" and incorporated herein by reference. Franchisee hereby accepts and agrees to abide by all terms of the Franchise Hauler Acknowledgment. If, during the Term of this Agreement, the City's Waste Disposal Agreement with Orange County expires, lapses, or is terminated, the Franchise Hauler Acknowledgement shall be null and void and Franchisee shall Dispose of Municipal Solid Waste Collected in the City only by taking it to a fully permitted Orange County certified/ licensed landfill or to a fully permitted licensed transfer station, which is lawfully authorized to accept that specific type of solid waste material and has been approved by the City.
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51 C. Franchisee shall not Dispose of Municipal Solid Waste, Recyclable Materials, Food Scraps, or Green Waste by depositing it on any land except a permitted facility, whether public or private, or in any river, stream or other waterway, or in any sanitary sewer or storm drainage system. Nothing in this Agreement shall be deemed or construedas authorizingFranchiseeto operatea Landfill, RecyclingFacility, or other solid waste disposal facility in the City.
D. If Franchisee violates the terms in Agreement Section 6( A) and/ or Section 6(13) 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. Franchisee shall include as a condition to its contractual agreement with its Customers a provision prohibiting disposal of Hazardous Waste in any Container.
F. Franchisee shall implement a load check program that includes, at a minimum, a visual check of all Containers to be emptied to protect against inclusion of Hazardous Waste and shall prepare a written record of all Hazardous Waste discovered duringthe process. The recordsshallcomplywith all Stateand FederalHazardousWaste Regulations and shall be maintained for the length of the Term of the Franchise and for a minimum period of three ( 3) years, or for any longer period required by law, after the Extended Termination Date. The records shall be made available to the City in Franchisee' s monthly reports submitted pursuant to Agreement Section 16.
G. This Agreement does not purport to grant Franchisee or City ownership over materials that Franchisee' s Customers discard for pickup by Franchisee or that Franchisee handles under this Agreement. The right to possession or ownership of those materials shall be determined in accordance with law and any agreement between Franchisee and its Customers, and not as a result of this Agreement. Parties acknowledgethat City has no ownership rights in Divertible Materials or revenue from sale thereof, except as provided in this Agreement.
H. City makes no representations or warranties with respect to characterization of Municipal Solid Waste, Recyclable Materials, Food Scraps, or Green Waste within City. City expressly disclaims any representations and warranties, either express or implied, as to the merchantability or fitness of Municipal Solid Waste, Recyclable Materials, Food Scraps, or Green Waste for any particular purpose.
SECTION 7. DIVERSION OF CONSTRUCTION AND DEMOLITION DEBRIS A. On a monthly basis, Franchisee shall Divert a minimum of sixty-five percent 65%) of all Construction and Demolition Debris collected in the City by Franchisee. This Diversion requirement shall be in addition to and separate from any Diversion Non- exclusive Franchise Agreement Page 18
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52 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 MultifamilyDwelling, the Cityshall havethe rightto requireFranchiseeto Divertadditional 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. Franchisee shall Dispose of, or oversee Disposal of, any Construction and Demolition Debris collected in the City by Franchisee, and not diverted pursuant to Agreement Section 7( A), in accordance with the Franchise Hauler Acknowledgment, attached hereto as Exhibit " B." Franchisee hereby accepts and agrees to abide by all terms of the Franchise Hauler Acknowledgment. If, during the Term of this Agreement, the City's Waste Disposal Agreement with Orange County expires, lapses or is terminated, the Franchise Hauler Acknowledgement shall be null and void and Franchisee shall Dispose of non - Diverted Construction and Demolition Debris collected by Franchisee in the City only by taking such debris to an Orange County certified/ licensed landfill, State certified/ licensed transfer station, State certified/ licensed recycling facility or State certified/licensed materials recovery facility which is lawfully authorized to accept that specific type of solid waste material. Franchisee shall not dispose of Construction and Demolition Debris by depositing it on any land except a permitted facility, whether public or private, or in any river, stream or other waterway, or in any sanitary sewer or storm drainage system.
C. If Franchisee violates the terms in Agreement Section 7( A) and/ or Section 7(B) above, Franchisee agrees that the City has the future right to direct that Construction and Demolition Debris be delivered to a permitted processing and/or disposal facility designatedby City. Thisexerciseof "flow control" bythe Cityshall be madeuponat 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 Disposalrequirementsset forth in this Section shall be a material breach of this Agreement.
D. Franchisee shall include as a condition to its contractual agreement with its Customers a provision prohibiting disposal of Hazardous Waste in any Container.
E. Franchisee shall implement, or require a third party to implement, a load check program that includes, at a minimum, a visual check of all Containers to be emptied to protect againstinclusionof HazardousWaste and shall prepare a written recordof all Hazardous Waste discovered during the process. The records shall comply with all local, State and Federal Hazardous Waste regulations, and shall be maintained for the length of the Term of the Franchise and for a minimum period of three ( 3) years, or for any longer period requiredby law, after the ExtendedTerminationDate. The recordsshall be made available to the City upon request.
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53 F. This Agreement does not purport to grant Franchisee or City ownership over materials that Franchisee' s Customers discard for pickup by Franchisee or that Franchisee handles under this Agreement. The right to possession or ownership of those materials shall be determined in accordance with law and any agreement between Franchisee and its customers, and not as a result of this Agreement. Parties acknowledgethat City has no ownershiprights in RecyclableMaterialsor revenuefrom sale thereof, except as provided in this Agreement.
G. City makes no representations or warranties with respect to characterization of Construction and Demolition Debris within City. City expressly disclaims any representations and warranties, either express or implied, as to the merchantability or fitness of Construction and Demolition Debris for any particular purpose.
SECTION 8. FRANCHISEE' S APPLICATION; RECORDS; AUDITS
A. Application. Franchisee has submitted an application to City in substantially the same form as the template attached hereto as Exhibit " C" and incorporated herein by reference as a condition of entering into this Agreement. Franchisee hereby represents and warrants that all information contained in the application submitted to City, and any information submitted by Franchisee to City supplementary thereto, is true and correct and does not contain any untrue statement of a material fact nor omit a material fact that makes a statement contained therein misleading.
B. Records. Franchisee shall maintain all records relating to Franchisee' s Commercial Franchise Services provided hereunder including, but not limited to, Customer lists, billing records, accounts payable records, maps, service requests, cash receipts records, AB 939/ 341/ 1826 compliance records, tonnage reports, weight tickets and invoices from all Landfills, Processing Facilities, and Recycling Facilities utilized for Commercial Solid Waste collected within City, and all other documents and materials which reasonably relate to Franchisee's compliance with and performance of the provisions of this Agreement (" Records"), for the full Term of this Agreement and an additionalperiodthereafterof not lessthan three (3) years, or any longerperiod 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 establishingwhere Solid Waste Collected in the City was landfilledfor the full Term of this Agreement and an additional period thereafter of not less than five (5) years, or any longer period required by law. At any time, including after the expiration of the Term, Franchisee shall provide copies of such records to City within three ( 3) business days of City' s request.
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54 D. Inspection; Audit. On an annual or as -needed basis, City shall have the right, upon five ( 5) business days advance notice, to inspect Franchisee' s Records and/ or conduct, or to contract with an independent auditing firm to perform, an audit, at City' s expense, of Franchisee' s Records (" City Audit") to ensure compliance with the provisions of this Agreement. The City Audit shall include, without limitation, review and/or copying of Franchisee's cash receipts, books of account, Municipal Solid Waste and Divertible Materials tonnage reports, Collection, Disposal and Diversion records, and other related records, as well as those of each of its parent, subsidiary and/ or affiliated companies, as appropriate. As part of the City Audit, Franchisee' s Customer accounts and related records may be subject to review. While Franchisee will not be required to submit for copying detailed account records, such as Customer names, Franchisee shall make such records and information available for review in connection with the City Audit. The purpose of the City Audit shall be for: ( a) verification of the Fees paid by Franchisee under this Agreement, and the accuracy thereof; ( b) verification of the amounts of Municipal Solid Waste and Divertible Materials reported as Collected, processed, Diverted and Disposed by Franchisee pursuant to this Agreement; ( c) verification of Recycling/ Diversion program implementation efforts and actions taken by Franchisee pursuant to this Agreement; and ( d) verification of such other information as is reasonably deemed appropriate by the Public Works Director to evaluate Franchisee' s performance hereunder.
E. Reimbursement. Franchisee shall reimburse City for all of City's costs in performance of an audit if, as a result of the audit, it is determined:
1. There was any intentional misrepresentation by Franchisee with respect to the amount of Fees due to the City;
2. There is a One Thousand and 00/ 100 Dollars ($ 1,000. 00) or greater discrepancy in the amount of Fees due to the City.
3. There was any intentional misrepresentation by Franchisee with respect to Franchisee' s Commercial Franchise Services and/ or Franchisee' s handling and transportation of Municipal Solid Waste and/ or Divertible Materials or with regard to any information provided about Diversion; or
4. There is a discrepancy ( whether intentional or not) in the number of Tons of Municipal Solid Waste, Recyclable Materials, Green Waste, Foods Scraps and/ or Construction and Demolition Debris Collected, Recycled, processed and/ or Disposed that equals or exceeds two percent ( 2%).
Such reimbursement shall be paid by Franchisee within ten ( 10) calendar days of the date City notifies Franchisee in writing that Franchisee is liable to reimburse the City in conformance with this subsection and the amount of City' s audit costs.
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55 SECTION 9. INSURANCE REQUIREMENTS
Without limiting Franchisee' s indemnification of City, and prior to commencement of the Effective Date of this Agreement, Franchisee shall obtain, provide copies to City and maintain at its own expense during the Term of this Agreement policies of insurance of the type and amounts described in the Insurance Requirements attached hereto as Exhibit " D" and incorporated herein by reference.
SECTION 10. RESPONSIBILITY FOR DAMAGES AND INJURY/ INDEMNIFICATION A. Franchisee Responsibility. Franchisee shall be solely responsible for any damages caused as a result of Franchisee' s acts, negligence, or omissions including, but not limited to, injuries to or death of any person or damage to public and/or private property and damages to public improvements arising from or as a result of Franchisee' s Commercial Franchise Services.
B. General Indemnification. Franchisee shall indemnify, hold harmless, and defend City, and each of its past, present and future elected officials, officers, employees, agents, consultants, volunteers, affiliates, assignees, representatives, attorneys, subsidiaries, and affiliated entities and their respective successors, heirs and assigns collectively, " Indemnified Parties") from and against any costs, expenses, damages, and losses, including actual attorneys' fees (" Losses") of any kind or character to any person or property arising directly or indirectly from or caused by any of the following: ( i) any act, negligence, or omission of Franchisee or its respective officers, directors, shareholder members, partners, employees, agents, Franchisee' s subcontractors, suppliers, representatives and affiliates (" Franchisee Representatives"); ( ii) Franchisee' s or Franchisee Representative' s activities; ( iii) any accident or casualty within or arising out of the performance of Franchisee' s Commercial Franchise Services under this Franchise; iv) any violation or alleged violation of any law, ordinance or statute now or hereafter enacted arising out of Commercial Recyclable Materials, Food Scraps, Green Waste, Wood Waste, Construction and Demolition Debris and/ or Municipal Solid Waste services performed pursuant to the Franchise; ( v) the negligence or willful misconduct of Franchisee or any of Franchisee Representatives in the performance of Franchisee' s Commercial Franchise Services under the Franchise; and ( vi) any breach of the Franchise.
Franchisee shall not be required to indemnify, hold harmless and defend the Indemnified Parties from the sole negligence, active negligence or willful misconduct of the Indemnified Parties. Nothing in this indemnity shall be construed as authorizing any award of attorneys' fees in any action on or to enforce the terms of this Agreement. This indemnity shall apply to all claims and liability regardless of whether any insurance policies are applicable. The policy limits do not act as a limitation upon the amount of indemnification to be provided by the Franchisee.
C. Hazardous Substances Indemnification. Franchisee shall indemnify the Indemnified Parties from and against all claims, actual damages including, but not limited to, special and consequential damages, natural resource damage, punitive damages, injuries, costs, response, remediation, and removal costs, losses, demands, debts, liens, Non- exclusive Franchise Agreement Page 22
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56 liabilities, causes of action, suits, legal or administrative proceedings, interest, fines, charges, penalties and expenses attorneys' and expert witness fees and costs incurred in connection with defending against any of the foregoing or in enforcing this indemnity of any kind whatsoever paid, incurred or suffered by, or asserted against, the Indemnified Parties or Franchisee arising directly or indirectly from or caused by any of the following:
i) the violation of any environmental laws or the failure to clean up and mitigate the consequences of the spill or release of any Hazardous Substance; and ( ii) Franchisee' s activities under this Agreement concerning any Hazardous Substance at any place where Franchisee stores or disposes of solid or Hazardous Waste pursuant to this Agreement, or preceding Agreements between City and Franchisee. The foregoing indemnity is intended to operate as an agreement pursuant to the Comprehensive Environmental Response, Compensation and Liability Act ( 42 U. S. C. Section 9607( e)) and any amendments thereto, and California Health and Safety Code Section 25364, or any successor statute, to insure, protect, hold harmless, and indemnify City from liability.
D. AB 939 Indemnification. Franchisee agrees to meet all requirements of City's SRRE as to the portion of the Commercial Solid Waste stream Collected and/or handled by Franchisee. Franchisee agrees to protect, defend, indemnify, and hold the Indemnified Parties harmless against all fines or penalties imposed by CalRecycle, or other entity, arising from the failure of Franchisee to meet Act Diversion requirements with respect to the portion of the Commercial Solid Waste stream collected by Franchisee.
E. AB 341 Indemnification. Franchisee agrees to meet all requirements of AB 341, specifically Public Resources Code Section 42649, or any successor statute, as to the portion of the Municipal Solid Waste and Recyclable Materials stream Collected and/or handled by Franchisee. Franchisee agrees to protect, defend, indemnify, and hold the Indemnified Parties harmless against all fines or penalties imposed by CalRecycle, or other entity, arising from the failure of Franchisee to meet AB 341 diversion and recycling requirements with respect to the Municipal Solid Waste and Divertible Materials Collected and/ or handled by Franchisee.
F. AB 1826 Indemnification. Franchisee agrees to meet all requirements of AB 1826, specifically Public Resources Code Section 42649. 82, or any successor statute, as to the portion of the Food Scraps, Green Waste and Wood Waste streams Collected and/or handled by Franchisee. Franchisee agrees to protect, defend, indemnify, and hold the Indemnified Parties harmless against all fines or penalties imposed by CalRecycle, or other entity, arising from the failure of Franchisee to meet AB 1826 recycling requirements with respect to the Food Scraps and Green Waste collected and/ or handled by Franchisee.
G. Notice. City agrees to give notice to Franchisee when the City receives a claim for damages or other liability for which Franchisee has provided indemnification under this Section.
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57 SECTION 11. COMMERCIAL SOLID WASTE AND DIVERTIBLE MATERIALS
COLLECTION SERVICES
A. Authorized Collection Services. Franchisee may only provide those Commercial Franchise Services designated in Franchisee' s application, or any amended application, and for which Franchisee has demonstrated compliance with Code Section
12.63. 050, or any successor section.
B. Frequency of Collection. Franchisee shall collect all Municipal Solid Waste and Divertible Materials from Commercial Premises and Multifamily Dwellings on a schedule to be agreed upon between Franchisee and its Customers, subject to the restrictions set forth in Agreement Section 11( C); provided, however, that such schedule complies with Code Subsections 6. 04. 110 and 6. 04. 120 and does not permit the accumulation of Commercial Solid Waste or Divertible Materials in quantities that are unreasonable or detrimental to the public health or safety. Requests for Collection from Customer Premises with overflowing Containers, or from Customer Premises where there have been missed pickups, shall be serviced within twenty-four ( 24) hours of any such request by the Customer or City. Should City receive a Customer complaint related to or arising from Franchisee's failure to collect Commercial Solid Waste and Divertible Materials as provided herein, Franchisee' s Collection schedule shall be submitted to the City for review.
C. Hours and Days of Collections.
1. Franchisee shall not collect Commercial Solid Waste or Divertible Materials in any area of the City after 6:30 p.m. and prior to 5:00 a.m.
2. Franchisee shall not Collect Commercial Solid Waste or Divertible Materials from any Commercial Premises or Multifamily Dwelling located within five hundred ( 500) feet of an occupied residential premise, motel or hotel, nor shall any of Franchisee' s Collection vehicles be operated in any residential areas of the City except between the hours of 7:00 a. m. and 6: 30 p.m., Monday through Friday, nor on any Saturday or Sunday, except between the hours of 8:00 a.m. and 6:00 p.m.
3. Franchisee shall neither operate its Collection vehicles nor Collect Commercial Solid Waste or Divertible Materials from any Commercial Premises, governmentalfacility, or MultifamilyDwelling located within five hundred (500) feet of a school, or other educational facility between the hours of 7:30 a.m. and 9:00 a.m. or 1:00 p. m. and 3:00 p.m., Monday through Friday. The limitations in Agreement Section 11( C)( 3) notwithstanding, Franchisee' s operation of Collection vehicles on any non- residential arterial roadway within the City are subject to Section 6.04.130(A) but shall not be prohibited or limited under this Agreement.
4. Commercial Solid Waste and Divertible Materials collection on Sundays shall be limited to Food Scraps and Municipal Solid Waste from Commercial Premises, which require Collection every day due to public health and safety concerns.
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58 5. At Franchisee' s request, the City shall provide maps illustrating the geographiclimitationsplacedon Franchisee's Collectionservicespursuantto Agreement Section 11( C)( 3) (" Maps"). City expresslydisclaimsany liabilityrelatedto or arisingfrom the accuracy of any Maps provided by City. City may update the Maps as needed, and Franchisee' s failure to request or secure the Maps, or any updated Maps, shall not relieve Franchisee of any obligations under this Agreement.
D. Containers. Franchisee shall provide the appropriate sized Containers to each Customer for storage of the Commercial Solid Waste and Divertible Materials Collected by Franchisee. Containers provided by Franchisee must be identified with Franchisee' s name and be in the color identified by Franchisee in Franchisee' s application.
SECTION 12. AB 341 RECYCLING PROGRAM FOR COMMERCIAL PREMISES AND
MULTIFAMILY DWELLINGS
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 providea commercialRecyclableMaterialsCollectionProgramfor AB 341 Generatorson 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:
Provide Single Stream Recyclable Materials and ( if applicable) Single Material Collection service on a weekly or more frequent basis.
2. Provide Collection of Recyclable Materials commingled with Municipal Solid Waste and process the Collected material at a City -approved Dirty MRF that yields Diversion results comparable to source separation. No Dirty MRF may be used for separation of AB 341 materials unless the Dirty MRF has been approved by City as meeting the standards and requirements of Public Resources Code Section 42649 and all rules, amendments and regulations promulgated in furtherance thereof.
