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HomeMy WebLinkAbout2008-13 - Granting a Non-exclusive Solid Waste Franchise to California Waste Services, LLC to Provide Solid Waste Collection Services Upon the City Streets and Within the City of Newport Beach.ORDINANCE NO. 2008 -13 AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF NEWPORT BEACH GRANTING A NON - EXCLUSIVE SOLID WASTE FRANCHISE TO CALIFORNIA WASTE SERVICES, LLC TO PROVIDE SOLID WASTE COLLECTION SERVICES UPON THE CITY STREETS AND WITHIN THE CITY OF NEWPORT BEACH The City Council of the City of Newport Beach does ordain as follows: SECTION 1: Findings A. Article XIII of the City Charter and Sections 49500 through 49523 of the Public Resources Code authorize the City to enter into non - exclusive franchise agreements for commercial solid waste handling services with private solid waste enterprises. B. The City Charter and Chapter 12.63 establish requirements and procedures to grant a franchise to provide solid waste handling services within the City of Newport Beach. C. In compliance with the City Charter a duly noticed public hearing was held on July 22, 2008, to consider the granting of a franchise to California Waste Services, LLC D. Having considered all oral and documentary evidence presented at the public hearing, the City Council has determined that the granting of a non - exclusive franchise is in the public interest. SECTION 2: Definitions All words, terms, phrases in this Ordinance shall have the meanings set forth in Section 12.63.020 of Chapter 12.63 of the Newport Beach Municipal Code. SECTION 3: Franchise Agreements A. Grant of Franchises There is hereby granted to the enterprise listed below (hereinafter, "Franchisee ") a non - exclusive franchise to operate, maintain, and provide solid waste handling services along, across and over the public streets, alleys, public ways and public places dedicated for public use in the City: (a) California Waste Services, LLC B. Non - exclusive Grant The right to use City streets, alleys, public ways and places for the purposes set forth in this Ordinance, shall not be exclusive and the City reserves the right to grant a similar use of streets, alleys, public ways and places to any person at any time during the term of this franchise. C. Term of Franchises The term of the franchise per Section 2 of the Franchise Agreement ( "Agreement ") attached hereto as Exhibit A, Commercial Solid Waste Collection Franchise Agreement between the City of Newport Beach and California Waste Services, LLC is hereby adopted, approved and incorporated into this Ordinance by reference, shall commence at 12:01 a.m., on August 21, 2008 and expire on March 1, 2017. The franchise shall take effect on the date specified above provided that the grantee has filed written notice of acceptance in accordance with the requirement of Section 4 of this Ordinance. D. Franchise Fees (1) During the term of the Agreement, Franchisee shall pay to City franchise fees for the privilege of providing commercial solid waste handling services in the City of Newport Beach and use of public streets, right of ways, and places for such purposes. Fees shall be in the following amounts: Franchisee shall pay to the City 10.5% (ten and one -half percent) of the Franchisee's gross receipts. 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 solid waste handling services provided by the Franchisee within the City. One -half of one percent (0.5 %) of the franchise fee shall be attributable to the maintenance and implementation of the City s Source Reduction and Recycling Element (SRRE), and shall be separately accounted for, and used only for the costs stated in Public Revenue Code Section 41901 or any successor provisions. (2) Franchisee shall pay to the City Environmental Liability Fund, on a quarterly basis, 5.5% of gross receipts for all commercial solid waste handling services provided by the Franchisee in the City. Payment shall be made concurrently with the payment of the franchise fee and the filing of reports specked in Section 4 and Section 6 of the Agreements. E. Inclusion of Franchise Documents Franchisee shall comply with and shall be bound by all of the terms, provisions and conditions contained in the City Charter, this Ordinance, Chapter 12.63 of the Newport Beach Municipal Code and the Franchise Agreement. SECTION 4: Effective Date This Ordinance shall become effective 30 days from and after the date of its adoption; provided, however, franchises granted by this Ordinance shall not become effective unless and until the grantee files written acceptance of the 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 Newport Beach Municipal Code and the Franchise Agreement. 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 Franchise Agreement, Article XIII of the City Charter, and Chapter 12.63 of the Newport Beach Municipal Code. The grantee shall file written acceptance of the franchise no later than ten (10) days after the adoption of this Ordinance. SECTION 5: CEQA Exemption The City Council of the City of Newport Beach finds that this Ordinance is categorically exempt under the California Code of Regulations Section 15301 and 15308 defined as "existing operations and facilities" and as "actions by regulatory agencies for protection of the environment' respectively. Use of the above exemption classifications are appropriate because this Ordinance does not change nor expand existing solid waste operations and facilities within the City. The Ordinance is also consistent with the goals of California State Assembly Bill 939, The California Solid Waste Management Act as well as the objectives of the City's Source Reduction and Recycling Element (SRRE). The City Manager is authorized to execute and the City Clerk to file a Notice of Exemption with the Orange County Clerk. SECTION 6: Severability 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, clause or phrase thereof, irrespective of the fact that any one or more sections, subsections, sentences, clauses, or phrases be declared unconstitutional. SECTION 7: Adoption of Ordinance The Mayor shall sign and the City Clerk shall attest to the passage of this Ordinance. The City Clerk shall cause the same to be published once in the official newspaper within fifteen (15) days after its adoption. This Ordinance was introduced at a regular meeting of the City Council of the City of Newport Beach, held on the 24th day of June 2008, and adopted on the 22nd day of July 2008 by the following vote to wit: AYES, COUNCIL MEMBERS Henn, Rosansky, Curry, Webb, Daigle, Gardner, Mayor