Newport Beach City Council
October 13, 2026

LAUREN KLEIMAN, Mayor
NOAH BLOM, Mayor Pro Tem
MICHELLE BARTO, Councilmember
ROBYN GRANT, Councilmember
JOE STAPLETON, Councilmember
SARA J. WEBER, Councilmember
ERIK WEIGAND, Councilmember
SEIMONE JURJIS , City Manager
AARON C. HARP, City Attorney
LENA SHUMWAY, City Clerk

CITY OF NEWPORT BEACH

CITY COUNCIL AGENDA
COUNCIL CHAMBERS - 100 CIVIC CENTER DRIVE, NEWPORT BEACH, CA 92660 REGULAR CITY COUNCIL MEETING - 4:00 PM REVISED AGENDA
OCTOBER 13, 2026

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 [email protected] so that reasonable accommodations can be made. 1

VIEWING THE CITY COUNCIL MEETING
The City of Newport Beach provides opportunities for the public to view City Council meetings without attending in person. Meetings are broadcast live on Cox Channel 852 (HD) or Cox Channel 30 and livestreamed online at https://newportbeachca.gov/nbtv
Members of the public who wish to comment on matters before the City Council, in lieu of appearing in person, may submit written comments to [email protected]. Written comments received by 4:00 p.m. on the Monday preceding the meeting will be provided to the City Council as part of the meeting record and posted on the City's website.

ZOOM WEB CONFERENCING FOR ONLINE MEETING PARTICIPATION
In addition to viewing City Council meetings through the City's live and on-demand streaming service, meetings will also be available through Zoom web conferencing to enhance public participation. A telephone dial-in option will also be available.

HOW TO CONNECT TO THE ZOOM WEB CONFERENCE BY COMPUTER OR SMART DEVICE Members of the public may provide live public comments during City Council meetings via Zoom.

To join the meeting, click https://us06web.zoom.us/j/82104392296 You may also join through the Zoom application on your smartphone or tablet, or through a web browser at https://zoom.us/join, by entering:

Webinar ID: 821 0439 2296
Please enter your name in the Zoom application so that the City Clerk may identify you when it is your turn to speak. If you wish to provide public comment, please use the "Raise Hand" feature during the applicable public comment period.

HOW TO CONNECT TO THE ZOOM WEB CONFERENCE BY TELEPHONE
Dial: (949) 662-3855
Webinar ID: 821 0439 2296
Participants joining by telephone will be identified by the last four digits of their telephone number. When called upon to speak, please state your name for the record.

When requested by the City Clerk, telephone participants may mute or unmute their line by pressing *6.

Telephone participants may raise their hand by pressing *9. Once raised, a hand cannot be lowered using the telephone keypad.
2 October 13, 2026

City Council Meeting
I. ROLL CALL - 4:00 p.m.

INVOCATION
Pastor Adam Feichtmann, Redeemer Presbyterian Church

PLEDGE OF ALLEGIANCE
II. PRESENTATIONS
Presentation of $12.5 Million Check from the Library Foundation of Newport Beach for Witte Hall
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III. STUDY SESSION
Staff will present an update on the City’s ocean-facing beaches following concerns about sand loss. The presentation will review the history of sand nourishment and shoreline structures, current conditions along the City’s coastline, and proposed plans and ongoing efforts to replenish sand in selected shoreline areas.
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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.

CITY COUNCIL ANNOUNCEMENTS AND ORAL REPORTS FROM CITY COUNCIL

ON COMMITTEE ACTIVITIES
IV. MATTERS WHICH COUNCILMEMBERS HAVE ASKED TO BE PLACED ON A

FUTURE AGENDA (NON-DISCUSSION ITEM)

1. Consider reviewing the City’s Integrated Pest Management Policy and exploring to eliminate the spraying of synthetic herbicides in parks and greenbelt areas citywide. (Councilmember Weigand)

2. Consider implementing fixed security cameras at the harbor entrance, seeking assistance from the U.S. Department of Homeland Security, U.S.

Customs and Border Protection, U.S. Coast Guard and Orange County Sheriff’s Department. (Councilmember Weigand)
3 October 13, 2026

City Council Meeting

PUBLIC COMMENTS ON CONSENT CALENDAR
This is the time in which Councilmembers may pull items from the CONSENT CALENDAR for discussion (ITEMS 1 - 14). 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.

V. CONSENT CALENDAR

1. Approval of Minutes
Approval of Minutes for the September 22, 2026, Regular City Council Meeting, and Minutes for the September 18, 2026, Special City Council meeting. 2026-09-22 CC Minutes
2026-09-18 CC Minutes-Special

RESOLUTIONS FOR ADOPTION
Resolution No. 2026-87: Resolution of Intention to Conduct a Public Hearing to Consider Granting Non-Exclusive Commercial Solid Waste and Divertible Materials Handling Franchises to OC Construction & Clean Up Corp.

2. 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. 2026-87, A Resolution of the City Council of the City of Newport Beach, California, Declaring Its Intention to Conduct a Public Hearing to Consider Granting Non-Exclusive Commercial Solid Waste and Divertible Materials Handling Franchises.

Staff Report
Attachment A - Resolution
Attachment B - Sample 2020 Non-Exclusive Commercial Solid Waste Franchise Agreement
4 October 13, 2026

City Council Meeting
Resolution No. 2026-88, Authorizing the Use of the City’s Official Seal as Part of a Collaboration with Hoag Hospital to Wrap a City Fire Department Ambulance with Pinktober Wrap in Support of Breast Cancer Awareness Month

3. a) Determine this action is exempt from the California Environmental Quality Act (CEQA) pursuant to Sections 15060(c)(2) and 15060(c)(3) of the CEQA Guidelines because this action will not result in a physical change to the environment, directly or indirectly; and
b) Adopt Resolution No. 2026-88, Authorizing the Use of the City’s Official Seal as Part of a Collaboration with Hoag Hospital to Wrap a City Fire Department Ambulance with Pinktober Wrap in Support of Breast Cancer Awareness Month.

Staff Report
Attachment A - Resolution

4. Resolution No. 2026-89: Amending City Council Policy F-14 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. 2026-89, A Resolution of the City Council of the City of Newport Beach, California, Amending Council Policy F-14, Contract Procurement and Authority to Contract, to Update Provisions Related to Consumer Price Index Adjustments and Claims Resolution.

Staff Report
Attachment A - Resolution
Attachment B - Redline of Council Policy F-14
5 October 13, 2026

City Council Meeting
Resolution No. 2026-90: Accepting a Grant from the State of California, Division of Boating and Waterways for the Surrendered and Abandoned Vessel Exchange Program (SAVE)

5. a) Determine this action is exempt from the California Environmental Quality Act ("CEQA") pursuant to Sections 15060(c)(2) 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, Division 6, Chapter 3, because it has no potential for resulting in physical change to the environment, directly or indirectly; b) Adopt Resolution No. 2026-90, A Resolution of the City Council of the City of Newport Beach, California, Accepting a Grant from the State of California, Department of Parks and Recreation, Division of Boating and Waterways for the Surrendered and Abandoned Vessel Exchange Program (SAVE); and c) Approve Budget Amendment No. 27-026 recognizing $50,000 in grant revenue from the California Division of Boating and Waterways (13501-431385-G2745) and appropriating $50,000 to Account No. 13501-980000-G2745 and $5,000 to Account No. 10001-980000-G2745 Abandoned Watercraft Abatement.

Staff Report
Attachment A - Resolution
Attachment B - Budget Amendment
Resolution No. 2026-93: Ratifying the Proclamation of a Local Emergency Issued on October 9, 2026
S.20
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. 2026-93: A Resolution of the City Council of the City of Newport Beach, California, (i) Ratifying the Proclamation of a Local Emergency Issued on October 9, 2026, by City Manager Seimone Jurjis, the Director of Emergency Services of the City of Newport Beach, and (ii) Approving the Authorizing Certain Actions Relating Thereto.

Staff Report
Attachment A- Resolution
6 October 13, 2026

City Council Meeting

CONTRACTS AND AGREEMENTS

6. Witte Hall - Notice of Completion for Contract No. 7444-3 (19F11) a) Determine this action is exempt from the California Environmental Quality Act (CEQA) pursuant to Sections 15060(c)(2) and 15060(c)(3) of the CEQA Guidelines because this action will not result in a physical change to the environment, directly or indirectly; and
b) Accept the completed work and authorize the City Clerk to file a Notice of Completion for the project.

Staff Report
Attachment A - Location Map
Crean Mariners Branch Library Fire Line Replacement - Award of Contract No. 10165-1 (26F02)

7. a) Find this project exempt from the California Environmental Quality Act (CEQA) pursuant to Section 15301 (Existing Facilities) of the CEQA Guidelines, California Code of Regulations, Title 14, Chapter 3, because this project has no potential to have a significant effect on the environment;
b) Approve the project plans and specifications;
c) Award Contract No. 10165-1 to Elegant Construction Inc. for the total bid price of $352,500 for the Crean Mariners Branch Library Fire Line Replacement project, and authorize the Mayor and City Clerk to execute the contract; and d) Establish a contingency of $35,000 (approximately 10% of the total bid) to cover the cost of unforeseen work not included in the original contract.

Staff Report
Attachment A - Location Map
7 October 13, 2026

City Council Meeting
Fiscal Year 2026-27 Traffic Signal Rehabilitation Project - Award of Contract No. 10209-1 (27T01)

8. a) Determine this action is exempt from the California Environmental Quality Act (CEQA) pursuant to Sections 15060(c)(2) and 15060(c)(3) of the CEQA Guidelines because this action will not result in a physical change to the environment, directly or indirectly;
b) Approve the project plans and specifications;
c) Award Contract No. 10209-1 to International Line Builders, Inc. for the total bid price of $847,324 for the Fiscal Year 2026-27 Traffic Signal Rehabilitation Project, and authorize the Mayor and City Clerk to execute the contract; and d) Establish a contingency of $212,000 (approximately 25% of total bid) to cover the cost of including necessary field exploration work and the purchase of the long lead-time equipment for a new four-way signal on Via Lido between the Lido Marina and Lido Plaza, as well as any unforeseen work in the original contract.

Staff Report
Attachment A - Location Map
Attachment B - Support Letter
Amendment No. Three to On-Call Plumbing Maintenance and Repairs Services with Verne’s Plumbing, Inc.

9. a) Determine this action is exempt from the California Environmental Quality Act (CEQA) pursuant to Sections 15060(c)(2) and 15060(c)(3) of the CEQA Guidelines because this action will not result in a physical change to the environment, directly or indirectly;
b) Approve Amendment No. Three to the On-Call Maintenance / Repair Services Agreement with Verne's Plumbing, Inc., for Plumbing Services, for a new total not-to-exceed amount of $350,000, and authorize the Mayor and City Clerk to execute the amendment; and
c) Authorize the termination of the On-Call Maintenance and Repair Services Agreement with Pacific Plumbing of Southern California (dba Pacific Plumbing of Santa Ana).

Staff Report
Attachment A - Amendment No. Three
8 October 13, 2026

City Council Meeting
Approval of Equipment Replacement Purchase Orders for Two Ford Transit Vans, One John Deere Backhoe Loader, One Ram-Jet Vactor Truck, and Three Toyota Tacoma Pick-up Trucks

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 Purchase Order for two Ford Transit HR 350 EL Vans from A-Z Bus Sales Inc. for a total amount of $236,431;
c) Approve a Purchase Order for one John Deere backhoe loader from Coastline Equipment of Long Beach for a total amount of $181,422; d) Approve a Purchase Order for one Ram-Jet Vactor Truck from Haaker Equipment for a total amount of $658,800;
e) Approve a Purchase Order for three Toyota Tacoma Pick-up Trucks from RP Automotive for a total amount of $167,308; and
f) Authorize a contingency of $62,000 (approximately 5% of the total quotes) to cover the cost of unforeseen changes to the current quotes.

Staff Report
Attachment A - Bid Results RFB 27-09
Attachment B - Vehicle and Equipment Quotes
Professional Services Agreement with Alvarez-Glasman & Colvin for Hearing Adjudication Services

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) Approve an exception to bidding and authorize the Mayor and City Clerk to execute a professional services agreement with Alvarez-Glasman & Colvin for Hearing Adjudication Services, in an amount not to exceed $187,500, for a term ending June 30, 2028.

Staff Report
Attachment A - Agreement
9 October 13, 2026

City Council Meeting

MISCELLANEOUS
Budget Amendment to Accept a Grant from the California Library Literacy Services and Appropriate Funds to the Library’s Fiscal Year 2026-27 Operating Budget

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) Accept a grant in the amount of $46,456 from the California Library Literacy Services and approve Budget Amendment No. 27-024 to increase expenditures by the same amount in Division 01060604 (Literacy).

Staff Report
Attachment A - Budget Amendment

13. Appointment to the Finance 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; and
b) Appoint Brinson Lingenfelter to fill the unscheduled vacancy on the Finance Committee for a term beginning immediately upon appointment and expiring June 30, 2028.

Staff Report
Attachment A - Finance Committee Application
Annual Review of Visit Newport Beach Audited Financial Statements and Expenditure Report

14. 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.

Staff Report
Attachment A - Audited Financial Statements
Attachment B - Expenditure Compliance Report
ACTION: MOVE AFFIRMATIVE ACTION OF THE CONSENT CALENDAR, EXCEPT FOR

THOSE ITEMS REMOVED

ITEMS REMOVED FROM THE CONSENT CALENDAR
10 October 13, 2026

City Council Meeting
VI. PUBLIC HEARINGS
Ordinance No. 2026-17: Approving the Fairway Three Development Agreement (PA2025-0019)

15. a) Conduct a public hearing;
b) Find this project is not subject to further environmental review pursuant to Section 21083.3 of the California Public Resources Code (PRC) and Section 15183 of the CEQA Guidelines because the project is consistent with the previously certified Program Environmental Impact Report (SCH No. 2023060699); and c) Introduce Ordinance No. 2026-17, An Ordinance of the City Council of the City of Newport Beach, California, Approving a Development Agreement for a 78-unit Residential Development for the Property located at 1 Clubhouse Drive (PA2025- 0019), and pass to second reading on October 27, 2026.

Staff Report
Attachment A - Ordinance
Attachment B - PC Staff Report dated September 17, 2026 Attachment C – PC Draft Meeting Minutes
Attachment D - PC Resolution No. PC2026-025
Attachment E - Public Comment
11 October 13, 2026

City Council Meeting
Resolution No. 2026-91: Appeal of Action Confirming Surrender of Five Crowns Restaurant Limited Term Permit (PA2023-0202)

16. a) Conduct a de novo public hearing;
b) 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, Division 6, Chapter 3, because it has no potential for resulting in physical change to the environment, directly or indirectly .

Additionally, this action is categorically exempt from the California Environmental Quality Act pursuant to Section 15321 under Class 21 (Enforcement Actions by Regulatory Agencies) of the CEQA Guidelines, California Code of Regulations, Title 14, Division 6, Chapter 3 which exempts actions by regulatory agencies to revoke or terminate a permit or land use entitlements; and
c) Adopt Resolution No. 2026-91: A Resolution of the City Council of the City of Newport Beach, California, Denying an Appeal and Upholding the Planning Commission’s Decision Confirming Voluntary Surrender of a Limited Term Permit to Allow a Temporary Outdoor Dining Area with Live Entertainment Located at 3801 East Coast Highway (PA2023-0202) and Confirming Resolution No. 2025-18 Presents No Live Controversy.

Staff Report
Attachment A - Draft Resolution
Attachment B - Planning Commission Staff Report, September 17, 2026 Attachment C - Planning Commission Meeting Minutes, September 17, 2026 Attachment D - Appeal
Attachment E - Materials Submitted by Appellant
12 October 13, 2026

City Council Meeting
VII. CURRENT BUSINESS
Resolution No. 2026-92: Denying a Request to Waive City Council Policy L-2 (Driveway Approaches) to Allow Vehicular Access for a Single-Unit Dwelling Located at 2700 Cliff Drive

17. 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. 2026-92, A Resolution of the City Council of the City of Newport Beach, California, Denying a Request to Waive City Council Policy L-2 (Driveway Approaches) to Allow Vehicular Access for a Single-Unit Dwelling Located at 2700 Cliff Drive; or,
c) Alternatively, adopt Resolution of the City Council of the City of Newport Beach, California, Waiving City Council Policy L-2 (Driveway Approaches) to Allow Vehicular Access for a Single-Unit Dwelling located at 2700 Cliff Drive.

Staff Report
Attachment A - Resolution
Attachment B - Alternative Resolution
Attachment C - City Council Policy L-2 -, Driveway Approaches Attachment D - Applicant's Waiver Request Letter
Attachment E - 2700 Cliff Drive Project Plans
Attachment F - Site/Parking Photographs
VIII. 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.

PUBLIC COMMENTS ON CLOSED SESSION
IX. CLOSED SESSION

CONFERENCE WITH LEGAL COUNSEL

ANTICIPATED LITIGATION
(Government Code § 54956.9) (d)(2), (e)(1)): 1 matter

18. 13
October 13, 2026

City Council Meeting

CONFERENCE WITH LEGAL COUNSEL

EXISTING LITIGATION

19. Government Code § 54956.9(d)(1): 5 matters.
a) Newport Beach Stewardship Association v. City of Newport Beach Orange County Superior Court Case No. 30-2024-01428295
California Court of Appeals Case No. G065816
b) Newport Beach Stewardship Association v. City of Newport Beach Orange County Superior Court Case No. 30-2026-01572799
c) Newport Beach Stewardship Association v. City of Newport Beach Orange County Superior Court Case No. 30-2026-01579137
d) City of Newport Beach v. Newport Beach Stewardship Association & Newport Beach Stewardship Association v. Lena Shumway et al.

Orange County Superior Court Case No. 30-2026-01559183
e) City of Newport Beach et al. v. Robert Page et al.

Orange County Superior Court Case No. 30-2026-01580961

CLOSED SESSION REPORT

ADJOURNMENT
Adjourn in Memory of Brian Olson
Written Comments Received on Agenda and Non-Agenda Items after Agenda Posting
15 - Correspondence
16 - Correspondence
20 - Correspondence
Written Comments on Multiple Items
Non-Agenda - Correspondence
PLEASE TURN CELL PHONES OFF OR SET IN SILENT MODE.
14 1
City Council
Meeting Minutes
September 22, 2026, 4:00 PM
I. ROLL CALL

Present: Mayor Lauren Kleiman, Mayor Pro Tem Noah Blom, Councilmember Michelle Barto, Councilmember Robyn Grant, Councilmember Joe Stapleton, Councilmember Sara J. Weber, Councilmember Erik Weigand
Staff Present: City Manager Seimone Jurjis, City Attorney Aaron C. Harp, City Clerk Lena Shumway
Invocation was led by Dave Manne, Pastor Emeritus, Calvary Chapel of Costa Mesa.

Pledge of Allegiance was led by Councilmember Stapleton.

PUBLIC COMMENTS ON AGENDA AND NON-AGENDA ITEMS
The following members of the public addressed the Council:

Chip Stassel (Newport Heights resident) opposed the proposed utility undergrounding for Assessment District 118-2, arguing the cost burden is inappropriate for individual homeowners, that home insurance rates would not be affected, and that the petition process lacked adequate notification.

Susan Skinner (resident) criticized the City Council majority for what she characterized as deliberate obstruction of four citizen ballot initiatives, citing court orders requiring compliance, legal fees reportedly exceeding $1,000,000, and the potential personal liability of council members for ministerial decisions not carried out according to law.

Jeanne Fobes (Newport Heights resident since 1970) attempted to address the Council via video but experienced technical difficulties; her comments were partially inaudible.

Rick Weiss (Newport Heights resident) presented a detailed review of 12 prior City undergrounding petitions, alleging that undergrounding proponents Michael Henn and Andrea Bird were improperly allowed by City Engineer Michael Sinicori to insert selfserving and misleading language—including phrases such as "nonbinding" and "no financial obligation"—into the AD 118-2 petition, language that does not appear in any prior City petition.

Gary Steinberg (Newport Heights homeowner) argued that language inserted into the AD 118-2 petition incorrectly states that more than 50% of property owners must vote in favor for the district to form, which he said directly contradicts California law under Proposition 218, where only returned ballots are counted and weighted by assessment amount. He requested the City Council suspend further circulation of the petition.

Portia Weiss (Newport Heights resident) urged the Council to have the City Attorney verify Mr. Steinberg's legal claims, suspend circulation of the AD 118-2 petition, and undertake a comprehensive review of the flawed process, including prohibiting proponents from inserting language into official city petitions. 15 2
Evelyn Kroner (Lido Isle resident) urged the Council to move forward immediately with placing three citizen initiative measures on the November general election ballot, accusing the Council of stonewalling and obstructing the process in defiance of court orders.

Lynn Lorenz (resident) discussed parallels between Newport Beach's undergrounding situation and Manhattan Beach's piecemeal undergrounding approach, and raised background information regarding former Councilmember Mike Henn as a longstanding proponent of undergrounding.

Kevin Conklin (Newport Heights resident, 22 years) argued that the undergrounding effort primarily benefits a small number of homes along Santa Ana Avenue seeking unobstructed views, while financially burdening the broader neighborhood, with costs of $50,000–$70,000 per home that many residents cannot afford.

Coeli Hylkema (mooring permit holder) requested that the City adopt the State Lands Commission Category 1 benchmark rate for recreational docks, piers, and mooring buoys, arguing that mooring permit holders are overcharged and treated inequitably compared to yacht club members and residential pier permit holders.

Jim Noose (Newport Heights resident) stated his family has lived in the neighborhood since the mid-1960s without experiencing power failures or fires, and expressed concern that the financial burden of undergrounding would force long-time residents on fixed incomes to sell their homes.