3. If Franchisee observes that the AB 341 Generator has one ( 1) or more internal Programs that Divert Recyclable Materials, is self -hauling or backhauling Recyclable Materials, donating or selling Recyclable Materials to a third party, or is using a third party or other Franchisee to Collect Recyclable Materials, Franchisee shall report this to City and City, in its sole discretion, shall make a final determination as to the adequacy of the internal and/or third party Recyclable Materials Diversion Program( s). If the City finds the internal and/or third party Program( s) inadequate, Franchisee shall proceed to implement a Recyclable Materials Diversion Program to Divert all the remaining AB Non- exclusive Franchise Agreement Page 25
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59 341 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.
SECTION 13. AB 1826 FOOD SCRAP DIVERSION PROGRAM FOR COMMERCIAL
PREMISES
A. Food Scrap Diversion Program. The Act requires AB 1826 Generators to implement Diversion Programs as follows. On or after January 1, 2017, all owners and responsible parties of Commercial Premises generating four (4) or more cubic yards of Food Scraps and/or Green Waste per week must arrange for Diversion Programs for those materials. On or after January 1, 2019, all owners and responsible parties of Commercial Premises generating four (4) or more cubic yards of Commercial Solid Waste per week must arrange for Diversion Programs for Food Scraps and Green Waste. The Act requires cities to provide a commercial Food Scrap Diversion Program for AB 1826 Food Scrap Generators on or before January 1, 2016. Franchisee acknowledges these requirements and agrees that, subject to the restrictions contained in Agreement Section 11(A), for all AB 1826 Food Scrap Generators that contract with or pay Franchisee to haul Municipal Solid Waste and/ or Divertible Materials Franchisee shall implement a Food Scrap Diversion Program. The City will maintain a listing of all AB 1826 Food Scrap Generators. City expressly disclaims any liability related to or arising from the accuracy of any lists provided by City. Franchisee' s failure to request or secure the list on an annual basis shall not relieve Franchisee of any obligations under this Section. Franchisee shall implement a Food Scrap Diversion Program using one or more of the following:
Provide source separated Food Scrap Collection service on a weekly or more frequent basis.
2. If Franchisee observes that the AB 1826 Food Scrap Generator has one ( 1) or more internal Food Scrap Diversion Programs, is self -hauling Non- exclusive Franchise Agreement Page 26
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60 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.
SECTION 14. AB 1826 COMMERCIAL AND MULTIFAMILY GREEN WASTE AND WOOD WASTE COLLECTION PROGRAM.
A. Act Requirements. The Act requires all AB 1826 Generators of Green Waste and/ or Wood Waste to implement Diversion Programs as follows. All Commercial Premises and all Multifamily Dwellings generating four ( 4) or more cubic yards of Food Scraps and/ or Green Waste and Wood Waste must arrange for Diversion Programs for Green Waste and Wood Waste on or before January 1, 2017. On or after January 1, 2019, all owners and responsible parties of Commercial Premises and Multifamily Dwellings generating four (4) or more cubic yards of Commercial Solid Waste per week are required to arrange for Diversion Programs for Green Waste and Wood Waste. The Act requires cities to provide Commercial and Multifamily Green Waste and Wood Waste Diversion Programs for AB 1826 Green Waste and Wood Waste Generators on or before January 1, 2016. Franchisee acknowledges these requirements and agrees that, subject to the restrictions contained in Agreement Section 11( A), for all AB 1826 Green Waste and Wood Waste Generators that contract with or pay Franchisee to haul Municipal Solid Waste and/ or Divertible Materials, Franchisee shall implement a Green Waste and Wood Waste Diversion Program. ( For wood generated by construction and demolition projects, Non- exclusive Franchise Agreement Page 27
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61 the requirements of Sections 7 and 15 shall apply.) The City will maintain a listing of all AB 1826 Green Waste and Wood Waste Generators. City expressly disclaims any liability related to or arising from the accuracy of any lists provided by City. Franchisee' s failure to request or secure the list on an annual basis shall not relieve Franchisee of any obligations under this Section. Franchisee shall implement a Green Waste and Wood Waste Diversion Program using one or more of the following:
Provide source separated Green Waste and Wood Waste Collection service on a weekly or more frequent basis.
Provide Collection of Green Waste and Wood Waste co - mingled with Municipal Solid Waste and process the Collected material at a City - approved Dirty MRF that yields Diversion results comparable to source separation. No Dirty MRF may be used for separation of AB 1826 Green Waste or Wood Waste materials unless the Dirty MRF has been approved by City as meeting the standards and
requirements of Public Resources Code Section 42649 and all rules, amendments and regulations promulgated in furtherance thereof.
2. If Franchisee observes that the AB 1826 Green Waste and Wood Waste Generator has one ( 1) or more internal Green Waste and/ or Wood Waste Diversion Program( s), is self -hauling or backhauling Green Waste and/ or Wood Waste, is donating or selling Green Waste and/ or Wood Waste, or is using a third party or other Franchisee to Collect Green Waste and/ or Wood Waste, Franchisee shall report this to City and City, in its sole discretion, shall make a final determination as to the adequacy of the internal and/or third party Green Waste and/or Wood Waste Diversion Program(s). If the City finds the internal and/or third party program(s) are inadequate, Franchisee shall proceed to implement a Diversion Program to Divert all the remaining Green Waste and Wood Waste generated by the Customer.
3. If the AB 1826 Green Waste and Wood Waste Generator is using a landscaping company to haul away Green Waste and Wood Waste, Franchisee shall report this to the City and City, in its sole discretion, shall make a final determination as to the adequacy of the landscaper program to Divert all the Green Waste and Wood Waste. If the City finds the landscaper program to be inadequate and/or lacking the proper documentation of the end use for the Collected Green Waste and Wood Waste, Franchisee shall proceed to implement a Diversion Program to Divert all the Green Waste and Wood Waste generated by the AB 1826 Generator.
All Green Waste and Wood Waste Collected by Franchisee shall be delivered to a permitted Green Waste and/or Wood Waste Processing Facility for Diversion. No Green Waste or Wood Waste Collected in City may be used as Alternative Daily Cover at a Non- exclusive Franchise Agreement Page 28
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62 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.
SECTION 15. CONSTRUCTION AND DEMOLITION DEBRIS RECYCLING PROGRAM A. Act Requirements. The California Green Building Standards Code codified in the California Code of Regulations Title 24, Part 11, (" CalGreen") and adopted by reference in Code Section 15.11.010, requires mandatory diversion of Construction and Demolition Debris. Contractor shall comply with all requirements of CalGreen, as it may be amended from time to time. In the event CalGreen and the City' s Construction and Demolition Debris diversion requirements differ, Franchisee shall comply with the highest Construction and Demolition Debris Diversion percentage. Further, City reserves the right to amend and/ or expand its own Construction and Demolition Debris Recycling ordinance at any time during the Term. Contractor shall provide all services necessary to (a) inform Customers of, ( b) support Customer compliance with, and ( c) support City' s enforcement of, the Construction and Demolition Debris Recycling requirements pursuant to CalGreen and the Code.
B. Construction and Demolition Debris Diversion Program. Franchisee acknowledges these requirements and agrees that, subject to the restrictions contained in Agreement Section 11( A), for all Customers that contract with or pay Franchisee to haul Construction and Demolition Debris, Franchisee shall implement a Diversion Program as described and set forth in Exhibit " F" which is incorporated herein by reference.
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63 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. The address of each facility serviced and the precise services provided to each address including, but not limited to, Commercial Franchise Services broken down by type ( i.e., Recyclable Materials, Food Scraps, Green Waste, Wood Waste, Construction and Demolition Debris, and/ or Municipal Solid Waste) presented in an Excel format acceptable to the City;
2. The frequency of Commercial Franchise Services provided to each address;
3. The number of containers by type and size at each address and the frequency of collection;
4. The actual tonnage, by material category, collected per month in tons.;
5. The location of the Landfill and/or Processing Facility to which the Municipal Solid Waste, Recyclable Materials, Green Waste, Wood Waste and/ or Food Scraps were taken during the previous month and the Diversion rate achieved if the facility accepts mixed waste mate rials/ Processable Municipal Solid Waste;
6. AB 341 and AB 1826 compliance information by Generators, including the total number of AB 341 and AB 1826 accounts serviced by the Franchisee, the total number of accounts that have a Recycling Program, Food Scrap Diversion Program, and/ or Green Waste/ Wood Waste Diversion Program provided by the Franchisee, the number of Customers with Franchisee - documented internal Diversion programs that comply with AB 1826 and AB 341, the number of Customers that comply with AB 341 or AB 1826 via a Clean or Dirty MRF, the number of Customers that do not have an AB 341 or AB 1826-compliant Diversion program, and a description of outreach efforts for non - compliant Generators;
7. The " Exhibit E Tracking Document" described in subparts D, E and F of Exhibit E.
8. Such other tonnage or other information as requested by the Public Works Director including weight tickets and Diversion records.
B. Form of Report. Monthly reports shall be included in the City provided electronic template. No other templates or formats will be accepted. Use of any alternate format or template shall result in the monthly report being considered incomplete and inaccurate and the Franchisee shall be subject to assessment of liquidated damages pursuant to Section 24( B) of the Franchise.
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64 C. Report Due Date. Each monthly report shall be submitted on or before the 25th day of the month following the end of the month.
D. Submission. Franchisee shall submit each monthly report to:
Public Works Director
City of Newport Beach
P. O. Box 1768
100 Civic Center Dr.
Newport Beach, CA 92658
E. No Waiver. Franchisee shall file the monthly report required under Agreement Section 16(A) regardless of whether Franchisee has provided Commercial Franchise Services in the City during the reported month.
F. Compliance. Franchisee shall comply with all Recycling and Diversion requirements imposed by law, ordinance, or regulation on the City. At the end of each calendar month, reports will be evaluated for compliance with City Recycling and Diversion requirements. Failure to comply with City Recycling and Diversion requirements shall be a material breach of this Agreement.
SECTION 17. HAULER REPRESENTATIVE
Franchisee shall designate, at a minimum, one ( 1) individual employed by Franchisee to assist City in implementing the Agreement' s Recycling and Diversion programs, as applicable, and to manage all reporting requirements set forth herein Hauler Representative"). Franchisee shall provide City with the Hauler Representative' s contact information, and the Hauler Representative shall be the primary contact for the City. The Hauler Representative shall respond to any City questions or concerns relating to or arising from Franchisee' s performance under this Agreement within five (5) business days of City submitting such question or concern.
SECTION 18. VEHICLES AND EQUIPMENT
A. Containers. Any and all Containers provided to Customers for storage, Collection or transportation of Municipal Solid Waste, Recyclable Materials, Food Scraps, and/ or Green Waste shall meet the requirements designated by the Public Works Director as well as State of California minimum standards for solid waste handling established under Public Resources Code Section 43020 and applicable health requirements, or any successor statutes or requirements.
B. Identification. All Containers and vehicles used by Franchisee in the performance of Commercial Franchise Services shall be marked with Franchisee' s name in letters which are not less than four inches ( 4") high and which are easily read by the general public.
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65 C. Equipment.
1. Maintenance; Records. Franchisee shall, at all times, provide such number of vehicles and such equipment as will be adequate for the Commercial Franchise Services, which it is authorized to provide under this Agreement. All vehicles utilized by Franchisee in the performance of this Agreement shall be registered with the California Department of Motor Vehicles. All vehicles must pass annual " BIT" and brake inspections and Franchisee shall provide evidence of such to the Public Works Department upon request. Upon request by the City, Franchisee shall provide records from the most recent California Highway Patrol biennial inspection of the terminal( s) responsible for the maintenance and repair of equipment used in the City. All vehicles shall be properlymaintained, kept clean and in good conditionand 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 of non -Collection tags for the purpose of separating Hazardous Waste for return to the Generator. A communications device such as a two- way radio or a cellular telephone shall also be maintained on each vehicle at all times.
3. Vehicle Mirrors. All equipment used by Franchisee for Commercial Franchise Services in the City with a gross vehicle weight rating of twenty- six thousand 26,000) pounds or more shall be equipped with a convex mirror on the front of each vehicle, adjusted so as to enable the operator to see all points on an imaginary horizontal line which:
a) Is three feet ( 3) above the road;
b) Is one foot ( 1') directly forward from the midpoint of the front of the vehicles; and
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66 c) Extends the full width of the front of the vehicle.
4. Collision Avoidance System. All vehicles operated by Franchisee in the City shall include the best available collision avoidance system that is capable of detecting adjacent pedestrians and bicyclists. City reserves the right to inspect Franchisee's vehicles, at any time, to confirm that the installation and capability of Franchisee' s collision avoidance system is consistent with Section 18( C)( 4).
On or before January 1 of each year, Franchisee shall submit to City a certification signed under penalty of perjury containing the following:
List of any collection vehicle ( including front loader, rear loader, side loader, and roll off vehicles and all " spares") of such vehicles that franchisee operate in the City.
ii. Collision Avoidance System installed on each vehicle including name of system, manufacturer, date installed, name of Person who installed the system, name of Person( s) who 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. Placementof Containersand equipmentshall be in accordance with the standards set by the City.
8. Equipment Standards. All equipment provided by Franchisee shall be in accordance with standards set by the Public Works Department.
SECTION 19. ABANDONED CONTAINERS
A. If Franchisee abandons any Commercial Solid Waste or Divertible Materials Container within the City, the City may remove the Container and/or dispose of the contents of the Container and recover its cost from Franchisee.
B. For the purposes of this Section, " abandons" includes:
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67 1. Franchisee' s failure to remove the Container within the time period specified by the City Council upon termination of the Franchise pursuant to Section
12. 63. 140 of the Code, or any successor statute;
2. Franchisee' s failure to remove the Container within ten ( 10) calendar days after the expiration or termination of the Franchise granted to Franchisee, except in the case where Franchisee has been granted an extension of the Term of said Franchise or Franchiseehas beengranteda subsequentfranchiseauthorizingFranchiseeto Collect and transport the type or types of Commercial Solid Waste for which the Container was used pursuant to this Agreement; or
3. Franchisee' s failure to collect the Container and dispose of the contents of the Container within two ( 2) calendar days after the Public Works Director issues written notice to Franchisee to dispose of the contents.
4. Franchisee' s failure to replace a Container that fails to comply with the City's aestheticstandards, as set forth inthisAgreement, withinfive (5) calendardays of receiving written notice from the Public Works Director of non-compliance.
SECTION 20. COMPLIANCE WITH LAW
A. Franchisee shall perform all Commercial Franchise Services in accordance with applicable federal, state, and local law, including, but not limited to, Code Chapter
12. 63, Article XIII of the City Charter, Ordinance No. 2020- 20 and the terms and conditions of this Agreement.
B. During the Term of this Agreement, Franchisee and City agree that the City's ordinances may be amended as provided herein, as provided in Chapter 12.63 or as necessary to permit the City to comply with changes to federal, state, and local legislative regulatory requirements, which may affect or alter City's obligations or requirements for Commercial Solid Waste management. Franchisee agrees to comply with any such amendment of the City's ordinances without the need to amend this Agreement.
SECTION 21. PERMITS AND LICENSES
A. Applicable Permits and Licenses. Franchisee shall obtain and maintain, at Franchisee' s sole cost and expense, all permits and licenses applicable to Franchisee' s operations under the Franchise, which are required of Franchisee by any governmental agency. Payment of the Franchise Fee and Environmental Liability Fund Fee shall be in addition to any permit or license fees or business tax prescribed by the City for the same period.
B. Orange County Landfill Account. Franchisee shall obtain and maintain for the Term of this Agreement an account with the Orange County landfills. If Franchisee disposes of any Municipal Solid Waste collected from the City at an Orange County landfill, the Franchisee shall utilize its landfill account only ( no "cash" disposal).
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68 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.
SECTION 23. SUSPENSION; TERMINATION; APPEAL
A. City' s Right to Suspend or Terminate. The Franchise granted to Franchisee may be suspended or terminated by the City Council pursuant to Code Section 12. 63. 140, or any successor statute.
B. Notice of Default. Should the Public Works Director determine Franchisee has defaulted in the performance of any obligation hereunder, the Public Works Director may provide written notice to Franchisee of such default (" Default Notice"). The Public Works Director may, in the Default Notice, set a reasonable time within which Franchisee may cure such default. Unless a longer or shorter time is otherwise specified by the Public Works Director, a reasonable time for correction shall be thirty (30) calendar days from the date the Default Notice is issued.
C. Public Works Director Review. Within ten ( 10) business days of the Public Works Director' s issuance of the Default Notice, at the request of Franchisee, the Public Works Director will hold a meeting with Franchisee to discuss the failure( s) described in the Default Notice. Such request shall immediately suspend any deadlines set forth in Agreement Section 23( B) or the Default Notice. During Franchisee' s meeting with the Public Works Director, Franchisee shall have an opportunity to present evidence explaining or justifying the failures described in the Default Notice. After the meeting, the Public Works Director will make a determination, in his or her sole discretion, as to whether to uphold the Default Notice, or any portion thereof, and shall issue such determination within five (5) business days of the meeting. Franchisee will have thirty (30) calendar days from the date the Public Works Director' s determination is issued to cure the upheld Default Notice or portion thereof.
D. Appeal to City Manager. Within five ( 5) business days of the Public Works Director issuing his/her determination, Franchisee may appeal the Public Works Director's determination, in writing, to the City Manager. City' s receipt of such appeal request shall immediately suspend any deadlines set forth in Agreement Section 23(C).
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69 The City Manager will hold a meeting with Franchisee no more than ten ( 10) business days after receiving Franchisee' s written appeal request. After the meeting, the City Manager will make a determination, in his or her sole discretion, as to whether to uphold the Default Notice, or any portion thereof, and shall issue such determination within five 5) business days of the meeting. The decision of the City Manager shall be final.
Franchisee will have thirty ( 30) calendar days from the date the City Manager' s determination is issued to cure the upheld Default Notice or any portion thereof.
F. Failure to Timely Cure. If Franchisee fails to timely cure a Default Notice, or any portion thereof, then the applicable liquidated damages set forth in Agreement Section 24 shall be final and conclusive and the amount( s) shall be immediately due and payable. Franchisee' s failure to timely cure three (3) Default Notices shall be a material breach of this Agreement.
G. Audit Findings. Notwithstanding anything to the contrary, if Franchisee disagrees with City's audit findings, then Franchisee may, within ten ( 10) business days after service of the audit finding, appeal to the City Manager specifying the basis for its disagreement with City' s audit findings. If Franchisee fails to timely request such an appeal, then the discrepancy determinations shall be final and conclusive and the violation shall be deemed established.
H. Termination Without Right to Cure. City shall have the right of suspension or termination as a result of Franchisee' s failure to timely cure any deficiency or default as set forth above, which right is in addition to City' s right to terminate this Agreement without affording Franchisee an opportunity to cure in circumstances where Franchisee is determined to have materially breached this Agreement. Notwithstanding anything to the contrary, in the event of any material breach hereof, City shall have the right to terminate this Agreement without affording Franchisee the right to cure including, without limitation, any action, inaction or circumstance defined herein as a material breach and/or under any of the following circumstances which are hereby defined as material breaches:
If Franchisee conducts, or attempts to conduct, fraud upon City.
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.
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70 5. If Franchisee fails to submit Records thirty ( 30) calendar days or more following a written request by City, or its designated representative for Records disclosure.