Selich NOES, COUNCIL MEMBERS None ABSTAINED, COUNCIL MEMBERS None ABSENT, COUNCIL MEMBERS ATTEST: None MAYOR CITY CLERK • COMMERCIAL SOLID WASTE COLLECTION NONEXCLUSIVE FRANCHISE AGREEMENT BETWEEN THE CITY OF NEWPORT BEACH AND CALIFORNIA WASTE SERVICES, LLC This Nonexclusive Franchise Agreement for Commercial Solid Waste Handling Services ( "Agreement ") is entered into this,a, i "" aoo8 ( "Effective Date ") by and between the CITY OF NEWPORT BEACH, a municipal corporation and Charter City organized and existing under the laws of the State of California ( "City"), and California Waste Services, LLC, a California Corporation whose address is 621 W. 152nd Street, Gardena, CA 90247 ( "Franchisee ") and is made with reference to the following: RF,CITAI,S This Agreement is entered into on the basis of the following facts: A. Franchisee has provided or is capable of providing commercial solid waste collection services in the City. B. Pursuant to Article XIII of the City Charter, Chapter 12.63 of the City of Newport Beach Municipal Code ( "Code "), and Sections 49300 and 4950049523 of the Public Resources Code, the City is authorized to enter into nonexclusive franchise agreements for commercial solid waste handling services. C. Pursuant to this Agreement, City desires to authorize Franchisee to provide nonexclusive commercial solid waste handling services within the City. Franchisee shall furnish all personnel, equipment, and supplies necessary to collect, transport, or otherwise remove and dispose of solid waste and recyclable materials from commercial, institutional, or industrial premises within the City. D. The City Council has determined that the grant of a nonexclusive franchise is in the public interest. NOW, THEREFORE, CITY AND FRANCHISEE DO HEREBY AGREE AS FOLLOWS: SECTION 1. GRANT OF FRANCHISE A. By Ordinance No. 2008- L, City has granted to Franchisee a nonexclusive franchise authorizing Franchisee to provide commercial solid waste handling services for solid waste kept, accumulated, or generated in the City of Newport Beach and to use the public streets and public right -of -ways for such purpose ( "Franchise "). Franchisee acknowledges that the Franchise is not exclusive and that the Franchise is subject to the provisions of Article XIII of the City Charter, Ordinance No. 2008 -la, Chapter 12.63 of the Code, 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 conduct of commercial solid waste handling services in the City arising under and pursuant to any prior franchise issued to Franchisee shall be deemed to be • terminated and of no further force or effect. SECTION 2. TERM OF FRANCHISE The term of this Agreement shall commence on the Effective Date, and shall terminate on the I st day of March, 2017 ( "Termination Date "), unless terminated earlier as set forth herein ( "Term "). SECTION 3. DEFINITIONS Unless otherwise defined herein, or if the use or context clearly requires a different definition, all words, terms and phrases in this Agreement and the derivations thereof shall have the meanings set forth in Section 12.63.020 of the Code. SECTION 4. FRANCHISE FEES A. During the term of the Franchise, Franchisee shall pay to City franchise fees for the privilege of providing commercial solid waste handling services in the City of Newport Beach and for the use of public streets, right -of -ways and places for such purposes. The franchise fee that Franchisee shall pay to the City shall be ten and a half percent (10.5 %) of the gross receipts for all commercial solid waste handling services provided by the Franchisee in the �i City of Newport Beach ( "Franchise Fees "). One half percent (.5 %) of the Franchise Fee shall be �J attributable to the maintenance and implementation of the City's Source Reduction and Recycling Element "SRRE," and shall he separately accounted for, and used only for the costs stated in Public Resources Code Section 41901 or any successor provision. B Franchise Fees shall be paid quarterly on forms prescribed by the Administrative Services Director. C. Franchisee shall pay all required Franchise Fees to: City of Newport Beach Attn: Administrative Services Director 3300 Newport Boulevard Newport Beach, CA 92658 D. Franchise Fees shall be due and payable on the thirtieth (30th) day of the month following the end of each quarter. Because the Effective Date for this Agreement is starting in the middle of a quarter, the first payment of the Franchise Fees due and payable to the City from the Effective Date to the end of the first quarter (i.e. June 30, 2008) will be due and payable on the thirtieth (31 ") day of July 2008. E. The parties hereto agree that Franchisee's failure to make Franchise FCC and Environmental Liability Fund Fee, as set forth in Section 8 (hereinafter the Franchise Fee and E Environmental Liability Fund Fee shall collectively be referred to as "Fee(s) "), payments within the time allowed will result in damages being sustained by City. Such damages are, and will continue to be, impracticable and extremely difficult to determine. If Fees are not paid by • Franchisee when due then in addition to the Fees, Franchisee shall pay a late charge in an amount equal to ten percent (10 %) of the amount of the Fee that was not timely paid by Franchisee. If Franchisee fails to pay delinquent Fees within thirty (30) days of the date due, Franchisee shall pay a second (2'j) late charge in an amount equal ten percent (10 %) on both the amount of the Fee outstanding and the first late charge. The second (2"d) late charge shall be in addition to the first (1") late charge. Execution of this Agreement shall constitute agreement by the parties that the late charges set forth in this subsection is the minimum value of the costs and actual damages caused by the failure of the Franchisee to pay the Fees within the allotted time. Such sum is liquidated damages and shall not be construed as a penalty. In addition to the late charges imposed on Franchisee for failing to pay Fees in accordance with this Agreement, Franchisee shall pay interest on the amount of Fees and late charges due and owing at the rate of one and one -half percent (1 %: %) per month for each month or portion of a month that the Fees and late charges remain unpaid. F. 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 Administrative Services Director on a form provided by the Director. If proof of overpayment is satisfactory to the Director, the 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 Administrative Services Director in writing. G. Each Franchise Fee payment shall be accompanied by a written statement described in Section 12.63.090 of the Code on a form provided by the Administrative Services 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. H. 