Jed Robinson (Newport Heights resident, 43 years) noted that the City previously spent taxpayer dollars improving the neighborhood's alleyways and that Southern California Edison recently upgraded local equipment, arguing that undergrounding would destroy those investments for no tangible safety gain.

Aarti Chopra (Irvine resident and Newport Beach Chamber member) requested that the Council designate September as Ovarian Cancer Awareness Month in memory of her late mother, a physician who passed away from the disease, and highlighted the lack of a reliable diagnostic test for the cancer. Mayor Kleiman requested Ms. Chopra share her contact information with staff to follow up on the proclamation request.

Siobhan Robinson (Newport Heights resident, 43 years) read a letter she had previously sent to all Councilmembers in July without receiving a response, formally opposing the AD 118-2 petition process and citing omissions of critical information, including the potential for foreclosure and the rights being waived by signers.

Simone Wilson (Newport Heights resident) requested that Jeannie Fobes's video statement be replayed with sound, voiced opposition to the undergrounding proposal, and expressed concern about lack of transparency in the petition process and the alleged strong-arming of older residents to sign the petition.

Lisa Sutton (Corona del Mar resident) raised concerns about the Corona del Mar Corridor Study, stating that the process is moving rapidly toward zoning changes, increased density, mixed-use housing, and entertainment uses that she and many residents believe are incompatible with the surrounding neighborhood, and asked the Council to slow down and reconnect with the community.

In response to the volume of undergrounding comments, City Manager Jurjis clarified for the record that the undergrounding petition process for AD 118-2 is entirely 16 3
resident-driven and not a City-initiated effort, and that the City Council would only consider the matter if and when petitions are formally delivered.

CITY COUNCIL ANNOUNCEMENTS AND ORAL REPORTS FROM CITY COUNCIL

ON COMMITTEE ACTIVITIES
Councilmember Barto reported attending the State of OC Sand luncheon with Councilmember Weigand and noted the sand replenishment project is proceeding on schedule and that one of Newport Beach's beaches received an honorable mention for cleanest beach in the county.

Councilmember Grant reported attending a federal advocacy trip to Washington D.C. as the district 5 representative for the Association of California Cities in Orange County, engaging with federal leaders on sand replenishment, public safety, and John Wayne Airport. She also announced Newport Beach's designation as an official Tennis Town by the USTA Southern California, and recognized the Lido Legacy Live charity concerts, which raised over $120,000 for the Junior Lifeguard Scholarship Program and the Friends of Oasis Senior Center. She additionally noted her participation in the Newport Harbor Elks and American Legion's 25th anniversary 9/11 remembrance ceremony.

Councilmember Stapleton thanked Mike Zimmerman and the Friends of Oasis for their car show, recognized residents who attended his District 1 Town Hall covering topics including the 4th of July, sand replenishment, and public safety, and thanked City staff who participated. He solemnly reported that a 37-year-old paddler, a member of the Olsen family, passed away during the Ben Did Go paddle event on Saturday after a medical emergency at mile 10, leaving behind a wife and two young children, and asked the City to rally around the family.

PUBLIC COMMENTS ON CONSENT CALENDAR
Adam Leverenz expressed concern regarding Item 2, Ordinance No. 2026-15, specifically objecting to the curfew provision banning minors from the beach between 6 PM and 6 AM on three designated days, and arguing the ordinance conflicts with Title 21 of the Municipal Code governing beach hours under the Local Coastal Program.

Jim Mosher objected to adopting two ordinances without reading their titles before the vote, called attention to the curfew provision as broader than the agenda title suggested, noted the 50th anniversary of the California Coastal Act, raised copyright concerns with the records retention schedule, questioned the public education component relative to adding a new staffing position for trash and recycling goals, and asked whether the City was receiving any financial recovery from the prior drone vendor given the purchase of replacement equipment.

Walter Starh argued that the curfew ordinance effectively applies year-round to minors between 10 PM and 6 AM Citywide and shuts down a large area on three designated days, voiced concern that the ordinance may violate the California Coastal Act, criticized the records retention policy for potentially allowing Council meeting videos to be discarded shortly after meetings, and questioned why the $4,500,000 drone purchase lacked a comparative analysis of alternatives. 17 4
Andy Gerken expressed skepticism that the curfew ordinance would effectively address the 4th of July crowd issues, suggesting the "Not in Newport" campaign may have inflamed the situation, and recommended bringing in outside professional expertise to develop a more comprehensive prevention strategy.

Omar Herrera (Newport Coast resident) expressed support for the drone program, noting that other agencies with similar programs are achieving high crime-catching rates, and thanked the Council for taking steps toward public safety on the 4th of July.

Lisa Sutton (Corona del Mar resident) reiterated the need for adequate police staffing and resources, arguing that no ordinance would be effective without sufficient personnel to enforce it, and noting the challenges of increased density and tourism in her neighborhood.

Following public comment, Councilmember Weigand thanked Traffic Sergeant Fabbri for her work in securing the traffic safety grant in Item 14.

City Attorney Harp clarified that the City's curfew for minors has been in place since at least 1964 and that Ordinance No. 2026-15 does not change beach hours but narrows restrictions to three days per year, requiring minors to be accompanied or to have a legitimate reason to be present. Mayor Pro Tem Blom and City Manager Jurjis further clarified that Title 21 of the Local Coastal Program governs land use entitlements and development, not law enforcement, and that the ordinance does not restrict public access to the beach.

Councilmember Stapleton announced a recusal on Item 8 due to a financial conflict of interest, as his clients own EwasteDisposal, Inc. Item 11 was pulled by staff for return to the October 13th agenda.

Motion to approve the Consent Calendar (Items 1–15), excluding Item 11 (continued to October 13), and noting Councilmember Stapleton's recusal on Item 8, was made by Mayor Pro Tem Blom and seconded by Councilmember Barto.

The motion carried by unanimous vote, 7-0.

The City Clerk read the titles of the adopted ordinances:

Ordinance No. 2026-15: An Ordinance of the City Council of the City of Newport Beach, California, Amending Subsection (B) (Safety Enhancement Zone) of Section 1.04.010 (Violations, Penalties, Enforcement) of Chapter 1.04 (Code Enforcement) of Title 1 (General Provisions), Amending Chapter 10.36 (Minor's Curfew), and Adding Chapter 10.80 (Public Safety Orders and Regulation of Large Gatherings) to Title 10 (Offenses and Nuisances) and Amending Section

11.03.020 (General Provisions) of Chapter 11.03 (Special Events) of Title 11 (Recreational Activities) of the Newport Beach Municipal Code to Address Illegal Activity and Public Safety During High-Risk Periods and Other Significant Crowd Events.

Ordinance No. 2026-16: 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.
18 5
II. CONSENT CALENDAR

1. Approval of Minutes
Approval of Minutes for the September 8, 2026, Regular City Council Meeting, and Minutes of the September 11, 2026, Special City Council meeting.

ORDINANCES FOR ADOPTION

2. Ordinance No. 2026-15: Amending the Newport Beach Municipal Code to Address Illegal Activity and Public Safety During High-Risk Periods and Other Significant Crowd Events
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 of an Ordinance, read by title only, conduct second reading and adopt Ordinance No. 2026-15.

3. Ordinance No. 2026-16: Updating the Military Equipment Use Policy for the Newport Beach Police Department
a) Determine this action is exempt from CEQA pursuant to Sections 15060(c)(2) and 15060(c)(3); and
b) Waive full reading of an Ordinance, read by title only, conduct Second Reading and adopt Ordinance No. 2026-16.

RESOLUTIONS FOR ADOPTION

4. Resolution No. 2026-84: Amendments to the Records Retention Schedule a) Determine this action is exempt from CEQA pursuant to Sections 15060(c)(2) and 15060(c)(3);
b) Adopt Resolution No. 2026-84, A Resolution of the City Council of the City of Newport Beach, California, Amending Certain Sections of the Records Retention Schedule and Authorizing Destruction of Certain Records.

5. Resolution No. 2026-85: Amending the Staffing Structure of the City Manager's Office and the Municipal Operations Department a) Determine this action is exempt from CEQA pursuant to Sections 15060(c)(2) and 15060(c)(3);
b) Approve the following changes to employee positions and assignments: (i) eliminate one full-time Management Fellow position from the City Manager's Office; and (ii) add one full-time Assistant Management Analyst position to the Municipal Operations Department; and
c) Adopt Resolution No. 2026-85.

CONTRACTS AND AGREEMENTS

6. Amendment No. Three to the Purchase, Installation and Maintenance Agreement with Axon for Skydio Drones and Body Worn Cameras a) Determine this action is exempt from CEQA pursuant to Sections 15060(c)(2) and 15060(c)(3); and
19 6
b) Approve Amendment No. Three to the Purchase, Installation and Maintenance Agreement with Axon Enterprise, Inc. of Scottsdale, Arizona for Skydio drones and related products and services and 14 additional body worn cameras in an amount notto-exceed $4,506,801.18 and authorize the Mayor and City Clerk to execute the Amendment; and
c) Approve Budget Amendment No. 27-017 appropriating $283,011.55 in increased expenditures in Account No. 01035355-811065 and $23,934.88 in Account No. 75304-811004 from the unappropriated General Fund balance.

7. Professional Services Agreement with BKF Engineers for the Eastbluff Drive Pavement Rehabilitation Project - Contract No. 10184-1 (27R14) a) Determine this action is exempt from CEQA pursuant to Sections 15060(c)(2) and 15060(c)(3); and
b) Approve a Professional Services Agreement with BKF Engineers of Newport Beach for Eastbluff Drive Pavement Rehabilitation Design Services for a total not-to-exceed amount of $328,078, and authorize the Mayor and City Clerk to execute the agreement.

8. Amendment No. One to Service Agreement with EwasteDisposal, Inc., for Hazardous Disposal Services (Contract No. 7371-3)
(Councilmember Stapleton recused due to financial conflict of interest.) a) Determine this action is exempt from CEQA pursuant to Sections 15060(c)(2) and 15060(c)(3); and
b) Authorize the Mayor and City Clerk to execute Amendment No. One to On-Call Maintenance/Repair Services Agreement with EwasteDisposal, Inc., for As-Needed Disposal Services for Asbestos Cement Pipe and Other Hazardous Items to increase the contract amount by $80,000 for a total contract not-to-exceed amount of $200,000 and extend the contract an additional two years to a new expiration date of October 31, 2028.

9. Professional Services Agreement with Water Resources Economics, LLC for Water, Wastewater, and Recycled Water Rate Study
a) Determine this action is exempt from CEQA pursuant to Sections 15060(c)(2) and 15060(c)(3); and
b) Authorize the Mayor and City Clerk to execute a Professional Services Agreement with Water Resources Economics, LLC for Water, Wastewater, and Recycled Water Rate Study for a term of two years and a contract compensation amount not-to-exceed $185,000.

10. Professional Services Agreement with T & G Global, LLC dba St. Nick's Christmas Lighting and Decor for Holiday Decorations at Civic Center, Central Library, Marina Park, OASIS Senior Center, Newport Coast Community Center and Community Youth Center
a) Determine this action is exempt from CEQA pursuant to Sections 15060(c)(2) and 15060(c)(3); and
b) Approve a five-year Professional Services Agreement with T & G Global, LLC, for Rental and Installation of Holiday Decorations Citywide for a total not-to-exceed 20 7
amount of $159,380, and authorize the Mayor and City Clerk to execute the Agreement.

11. Bonita Creek Park Athletic Field Turf Replacement - Award of Contract No. 9890-2 (26P11)
(Pulled by staff; continued to the October 13, 2026 City Council meeting.)

MISCELLANEOUS

12. Third Amendment to Lease with Secada Medical, LLC for Use of Suites 470, 485, and 400 at 1201 Dove Street
a) Find this matter is exempt from CEQA pursuant to Section 15301 and Section 15302; and
b) Authorize the City Manager and City Clerk to execute the Third Amendment to Lease between the City of Newport Beach and Secada Medical, LLC (dba Ventris Medical) for use of City Property, office space Suites 400, 470, and 485 located at 1201 Dove Street.

13. Amendment No. One to Affordable Housing Loan Agreement with American Family Housing for the Avon River Homekey Project at 1400 Bristol Street, Costa Mesa
a) Find this project and the City Council's subsequent action are exempt from CEQA pursuant to Section 15301 and Section 15302;
b) Approve Budget Amendment No. 27-025, appropriating $262,500 from the Affordable Housing, Restricted Programs unappropriated fund balance for increased expenditures in the Permanent Supportive Housing Account No. 1800011-811055; and
c) Authorize the City Manager to finalize negotiations and authorize the City Manager and City Clerk to execute the Amendment No. One to the Affordable Housing Loan Agreement between the City of Newport Beach and American Family Housing, LLC, to loan an additional $262,500, utilizing the City of Newport Beach's Affordable Housing Fund, to convert the property at 1400 Bristol Street, Costa Mesa, into permanent supportive housing.

14. Acceptance of the State of California Office of Traffic Safety Selective Traffic Enforcement Program Grant PT27109
a) Determine this action is exempt from CEQA pursuant to Sections 15060(c)(2) and 15060(c)(3);
b) Authorize the City Council to accept a $497,000 Selective Traffic Enforcement Program award granted to the Newport Beach Police Department by the State of California, Office of Traffic Safety; and
c) Approve Budget Amendment No. 27-020 increasing Newport Beach Police Department revenue estimates and expenditure appropriations by $497,000.

15. Planning Commission Agenda for the September 17, 2026, Meeting Receive and file.
21 8

ITEMS REMOVED FROM THE CONSENT CALENDAR

11. Bonita Creek Park Athletic Field Turf Replacement - Award of Contract No. 9890-2 (26P11)
Continued to the October 13, 2026 City Council meeting at the request of staff.

CURRENT BUSINESS

16. Resolution No. 2026-86: Approving a 180-Day Wait Period Exception Pursuant to Government Code Sections 7522.56 and 21224 for the Appointment of Retired Annuitant Justin Carr as an Extra Help Retired Annuitant a) Determine this action is exempt from CEQA pursuant to Sections 15060(c)(2) and 15060(c)(3);
b) Adopt Resolution No. 2026-86, A Resolution of the City Council of the City of Newport Beach, California, Approving a 180-Day Wait Period Exception Pursuant to Government Code Sections 7522.56 and 21224 for the Appointment of Retired Annuitant Justin Carr as an Extra Help Retired Annuitant; and c) Authorize the City Manager and City Clerk to execute a Post Retirement Temporary Employment Agreement with Justin Carr for Assistant Fire Chief Services, with an effective date of October 5, 2026, and a term date of December 25, 2026.

Jim Mosher acknowledged that Assistant Fire Chief Carr is an outstanding public employee, noted that this item is required by CalPERS law to come before the Council, and asked whether it would have been more economical to encourage Chief Carr to complete his pending work before retiring, rather than rehiring him as a retired annuitant.

Councilmember Grant expressed strong support for the measure, noting Chief Carr's exemplary service, invaluable institutional knowledge, and the fire chief's endorsement of his retention. She noted that the City would be compensating someone for this work regardless, and that Chief Carr is uniquely qualified given his operational experience.

Motion to adopt Resolution No. 2026-86 and approve the Post Retirement Temporary Employment Agreement with Justin Carr was made by Councilmember Grant and seconded by Mayor Pro Tem Blom.

The motion carried by unanimous vote, 7-0.

III. PUBLIC HEARINGS

17. Community Development Block Grant Program Year 2025-26, Consolidated Annual Performance and Evaluation Report (CAPER)
a) Hold a public hearing to receive comments on the Program Year 2025-26 Consolidated Annual Performance Evaluation Report;
b) Find this activity exempt from CEQA pursuant to Sections 15060(c)(2) and 15060(c)(3);
c) Approve the Program Year 2025-26 Consolidated Annual Performance Evaluation Report; and
22 9
d) Authorize the City Manager or his designee to submit the Program Year 2025-26 Consolidated Annual Performance Evaluation Report to the U.S. Department of Housing and Urban Development.

City Manager Jurjis provided a brief staff report, noting the City received approximately $402,000 in CDBG allocation plus $318,000 in program income for a total of $698,000 expended during the year, primarily on ADA sidewalk improvements, public services, and program administration and fair housing. Real Property Manager Lauren Wooding Whitlinger was present to answer questions.

Jim Mosher observed that the required legal notice in the Daily Pilot generated zero public comments, questioned the lack of progress on the business and job creation goal, noted the Meals on Wheels program served only 42 of a goal of 100 homebound seniors, questioned the precise ADA ramp beneficiary figure of 6,669 persons, and asked for clarification on outcomes for the 88 persons placed in homeless shelters.

Councilmember Grant asked staff to clarify how unexpended funds are managed. Staff confirmed that unspent funds roll over and are reprogrammed by the City Council as needed, and that funds remain available for up to seven years, enabling the City to deploy large capital expenditures without losing allocations.

Mayor Pro Tem Blom commended staff for not spending simply to spend, and praised the ADA platform constructed at The Wedge as particularly well received by the community.

Motion to approve the Program Year 2025-26 Consolidated Annual Performance Evaluation Report and authorize its submission to HUD was made by Mayor Pro Tem Blom and seconded by Councilmember Grant.

The motion carried by unanimous vote, 7-0.

IV. MOTION FOR RECONSIDERATION
The City Clerk read the statement on motions for reconsideration. No motions for reconsideration were made.

PUBLIC COMMENTS ON CLOSED SESSION
Jim Mosher commented on Item 19, the two existing litigation matters involving the Newport Beach Stewardship Association, urging the Council to recognize that while the Association bears some responsibility, the greater fault lies with the City. He also reminded the Council that the Brown Act provision cited for closed session is limited to legal strategy on litigation matters—not election administration updates.

V. CLOSED SESSION

18. CONFERENCE WITH LEGAL COUNSEL — ANTICIPATED LITIGATION —

INITIATION OF LITIGATION
Government Code § 54956.9(d)(4): 1 matter.
23 10

19. CONFERENCE WITH LEGAL COUNSEL — EXISTING LITIGATION Government Code § 54956.9(d)(1): 2 matters.

A. City of Newport Beach v. Newport Beach Stewardship Association & Newport Beach Stewardship Association v. Lena Shumway et al. — Orange County Superior Court Case No. 30-2026-01559183
B. City of Newport Beach et al. v. Robert Page et al. — Orange County Superior Court Case No. 30-2026-01580961

CLOSED SESSION REPORT
City Attorney Harp reported there was no closed session report.

ADJOURNMENT
The meeting was adjourned at 6:04 p.m.
24 City Council- Special
Meeting Minutes
September 18, 2026, 6:15 PM
I. ROLL CALL

Present: Mayor Lauren Kleiman, Mayor Pro Tem Noah Blom, Councilmember Michelle Barto, Councilmember Robyn Grant, Councilmember Joe Stapleton, Councilmember Sara J. Weber, Councilmember Erik Weigand
The Special City Council Meeting of September 18, 2026 was called to order at 6:16 PM by Mayor Kleiman. City Clerk Lena Shumway confirmed all Council members present.

PUBLIC COMMENTS ON CLOSED SESSION
Prior to adjourning to Closed Session, the following members of the public addressed the Council:

Walter Stahr urged the Council to ask legal counsel for an honest estimate of the likelihood of success in the City's pending appeal to the State Supreme Court, which he characterized as having less than a one-in-one-hundred chance of success. He also questioned the cost of outside counsel's work on the appeal, estimating approximately 100 billable hours at discounted rates totaling roughly $30,000, and asked the Council to inquire whether any understanding existed between the City and Rutan & Tucker regarding discounted rates in exchange for future work.

Susan Skinner asserted that the City's challenge to the publication of the initiative notice in the OC Reporter constituted obstruction of the democratic process, citing court findings characterizing the City's actions as "obstructionism and an abuse of power." She announced her intent to file a California Bar complaint against City Attorney Aaron C. Harp and stated that an evidence preservation letter had been or would be served on the City.

Jim Mosher reminded the Council that, pursuant to City Charter Section 602, the City Council retains control over all legal affairs, and that under the Brown Act, any direction given in closed session to pursue or refrain from judicial relief must be publicly reported with a record of how each member voted. He noted that the only publicly reported vote on the litigation had been the unanimous vote at the August 18th special meeting.

V. CLOSED SESSION

3. CONFERENCE WITH LEGAL COUNSEL – EXISTING LITIGATION
Government Code § 54956.9(d)(1): 2 matters.

A. City of Newport Beach v. Newport Beach Stewardship Association & Newport Beach Stewardship Association v. Lena Shumway et al., Orange County Superior Court Case No. 30-2026-01559183
B. City of Newport Beach et al. v. Robert Page et al., Orange County Superior Court Case No. 30-2026-01580961
25 City Attorney Harp announced the closed session items. The Council adjourned to Closed Session at approximately 6:17 PM and reconvened in open session thereafter.

CLOSED SESSION REPORT
City Attorney Harp reported that there was no closed session report.