6. Franchisee fails to meet the Diversion requirements of this Agreement or pursuant to applicable laws.
I. Removal of Commercial Solid Waste and Divertible Materials Containers; Customer Notification. In the event this Franchise is terminated or expires without a grant of a subsequent franchise allowing Franchisee to continue performing Commercial Franchise Services in City, then within ten ( 10) calendar days of such termination or expiration Franchisee shall:
1. Remove all of Franchisee' s Municipal Solid Waste and Divertible Materials Containers from all Franchisee' s Collection service locations and properly dispose of all Municipal Solid Waste in such containers and deliver all Divertible Materials to Processing Facilities for Diversion within the time period specified by the City Council; and
2. Submit to the Public Works Director a list of the names and addresses of Generators in the City for which Franchisee provided Commercial Franchise Services as of the date of termination or expiration ( i. e., Franchisee' s City of Newport Beach customer list); or
3. Send written notification to each Solid Waste Generator, AB 341 Generator and AB 1826 Generator on Franchisee' s customer list that Franchisee is no longer authorized to provide Commercial Franchise Services in the City. Such notification shall be in the form provided by the Public Works Director and shall be personally delivered or shall be sent by first class mail, postage prepaid, to the customers' billing addresses. Franchisee shall submit to the Public Works Director an affidavit, signed under penalty of perjury, stating that the required notification has been provided by Franchisee to all of Franchisee' s City Customers.
Continuing Obligations. Upon Agreement termination, suspension or expiration:
1. Franchisee shall have no right or authority to engage in Commercial Franchise Services in the City, subject to the provisions of Sections 49520-49524 of the Public Resources Code, or any successor statutes.
2. Franchisee shall remain liable to City for any and all Franchise Feesand Environmental Liability Fund Fees that would otherwise be payable by Franchisee, for any and all liquidated damages, late charges and/or interest assessed.
3. Franchisee shall have a continuing obligation to submit to City all reports and records required by this Agreement. Franchisee' s obligation shall survive this Agreement shall continue for such period of time as required by this Agreement or applicable law.
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71 4. Franchisee shall allow the Commercial Solid Waste Generators, AB 341 Generators and AB 1826 Generators served by Franchisee to arrange for Commercial Franchise Services with another Franchise Holder or Person authorized to performsuch services, without penaltyor liabilityfor breachof contracton the part of the generators, for such period of time as Franchisee is not authorized to perform such services because of termination or suspension.
5. Franchisee shall have a continuing obligation to provide the indemnifications required in this Agreement. Such indemnifications include, but are not limited to, the Hazardous Materials indemnification and AB 939, AB 341, and AB 1826 indemnifications asset forth in Agreement Section 10.
SECTION 24. CITY' S REMEDIES
A. The City incurred considerable time and expense procuring this Agreement to secure an improved level and quality of Recycling and compliance with State Diversion mandates.
B. Liquidated Damages. The Parties agree the following liquidated damages schedule represents a reasonable estimate of the amount of damages, considering all the circumstancesexistingon the dateof this Agreement, includingthe relationshipof the sums to the range of harm to City that reasonably could be expected in anticipation that proof of actual damages would be costly or inconvenient:
Applicable Failure( s)* Damages
Section( s)
6( A), 7( A) Comply with City -mandated Diversion Two hundred fifty requirements within thirty ( 30) calendar dollars ($ 250) per days of notification by City business day until
compliant
6( B), 7( B) Deliver Commercial Solid Waste as Two hundred fifty designated 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 Two hundred fifty
Franchise Services for which Franchisee dollars ($ 250) has applied
11( C) Collect at unauthorized locations and/ or Two hundred fifty during unauthorized hours five ( 5) or dollars ($ 250)
more times in a twelve ( 12) month period
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72 11( D) Label Containers; paint vehicles and/ or Fifty dollars ($ 50) Containers corporate color per business day
until corrected
12( A), 12( C), Implement AB 341 Diversion Program One thousand Exhibit E, Parts A, including Tasks 1- 16 in Exhibit E, Part A dollars ($ 1,000) per B and C within the timeframe in Franchise occurrence
Section 12C. Comply with the
requirements of Exhibit E, Parts B and C
within ninety ( 90) days of the events
described in Part B, or within ninety ( 90)
days of a previously operating AB 341
Program malfunctioning as required by
Part C.
13( A), 13( C), Implement AB 1826 Food Scrap One thousand Exhibit E, Parts A, Diversion Program including Tasks 1-16 dollars ($ 1, 000) B and C in Exhibit E, Part A, within the timeframe
in Franchise Section 13C. Comply with
the requirements of Exhibit E, Parts B
and C within ninety ( 90) days of the
events described in Part B or within
ninety ( 90) days of a previously
operating Food Scrap Diversion Program
malfunctioning as required by Part C.
14( A), 14( C), Implement AB 1826 Green Waste and Five hundred dollars Exhibit E, Parts A, Wood Waste Diversion Program 500)
Band C including Tasks 1-16 in Exhibit E, Part A,
within the timeframe in Franchise
Section 14C. Comply with the
requirements of Exhibit E, Parts B and C
within ninety ( 90) days of the events
described in Part B or within ninety ( 90)
days of a previously operating Green
Waste and Wood Waste Diversion
Program malfunctioning as required by
Part C.
15( B) Implement Construction and Demolition One thousand Diversion Program dollars ($ 1, 000)
16( A), 16( B), 16( E) Submit complete and accurate monthly One hundred dollars reports 100) per business
day until corrected
or completed
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73 16( C) Submit timely monthly reports One hundred dollars 100) — if not
submitted when due
Five hundred dollars
500) — if not
submitted w/ in thirty
30) calendar days
after due date
17 Designate qualified Hauler Fifty dollars ($ 50)
Representative; Failure of Hauler per business day
Representative to timely respond to City until completed 18( C) Secure or maintain vehicles or vehicle One hundred dollars equipment 100) per business
day until completed
19 Remove, replace, or collect abandoned Fifty dollars ($ 50) Container( s) per business day
until completed
Unless otherwise designated, reference to " failure( s)" refers to each occurrence of specified breach ( such as for each Customer or each Customer record entry or complaint) and not for aggregate occurrences of those breaches ( such as for all Customers on a given route or day).
C. City' s Remedies Cumulative. The rights and remedies of City set forth herein shall be in addition to any and all other rights and privileges City may have, and shall not be deemed to limit any such other rights or privileges of City under this Agreement or by virtue of any law.
By placing its initials below, each party specifically confirms:
1) the accuracy of the statements made in Agreement Section 24; and 2) it has had ample opportunity to consult with legal counsel and obtain an explanation of liquidated damage provisions prior to signing this Agreement.
FRANCHISEE CITY
Initial Here: Initial Here:
SECTION 25. CONFIDENTIAL INFORMATION.
A. Confidential Information. In the performance of this Agreement or in contemplation thereof, the parties and their respective employees and agents may have access to privateor confidential informationowned or controlled by the other party and such information may contain proprietary details and disclosures. All information and Non- exclusive Franchise Agreement Page 40
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74 data identified in writing as proprietary or confidential by either party (" Confidential Information") and so acquired by the other party or its employees or agents under this Agreement or in contemplation thereof shall be and shall remain the disclosing party' s exclusive property. The recipient of Confidential Information shall use all reasonable efforts ( which in any event shall not be less than the efforts the recipient takes to ensure the confidentiality of its own proprietary and other confidential information) to keep, and have its employees and agents keep, any and all Confidential Information confidential, and shall not copy, or publish or disclose it to others, nor authorize its employees, agents or anyone else to copy or disclose it to others, without the disclosing party's written approval; nor shall the recipient make use of the Confidential Information except for the purposes of executing its obligations hereunder, and (except as provided for herein) shall return the Confidential Information and data to the first party at its request. The City' s duty to maintain confidentiality as described hereunder shall be subject to the laws of the State of California.
B. Excluded Information. The foregoing conditions will not apply to information or data which is, or which becomes generally known to the public by publication or by any means other than a breach of duty on the part of the recipient hereunder, is information previously known to the recipient, is information independently developed by or for the recipient or is information generally released by the owning party without restriction.
C. Public Records Request. Should City receive a public records request, or otherwise be directed by any governmental authority to disclose any or all Confidential Information in City's possession, custody or control, City shall promptly provide notice to Franchisee of such request to allow Franchisee an opportunity to prevent disclosure.
D. Right to Injunctive Relief. Because of the unique nature of the Confidential Information, the parties agree that each party may suffer irreparable harm in the event that the other party fails to comply with any of its obligations under this Section, and that monetary damages may be inadequate to compensate either party for such breach.
Accordingly, the parties agree that either party will, in addition to any other remedies available to it at law or in equity, be entitled to seek injunctive relief to enforce the terms of this Section.
SECTION 26. ASSIGNMENT
Franchisee shall not assign, sell, subcontract, transfer or otherwise delegate its authority to perform any portion of the Commercial Franchise Services or obligations under the Franchise without prior express consent of the City Council. This prohibition includes any transfer of ownership or control of Franchisee, or the conveyance of a majority of Franchisee' s stock to a new controlling interest. City's consent shall not be unreasonably withheld.
SECTION 27. MISCELLANEOUS PROVISIONS
A. Notices. Except as otherwise provided in this Agreement, all notices required by this Agreement shall be given by personal service or by deposit in the United States mail, postage pre -paid and return receipt requested, addressed to the parties as follows:
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75 To: Public Works Director
City of Newport Beach
P. O. Box 1768
100 Civic Center Dr.
Newport Beach, CA 92660
To Franchisee:
Notice shall be deemed effective on the date personally served or, if mailed, three 3) calendar days after the date deposited in the mail.
B. Integrated Agreement. This Agreement represents the full and complete understanding of every kind or nature whatsoever between the City and Franchisee, and all preliminary negotiations and other agreements of any kind or nature are merged herein. No verbal agreement or implied covenant shall be held to vary the provisions herein.
C. Amendments. This Agreement supersedes all prior agreements and understandings between the parties and may not be modified or terminated orally, and no modification, termination or attempted waiver of any of the provisions hereof shall be binding unless in writing and signed by both parties.
D. Recitals. The Parties acknowledge that the Recitals are true and correct and are hereby incorporated by reference into this Agreement.
E. Applicable Law. The laws of the City, State of California, and applicable Federal law, shall govern this Agreement and all matters relating to it and any action brought relating to this Agreement shall be adjudicated in a court of competent jurisdiction in the County of Orange.
F. Authority. The parties signing below represent and warrant that they have the requisite authority to bind the entities on whose behalf they are signing.
G. Severability. If any term or portion of this Agreement is held to be invalid, illegal, or otherwise unenforceable by a court of competent jurisdiction, the remaining provisions of this Agreement shall continue in full force and effect.
H. Waiver. A waiver by either party of any breach, of any term, covenant or condition contained herein shall not be deemed to be a waiver of any subsequent breach of the same or any other term, covenant or condition contained herein, whether of the same or a difference character.
I. Interpretation. The terms of this Agreement shall be construed in accordance with the meaning of the language used and shall not be construed for or against either party by reason of the authorship of this Agreement or any other rule of construction that might otherwise apply.
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76 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 Political Reform Act of 1974 (the " California Political Reform Act"), which ( i) requires such persons to disclose any financial interest that may foreseeably be materially affected by the work performed under this Agreement, and ( ii) prohibits such persons from making, or participating in making, decisions that will foreseeably financially affect such interest. If subject to the California Political Reform Act, Franchisee shall conform to all requirements of the California Political Reform Act.
Failure to do so constitutes a material breach and is grounds for immediate termination of this Agreement by City. Franchisee shall indemnify and hold harmless City for any and all claims for damages resulting from Franchisee' s violation of this subsection.
M. Conflicts or Inconsistencies. In the event there are any conflicts or inconsistencies between this Agreement and the Scope of Services or any other attachments attached hereto, the terms of this Agreement shall govern.
N. No Attorneys' Fees. In the event of any dispute or legal action arising under this Agreement, the prevailing party shall not be entitled to attorneys' fees.
O. Counterparts. This Agreement may be executed in two ( 2) or more counterparts, each of which shall be deemed an original and all of which together shall constitute one ( 1) and the same instrument.
SIGNATURES ON FOLLOWING PAGE]
Non- exclusive Franchise Agreement Page 43
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77 IN WITNESS WHEREOF, the parties have caused this Agreement to be executed on the day and year written below.
APPROVED AS TO FORM:
CITY ATTORNEY' S OFFICE
Date:
in
Aaron C. Harp
City Attorney
ATTEST:
Date:
CITY OF NEWPORT BEACH,
a California municipal corporation
Date:
By:
Will O' Neill
Mayor
FRANCHISEE:
Date:
By: By:_
Leilani I. Brown
City Clerk
Date:
go
END OF SIGNATURES]
Attachments: Exhibit A — Faithful Performance Bond
Exhibit B — Franchise Hauler Acknowledgement
Exhibit C — Franchisee Application Template
Exhibit D — Insurance Requirements
Exhibit E — Required Tasks for Implementation of Diversion Programs Exhibit F — Construction and Demolition Debris Diversion Program Non- exclusive Franchise Agreement Page 44
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78 EXHIBIT A
CITY OF NEWPORT BEACH
BOND NO.
FAITHFUL PERFORMANCE BOND
The premium charges on this Bond is $
WHEREAS, the City of Newport Beach, State of California, has awarded to hereinafter designated as the
Principal," a Non- exclusive Franchise for Commercial Solid Waste and Divertible Materials Handling Services (" Franchise Agreement") in the City of Newport Beach, in strict conformity with the Franchise Agreement on file with the office of the City Clerk of the City of Newport Beach, which is incorporated herein by this reference.
WHEREAS, Principal has executed or is about to execute the Franchise Agreement and the terms thereof require the furnishing of a Bond for the faithful performance of the Franchise Agreement.
NOW, THEREFORE, we, the Principal, and
duly authorized to
transact business under the laws of the State of California as Surety ( hereinafter Surety"), are held and firmly bound unto the City of Newport Beach, in the sum of Seven Thousand Five Hundred Dollars and 00/ 100 ($ 7, 500. 00) lawful money of the United States of America, to be paid to the City of Newport Beach, its successors, and assigns; for which payment well and truly to be made, we bind ourselves, our heirs, executors and administrators, successors, or assigns, jointly and severally, firmly by these present.
THE CONDITION OF THIS OBLIGATION IS SUCH, that if the Principal, or the Principal' s heirs, executors, administrators, successors, or assigns, fail to abide by, and well and truly keep and perform any or all the services, covenants, conditions, and agreements in the Franchise Agreement documents and any alteration thereof made as therein provided on its part, to be kept and performed at the time and in the manner therein specified, and in all respects according to its true intent and meaning, or fails to indemnify, defend, and save harmless the City of Newport Beach, its officers, employees and agents, as therein stipulated, then, Surety will faithfully perform the same, in an amount not exceeding the sum specified in this Bond; otherwise this obligation shall become null and void.
As a part of the obligation secured hereby, and in addition to the face amount specified in this Performance Bond, there shall be included costs and reasonable expenses and fees, including reasonable attorney' s fees, incurred by City, only in the event City is required to bring an action in law or equity against Surety to enforce the obligations of this Bond.
Surety, for value received, stipulates and agrees that no change, extension of time, alterations or additions to the terms of the Franchise Agreement or to the services to be performed thereunder shall in any way affect its obligations on this Bond, and it does Faithful Performance Bond Page A- 1
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79 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)
Name of Surety
Address of Surety
Telephone
APPROVED AS TO FORM:
CITY ATTORNEY' S OFFICE
Date:
Aaron C. Harp
City Attorney
Authorized Signature/ Title
Authorized Agent Signature
Print Name and Title
NOTARY ACKNOWLEDGMENTS OF
CONTRACTOR AND SURETY MUST BE ATTACHED
Faithful Performance Bond Page A- 2
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80 ACKNOWLEDGMENT
A notary public or other officer completing this
certificate verifies only the identity of the individual who signed the document to which this certificate is
attached, and not the truthfulness, accuracy, or validity of that document.
State of California
County of SS.
On 20 before me,
Notary Public, personally appeared
who proved to me on the basis of satisfactory evidence to be the person(s) whose name( s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/ her/ their authorized capacity( ies), and that by his/her/their signatures( s) on the instrument the person( s), or the entity upon behalf of which the person( s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Signature
ACKNOWLEDGMENT
A notary public or other officer completing this
certificate verifies only the identity of the individual who signed the document to which this certificate is
attached, and not the truthfulness, accuracy, or validity of that document.
State of California
seal)
County of } ss.
On 20 before me,
Notary Public, personally appeared
proved to me on the basis of satisfactory evidence to be the person(s) whose name( s) is/are subscribed to the within instrument and acknowledged to me that he/she/ they executed the same in his/ her/ their authorized capacity( ies), and that by his/ her/ their signatures( s) on the instrument the person( s), or the entity upon behalf of which the person( s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Signature seal)
Faithful Performance Bond Page A- 3
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81 EXHIBIT B
FRANCHISE HAULER ACKNOWLEDGEMENT
THIS FRANCHISE HAULER ACKNOWLEDGMENT is entered into as of this _ day of , 2021 ( the " Acknowledgment"), by and between the City of Newport Beach, a charter city and municipal corporation ( the "City"), and ( the Franchise Hauler").
WITNESSETH
WHEREAS, the City and the Franchise Hauler have heretofore entered into an agreement entitled NONEXCLUSIVE FRANCHISE AGREEMENT BETWEEN THE CITY
OF NEWPORT BEACH AND FOR COMMERCIAL SOLID WASTE
AND DIVERTIBLE MATERIALS HANDLING SERVICES ( the " Franchise"); and WHEREAS, the Franchise provides for the collection and disposal of certain municipal commercial solid waste as described therein (" Franchise Waste") generated within the City; and
WHEREAS, the County of Orange ( the "County") owns, manages and operates a sanitary landfill disposal system for municipal solid waste generated within the County; and
WHEREAS, the City and the County have heretofore entered into a Waste Disposal Agreement as of 2009, and subsequent Amendment to the Waste Disposal Agreement dated April 28, 2016 ( collectively, the "Disposal Agreement"), determining that the execution of such Disposal Agreement will serve the public health, safety and welfare of the residents of the City and County, by maintaining public ownership and stewardship over the Orange County Landfill Disposal System (the " Disposal System"); and WHEREAS, under the Disposal Agreement, the County has agreed to provide long-term disposal of all municipal solid waste generated within the City and the City has agreed to exercise all legal, and contractual power which it possesses from time to time to deliver or cause the delivery of such waste to the Disposal System; and WHEREAS, the provisions of the Waste Disposal Agreement which guarantee capacity for the long term disposal of waste at specified rates generated in the City provide significant benefits to the Franchise Hauler; and WHEREAS, notwithstanding any Franchise provisions to the contrary, the Franchise Hauler explicitly acknowledges the aforementionedbenefits to the City, the County and the Franchise Hauler in providing for the disposal of all Franchise Waste to the Disposal System; and
WHEREAS, the City and the Franchise Hauler desire to enter into this Acknowledgment to assure that the City and the Franchise Hauler will be entitled to the benefits of the Waste Disposal Agreement and to assure conformity with the waste Franchise Hauler Acknowledgement Page B- 1
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82 delivery obligations which have been agreed to by the City under the Disposal Agreement through the delivery of waste by the Franchise Hauler to the Disposal System; and WHEREAS, the Franchise Hauler' s agreement to deliver Franchise Waste to the Disposal System under this Acknowledgment is given in consideration of the Franchise Hauler' s right to receive the Contract Rate for such disposal as provided in the Disposal Agreement.