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. CASH DEPOSIT Franchisee shall, prior to the placement of any commercial solid waste container on public property, provide City with a cash deposit in the sum of Five Thousand Dollars (55,000.00) to ensure compliance with the duties and obligations imposed by the provisions of the Code, regulations adopted by the City Manager or his designee and this Agreement. 3 SECTION 6. DISPOSAL OF SOLID WASTE A. Franchisee shall comply with all recycling and diversion requirements imposed by • law, ordinance, or regulation on the City and/or Franchisee. On a quarterly basis Franchisee shall divert solid waste collected from landfills as follows: Year l: fifty percent (50 %); Year 2: fifty - one percent (5) %); Year 3: fifty -two percent (52 %); Year 4: fifty -three percent (53 %); Year 5: fifty -four percent (54 %); Years 6 -10: fifty -five percent (55 %). In no event shall Franchisee deposit more solid waste at any landfill during any calendar quarter than the required diversion rate mandated by the City. In the event new or additional diversion requirements are imposed by law, ordinance or regulation on City and /or Franchisee, the City shall have the right to require Franchisee to divert additional solid waste from landfills by providing Franchisee with ten (10) days written notice of the new diversion requirements. Upon request of the General Services Director, Franchisee shall provide all documents and information requested by the General Services Director to prove that Franchisee has complied with this subsection, any applicable law, ordinance, regulation, or condition related to recycling and diversion of solid waste. B. Franchisee shall dispose of solid waste collected or transported by Franchisee only by taking such solid waste to a 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 solid 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 center, or other solid waste disposal facility C. All solid waste, in addition to recyclables, collected by Franchisee shall become the property of Franchisee upon placement by the customer for collection. If Franchisee violates the terms in Section 6(A) and Section 6(B) above, Franchisee agrees that the City has the future right to direct that solid waste be delivered to a permitted disposal facility designated by City. This exercise of "flow control" by the City shall be made upon at least 30 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 requirements and delivery/disposal of materials in accordance to the designated certifiexMicensed facility 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 of Franchisees vehicles or disposal bins/containers, and other equipment. E. 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, shall be maintained for the length of the term of the Franchise, and shall be made available to the City upon request. 11 SECTION 7. REPORTS A. Franchisee shall submit to City monthly reports stating the total amount (in tons) • of solid waste which Franchisee collected in the City of Newport Beach during the reportable month; the total weight (in tons) of solid waste disposed of by Franchisee at landfills and transfer stations which Franchisee collected in the City of Newport Beach during the reportable month; the total weight and the weight by material category (in tons) of solid waste disposed of by Franchisee at recycling and materials recovery facilities during the reportable month which Franchisee collected in the City of Newport Beach; the name and location of all solid waste and recycling facilities where City of Newport Beach materials were delivered; such other tonnage or other information as requested by the General Services Director including weigh tickets, recycling records; and any complaints received by the Franchisee. Such monthly reports shall be prepared on such form as required by the General Services Director. Each monthly report shall be submitted on or before the 15th day of the month following the end of the month (i.e. report due April 15 for first month after the Effective Date) and submitted to: General Services Director City of Newport Beach 3300 Newport Blvd. Newport Beach, CA 92663 B. If the report required under Subsection A is not filed by the due date specified above, the report shall be deemed delinquent. If the report remains delinquent for more than fifteen (15) days, Franchisee shall pay to City a delinquent report charge in the amount of One Hundred Dollars ($100). If the report remains delinquent for more than forty -five (45) days, Franchisee shall pay to City a delinquent report charge in the amount of Five Hundred Dollars ($500). Such delinquent report charges shall be in addition to any Franchise Fees or other charges payable by Franchisee under this Agreement. C. Franchisee shall comply with all recycling and diversion requirements imposed by law, ordinance, or regulation on the City. Monthly reports stating the total amount (in tons) of solid waste which Franchisee landfilled, recycled and collected should accurately reflect the diversion rate required by the City (Year 1- 50 %, Year 2- 51 %, Year 3- 52 %, Year 4- 53 %, Year 5- 54 %, Years 6 -10- 55 %). At the end of each quarter, monthly reports will be evaluated for compliance with City diversion requirements. Failure to comply with the recycling and diversion requirements shall be a material breach of this Agreement. SECTION 8. ENVIRONMENTAL LIABILITY FUND FEE A. City and Franchisee acknowledge the potential liability which can result from commercial solid waste handling services under Federal and State environmental laws. City intends to take reasonable actions to obtain protection and indemnification against future environmental liability for solid waste generated within the City of Newport Beach and the activities of Franchisee under this Agreement for handling such solid waste. To provide protection and indemnification to City for Franchisee's solid waste handling activities in the City of Newport Beach, Franchisee agrees to collect from its customers a fee for payment into an Environmental Liability Fund which shall be a separate Fund established and maintained by City. 5 The Fund shall be used to purchase insurance which will insure the City against environmental liability which may be imposed upon City as a result of Franchisee's activities under this Franchise and/or shall