III. CURRENT BUSINESS

2. Proposed Ballot Questions for Three Citizen-Sponsored Charter Amendment Initiatives
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) Determine that this action is being taken to comply with the court's orders and does not: (1) determine that the proponents complied with the Elections Code posting and publication requirements; (2) determine that any initiative petition contains sufficient valid signatures; (3) call an election or place any measure on a ballot; (4) request consolidation of an election; or (5) waive the City's positions concerning timing, procedure, or authority as set forth in its motion for reconsideration; and c) Approve the following proposed ballot questions, which will be presented to the City Council for the election-related actions at a regular City Council meeting if the measures qualify for the ballot: (1) Public Meetings, Records, Oversight, and Enforcement Initiative: "Shall the measure amending the City of Newport Beach Charter to establish new Charter requirements governing public meetings, public records, government oversight, and enforcement, be adopted?"; (2) Lifetime City Council Term Limit Initiative: "Shall the measure amending the City of Newport Beach Charter to impose a lifetime two-term limit on City Council service, for a maximum of eight years of service on the City Council, regardless of any break in service, be adopted?"; and (3) District-Only Voting Initiative: "Shall the measure amending the City of Newport Beach Charter to require that City Council members be elected by voters residing within the district the Council member represents, instead of by all City of Newport Beach voters, be adopted?"
Jim Mosher expressed concern that the Council appeared to have no need to discuss the staff report, raising the suspicion that the public item may have been discussed during closed session, which would have been improper. He noted that the staff report recommended continued compliance with the court order, acknowledged that most logistical hurdles—including ballot printing and military/overseas voter coordination— appeared to have been resolved, and suggested the Council could proactively seek a court order directing the Registrar of Voters to provide voter signatures in advance of November to resolve the remaining verification obstacle.

Mike Smith noted that the Brown Act requires the Council to publicly report specific formal actions taken in closed session, and that a "no report" response effectively signals no action was taken. He urged the Council to share more information with the public in order to rebuild trust.

Council Discussion:
26 Councilmember Weigand stated that while the imminent federal deadline requiring the mailing of military and overseas ballots on September 19th necessitated action, he was deeply concerned about the overall election process. He noted that the 400 military and overseas ballots to be sent the following day would contain only a yes/no ballot question without accompanying pro and con arguments, and that the Orange County Registrar of Voters had declined to recommend or facilitate further assistance to the City. He further stated that the Secretary of State had verbally characterized the election as illegal and that the absence of a voter signature data file made ballot verification impossible. Councilmember Weigand argued that proceeding would create mass confusion potentially affecting the concurrent statewide general election and moved to direct the City Clerk not to mail the ballots the following day.

Mayor Pro Tem Blom seconded the motion. He reflected that the City had made every good faith effort to comply with the court's orders, but characterized the situation as one presenting practical and legal impossibilities, particularly the inability to verify ballots and the absence of in-person voting. He expressed that he found it difficult to follow a court order that he believed defied California law and was in tension with his oath of office to uphold the California Constitution, the U.S. Constitution, and the Newport Beach City Charter.

Councilmember Grant stated that while she was fully aware of the legitimate hurdles identified by colleagues, the Council had voted by majority to comply with the writ and conduct an election on November 3rd. She emphasized that the appropriate course was to continue making good faith efforts to comply, and that circumstances had not yet reached a point where it was firmly established that a lawful election could not be conducted.

Councilmember Weber affirmed her belief in the right to vote but expressed concern about conducting the election in a manner that lacked the time, information, and process that voters deserve. She stated that she could not ignore her oath of office to uphold the law and the City Charter, and questioned the rationale for accelerating a process that risked voter confusion and disenfranchisement.

Mayor Pro Tem Blom added that the Registrar of Voters had confirmed it could not provide the voter file, and asked the public to consider whether the election being offered—under current conditions—was one that met acceptable standards of fairness and integrity.

A motion to direct the City Clerk not to mail the military and overseas ballots on September 19, 2026 was made by Councilmember Weigand and seconded by Mayor Pro Tem Blom.

The motion failed 3–4, with Councilmember Grant, Mayor Kleiman, Councilmember Stapleton, and Councilmember Barto opposed.

The item was received and filed.

IV. MOTION FOR RECONSIDERATION
City Attorney Harp clarified that under Council Policy A-1, a motion for reconsideration of actions taken at either the September 11th or September 18th special meetings 27 could properly be brought at the next regular Tuesday Council meeting. No motion for reconsideration was made at this meeting.

The meeting was adjourned at 9:42 p.m.
28 NEWPORT BEACH
City Council Staff Report

COUNCIL STAFF REPORT

CITY OF
October 13, 2026
Agenda Item No. 2
ABSTRACT:

As required by Article XIII of the City Charter, staff requests City Council approval of a resolution declaring its intention to conduct a public hearing on October 27, 2026, to consider granting non-exclusive commercial solid waste and divertible materials handling franchises to OC Construction & Clean Up Corp.

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. 2026-87, 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.

DISCUSSION:

The City of Newport Beach (City) utilizes a non-exclusive solid waste franchise system for the collection of commercial solid waste throughout the city. This waste comes from multi-family residential complexes, as well as retail, commercial, recreational and industrial sources. The collection of construction and demolition waste is also regulated in this system.

Article XIII of the City Charter requires City Council approval of a resolution of intention to set the date and time of the public hearing and to name the applicants requesting NonExclusive Solid Waste Franchises.

TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL
FROM: Zachary Gentry, Municipal Operations Director - 949-644-3055, [email protected]
PREPARED BY: John Nelson, Acting Senior Management Analyst - 949-644-3197, [email protected]
TITLE: Resolution No. 2026-87: Resolution of Intention to Conduct a Public Hearing to Consider Granting Non-Exclusive Commercial Solid Waste and Divertible Materials Handling Franchises to OC Construction & Clean Up Corp.
29 Resolution No. 2026-87: Resolution of Intention to Conduct a Public Hearing to Consider Granting Non-Exclusive Commercial Solid Waste and Divertible Materials Handling Franchises to OC Construction & Clean Up Corp.

October 13, 2026

The resolution must:
establish the date, time and location where interested persons may appear and be heard before the City Council, be published by the City Clerk at least once in the official newspaper within 15 days of passage, and at least 10 days prior to the hearing date.

Staff reviewed the application submitted by OC Construction & Clean Up Corp. and requests City Council approval of the resolution of intention to conduct the public hearing at the October 27, 2026, City Council meeting to consider granting a Non-Exclusive Commercial Solid Waste Franchise to the aforementioned applicant.

FISCAL IMPACT:

Revenue is generated as part of this agreement. Per Chapter 12.63 of Newport Beach Municipal Code, franchisees are to pay to the City a fixed percentage of 16% of quarterly gross receipts deriving from solid waste handling services within the city. Per the franchise agreement, 10.5% shall be used in line with Public Resources Code Section 41901, with a portion attributable to implementation and maintenance of the City’s Source Reduction and Recycling Element (SRRE). The remaining 5.5.% is paid into the Environmental Liability Fund 160.

ENVIRONMENTAL REVIEW:

Staff recommends the City Council find this action is not subject to the California Environmental Quality Act (CEQA) pursuant to Sections 15060(c)(2) (the activity will not result in a direct or reasonably foreseeable indirect physical change in the environment) and 15060(c)(3) (the activity is not a project as defined in Section 15378) of the CEQA Guidelines, California Code of Regulations, Title 14, Chapter 3, because it has no potential for resulting in physical change to the environment, directly or indirectly.

NOTICING:

The agenda item has been noticed according to the Brown Act (72 hours in advance of the meeting at which the City Council considers the item).

ATTACHMENTS:

Attachment A - Resolution
Attachment B - Sample 2020 Non-Exclusive Commercial Solid Waste Franchise Agreement
30 Attachment A
Resolution
31 RESOLUTION NO. 2026-

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"), that expires in the year 2027;
WHEREAS, the City has since received an application from OC Construction Clean Up & Hauling, Corp. ("Proposed Grantee"), who wishes 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; 32 Resolution No. 2026-

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 persons having 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 nonexclusive franchises, subject to the following general terms and conditions ("NonExclusive Franchise"):
a. Effective date. December 10, 2026;
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. December 10, 2026, to October 7, 2027;
d. Rates. The City shall not set franchisees' bin rates; e. Indemnification. Franchisee shall indemnify and hold City harmless from penalties and damages for failure to meet state recycling requirements with respect to 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 franchisee; g. Disposal requirements. Franchisee shall dispose of Commercial Solid Waste, not otherwise diverted, in Orange County landfills pursuant to the City's waste 33 Resolution No. 2026-

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 granting the franchise; has violated any provision of the 2020 Franchise or any federal, state or local law or regulation applicable to franchisee's operations under the franchise; or if any provision of Chapter 12.63 (Solid Waste Management) of the NBMC or 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 of or continuation of for such Non-Exclusive Franchise;
j. Application requirements. Prior to obtaining the 2020 Franchise, franchisees 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. Franchisees 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 Newport Beach Municipal Code.
34 Resolution No. 2026-

Section 2: The City intends to grant the 2020 Franchise to OC Construction Clean Up & Hauling, Corp.

Section 3: The City Council shall conduct a public hearing on October 27, 2026, or as soon thereafter as is practical, in the City Council Chambers located at 100 Civic Center Drive, Newport Beach, California, to consider granting the Proposed Grantee the 2020 Franchise. Persons who have an interest in or objection to the granting of the 2020 Franchise to the Proposed Grantee 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 exempt from environmental review under 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 consistent with the goals of California State Assembly Bills 939, 341, and 1826, Senate Bill 1383 and The California
t
So/id 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.
35 Resolution No. 2026-

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.

ADOPTED this 13th day of October 2026.

ATTEST:

Lena Shumway
City Clerk
APPROVED AS TO FORM:

CITY ATTORNEY'S OFFICE
Aaron C. Harp
City Attorney
Lauren Kleiman
Mayor
Attachment( s ): 2020 Non-Exclusive Commercial Franchise Agreement Sample 36 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 ____________, 202_ (“Effective Date”) by and between the City of Newport Beach, a California municipal corporation and charter city organized and existing under the laws of the State of California (“City”), and _______________________________, a [insert name and type of business entity e.g. corporation, LLC, partnership] (“Franchisee”) (City and Franchisee may collectively be referred to as “Parties”), whose address is
___________________________________________________ and is made with reference to the following:

RECITALS
This Agreement is entered into on the basis of the following facts:

A. 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. 37 Non-exclusive Franchise Agreement Page 2
G. Pursuant to Article XIII of the City Charter, Code Chapter 12.63, and Public Resources Code Sections 40059, 49300, and 49500 through 49523, or any successor statutes, the City is authorized to enter into non-exclusive franchise agreements for commercial solid waste and divertible materials handling services.

H. On 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.
38 Non-exclusive Franchise Agreement Page 3
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 any part of the City and to use the public streets and public right-of-ways for such purpose.

Franchisee acknowledges that the Franchise is not exclusive and that the Franchise is subject to all provisions of applicable law, including, but not limited to, Article XIII of the City Charter, Ordinance No. 202_-XX, Code Chapter 12.63, and the terms and conditions of this Agreement.

B. Upon 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-foodgenerating businesses and the responsible parties, property owners, owners, operators, property managers, tenants and lessees of same, that generate four (4) or more cubic 39 Non-exclusive Franchise Agreement Page 4
yards of Municipal Solid Waste per week and that generate Green Waste and/or Wood Waste (C) all Multifamily Dwellings consisting of five (5) or more units regardless of the amount of Municipal Solid Waste generated; (D) federal, state and local government facilities, schools, the City, its facilities, and its non-residential properties; and (E) special events that take place within the City that generate four (4) or more cubic yards of municipal solid waste per event, whether or not sponsored by the City. As of the effective date of this Agreement, the threshold amount of Municipal Solid Waste provided for in Public Resources Code Section 42649.81 is four (4) or more cubic yards of Municipal Solid Waste per week on or after January 1, 2020. If CalRecycle changes the quantities of Municipal Solid Waste necessary to be considered an AB 1826 Generator, the definition of an AB 1826 Generator shall be automatically amended to reflect these new quantities.
“Act” means the California Integrated Waste Management Act of 1989 (Public Resources Code Sections 40000, et seq.) as amended and as implemented by regulations of CalRecycle (or its successor agency) and the Air Resources Board (or its successor agency).
“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.
40 Non-exclusive Franchise Agreement Page 5
“Bioengineered Feedstock” means a mixture of materials utilized in Wastewater Treatment Plants (WWTP’s) or publically-owned treatment works (POTW’s) to produce biogas. (This process is also referred to as “wet anaerobic digestion.”) Bioengineered Feedstock may include primary and secondary sludge, greases from the WWTP grease trap, and organic materials such as Food Scraps from businesses and households or other organic materials from industries that have been pre-treated and liquefied to the required consistency.
“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.
41 Non-exclusive Franchise Agreement Page 6
“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 stream at the point of generation and includes Food Scraps, Green Waste, and wood that are not hazardous wastes.
“Compost Facility” means a facility that processes one (1) or more of the following:

Food Scraps, Green Waste, wood and food-soiled fiber such as paper napkins and paper towels, by means of outdoor windrow composting, aerated static pile composting, covered composting, vermiculture or other outdoor composting methods or covered composting with use of either finished compost or fiber, synthetic or other type(s) of cover(s) applied to the compost piles.
“Composting” means the controlled microbial degradation of organic materials yielding a safe and nuisance-free finished product called Compost, a soil amendment suitable for incorporating into topsoil and for growing plants. “Construction and Demolition Debris” means all inert material of every nature, description or kind, which has resulted from the building or demolition of a structure, pavements, sidewalks, curbs, gutters and other concrete structures, including all lumber scraps, shingles, plaster, sheetrock, packaging, rubble, brick, stone, concrete, asphalt, 42 Non-exclusive Franchise Agreement Page 7
dirt, rock and other building material. A facility that accepts Construction and Demolition Debris for separation and further processing to prepare materials for sale or re-use (such as removing nails and screws from wood, or grinding of concrete and asphalt) and then markets the materials for re-use is a “Construction and Demolition Debris Processing Facility.”
“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. 43 Non-exclusive Franchise Agreement Page 8
“Diversion Plan” or “the Plan” means a plan prepared for a Customer by Franchisee pursuant to Exhibit E, Section A 2 of this Franchise Agreement that describes in detail the Diversion Program(s) recommended by Franchisee to be implemented at Customer’s premises. A Diversion Plan contains estimated quantities of Divertible Materials generated at the Customer’s premises, recommended types and sizes of outside Containers for storage of Divertible Materials, recommended frequency of Collection; modifications to sizes, types and Collection frequency for Containers for Municipal Solid Waste to adjust for the separate storage and Collection of Divertible Materials, and plans for the flow of materials through Customer’s premises, including the location and sizing of interior Containers required for separation and interim storage of Divertible Materials. Diversion Plans also contain projected costs and any projected cost savings to the Customer for implementing the Diversion Plan. “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, entrée, dessert, raw fruit and vegetable, that may or may not have been sliced, grated, cooked, baked or otherwise prepared for consumption but not served; any packaged sandwich, salad, fruit and fruit salad and any other non-served food that meets state and local requirements as being edible for human consumption. “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 44 Non-exclusive Franchise Agreement Page 9
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.
45 Non-exclusive Franchise Agreement Page 10
“Generate” means to bring into existence or create, or to use, maintain, or possess an item, material or product, the result of which such creation, bringing into existence, use, maintenance or possession is that the item, material or product first becomes, or is converted transformed, evolved or deemed as Municipal Solid Waste, Recyclable Materials, Food Scraps, Green Waste or Construction and Demolition Debris. “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 writeoffs 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.
46 Non-exclusive Franchise Agreement Page 11
“Landfill” means a fully permitted disposal site that accepts Municipal Solid Waste that is in compliance with all Federal, State and local laws, regulations and permits conditions at the time Municipal Solid Waste is delivered and unloaded at the disposal site.
“Multifamily Dwelling” mean housing projects containing or consisting of five (5) or more units, whether apartment houses, condominiums, townhomes, or mixed use projects, mixed use condominiums and rental housing, which use centralized Commercial Solid Waste Containers (including Bins, Carts and/or Compactors) for storage of Municipal Solid Waste, Recyclable Materials, Green Waste and/or Food Scraps.

Multifamily Dwelling does not include single-family residences, duplexes, tri-plexes or four-plexes that receive individual Collection services for Municipal Solid Waste, Recyclable Materials, Green Waste and/or Food Scraps stored in wheeled carts. For purposes of the implementation of the Diversion programs, reporting requirements, and the percentage Diversion requirements, “Commercial Tons” shall include only Tons Collected from Multifamily Dwellings in Carts, Bins, Compactors or Roll Off Boxes and shall not include any Tons Collected from Containers Collected from Commercial Premises. Tons Collected from Containers Collected from Commercial Premises shall be reported separately.
“Municipal Solid Waste” means all Processable Municipal Solid Waste and all NonProcessable Municipal Solid Waste, putrescible and nonputrescible solid and semisolid wastes, Generated in or upon, related to the occupancy of, remaining in or emanating from residential, commercial, and/or industrial premises, including, but not limited to, garbage, trash, refuse, rubbish, ashes, Industrial Waste, discarded home and industrial appliances, manure, vegetable or animal solid or semisolid wastes, and other solid and semisolid wastes. Municipal Solid Waste excludes Recyclable Materials, Green Waste, Food Scraps, Construction and Demolition Debris, liquid wastes, abandoned vehicles and hazardous, biohazardous and biomedical wastes.
“Non-Processable Municipal Solid Waste” means putrescible and non-putrescible solid and semi-solid wastes Generated in or upon, related to the occupancy of, remaining or emanating from residential, Commercial, and/or industrial premises, that has been segregated or separated from Recyclable Materials, Food Scraps, Green Waste, wood and/or Construction and Demolition Debris such that the remaining constituents in the Non-Processable Municipal Solid Waste (such as broken glass, diapers, ashes, Industrial Waste, discarded Bulky Goods that cannot be re-used or dismantled for Recycling, manure, vegetable or animal solid or semi-solid wastes that remain after segregation of Food Scraps and Green Waste) cannot be diverted by reasonable economic or technologically available means. Non-Processable Municipal Solid Waste does not include Recyclable Materials, Green Waste, Food Scraps, wood, Construction and Demolition Debris, Bulky Goods or other materials that have been segregated for Diversion; liquid wastes; low level radioactive waste regulated under California Health and Safety Code Sections 20015, et seq.; abandoned vehicles and auto parts; hazardous, biohazardous and biomedical wastes.
“Person” means an individual, firm, association, organization, partnership, corporation, business trust, joint venture, Limited Liability Company, the United States, 47 Non-exclusive Franchise Agreement Page 12
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 48 Non-exclusive Franchise Agreement Page 13
City including, without limitation, State mandates to Divert fifty percent (50%) of the Municipal Solid Waste Generated within the City, achievement of the per capita Diversion requirements in the Act, and the provision of City-approved Diversion services to all Customers. Recycling Requirements includes future changes to the Act that may require the City to Divert higher percentages of Municipal Solid Waste Generated within the City and/or to provide additional and/or enhanced or expanded Diversion Programs. “Residue” means the Non-Processable Municipal Solid Waste destined for Disposal in a Landfill, which remains after processing at a Processing Facility has taken 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 49 Non-exclusive Franchise Agreement Page 14
does not allow Recyclable Materials to spill out when the lid is closed and locked for the emptying of the MSW stored on the opposite side of the Bin. “SRRE” means the Source Reduction and Recycling Element of the Integrated Waste Management document for the City prepared and updated pursuant to the California Public Resources Code.
“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 (other than Composting) to turn Municipal Solid Waste and/or organic materials into a fuel used to produce energy (example: waste-to-energy). Transformation does not include Composting, gasification, Biomass Conversion, or wet or dry Anaerobic Digestion. “Transformation Facility” means a facility using a Transformation process to turn Municipal Solid Waste and/or organic materials into a fuel used to produce energy. A Franchisee may only utilize Transformation for the quantity of Municipal Solid Waste allowed by CalRecycle to be counted as Diversion pursuant to the Act, as this may be changed in the future by legislation or regulations. The Act currently provides that a jurisdiction can only use Transformation to divert up to ten percent (10%) of the Municipal Solid Waste generated in the jurisdiction. Therefore, materials collected by a Franchisee and processed at a Transformation Facility shall be limited to ten percent (10%) of the Non-Processable Municipal Solid Waste Collected by the Franchisee within City. “Ton” means a short ton of two-thousand (2,000) pounds avoirdupois. “Wood Waste” means all non-hazardous wood material that is not painted with lead-based or other paints containing materials identified as hazardous waste, or treated with creosote or other hazardous materials. Wood Waste includes, but is not limited to, tree branches and other wood trimmings, dimensional lumber and other pieces of wood generated during the manufacture or processing of wood products. For wood generated from construction and/or demolition activities, see the definition of “Construction and Demolition Debris.

SECTION 4. FRANCHISE FEES
A. During the Term of this Franchise, Franchisee shall pay to City Franchise Fees for the privilege of providing Commercial Franchise Services in the City and for the use of public streets, right-of-ways and places for such purposes. The Franchise Fees that Franchisee shall pay to the City shall total sixteen percent (16%) of the gross receipts which are reasonably related to the value of Agreement for all Commercial Franchise Services provided by Franchisee in the City as follows:
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1. Ten and one-half percent (10.5%) of the Gross Receipts for all Commercial Franchise Services provided by the Franchisee in the City (“Commercial Franchise Service Fee”), of which one half percent (.5%) shall be attributable to the maintenance and implementation of the City’s SRRE, and shall be separately accounted for, and used only for the costs stated in Public Resources Code Section 41901 or any successor provision.