NOW, THEREFORE, in consideration of the premises and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties hereto, intending to be legally bound hereby, agree as follows:
1. Capitalized terms used and not otherwise defined herein are used as defined in the Disposal Agreement.
2. The Franchise Hauler hereby waives any right which it may possess under applicable law to contest on any ground, constitutional, statutory, case law, administrative or otherwise, ( a) the right, power or authority of the County or the City to enter into or perform their respective obligations under the Disposal Agreement, ( b) the enforceability against the County or the City of the Disposal Agreement, or ( c) the right, power or authority of the City to deliver or cause the delivery of all Controllable Waste to the Designated Disposal Facility in accordance with this Acknowledgment.
3. The City and the Franchise Hauler each hereby represent that this Acknowledgment has been duly authorized by all necessary action of their respective governing bodies.
4. The Franchise Hauler shall deliver or cause to be delivered all Controllable Waste including all residue from the processing by any means, wherever conducted, of Controllable Waste) to the Disposal System, and shall otherwise assist the City in complying with its obligations under the Waste Disposal Covenant in Section 3. 1 of the Disposal Agreement.
5. The Franchise Hauler shall not haul Controllable Waste to any materials recovery facility, composting facility, intermediate processing facility, recycling center, transfer station or other waste handling or management facility unless the contract or other agreement or arrangement between the Franchise Hauler and the operator of such facility is sufficient in the opinion of the County to assure that the Residue from such facility constituting City Acceptable Waste ( or Tonnage equivalencies) and the City Acceptable Waste transferred by such facility shall be delivered to the Designated Disposal Facility in compliance with the Waste Disposal Covenant.
Franchise Hauler Acknowledgement Page B- 2
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83 6. The Franchise Hauler shall pay the Contract Rate imposed by the County at the Designated Disposal Facility for the disposal of all Controllable Waste, which rate shall be subject to potential adjustment necessary to reflect the circumstances set forth in the Disposal Agreement.
7. Nothing in this Acknowledgment is intended to restrict any right or responsibility explicitly given the Franchise Hauler in the Franchise to recycle City Acceptable Waste, except as provided in paragraph 5 above with respect to Residue from any such recycling operations.
8. The obligations of the Franchise Hauler under this Acknowledgment shall apply notwithstanding any provision of the Franchise which may conflict herewith.
9. This Acknowledgment may be enforced by the City by any available legal means.
In any enforcement action by the City, the burden of proof shall be on the Franchise Hauler to demonstrate compliance herewith.
10. This Acknowledgment shall be in full force and effect and shall be legally binding upon the City and Franchise Hauler from the date hereof and shall continue in full force and effect until the earlier of ( i) the end of the term of the Franchise or ( ii) the end of the term of the Disposal Agreement.
11. The City and Hauler agree that the County shall be an express third party beneficiary of this Acknowledgment, and shall be entitled to independently enforce the obligations of the Franchise Hauler hereunder.
12. Franchise Hauler agrees to assist the County in verifying tonnage collected by the Franchise Hauler and providing information required by the County. Franchise Hauler will provide upon request refuse tonnage collected within the County, and outside the County ( if relevant to confirming tonnage origination), separated by jurisdiction, by load type ( residential, commercial, roll -off box), and by facility to which it was delivered ( specify which landfill or transfer station). Franchise Hauler will provide customer service levels and route lists. Franchise Hauler will cooperate with County audits to verify reported origin of tonnage by making records and personnel available to the County and/or its auditors.
Franchise Hauler Acknowledgement Page B- 3
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84 EXHIBIT C
FRANCHISE APPLICATION TEMPLATE
Franchisee Application Template Page C- 1
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85 EXHIBIT D
INSURANCE REQUIREMENTS
1. Provision of Insurance. Without limiting Franchisee' s indemnification of City, and prior to commencement of Work, Franchisee shall obtain, provide and maintain at its own expense during the term of this Agreement, policies of insurance of the type and amounts described below and in a form satisfactory to City. Franchisee agrees to provide insurance in accordance with requirements set forth here. If Franchisee uses existing coverage to comply and that coverage does not meet these requirements, Franchisee agrees to amend, supplement or endorse the existing coverage.
2. Acceptable Insurers. All insurance policies shall be issued by an insurance company currently authorized by the Insurance Commissioner to transact business of insurance in the State of California, with an assigned policyholders' Rating of A- ( or higher) and Financial Size Category Class VII ( or larger) in accordance with the latest edition of Best' s Key Rating Guide, unless otherwise approved by the City' s Risk Manager.
3. Coverage Requirements.
A. Workers' Compensation Insurance. Franchisee shall maintain Workers' Compensation Insurance, statutory limits, and Employer' s Liability Insurance with limits of at least One Million Dollars ($ 1,000, 000) each accident for bodily injury by accident and each employee for bodily injury by disease in accordance with the laws of the State of California, Section 3700 of the Labor Code.
Franchisee shall submit to City, along with the certificate of insurance, a Waiver of Subrogation endorsement in favor of City, its City Council, boards and commissions, officers, agents, volunteers, employees, and any person or entity owning or otherwise in legal control of the property upon which Contractor performs the Project and/ or Services contemplated by this Agreement.
B. General Liability Insurance. Franchisee shall maintain commercial general liability insurance, and if necessary umbrella liability insurance, with coverage at least as broad as provided by Insurance Services Office form CG 00 01, in an amount not less than Two Million Dollars ($ 2, 000, 000) per occurrence, Four Million Dollars 4, 000, 000) general aggregate and Four Million Dollars ($ 4, 000, 000) completed operations aggregate. The policy shall cover liability arising from premises, operations, products -completed operations, personal and advertising injury, and liability assumed under an insured contract ( including the tort liability of another assumed in a business contract) with no endorsement or modification limiting the scope of coverage for liability assumed under a contract.
C. Automobile Liability Insurance. Franchisee shall maintain automobile insurance at least as broad as Insurance Services Office form CA 00 01 covering bodily injury and property damage for all activities of the Franchisee arising out of or in connection with Work to be performed under this Agreement, including coverage for any owned, hired, non -owned or rented vehicles, in an amount not less than Ten Million Dollars ($ 10, 000, 000) combined single limit for each accident.
Insurance Requirements Page D- 1
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86 D. Pollution Liability Insurance. Franchisee shall maintain pollution liability insurance covering all of the Franchisee' s operations to include onsite and offsite coverage for bodily injury ( including death and mental anguish), property damage, non - owned disposal site liability, defense costs, cleanup costs, and pollution conditions that arise from or in connection with the transportation ( including loading and unloading) by or on behalf of the Franchisee, of any waste or waste materials. Coverage shall be provided for both sudden and accidental and gradual and continuous pollution events with limits no less than $ 5, 000, 000 each loss and $ 10, 000, 000 in the aggregate. The policy shall not exclude any hazardous materials for which there is an exposure. If all or any portion of the pollution liability coverage is available only on a claims -made basis, then a 10-year extended reporting period shall also be purchased. The policy shall not contain any provision or exclusion ( including any so- called " insured versus insured" exclusion or cross -liability" exclusion) the effect of which would be to prevent, bar, or otherwise preclude any insured or additional insured under the policy from making a claim which would otherwise be covered by such policy on the grounds that the claim is brought by an insured or additional insured against an insured or additional insured under the policy.
4. Other Insurance Requirements. The policies are to contain, or be endorsed to contain, the following provisions:
A. Waiver of Subrogation. All insurance coverage maintained or procured pursuant to this Agreement shall be endorsed to waive subrogation against City, its City Council, boards and commissions, officers, agents, volunteers, employees, and any person or entity owning or otherwise in legal control of the property upon which Franchisee performs the Services contemplated by this Agreement or shall specifically allow Franchisee or others providing insurance evidence in compliance with these requirements to waive their right of recovery prior to a loss. Franchisee hereby waives its own right of recovery against City, and shall require similar written express waivers from each of its subcontractors.
B. Additional Insured Status. All liability policies including general liability, excess liability, pollution liability, and automobile liability, but not including professional liability ( if required), shall provide or be endorsed to provide that City a its City Council, boardsand commissions, officers, agents, volunteers, employees, and any person or entity owning or otherwise in legal control of the property upon which Franchisee performs the Services contemplated by this Agreement shall be included as additional insureds under such policies.
C. Primary and Non Contributory. All liability coverage shall apply on a primary basis and shall not require contribution from any insurance or self- insurance maintained by City.
D. Notice of Cancellation. All policies shall provide City with thirty ( 30) days notice of cancellation ( except for nonpayment for which ten ( 10) days notice is required) or nonrenewal of coverage for each required coverage.
5. Additional Agreements Between the Parties. The parties hereby agree to the following:
A. Evidence of Insurance. Franchisee shall provide certificates of insurance to City as evidence of the insurance coverage required herein, along with a Insurance Requirements Page D- 2
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87 waiver of subrogation endorsement for workers' compensation and other endorsements as specified herein for each coverage. Insurance certificates and endorsement must be approved by City's Risk Manager prior to commencement of performance. Current certification of insurance shall be kept on file with City at all times during the term of this Agreement. The certificates and endorsements for each insurance policy shall be signed by a personauthorizedby that insurerto bindcoverageon its behalf. At leastfifteen (15) days prior to the expirationof any such policy, evidenceof insuranceshowingthat 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 insuranceshowingthatthe requiredinsurancehas beenreinstatedor 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 anytime duringthe termof this Agreementto changethe amountsandtypes 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 contractswill not impose any liability on City, or its employees. Franchiseeshall 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 Franchiseeof non-compliancewith any requirement imposes no additionalobligations 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 pertainsto a given issue and is not intendedby any party or insured to be all inclusive, or to the exclusion of other coverage, or a waiver of any type.
F. Self - insured Retentions. Any self -insured retentions must be declared to and approved by City. City reserves the right to require that self -insured retentions be eliminated, lowered, or replaced by a deductible. Self-insurance will not be considered to comply with these requirements unless approved by City.
G. City Remedies for Non Compliance. If Franchisee or any subcontractor fails to provide and maintain insurance as required herein, then City shall have the right but not the obligation, to purchase such insurance, to terminate this Agreement, or to suspend Franchisee' s right to proceed until proper evidence of insurance is provided. Any amounts paid by City shall, at City's sole option, be deducted from amounts payable to Franchisee or reimbursed by Franchisee upon demand.
Insurance Requirements Page D- 3
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88 H. Timely Notice of Claims. Franchisee shall give City prompt and timely notice of claims made or suits instituted that arise out of or result from Franchisee' s performance under this Agreement, and that involve or may involve coverage under any of the required liability policies. City assumes no obligation or liability by such notice, but has the right (but not the duty) to monitor the handling of any such claim or claims if they are likely to involve City.
I. Franchisee' s Insurance. Franchisee shall also procure and maintain, at its own cost and expense, any additional kinds of insurance, which in its own judgment may be necessary for its proper protection and prosecution of the Franchise.
Insurance Requirements Page D- 4
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89 EXHIBIT E
REQUIRED TASKS FOR IMPLEMENTATION OF DIVERSION PROGRAMS A. For purposes of complying with Sections 12 through 14 of this Agreement Franchisee shall complete all of the following to the satisfaction of the City:
1. Franchisee has contacted the Authorized Customer Representative.
For purposes of this section, the " Authorized Customer Representative" is the Person who subscribes to and pays for any service provided by the Franchisee and/or for any Municipal Solid Waste Collection or Diversion Services provided by any other entity. The Authorized Customer Representative may be the owner or on - site manager; or if Customer is a corporation with multiple locations and centralized decision -making, the manager with decision -making authority; or in the case of a broker or waste arranger, the Authorized Customer Representative is the Person who has the decision -making authority to subscribe to and pay for Municipal Solid Waste Collection and Diversion Services. Franchisee shall provide written notice of the requirements of the Act and the City Code for the Customer to have in place specified Diversion Program( s) as of the date(s) applicable to that Customer. If applicable, Franchisee shall also provide written notice of the requirements of CalGreen.
2. Franchisee shall estimate the quantities of Municipal Solid Waste, Recyclable Materials, Food Scraps ( for businesses), Green Waste/ Wood and any other Divertible Materials generated by the Customer, calculate the appropriate number and size of Containers required for storage, calculate the recommended frequency of service to optimize cost for the Customer, prepare a written Diversion Plan containing estimated costs and recommended levels of service, and submit the Plan to the Authorized Customer Representative. Franchisee shall discuss the Plan with the Authorized Customer Representative and obtain the Authorized Customer Representative' s approval to implement the finalized Diversion Plan.
3. If the Customer is generating Food Scraps, Franchisee shall provide the Authorized Customer Representative with information on the available edible food donation programs in City including coordinators, vendors and non-profit agencies, as directed by City, and shall factor any applicable edible food donation opportunities into the calculations for sizing of Food Scrap Containers and frequency of Food Scrap Collection service. Franchisee shall cooperate fully and in good faith with all edible food donation efforts of City, all third parties and Customer.
4. If the Customer is already Diverting Recyclable Materials and/or Food Scraps using an in-house program, backhauling, on site processing, self - hauling, or donating or selling materials to a third party, Franchisee shall notify City so City can obtain a completed and signed " Self - Certification Form" for that program. Franchisee shall record the notification to City on the "Exhibit E Tracking Document" described in subpart D herein. City will obtain a completed Self - Required Tasks For Implementation Of Diversion Programs Page E- 1 3-63
90 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 notifiesthe Franchiseethat some, but notall, 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 determinationthat any or all of the previously City -verified in-house program(s) are no longer operating or are no longer adequate, then Franchisee shall comply with all the requirements contained in Sections 12, 13, 14 and in this Exhibit E to fully implement all Diversion Programs required by this Franchise.
iii) In the event City notifies the Franchisee that the in- house program( s) are adequate, Franchisee shall be relieved from its responsibility to implement the Diversion Programs targeting materials that are being Diverted by the City -verified in-house program( s) for a period of 12 months. At the end of twelve ( 12) months, Franchisee shall submit a written request to City to determine whether the Customer filed a new Self -Certification Form and whether the City has determined that the in-house program( s) are adequate. If the City determines any or all of the in-house programs are adequate, Franchisee shall record this in the Exhibit E Tracking Document and shall be relieved from its Required Tasks For Implementation Of Diversion Programs Page E- 2 3-64
91 responsibility to implement the Diversion Programs targeting materials that are being Diverted by the City -verified in-house program( s) for an additional period of 12 months. Franchisee shall continue to provide and maintain all Diversion Programs required by this Franchise for which there is no City -verified in-house program( s).
This process shall be repeated by Franchisee annually as long as the Customer is served by the Franchisee at the same premises. In the event a Customer ceases operation of any or all of its in-house program(s) and/or the City makes a determination that any or all of the in-house program(s) are no longer adequate, then Franchisee shall comply with all the requirements contained in Sections 12, 13, 14 and in this Exhibit E to fully implement all Diversion Programs required by this Franchise.
5. If the Customer is using a landscaping company to haul away Green Waste/ Wood, Franchisee shall notify City so City can obtain a completed and signed " Landscaper Self - Certification Diversion Form" for Green Waste/ Wood at that Premises. Franchisee shall record the notification to City on the Exhibit E Tracking Document. City will obtain a completed Self -Certification Form, and take' steps to verify the landscaper program( s). City will inform the Franchisee of City' s decision regarding the adequacy of the landscaper program(s). i) In the event City notifies the Franchisee that the landscaper program( s) are inadequate, Franchisee shall comply with all the requirements contained in Section 14 and in this Exhibit E to fully implement all Diversion Programs for Green Waste/ Wood required by this Franchise.
ii) In the event City notifies the Franchisee that some, but not all, of the landscaper program( s) are adequate, ( a) Franchisee shall be relieved from its responsibility to implement the Diversion Programs targeting Green Waste and/or Wood Waste that is being Diverted by the City -verified landscaper program( s) for a period of 12 months; and ( b) Franchisee shall comply with all the requirements contained In Section 14 and in this Exhibit E to fully implement all Diversion Programs for Green Waste and/ or Wood Waste not adequately Diverted through the City -verified landscaper program( s). At the end of twelve ( 12) months, Franchisee shall submit a written request to City to determine whether the Customer filed a new " Landscaper Self -Certification Form" and whether the City has determined that any or all of the Customer' s landscaper program( s) are adequate. If the City has determined that any or all of the in-house program( s) are adequate, Franchisee shall record this in the Exhibit E Tracking Document and shall be relieved from its responsibility to implement the Diversion Programs targeting Green Waste and/ or Wood Waste that are being Diverted by the City -verified landscaper program( s) for an additional period of twelve ( 12) months. Franchisee shall continue to provide and maintain all Diversion Programs required by this Required Tasks For Implementation Of Diversion Programs Page E- 3 3-65
92 Franchise for which there is no City -verified in-house program( s).
This process shall be repeated by Franchisee annually as long as the Customer is served by the Franchisee at the same premises. In the event a Customer ceases operation of any or all of its landscaper program(s) and/or the City makes a determination that any or all of the previously City -verified landscaper program( s) are no longer operating or are no longer adequate, then Franchisee shall comply with all the requirements contained in Section 14 and in this Exhibit E to fully implement all Diversion Programs for Green Waste and Wood Waste required by this Franchise.
iii) In the event City notifies the Franchisee that the landscaper program( s) are adequate, Franchisee shall be relieved from its responsibility to implement the Diversion Programs targeting Green Waste and Wood Waste that are being Diverted by the City -verified landscaper program( s) for a period of twelve (12) months. At the end of twelve ( 12) months, Franchisee shall submit a written request to City to determine whether the Customer filed a new " Landscaper Self -Certification Form" and whether the City has determined that the landscaper program( s) are adequate. If so, Franchisee shall record this in the Exhibit E Tracking Document and shall be relieved from its responsibility to implement the Diversion Programs targeting Green Waste and Wood Waste that are being Diverted by the City - verified landscaper program( s) for an additional period of twelve ( 12) months. This process shall be repeated by Franchisee annually as long as the Customer is served by the Franchisee at the same premises. In the event a Customer ceases operation of its landscaper program( s) and/ or the City makes a determination that the landscaper program( s) are no longer adequate, then Franchisee shall comply with all the requirements contained in Section 14 and in this Exhibit E to fully implement all Diversion Programs for Green Waste and Wood Waste required by this Franchise.
