HomeMy WebLinkAbout2023-14 - Granting a Non-Exclusive Franchise Agreement for Commercial Solid Waste and Divertible Materials Handling Services Within the City of Newport BeachORDINANCE NO. 2023-14
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY
OF NEWPORT BEACH, CALIFORNIA, GRANTING A
NON-EXCLUSIVE FRANCHISE AGREEMENT FOR
COMMERCIAL SOLID WASTE AND DIVERTIBLE
MATERIALS HANDLING SERVICES WITHIN THE CITY
OF NEWPORT BEACH
WHEREAS, the City Council of the City of Newport Beach ("City Council") 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
("Commercial Solid Waste") generated within the City of Newport Beach ("City") is a
vital public service;
WHEREAS, the City Council further finds and determines 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 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, in 2017, the City Council adopted a model non-exclusive
commercial solid waste franchise agreement for private solid waste haulers and,
thereafter, entered into franchise agreements with a number of commercial solid waste
franchise haulers ("2017 Franchise"), effective through November 8, 2024;
WHEREAS, although the 2017 Franchise did not expire until November 8, 2024,
on October 22, 2019, the City Council approved a new model franchise agreement in
compliance with Assembly Bill 1826 and Assembly Bill 341 ("2020 Franchise"), that
expires in the year 2027;
Ordinance No. 2023-14
Page 2 of 6
WHEREAS, the City has since received an application from an existing
applicant that wishes to perform work under the 2020 Franchise;
WHEREAS, pursuant to Article XIII 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,
WHEREAS, pursuant to City Charter Section 1301 (Resolution of Intention.
Notice and Public Hearing), on August 22, 2023, the City Council adopted Resolution
No. 2023-46, providing notice of a public hearing to be held on September 12, 2023, to
grant the 2020 Franchise to the franchise hauler identified in the resolution;
WHEREAS, the City Council held a public hearing on September 12, 2023, in the
City Council Chambers located at 100 Civic Center Drive, Newport Beach, California. A
notice of time, place and purpose of the public hearing was given in accordance with
California Government Code Section 54950 et seq. ("Ralph M. Brown Act") and Section
1301 of the City Charter. Evidence, both written and oral, was presented to, and
considered by, the City Council at this public hearing;
WHEREAS, pursuant to Section 12.63.080 (Required Findings) of the NBMC,
the City Council finds, on the basis of the application, information, materials, and
testimony submitted, that:
• The application submitted by Franchisee (defined herein) complies with
Chapter 12.63 (Solid Waste Management) of the NBMC;
• The Franchisee has not within the past three years: (1) had a franchise
terminated by the City; and/or (2) operated a solid waste enterprise within
the City without a franchise;
• Awarding the 2020 Franchise is in accordance with the objectives of
Chapter 12.63 (Solid Waste Management) of the NBMC;
Ordinance No. 2023-14
Page 3 of 6
• Granting the 2020 Franchise to Franchisee will not, under the
circumstances of the particular case, materially affect adversely the health
or safety of persons residing or working in the City or be materially
detrimental to the public welfare or injurious to property or public
improvements; and
• Franchisee has demonstrated sufficient experience, equipment and a
recycling plan and diversion program to safely comply with the
requirements of the 2020 Franchise; and
WHEREAS, having considered all oral and documentary evidence presented at
the public hearing, the City Council determines that the granting of the 2020 Franchise
to Franchisee is in the public interest.
NOW THEREFORE, the City Council of the City of Newport Beach ordains as
follows:
Section 1: There is hereby granted to Robert's Waste & Recycling
("Franchisee"), which currently holds a 2017 Franchise and is presently licensed and
permitted to conduct business within the City, the 2020 Franchise attached hereto as
Exhibit 'A" and incorporated into this ordinance by reference:
With the exception of the continuing obligations set forth in Section 23(J)
(Continuing Obligations) of the 2017 Franchise, the 2017 Franchise is abandoned at
such time the 2020 Franchise is granted pursuant to Section 1303 (Grant to be in Lieu
of all Other Franchises) of the City Charter which provides that the acceptance of a
franchise shall be in lieu of all other franchises granted by the City.
Section 2: Franchisee's right to use City's public streets, ways, alleys and
places for the purposes set forth in this ordinance, is not exclusive and the City reserves
the right to grant a similar use of public streets, ways, alleys and places to any person at
any time from the effective date of this ordinance until the expiration of the 2020
Franchise on October 7, 2027.
Ordinance No. 2023-14
Page 4 of 6
Section 3: Franchisee shall comply with and shall be bound by all terms,
provisions and conditions contained in the City Charter and the NBMC including, but not
limited to, Chapters 6.04 (Garbage, Refuse and Cuttings), 6.06 (State Mandated
Municipal Solid Waste Diversion Programs), and 12.63 (Solid Waste Management),
Resolution 2023-46, this ordinance, and the 2020 Franchise attached hereto as Exhibit
A.
Section 4: The 2020 Franchise granted under this ordinance shall take effect
on October 27, 2023, and shall expire October 7, 2027, unless terminated earlier
pursuant to the terms of the agreement. Notwithstanding the effective date above, the
2020 Franchise granted by this ordinance shall not become effective unless and until
the Franchisee files written acceptance of the 2020 Franchise with the City Clerk and
delivers to the City all bonds and insurance policies required to be furnished in
accordance with the requirements of Chapter 12.63 of the NBMC and the 2020
Franchise. The written acceptance shall be in form and substance as prescribed by the
City Attorney and shall operate as an acceptance of each and every term, condition and
limitation contained in this ordinance, the 2020 Franchise, Article XIII (Franchises) of the
City Charter, Resolution No. 2023-46, and Chapter 12.63 (Solid Waste Management) of
the NBMC. A Franchisee shall file written acceptance of the 2020 Franchise no later
than ten days after the adoption of this ordinance.