2. Five and one-half percent (5.5%) of the Gross Receipts for all Commercial Franchise Services provided by Franchisee in the City shall be paid into an Environmental Liability Fund, which shall be a separate fund established and maintained by City (“Environmental Liability Fund Fee”). Hereinafter, Environmental Liability Fund Fee and Commercial Franchise Fee shall be collectively referred to as “Fees.” B. City and Franchisee acknowledge the potential environmental liability that may result from Commercial Franchise Services under Federal and State environmental protection laws and the Public Resources Code. City intends to take reasonable actions to obtain protection and indemnification against future environmental liability for Commercial Solid Waste and Divertible Materials generated within the City and the activities of Franchisee under this Agreement for handling such Commercial Solid Waste and Divertible Materials. To provide protection and indemnification to City for Franchisee’s Commercial Franchise Services in the City, Franchisee agrees to collect from its customers an Environmental Liability Fund Fee for payment into the Environmental Liability Fund. The Environmental Liability Fund may be used by the City for any expense associated with this Franchise, including, but not limited to, the purchase of environmental liability insurance and paying all costs, expenses, and penalties that arise from or in any way relate to liability incurred by the City as a result of any act, negligence, or omission by the City, Franchisee, Franchisee Customer, or any of their respective officers, directors, shareholder members, volunteers, partners, employees, agents, subcontractors, suppliers, representatives or affiliates. The Environmental Liability Fund may also be used by the City to pay for any Disposal, Diversion, or Recycling activity required of the City, Franchisee, or any Generator under State, Federal or local law. The Fund shall not be commingled with or included in the City’s General Fund.

1. The Fees shall be paid concurrently.

2. Compliance with this Section shall not limit Franchisee’s indemnification as set forth in Agreement Section 10; however, the indemnification provisions of Agreement Section 10 shall be secondary to the Environmental Liability Fund established by this Section or any insurance purchased by the Environmental Liability Fund.

C. The Fees shall be paid on a calendar quarterly basis on forms prescribed by the Finance Director.

D. All payments shall be made in lawful money of the United States of America and shall be paid to City in person or by United States’ mail, or overnight mail service, at the Cashier’s Office located at 100 Civic Center Drive, P.O. Box 1768, Newport Beach, 51 Non-exclusive Franchise Agreement Page 16
California, 92658, or to such other address as City may from time to time designate in writing to Franchisee. If requested by City, Franchisee shall make payments electronically (at www.newportbeachca.gov) or by wire transfer (at Franchisee’s cost).

Franchisee assumes all risk of loss and responsibility for late charges and delinquency rates if payments are not timely received by City regardless of the method of transmittal.

E. 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, Franchisee may submit a request for refund to the Finance Director on a form provided by the Finance Director. If proof of overpayment is satisfactory to the Finance Director, the Finance Director shall refund to Franchisee any overpayment. Franchisee shall not apply any overpayment as a credit against any other amounts payable to City unless specifically authorized by the Finance Director in writing.

H. Each Franchise Fee and Environmental Liability Fund Fee payment shall be accompanied by a written statement described in Code Section 12.63.090, or any successor section, on a form provided by the Finance Director. No statement filed under this Section shall be conclusive as to the matters set forth in such statement, nor shall the filing of such statement preclude the City from collecting by appropriate action the sum that is actually due and payable.

I. Franchisee may separately list the actual Franchise Fee rate and Environmental Liability Fund Fee rate as established by this Section, and any other fees required by this Agreement, on its invoices to its customers. In no case may the Franchise Fee rate or Environmental Liability Fund Fee rate listed by the Franchisee on the invoice exceed the actual Franchise Fee or Environmental Liability Fund Fee rates imposed by the City.

SECTION 5. PERFORMANCE BOND/DEPOSIT
A. Prior to the placement of any Container for Commercial Franchise Services on public or private property, Franchisee shall, to ensure compliance with the duties and 52 Non-exclusive Franchise Agreement Page 17
obligations imposed by the provisions of the Code, State regulation, regulations adopted by the City Manager and this Agreement, either: (1) provide City with a cash deposit (“Deposit”); or (2) obtain, provide and maintain, at its own expense, a faithful performance bond (“Bond”). The amount of the Deposit and Bond shall be determined in the Public Works Director’s sole and absolute discretion.

B. If Franchisee decides to provide a Bond, the Bond shall be issued by an insurance organization or surety: (1) currently authorized by the Insurance Commissioner to transact business of insurance in the State of California; (2) listed as an acceptable surety in the latest revision of the Federal Register Circular 570; and (3) assigned a Policyholders’ Rating A (or higher) and Financial Size Category Class VII (or larger) in accordance with the latest edition of Best’s Key Rating Guide: Property-Casualty. The Bond shall be in the form attached hereto as Exhibit “A,” which is incorporated herein by this reference.

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.
53 Non-exclusive Franchise Agreement Page 18
C. Franchisee shall not Dispose of Municipal Solid Waste, Recyclable Materials, Food Scraps, or Green Waste by depositing it on any land except a permitted facility, whether public or private, or in any river, stream or other waterway, or in any sanitary sewer or storm drainage system. Nothing in this Agreement shall be deemed or construed as authorizing Franchisee to operate a Landfill, Recycling Facility, or other solid waste disposal facility in the City.

D. If Franchisee violates the terms in Agreement Section 6(A) and/or Section 6(B) above, Franchisee agrees that the City has the future right to direct that all Municipal Solid Waste be delivered to a fully permitted Disposal facility designated by City and that Recyclable Materials, Food Scraps, Green Waste and/or Wood Waste be delivered to a fully permitted Processing Facility designated by City. This exercise of “flow control” by the City shall be made upon at least thirty (30) calendar days prior written notice to Franchisee, and written notice shall include the violation(s) prompting the City’s action regarding “flow control.” Failure to comply with the Recycling, Diversion, and/or Disposal requirements set forth in this Section shall be a material breach of this Agreement.

E. Franchisee shall include as a condition to its contractual agreement with its Customers a provision prohibiting disposal of Hazardous Waste in any Container.

F. Franchisee shall implement a load check program that includes, at a minimum, a visual check of all Containers to be emptied to protect against inclusion of Hazardous Waste and shall prepare a written record of all Hazardous Waste discovered during the process. The records shall comply with all State and Federal Hazardous Waste Regulations and shall be maintained for the length of the Term of the Franchise and for a minimum period of three (3) years, or for any longer period required by law, after the Extended Termination Date. The records shall be made available to the City in Franchisee’s monthly reports submitted pursuant to Agreement Section 16.

G. This Agreement does not purport to grant Franchisee or City ownership over materials that Franchisee’s Customers discard for pickup by Franchisee or that Franchisee handles under this Agreement. The right to possession or ownership of those materials shall be determined in accordance with law and any agreement between Franchisee and its Customers, and not as a result of this Agreement. Parties acknowledge that City has no ownership rights in Divertible Materials or revenue from sale thereof, except as provided in this Agreement.

H. City makes no representations or warranties with respect to characterization of Municipal Solid Waste, Recyclable Materials, Food Scraps, or Green Waste within City. City expressly disclaims any representations and warranties, either express or implied, as to the merchantability or fitness of Municipal Solid Waste, Recyclable Materials, Food Scraps, or Green Waste for any particular purpose.

SECTION 7. DIVERSION OF CONSTRUCTION AND DEMOLITION DEBRIS A. On a monthly basis, Franchisee shall Divert a minimum of sixty-five percent (65%) of all Construction and Demolition Debris collected in the City by Franchisee. This Diversion requirement shall be in addition to and separate from any Diversion 54 Non-exclusive Franchise Agreement Page 19
requirements set forth in Agreement Section 6. Franchisee shall also comply with all requirements of Section 15. If new or additional Diversion requirements are imposed by law, ordinance or regulation on City, Franchisee, and/or any Commercial Premises or Multifamily Dwelling, the City shall have the right to require Franchisee to Divert additional Construction and Demolition Debris by providing Franchisee with ten (10) calendar days written notice of the new Diversion requirements. Upon request of the Public Works Director, Franchisee shall provide all documents and information requested by the Public Works Director to prove that Franchisee has complied with this subsection, any applicable law, ordinance, regulation, or condition related to Recycling and Diversion of Construction and Demolition Debris.

B. Franchisee shall Dispose of, or oversee Disposal of, any Construction and Demolition Debris collected in the City by Franchisee, and not diverted pursuant to Agreement Section 7(A), in accordance with the Franchise Hauler Acknowledgment, attached hereto as Exhibit “B.” Franchisee hereby accepts and agrees to abide by all terms of the Franchise Hauler Acknowledgment. If, during the Term of this Agreement, the City’s Waste Disposal Agreement with Orange County expires, lapses or is terminated, the Franchise Hauler Acknowledgement shall be null and void and Franchisee shall Dispose of non-Diverted Construction and Demolition Debris collected by Franchisee in the City only by taking such debris to an Orange County certified/licensed landfill, State certified/licensed transfer station, State certified/licensed recycling facility or State certified/licensed materials recovery facility which is lawfully authorized to accept that specific type of solid waste material. Franchisee shall not dispose of Construction and Demolition Debris by depositing it on any land except a permitted facility, whether public or private, or in any river, stream or other waterway, or in any sanitary sewer or storm drainage system.

C. If Franchisee violates the terms in Agreement Section 7(A) and/or Section 7(B) above, Franchisee agrees that the City has the future right to direct that Construction and Demolition Debris be delivered to a permitted processing and/or disposal facility designated by City. This exercise of “flow control” by the City shall be made upon at least thirty (30) calendar days prior written notice to Franchisee, and written notice shall include the violation(s) prompting the City’s action regarding “flow control.” Failure to comply with the Recycling, Diversion, and/or Disposal requirements set forth in this Section shall be a material breach of this Agreement.

D. Franchisee shall include as a condition to its contractual agreement with its Customers a provision prohibiting disposal of Hazardous Waste in any Container.

E. Franchisee shall implement, or require a third party to implement, a load check program that includes, at a minimum, a visual check of all Containers to be emptied to protect against inclusion of Hazardous Waste and shall prepare a written record of all Hazardous Waste discovered during the process. The records shall comply with all local, State and Federal Hazardous Waste regulations, and shall be maintained for the length of the Term of the Franchise and for a minimum period of three (3) years, or for any longer period required by law, after the Extended Termination Date. The records shall be made available to the City upon request.
55 Non-exclusive Franchise Agreement Page 20
F. This Agreement does not purport to grant Franchisee or City ownership over materials that Franchisee’s Customers discard for pickup by Franchisee or that Franchisee handles under this Agreement. The right to possession or ownership of those materials shall be determined in accordance with law and any agreement between Franchisee and its customers, and not as a result of this Agreement. Parties acknowledge that City has no ownership rights in Recyclable Materials or revenue from sale thereof, except as provided in this Agreement.

G. City makes no representations or warranties with respect to characterization of Construction and Demolition Debris within City. City expressly disclaims any representations and warranties, either express or implied, as to the merchantability or fitness of Construction and Demolition Debris for any particular purpose.

SECTION 8. FRANCHISEE’S APPLICATION; RECORDS; AUDITS
A. Application. Franchisee has submitted an application to City in substantially the same form as the template attached hereto as Exhibit “C” and incorporated herein by reference as a condition of entering into this Agreement. Franchisee hereby represents and warrants that all information contained in the application submitted to City, and any information submitted by Franchisee to City supplementary thereto, is true and correct and does not contain any untrue statement of a material fact nor omit a material fact that makes a statement contained therein misleading.

B. Records. Franchisee shall maintain all records relating to Franchisee’s Commercial Franchise Services provided hereunder including, but not limited to, Customer lists, billing records, accounts payable records, maps, service requests, cash receipts records, AB 939/341/1826 compliance records, tonnage reports, weight tickets and invoices from all Landfills, Processing Facilities, and Recycling Facilities utilized for Commercial Solid Waste collected within City, and all other documents and materials which reasonably relate to Franchisee's compliance with and performance of the provisions of this Agreement ("Records"), for the full Term of this Agreement and an additional period thereafter of not less than three (3) years, or any longer period required by law. Such Records shall be made available to City at Franchisee's regular place of business, but in no event outside the County of Orange. All Records shall be clearly identifiable, and Franchisee shall maintain record security sufficient to preserve records from destruction or damage from foreseeable events. Data maintained in an electronic medium shall be protected, and backed up, with a copy stored at a separate site from the original data.

C. CERCLA Defense Records. City’s ability to defend against CERCLA and related litigation is a matter of great importance. Franchisee shall maintain and preserve records establishing where Solid Waste Collected in the City was landfilled for the full Term of this Agreement and an additional period thereafter of not less than five (5) years, or any longer period required by law. At any time, including after the expiration of the Term, Franchisee shall provide copies of such records to City within three (3) business days of City’s request.
56 Non-exclusive Franchise Agreement Page 21
D. Inspection; Audit. On an annual or as-needed basis, City shall have the right, upon five (5) business days advance 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. 57 Non-exclusive Franchise Agreement Page 22
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, 58 Non-exclusive Franchise Agreement Page 23
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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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, governmental facility, or Multifamily Dwelling located within five hundred (500) feet of a school, or other educational facility between the hours of 7:30 a.m. and 9:00 a.m. or 1:00 p.m. and 3:00 p.m., Monday through Friday. The limitations in Agreement Section 11(C)(3) notwithstanding, Franchisee’s operation of Collection vehicles on any nonresidential 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. 60 Non-exclusive Franchise Agreement Page 25

5. At Franchisee’s request, the City shall provide maps illustrating the geographic limitations placed on Franchisee’s Collection services pursuant to Agreement Section 11(C)(3) (“Maps”). City expressly disclaims any liability related to or arising from the accuracy of any Maps provided by City. City may update the Maps as needed, and Franchisee’s failure to request or secure the Maps, or any updated Maps, shall not relieve Franchisee of any obligations under this Agreement.

D. Containers. Franchisee shall provide the appropriate sized Containers to each Customer for storage of the Commercial Solid Waste and Divertible Materials Collected by Franchisee. Containers provided by Franchisee must be identified with Franchisee’s name and be in the color identified by Franchisee in Franchisee’s application.

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 provide a commercial Recyclable Materials Collection Program for AB 341 Generators on or before July 1, 2012. Franchisee acknowledges these requirements and agrees that, subject to the restrictions contained in Agreement Section 11(A), for all AB 341 Generators that contract with or pay Franchisee to haul Municipal Solid Waste and/or Divertible Materials, Franchisee shall implement a Recyclable Materials Collection Program using one or more of the following:

1. Provide Single Stream Recyclable Materials and (if applicable) Single Material Collection service on a weekly or more frequent basis.

2. Provide Collection of Recyclable Materials commingled with Municipal Solid Waste and process the Collected material at a City-approved Dirty MRF that yields Diversion results comparable to source separation. No Dirty MRF may be used for separation of AB 341 materials unless the Dirty MRF has been approved by City as meeting the standards and requirements of Public Resources Code Section 42649 and all rules, amendments and regulations promulgated in furtherance thereof.

3. If Franchisee observes that the AB 341 Generator has one (1) or more internal Programs that Divert Recyclable Materials, is self-hauling or backhauling Recyclable Materials, donating or selling Recyclable Materials to a third party, or is using a third party or other Franchisee to Collect Recyclable Materials, Franchisee shall report this to City and City, in its sole discretion, shall make a final determination as to the adequacy of the internal and/or third party Recyclable Materials Diversion Program(s). If the City finds the internal and/or third party Program(s) inadequate, Franchisee shall proceed to implement a Recyclable Materials Diversion Program to Divert all the remaining AB 61 Non-exclusive Franchise Agreement Page 26
341 Recyclable Materials generated by the AB 341 Generator as described in Exhibit E, which is incorporated herein by reference.

B. Act Compliance. The Parties agree that provision of an AB 341 Diversion Program, as set forth in this Section 12 and in Exhibit “E,” is of paramount importance for the City to comply with the Act. The Parties further agree that providing high quality Diversion Services, public education and technical assistance to AB 341 Generators to obtain their full participation in AB 341 Diversion Program is essential for Franchisee to implement an effective Diversion Program for each and every AB 341 Generator it serves.

The Parties acknowledge that achievement of this requirement is integral to the City’s compliance with the Act and that failure to implement said AB 341 Diversion Programs may cause City to be non-compliant with the Act and be grounds for termination of this Agreement.

C. Program Implementation. Within ninety (90) calendar days of either: (1) the Effective Date of this Agreement; or (2) the date an AB 341 Generator initiates service with Franchisee to collect or transport Municipal Solid Waste and/or Divertible Materials, whichever is later, Franchisee shall implement a Recyclable Materials Diversion Program for said AB 341 Generator. For purposes of this Section 12, “implement” as provided herein shall mean Franchisee’s completion of all of the steps and requirements in Exhibit E.

SECTION 13. AB 1826 FOOD SCRAP DIVERSION PROGRAM FOR COMMERCIAL

PREMISES
A. Food Scrap Diversion Program. The Act requires AB 1826 Generators to implement Diversion Programs as follows. On or after January 1, 2017, all owners and responsible parties of Commercial Premises generating four (4) or more cubic yards of Food Scraps and/or Green Waste per week must arrange for Diversion Programs for those materials. On or after January 1, 2019, all owners and responsible parties of Commercial Premises generating four (4) or more cubic yards of Commercial Solid Waste per week must arrange for Diversion Programs for Food Scraps and Green Waste. The Act requires cities to provide a commercial Food Scrap Diversion Program for AB 1826 Food Scrap Generators on or before January 1, 2016. Franchisee acknowledges these requirements and agrees that, subject to the restrictions contained in Agreement Section 11(A), for all AB 1826 Food Scrap Generators that contract with or pay Franchisee to haul Municipal Solid Waste and/or Divertible Materials Franchisee shall implement a Food Scrap Diversion Program. The City will maintain a listing of all AB 1826 Food Scrap Generators. City expressly disclaims any liability related to or arising from the accuracy of any lists provided by City. Franchisee’s failure to request or secure the list on an annual basis shall not relieve Franchisee of any obligations under this Section. Franchisee shall implement a Food Scrap Diversion Program using one or more of the following:

1. Provide source separated Food Scrap Collection service on a weekly or more frequent basis.

2. If Franchisee observes that the AB 1826 Food Scrap Generator has one (1) or more internal Food Scrap Diversion Programs, is self-hauling 62 Non-exclusive Franchise Agreement Page 27
or backhauling Food Scraps, is donating or selling Food Scraps, is donating edible food for human consumption, and/or is using a third party or other Franchisee to Collect Food Scraps, Franchisee shall report this to City and City, in its sole discretion, shall make a final determination as to the adequacy of the internal and/or third party Food Scrap Diversion Program(s). If the City finds the internal and/or third party program(s) are inadequate, Franchisee shall proceed to implement a Diversion Program to Divert all the remaining AB 1826 Food Scraps generated by the AB 1826 Generator.

B. Act Compliance. The parties agree that provision of a Food Scrap Diversion Program as described in this Section 13 and in Exhibit “E” is of paramount importance for the City to comply with the Act. The parties further agree that providing high quality Diversion Services, public education, and technical assistance to AB 1826 Food Scrap Generators to obtain their full participation in AB 1826 Diversion Programs is essential for Franchisee to implement an effective Food Scrap Diversion Program for each and every AB 1826 Food Scrap Generator it serves. The parties acknowledge that achievement of this requirement is integral to the City’s compliance with the Act and that failure to implement said Diversion Program may cause City to be non-compliant with the Act and be grounds for termination of this Agreement.

C. Program Implementation. Within ninety (90) calendar days of either: (1) the Effective Date of this Agreement; or (2) the date an AB 1826 Food Scrap Generator initiates service with Franchisee to Collect and/or transport Municipal Solid Waste and/or Divertible Materials , whichever is later, Franchisee shall implement a Food Scrap Diversion Program for said AB 1826 Food Scrap Generator. For purposes of this Section, Franchisee shall be found to have “implemented” a Food Scrap Diversion Program for an AB 1826 Food Scrap Generator only if Franchisee completes all of the steps and requirements in Exhibit E.

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, 63 Non-exclusive Franchise Agreement Page 28
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.

1. Provide Collection of Green Waste and Wood Waste co-mingled with Municipal Solid Waste and process the Collected material at a Cityapproved 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 64 Non-exclusive Franchise Agreement Page 29
landfill as an end use. This prohibition includes Green Waste and Wood Waste processed at a permitted Processing Facility as well as the residue from such Facility.

B. Act Compliance. The parties agree that provision of a Green Waste and Wood Waste Diversion Program as described in this Section 14 and in Exhibit “E” is of paramount importance for the City to comply with the Act. The parties further agree that providing high quality Diversion Services, public education, and technical assistance to AB 1826 Green Waste and Wood Waste Generators to obtain their full participation in AB 1826 Diversion Programs is essential for Franchisee to implement an effective Green Waste and Wood Waste Diversion Program for each and every AB 1826 Green Waste and Wood Waste Generator it serves. The parties acknowledge that achievement of this requirement is integral to the City’s compliance with the Act and that failure to implement said Diversion Programs may cause City to be non-compliant with the Act and be grounds for termination of this Agreement.

C. Program Implementation. Within ninety (90) calendar days of either: (1) the Effective Date of this Agreement; or (2) the date an AB 1826 Green Waste and Wood Waste Generator initiates service with Franchisee to Collect and/or transport Municipal Solid Waste and/or Divertible Materials, whichever is later, Franchisee shall implement a Green Waste and Wood Waste Diversion Program for said AB 1826 Green Waste and Wood Waste Generator. For purposes of this Section, Franchisee shall be found to have “implemented” a Green Waste and Wood Waste Diversion Program for an AB 1826 Green Waste and Wood Waste Generator only if Franchisee completes all of the steps and requirements in Exhibit E.

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.
65 Non-exclusive Franchise Agreement Page 30
SECTION 16. REPORTING REQUIREMENTS.

A. Monthly Reports. Franchisee shall submit monthly reports to the Public Works Director identifying, at a minimum, the following information:

1. 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 materials/Processable Municipal Solid Waste;

6. AB 341 and AB 1826 compliance information by Generators, including the total number of AB 341 and AB 1826 accounts serviced by the Franchisee, the total number of accounts that have a Recycling Program, Food Scrap Diversion Program, and/or Green Waste/Wood Waste Diversion 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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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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C. Equipment.