6. In the event Franchisee has taken all required actions and completed all required tasks in Steps 1 through 5 herein, and the Authorized Customer Representative has refused the service or has refused to implement all of the recommended programs in the Diversion Plan(s) prepared by the Franchisee, the Franchisee shall notify the City of the Customer' s refusal. The Franchisee shall request that the City or its agent accompany the Franchisee on a site visit to the Customer' s premises to meet with the Authorized Customer Representative to explain the requirements of the Act and the City Code that require implementation of the Diversion Program(s) described in the Plan prepared by the Franchisee and submitted to the Authorized Customer Representative in Step 2. If, after a site visit with the City and the Franchisee, the Authorized Customer Representative continues to refuse to implement the recommended Diversion Program( s) contained in the Plan submitted to the Authorized Customer Representative in Step 2, the Franchisee shall include details about the meeting date, attendees, and the Customer' s decision in Franchisee' s next monthly Exhibit E Tracking Required Tasks For Implementation Of Diversion Programs Page E- 4 3-66
93 Document submittal. Franchisee shall fully and completely cooperate with, and reinforce, City's efforts to enforce the City Code and to obtain the Authorized Customer Representative' s approval to implement the required Diversion Program( s).
7. In the event City is successful in obtaining the recalcitrant Authorized Customer Representative' s approval to implement the required Diversion Program( s), City will notify the Franchisee and the Franchisee shall proceed to implement the Diversion Program( s) as described in the Diversion Plan prepared in Step 2 hereof, by completing implementation Steps 1 through 16 of this Exhibit E.
8. In the event the Customer initially approved the Diversion Program plan prepared by the Franchisee in Step 2, and Franchisee has completed Steps 3, 4 and 5, Franchisee shall proceed to implement Steps 9 through 16.
9. Franchisee shall deliver the appropriate type( s) and size( s) of Containers to the Customer' s premises for storage of Single Material Recyclables and Single Stream Recyclable Materials. In the case of a Food Scrap Generator, Franchisee shall also provide the appropriate type(s) and size(s) of Containers for storage and collection of Food Scraps. If the Customer is generating Green Waste/Wood the Franchisee shall provide the appropriate type(s) and size(s) of Containers for storage and collection of Green Waste/ Wood.
10. Franchisee shall Collect the Recyclable Materials, Food Scraps, and Green Waste/ Wood ( as applicable) from the Customer' s Containers at the frequency of Collection required to prevent litter, vectors, odors and Contamination of Divertible Materials in Containers and is, at a minimum, performing Collection of Recyclable Materials and Green Waste/ Wood at least once each week. In the case of a Food Scrap Generator, Franchisee is Collecting the Food Scraps one (1) to six ( 6) times each week as needed to prevent litter, vectors, odors and Contamination of Divertible Materials in Containers.
11. Franchisee shall evaluate and reduce the level of the Customer' s Municipal Solid Waste Collection service to complement the separate Collection of Recyclable Materials, Green Waste/ Wood and Food Scraps. Franchisee shall check back with the Authorized Customer Representative and make at least two 2) additional on -site visits to determine if the initial sizing of the Containers and frequency of service is optimal for the Customer. Franchisee shall recommend appropriate adjustments as needed to the Authorized Customer Representative and implement all adjustments agreed to by the Authorized Customer Representative.
12. Franchisee has provided employee education and training materials to the Customer ( or in the case of Multifamily Dwellings, Gated Communities, HOA' s and mobile home parks, to all management) explaining ( a) the requirements of the Act and of the City Code, ( b) the operation of each Diversion Program and c) specifically what Divertible Materials may be placed in the Recycling Required Tasks For Implementation Of Diversion Programs Page E- 5 3-67
94 Container( s) and the Green Waste/ Wood Containers and what materials are to be placed in the Municipal Solid Waste Container( s). In the case of a Food Scrap generator, Franchisee shall explain what Food Scrap materials are to be placed in the Food Scrap Container. Employee/ management training shall include at least one on -site training conducted by the Franchisee for all management and all employees of Customer. If there are multiple shifts, or if management and/ or employees work on different days, Franchisee shall conduct multiple trainings until all management and employees have been trained. Internal containers for the Divertible Materials are to be provided by the Customer, pursuant to the City Code.
If directed by the City, Franchisee shall provide City -approved training posters, signage, and stickers/ labels for the internal Containers showing what materials are allowed in each. Franchisee shall provide training and training materials in English and in any other language requested by the Authorized Customer Representative.
13. Franchisee shall make at least two ( 2) follow- up site visits to confirm the Diversion Program( s) is/are operating optimally within the first two weeks after program initiation. ( These site visits are in addition to the site checks to confirm Municipal Solid Waste quantities and optimization of Municipal Solid Waste service described in Step 11 above.) Franchisee shall respond to the Customer' s questions and to any complaints and shall promptly and successfully resolve all questions and complaints.
14. Within ninety ( 90) days after implementation of each Diversion Program at the premises of the Customer, Franchisee shall ensure that the programs are operating effectively such that the Municipal Solid Waste Container( s) at the premises contain no more than twenty percent ( 20%) Recyclable Materials and Food Scraps ( combined), and the Recyclable Materials Container( s) contain no more than ten percent ( 10%) Municipal Solid Waste and Food Scraps, combined ( if the Customer generates Food Scraps). If the Customer is participating in the Food Scrap Diversion Program, the Food Scrap Container( s) shall contain no more than ten percent ( 10%) of any non- food materials. If these performance standards are not being achieved, Franchisee shall work with the Customer, Authorized Customer Representative, owner( s), manager( s) and employees as needed to re-train, troubleshoot and otherwise provide technical assistance to ensure the Contamination standards described herein are met.
15. Franchisee shall conduct a minimum of one ( 1) annual on -site review of the Diversion Plan prepared for the Customer in Step 2, and of each Diversion Program at each Customer, and conduct and annual re-training for all employees, residents and tenants ( that meets all of the requirements listed for the initial training required in Step 12). Franchisee has conducted troubleshooting for each Diversion Program and ensure that each Diversion Program is robust and successfully Diverting the targeted materials within the Contamination limits identified in Step
14. 16. In the event the Customer has a functioning Diversion Program that has been implemented by the Franchisee through the completion of all required actions and tasks in steps 1 through 15 and the Diversion Program( s) is not Required Tasks For Implementation Of Diversion Programs Page E- 6 3-68
95 successfully Diverting all targeted Material( s) and/ or is not meeting the Contamination performance standards in Step 14, the non -compliant Customer shall be reported to City on the Exhibit E Tracking Document in the section labeled Non -Compliant Customers Referred to City for Compliance Action Under Newport Beach Municipal Code". City will contact the Customer concerning the requirements of the Act and the City Code. This may include warnings to the Customer, Notice of Violation, fines and/ or other enforcement actions. If the Authorized Customer Representative agrees to take all necessary steps to fully implement the Diversion Program(s) as required by the Act and the City Code, City will refer the Customer back to the Franchisee for additional on -site work, training of the Customer' s management and employees, troubleshooting and all Steps in this Exhibit E required to achieve full implementation of the program( s). In such event, the Customer shall be removed from the list of " Non - Compliant Customers Referred to City for Compliance Action Under Newport Beach Municipal Code" in the Exhibit E Tracking Document. If the Authorized Customer Representative continues to refuse to take the steps necessary to fully implement one or more of the required Diversion Programs after City action, the Customer will remain on the Non -Compliant Customer list. In the City's sole discretion, upon receipt of written notice by the City, the Franchisee may be relieved of the responsibility to implement the Diversion Program( s) specified by City, at that non -compliant Customer' s premises.
B. In the event there is a change of ownership, management or other change resulting in cessation of a Diversion Program(s) or causing any one of the steps herein to not be fully complied with at all times, Franchisee shall repeat all steps necessary to establish or re- establish a fully implemented Diversion Program. Franchisee shall complete re- establishment of a fully implemented Diversion Program within ninety ( 90) days of either ( i) discovering any malfunction in the Program, or ( ii) City or Customer reporting a problem to Franchisee, whichever is earlier.
C. For each Diversion Program required by this Franchise for each Customer, Franchisee shall be responsible for maintaining fully implemented, successfully operating program( s) as described herein, for as long as the Customer is served by the Franchisee.
In the event a program malfunctions or is not operating optimally at any time, Franchisee shall repeat all steps included in this Exhibit E that are necessary to re- establish a fully implemented Diversion Program. Franchisee shall accomplish this within ninety ( 90) days of either ( i) discovering any sub -optimal functioning of the Program, or ( ii) City or Customer reporting such sub -optimal functioning to Franchisee, whichever is earlier.
D. Franchisee shall submit, as part of Franchisee' s monthly reports described in Section 16 of the Franchise, a monthly report describing the status of each step listed herein for each type of Diversion Program, for each Customer and shall include details for each step as follows:
Details of all Customer interactions for the month ( and for prior months) including telephone calls, texts, e- mails, site visits, Authorized Representative and/ or other persons contacted
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96 Dates of all such contacts
Photos from the site visits and assessments conducted
Photos of any internal Diversion Programs being conducted by the Customer
Customer objections
Log of contamination incidents
Franchisee staff/ representative( s) making the contacts Franchisee lead staff person responsible for each Customer' s Diversion Program implementation.
With regard to Customers with fully implemented, successfully operating Diversion Programs, the Exhibit E Tracking Document shall include any changes in the program( s) during the preceding month ( change of Containers, Container sizes, frequency of Collection) and shall also list the date of Franchisee' s next planned site visit to that Customer' s premises.
This portion of the monthly report shall be called the " Exhibit E Tracking Document".
E. The Exhibit E Tracking Document shall be filled in on the City -provided electronic template. No other templates or formats will be accepted. Use of any alternate format or template shall result in the monthly report being considered incomplete and inaccurate and the Franchisee shall be subject to assessment of liquidated damages pursuant to Section 24B of the Franchise.
F. Each monthly report shall also include a copy of the Diversion Plan(s) prepared by Franchisee for Customers as described in Step 2 of this Exhibit E, during the preceding month. When Containers for any Diversion Program are delivered, changed or removed, the number, sizes and types of Containers delivered, changed or removed shall be noted in the Exhibit E Tracking Document along with the frequency of service for each Container. All changes in frequency of Collection service for a Diversion Program shall also be noted in the Exhibit E Tracking Document.
G. The City Code provides a process for Customers to request a waiver from the requirements to implement Diversion Program( s) due to lack of available space and/ or de minimus quantity( ies) of Divertible Materials. In the event a Customer served by Franchisee has applied for such a waiver, Franchisee shall note this in the Exhibit E Tracking Document.
If the waiver is approved by the City, Franchisee shall confirm this with City and shall record this in the Exhibit E Tracking Document. Franchisee shall be relieved of its duty to provide the Diversion Program( s) that are specified in the waiver granted by the City, for the effective dates of the waiver.
Annually thereafter, thirty ( 30) days prior to the termination date of the waiver, ( or in the event of a waiver of less than twelve months, thirty ( 30) days prior to the termination date of the waiver) Franchisee shall submit a written request to City to determine whether Required Tasks For Implementation Of Diversion Programs Page E- 8 3-70
97 the Customer applied for, and was granted a new waiver for another twelve ( 12) month or shorter) period. If so, Franchisee shall record this in the Exhibit E Tracking Document and shall be relieved of its duty to provide the Diversion Program(s) that are specified in the new waiver granted by the City for the period the new waiver is effective.
This process shall be repeated by Franchisee thirty (30) days prior to the expiration date of each waiver, as long as the Customer is served by the Franchisee at the same premises.
In the event a Customer' s request for a waiver is denied by the City, Franchisee shall comply with all the requirements contained in Sections 12, 13 and 14 and in this Exhibit E to fully implement all Diversion Programs required by this Franchise.
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98 EXHIBIT F
CONSTRUCTION AND DEMOLITION DEBRIS DIVERSION PROGRAM
Franchisee shall provide all services necessary to support Customer compliance with, and City's enforcement of, the CaliforniaGreen Building StandardsCode 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 higherpercentageDiversionif requiredby the CaliforniaGreen Building Standards Code) for which Franchisee is providing Construction and Demolition Debris Collection service.
Franchisee shall inform Customers utilizing Containers and/or Bins and Roll Off Boxes on a temporary basis, that materials being generated must be Diverted pursuant to the requirements of City Code and the California Green Building Standards Code.
Construction and Demolition Debris Diversion Program Page F- 1 3-72
99 STATE OF CALIFORNIA }
COUNTY OF ORANGE } ss.
CITY OF NEWPORT BEACH }
I, Leilani I. Brown, City Clerk of the City of Newport Beach, California, do hereby certify that the whole number of members of the City Council is seven; the foregoing resolution, being Resolution No. 2025-6 was duly introduced before and adopted by the City Council of said City at a regular meeting of said Council held on the 28thday of January, 2025; and the same was so passed and adopted by the following vote, to wit:
AYES: Mayor Joe Stapleton, Mayor Pro Tern Lauren Kleiman, Councilmember Michelle Barto, Councilmember Noah Blom, Councilmember Robyn Grant, Councilmember Sara J.
Weber, Councilmember Erik Weigand
NAYS: None
INWITNESS WHEREOF, I have hereunto subscribed my name and affixed the official seal of said City this 2V1 day of January, 2025.
j-
Leilani I. Brown
City Clerk
Newport Beach, California
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NEWPORT BEACH
City Council Staff Report
COUNCIL STAFF REPORT
CITY OF
February 25, 2025
Agenda Item No. 4
ABSTRACT:
Assembly Bill (AB) 481, codified as California Government Code §7070, et seq., requires City Council approval of a Military Equipment Use Policy (Policy) authorizing the funding, acquisition and use of “military equipment” by the Newport Beach Police Department. The proposed ordinance presented for City Council appro val will update the military equipment inventory, which is an appendix to the Policy, to add two types of unmanned aerial vehicles (drones), add a replacement SWAT command vehicle , and delete an obsolete drone. No changes to the Policy itself are requested.
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) Waive full reading, direct the City Clerk to read by title only, and introduce Ordinance No. 2025-2, An Ordinance of the City Council of the City of Newport Beach, California, Updating the Military Equipment Use Policy for the Newport Beach Police Department, and pass to second reading on March 11, 2025.
DISCUSSION:
On June 28, 2022, the City Council approved the second reading of Ordinance No. 2022- 15 approving a Military Equipment Use Policy for the Newport Beach P olice Department in accordance with AB 481. The Policy includes, as Appendix A, the authorized inventory of “military equipment” as defined in AB 481. City Council approval of an updated ordinance is required to make any changes to the Policy or to add any new “military equipment”.
TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL
FROM: David Miner, Chief of Police - 949-644-3701, [email protected] PREPARED BY: Jonathan Stafford, Deputy Director - 949-644-3650, [email protected]
TITLE: Ordinance No. 2025-2: Updating the Military Equipment Use Policy for the Newport Beach Police Department
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Ordinance No. 2025-2: Updating the Military Equipment Use Policy for the Newport Beach Police Department
February 25, 2025
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Requested additions to the approved military equipment inventory are listed below. North Star 235-4 Command Vehicle - approved for purchase by the City Council on December 10, 2024 . The vehicle will replace an existing SWAT tr uck and is expected to be delivered in July 2026.
Police Department Drone Program – to be considered by the City Council on February 25, 2025. The drone program includes two types of unmanned aerial vehicles: the Responder drone and the Lemur 2 drone.
A DJI Phantom 3 drone that is in the authorized inventory is no longer needed and will be deleted. The drone was purchased in 2016 to test and evaluate the effectiveness of using drones in police operations. It no longer meets FAA transponder requirements so i t will be decommissioned. The Police Department posted notice of the changes to the military equipment inventory on its public website 30 days before City Council consideration of this ordinance.
FISCAL IMPACT:
The recommended action is only to update the policy. Funding for the requested additions are addressed through the budget or through a proposed budget amendment for the drone program.:
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 – Ordinance No. 2025-2
Attachment B – Military Equipment Use Policy (redline) 108
ATTACHMENT A
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Attachment B
Military Equipment Use Policy (redline)
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Policy
707
Newport Beach Police Department
Newport Beach PD Policy Manual
Military Equipment Use Policy
707.1 PURPOSE AND SCOPE
The purpose of this policy is to provide guidelines for the approval, acquisition, and reporting requirements of military equipment in accordance with Government Code § 7070, et seq. 707.1.1 DEFINITIONS
Definitions related to this policy as defined in Government Code § 7070:
Governing body – The governing body for the Newport Beach Police Department is the City Council of the City of Newport Beach.
Military equipment – Includes but is not limited to the following categories:
• Unmanned, remotely piloted, powered aerial or ground vehicles. • Mine-resistant ambush-protected (MRAP) vehicles or armored personnel carriers. • High mobility multipurpose wheeled vehicles (HMMWV), two-and-one-half-ton trucks, five-ton trucks, or wheeled vehicles that have a breaching or entry apparatus attached. • Tracked armored vehicles that provide ballistic protection to their occupants. • Command and control vehicles that are either built or modified to facilitate the operational control and direction of public safety units. • Weaponized aircraft, vessels, or vehicles of any kind. • Battering rams, slugs, and breaching apparatuses that are explosive in nature. This does not include a handheld, one-person ram.
• Firearms and ammunition of_.50 caliber or greater, excluding standard-issue shotguns and standard-issue shotgun ammunition.
• Specialized firearms and ammunition of less than_.50 caliber, including firearms and accessories identified as assault weapons in Penal Code § 30510 and Penal Code § 30515, with the exception of standard-issue handguns.
• Any firearm or firearm accessory that is designed to launch explosive projectiles. • Noise-flash diversionary devices and explosive breaching tools. • Munitions containing tear gas or OC, excluding standard, service-issued handheld pepper spray.
• TASER® Shockwave, microwave weapons, water cannons, and long-range acoustic devices (LRADs).
• Projectile launch platforms and associated munitions. • Any other equipment as determined by a governing body or a state agency to require additional oversight.
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707.2 POLICY
It is the policy of the Newport Beach Police Department that members of this department comply with the provisions of Government Code § 7071 with respect to military equipment. 707.3 MILITARY EQUIPMENT COORDINATOR
The Support Services Lieutenant is designated to act as the military equipment coordinator. The responsibilities of the military equipment coordinator include but are not limited to:
(a) Acting as liaison to the governing body for matters related to the requirements of this policy.
(b) Identifying department equipment that qualifies as military equipment in the current possession of the Department, or the equipment the Department intends to acquire that requires approval by the governing body.
(c) Conducting an inventory of all military equipment at least annually. (d) Collaborating with any allied agency that may use military equipment within the jurisdiction of Newport Beach Police Department (Government Code § 7071). (e) Preparing for, scheduling, and coordinating the annual community engagement meeting as described below in section 707.7.
(f) Preparing the annual military equipment report for submission to the Chief of Policefor subsequent approval by the City Council and ensuring that the report is made available on the department website (Government Code § 7072).
(g) Establishing the procedure for a person to register a complaint or concern, or how that person may submit a question about the use of a type of military equipment, and how the Department will respond in a timely manner.