Section 5: During the term of the 2020 Franchise, Franchisee shall pay to City
franchise fees for the privilege of providing Commercial Solid Waste and Divertible
Materials Handling Services in the City of Newport Beach and use of public streets,
ways, alleys and places for such purposes. Franchise fee payments shall be paid
quarterly and shall be computed and paid on the basis of paid receipts received by the
Franchisee for all Commercial Solid Waste and Divertible Materials handling Services
provided by the Franchisee within the City. Franchise fees shall total sixteen percent
(16%) of Franchisee's gross receipts as follows:
a) Franchisee shall pay to the City ten and one-half percent (10.5%) of the
Franchisee's gross receipts, of which one-half of one percent (0.5%) shall be
attributable for the preparation, adoption, and implementation of an integrated waste
management plan consistent with the City's Source Reduction and Recycling Element;
and
b) Franchisee shall pay to the City Environmental Liability Fund five and one-
half (5.5%) of Franchisee's gross receipts for the City to, among other things, take
reasonable actions to obtain protection and indemnification from environmental liability
Ordinance No. 2023-14
Page 5 of 6
associated with the Franchisee's operations in the City as set forth in the 2020
Franchise.
Section 6: The City Council authorizes the Mayor and City Clerk to execute
the attached 2020 Franchise in substantially the same form as the attached.
Section 7: The recitals provided in this ordinance are true and correct and are
incorporated into the substantive portion of this ordinance.
Section 8: If any section, subsection, sentence, clause or phrase of this
ordinance is for any reason held to be invalid or unconstitutional, such decision shall not
affect the validity or constitutionality of the remaining portions of this ordinance. The
City Council hereby declares that it would have passed this ordinance and each section,
subsection, sentence, clause or phrase hereof, irrespective of the fact that any one or
more sections, subsections, sentences, clauses or phrases be declared invalid or
unconstitutional.
Section 9: The City Council of the City of Newport Beach finds that this
ordinance is not a project subject to the California Environmental Quality Act ("CEQA")
in accordance with Sections 15060(c)(2), 15060(c)(3), 15061(b)(3) and 15308 of the
California Code of Regulations Title 14, Division 6, Chapter 3. The City Council further
finds that this ordinance is categorically exempt under Sections 15301 and 15308,
which exempts "existing operations and facilities" and "actions by regulatory agencies
for protection of the environment." Application of Sections 15301 and 15308 is
appropriate because neither this ordinance nor the 2020 Franchise changes or expands
existing solid waste operations and facilities within the City. This ordinance is also
consistent with the goals of California State Assembly Bills 939, 341, and 1826, The
California Solid Waste Management Act, CALGreen, as well as the objectives of the
City's Source Reduction and Recycling Element.
Section 10: The Mayor shall sign and the City Clerk shall attest to the passage
of this ordinance. The City Clerk shall cause the ordinance, or a summary thereof, to be
published pursuant to City Charter Section 414. This ordinance shall be effective thirty
calendar days after its adoption.
Ordinance No. 2023-14
Page 6 of 6
This ordinance was introduced at a regular meeting of the City Council of the City
of Newport Beach held on the 12th day of September, 2023, and adopted on the 26th
day of September, 2023, by the following vote, to -wit:
AYES: Mayor Blom, Mayor Pro
Member Grant, Council
Council Member Weigand
NAYS:
ABSENT:
ATTEST:
..�
APPROVED AS TO FORM:
CITY A TORNEY'S OFFICE
7t� — C
AAR N C. HARP, CITY ATTORNEY
Tern O'Neill, Council Member Avery, Council
Member Kleiman, Council Member Stapleton,
Attachment: Exhibit A - Agreement Template for 2020 Non -Exclusive Agreement
for Commercial Solid Waste and Divertible Materials
Handling Services
STATE OF CALIFORNIA }
COUNTY OF ORANGE } ss.
CITY OF NEWPORT BEACH I
I, Leilani I. Brown, City Clerk of the City of Newport Beach, California, do hereby certify that the
whole number of members of the City Council is seven; that the foregoing ordinance, being Ordinance
No. 2023-14 was duly introduced on the 12th day of September, 2023, at a regular meeting, and adopted
by the City Council at a regular meeting duly held on the 26th day of September, 2023, and that the same
was so passed and adopted by the following vote, to wit:
AYES: Mayor Noah Blom, Mayor Pro Tern Will O'Neill, Councilmember Brad Avery,
Councilmember Robyn Grant, Councilmember Lauren Kleiman, Councilmember
Joe Stapleton, Councilmember Erik Weigand
NAYS: None
IN WITNESS WHEREOF, I have hereunto subscribed my name and affixed the official seal of said
City this 27th day of September, 2023.
Leilani I. row AAA
City Clerk
City of Newport Beach, California
CERTIFICATE OF PUBLICATION
STATE OF CALIFORNIA }
COUNTY OF ORANGE } ss.
CITY OF NEWPORT BEACH }
I, LEILANI I. BROWN, City Clerk of the City of Newport Beach, California, do hereby certify that
Ordinance No. 2023-14 has been duly and regularly published according to law and the order of the City
Council of said City and that same was so published in The Daily Pilot, a newspaper of general circulation
on the following dates:
Introduced Ordinance: September 16, 2023
Adopted Ordinance: September 30, 2023
In witness whereof, I have hereunto subscribed my name this 41�-
day of October, 2023.
Leilani I. Brown, M C
City Clerk
City of Newport Beach, California