1. Maintenance; Records. Franchisee shall, at all times, provide such number of vehicles and such equipment as will be adequate for the Commercial Franchise Services, which it is authorized to provide under this Agreement. All vehicles utilized by Franchisee in the performance of this Agreement shall be registered with the California Department of Motor Vehicles. All vehicles must pass annual “BIT” and brake inspections and Franchisee shall provide evidence of such to the Public Works Department upon request. Upon request by the City, Franchisee shall provide records from the most recent California Highway Patrol biennial inspection of the terminal(s) responsible for the maintenance and repair of equipment used in the City. All vehicles shall be properly maintained, kept clean and in good condition and repair, shall not leak any fluids, and shall be uniformly painted. All Commercial Solid Waste and Divertible Materials Containers used in the performance of this Agreement shall be kept clean and in good repair, shall not leak any fluids, and shall be uniformly painted in the color identified by Franchisee in Franchisee’s application. All equipment required by City in the performance of this Agreement, including vehicle mirrors and the collision avoidance system, may be subject to inspection by the City upon twenty-four (24) hours’ notice by the Public Works Director. All drivers employed by Franchisee and operating equipment in the City shall be properly licensed for the class of vehicle they drive, enrolled in the 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
68 Non-exclusive Franchise Agreement Page 33
(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:
i. 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. Placement of Containers and equipment shall be in accordance with the standards set by the City.

8. Equipment Standards. All equipment provided by Franchisee shall be in accordance with standards set by the Public Works Department.

SECTION 19. ABANDONED CONTAINERS
A. If Franchisee abandons any Commercial Solid Waste or Divertible Materials Container within the City, the City may remove the Container and/or dispose of the contents of the Container and recover its cost from Franchisee.

B. For the purposes of this Section, “abandons” includes:
69 Non-exclusive Franchise Agreement Page 34

1. Franchisee’s failure to remove the Container within the time period specified by the City Council upon termination of the Franchise pursuant to Section

12.63.140 of the Code, or any successor statute;

2. Franchisee’s failure to remove the Container within ten (10) calendar days after the expiration or termination of the Franchise granted to Franchisee, except in the case where Franchisee has been granted an extension of the Term of said Franchise or Franchisee has been granted a subsequent franchise authorizing Franchisee to Collect and transport the type or types of Commercial Solid Waste for which the Container was used pursuant to this Agreement; or

3. Franchisee’s failure to collect the Container and dispose of the contents of the Container within two (2) calendar days after the Public Works Director issues written notice to Franchisee to dispose of the contents.

4. Franchisee’s failure to replace a Container that fails to comply with the City’s aesthetic standards, as set forth in this Agreement, within five (5) calendar days of receiving written notice from the Public Works Director of non-compliance.

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). 70 Non-exclusive Franchise Agreement Page 35
SECTION 22. PUBLIC EDUCATION ACTIVITIES
A. Informational Materials. Each year during the Term of this Agreement, Franchisee shall transmit informational materials to all Customers and to such prospective Customers as it may select, informing them of the Commercial Franchise Services that are required of them under State law as well as Hazardous Waste Disposal requirements.

B. Customer Compliance Notification. Each year during the Term of this Agreement, Franchisee shall notify all AB 1826 and AB 341 accounts for which it provides Commercial Franchise Services of the Customer’s compliance obligations.

C. Submission to City of Informational Materials. Franchisee’s informational materials shall be provided to the Public Works Director upon request if, in City’s sole and absolute discretion, such informational materials are necessary for City to comply with State reporting requirements.

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). 71 Non-exclusive Franchise Agreement Page 36
The City Manager will hold a meeting with Franchisee no more than ten (10) business days after receiving Franchisee’s written appeal request. After the meeting, the City Manager will make a determination, in his or her sole discretion, as to whether to uphold the Default Notice, or any portion thereof, and shall issue such determination within five (5) business days of the meeting. The decision of the City Manager shall be final.

Franchisee will have thirty (30) calendar days from the date the City Manager’s determination is issued to cure the upheld Default Notice or any portion thereof.

F. Failure to Timely Cure. If Franchisee fails to timely cure a Default Notice, or any portion thereof, then the applicable liquidated damages set forth in Agreement Section 24 shall be final and conclusive and the amount(s) shall be immediately due and payable. Franchisee’s failure to timely cure three (3) Default Notices shall be a material breach of this Agreement.

G. Audit Findings. Notwithstanding anything to the contrary, if Franchisee disagrees with City’s audit findings, then Franchisee may, within ten (10) business days after service of the audit finding, appeal to the City Manager specifying the basis for its disagreement with City’s audit findings. If Franchisee fails to timely request such an appeal, then the discrepancy determinations shall be final and conclusive and the violation shall be deemed established.

H. Termination Without Right to Cure. City shall have the right of suspension or termination as a result of Franchisee’s failure to timely cure any deficiency or default as set forth above, which right is in addition to City’s right to terminate this Agreement without affording Franchisee an opportunity to cure in circumstances where Franchisee is determined to have materially breached this Agreement. Notwithstanding anything to the contrary, in the event of any material breach hereof, City shall have the right to terminate this Agreement without affording Franchisee the right to cure including, without limitation, any action, inaction or circumstance defined herein as a material breach and/or under any of the following circumstances which are hereby defined as material breaches:

1. If Franchisee conducts, or attempts to conduct, fraud upon City.

2. If Franchisee becomes insolvent, unable, or unwilling to pay its debts.

3. If Franchisee fails to materially comply with any insurance or indemnification requirement set forth in this Agreement; provided, however, that Franchisee shall have a reasonable opportunity to cure any default relating to the 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.
72 Non-exclusive Franchise Agreement Page 37

5. If Franchisee fails to submit Records thirty (30) calendar days or more following a written request by City, or its designated representative for 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.

J. Continuing Obligations. Upon Agreement termination, suspension or expiration:

1. Franchisee shall have no right or authority to engage in Commercial Franchise Services in the City, subject to the provisions of Sections 49520-49524 of the Public Resources Code, or any successor statutes.

2. Franchisee shall remain liable to City for any and all Franchise Feesand Environmental Liability Fund Fees that would otherwise be payable by Franchisee, for any and all liquidated damages, late charges and/or interest assessed.

3. Franchisee shall have a continuing obligation to submit to City all reports and records required by this Agreement. Franchisee’s obligation shall survive this Agreement shall continue for such period of time as required by this Agreement or applicable law.
73 Non-exclusive Franchise Agreement Page 38

4. Franchisee shall allow the Commercial Solid Waste Generators, AB 341 Generators and AB 1826 Generators served by Franchisee to arrange for Commercial Franchise Services with another Franchise Holder or Person authorized to perform such services, without penalty or liability for breach of contract on the part of the generators, for such period of time as Franchisee is not authorized to perform such services because of termination or suspension.

5. Franchisee shall have a continuing obligation to provide the indemnifications required in this Agreement. Such indemnifications include, but are not limited to, the Hazardous Materials indemnification and AB 939, AB 341, and AB 1826 indemnifications as set forth in Agreement Section 10.

SECTION 24. CITY’S REMEDIES
A. The City incurred considerable time and expense procuring this Agreement to secure an improved level and quality of Recycling and compliance with State Diversion mandates.

B. Liquidated Damages. The Parties agree the following liquidated damages schedule represents a reasonable estimate of the amount of damages, considering all the circumstances existing on the date of this Agreement, including the relationship of the sums to the range of harm to City that reasonably could be expected in anticipation that proof of actual damages would be costly or inconvenient:

Applicable
Section(s)
Failure(s)* Damages
6(A), 7(A) Comply with City-mandated Diversion
requirements within thirty (30) calendar
days of notification by City
Two hundred fifty
dollars ($250) per
business day until
compliant
6(B), 7(B) Deliver Commercial Solid Waste as
designated
Two hundred fifty
dollars ($250) per
truck delivery
8(B) Provide requested records Two hundred fifty
dollars ($250) per
business day until
completed
11(A) Provide only those Commercial
Franchise Services for which Franchisee
has applied
Two hundred fifty
dollars ($250)
11(C) Collect at unauthorized locations and/or
during unauthorized hours five (5) or
more times in a twelve (12) month period
Two hundred fifty
dollars ($250)
74 Non-exclusive Franchise Agreement Page 39
11(D) Label Containers; paint vehicles and/or
Containers corporate color
Fifty dollars ($50)
per business day
until corrected
12(A), 12(C),
Exhibit E, Parts A,
B and C
Implement AB 341 Diversion Program
including Tasks 1-16 in Exhibit E, Part A
within the timeframe in Franchise
Section 12C. Comply with the
requirements of Exhibit E, Parts B and C
within ninety (90) days of the events
described in Part B, or within ninety (90)
days of a previously operating AB 341
Program malfunctioning as required by
Part C.

One thousand
dollars ($1,000) per
occurrence
13(A), 13(C),
Exhibit E, Parts A,
B and C
Implement AB 1826 Food Scrap
Diversion Program including Tasks 1-16
in Exhibit E, Part A, within the timeframe
in Franchise Section 13C. Comply with
the requirements of Exhibit E, Parts B
and C within ninety (90) days of the
events described in Part B or within
ninety (90) days of a previously
operating Food Scrap Diversion Program
malfunctioning as required by Part C.

One thousand
dollars ($1,000)
14(A), 14(C),
Exhibit E, Parts A,
B and C
Implement AB 1826 Green Waste and
Wood Waste Diversion Program
including Tasks 1-16 in Exhibit E, Part A,
within the timeframe in Franchise
Section 14C. Comply with the
requirements of Exhibit E, Parts B and C
within ninety (90) days of the events
described in Part B or within ninety (90)
days of a previously operating Green
Waste and Wood Waste Diversion
Program malfunctioning as required by
Part C.

Five hundred dollars
($500)
15(B) Implement Construction and Demolition
Diversion Program
One thousand
dollars ($1,000)
16(A), 16(B), 16(E) Submit complete and accurate monthly reports
One hundred dollars
($100) per business
day until corrected
or completed
75 Non-exclusive Franchise Agreement Page 40
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
Representative; Failure of Hauler
Representative to timely respond to City
Fifty dollars ($50)
per business day
until completed
18(C) Secure or maintain vehicles or vehicle
equipment
One hundred dollars
($100) per business
day until completed
19 Remove, replace, or collect abandoned
Container(s)
Fifty dollars ($50)
per business day
until completed
*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 private or confidential information owned or controlled by the other party and such information may contain proprietary details and disclosures. All information and 76 Non-exclusive Franchise Agreement Page 41
data identified in writing as proprietary or confidential by either party (“Confidential Information”) and so acquired by the other party or its employees or agents under this Agreement or in contemplation thereof shall be and shall remain the disclosing party’s exclusive property. The recipient of Confidential Information shall use all reasonable efforts (which in any event shall not be less than the efforts the recipient takes to ensure the confidentiality of its own proprietary and other confidential information) to keep, and have its employees and agents keep, any and all Confidential Information confidential, and shall not copy, or publish or disclose it to others, nor authorize its employees, agents or anyone else to copy or disclose it to others, without the disclosing party’s written approval; nor shall the recipient make use of the Confidential Information except for the purposes of executing its obligations hereunder, and (except as provided for herein) shall return the Confidential Information and data to the first party at its request. The City’s duty to maintain confidentiality as described hereunder shall be subject to the laws of the State of California.

B. 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:
77 Non-exclusive Franchise Agreement Page 42
To: Public Works Director
City of Newport Beach
P.O. Box 1768
100 Civic Center Dr.

Newport Beach, CA 92660
To Franchisee: __________________
__________________
__________________
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.
78 Non-exclusive Franchise Agreement Page 43
J. Equal Opportunity Employment. Franchisee represents that it is an equal opportunity employer and it shall not discriminate against any authorized subcontractor, employee or applicant for employment because of race, religion, color, national origin, handicap, ancestry, sex or age or any other impermissible basis under law.

K. Compliance with Laws. Franchisee shall at its own cost and expense comply with all statutes, ordinances, regulations and requirements of all governmental entities, including federal, state, county or municipal, whether now in force or hereinafter enacted.

Franchisee agrees to obtain a business license from the City in accordance with the Code.

The parties hereto agree that the Franchise and this Agreement are the only authorizations to conduct Commercial Franchise Services in the City and that the issuance of a business license does not grant the Franchisee a right to conduct Commercial Franchise Services or other business in the City.

L. Conflicts of Interest. Franchisee and its employees may be subject to the provisions of the California 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]
79 Non-exclusive Franchise Agreement Page 44
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed on the day and year written below.

APPROVED AS TO FORM:

CITY ATTORNEY’S OFFICE

CITY OF NEWPORT BEACH,
a California municipal corporation
Date:________________
By:______________________________
Date:________________
By:______________________________
Aaron C. Harp
City Attorney
Lauren Kleiman
Mayor
ATTEST:

Date:________________
FRANCHISEE:

Date:________________
By:______________________________ By:_______________________________ Lena Shumway
City Clerk
Date:________________
By:_______________________________
[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 80 Faithful Performance Bond Page A-1

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 81 Faithful Performance Bond Page A-2
hereby waive notice of any such change, extension of time, alterations or additions of the Agreement or to the services or to the specifications.

This Faithful Performance Bond shall be extended and maintained by the Principal in full force and effect for seven (7) years following the date Principal is granted the Franchise Agreement by City.

In the event that the Principal executed this bond as an individual, it is agreed that the death of any such Principal shall not exonerate the Surety from its obligations under this Bond.

IN WITNESS WHEREOF, this instrument has been duly executed by the Principal and Surety above named, on the _____ day of ________________, 20___. ______________________________
Name of Contractor (Principal) Authorized Signature/Title ______________________________
Name of Surety Authorized Agent Signature
______________________________
Address of Surety Print Name and Title
______________________________
Telephone
APPROVED AS TO FORM:

CITY ATTORNEY’S OFFICE
Date:__________________
By:_______________________________
Aaron C. Harp
City Attorney

NOTARY ACKNOWLEDGMENTS OF

CONTRACTOR AND SURETY MUST BE ATTACHED
82 Faithful Performance Bond Page A-3

ACKNOWLEDGMENT
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 (seal)

ACKNOWLEDGMENT
State of California
County of ______________________} ss.

On _________________________, 20_____ before me, ______________________________, Notary Public, personally appeared _______________________________________________, proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signatures(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.

I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct.

WITNESS my hand and official seal.
_________________________________
Signature (seal)
A notary public or other officer completing this
certificate verifies only the identity of the individual who signed the document to which this certificate is
attached, and not the truthfulness, accuracy, or validity of that document.

A notary public or other officer completing this
certificate verifies only the identity of the individual who signed the document to which this certificate is
attached, and not the truthfulness, accuracy, or validity of that document.
83 Franchise Hauler Acknowledgement Page B-1

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 aforementioned benefits to the City, the County and the Franchise Hauler in providing for the disposal of all Franchise Waste to the Disposal System; and
WHEREAS, the City and the Franchise Hauler desire to enter into this Acknowledgment to assure that the City and the Franchise Hauler will be entitled to the benefits of the Waste Disposal Agreement and to assure conformity with the waste 84 Franchise Hauler Acknowledgement Page B-2
delivery obligations which have been agreed to by the City under the Disposal Agreement through the delivery of waste by the Franchise Hauler to the Disposal System; and 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.
85 Franchise Hauler Acknowledgement Page B-3

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. 86 Franchisee Application Template Page C-1

EXHIBIT C

FRANCHISE APPLICATION TEMPLATE
87 Insurance Requirements Page D-1

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. 88 Insurance Requirements Page D-2
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, nonowned disposal site liability, defense costs, cleanup costs, and pollution conditions that arise from or in connection with the transportation (including loading and unloading) by or on behalf of the Franchisee, of any waste or waste materials. Coverage shall be provided for both sudden and accidental and gradual and continuous pollution events with limits no less than $5,000,000 each loss and $10,000,000 in the aggregate. The policy shall not exclude any hazardous materials for which there is an exposure. If all or any portion of the pollution liability coverage is available only on a claims-made basis, then a 10-year extended reporting period shall also be purchased. The policy shall not contain any provision or exclusion (including any so-called "insured versus insured" exclusion or "cross-liability" exclusion) the effect of which would be to prevent, bar, or otherwise preclude any insured or additional insured under the policy from making a claim which would otherwise be covered by such policy on the grounds that the claim is brought by an insured or additional insured against an insured or additional insured under the policy.

4. Other Insurance Requirements. The policies are to contain, or be endorsed to contain, the following provisions:

A. Waiver of Subrogation. All insurance coverage maintained or procured pursuant to this Agreement shall be endorsed to waive subrogation against City, its City Council, boards and commissions, officers, agents, volunteers, employees, and any person or entity owning or otherwise in legal control of the property upon which Franchisee performs the Services contemplated by this Agreement or shall specifically allow Franchisee or others providing insurance evidence in compliance with these requirements to waive their right of recovery prior to a loss. Franchisee hereby waives its own right of recovery against City, and shall require similar written express waivers from each of its subcontractors.

B. Additional Insured Status. All liability policies including general liability, excess liability, pollution liability, and automobile liability, but not including professional liability (if required), shall provide or be endorsed to provide that City a its City Council, boards and commissions, officers, agents, volunteers, employees, and any person or entity owning or otherwise in legal control of the property upon which Franchisee performs the Services contemplated by this Agreement shall be included as additional insureds under such policies.

C. Primary and Non Contributory. All liability coverage shall apply on a primary basis and shall not require contribution from any insurance or self-insurance maintained by City.

D. Notice of Cancellation. All policies shall provide City with thirty (30) days notice of cancellation (except for nonpayment for which ten (10) days notice is required) or nonrenewal of coverage for each required coverage.

5. Additional Agreements Between the Parties. The parties hereby agree to the following:

A. Evidence of Insurance. Franchisee shall provide certificates of insurance to City as evidence of the insurance coverage required herein, along with a 89 Insurance Requirements Page D-3
waiver of subrogation endorsement for workers’ compensation and other endorsements as specified herein for each coverage. Insurance certificates and endorsement must be approved by City’s Risk Manager prior to commencement of performance. Current certification of insurance shall be kept on file with City at all times during the term of this Agreement. The certificates and endorsements for each insurance policy shall be signed by a person authorized by that insurer to bind coverage on its behalf. At least fifteen (15) days prior to the expiration of any such policy, evidence of insurance showing that such insurance coverage has been renewed or extended shall be filed with the City. If such coverage is cancelled or reduced, Franchisee shall, within ten (10) days after receipt of written notice of such cancellation or reduction of coverage, file with the City evidence of insurance showing that the required insurance has been reinstated or has been provided through another insurance company or companies. City reserves the right to require complete, certified copies of all required insurance policies, at any time.

B. City’s Right to Revise Requirements. The City reserves the right at any time during the term of this Agreement to change the amounts and types of insurance required by giving the Franchisee sixty (60) days advance written notice of such change.

C. Right to Review Subcontracts. Franchisee agrees that upon request, all contracts with subcontractors or others with whom Franchisee enters into contracts with on behalf of City will be submitted to City for review. Failure of City to request copies of such contracts will not impose any liability on City, or its employees. Franchisee shall require and verify that all subcontractors maintain insurance meeting all the requirements stated herein, and Franchisee shall ensure that City is an additional insured on insurance required from subcontractors. For CGL coverage, subcontractors shall provide coverage with a format at least as broad as CG 20 38 04 13.

D. Enforcement of Contract Provisions. Franchisee acknowledges and agrees that any actual or alleged failure on the part of the City to inform Franchisee of non-compliance with any requirement imposes no additional obligations on the City nor does it waive any rights hereunder.

E. Requirements not Limiting. Requirements of specific coverage features or limits contained in this Section are not intended as a limitation on coverage, limits or other requirements, or a waiver of any coverage normally provided by any insurance. Specific reference to a given coverage feature is for purposes of clarification only as it pertains to a given issue and is not intended by any party or insured to be all inclusive, or to the exclusion of other coverage, or a waiver of any type.

F. Self-insured Retentions. Any self-insured retentions must be declared to and approved by City. City reserves the right to require that self-insured retentions be eliminated, lowered, or replaced by a deductible. Self-insurance will not be considered to comply with these requirements unless approved by City.

G. City Remedies for Non Compliance. If Franchisee or any subcontractor fails to provide and maintain insurance as required herein, then City shall have the right but not the obligation, to purchase such insurance, to terminate this Agreement, or to suspend Franchisee’s right to proceed until proper evidence of insurance is provided. Any amounts paid by City shall, at City’s sole option, be deducted from amounts payable to Franchisee or reimbursed by Franchisee upon demand. 90 Insurance Requirements Page D-4
H. Timely Notice of Claims. Franchisee shall give City prompt and timely notice of claims made or suits instituted that arise out of or result from Franchisee’s performance under this Agreement, and that involve or may involve coverage under any of the required liability policies. City assumes no obligation or liability by such notice, but has the right (but not the duty) to monitor the handling of any such claim or claims if they are likely to involve City.