707.4 APPROVAL
The Chief of Police or the authorized designee shall obtain approval from the governing body by way of an ordinance adopting the Military Equipment Use Policy. As part of the approval process, the Chief of Police or the authorized designee shall ensure the proposed Military Equipment Use Policy is submitted to the governing body and is available on the department website at least 30 days prior to any public hearing concerning the military equipment at issue (Government Code § 7071). The Military Equipment Use Policy must be approved by the governing body prior to engaging in any of the following (Government Code § 7071) (a) Requesting military equipment made available pursuant to 10 USC § 2576a. (b) Seeking funds for military equipment, including but not limited to applying for a grant, soliciting or accepting private, local, state, or federal funds, in-kind donations, or other donations or transfers.
(c) Acquiring military equipment either permanently or temporarily, including by borrowing or leasing.
(d) Collaborating with another law enforcement agency in the deployment or other use of military equipment within the jurisdiction of this department.
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(e) Using any new or existing military equipment for a purpose, in a manner, or by a person not previously approved by the governing body.
(f) Soliciting or responding to a proposal for, or entering into an agreement with, any other person or entity to seek funds for, apply to receive, acquire, use, or collaborate in the use of military equipment.
(g) Acquiring military equipment through any means not provided above. 707.5 COORDINATION WITH OTHER JURISDICTIONS
Military equipment should not be used by any other law enforcement agency or member in this jurisdiction unless they have adopted a Military Equipment Use Policy as required by Government Code § 7071-7075 and in compliance with their agency's policies and all state and federal laws and regulations.
707.6 ANNUAL REPORT
Upon approval of a Military Equipment Use Policy, the Chief of Police or the authorized designee shall submit a military equipment report to the governing body for each type of military equipment approved within one year of approval, and annually thereafter for as long as the military equipment is available for use (Government Code § 7072).
The Chief of Police or the authorized designee shall also make each annual military equipment report publicly available on the department website for as long as the military equipment is available for use. The report shall include all information required by Government Code § 7072 for the preceding calendar year for each type of military equipment in the Newport Beach Police Department inventory.
707.7 COMMUNITY ENGAGEMENT
Within 30 days of submitting and publicly releasing the annual report, the Newport Beach Police Department shall hold at least one well-publicized and conveniently located community engagement meeting, at which the department should discuss the report and respond to public questions regarding the funding, acquisition, or use of military equipment. 707.8 QUESTIONS, CONCERNS AND COMPLAINTS PROCEDURE
In accordance with Section 707.3(g) defined above, the procedure for a person to register a complaint, concern or question is through one of the methods listed below:
• Via US Mail or in person: Complaint forms are available at the front desk or inquiries can be mailed to:
Newport Beach Police Department
870 Santa Barbara Drive
Newport Beach, CA 92660
• Via email:
[email protected]
• By telephone: (949) 644-3681
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• Online: www.nbpd.org/complaints
The department will respond to questions, concerns or complaints regarding this policy or the use of military equipment within 10 business days of receipt by the department. 707.9 COMPLIANCE
The Professional Standards Unit shall ensure that all department members comply with this policy and is responsible for investigating violations of this policy and investigating complaints regarding the use of military equipment.
707.10 MAINTENANCE OF OPERATIONAL INVENTORY LEVELS
The Newport Beach Police Department is authorized to procure and maintain an appropriate inventory of the approved military equipment specified in this policy, including associated ammunition and munitions, necessary to ensure operational capabilities of the department. 707.11 MILITARY EQUIPMENT INVENTORY
The inventory attached as Appendix A constitutes a list of qualifying equipment and associated ammunition and munitions for the Newport Beach Police Department.
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Appendix A Newport Beach Police Department
Military Equipment Inventory
1 Robot
Category 1
Description Recon Robotics Throwbot XT
Initial Cost $15,251 each
Year Acquired 2013
Current Quantity 2
Description/Capabilities This robot is a battery powered, remot e operated device equipped with one camera and audio capability. The device is intended for use during high-risk incidents. Use is limited to members of the department’s Crisis Response Unit (CRU) or with authorization of the on-duty Watch Commander. Incidents that may qualify for its use include, but are not limited to, a high-risk warrant service, barricaded subject, and hostage negotiation/rescue.
Purpose To be used to remotely gain visual/audio data.
Authorized Use Use is established by the Incident Commander or on-duty Watch Commander. All other applicable NBPD policies remain in effect, to include, but not limited to, NBPD Policy 321 – Search and Seizure, and NBPD Policy 408 – Crisis Response Unit.
Expected Lifespan 10 years
Fiscal Impact No known annual maintenance cost.
Unmanned Aerial Vehicle
Category 1
Description DJI Phantom 3 Professional unmanned aerial vehicle (UAV) Initial Cost $1,449
Year Acquired 2016
Current Quantity 1
Description/Capabilities The Phantom 3 is a consumer-grade UAV that is battery powered and remote operated. The UAV controller uses an integrated smart device that allows the operator to control UAV and view live feed from the UAV-mounted 4K DGI camera. Flight time of
approximately 20-25 minutes per battery, depending on weather and flight conditions. Full specifications are available on the manufacturer’s product website: https://www.dji.com/phantom-3- pro
Purpose The UAV was purchased to evaluate a potential UAV program at the NBPD. The department has not implemented a program and does not deploy the UAV during critical incidents.
Authorized Use The UAV is only authorized to be used for testing purposes.
Expected Lifespan 10 years
Fiscal Impact No known annual maintenance cost.
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Appendix A Newport Beach Police Department
Military Equipment Inventory
2 Unmanned Aerial Vehicle
Category 1
Description BRINC Responder unmanned aerial vehicle (UAV) Initial Cost $445,016
Year Acquired 2025
Current Quantity 6
Description/Capabilities The BRINC Responder is a UAV designed for emergency response, featuring a Full HD camera with 40x zoom, a 640px thermal sensor, and 4G teleoperation for remote control via a web browser. Its IPX4 water resistance enables use in light rain, and it includes two-way communication, emergency lights and siren, forward obstacle avoidance, a payload attachment rail, and mesh networking. With up to 42 minutes of flight time per battery, it delivers reliable performance for critical operations. Full specifications are available on the manufacturer’s product website:
https://brincdrones.com/responder/
Purpose The UAV was acquired to enhance the department's emergency response capabilities as part of the Drone as First Responder (DFR) program, providing advanced situational awareness during critical incidents. In addition to its role in the DFR initiative, it will also be deployed on patrol to support various operations as needed. The UAV will provide aerial overwatch to assist officers and incident commanders in situations including, but not limited to:
1. Response to emergency calls
2. Major collision investigations
3. Locating missing persons
4. Crime scene investigations
5. Natural disaster management
6. SWAT, tactical, or other public safety and life preservation operations.
7. In response to specific requests from local, state or federa l fire authorities for fire response and/or prevention.
Authorized Use Response to the situations described above by au thorized personnel who have successfully completed the required training and hold a valid FAA Part 107 Remote Pilot Certificate and in compliance with NBPD Policy 378 – Unmanned Aerial System Expected Lifespan Approximately 5 years
Fiscal Impact Annual Cost (includes all maintenance, hardware, software):
Year 2: $420,495
Year 3: $445,016
Year 4: $420,495
Year 5: $445,016
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Appendix A Newport Beach Police Department
Military Equipment Inventory
3 Unmanned Aerial Vehicle
Category 1
Description BRINC Lemur 2 unmanned aerial vehicle (UAV) Initial Cost None (included in cost for BRINC Responder drones above) Year Acquired 2025
Current Quantity 1
Description/Capabilities The BRINC Lemur 2 is a commercial-grade UAV designed for interior and tactical use, offering advanced features for public safety operations. It is battery-powered, remotely operated, and equipped with a 4K camera, thermal imaging, and 3D LiDAR for real-time floor mapping. The integrated controller supports two-way communication with ultra-sensitive microphones and a lightweight loudspeaker, along with live feed viewing via 4G LTE. Built with a durable carbon fiber-reinforced frame, it includes a 180° gimbal, glass breaker, payload dropper, Turtle Mode for self-righting, and the ability to push open doors. With a flight time of up to 31 minutes per battery, it ensures reliable performance in critical missions. Full specifications are available on the manufacturer’s product website:
https://brincdrones.com/lemur-2/
Purpose The BRINC Lemur 2 is designed to support tactical operations and interior searches, providing advanced aerial overwatch to enhance situational awareness and officer safety. It is designed for use in a variety of critical scenarios, including interior searches, high-risk entries, building clearances, and other tactical situations where precision and reliability are essential.
Authorized Use Response to the situations described above by au thorized personnel who have successfully completed the required training and hold a valid FAA Part 107 Remote Pilot Certificate and in compliance with NBPD Policy 378 – Unmanned Aerial System Expected Lifespan Approximately 5 years
Fiscal Impact Annual cost is included with cost for BRINC Responder drones above (annual cost for the BRINC drone program noted above)
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Appendix A Newport Beach Police Department
Military Equipment Inventory
4 Armored Personnel Carrier, Vehicle with Entry Apparatus Attached Category 2 & 3
Description 2014 Lenco BearCat G2 Armored Rescue Vehicle (ARV) Initial Cost $233,872
Year Acquired 2014
Current Quantity 1
Description/Capabilities The Lenco BearCat G2 is the standard tactical armored vehicle for special operations units within the US Law Enforcement community.
Since the early 2000s, agencies such as LAPD, LASD SEB, NYPD ESU, Boston PD and hundreds of Federal, State and Local Law Enforcement agencies have made the BearCat G2 part of their standard operating procedure. The G2 has excellent on-road driving characteristics and maneuverability in tight urban settings. The large floor plan seats 10 – 12 fully equipped officers with a long list of tactical features only found on the Lenco BearCat line of armored SWAT vehicles for Police and Government.
The ARV is designed to provide ballistic protection during tactical events (designed to withstand multiple bullet strikes from small arms fire as well as low-level explosions). Equipped with emergency lights/siren and a public address system. Common uses for the ARV include citizen and officer rescues, evacuations, and the deployment of officers. The ARV is a mutual-aid asset that has been requested and deployed to allied agencies in Orange County, including Irvine, Laguna Beach, Costa Mesa, and Tustin.
Purpose To be used in response to critical incidents to enhance officer and community safety, improve scene containment and stabilization, and assist in resolving critical incidents.
Authorized Use The use of armored vehicles shall only be authorized by a watch commander or SWAT commander, based on the specific
circumstances of a given critical incident. Armored vehicles shall be used only by officers trained in their deployment and in a manner consistent with Department policy and training. The driver of the vehicle shall have a valid California driver license. All other applicable NBPD policies remain in effect, to include, but not limited to, NBPD Policy 706 – Vehicle Use, and NBPD Policy 408 – Crisis Response Unit.
Expected Lifespan 15 years
Fiscal Impact Annual maintenance cost of approximately $2,500
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Appendix A Newport Beach Police Department
Military Equipment Inventory
5 Command and Control Vehicles
Category 5
Description 2016 Freightliner 3500 Sprinter van, custom upfit by Farber Initial Cost $159,090
Year Acquired 2016
Current Quantity 1
Description/Capabilities The command post (CP) vehicle is a two-axle panel van with front doors, a sliding passenger side door, and rear doors. It is capable of being used as a mobile operations and dispatch center, as an auxiliary command vehicle during major incidents/events and as a negotiation/communication center by the Crisis Negotiations Team. The vehicle is painted white with no police graphics affixed to the exterior. The equipment housed in the vehicle includes, a negotiations control console and accessories, communications throw phone and cables, miscellaneous office supplies, tabletops, chairs, and storage space. The vehicle is also capable of transporting personnel and equipment.
Purpose To be utilized for critical incident callouts and major events.
Authorized Use The CP can used by employees who have been prope rly trained in the safe handling of the vehicle. The driver of the vehicle shall have a valid California driver license. All other applicable NBPD policies remain in effect, to include, but not limited to, NBPD Policy 706 – Vehicle Use, and NBPD Policy 408 – Crisis Response Unit.
Expected Lifespan 10 years
Fiscal Impact Annual maintenance cost of approximately $1,000
Command and Control Vehicles
Category 5
Description 2003 Freightliner customized SWAT Van
Initial Cost $158,270
Year Acquired 2004
Current Quantity 1
Description/Capabilities The SWAT Van is a custom-built Freight liner van used as a command vehicle and for equipment storage and transportation. It is equipped with a desk and radio for dispatch and storage compartments for the different pieces of equipment used by SWAT (weapons, ammunition, 40mm launchers and projectiles, manual breaching tools, robot, ballistic vests, etc.).
Purpose To be used based on the specific circumstances of a given critical incident, large event, natural disaster or community event that is taking place.
Authorized Use The SWAT Van shall be used by officers trained i n their deployment and in a manner consistent with Department policy and training.
The driver of the vehicle shall have a valid California driver license.
All other applicable NBPD policies remain in effect, to include, but not limited to, NBPD Policy 706 – Vehicle Use, and NBPD Policy 408 – Crisis Response Unit.
Expected Lifespan 12 years
Fiscal Impact Annual maintenance cost of approximately $2,500
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Appendix A Newport Beach Police Department
Military Equipment Inventory
6 Command and Control Vehicles
Category 5
Description 2025 Braun Northwest North Star 234-5 Crisis Response Unit Command Vehicle
Initial Cost $382,625
Year Acquired To be delivered in 2026
Current Quantity 1 ordered
Description/Capabilities The North Star 234-5 Command Vehicle i s a Ford F-650 commercial truck chassis with ambulance-type box and custom configured compartments. The vehicle is for the use of the Crisis Response Unit (SWAT) as a command vehicle and to store and transport weapons and equipment. The vehicle will be configured to store the different pieces of equipment used by SWAT (weapons, ammunition, 40mm launchers and projectiles, manual breaching tools, robot, ballistic vests, etc.). The vehicle will also be equipped with radio equipment, monitors, white boards and other equipment needed to support its use a command vehicle.
Purpose To be used to store and transport Crisis Response Unit equipment and operate as a command post for managing critical incidents, large events, natural disasters or community events.
Authorized Use The North Star Command Vehicle shall be used by officers trained in its deployment and in a manner consistent with Department policy and training. The driver of the vehicle shall have a valid California driver license. All other applicable NBPD policies remain in effect, to include, but not limited to, NBPD Policy 706 – Vehicle Use, and NBPD Policy 408 – Crisis Response Unit.
Expected Lifespan 15 years
Fiscal Impact Annual maintenance cost of approximately $5,000
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Appendix A Newport Beach Police Department
Military Equipment Inventory
7 Breaching Apparatus
Category 7
Description Remington 870 Breaching Shotgun.
Initial Cost Approximately $500 each
Year Acquired Approximately 2005
Current Quantity 2
Description/Capabilities This specialized shotgun allows office rs to safely utilize shotgun breaching rounds in order to destroy deadbolts, locks, and hinges.
The stand-off device that is attached to the end of the barrel allows for positive placement of the shotgun into the correct position and vents gases to prevent overpressure.
Purpose To safely gain entry into a structure.
Authorized Use Shotgun breaching may only occur after authoriza tion by the Incident Commander or SWAT Commander in the field, or during training exercises. Only officers trained in shotgun breaching are allowed to utilize this device. All other applicable NBPD policies remain in effect, to include, but not limited to, NBPD Policy 321 – Search and Seizure, and NBPD Policy 408 – Crisis Response Unit.
Expected Lifespan 25 years
Fiscal Impact No annual cost
Breaching Apparatus Ammunition
Category 7
Description Royal Arms TESCR #3, green cap 365 grain tactical shotgun round Initial Cost $5.00 per round
Year Acquired Continuously, beginning 17+ years ago
Current Quantity 40
Description/Capabilities Shotgun breaching rounds are specialty shotgun shells utilized for door breaching. The breaching rounds contain compressed copper powder and are fired through a specialized breaching shotgun barrel. The copper powder is designed to strike and destroy the lock throw inside of the door, allowing entry into the room or structure.
The powder is designed to dissipate after striking the lock throw in order to minimize entry into the target space for the safety of occupants and operators. Royal Arms TESCR #3 rounds are good until expended if stored properly. Shotgun breaching rounds are used to gain rapid access to a room or structure when an emergent law enforcement need exists
Purpose Ammunition for Breaching Shotgun.
Authorized Use Shotgun breaching may only occur after authoriza tion by the Incident Commander or SWAT Commander in the field, or during training exercises. All other applicable NBPD policies remain in effect, to include, but not limited to, NBPD Policy 321 – Search and Seizure, and NBPD Policy 408 – Crisis Response Unit.
Expected Lifespan Until expended
Fiscal Impact $4 per round. Annual cost between $0 and $200
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Appendix A Newport Beach Police Department
Military Equipment Inventory
8 Specialized Firearms
Category 10
Description Heckler & Koch MP5 9mm submachine gun
Initial Cost Unknown (purchased over 30 years ago)
Year Acquired 1992 (estimated)
Current Quantity 8
Description/Capabilities The MP5 is a lightweight, air-cooled, selective fire, delayed blowback weapon with a roller-delayed bolt that fires a 9mm round.
The firearm is highly portable and is capable of accurately stopping an armed subject at various distances.
Purpose To be used as a hand held weapon to address a threat with more precision and/or greater distances than a handgun, if present and feasible.
Authorized Use Only members that are POST certified are authorized to use a submachine gun. All other applicable NBPD policies remain in effect, to include, but not limited to, NBPD Policy 300 – Use of Force, NBPD Policy 311 – Firearms Training and Qualifications, NBPD Policy 408 – Crisis Response Unit.
Expected Lifespan 40 years
Fiscal Impact No annual cost
Specialized Firearms
Category 10
Description Colt M4 .223 caliber carbine rifle
Initial Cost $950
Year(s) Acquired 2002-2017
Current Quantity 5
Description/Capabilities The carbine rifle is a firearm, capabl e of accurately stopping an armed subject at various distances. It is a lightweight, air-cooled, gas operated, magazine fed, shoulder fired weapon, designed for semi-automatic and selective fire. The Colt M4 rifle can be used indefinitely and will need to be serviced or replaced when the rifle fails or breaks. The .223/5.56 cartridge is used as a lethal option designed to stop a violent encounter. The projectile is capable of penetrating soft body armor being worn by armed subjects.
Purpose To be used as hand held weapon to address a threat with more precision and/or greater distances than a handgun, if present and feasible.
Authorized Use Only members that are POST certified are authorized to use a carbine rifle. All other applicable NBPD policies remain in effect, to include, but not limited to, NBPD Policy 300 – Use of Force, NBPD Policy 311 – Firearms Training and Qualifications, NBPD Policy 408 – Crisis Response Unit.
Expected Lifespan 25 years
Fiscal Impact No annual cost
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Appendix A Newport Beach Police Department
Military Equipment Inventory
9 Specialized Firearms
Category 10
Description Bushmaster M4 .223 caliber carbine rifle
Initial Cost $825
Year(s) Acquired 2007-2012
Current Quantity 17
Description/Capabilities The carbine rifle is a firearm, capabl e of accurately stopping an armed subject at various distances. It is a lightweight, air-cooled, gas operated, magazine fed, shoulder fired weapon, designed for semi-automatic & selective fire. The Bushmaster M4 rifle can be used indefinitely and will need to be serviced or replaced when the rifle fails or breaks. The .223/5.56 cartridge is used as a lethal option designed to stop a violent encounter. The projectile is capable of penetrating soft body armor being worn by armed subjects.