be used to pay environmental liability costs and expenses arising from or ® related in any way to commercial solid waste handling services. The Fund shall not be commingled with or included in the City's General Fund. B. The fee that Franchisee shall pay to the City Environmental Liability Fund shall be five and a half percent (5.5 %) of the gross receipts for all commercial solid waste handling services provided by the Franchisee in the City of Newport Beach ( "Environmental Liability Fund Fee(s) "). Payment of the Environmental Liability Fund Fee shall be made concurrently with the payment of the Franchise Fees specified in Section 4 of this Agreement. Franchisee agrees to pay late charges and interest as provided in Section 4(E) of this Agreement if Franchisee fails to pay the Environmental Liability Fund Fee within the time frames set forth herein. C. Compliance with this obligation shall not limit Franchisee's indemnification as set forth in Section 11, however, the indemnification provisions of I I(C) shall be secondary to the Fund established by this Section or any insurance purchased with the funds provided. SECTION 9. FRANCHISEE'S RECORDS A. Franchisee shall keep and maintain books of account, income statements, tonnage reports and supporting documents and all other documents that relate in any way to business 1 transactions conducted by Franchisee in connection with the commercial solid waste handling services of Franchisee under this Agreement during the Tern of this Agreement and for a minimum period of three (3) years, or for any longer period required by law, after the Termination Date. Such records shall be kept at Franchisee's place of business and shall be clearly identifiable B. Franchisee shall allow a representative of City to examine, audit and make transcripts or copies of the books of account, income statements, tonnage reports and supporting documents, and all other documents that relate in any way to business transactions conducted by Franchisee in connection with the commercial solid waste handling services of Franchisee under this Agreement at Franchisee's place of business during normal business hours within three (3) working days of the City Manager, or his designees request or demand to inspect and /or audit these records. "rhe purpose of such inspection and /or audit shall be for verification of the Fees paid by Franchisee under this Agreement, and the accuracy thereof, and for verification of the amounts of solid waste reported by Franchisee pursuant to this Agreement. Franchisee's books of account, income statements, tonnage reports and other documents accessed by City shall be kept confidential unless these documents are deemed necessary by City to enforce the terns of this Agreement or are required to be produced pursuant to any applicable law. C. The parties agree that Franchisee's failure to provide its records in accordance with City's request to examine, audit and make transcripts or copies of the books of account, income statements, tonnage reports and supporting documents in accordance with Subsection B above, shall be considered a material breach of this Agreement and will result in damages being 6 sustained by City. Such damages are, and will continue to be, impracticable and extremely difficult to determine. The parties agree that if Franchisee fails to provide its records in accordance with Subsection B above, the City may, in its discretion terminate this Agreement • and/or charge a late charge in the amount of Two Hundred Fifty and No /100 Dollars ($250.00) for each working day that Franchisee does not provide said records. Execution of this Agreement shall constitute agreement by the parties that the late charge set forth in this subsection is the minimum value of the costs and actual damages caused by the failure of the Franchisee to provide records in accordance with Subsection B above. Such sum is liquidated damages and shall not be construed as a penalty. D. Franchisee shall reimburse City fbr City's costs in performance of an audit if, as a result of the audit it is determined: I_ There was any intentional misrepresentation by Franchisee with respect to the amount of Fees due to the City; or 2. There is a one thousand dollars ($1,000.00) or greater discrepancy in the amount of Fees due to the City. Such reimbursement shall be paid by Franchisee within thirty (30) days of the date City notifies Franchisee in writing that the Franchisee is liable to reimburse the City in conformance with this subsection and the amount of City's audit costs. E. If Franchisee refuses to provide City's auditor with its records as required by Subsection B above or disagrees with City's audit findings, then Franchisee may, within ten (10) J days after written request by City's designated representative for records disclosure, or within ten (10) days after service of the audit finding, appeal the imposition of late charge or the audit findings by tiling a written appeal with the City Council specifying the basis of Franchisee's failure to provide records, or the reason for its disagreement with City's audit findings. If Franchisee fails to timely request such an appeal to the City Council, then the late charges and/or discrepancy determinations shall be final and conclusive and the amounts shall become immediately due and payable and/or the violation shall be deemed established. SECTION 10. INSURANCE REQUIREMENTS Without limiting Franchisee's indemnification of City, Franchisee shall obtain, provide and maintain at its own expense during the term of this Agreement, a policy or policies of liability insurance of the type and amounts described below and in a form satisfactory to City. A. Certificates of Insurance. Franchisee shall provide certificates of insurance with original endorsements to City as evidence of the insurance coverage required herein. hmsurance certificates must be approved by City's Risk Manager prior to commencement of the Franchise. Current certification of insurance shall be kept on file with City at all times during the term of this Agreement. B. Signature. A person authorized by the insurer to bind coverage on its behalf shall sign certification of all required policies. 7 C. 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 odition of Best's Key Rating Guide, unless otherwise approved by the City's Risk Manager. D. Coverage Requirements. 