I. Franchisee’s Insurance. Franchisee shall also procure and maintain, at its own cost and expense, any additional kinds of insurance, which in its own judgment may be necessary for its proper protection and prosecution of the Franchise. 91 Required Tasks For Implementation Of Diversion Programs Page E-1

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, selfhauling, 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 Self92 Required Tasks For Implementation Of Diversion Programs Page E-2 Certification Form, evaluate the information provided and take steps to verify the in-house program(s). City will inform the Franchisee of City’s decision regarding the adequacy of the in-house program(s).
(i) In the event City notifies the Franchisee that the in-house program(s) are inadequate, Franchisee shall comply with all the requirements contained in Sections 12, 13, 14 and in this Exhibit E to fully implement all Diversion Programs required by this Franchise. (ii) In the event City notifies the Franchisee that some, but not all, of the in-house program(s) are adequate, (a) Franchisee shall be relieved from its responsibility to implement the Diversion Programs targeting materials that are being Diverted by the City-verified in-house program(s) for a period of 12 months; and (b) Franchisee shall comply with all the requirements contained in this Exhibit E to fully implement all Diversion Programs for Recyclable Materials, Food Scraps, Green Waste and Wood Waste not adequately Diverted through the City-verified in-house program(s). At the end of twelve (12) months, Franchisee shall submit a written request to City to determine whether the Customer filed a new Self-Certification Form and whether the City has determined that any of the Customer’s inhouse program(s) are adequate. If so, Franchisee shall record this in the Exhibit E Tracking Document and shall be relieved from its responsibility to implement the Diversion Programs targeting materials that are being Diverted by the City-verified in-house program(s) for an additional period of 12 months. Franchisee shall continue to provide and maintain all Diversion Programs required by this Franchise for which there is no City-verified in-house program(s).

This process shall be repeated by Franchisee annually as long as the Customer is served by the Franchisee at the same premises. In the event a Customer ceases operation of any or all of its in-house program(s) and/or the City makes a determination that any or all of the previously City-verified in-house program(s) are no longer operating or are no longer adequate, then Franchisee shall comply with all the requirements contained in Sections 12, 13, 14 and in this Exhibit E to fully implement all Diversion Programs required by this Franchise.
(iii) In the event City notifies the Franchisee that the in-house program(s) are adequate, Franchisee shall be relieved from its responsibility to implement the Diversion Programs targeting materials that are being Diverted by the City-verified in-house program(s) for a period of 12 months. At the end of twelve (12) months, Franchisee shall submit a written request to City to determine whether the Customer filed a new Self-Certification Form and whether the City has determined that the in-house program(s) are adequate. If the City determines any or all of the in-house programs are adequate, Franchisee shall record this in the Exhibit E Tracking Document and shall be relieved from its 93 Required Tasks For Implementation Of Diversion Programs Page E-3 responsibility to implement the Diversion Programs targeting materials that are being Diverted by the City-verified in-house program(s) for an additional period of 12 months. Franchisee shall continue to provide and maintain all Diversion Programs required by this Franchise for which there is no City-verified in-house program(s).

This process shall be repeated by Franchisee annually as long as the Customer is served by the Franchisee at the same premises. In the event a Customer ceases operation of any or all of its in-house program(s) and/or the City makes a determination that any or all of the in-house program(s) are no longer adequate, then Franchisee shall comply with all the requirements contained in Sections 12, 13, 14 and in this Exhibit E to fully implement all Diversion Programs required by this Franchise.

5. If the Customer is using a landscaping company to haul away Green Waste/Wood, 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 94 Required Tasks For Implementation Of Diversion Programs Page E-4 Franchise for which there is no City-verified in-house program(s).

This process shall be repeated by Franchisee annually as long as the Customer is served by the Franchisee at the same premises. In the event a Customer ceases operation of any or all of its landscaper program(s) and/or the City makes a determination that any or all of the previously City-verified landscaper program(s) are no longer operating or are no longer adequate, then Franchisee shall comply with all the requirements contained in Section 14 and in this Exhibit E to fully implement all Diversion Programs for Green Waste and Wood Waste required by this Franchise.
(iii) In the event City notifies the Franchisee that the landscaper program(s) are adequate, Franchisee shall be relieved from its responsibility to implement the Diversion Programs targeting Green Waste and Wood Waste that are being Diverted by the City-verified landscaper program(s) for a period of twelve (12) months. At the end of twelve (12) months, Franchisee shall submit a written request to City to determine whether the Customer filed a new “Landscaper Self-Certification Form” and whether the City has determined that the landscaper program(s) are adequate. If so, Franchisee shall record this in the Exhibit E Tracking Document and shall be relieved from its responsibility to implement the Diversion Programs targeting Green Waste and Wood Waste that are being Diverted by the Cityverified 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 95 Required Tasks For Implementation Of Diversion Programs Page E-5 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 96 Required Tasks For Implementation Of Diversion Programs Page E-6 Container(s) and the Green Waste/Wood Containers and what materials are to be placed in the Municipal Solid Waste Container(s). In the case of a Food Scrap generator, Franchisee shall explain what Food Scrap materials are to be placed in the Food Scrap Container. Employee/management training shall include at least one on-site training conducted by the Franchisee for all management and all employees of Customer. If there are multiple shifts, or if management and/or employees work on different days, Franchisee shall conduct multiple trainings until all management and employees have been trained. Internal containers for the Divertible Materials are to be provided by the Customer, pursuant to the City Code.

If directed by the City, Franchisee shall provide City-approved training posters, signage, and stickers/labels for the internal Containers showing what materials are allowed in each. Franchisee shall provide training and training materials in English and in any other language requested by the Authorized Customer Representative.

13. Franchisee shall make at least two (2) follow-up site visits to confirm the Diversion Program(s) is/are operating optimally within the first two weeks after program initiation. (These site visits are in addition to the site checks to confirm Municipal Solid Waste quantities and optimization of Municipal Solid Waste service described in Step 11 above.) Franchisee shall respond to the Customer’s questions and to any complaints and shall promptly and successfully resolve all questions and complaints.

14. Within ninety (90) days after implementation of each Diversion Program at the premises of the Customer, Franchisee shall ensure that the programs are operating effectively such that the Municipal Solid Waste Container(s) at the premises contain no more than twenty percent (20%) Recyclable Materials and Food Scraps (combined), and the Recyclable Materials Container(s) contain no more than ten percent (10%) Municipal Solid 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 97 Required Tasks For Implementation Of Diversion Programs Page E-7 successfully Diverting all targeted Material(s) and/or is not meeting the Contamination performance standards in Step 14, the non-compliant Customer shall be reported to City on the Exhibit E Tracking Document in the section labeled “Non-Compliant Customers Referred to City for Compliance Action Under Newport Beach Municipal Code”. City will contact the Customer concerning the requirements of the Act and the City Code. This may include warnings to the Customer, Notice of Violation, fines and/or other enforcement actions. If the Authorized Customer Representative agrees to take all necessary steps to fully implement the Diversion Program(s) as required by the Act and the City Code, City will refer the Customer back to the Franchisee for additional on-site work, training of the Customer’s management and employees, troubleshooting and all Steps in this Exhibit E required to achieve full implementation of the program(s). In such event, the Customer shall be removed from the list of “Non-Compliant Customers Referred to City for Compliance Action Under Newport Beach Municipal Code” in the Exhibit E Tracking Document. If the Authorized Customer Representative continues to refuse to take the steps necessary to fully implement one or more of the required Diversion Programs after City action, the Customer will remain on the Non-Compliant Customer list. In the City’s sole discretion, upon receipt of written notice by the City, the Franchisee may be relieved of the responsibility to implement the Diversion Program(s) specified by City, at that non-compliant Customer’s premises.

B. In the event there is a change of ownership, management or other change resulting in cessation of a Diversion Program(s) or causing any one of the steps herein to not be fully complied with at all times, Franchisee shall repeat all steps necessary to establish or re-establish a fully implemented Diversion Program. Franchisee shall complete re-establishment of a fully implemented 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
98 Required Tasks For Implementation Of Diversion Programs Page E-8 • Dates of all such contacts
• Photos from the site visits and assessments conducted • Photos of any internal Diversion Programs being conducted by the Customer
• Customer objections
• Log of contamination incidents
• Franchisee staff/representative(s) making the contacts • Franchisee lead staff person responsible for each Customer’s Diversion Program implementation.

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 99 Required Tasks For Implementation Of Diversion Programs Page E-9 the Customer applied for, and was granted a new waiver for another twelve (12) month (or shorter) period. If so, Franchisee shall record this in the Exhibit E Tracking Document and shall be relieved of its duty to provide the Diversion Program(s) that are specified in the new waiver granted by the City for the period the new waiver is effective.

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. 100
Construction and Demolition Debris Diversion Program Page F-1

EXHIBIT F

CONSTRUCTION AND DEMOLITION DEBRIS DIVERSION PROGRAM
Franchisee shall provide all services necessary to support Customer compliance with, and City’s enforcement of, the California Green Building Standards Code requirements for Diversion of Construction and Demolition Debris.

Franchisee’s Construction and Demolition Debris Diversion Program shall include, but not be limited to:
(A) Informing all Customers requesting Construction and Demolition Debris hauling services of the requirements of the California Green Building Standards Code; (B) Providing Containers and/or Bins, Roll Off Boxes, and Compactors as needed for storage and transport of single-material Construction and Demolition Debris, and commingled Construction and Demolition Debris;
(C) Providing Collection service for all Containers on a timely basis, which, at a minimum, complies with Section 11 of the Agreement; and
(D) Working and coordinating with Customer, or customer’s recycling coordinator, to ensure a smooth and effective Diversion program and the Diversion of a minimum of sixtyfive percent (65%) of all Construction and Demolition Debris generated at each of Customer’s job sites (or a higher percentage Diversion if required by the California Green Building Standards Code) for which Franchisee is providing Construction and Demolition Debris Collection service.

Franchisee shall inform Customers utilizing Containers and/or Bins and Roll Off Boxes on a temporary basis, that materials being generated must be Diverted pursuant to the requirements of City Code and the California Green Building Standards Code. 101
Attachment B
Sample 2020 Non-Exclusive Commercial Solid Waste Franchise Agreement 102

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:

RECITALS
This Agreement is entered into on the basis of the following facts:

A. Assembly Bill (“AB”) 939 (the California Integrated Solid Waste Management Act of 1989, hereinafter the “Act”; Public Resources Code Sections 40000 et seq.) requires the City to divert from landfill disposal a minimum of fifty percent (50%) of all municipal solid waste generated within the City.

B. In 2011, the Act was amended by AB 341 to establish a statewide goal of diverting from landfills seventy-five percent (75%) of all municipal solid waste by 2020 and required the City, on or before July 1, 2012, to provide a commercial recycling program.

C. AB 341 also requires all businesses generating more than four (4) cubic yards per week of commercial municipal solid waste and all multifamily dwellings of five (5) units or more to arrange for recycling services by July 1, 2012.

D. In 2014, the Act was further amended by AB 1826 to require the City, on or before January 1, 2016, to provide a diversion program for collection and diversion of food scraps and green waste.

E. AB 1826 also requires commercial generators of certain quantities of food scraps and green waste to participate in a diversion program beginning on a date between April 1, 2016 and January 1, 2019, depending on the quantity of waste generated. Some smaller commercial generators are required by CalRecycle to participate on or after January 1, 2020.

F. The City has received written notification from CalRecycle of its intention to enforce the deadlines for implementation of AB 341 and AB 1826 programs within the City as required by the Act; therefore, it is important that Franchisee implement and maintain successful AB 341 an AB 1826 diversion programs for all commercial customers as required by the Act, to the satisfaction of both the City and CalRecycle. 103
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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.
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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 any part of the City and to use the public streets and public right-of-ways for such purpose.

Franchisee acknowledges that the Franchise is not exclusive and that the Franchise is subject to all provisions of applicable law, including, but not limited to, Article XIII of the City Charter, Ordinance No. 202_-XX, Code Chapter 12.63, and the terms and conditions of this Agreement.

B. Upon 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-foodgenerating businesses and the responsible parties, property owners, owners, operators, property managers, tenants and lessees of same, that generate four (4) or more cubic 105
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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.
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“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.
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“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 stream at the point of generation and includes Food Scraps, Green Waste, and wood that are not hazardous wastes.
“Compost Facility” means a facility that processes one (1) or more of the following:

Food Scraps, Green Waste, wood and food-soiled fiber such as paper napkins and paper towels, by means of outdoor windrow composting, aerated static pile composting, covered composting, vermiculture or other outdoor composting methods or covered composting with use of either finished compost or fiber, synthetic or other type(s) of cover(s) applied to the compost piles.
“Composting” means the controlled microbial degradation of organic materials yielding a safe and nuisance-free finished product called Compost, a soil amendment suitable for incorporating into topsoil and for growing plants. “Construction and Demolition Debris” means all inert material of every nature, description or kind, which has resulted from the building or demolition of a structure, pavements, sidewalks, curbs, gutters and other concrete structures, including all lumber scraps, shingles, plaster, sheetrock, packaging, rubble, brick, stone, concrete, asphalt, 108
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dirt, rock and other building material. A facility that accepts Construction and Demolition Debris for separation and further processing to prepare materials for sale or re-use (such as removing nails and screws from wood, or grinding of concrete and asphalt) and then markets the materials for re-use is a “Construction and Demolition Debris Processing Facility.”
“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. 109
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“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, entrée, dessert, raw fruit and vegetable, that may or may not have been sliced, grated, cooked, baked or otherwise prepared for consumption but not served; any packaged sandwich, salad, fruit and fruit salad and any other non-served food that meets state and local requirements as being edible for human consumption. “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 110
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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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“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 writeoffs 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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“Landfill” means a fully permitted disposal site that accepts Municipal Solid Waste that is in compliance with all Federal, State and local laws, regulations and permits conditions at the time Municipal Solid Waste is delivered and unloaded at the disposal site.
“Multifamily Dwelling” mean housing projects containing or consisting of five (5) or more units, whether apartment houses, condominiums, townhomes, or mixed use projects, mixed use condominiums and rental housing, which use centralized Commercial Solid Waste Containers (including Bins, Carts and/or Compactors) for storage of Municipal Solid Waste, Recyclable Materials, Green Waste and/or Food Scraps.

Multifamily Dwelling does not include single-family residences, duplexes, tri-plexes or four-plexes that receive individual Collection services for Municipal Solid Waste, Recyclable Materials, Green Waste and/or Food Scraps stored in wheeled carts. For purposes of the implementation of the Diversion programs, reporting requirements, and the percentage Diversion requirements, “Commercial Tons” shall include only Tons Collected from Multifamily Dwellings in Carts, Bins, Compactors or Roll Off Boxes and shall not include any Tons Collected from Containers Collected from Commercial Premises. Tons Collected from Containers Collected from Commercial Premises shall be reported separately.
“Municipal Solid Waste” means all Processable Municipal Solid Waste and all NonProcessable Municipal Solid Waste, putrescible and nonputrescible solid and semisolid wastes, Generated in or upon, related to the occupancy of, remaining in or emanating from residential, commercial, and/or industrial premises, including, but not limited to, garbage, trash, refuse, rubbish, ashes, Industrial Waste, discarded home and industrial appliances, manure, vegetable or animal solid or semisolid wastes, and other solid and semisolid wastes. Municipal Solid Waste excludes Recyclable Materials, Green Waste, Food Scraps, Construction and Demolition Debris, liquid wastes, abandoned vehicles and hazardous, biohazardous and biomedical wastes.
“Non-Processable Municipal Solid Waste” means putrescible and non-putrescible solid and semi-solid wastes Generated in or upon, related to the occupancy of, remaining or emanating from residential, Commercial, and/or industrial premises, that has been segregated or separated from Recyclable Materials, Food Scraps, Green Waste, wood and/or Construction and Demolition Debris such that the remaining constituents in the Non-Processable Municipal Solid Waste (such as broken glass, diapers, ashes, Industrial Waste, discarded Bulky Goods that cannot be re-used or dismantled for Recycling, manure, vegetable or animal solid or semi-solid wastes that remain after segregation of Food Scraps and Green Waste) cannot be diverted by reasonable economic or technologically available means. Non-Processable Municipal Solid Waste does not include Recyclable Materials, Green Waste, Food Scraps, wood, Construction and Demolition Debris, Bulky Goods or other materials that have been segregated for Diversion; liquid wastes; low level radioactive waste regulated under California Health and Safety Code Sections 20015, et seq.; abandoned vehicles and auto parts; hazardous, biohazardous and biomedical wastes.
“Person” means an individual, firm, association, organization, partnership, corporation, business trust, joint venture, Limited Liability Company, the United States, 113
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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 114
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City including, without limitation, State mandates to Divert fifty percent (50%) of the Municipal Solid Waste Generated within the City, achievement of the per capita Diversion requirements in the Act, and the provision of City-approved Diversion services to all Customers. Recycling Requirements includes future changes to the Act that may require the City to Divert higher percentages of Municipal Solid Waste Generated within the City and/or to provide additional and/or enhanced or expanded Diversion Programs. “Residue” means the Non-Processable Municipal Solid Waste destined for Disposal in a Landfill, which remains after processing at a Processing Facility has taken 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 115
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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 (other than Composting) to turn Municipal Solid Waste and/or organic materials into a fuel used to produce energy (example: waste-to-energy). Transformation does not include Composting, gasification, Biomass Conversion, or wet or dry Anaerobic Digestion. “Transformation Facility” means a facility using a Transformation process to turn Municipal Solid Waste and/or organic materials into a fuel used to produce energy. A Franchisee may only utilize Transformation for the quantity of Municipal Solid Waste allowed by CalRecycle to be counted as Diversion pursuant to the Act, as this may be changed in the future by legislation or regulations. The Act currently provides that a jurisdiction can only use Transformation to divert up to ten percent (10%) of the Municipal Solid Waste generated in the jurisdiction. Therefore, materials collected by a Franchisee and processed at a Transformation Facility shall be limited to ten percent (10%) of the Non-Processable Municipal Solid Waste Collected by the Franchisee within City. “Ton” means a short ton of two-thousand (2,000) pounds avoirdupois. “Wood Waste” means all non-hazardous wood material that is not painted with lead-based or other paints containing materials identified as hazardous waste, or treated with creosote or other hazardous materials. Wood Waste includes, but is not limited to, tree branches and other wood trimmings, dimensional lumber and other pieces of wood generated during the manufacture or processing of wood products. For wood generated from construction and/or demolition activities, see the definition of “Construction and Demolition Debris.

SECTION 4. FRANCHISE FEES
A. During the Term of this Franchise, Franchisee shall pay to City Franchise Fees for the privilege of providing Commercial Franchise Services in the City and for the use of public streets, right-of-ways and places for such purposes. The Franchise Fees that Franchisee shall pay to the City shall total sixteen percent (16%) of the gross receipts which are reasonably related to the value of Agreement for all Commercial Franchise Services provided by Franchisee in the City as follows:
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1. Ten and one-half percent (10.5%) of the Gross Receipts for all Commercial Franchise Services provided by the Franchisee in the City (“Commercial Franchise Service Fee”), of which one half percent (.5%) shall be attributable to the maintenance and implementation of the City’s SRRE, and shall be separately accounted for, and used only for the costs stated in Public Resources Code Section 41901 or any successor provision.

2. Five and one-half percent (5.5%) of the Gross Receipts for all Commercial Franchise Services provided by Franchisee in the City shall be paid into an Environmental Liability Fund, which shall be a separate fund established and maintained by City (“Environmental Liability Fund Fee”). Hereinafter, Environmental Liability Fund Fee and Commercial Franchise Fee shall be collectively referred to as “Fees.” B. City and Franchisee acknowledge the potential environmental liability that may result from Commercial Franchise Services under Federal and State environmental protection laws and the Public Resources Code. City intends to take reasonable actions to obtain protection and indemnification against future environmental liability for Commercial Solid Waste and Divertible Materials generated within the City and the activities of Franchisee under this Agreement for handling such Commercial Solid Waste and Divertible Materials. To provide protection and indemnification to City for Franchisee’s Commercial Franchise Services in the City, Franchisee agrees to collect from its customers an Environmental Liability Fund Fee for payment into the Environmental Liability Fund. The Environmental Liability Fund may be used by the City for any expense associated with this Franchise, including, but not limited to, the purchase of environmental liability insurance and paying all costs, expenses, and penalties that arise from or in any way relate to liability incurred by the City as a result of any act, negligence, or omission by the City, Franchisee, Franchisee Customer, or any of their respective officers, directors, shareholder members, volunteers, partners, employees, agents, subcontractors, suppliers, representatives or affiliates. The Environmental Liability Fund may also be used by the City to pay for any Disposal, Diversion, or Recycling activity required of the City, Franchisee, or any Generator under State, Federal or local law. The Fund shall not be commingled with or included in the City’s General Fund.

1. The Fees shall be paid concurrently.

2. Compliance with this Section shall not limit Franchisee’s indemnification as set forth in Agreement Section 10; however, the indemnification provisions of Agreement Section 10 shall be secondary to the Environmental Liability Fund established by this Section or any insurance purchased by the Environmental Liability Fund.

C. The Fees shall be paid on a calendar quarterly basis on forms prescribed by the Finance Director.

D. All payments shall be made in lawful money of the United States of America and shall be paid to City in person or by United States’ mail, or overnight mail service, at the Cashier’s Office located at 100 Civic Center Drive, P.O. Box 1768, Newport Beach, 117
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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, Franchisee may submit a request for refund to the Finance Director on a form provided by the Finance Director. If proof of overpayment is satisfactory to the Finance Director, the Finance Director shall refund to Franchisee any overpayment. Franchisee shall not apply any overpayment as a credit against any other amounts payable to City unless specifically authorized by the Finance Director in writing.

H. Each Franchise Fee and Environmental Liability Fund Fee payment shall be accompanied by a written statement described in Code Section 12.63.090, or any successor section, on a form provided by the Finance Director. No statement filed under this Section shall be conclusive as to the matters set forth in such statement, nor shall the filing of such statement preclude the City from collecting by appropriate action the sum that is actually due and payable.