Purpose To be used as hand held weapon to address a threat with more precision and/or greater distances than a handgun, if present and feasible.
Authorized Use Only members that are POST certified are authorized to use a carbine rifle. All other applicable NBPD policies remain in effect, to include, but not limited to, NBPD Policy 300 – Use of Force, NBPD Policy 311 – Firearms Training and Qualifications, NBPD Policy 408 – Crisis Response Unit.
Expected Lifespan 25 years
Fiscal Impact No annual cost
Specialized Firearms
Category 10
Description Accuracy International .308 Winchester caliber precision rifle Initial Cost $5,945 to 6,445
Years(s) Acquired 2014-2020
Current Quantity 3
Description/Capabilities The Newport Beach Police Department SW AT Team is specifically trained and equipped to resolve potentially dangerous or hazardous incidents. The Sniper element of the SWAT Team deploys with .308 caliber precision rifles, which enable the stopping of an armed subject at a safe distance. The precision rifle can be used indefinitely and will need to be serviced or replaced when the rifle fails or breaks.
Purpose To be used as precision weapons to address a threat with more precision and/or at greater distances than a handgun, if present and feasible.
Authorized Use Only members that are POST certified are authorized to use a precision rifle. All other applicable NBPD policies remain in effect, to include, but not limited to, NBPD Policy 300 – Use of Force, NBPD Policy 311 – Firearms Training and Qualifications, NBPD Policy 408 – Crisis Response Unit.
Expected Lifespan 10-12 years
Fiscal Impact No annual cost
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Appendix A Newport Beach Police Department
Military Equipment Inventory
10 Specialized Firearms
Category 10
Description Remington 700 .308 Winchester caliber precision rifle.
Initial Cost $4,464
Year Acquired 2013
Current Quantity 2
Description/Capabilities The Newport Beach Police Department SW AT Team is specifically trained and equipped to resolve potentially dangerous or hazardous incidents. The Sniper element of the SWAT Team deploys with .308 caliber precision rifles, which enable the stopping of an armed subject at a safe distance. The precision rifle can be used indefinitely and will need to be serviced or replaced when the rifle fails or breaks.
Purpose To be used as precision weapons to address a threat with more precision and/or at greater distances than a handgun, if present and feasible.
Authorized Use Only members that are POST certified are authorized to use a precision rifle. All other applicable NBPD policies remain in effect, to include, but not limited to, NBPD Policy 300 – Use of Force, NBPD Policy 311 – Firearms Training and Qualifications, NBPD Policy 408 – Crisis Response Unit.
Expected Lifespan 10-12 years
Fiscal Impact No annual cost
Specialized Firearms
Category 10
Description LWRC REPR .308 Winchester caliber precision rifle Initial Cost $5,943
Year Acquired 2015
Current Quantity 1
Description/Capabilities The Newport Beach Police Department SW AT Team is specifically trained and equipped to resolve potentially dangerous or hazardous incidents. The Sniper element of the SWAT Team deploys with .308 caliber precision rifles, which enable the stopping of an armed subject at a safe distance. The precision rifle can be used indefinitely and will need to be serviced or replaced when the rifle fails or breaks.
Purpose To be used as precision weapons to address a threat with more precision and/or at greater distances than a handgun, if present and feasible.
Authorized Use Only members that are POST certified are authorized to use a precision rifle. All other applicable NBPD policies remain in effect, to include, but not limited to, NBPD Policy 300 – Use of Force, NBPD Policy 311 – Firearms Training and Qualifications, NBPD Policy 408 – Crisis Response Unit.
Expected Lifespan 10-12 years
Fiscal Impact No annual cost
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Appendix A Newport Beach Police Department
Military Equipment Inventory
11 Specialized Firearms
Category 10
Description DTA SRS .308 Winchester caliber precision rifle Initial Cost $5,825
Year Acquired 2015
Current Quantity 1
Description/Capabilities The Newport Beach Police Department SW AT Team is specifically trained and equipped to resolve potentially dangerous or hazardous incidents. The Sniper element of the SWAT Team deploys with .308 caliber precision rifles, which enable the stopping of an armed subject at a safe distance. The precision rifle can be used indefinitely and will need to be serviced or replaced when the rifle fails or breaks.
Purpose To be used as precision weapons to address a threat with more precision and/or at greater distances than a handgun, if present and feasible.
Authorized Use Only members that are POST certified are authorized to use a precision rifle. All other applicable NBPD policies remain in effect, to include, but not limited to, NBPD Policy 300 – Use of Force, NBPD Policy 311 – Firearms Training and Qualifications, NBPD Policy 408 – Crisis Response Unit.
Expected Lifespan 10-12 years
Fiscal Impact No annual cost
Specialized Firearms Ammunition
Category 10
Description Hornady .308 Winchester 168 grain, A-Max TAP cartridge Initial Cost $231 per 200 round case
Year Acquired Continuously beginning 5 years ago
Current Quantity 3,000 (approximate current inventory)
Description/Capabilities The .308 Winchester (.308 WIN) cartridge is a rimless, bottlenecked rifle cartridge used as a lethal option designed to stop a violent encounter. The projectile is capable of penetrating soft body armor worn by armed subjects. The 168 grain projectile maintains accuracy, while resulting in higher impact velocities, less drop, less wind drift, and more energy on target.
Purpose The Hornady .308 WIN 168 grain, A-Max TAP cartridge is deployed during potential lethal encounters at longer distances.
Authorized Use Only members that are POST certified are authorized to use a precision rifle and this ammunition. All other applicable NBPD policies remain in effect, to include, but not limited to, NBPD Policy 300 – Use of Force, NBPD Policy 311 – Firearms Training and Qualifications, NBPD Policy 408 – Crisis Response Unit.
Expected Lifespan Until expended
Fiscal Impact $0 to $3,700 annually, depending on usage
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Appendix A Newport Beach Police Department
Military Equipment Inventory
12 Specialized Firearms Ammunition
Category 10
Description Hornady .308 Winchester 168 grain, GMX TAP cartridge Initial Cost $231 per 200 round case
Year Acquired Continuously, beginning 5 years ago
Current Quantity 200
Description/Capabilities The .308 WIN cartridge is a rimless, b ottlenecked rifle cartridge used as a lethal option designed to stop a violent encounter. The projectile is capable of penetrating soft body armor being worn by armed subjects.
Purpose The Hornady .308 WIN 165 grain, GMX TAP Heavy Barrier cartridge is deployed during potential lethal encounters at longer distances. The GMX bullet penetrates heavy barriers while still delivering terminal performance through heavy barriers.
Authorized Use Only members that are POST certified are authorized to use a precision rifle. All other applicable NBPD policies remain in effect, to include, but not limited to, NBPD Policy 300 – Use of Force, NBPD Policy 311 – Firearms Training and Qualifications, NBPD Policy 408 – Crisis Response Unit.
Expected Lifespan Until expended
Fiscal Impact $0 to $3,700 annually, depending on usage
Flashbang Grenades
Category 12
Description Combined Tactical Systems CTS 7290 NFDD
Initial Cost $72 each
Year Acquired Continuously, beginning 5 years ago
Current Quantity 20
Description/Capabilities A Noise Flash Diversionary Devices (NF DD) is a device that creates a bright flash and loud sound to temporarily divert the attention of subjects in the immediate area. NFDD are used to distract and temporarily incapacitate dangerous suspects by overwhelming their senses of vision and hearing. The distraction allows officers to seize a moment of opportunity to take control of high-risk situations.
Purpose To produce atmospheric over-pressure and brilliant white light and, as a result, can cause short-term (6 - 8 seconds)
physiological/psychological sensory deprivation to give officers a tactical advantage.
Authorized Use Diversionary Devices shall only be used:
By SWAT officers trained in their proper use.
In hostage and barricaded subject situations.
In high-risk warrant (search/arrest) services where there may be extreme hazards to officers.
During other high-risk situations where their use would enhance officer safety.
During training exercises.
All other applicable NBPD policies remain in effect, to include, but not limited to, NBPD Policy 300 – Use of Force, NBPD Policy 408 – Crisis Response Unit.
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Appendix A Newport Beach Police Department
Military Equipment Inventory
13 Expected Lifespan 5 years
Fiscal Impact Annual cost between $0 - $1,666, depending on usage
Flashbang Grenades
Category 12
Description Combined Tactical Systems CTS 7290M NFDD
Initial Cost $34 each
Year Acquired Continuously, beginning 5 years ago
Current Quantity 11
Description/Capabilities A Noise Flash Diversionary Devices (NF DD) is a device that creates a bright flash and loud sound to temporarily divert the attention of subjects in the immediate area. NFDD are used to distract and temporarily incapacitate dangerous suspects by overwhelming their senses of vision and hearing. The distraction allows officers to seize a moment of opportunity to take control of high-risk situations
Purpose To produce atmospheric over-pressure and brilliant white light and, as a result, can cause short-term (6 - 8 seconds)
physiological/psychological sensory deprivation to give officers a tactical advantage.
Authorized Use Diversionary Devices shall only be used:
By SWAT officers trained in their proper use.
In hostage and barricaded subject situations.
In high-risk warrant (search/arrest) services where there may be extreme hazards to officers.
During other high-risk situations where their use would enhance officer safety.
During training exercises.
All other applicable NBPD policies remain in effect, to include, but not limited to, NBPD Policy 300 – Use of Force, NBPD Policy 408 – Crisis Response Unit.
Expected Lifespan 5 years
Fiscal Impact Annual cost between $0 - $376, depending on usage
Flashbang Grenades
Category 12
Description Combined Tactical Systems CTS 7290-9 NFDD
Initial Cost $55 each
Year Acquired Continuously, beginning 5 years ago
Current Quantity 4
Description/Capabilities A Noise Flash Diversionary Devices (NF DD) is a device that creates a bright flash and loud sound to temporarily divert the attention of subjects in the immediate area. NFDD are used to distract and temporarily incapacitate dangerous suspects by overwhelming their senses of vision and hearing. The distraction allows officers to seize a moment of opportunity to take control of high-risk situations
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Appendix A Newport Beach Police Department
Military Equipment Inventory
14 Purpose To produce atmospheric over-pressure and brilliant white light and, as a result, can cause short-term (6 - 8 seconds)
physiological/psychological sensory deprivation to give officers a tactical advantage.
Authorized Use Diversionary Devices shall only be used:
By SWAT officers trained in their proper use.
In hostage and barricaded subject situations.
In high-risk warrant (search/arrest) services where there may be extreme hazards to officers.
During other high-risk situations where their use would enhance officer safety.
During training exercises.
All other applicable NBPD policies remain in effect, to include, but not limited to, NBPD Policy 300 – Use of Force, NBPD Policy 408 – Crisis Response Unit.
Expected Lifespan 5 years
Fiscal Impact Annual cost between $0 - $276, depending on usage
Flashbang Grenades
Category 12
Description Liberty Dynamic NFDD
Initial Cost $175 each
Year Acquired Upon City Council approval - 2024
Current Quantity 1
Description/Capabilities A Noise Flash Diversionary Devices (NF DD) is a device that creates a bright flash and loud sound to temporarily divert the attention of subjects in the immediate area. NFDD are used to distract and temporarily incapacitate dangerous suspects by overwhelming their senses of vision and hearing. The distraction allows officers to seize a moment of opportunity to take control of high-risk situations
Purpose To produce atmospheric over-pressure and brilliant white light and, as a result, can cause short-term (6 - 8 seconds)
physiological/psychological sensory deprivation to give officers a tactical advantage.
Authorized Use Diversionary Devices shall only be used:
By SWAT officers trained in their proper use.
In hostage and barricaded subject situations.
In high-risk warrant (search/arrest) services where there may be extreme hazards to officers.
During other high-risk situations where their use would enhance officer safety.
During training exercises.
All other applicable NBPD policies remain in effect, to include, but not limited to, NBPD Policy 300 – Use of Force, NBPD Policy 408 – Crisis Response Unit.
Expected Lifespan 5 years
Fiscal Impact Annual cost between $0 - $300, depending on usage
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Appendix A Newport Beach Police Department
Military Equipment Inventory
15 Tear Gas
Category 12
Description Combined Tactical Systems CTS 5230 CS Canister Grenade Initial Cost $51 each
Year Acquired Continuously, beginning 5+ years ago
Current Quantity 50
Description/Capabilities Large diameter burning canister that discharges a high volume of smoke and chemical agent through multiple emission ports.
Specifically for outdoor use. Can be hand thrown or launched.
Discharge duration can reach up to 40 seconds. Chemical agent munitions, which are commonly referred to as “tear gas,” are used by the Newport Beach Police Department as a non-lethal tool to disperse rioting suspects and on barricaded suspects. The Newport Beach Police Department uses chemical agents that are used by law enforcement across the United States: CS (2- Chlorobenzylidenemalononitrile) and OC (Oleoresin Capsicum). CS is an irritating agent and lachrymator (irritates the eyes and causes tears to flow). OC is an inflammatory agent that causes involuntary closure of eyes (open in 2-5 minutes) and respiratory inflammation (subsides in approximately 2 minutes).
Purpose To limit the escalation of conflict where employment of lethal force is prohibited or undesirable. Situations for use of the less lethal weapon systems may include, but are not limited to:
Self-destructive, dangerous and/or combative individuals. Riot/crowd control and civil unrest incidents.
Circumstances where a tactical advantage can be obtained. Potentially vicious animals.
Training exercises or approved demonstrations.
Authorized Use Only officers who have received POST certificati on in the use chemical agents are authorized to use chemical agents. All other applicable NBPD policies remain in effect, to include, but not limited to, NBPD Policy 300 – Use of Force, NBPD Policy 408 – Crisis Response Unit.
Expected Lifespan 5 years
Fiscal Impact Between $0 and $1,752 annually, depending on usage
Tear Gas
Category 12
Description Combined Tactical Systems CTS 5230B CS Baffled Canister Grenade
Initial Cost $51 each
Year Acquired Continuously, beginning 5+ years ago
Current Quantity 17
Description/Capabilities Pyrotechnic grenade designed for indoo r use delivering a maximum amount of irritant smoke throughout multiple rooms with minimal risk of fire. Chemical agent munitions, which are commonly referred to as “tear gas,” are used by the Newport Beach Police Department as a non-lethal tool to disperse rioting suspects and on barricaded suspects. The Newport Beach Police Department uses chemical agents that are used by law enforcement across the 4-55
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Appendix A Newport Beach Police Department
Military Equipment Inventory
16 United States: CS (2-Chlorobenzylidenemalononitrile) and OC (Oleoresin Capsicum). CS is an irritating agent and lachrymator (irritates the eyes and causes tears to flow). OC is an inflammatory agent that causes involuntary closure of eyes (open in 2-5 minutes) and respiratory inflammation (subsides in approximately 2 minutes).
Purpose To limit the escalation of conflict where employment of lethal force is prohibited or undesirable. Situations for use of the less lethal weapon systems may include, but are not limited to:
Self-destructive, dangerous and/or combative individuals. Riot/crowd control and civil unrest incidents.
Circumstances where a tactical advantage can be obtained. Potentially vicious animals.
Training exercises or approved demonstrations.
Authorized Use Only officers who have received POST certificati on in the use chemical agents are authorized to use chemical agents. All other applicable NBPD policies remain in effect, to include, but not limited to, NBPD Policy 300 – Use of Force, NBPD Policy 408 – Crisis Response Unit.
Expected Lifespan 5 years
Fiscal Impact Between $0 and $1,752 annually, depending on usage
Tear Gas
Category 12
Description Combined Tactical Systems CTS 6340 OC Vapor Grenade Initial Cost $26 each
Year Acquired Continuously, beginning 5+ years ago
Current Quantity 9
Description/Capabilities This grenade delivers an invisible OC vapor and renders an intense respiratory effect to a non-compliant subject. Chemical agent munitions, which are commonly referred to as “tear gas,” are used by the Newport Beach Police Department as a non-lethal tool to disperse rioting suspects and on barricaded suspects. The Newport Beach Police Department uses chemical agents that are used by law enforcement across the United States: CS (2- Chlorobenzylidenemalononitrile) and OC (Oleoresin Capsicum). CS is an irritating agent and lachrymator (irritates the eyes and causes tears to flow). OC is an inflammatory agent that causes involuntary closure of eyes (open in 2-5 minutes) and respiratory inflammation (subsides in approximately 2 minutes).
Purpose To limit the escalation of conflict where employment of lethal force is prohibited or undesirable. Situations for use of the less lethal weapon systems may include, but are not limited to:
Self-destructive, dangerous and/or combative individuals. Riot/crowd control and civil unrest incidents.
Circumstances where a tactical advantage can be obtained. Potentially vicious animals.
Training exercises or approved demonstrations.
Authorized Use Only officers who have received POST certificati on in the use chemical agents are authorized to use chemical agents. All other applicable NBPD policies remain in effect, to include, but not limited 4-56
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Military Equipment Inventory
17 to, NBPD Policy 300 – Use of Force, NBPD Policy 408 – Crisis Response Unit.
Expected Lifespan 5 years
Fiscal Impact Between $0 and $263 annually, depending on usage
Tear Gas
Category 12
Description Defense Technology MK9 Stream OC Aerosol
Initial Cost $44 each
Year Acquired Continuously, beginning 15+ years ago
Current Quantity 3
Description/Capabilities The MK-9 features an easy to use trigg er handle, is intended for use in crowd management and will deliver 14 short bursts of OC at an effective range of 18-20 ft. This 1.3% MC OC aerosol product utilizes a stream delivery method providing a target-specific, strong concentrated stream for greater standoff. Chemical agent munitions, which are commonly referred to as “tear gas,” are used by the Newport Beach Police Department as a non-lethal tool to disperse rioting suspects and on barricaded suspects. The Newport Beach Police Department uses chemical agents that are used by law enforcement across the United States: CS (2- Chlorobenzylidenemalononitrile) and OC (Oleoresin Capsicum). CS is an irritating agent and lachrymator (irritates the eyes and causes tears to flow). OC is an inflammatory agent that causes involuntary closure of eyes (open in 2-5 minutes) and respiratory inflammation (subsides in approximately 2 minutes).
Purpose To limit the escalation of conflict where employment of lethal force is prohibited or undesirable. Situations for use of the less lethal weapon systems may include, but are not limited to:
Self-destructive, dangerous and/or combative individuals. Riot/crowd control and civil unrest incidents.
Circumstances where a tactical advantage can be obtained. Potentially vicious animals.
Training exercises or approved demonstrations.
Authorized Use Only officers who have received POST certificati on in the use chemical agents are authorized to use chemical agents. All other applicable NBPD policies remain in effect, to include, but not limited to, NBPD Policy 300 – Use of Force, NBPD Policy 408 – Crisis Response Unit.