1. Workers' Compensation Coverage. Franchisee shall maintain Workers' Compensation hrsurance and one million dollars ($1,000,000) Employer's Liability Insurance for his or her employees in accordance with the laws of the State of California. Any notice of cancellation or non- renewal of all Workers' Compensation policies must be received by City at least thirty (30) calendar days (10 calendar days written notice of non - payment of premium) prior to such change. The insurer shall agree to waive all rights of subrogation against City, its officers, agents, employees and volunteers for losses arising from work performed by Franchisee that relates in any way to this Agreement. 2. General Liability Coverage. Franchisee shall maintain commercial general liability insurance in an amount not loss than one million dollars ($1,000,000) per occurrence for bodily injury, personal injury, and property damage, including without limitation, contractual liability. If commercial general liability insurance or other form with a general aggregate limit is used, either the general aggregate limit shall apply separately to the work to be performed under this Agreement, or the general aggregate limit shall be at least twice the required occurrence i \ limit. 3. Automobile Liability Coverage. Franchisee shall maintain automobile insurance 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 two million dollars ($2,000,000) combined single limit for each occurrence. E. Endorsements. Each general liability and automobile liability insurance policy shall be endorsed with the following specific language: 1. The City, its elected or appointed officers, officials, employees, agents and volunteers are to be covered as additional insureds with respect to liability arising out of work performed by or on behalf of the Franchisee. 2. This policy shall be considered primary insurance as respects to City, its elected or appointed officers, officials, employees, agents and volunteers as respects to all claims, losses, or liability arising directly or indirectly from the Franchisee's operations or services provided to City. Any insurance maintained by City, including any self- insured retention City may have, shall be considered excess insurance only and not contributory with the insurance provided hereunder. I< 3. This insurance shall act for each insured and additional insured as though a separate policy had been written for each, except with respect to the limits of liability of the insuring company. ® 4. The insurer waives all rights of subrogation against City, its elected or appointed officers, officials, employees, agents and volunteers. S. Any failure to comply with reporting provisions of the policies shall not affect coverage provided to City, its elected or appointed officers, officials, employees, agents or volunteers. 6. The insurance provided by this policy shall not be suspended, voided, canceled, or reduced in coverage or in limits, by either party except after thirty (30) calendar days (10 calendar days written notice of non - payment of premium) written notice has been received by City. F. Timely Notice of Claims. Franchisee shall give City prompt and timely notice of claim(s) made or suit instituted arising out of or resulting from Franchisee's performance under this Agreement. G. Additional 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 work. SECTION 11. RESPONSIBILITY FOR DAMAGES AND INJURVINDEMNIF'ICATION A. Franchisee Responsibility. Franchisee shall be responsible for any damages caused as a result of Franchisees acts or omissions including, but not limited to injuries to or death of any person or damage to public and/or private property and damages public improvements as a result of Franchisees placement and retrieval of the commercial solid waste containers. 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 ") harmless for, 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 or omission of Franchisee or its respective officers, directors, shareholder members, partners, employees, agents, contractors, 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 services/work performed under the Franchise and/or this Agreement; (iv) any violation or alleged violation of any law, ordinance or statute now or hereafter enacted arising out of services/work performed pursuant to the Franchise and/or this Agreement; (v) the negligence or willful misconduct of Franchisee or any of Franchisee representatives in the performance of 9 the services /work under the Franchise and/or this Agreement; and (vi) any breach of the Franchise and /or this Agreement. is 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 authorising any award of attorney's 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, 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 I and Liability Act 42, U.S.C. Section 9607(c) and any amendments thereto; California Health and Safety Code Section 25364, to insure, protect, hold harmless, and indemnify City from liability. As used herein, the term " Fnvironmental Laws" shall mean "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. §§ 9601 et seq.) as amended from time to time and the applicable provisions of the California Health and Safety Code and California Water Code). As used herein, the term "llazardous Substance" shall mean "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 afTect 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, municipal solid waste, steam, drilling fluids, produced waters and other wastes associated with the exploration, development and production of crude oil, natural gas or geothermal resources." 10 D. AB939 Indemnification. Franchisee agrees to meet all requirements of City's Source Reduction and Recycling Flement as to the portion of the solid waste stream handled by Franchisee. Franchisee agrees to protect, defend, indemnify, and hold City harmless against all • fines or penalties imposed by the California Integrated Waste Management Board, or other entity, arising from the failure of Franchisee to meet the Integrated Waste Management Act diversion requirements with respect to the portion of the commercial waste stream collected by Franchisee. E. 