I. Franchisee may separately list the actual Franchise Fee rate and Environmental Liability Fund Fee rate as established by this Section, and any other fees required by this Agreement, on its invoices to its customers. In no case may the Franchise Fee rate or Environmental Liability Fund Fee rate listed by the Franchisee on the invoice exceed the actual Franchise Fee or Environmental Liability Fund Fee rates imposed by the City.

SECTION 5. PERFORMANCE BOND/DEPOSIT
A. Prior to the placement of any Container for Commercial Franchise Services on public or private property, Franchisee shall, to ensure compliance with the duties and 118
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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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C. Franchisee shall not Dispose of Municipal Solid Waste, Recyclable Materials, Food Scraps, or Green Waste by depositing it on any land except a permitted facility, whether public or private, or in any river, stream or other waterway, or in any sanitary sewer or storm drainage system. Nothing in this Agreement shall be deemed or construed as authorizing Franchisee to operate a Landfill, Recycling Facility, or other solid waste disposal facility in the City.

D. If Franchisee violates the terms in Agreement Section 6(A) and/or Section 6(B) above, Franchisee agrees that the City has the future right to direct that all Municipal Solid Waste be delivered to a fully permitted Disposal facility designated by City and that Recyclable Materials, Food Scraps, Green Waste and/or Wood Waste be delivered to a fully permitted Processing Facility designated by City. This exercise of “flow control” by the City shall be made upon at least thirty (30) calendar days prior written notice to Franchisee, and written notice shall include the violation(s) prompting the City’s action regarding “flow control.” Failure to comply with the Recycling, Diversion, and/or Disposal requirements set forth in this Section shall be a material breach of this Agreement.

E. Franchisee shall include as a condition to its contractual agreement with its Customers a provision prohibiting disposal of Hazardous Waste in any Container.

F. Franchisee shall implement a load check program that includes, at a minimum, a visual check of all Containers to be emptied to protect against inclusion of Hazardous Waste and shall prepare a written record of all Hazardous Waste discovered during the process. The records shall comply with all State and Federal Hazardous Waste Regulations and shall be maintained for the length of the Term of the Franchise and for a minimum period of three (3) years, or for any longer period required by law, after the Extended Termination Date. The records shall be made available to the City in Franchisee’s monthly reports submitted pursuant to Agreement Section 16.

G. This Agreement does not purport to grant Franchisee or City ownership over materials that Franchisee’s Customers discard for pickup by Franchisee or that Franchisee handles under this Agreement. The right to possession or ownership of those materials shall be determined in accordance with law and any agreement between Franchisee and its Customers, and not as a result of this Agreement. Parties acknowledge that City has no ownership rights in Divertible Materials or revenue from sale thereof, except as provided in this Agreement.

H. City makes no representations or warranties with respect to characterization of Municipal Solid Waste, Recyclable Materials, Food Scraps, or Green Waste within City. City expressly disclaims any representations and warranties, either express or implied, as to the merchantability or fitness of Municipal Solid Waste, Recyclable Materials, Food Scraps, or Green Waste for any particular purpose.

SECTION 7. DIVERSION OF CONSTRUCTION AND DEMOLITION DEBRIS A. On a monthly basis, Franchisee shall Divert a minimum of sixty-five percent (65%) of all Construction and Demolition Debris collected in the City by Franchisee. This Diversion requirement shall be in addition to and separate from any Diversion 120
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requirements set forth in Agreement Section 6. Franchisee shall also comply with all requirements of Section 15. If new or additional Diversion requirements are imposed by law, ordinance or regulation on City, Franchisee, and/or any Commercial Premises or Multifamily Dwelling, the City shall have the right to require Franchisee to Divert additional Construction and Demolition Debris by providing Franchisee with ten (10) calendar days written notice of the new Diversion requirements. Upon request of the Public Works Director, Franchisee shall provide all documents and information requested by the Public Works Director to prove that Franchisee has complied with this subsection, any applicable law, ordinance, regulation, or condition related to Recycling and Diversion of Construction and Demolition Debris.

B. Franchisee shall Dispose of, or oversee Disposal of, any Construction and Demolition Debris collected in the City by Franchisee, and not diverted pursuant to Agreement Section 7(A), in accordance with the Franchise Hauler Acknowledgment, attached hereto as Exhibit “B.” Franchisee hereby accepts and agrees to abide by all terms of the Franchise Hauler Acknowledgment. If, during the Term of this Agreement, the City’s Waste Disposal Agreement with Orange County expires, lapses or is terminated, the Franchise Hauler Acknowledgement shall be null and void and Franchisee shall Dispose of non-Diverted Construction and Demolition Debris collected by Franchisee in the City only by taking such debris to an Orange County certified/licensed landfill, State certified/licensed transfer station, State certified/licensed recycling facility or State certified/licensed materials recovery facility which is lawfully authorized to accept that specific type of solid waste material. Franchisee shall not dispose of Construction and Demolition Debris by depositing it on any land except a permitted facility, whether public or private, or in any river, stream or other waterway, or in any sanitary sewer or storm drainage system.

C. If Franchisee violates the terms in Agreement Section 7(A) and/or Section 7(B) above, Franchisee agrees that the City has the future right to direct that Construction and Demolition Debris be delivered to a permitted processing and/or disposal facility designated by City. This exercise of “flow control” by the City shall be made upon at least thirty (30) calendar days prior written notice to Franchisee, and written notice shall include the violation(s) prompting the City’s action regarding “flow control.” Failure to comply with the Recycling, Diversion, and/or Disposal requirements set forth in this Section shall be a material breach of this Agreement.

D. Franchisee shall include as a condition to its contractual agreement with its Customers a provision prohibiting disposal of Hazardous Waste in any Container.

E. Franchisee shall implement, or require a third party to implement, a load check program that includes, at a minimum, a visual check of all Containers to be emptied to protect against inclusion of Hazardous Waste and shall prepare a written record of all Hazardous Waste discovered during the process. The records shall comply with all local, State and Federal Hazardous Waste regulations, and shall be maintained for the length of the Term of the Franchise and for a minimum period of three (3) years, or for any longer period required by law, after the Extended Termination Date. The records shall be made available to the City upon request.
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F. This Agreement does not purport to grant Franchisee or City ownership over materials that Franchisee’s Customers discard for pickup by Franchisee or that Franchisee handles under this Agreement. The right to possession or ownership of those materials shall be determined in accordance with law and any agreement between Franchisee and its customers, and not as a result of this Agreement. Parties acknowledge that City has no ownership rights in Recyclable Materials or revenue from sale thereof, except as provided in this Agreement.

G. City makes no representations or warranties with respect to characterization of Construction and Demolition Debris within City. City expressly disclaims any representations and warranties, either express or implied, as to the merchantability or fitness of Construction and Demolition Debris for any particular purpose.

SECTION 8. FRANCHISEE’S APPLICATION; RECORDS; AUDITS
A. Application. Franchisee has submitted an application to City in substantially the same form as the template attached hereto as Exhibit “C” and incorporated herein by reference as a condition of entering into this Agreement. Franchisee hereby represents and warrants that all information contained in the application submitted to City, and any information submitted by Franchisee to City supplementary thereto, is true and correct and does not contain any untrue statement of a material fact nor omit a material fact that makes a statement contained therein misleading.

B. Records. Franchisee shall maintain all records relating to Franchisee’s Commercial Franchise Services provided hereunder including, but not limited to, Customer lists, billing records, accounts payable records, maps, service requests, cash receipts records, AB 939/341/1826 compliance records, tonnage reports, weight tickets and invoices from all Landfills, Processing Facilities, and Recycling Facilities utilized for Commercial Solid Waste collected within City, and all other documents and materials which reasonably relate to Franchisee's compliance with and performance of the provisions of this Agreement ("Records"), for the full Term of this Agreement and an additional period thereafter of not less than three (3) years, or any longer period required by law. Such Records shall be made available to City at Franchisee's regular place of business, but in no event outside the County of Orange. All Records shall be clearly identifiable, and Franchisee shall maintain record security sufficient to preserve records from destruction or damage from foreseeable events. Data maintained in an electronic medium shall be protected, and backed up, with a copy stored at a separate site from the original data.

C. CERCLA Defense Records. City’s ability to defend against CERCLA and related litigation is a matter of great importance. Franchisee shall maintain and preserve records establishing where Solid Waste Collected in the City was landfilled for the full Term of this Agreement and an additional period thereafter of not less than five (5) years, or any longer period required by law. At any time, including after the expiration of the Term, Franchisee shall provide copies of such records to City within three (3) business days of City’s request.
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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. 123
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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, 124
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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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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, governmental facility, or Multifamily Dwelling located within five hundred (500) feet of a school, or other educational facility between the hours of 7:30 a.m. and 9:00 a.m. or 1:00 p.m. and 3:00 p.m., Monday through Friday. The limitations in Agreement Section 11(C)(3) notwithstanding, Franchisee’s operation of Collection vehicles on any nonresidential 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. 126
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5. At Franchisee’s request, the City shall provide maps illustrating the geographic limitations placed on Franchisee’s Collection services pursuant to Agreement Section 11(C)(3) (“Maps”). City expressly disclaims any liability related to or arising from the accuracy of any Maps provided by City. City may update the Maps as needed, and Franchisee’s failure to request or secure the Maps, or any updated Maps, shall not relieve Franchisee of any obligations under this Agreement.

D. Containers. Franchisee shall provide the appropriate sized Containers to each Customer for storage of the Commercial Solid Waste and Divertible Materials Collected by Franchisee. Containers provided by Franchisee must be identified with Franchisee’s name and be in the color identified by Franchisee in Franchisee’s application.

SECTION 12. AB 341 RECYCLING PROGRAM FOR COMMERCIAL PREMISES AND

MULTIFAMILY DWELLINGS
A. Diversion Program. The Act requires all AB 341 Generators to arrange for Recyclable Materials Collection services by July 1, 2012. The Act requires all cities to provide a commercial Recyclable Materials Collection Program for AB 341 Generators on or before July 1, 2012. Franchisee acknowledges these requirements and agrees that, subject to the restrictions contained in Agreement Section 11(A), for all AB 341 Generators that contract with or pay Franchisee to haul Municipal Solid Waste and/or Divertible Materials, Franchisee shall implement a Recyclable Materials Collection Program using one or more of the following:

1. Provide Single Stream Recyclable Materials and (if applicable) Single Material Collection service on a weekly or more frequent basis.

2. Provide Collection of Recyclable Materials commingled with Municipal Solid Waste and process the Collected material at a City-approved Dirty MRF that yields Diversion results comparable to source separation. No Dirty MRF may be used for separation of AB 341 materials unless the Dirty MRF has been approved by City as meeting the standards and requirements of Public Resources Code Section 42649 and all rules, amendments and regulations promulgated in furtherance thereof.

3. If Franchisee observes that the AB 341 Generator has one (1) or more internal Programs that Divert Recyclable Materials, is self-hauling or backhauling Recyclable Materials, donating or selling Recyclable Materials to a third party, or is using a third party or other Franchisee to Collect Recyclable Materials, Franchisee shall report this to City and City, in its sole discretion, shall make a final determination as to the adequacy of the internal and/or third party Recyclable Materials Diversion Program(s). If the City finds the internal and/or third party Program(s) inadequate, Franchisee shall proceed to implement a Recyclable Materials Diversion Program to Divert all the remaining AB 127
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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:

1. Provide source separated Food Scrap Collection service on a weekly or more frequent basis.

2. If Franchisee observes that the AB 1826 Food Scrap Generator has one (1) or more internal Food Scrap Diversion Programs, is self-hauling 128
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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, 129
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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.

1. Provide Collection of Green Waste and Wood Waste co-mingled with Municipal Solid Waste and process the Collected material at a Cityapproved 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 130
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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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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 materials/Processable Municipal Solid Waste;

6. AB 341 and AB 1826 compliance information by Generators, including the total number of AB 341 and AB 1826 accounts serviced by the Franchisee, the total number of accounts that have a Recycling Program, Food Scrap Diversion Program, and/or Green Waste/Wood Waste Diversion 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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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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C. Equipment.

1. Maintenance; Records. Franchisee shall, at all times, provide such number of vehicles and such equipment as will be adequate for the Commercial Franchise Services, which it is authorized to provide under this Agreement. All vehicles utilized by Franchisee in the performance of this Agreement shall be registered with the California Department of Motor Vehicles. All vehicles must pass annual “BIT” and brake inspections and Franchisee shall provide evidence of such to the Public Works Department upon request. Upon request by the City, Franchisee shall provide records from the most recent California Highway Patrol biennial inspection of the terminal(s) responsible for the maintenance and repair of equipment used in the City. All vehicles shall be properly maintained, kept clean and in good condition and repair, shall not leak any fluids, and shall be uniformly painted. All Commercial Solid Waste and Divertible Materials Containers used in the performance of this Agreement shall be kept clean and in good repair, shall not leak any fluids, and shall be uniformly painted in the color identified by Franchisee in Franchisee’s application. All equipment required by City in the performance of this Agreement, including vehicle mirrors and the collision avoidance system, may be subject to inspection by the City upon twenty-four (24) hours’ notice by the Public Works Director. All drivers employed by Franchisee and operating equipment in the City shall be properly licensed for the class of vehicle they drive, enrolled in the 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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(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:
i. 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. Placement of Containers and equipment shall be in accordance with the standards set by the City.

8. Equipment Standards. All equipment provided by Franchisee shall be in accordance with standards set by the Public Works Department.

SECTION 19. ABANDONED CONTAINERS
A. If Franchisee abandons any Commercial Solid Waste or Divertible Materials Container within the City, the City may remove the Container and/or dispose of the contents of the Container and recover its cost from Franchisee.

B. For the purposes of this Section, “abandons” includes:
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1. Franchisee’s failure to remove the Container within the time period specified by the City Council upon termination of the Franchise pursuant to Section

12.63.140 of the Code, or any successor statute;

2. Franchisee’s failure to remove the Container within ten (10) calendar days after the expiration or termination of the Franchise granted to Franchisee, except in the case where Franchisee has been granted an extension of the Term of said Franchise or Franchisee has been granted a subsequent franchise authorizing Franchisee to Collect and transport the type or types of Commercial Solid Waste for which the Container was used pursuant to this Agreement; or

3. Franchisee’s failure to collect the Container and dispose of the contents of the Container within two (2) calendar days after the Public Works Director issues written notice to Franchisee to dispose of the contents.

4. Franchisee’s failure to replace a Container that fails to comply with the City’s aesthetic standards, as set forth in this Agreement, within five (5) calendar days of receiving written notice from the Public Works Director of non-compliance.

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). 136
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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). 137
Non-exclusive Franchise Agreement Page 36
The City Manager will hold a meeting with Franchisee no more than ten (10) business days after receiving Franchisee’s written appeal request. After the meeting, the City Manager will make a determination, in his or her sole discretion, as to whether to uphold the Default Notice, or any portion thereof, and shall issue such determination within five (5) business days of the meeting. The decision of the City Manager shall be final.

Franchisee will have thirty (30) calendar days from the date the City Manager’s determination is issued to cure the upheld Default Notice or any portion thereof.

F. Failure to Timely Cure. If Franchisee fails to timely cure a Default Notice, or any portion thereof, then the applicable liquidated damages set forth in Agreement Section 24 shall be final and conclusive and the amount(s) shall be immediately due and payable. Franchisee’s failure to timely cure three (3) Default Notices shall be a material breach of this Agreement.

G. Audit Findings. Notwithstanding anything to the contrary, if Franchisee disagrees with City’s audit findings, then Franchisee may, within ten (10) business days after service of the audit finding, appeal to the City Manager specifying the basis for its disagreement with City’s audit findings. If Franchisee fails to timely request such an appeal, then the discrepancy determinations shall be final and conclusive and the violation shall be deemed established.

H. Termination Without Right to Cure. City shall have the right of suspension or termination as a result of Franchisee’s failure to timely cure any deficiency or default as set forth above, which right is in addition to City’s right to terminate this Agreement without affording Franchisee an opportunity to cure in circumstances where Franchisee is determined to have materially breached this Agreement. Notwithstanding anything to the contrary, in the event of any material breach hereof, City shall have the right to terminate this Agreement without affording Franchisee the right to cure including, without limitation, any action, inaction or circumstance defined herein as a material breach and/or under any of the following circumstances which are hereby defined as material breaches:

1. If Franchisee conducts, or attempts to conduct, fraud upon City.

2. If Franchisee becomes insolvent, unable, or unwilling to pay its debts.

3. If Franchisee fails to materially comply with any insurance or indemnification requirement set forth in this Agreement; provided, however, that Franchisee shall have a reasonable opportunity to cure any default relating to the 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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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.

J. Continuing Obligations. Upon Agreement termination, suspension or expiration:

1. Franchisee shall have no right or authority to engage in Commercial Franchise Services in the City, subject to the provisions of Sections 49520-49524 of the Public Resources Code, or any successor statutes.

2. Franchisee shall remain liable to City for any and all Franchise Feesand Environmental Liability Fund Fees that would otherwise be payable by Franchisee, for any and all liquidated damages, late charges and/or interest assessed.

3. Franchisee shall have a continuing obligation to submit to City all reports and records required by this Agreement. Franchisee’s obligation shall survive this Agreement shall continue for such period of time as required by this Agreement or applicable law.
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4. Franchisee shall allow the Commercial Solid Waste Generators, AB 341 Generators and AB 1826 Generators served by Franchisee to arrange for Commercial Franchise Services with another Franchise Holder or Person authorized to perform such services, without penalty or liability for breach of contract on the part of the generators, for such period of time as Franchisee is not authorized to perform such services because of termination or suspension.

5. Franchisee shall have a continuing obligation to provide the indemnifications required in this Agreement. Such indemnifications include, but are not limited to, the Hazardous Materials indemnification and AB 939, AB 341, and AB 1826 indemnifications as set forth in Agreement Section 10.

SECTION 24. CITY’S REMEDIES
A. The City incurred considerable time and expense procuring this Agreement to secure an improved level and quality of Recycling and compliance with State Diversion mandates.

B. Liquidated Damages. The Parties agree the following liquidated damages schedule represents a reasonable estimate of the amount of damages, considering all the circumstances existing on the date of this Agreement, including the relationship of the sums to the range of harm to City that reasonably could be expected in anticipation that proof of actual damages would be costly or inconvenient:

Applicable
Section(s)
Failure(s)* Damages
6(A), 7(A) Comply with City-mandated Diversion
requirements within thirty (30) calendar
days of notification by City
Two hundred fifty
dollars ($250) per
business day until
compliant
6(B), 7(B) Deliver Commercial Solid Waste as
designated
Two hundred fifty
dollars ($250) per
truck delivery
8(B) Provide requested records Two hundred fifty
dollars ($250) per
business day until
completed
11(A) Provide only those Commercial
Franchise Services for which Franchisee
has applied
Two hundred fifty
dollars ($250)
11(C) Collect at unauthorized locations and/or
during unauthorized hours five (5) or
more times in a twelve (12) month period
Two hundred fifty
dollars ($250)
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11(D) Label Containers; paint vehicles and/or
Containers corporate color
Fifty dollars ($50)
per business day
until corrected
12(A), 12(C),
Exhibit E, Parts A,
B and C
Implement AB 341 Diversion Program
including Tasks 1-16 in Exhibit E, Part A
within the timeframe in Franchise
Section 12C. Comply with the
requirements of Exhibit E, Parts B and C
within ninety (90) days of the events
described in Part B, or within ninety (90)
days of a previously operating AB 341
Program malfunctioning as required by
Part C.

One thousand
dollars ($1,000) per
occurrence
13(A), 13(C),
Exhibit E, Parts A,
B and C
Implement AB 1826 Food Scrap
Diversion Program including Tasks 1-16
in Exhibit E, Part A, within the timeframe
in Franchise Section 13C. Comply with
the requirements of Exhibit E, Parts B
and C within ninety (90) days of the
events described in Part B or within
ninety (90) days of a previously
operating Food Scrap Diversion Program
malfunctioning as required by Part C.

One thousand
dollars ($1,000)
14(A), 14(C),
Exhibit E, Parts A,
B and C
Implement AB 1826 Green Waste and
Wood Waste Diversion Program
including Tasks 1-16 in Exhibit E, Part A,
within the timeframe in Franchise
Section 14C. Comply with the
requirements of Exhibit E, Parts B and C
within ninety (90) days of the events
described in Part B or within ninety (90)
days of a previously operating Green
Waste and Wood Waste Diversion
Program malfunctioning as required by
Part C.

Five hundred dollars
($500)
15(B) Implement Construction and Demolition
Diversion Program
One thousand
dollars ($1,000)
16(A), 16(B), 16(E) Submit complete and accurate monthly reports
One hundred dollars
($100) per business
day until corrected
or completed
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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
Representative; Failure of Hauler
Representative to timely respond to City
Fifty dollars ($50)
per business day
until completed
18(C) Secure or maintain vehicles or vehicle
equipment
One hundred dollars
($100) per business
day until completed
19 Remove, replace, or collect abandoned
Container(s)
Fifty dollars ($50)
per business day
until completed
*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 private or confidential information owned or controlled by the other party and such information may contain proprietary details and disclosures. All information and 142
Non-exclusive Franchise Agreement Page 41
data identified in writing as proprietary or confidential by either party (“Confidential Information”) and so acquired by the other party or its employees or agents under this Agreement or in contemplation thereof shall be and shall remain the disclosing party’s exclusive property. The recipient of Confidential Information shall use all reasonable efforts (which in any event shall not be less than the efforts the recipient takes to ensure the confidentiality of its own proprietary and other confidential information) to keep, and have its employees and agents keep, any and all Confidential Information confidential, and shall not copy, or publish or disclose it to others, nor authorize its employees, agents or anyone else to copy or disclose it to others, without the disclosing party’s written approval; nor shall the recipient make use of the Confidential Information except for the purposes of executing its obligations hereunder, and (except as provided for herein) shall return the Confidential Information and data to the first party at its request. The City’s duty to maintain confidentiality as described hereunder shall be subject to the laws of the State of California.