Expected Lifespan 5 years
Fiscal Impact Between $0 and $132 annually, depending on usage
Tear Gas
Category 12
Description Combined Tactical Systems CTS 4330 – CS Liquid 40mm projectile Initial Cost $23 each
Year Acquired Continuously, beginning 5+ years ago
Current Quantity 18
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18 Description/Capabilities Liquid CS filled 40mm projectile penet rates intermediate barriers and delivers irritant agents into an adjacent room. Chemical agent munitions, which are commonly referred to as “tear gas,” are used by the Newport Beach Police Department as a non-lethal tool to disperse rioting suspects and on barricaded suspects. The Newport Beach Police Department uses chemical agents that are used by law enforcement across the United States: CS (2- Chlorobenzylidenemalononitrile) and OC (Oleoresin Capsicum). CS is an irritating agent and lachrymator (irritates the eyes and causes tears to flow). OC is an inflammatory agent that causes involuntary closure of eyes (open in 2-5 minutes) and respiratory inflammation (subsides in approximately 2 minutes).
Purpose To limit the escalation of conflict where employment of lethal force is prohibited or undesirable. Situations for use of the less lethal weapon systems may include, but are not limited to:
Self-destructive, dangerous and/or combative individuals. Riot/crowd control and civil unrest incidents.
Circumstances where a tactical advantage can be obtained. Potentially vicious animals.
Training exercises or approved demonstrations.
Authorized Use Only officers who have received POST certificati on in the use chemical agents are authorized to use chemical agents. All other applicable NBPD policies remain in effect, to include, but not limited to, NBPD Policy 300 – Use of Force, NBPD Policy 408 – Crisis Response Unit.
Expected Lifespan 5 years
Fiscal Impact Between $0 and $453 annually, depending on usage.
Tear Gas
Category 12
Description Defense Technology 6320 – Direct Impact 40mm Crushable Foam Round.
Initial Cost $31 each
Year Acquired Continuously, beginning 10+ years ago
Current Quantity 12
Description/Capabilities The 40mm Direct Impact munition is a point-of-aim, point-of-impact direct-fire round. An excellent solution whether you need to incapacitate a single subject or control a crowd. When loaded with OC powder, the Direct Impact combines blunt trauma with the effects of an irritant powder, maximizing the potential for incapacitation. Chemical agent munitions, which are commonly referred to as “tear gas,” are used by the Newport Beach Police Department as a non-lethal tool to disperse rioting suspects and on barricaded suspects. The Newport Beach Police Department uses chemical agents that are used by law enforcement across the United States: CS (2-Chlorobenzylidenemalononitrile) and OC (Oleoresin Capsicum). CS is an irritating agent and lachrymator (irritates the eyes and causes tears to flow). OC is an inflammatory agent that causes involuntary closure of eyes (open in 2-5 minutes) and respiratory inflammation (subsides in approximately 2 minutes). 4-58
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Appendix A Newport Beach Police Department
Military Equipment Inventory
19 Purpose To limit the escalation of conflict where employment of lethal force is prohibited or undesirable. Situations for use of the less lethal weapon systems may include, but are not limited to:
Self-destructive, dangerous and/or combative individuals. Riot/crowd control and civil unrest incidents.
Circumstances where a tactical advantage can be obtained. Potentially vicious animals.
Training exercises or approved demonstrations.
Authorized Use Only officers who have received POST certificati on in the use chemical agents are authorized to use chemical agents. All other applicable NBPD policies remain in effect, to include, but not limited to, NBPD Policy 300 – Use of Force, NBPD Policy 408 – Crisis Response Unit.
Expected Lifespan 5 years
Fiscal Impact Between $0 and $266 annually, depending on usage.
Tear Gas
Category 12
Description CTS 4557 – Direct Impact 40mm Crushable Foam Round Initial Cost $31 each
Year Acquired Upon City Council approval - 2024
Current Quantity 12
Description/Capabilities The 40mm Direct Impact munition is a point-of-aim, point-of-impact direct-fire round. An excellent solution whether you need to incapacitate a single subject or control a crowd. When loaded with OC powder, the Direct Impact combines blunt trauma with the effects of an irritant powder, maximizing the potential for incapacitation. Chemical agent munitions, which are commonly referred to as “tear gas,” are used by the Newport Beach Police Department as a non-lethal tool to disperse rioting suspects and on barricaded suspects. The Newport Beach Police Department uses chemical agents that are used by law enforcement across the United States: CS (2-Chlorobenzylidenemalononitrile) and OC (Oleoresin Capsicum). CS is an irritating agent and lachrymator (irritates the eyes and causes tears to flow). OC is an inflammatory agent that causes involuntary closure of eyes (open in 2-5 minutes) and respiratory inflammation (subsides in approximately 2 minutes).
Purpose To limit the escalation of conflict where employment of lethal force is prohibited or undesirable. Situations for use of the less lethal weapon systems may include, but are not limited to:
Self-destructive, dangerous and/or combative individuals. Riot/crowd control and civil unrest incidents.
Circumstances where a tactical advantage can be obtained. Potentially vicious animals.
Training exercises or approved demonstrations.
Authorized Use Only officers who have received POST certificati on in the use chemical agents are authorized to use chemical agents. All other applicable NBPD policies remain in effect, to include, but not limited to, NBPD Policy 300 – Use of Force, NBPD Policy 408 – Crisis Response Unit.
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Appendix A Newport Beach Police Department
Military Equipment Inventory
20 Expected Lifespan 5 years
Fiscal Impact Between $0 and $266 annually, depending on usage.
Tear Gas
Category 12
Description CTS 4340 – 40MM Ferret OC Barricade Penetrating Projectile, Liquid
Initial Cost $30 each
Year Acquired Upon City Council approval - 2024
Current Quantity 8
Description/Capabilities
The Ferret 40mm Round is non-burning and suitable for indoor use.
Used primarily by tactical teams, it is designed to penetrate barriers, such as windows, hollow core doors, wallboard and thin plywood. Upon impacting the barrier, the nose cone ruptures and instantaneously delivers a small chemical payload inside of a structure or vehicle. In a tactical deployment situation, the 40mm Ferret is primarily used to dislodge barricaded subjects from confined areas. Its purpose is to minimize the risks to all parties through pain compliance, temporary discomfort and/or
incapacitation of potentially violent or dangerous subjects.
Chemical agent munitions, which are commonly referred to as “tear gas,” are used by the Newport Beach Police Department as a non- lethal tool to disperse rioting suspects and on barricaded suspects.
The Newport Beach Police Department uses chemical agents that are used by law enforcement across the United States: CS (2- Chlorobenzylidenemalononitrile) and OC (Oleoresin Capsicum). CS is an irritating agent and lachrymator (irritates the eyes and causes tears to flow). OC is an inflammatory agent that causes involuntary closure of eyes (open in 2-5 minutes) and respiratory inflammation (subsides in approximately 2 minutes).
Purpose To limit the escalation of conflict where employment of lethal force is prohibited or undesirable. Situations for use of the less lethal weapon systems may include, but are not limited to:
Self-destructive, dangerous and/or combative individuals. Riot/crowd control and civil unrest incidents.
Circumstances where a tactical advantage can be obtained. Potentially vicious animals.
Training exercises or approved demonstrations.
Authorized Use Only officers who have received POST certificati on in the use chemical agents are authorized to use chemical agents. All other applicable NBPD policies remain in effect, to include, but not limited to, NBPD Policy 300 – Use of Force, NBPD Policy 408 – Crisis Response Unit.
Expected Lifespan 5 years
Fiscal Impact Between $0 and $113 annually, depending on usage
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Appendix A Newport Beach Police Department
Military Equipment Inventory
21 Tear Gas
Category 12
Description Defense Technology 1290 – 40MM Ferret OC Barricade Penetrating Projectile, Powder
Initial Cost $15 each
Year Acquired Continuously, beginning 10+ years ago
Current Quantity 3
Description/Capabilities The Ferret 40 mm Barricade Penetrating Round is filled with an OC powder chemical agent. It is a frangible projectile that is spin stabilized utilizing barrel rifling. It is non-burning and designed to penetrate barriers. Primarily used to dislodge barricaded subjects, it can also be used for area denial. Primarily used by tactical teams, it is designed to penetrate barriers, such as windows, hollow core doors, wallboard and thin plywood. Upon impact the nose ruptures and instantaneously delivers the agent payload inside a structure or vehicle. Chemical agent munitions, which are commonly referred to as “tear gas,” are used by the Newport Beach Police Department as a non-lethal tool to disperse rioting suspects and on barricaded suspects. The Newport Beach Police Department uses chemical agents that are used by law enforcement across the United States:
CS (2-Chlorobenzylidenemalononitrile) and OC (Oleoresin Capsicum). CS is an irritating agent and lachrymator (irritates the eyes and causes tears to flow). OC is an inflammatory agent that causes involuntary closure of eyes (open in 2-5 minutes) and respiratory inflammation (subsides in approximately 2 minutes).
Purpose To limit the escalation of conflict where employment of lethal force is prohibited or undesirable. Situations for use of the less lethal weapon systems may include, but are not limited to:
Self-destructive, dangerous and/or combative individuals. Riot/crowd control and civil unrest incidents.
Circumstances where a tactical advantage can be obtained. Potentially vicious animals.
Training exercises or approved demonstrations.
Authorized Use Only officers who have received POST certificati on in the use chemical agents are authorized to use chemical agents. All other applicable NBPD policies remain in effect, to include, but not limited to, NBPD Policy 300 – Use of Force, NBPD Policy 408 – Crisis Response Unit.
Expected Lifespan 5 years
Fiscal Impact Between $0 and $44 annually, depending on usage.
PepperBall Launcher
Category 12
Description PepperBall FTC pepperball launcher
Initial Cost $412 each
Year Acquired 2021
Current Quantity 8
4-61
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Appendix A Newport Beach Police Department
Military Equipment Inventory
22 Description/Capabilities The FTC pepperball launcher is a syste m that uses high pressure air to deliver PAVA powder projectiles (similar to a paint ball delivery system). System capable of launching projectiles at a subject up to 60 feet away. System capable of area saturation up to 160 feet away. Non-lethal option to offer law enforcement officers to deliver chemical agents and kinetic energy impacts to subjects in a potentially violent encounter. De-escalation tool used to avoid further injuries or lethal options on a subject.
Purpose To limit the escalation of conflict where employment of lethal force is prohibited or undesirable. Situations for use of the less lethal weapon systems may include but are not limited to:
Self-destructive, dangerous and/or combative
individuals.
Riot/crowd control and civil unrest incidents.
Circumstances where a tactical advantage can be
obtained.
Potentially vicious animals.
Training exercises or approved demonstrations.
Authorized Use Only those officers who have been trained in the use of pepperball launchers are authorized to use the pepperball launchers. All other applicable NBPD policies remain in effect, to include, but not limited to, NBPD Policy 300 – Use of Force.
Expected Lifespan 10 years
Fiscal Impact Between $0 and $1,500 annually, depending on usage
PepperBall Launcher Projectile
Category 12
Description PepperBall LIVE X projectile
Initial Cost $237 per 90 rounds
Year Acquired 2021
Current Quantity 500
Description/Capabilities The basic PepperBall projectile contai ns 0.5% pepper powder, and is designed for direct impact and area saturation. Discharged from a FTC pepperball launcher, the projectile has a velocity of 280-350 FPS. The projectile has a direct impact of 60 feet and an area of saturation of 150+ feet. The projectile contains 0.5% PAVA Powder.
Purpose To limit the escalation of conflict where employment of lethal force is prohibited or undesirable. Situations for use of the less lethal weapon systems may include but are not limited to:
Self-destructive, dangerous and/or combative
individuals.
Riot/crowd control and civil unrest incidents.
Circumstances where a tactical advantage can be
obtained.
Potentially vicious animals.
Training exercises or approved demonstrations.
Authorized Use Only those officers who have been trained in the use of pepperball launchers are authorized to use the pepperball launchers. All other applicable NBPD policies remain in effect, to include, but not limited to, NBPD Policy 300 – Use of Force
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Appendix A Newport Beach Police Department
Military Equipment Inventory
23 Expected Lifespan 1 year
Fiscal Impact Between $0 and $1,318 annually, depending on usage.
Projectile Launch Platforms
Category 14
Description Defense Technology 40LMTS Tactical 40mm Single Launcher Initial Cost $856 each
Year Acquired Beginning 15+ years ago.
Current Quantity 38
Description/Capabilities The 40LMTS is a tactical single shot launcher that features an expandable ROGERS Super Stoc and an adjustable Integrated Front Grip (IFG) with light rail. The ambidextrous Lateral Sling Mount (LSM) and QD mounting systems allow both a single and two point sling attachment. The 40LMTS will fire standard 40mm less lethal ammunition, up to 4.8 inches in cartridge length. The Picatinny Rail Mounting System will accept a wide array of enhanced optics/sighting systems. The 40mm launcher is not a firearm, but a less-lethal system that uses smokeless powder to deliver 40mm projectiles from a safe distance. The less-lethal launcher is capable of launching 40mm munitions at a subject up to 25 yards away. This less-lethal launcher is a single launcher, which allows the Officer to assess after every spent munition. Less-lethal launchers do not have an expiration date and will need to be serviced or replaced when the launcher fails or breaks.
Purpose To limit the escalation of conflict where employment of lethal force is prohibited or undesirable.
Authorized Use Situations for use of the less lethal weapon sys tems may include, but are not limited to:
Self-destructive, dangerous and/or combative individuals. Riot/crowd control and civil unrest incidents.
Circumstances where a tactical advantage can be obtained. Potentially vicious animals.
Training exercises or approved demonstrations.
All other applicable NBPD policies remain in effect, to include, but not limited to, NBPD Policy 300 – Use of Force.
Expected Lifespan 25 years
Fiscal Impact Between $0 and $1,000 annually, depending on usage.
Projectile Launch Platforms
Category 14
Description Penn Arms PG5 40 mm Multi Launcher
Initial Cost $3,336 each
Year Acquired 10+ years ago
Current Quantity 2
Description/Capabilities The 40mm launcher is a less-lethal sys tem that uses smokeless powder to deliver 40MM projectiles from a safe distance. This piece of equipment features a six-shot, revolving cylinder pump mechanism capable of firing multiple rounds before reloading is 4-63
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Appendix A Newport Beach Police Department
Military Equipment Inventory
24 necessary. The less-lethal launchers do not have an expiration date and will need to be serviced or replaced when the launcher fails or breaks.
Purpose To limit the escalation of conflict where employment of lethal force is prohibited or undesirable.
Authorized Use Situations for use of the less lethal weapon sys tems may include, but are not limited to:
Self-destructive, dangerous and/or combative individuals. Riot/crowd control and civil unrest incidents.
Circumstances where a tactical advantage can be obtained. Potentially vicious animals.
Training exercises or approved demonstrations.
All other applicable NBPD policies remain in effect, to include, but not limited to, NBPD Policy 300 – Use of Force.
Expected Lifespan No expiration
Fiscal Impact Between $0 and $8,550 annually, depending on usage
Projectile Launcher Associated Munitions
Category 14
Description Defense Technology eXact iMpact 40MM Standard Range Sponge Round
Initial Cost $34 per round
Year Acquired Continuously, beginning15+ years ago
Current Quantity 200
Description/Capabilities The eXact iMpact 40 mm Sponge Round is a point-of-aim, point-of- impact direct-fire round. This lightweight, high-speed projectile consisting of a plastic body and sponge nose that is spin stabilized via the incorporated rifling collar and the 40 mm launcher’s rifled barrel. The round utilizes smokeless powder as the propellant, and, therefore, have velocities that are extremely consistent. Used for crowd control, patrol, and tactical applications. The munition is used as a less-lethal device designed to de-escalate a potentially violent encounter.
Purpose To limit the escalation of conflict where employment of lethal force is prohibited or undesirable.
Authorized Use Situations for use of the less lethal weapon sys tems may include, but are not limited to:
Self-destructive, dangerous and/or combative individuals. Riot/crowd control and civil unrest incidents.
Circumstances where a tactical advantage can be obtained. Potentially vicious animals.
Training exercises or approved demonstrations.
All other applicable NBPD policies remain in effect, to include, but not limited to, NBPD Policy 300 – Use of Force.
Expected Lifespan 5 years
Fiscal Impact Between $0 and $6,800 annually, depending on usage
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Appendix A Newport Beach Police Department
Military Equipment Inventory
25 Projectile Launcher Associated Munitions
Category 14
Description Defense Technology 6326 – Direct Impact 40mm Marking Crushable Foam Round
Initial Cost $31 each
Year Acquired Continuously, beginning 10+ years ago
Current Quantity 4
Description/Capabilities The 40mm Direct Impact munition is a point-of-aim, point-of-impact direct-fire round. An excellent solution whether you need to incapacitate a single subject or control a crowd. When loaded with a green marking agent, the Direct Impact can be used to indicate the aggressor in a crowd or riot situation to the team on the ground.
Purpose To limit the escalation of conflict where employment of lethal force is prohibited or undesirable and to clearly indicate individuals committing or instigating unlawful activities.
Authorized Use Situations for use of the less lethal weapon sys tems may include, but are not limited to:
Self-destructive, dangerous and/or combative individuals. Riot/crowd control and civil unrest incidents.
Circumstances where a tactical advantage can be obtained. Potentially vicious animals.
Training exercises or approved demonstrations.
All other applicable NBPD policies remain in effect, to include, but not limited to, NBPD Policy 300 – Use of Force.
Expected Lifespan 5 years
Fiscal Impact Between $0 and $263 annually, depending on usage
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5-1
NEWPORT BEACH
City Council Staff Report
COUNCIL STAFF REPORT
CITY OF
February 25, 2025
Agenda Item No. 5
ABSTRACT:
If adopted, Resolution No, 2025 -10, would establish the Aviation Ad Hoc Committee , comprised of three City Council members, to review and make recommendations regarding the structure, membership, roles and responsibilities of the Aviation Committee.
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. 2025-10, A Resolution of the City Council of the City of Newport Beach, California, Creating the Aviation Ad Hoc Committee to Review the Structure, Membership, Roles and Responsibilities of the Aviation Committee; and c) Appoint Mayor Pro Tem Lauren Kleiman , Councilmember Michelle Barto and Councilmember Noah Blom to serve on the Aviation Ad Hoc Committee.
DISCUSSION:
At the request of Councilmember Noah Blom pursuant to City Council Policy A-1, at its February 11, 2025 meeting, the City Council considered forming an ad hoc committee to review and make recommendations regarding the structure, membership, roles and responsibilities of the Aviation Committee . The Council voted un animously 7 -0, via a straw poll, in favor of staff returning with an item.
If adopted, Resolution No. 2025 -10 would create the Aviation Ad Hoc Committee consisting of three Councilmembers appointed by Mayor Joe Stapleton and confirmed by the entire City Co uncil. The ad hoc committee would be responsible for reviewing and making recommendations to the City Council regarding possible changes to the current structure, membership, roles and responsibilities of the Aviation Committee.
TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL
FROM: Grace K. Leung, City Manager - 949-644-3001,
[email protected]
PREPARED BY: Tara Finnigan, Assistant City Manager - 949-644-3035, [email protected]
TITLE: Resolution No. 2025-10: Creating the Aviation Ad Hoc Committee to Review the Structure, Membership, Roles and Responsibilities of the Aviation Committee
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Resolution No. 2025-10: Creating the Aviation Ad Hoc Committee to Review the Structure, Membership, Roles and Responsibilities of the Aviation Committee February 25, 2025