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. SECTION 12. COMMERCIAL SOLID WASTE COLLECTION SERVICES A. Frequency of Collection. Franchisee shall collect all solid waste, including recyclable materials, as authorized in this Agreement, on a schedule to be agreed upon between the Franchisee and its customers. The schedule shall provide for collection service at least once per week: provided, however, that such schedule shall not permit the accumulation of solid waste in quantities that are unreasonable or detrimental to the public health or safety. Requests for collection from premises with overflowing bins or containers, or from premises where there have been missed pickups, shall be serviced within 24 hours of any such request by the customer or City. If requested by the City at any time, Franchisee's collection schedule shall be submitted to the City for its approval. B. Hours and Days of Collections. No collection of solid waste shall occur in any l area of the City after 6:30 p.m. and prior to 5:00 a.m. No collection of solid waste from conunercial premises within 500 feet of occupied residential premises, motels or hotels shall be made by Franchisee, 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. Collection on Sundays shall be limited to the disposal of commercial waste from commercial premises which require collection every day due to public health and safety concerns. SECTION 13. VEHICLES AND EQUIPMENT A. Any and all containers provided to customers of Franchisee for storage, collection or transportation of commercial solid wastes shall meet the requirements designated by the General Services Director as well as State of California minimum standards for solid waste handling established under Public Resources Code Section 43020 and applicable health requirements. B. All containers and all vehicles used by Franchisee in the performance of commercial solid waste handling services shall be marked with Franchisee's name and telephone number in letters which are not less than four inches (4 ") high or which are easily read by the general public. C. Equipment. I. Franchisee shall, at all times, provide such number of vehicles and such • equipment as will be adequate for the collection, transportation and disposal 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 the required periodic "BIT" inspection and Franchisee shall provide evidence of such to the General Services Department as requested. 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 repair, and shall be uniformly painted. All commercial solid waste containers used in the performance of this Agreement shall be kept clean and in good repair and shall be uniformly painted to the satisfaction of the General Services Director. All vehicles and equipment used by Franchisee in the performance of this Agreement may be subject to inspection by the City upon twenty -four (24) hours notice by the General Services 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. 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 solid waste shall be transported by means of vehicles which are covered in such a manner as to securely contain all solid waste and to prevent such solid waste from projecting, blowing, falling or leaking out of the vehicles. Any solid waste 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 fbr 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. 1 Franchisee shall not store any vehicle or equipment on any public street, public right -of -way or other public property in the City of Newport Beach without obtaining a Temporary Street Closure Permit from the Public Works Department and prior written consent of the General Services Director. 4. Should the General Services 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 General Services Director. S. Placement of containers and equipment shall be in accordance with the standards set by the Director of Public Works and in accordance with the standards set forth in Exhibit A which is incorporated herein by this reference. Any deviation from the standards set by the Director of Public Works or the standards set forth in Exhibit A shall require written approval from the Public Works Director. 12 SECTION 14. ABANDONED CONTAINERS A. If Franchisee abandons any commercial solid waste container within the City of ® Newport Beach, the City may remove the container and/or dispose of the contents of the container. B. If City is required to remove a roll -off or compactor container abandoned by Franchisee and/or disposes of the contents of any container abandoned by Franchisee, City may charge Franchisee for City's costs incurred in such removal /disposal and for City's costs of storage of the container. Franchisees who are engaged in providing roll -off containers shall maintain a Five Thousand Dollars and No Cents ($5,000.00) cash deposit with City Revenue Division to reimburse City for such costs within ten (10) days of the date of City's invoice for such costs. C. For the purposes of this Section, "abandoned" includes: I. 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; 2. Franchisee's failure to remove the container within ten (10) working days after the expiration 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 solid waste for which the container was used pursuant to this Agreement. 3. Franchisee's failure to collect the container and dispose of the contents of the container within five (5) calendar days after City's Director of General Services issues written notice to Franchisee to dispose of the contents. SECTION 15. COMPLIANCE WITH LAW A. Franchisee shall perform all commercial solid waste handling services in accordance with applicable federal, state, and local law, including Chapter 12.63 of the Code, Article XIII of the City Charter, Ordinance No. 2007 -07 and in accordance with the terms and conditions of this Agreement. B. During the Term of this Agreement, Franchisee and City agree that the Citys 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 solid waste handling obligations or requirements for solid waste management. Franchisee agrees to comply with any such amendment of the City's ordinances. 13 SECTION 16. PERMITS AND LICENSES Franchisee shall obtain and maintain, at Franchisee's sole cost and expense, all permits is and licenses applicable to Franchisee's operations under the Franchise which are required of Franchisee by any governmental agency. Payment of Franchise Fees and Environmental Liability Fund Fees shall be in addition to any permit or license fees or business tax prescribed by the City for the same period. Franchisee shall obtain and maintain for the Term of this Agreement an account with the Orange County landfills. If Franchisee disposes of solid waste at an Orange County landfills, the Franchisee shall only dispose of Newport Beach solid waste at Orange County landfills utilizing their account (no "cash only" disposal). SECTION 17. PUBLIC EDUCATION ACTIvIT1ES A. City and Franchisee shall cooperate in co- sponsoring not more than one promotional event per year, as mutually agreed upon in advance by the parties, which is related to the implementation of commercial solid waste handling services