B. 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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Non-exclusive Franchise Agreement Page 42
To: Public Works Director
City of Newport Beach
P.O. Box 1768
100 Civic Center Dr.

Newport Beach, CA 92660
To Franchisee: __________________
__________________
__________________
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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Non-exclusive Franchise Agreement Page 43
J. Equal Opportunity Employment. Franchisee represents that it is an equal opportunity employer and it shall not discriminate against any authorized subcontractor, employee or applicant for employment because of race, religion, color, national origin, handicap, ancestry, sex or age or any other impermissible basis under law.

K. Compliance with Laws. Franchisee shall at its own cost and expense comply with all statutes, ordinances, regulations and requirements of all governmental entities, including federal, state, county or municipal, whether now in force or hereinafter enacted.

Franchisee agrees to obtain a business license from the City in accordance with the Code.

The parties hereto agree that the Franchise and this Agreement are the only authorizations to conduct Commercial Franchise Services in the City and that the issuance of a business license does not grant the Franchisee a right to conduct Commercial Franchise Services or other business in the City.

L. Conflicts of Interest. Franchisee and its employees may be subject to the provisions of the California 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]
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Non-exclusive Franchise Agreement Page 44
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed on the day and year written below.

APPROVED AS TO FORM:

CITY ATTORNEY’S OFFICE

CITY OF NEWPORT BEACH,
a California municipal corporation
Date:________________
By:______________________________
Date:________________
By:______________________________
Aaron C. Harp
City Attorney
Will O’Neill
Mayor
ATTEST:

Date:________________
FRANCHISEE:

Date:________________
By:______________________________ By:_______________________________ Leilani I. Brown
City Clerk
Date:________________
By:_______________________________
[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 146
Faithful Performance Bond Page A-1

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 147
Faithful Performance Bond Page A-2
hereby waive notice of any such change, extension of time, alterations or additions of the Agreement or to the services or to the specifications.

This Faithful Performance Bond shall be extended and maintained by the Principal in full force and effect for seven (7) years following the date Principal is granted the Franchise Agreement by City.

In the event that the Principal executed this bond as an individual, it is agreed that the death of any such Principal shall not exonerate the Surety from its obligations under this Bond.

IN WITNESS WHEREOF, this instrument has been duly executed by the Principal and Surety above named, on the _____ day of ________________, 20___. ______________________________
Name of Contractor (Principal) Authorized Signature/Title ______________________________
Name of Surety Authorized Agent Signature
______________________________
Address of Surety Print Name and Title
______________________________
Telephone
APPROVED AS TO FORM:

CITY ATTORNEY’S OFFICE
Date:__________________
By:_______________________________
Aaron C. Harp
City Attorney

NOTARY ACKNOWLEDGMENTS OF

CONTRACTOR AND SURETY MUST BE ATTACHED
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Faithful Performance Bond Page A-3

ACKNOWLEDGMENT
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 (seal)

ACKNOWLEDGMENT
State of California
County of ______________________} ss.

On _________________________, 20_____ before me, ______________________________, Notary Public, personally appeared _______________________________________________, proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signatures(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.

I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct.

WITNESS my hand and official seal.
_________________________________
Signature (seal)
A notary public or other officer completing this
certificate verifies only the identity of the individual who signed the document to which this certificate is
attached, and not the truthfulness, accuracy, or validity of that document.

A notary public or other officer completing this
certificate verifies only the identity of the individual who signed the document to which this certificate is
attached, and not the truthfulness, accuracy, or validity of that document.
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Franchise Hauler Acknowledgement Page B-1

EXHIBIT B

FRANCHISE HAULER ACKNOWLEDGEMENT
THIS FRANCHISE HAULER ACKNOWLEDGMENT is entered into as of this __ day of __________, 2026 (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 aforementioned benefits to the City, the County and the Franchise Hauler in providing for the disposal of all Franchise Waste to the Disposal System; and
WHEREAS, the City and the Franchise Hauler desire to enter into this Acknowledgment to assure that the City and the Franchise Hauler will be entitled to the benefits of the Waste Disposal Agreement and to assure conformity with the waste 150
Franchise Hauler Acknowledgement Page B-2
delivery obligations which have been agreed to by the City under the Disposal Agreement through the delivery of waste by the Franchise Hauler to the Disposal System; and 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.
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Franchise Hauler Acknowledgement Page B-3

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. 152
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EXHIBIT C

FRANCHISE APPLICATION TEMPLATE
153
Insurance Requirements Page D-1

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. 154
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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, nonowned disposal site liability, defense costs, cleanup costs, and pollution conditions that arise from or in connection with the transportation (including loading and unloading) by or on behalf of the Franchisee, of any waste or waste materials. Coverage shall be provided for both sudden and accidental and gradual and continuous pollution events with limits no less than $5,000,000 each loss and $10,000,000 in the aggregate. The policy shall not exclude any hazardous materials for which there is an exposure. If all or any portion of the pollution liability coverage is available only on a claims-made basis, then a 10-year extended reporting period shall also be purchased. The policy shall not contain any provision or exclusion (including any so-called "insured versus insured" exclusion or "cross-liability" exclusion) the effect of which would be to prevent, bar, or otherwise preclude any insured or additional insured under the policy from making a claim which would otherwise be covered by such policy on the grounds that the claim is brought by an insured or additional insured against an insured or additional insured under the policy.

4. Other Insurance Requirements. The policies are to contain, or be endorsed to contain, the following provisions:

A. Waiver of Subrogation. All insurance coverage maintained or procured pursuant to this Agreement shall be endorsed to waive subrogation against City, its City Council, boards and commissions, officers, agents, volunteers, employees, and any person or entity owning or otherwise in legal control of the property upon which Franchisee performs the Services contemplated by this Agreement or shall specifically allow Franchisee or others providing insurance evidence in compliance with these requirements to waive their right of recovery prior to a loss. Franchisee hereby waives its own right of recovery against City, and shall require similar written express waivers from each of its subcontractors.

B. Additional Insured Status. All liability policies including general liability, excess liability, pollution liability, and automobile liability, but not including professional liability (if required), shall provide or be endorsed to provide that City a its City Council, boards and commissions, officers, agents, volunteers, employees, and any person or entity owning or otherwise in legal control of the property upon which Franchisee performs the Services contemplated by this Agreement shall be included as additional insureds under such policies.

C. Primary and Non Contributory. All liability coverage shall apply on a primary basis and shall not require contribution from any insurance or self-insurance maintained by City.

D. Notice of Cancellation. All policies shall provide City with thirty (30) days notice of cancellation (except for nonpayment for which ten (10) days notice is required) or nonrenewal of coverage for each required coverage.

5. Additional Agreements Between the Parties. The parties hereby agree to the following:

A. Evidence of Insurance. Franchisee shall provide certificates of insurance to City as evidence of the insurance coverage required herein, along with a 155
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waiver of subrogation endorsement for workers’ compensation and other endorsements as specified herein for each coverage. Insurance certificates and endorsement must be approved by City’s Risk Manager prior to commencement of performance. Current certification of insurance shall be kept on file with City at all times during the term of this Agreement. The certificates and endorsements for each insurance policy shall be signed by a person authorized by that insurer to bind coverage on its behalf. At least fifteen (15) days prior to the expiration of any such policy, evidence of insurance showing that such insurance coverage has been renewed or extended shall be filed with the City. If such coverage is cancelled or reduced, Franchisee shall, within ten (10) days after receipt of written notice of such cancellation or reduction of coverage, file with the City evidence of insurance showing that the required insurance has been reinstated or has been provided through another insurance company or companies. City reserves the right to require complete, certified copies of all required insurance policies, at any time.

B. City’s Right to Revise Requirements. The City reserves the right at any time during the term of this Agreement to change the amounts and types of insurance required by giving the Franchisee sixty (60) days advance written notice of such change.

C. Right to Review Subcontracts. Franchisee agrees that upon request, all contracts with subcontractors or others with whom Franchisee enters into contracts with on behalf of City will be submitted to City for review. Failure of City to request copies of such contracts will not impose any liability on City, or its employees. Franchisee shall require and verify that all subcontractors maintain insurance meeting all the requirements stated herein, and Franchisee shall ensure that City is an additional insured on insurance required from subcontractors. For CGL coverage, subcontractors shall provide coverage with a format at least as broad as CG 20 38 04 13.

D. Enforcement of Contract Provisions. Franchisee acknowledges and agrees that any actual or alleged failure on the part of the City to inform Franchisee of non-compliance with any requirement imposes no additional obligations on the City nor does it waive any rights hereunder.

E. Requirements not Limiting. Requirements of specific coverage features or limits contained in this Section are not intended as a limitation on coverage, limits or other requirements, or a waiver of any coverage normally provided by any insurance. Specific reference to a given coverage feature is for purposes of clarification only as it pertains to a given issue and is not intended by any party or insured to be all inclusive, or to the exclusion of other coverage, or a waiver of any type.

F. Self-insured Retentions. Any self-insured retentions must be declared to and approved by City. City reserves the right to require that self-insured retentions be eliminated, lowered, or replaced by a deductible. Self-insurance will not be considered to comply with these requirements unless approved by City.

G. City Remedies for Non Compliance. If Franchisee or any subcontractor fails to provide and maintain insurance as required herein, then City shall have the right but not the obligation, to purchase such insurance, to terminate this Agreement, or to suspend Franchisee’s right to proceed until proper evidence of insurance is provided. Any amounts paid by City shall, at City’s sole option, be deducted from amounts payable to Franchisee or reimbursed by Franchisee upon demand. 156
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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. 157
Required Tasks For Implementation Of Diversion Programs Page E-1

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, selfhauling, 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 Self158 Required Tasks For Implementation Of Diversion Programs Page E-2 Certification Form, evaluate the information provided and take steps to verify the in-house program(s). City will inform the Franchisee of City’s decision regarding the adequacy of the in-house program(s).
(i) In the event City notifies the Franchisee that the in-house program(s) are inadequate, Franchisee shall comply with all the requirements contained in Sections 12, 13, 14 and in this Exhibit E to fully implement all Diversion Programs required by this Franchise. (ii) In the event City notifies the Franchisee that some, but not all, of the in-house program(s) are adequate, (a) Franchisee shall be relieved from its responsibility to implement the Diversion Programs targeting materials that are being Diverted by the City-verified in-house program(s) for a period of 12 months; and (b) Franchisee shall comply with all the requirements contained in this Exhibit E to fully implement all Diversion Programs for Recyclable Materials, Food Scraps, Green Waste and Wood Waste not adequately Diverted through the City-verified in-house program(s). At the end of twelve (12) months, Franchisee shall submit a written request to City to determine whether the Customer filed a new Self-Certification Form and whether the City has determined that any of the Customer’s inhouse program(s) are adequate. If so, Franchisee shall record this in the Exhibit E Tracking Document and shall be relieved from its responsibility to implement the Diversion Programs targeting materials that are being Diverted by the City-verified in-house program(s) for an additional period of 12 months. Franchisee shall continue to provide and maintain all Diversion Programs required by this Franchise for which there is no City-verified in-house program(s).

This process shall be repeated by Franchisee annually as long as the Customer is served by the Franchisee at the same premises. In the event a Customer ceases operation of any or all of its in-house program(s) and/or the City makes a determination that any or all of the previously City-verified in-house program(s) are no longer operating or are no longer adequate, then Franchisee shall comply with all the requirements contained in Sections 12, 13, 14 and in this Exhibit E to fully implement all Diversion Programs required by this Franchise.
(iii) In the event City notifies the Franchisee that the in-house program(s) are adequate, Franchisee shall be relieved from its responsibility to implement the Diversion Programs targeting materials that are being Diverted by the City-verified in-house program(s) for a period of 12 months. At the end of twelve (12) months, Franchisee shall submit a written request to City to determine whether the Customer filed a new Self-Certification Form and whether the City has determined that the in-house program(s) are adequate. If the City determines any or all of the in-house programs are adequate, Franchisee shall record this in the Exhibit E Tracking Document and shall be relieved from its 159
Required Tasks For Implementation Of Diversion Programs Page E-3 responsibility to implement the Diversion Programs targeting materials that are being Diverted by the City-verified in-house program(s) for an additional period of 12 months. Franchisee shall continue to provide and maintain all Diversion Programs required by this Franchise for which there is no City-verified in-house program(s).

This process shall be repeated by Franchisee annually as long as the Customer is served by the Franchisee at the same premises. In the event a Customer ceases operation of any or all of its in-house program(s) and/or the City makes a determination that any or all of the in-house program(s) are no longer adequate, then Franchisee shall comply with all the requirements contained in Sections 12, 13, 14 and in this Exhibit E to fully implement all Diversion Programs required by this Franchise.

5. If the Customer is using a landscaping company to haul away Green Waste/Wood, 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 160
Required Tasks For Implementation Of Diversion Programs Page E-4 Franchise for which there is no City-verified in-house program(s).

This process shall be repeated by Franchisee annually as long as the Customer is served by the Franchisee at the same premises. In the event a Customer ceases operation of any or all of its landscaper program(s) and/or the City makes a determination that any or all of the previously City-verified landscaper program(s) are no longer operating or are no longer adequate, then Franchisee shall comply with all the requirements contained in Section 14 and in this Exhibit E to fully implement all Diversion Programs for Green Waste and Wood Waste required by this Franchise.
(iii) In the event City notifies the Franchisee that the landscaper program(s) are adequate, Franchisee shall be relieved from its responsibility to implement the Diversion Programs targeting Green Waste and Wood Waste that are being Diverted by the City-verified landscaper program(s) for a period of twelve (12) months. At the end of twelve (12) months, Franchisee shall submit a written request to City to determine whether the Customer filed a new “Landscaper Self-Certification Form” and whether the City has determined that the landscaper program(s) are adequate. If so, Franchisee shall record this in the Exhibit E Tracking Document and shall be relieved from its responsibility to implement the Diversion Programs targeting Green Waste and Wood Waste that are being Diverted by the Cityverified 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 161
Required Tasks For Implementation Of Diversion Programs Page E-5 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 162
Required Tasks For Implementation Of Diversion Programs Page E-6 Container(s) and the Green Waste/Wood Containers and what materials are to be placed in the Municipal Solid Waste Container(s). In the case of a Food Scrap generator, Franchisee shall explain what Food Scrap materials are to be placed in the Food Scrap Container. Employee/management training shall include at least one on-site training conducted by the Franchisee for all management and all employees of Customer. If there are multiple shifts, or if management and/or employees work on different days, Franchisee shall conduct multiple trainings until all management and employees have been trained. Internal containers for the Divertible Materials are to be provided by the Customer, pursuant to the City Code.

If directed by the City, Franchisee shall provide City-approved training posters, signage, and stickers/labels for the internal Containers showing what materials are allowed in each. Franchisee shall provide training and training materials in English and in any other language requested by the Authorized Customer Representative.

13. Franchisee shall make at least two (2) follow-up site visits to confirm the Diversion Program(s) is/are operating optimally within the first two weeks after program initiation. (These site visits are in addition to the site checks to confirm Municipal Solid Waste quantities and optimization of Municipal Solid Waste service described in Step 11 above.) Franchisee shall respond to the Customer’s questions and to any complaints and shall promptly and successfully resolve all questions and complaints.

14. Within ninety (90) days after implementation of each Diversion Program at the premises of the Customer, Franchisee shall ensure that the programs are operating effectively such that the Municipal Solid Waste Container(s) at the premises contain no more than twenty percent (20%) Recyclable Materials and Food Scraps (combined), and the Recyclable Materials Container(s) contain no more than ten percent (10%) Municipal Solid 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 163
Required Tasks For Implementation Of Diversion Programs Page E-7 successfully Diverting all targeted Material(s) and/or is not meeting the Contamination performance standards in Step 14, the non-compliant Customer shall be reported to City on the Exhibit E Tracking Document in the section labeled “Non-Compliant Customers Referred to City for Compliance Action Under Newport Beach Municipal Code”. City will contact the Customer concerning the requirements of the Act and the City Code. This may include warnings to the Customer, Notice of Violation, fines and/or other enforcement actions. If the Authorized Customer Representative agrees to take all necessary steps to fully implement the Diversion Program(s) as required by the Act and the City Code, City will refer the Customer back to the Franchisee for additional on-site work, training of the Customer’s management and employees, troubleshooting and all Steps in this Exhibit E required to achieve full implementation of the program(s). In such event, the Customer shall be removed from the list of “Non-Compliant Customers Referred to City for Compliance Action Under Newport Beach Municipal Code” in the Exhibit E Tracking Document. If the Authorized Customer Representative continues to refuse to take the steps necessary to fully implement one or more of the required Diversion Programs after City action, the Customer will remain on the Non-Compliant Customer list. In the City’s sole discretion, upon receipt of written notice by the City, the Franchisee may be relieved of the responsibility to implement the Diversion Program(s) specified by City, at that non-compliant Customer’s premises.

B. In the event there is a change of ownership, management or other change resulting in cessation of a Diversion Program(s) or causing any one of the steps herein to not be fully complied with at all times, Franchisee shall repeat all steps necessary to establish or re-establish a fully implemented Diversion Program. Franchisee shall complete re-establishment of a fully implemented 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
164
Required Tasks For Implementation Of Diversion Programs Page E-8 • Dates of all such contacts
• Photos from the site visits and assessments conducted • Photos of any internal Diversion Programs being conducted by the Customer
• Customer objections
• Log of contamination incidents
• Franchisee staff/representative(s) making the contacts • Franchisee lead staff person responsible for each Customer’s Diversion Program implementation.

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 165
Required Tasks For Implementation Of Diversion Programs Page E-9 the Customer applied for, and was granted a new waiver for another twelve (12) month (or shorter) period. If so, Franchisee shall record this in the Exhibit E Tracking Document and shall be relieved of its duty to provide the Diversion Program(s) that are specified in the new waiver granted by the City for the period the new waiver is effective.

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. 166
Construction and Demolition Debris Diversion Program Page F-1

EXHIBIT F

CONSTRUCTION AND DEMOLITION DEBRIS DIVERSION PROGRAM
Franchisee shall provide all services necessary to support Customer compliance with, and City’s enforcement of, the California Green Building Standards Code requirements for Diversion of Construction and Demolition Debris.

Franchisee’s Construction and Demolition Debris Diversion Program shall include, but not be limited to:
(A) Informing all Customers requesting Construction and Demolition Debris hauling services of the requirements of the California Green Building Standards Code; (B) Providing Containers and/or Bins, Roll Off Boxes, and Compactors as needed for storage and transport of single-material Construction and Demolition Debris, and commingled Construction and Demolition Debris;
(C) Providing Collection service for all Containers on a timely basis, which, at a minimum, complies with Section 11 of the Agreement; and
(D) Working and coordinating with Customer, or customer’s recycling coordinator, to ensure a smooth and effective Diversion program and the Diversion of a minimum of sixtyfive percent (65%) of all Construction and Demolition Debris generated at each of Customer’s job sites (or a higher percentage Diversion if required by the California Green Building Standards Code) for which Franchisee is providing Construction and Demolition Debris Collection service.

Franchisee shall inform Customers utilizing Containers and/or Bins and Roll Off Boxes on a temporary basis, that materials being generated must be Diverted pursuant to the requirements of City Code and the California Green Building Standards Code. 167

NEWPORT BEACH
City Council Staff Report

COUNCIL STAFF REPORT

CITY OF
October 13, 2026
Agenda Item No. 3
ABSTRACT:

The month of October is traditionally considered Breast Cancer Awareness Month; the campaign serves to enhance public awareness of breast cancer, from its effects on individuals and their families, to advances in research and early detection and treatment.

Hoag Memorial Hospital Presbyterian (Hoag) partnered with the City of Newport Beach (City) in 2025 to wrap a City ambulance in the pink color synonymous with “Pinktober” and is donating another ambulance wrap for October 2026. The wrap includes Hoag’s logo and pink ribbons alongside the Newport Beach Fire Department’s (NBFD’s) seal.

Use of the City’s official seal (and by extension, the NBFD’s seal and logo) outside of official City use requires City Council approval via resolution.

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. 2026-88, A Resolution of the City Council of the City of Newport Beach, California, Authorizing the Use of the City’s Official Seal as Part of a Collaboration with Hoag Hospital to Wrap a City Fire Department Ambulance with Pinktober Wrap in Support of Breast Cancer Awareness Month.

DISCUSSION:

The American Cancer Society started National Breast Cancer Awareness Month in October 1985 as a partnership with the pharmaceutical division of a large corporation to promote mammograms as a means of detecting breast cancer. The movement grew into an internationally recognized health campaign, commonly known as “Pinktober,” organized by various breast cancer charities and other cancer organizations.

TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL
FROM: Jeff Boyles, Fire Chief - 949-644-3101, [email protected] PREPARED BY: Raymund Reyes, Administrative Manager - 949-644-3352, [email protected]
TITLE: Resolution No. 2026-88, Authorizing the Use of the City’s Official Seal as Part of a Collaboration with Hoag Hospital to Wrap a City Fire Department Ambulance with Pinktober Wrap in Support of Breast Cancer Awareness Month
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Resolution No. 2026-88, Authorizing the Use of the City’s Official Seal as Part of a Collaboration with Hoag Hospital to Wrap a City Fire Department Ambulance with Pinktober Wrap in Support of Breast Cancer Awareness Month October 13, 2026