and recycling services. B. Each year during the term of this Agreement, on an annual basis, Franchise shall transmit promotional brochures or fliers to its customers, and to such prospective customers as it may select, informing them of the commercial solid waste handling services and recycling services which are provided by the Franchisee as well as hazardous waste disposal requirements. i C. All promotional brochures, fliers or other information distributed by Franchisee hereunder shall be printed on recycled paper. All such informational materials shall be approved in advance by the City's General Services Director. SECTION 18. TERMINATION AND SUSPENSION A. The franchise granted to Franchisee may be terminated by the City Council pursuant to Section 12.63.140 of the Code. B. In the event the Franchise is terminated pursuant to Subsection A above or the term of this Agreement expires: L Franchisee shall have no right or authority to engage in commercial solid waste handling operations in the City of Newport Beach, subject to the provisions of Sections 49520 -49523 of the Public Resources Code. 2. Franchisee shall, however, remain liable to City for any and all Franchise Fees and Environmental Liability Fund Fees that would otherwise be payable by Franchisee, for any and all late charges and interest assessed pursuant to Section 4 of this Agreement, and for any and all delinquent report/record charges assessed pursuant to Sections 7 or 9 of this Agreement. 3. Franchisee shall have a continuing obligation to submit to City all reports required by Sections 7 and 9 of this Agreement which relates to commercial solid waste handling K, services performed by Franchisee up to and including the date of termination, suspension, or expiration. 4. Franchisee shall allow the solid waste generators served by Franchisee to arrange for commercial solid waste handling services with a solid waste enterprise collector 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. S. Franchisee agrees to continue to provide the indemnifications required in this contract after its suspension or termination. Such indemnifications include, but are not limited to, the hazardous materials indemnification and AB939 indemnification as set forth in Section 11. C. In the event this Franchise is terminated pursuant to Subsection A above, then within the time period specified by the City Council, Franchisee shall remove all of Franchisee's commercial solid waste containers, from all Franchisee's collection service locations and shall properly dispose of all solid waste in such containers. D. In the event the Franchise is terminated pursuant to Subsection A above or expires without an extension of the term and without a grant of a subsequent franchise allowing Franchisee to continue performing such services, then within ten (10) days of such termination or expiration Franchisee shall either: I. Submit to City's General Services Director a list of the names and addresses of solid waste generators in Newport Beach for which Franchisee provided services as of the date of termination or expiration (i.e. Franchisee's City of Newport Beach customer list); or 2. Send written notification to each solid waste generator on Franchisee's customer list that Franchisee is no longer authorized to provide commercial solid waste handling services in the City of Newport Beach. Such notification shall be in the form provided by City's General Services 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 City's General Services Director an affidavit, signed under penalty of perjury, stating that the required notification has been provided by Franchisee to all of Franchisee's City of Newport Beach customers. SECTION 19. ASSIGNMENT Franchisee shall not assign, sell, subcontract, transfer or otherwise delegate its authority to perform any portion of the solid waste handling 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 he unreasonably withheld. 15 SECTION 20. 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: To: General Services Director City of Newport Beach 3300 Newport Blvd. Newport Beach, CA 92663 To Franchisee: Eric Casper California Waste Services, LLC 621 W. 152nd Street Gardena, CA 90247 Notice shall be deemed effective on the date personally served or, if mailed, three (3) days after the date deposited in the mails. B. hrtcyrated 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 coven-wit 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 the party against whom the same is sought to be enforced. D. Applicable Law. The laws of the 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. E. Authority. The parties signing below represent and warrant that they have the requisite authority to bind the entities on whose behalf they are signing. F. Sevcrabilit . 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. G. 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. 16 H. 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. 1. 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. J. Compliance with Laws: Franchisee shall at its own cost and expense comply with all statutes, ordinances, regulations and requirements of all goverrunental 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 solid waste collection business in the City and that the issuance of a business license does not grant the Franchisee a right to conduct solid waste collection or other business in the City. K. Conflicts of Interest: Franchisee or its employees may be subject to the provisions of the California Political Reform Act of 1974 (the "Act "), which (i) requires such persons to disclose any financial interest that may foreseeahly be materially affected by the work performed under this Agreement, and (it) prohibits such persons from making, or participating in making, decisions that will foreseeably financially affect such interest. If subject to the Act, Franchisee shall conform to all requirements of the 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. (SIGNATURES ON FOLLOWING PAGE] 17 LJ �t IN WITNESS WHEREOF, the parties have caused this Agreement to be executed on the day and year first written above. ATTEST LAVONNE M. HARKLESS City Clerk APPR VED AS TO FORM: A, C , AARON C. HARP Assistant City Attorney 18 "CITY" CITY OF NEWPORT BEACH, a Municipal Corporation 1 i, BY: .. - EDWARD D. SELICH, Mayor "FRANCHISEE" NAME: 06 ri L Gt_f �Pr (Print) / �— TITLE: pr'e. f, d e j-7L DATE: <f:>9- 0-5- -0a UJ NAME: (Print) TITLE: DATE: 0 ACCEPTANCE OF SOLID WASTE MANAGEMENT FRANCHISE WHEREAS, on _, 2008, the City Council of the City of Newport Beach adopted Ordinance No. 2008- entitled an Ordinance of the City Council of the City of Newport Beach Granting a Non - Exclusive Solid Waste Franchise to Franchisee to Provide Solid Waste Collection Services Upon the City Streets and Within the City of Newport Beach; and WHEREAS, the Charter of the City of Newport Beach, Section 1303, and Ordinance No. 2008- — provide that any franchise granted shall not become effective until written acceptance is filed by the Grantee with the City Clerk. The acceptance shall be filed within ten (10) days after the adoption of Ordinance No. 2008 WHEREAS, the undersigned Grantee wishes to accept the grant of the Franchise. NOW THEREFORE;, rN,a W✓4S7� hereby accepts the grant of the Nonexclusive Franchise granted by Ordinance No. 2008 -_ and hereby agrees to comply with the provisions of the Newport Beach Charier, Chaptcr 12.63, Ordinance No. 2008- and the Franchise Agreement in all its operations pursuant to the grant of the Franchise. 1 DATE: Ua s er ✓EGGS, LLL S FRANCHISE BY:Y�� NAME: 1C"t-S Fe TITLE: / Q r^ I 163-le d e.✓ CITY CLERKS'S VERIFICATION OF ACCEPTANCE I, LaVonne M. Harkless, City Clerk, certify that the above acceptance of Franchise was received by me on -_, 2008, at , a.m. /p.m. CITY CLERK r� C A L ! F O R N r A W A S r E S E R V r C E S January 18, 2008 City of Newport Beach General Services Director 3300 Newport Boulevard Newport Beach CA. 92659 RE: Responses to the Solid Waste Management Franchise Application. California Waste Services LLC (CWS) provides temporary roll -off container services for the construction and demolition (C &D) market. CWS does not provide commercial collection of Municipal Solid Waste. CWS operates a California Integrated Waste Management Board approved C &D processing facility in the City of Gardena. The facility recycling rate averages 70 %. 1 CWS disposes all C &D material at its Gardena facility or at Madison Materials located in Anaheim. The roll -off collection vehicles that will be used in the city are the following #30 Lic. 6KO5213 # 31 Lic. 6KO5214 # 32 Lic. 81-85988 #35 Lic. 6Y59814 Insurance certificates are enclosed. Customer complaint number is 800 - 839 -5550. Elaine Alonzo Roll -off Operations Manager at Ext. 102. Corporate Officer Intbrmation: Eric Casper - President 621 W. 152n° St. Gardena, Ca. 90247 (Office) 800- 839 -5550 Ext. 101 (Cell) 310- 962 -9458 621 WEST 152Ni) STREET. C:ARDENA. CA 00247 (800) 839 -5550 - l'EI-: (310) .S..18 -5998 • PAX: 0310) 538-9040 ACORO, CERTIFICATE OF LIABILITY INSURANCE _ OPID p' DAi (A"_!ZoY CALIF05 01, :1/OB Bolton & Company CA Licei:se 00006309 k 45s S. Los Robles Ave, Ste 105 adena CA 91101 one: 626- 799 -7000 Fax: 626- 441 -3233 INSURED CaliforD'a Waste Services, LLC 621 W. 152nd Street Gardena CA 90247 COVERAGES AFFORDED BY THE INSURERS AFFORDING COVERAGE ! NAIC t IN9IRERA A erl n Int'I Specialty Lino A'St1k7iE Comeiw 4 IvduA trl• IRa C.. NSUR� - Redwood Fire 6 Casualty_ ' rvSIRO<L .A -I.1. 1 THE POLICIES OF INSURANCE LISTED BELOW NAVE BEEN ISSUED M THE INSURED NAMED ABOVE FOR THE POLIO" PERIOD INDICATED NOTWITHSTANDING ANY REQUIREMENT. TERM OR CONDITION OF ANY CCNTRACT OR OTHER DOCUMENT WTH RESPECT TO WHICH THIS CERTIFICATE MAY BE ISSUED OR MAY PERTAIN. THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS. EXCLUSIONS AND CONDITIONS OF SUCH POLICIES. AGGREGATE LIMITS SHCA NWY HAVE BEEN REDIICED BY PAID CLAIMS. JSR ADD% vOLICY EFFECTIVE POLICY EXPIRATION 1N W.. R T"PFW &WRANCE POLICYNUMBER pATE(MNVDWYY] I DATE AWD LIMITS cc EEx�RAL L IAaIrTT G_ r Cr_-.;;,I Z," _ 11,000,000 JAAm;- �*n«rntU A X I X IG9AALCRCLL_:CnERA_LIAB'U:Y EG2631694 04/01/07 09/01/08 $300,000 I+ :Ahl'eMP XIoCz�L'I woo xP ter ore PC:am; 525,000 PFR"%A. A ADVINJUm' S 1,000,000 GL IA RA, ACd,RLG At- S2,000,000 �SFN!n'; H::Ao- rvw TNT)ps P=R cFCD..r15.:::wPgr wdt'. 12,000,000 __ GARAGE JABIC"Y All AL! JLCEWUMSHLLLA LIABILITY A X I r.CSOrr CLMORMALE EGU2631698 X RL- UIr:Yi 510,000 WORKLRS C,,KKSA'ID4 AND C EAWLOYERS -ABILITY ATIV PR :;rpRriT:1:lFARTVC1UCXif...7.W I; IFI arur 3 A•wer ff R' AU: "•.'_YI,Y LAACCI^„ENT I �:FiprV E 55,000,000 09/01/07 09/01/09 A^_rREGATE _ — s5,000,000 $ S s X'IORV I I'NIS ER W7636595 06/27/07; 06/27/08 = "AA+'A::r.IOENT ._ S1, 000, 000 L JI`:LA'r_ .A U.IF *.0"EE S 11000 r 000 S .Pk .:L _L JIU. Si 1 000 000 - DTr_rt I DES.:RIPTION OI OPER<:IOnS r; Or,ATIONS r vLHICL61 EXCI JSIDNS ADDED BY ENOORSFMFNT r VFCiAL PRl1VLtgnt Job: Operations of the Namod Insured. City of Newport Beach, its officer, officials, entoloyees and volunteers are named GL & Auto Additional Insured per #94358 (4/07) & #CA2001 10/01 attached. GL Pr:TDery Wordtiig applies. We Blanket Waiver of Subrogation attached. *10 Days Notice of Cancellation for Non- Paynent of Premitun. CERTIFICATE HOLDER CANCELLATION NEHPOR' SHOULD ANY t THE AROYF DHS:R:BE1 Pat LIES SE.:ANCEI (FD BEFORE TNF EXPIRATI UATC TIILR,EOF THC:SSUING INSURER `s4L FNIJCAVOR T01ME 30* DAYS'NRI;'ILN NOTICE TC THE CERTF`TCATE I,aDFR NAA:CD TO THE LEFT, BUT FAILURF TO CO 50 --- City of Newport B9ach 3300 Newport J3 vd. IMtV.VNCOBJGATIONOP.UTAW' -I:YOf ANYKWDUP •1NTNFINSURFR.ITSAGENiSGR Newport Reach, CA 92659 REPRFSENTATNFJ. . tA�roE ACORD 25 (2007N)81 © ACORD CORPORATION 1989 AUTOMOBILE LIA(#LnY' r_'A ,WO SINGLE JIVIT S 1,000,000 B X :X AA. +AI.- CA2631173 09/01/07 09/01/00 (E., vF A,1 OI'N_ J N R,^. Y INJUf S p:w PVTncI X MIRE,". A_TDi !LillAy INJUR, S X ;pe' a�Ircc,J PRGW_3' +DAMAGE S (Per Rc:urn� GARAGE JABIC"Y All AL! JLCEWUMSHLLLA LIABILITY A X I r.CSOrr CLMORMALE EGU2631698 X RL- UIr:Yi 510,000 WORKLRS C,,KKSA'ID4 AND C EAWLOYERS -ABILITY ATIV PR :;rpRriT:1:lFARTVC1UCXif...7.W I; IFI arur 3 A•wer ff R' AU: "•.'_YI,Y LAACCI^„ENT I �:FiprV E 55,000,000 09/01/07 09/01/09 A^_rREGATE _ — s5,000,000 $ S s X'IORV I I'NIS ER W7636595 06/27/07; 06/27/08 = "AA+'A::r.IOENT ._ S1, 000, 000 L JI`:LA'r_ .A U.IF *.0"EE S 11000 r 000 S .Pk .:L _L JIU. Si 1 000 000 - DTr_rt I DES.:RIPTION OI OPER<:IOnS r; Or,ATIONS r vLHICL61 EXCI JSIDNS ADDED BY ENOORSFMFNT r VFCiAL PRl1VLtgnt Job: Operations of the Namod Insured. City of Newport Beach, its officer, officials, entoloyees and volunteers are named GL & Auto Additional Insured per #94358 (4/07) & #CA2001 10/01 attached. GL Pr:TDery Wordtiig applies. We Blanket Waiver of Subrogation attached. *10 Days Notice of Cancellation for Non- Paynent of Premitun. CERTIFICATE HOLDER CANCELLATION NEHPOR' SHOULD ANY t THE AROYF DHS:R:BE1 Pat LIES SE.:ANCEI (FD BEFORE TNF EXPIRATI UATC TIILR,EOF THC:SSUING INSURER `s4L FNIJCAVOR T01ME 30* DAYS'NRI;'ILN NOTICE TC THE CERTF`TCATE I,aDFR NAA:CD TO THE LEFT, BUT FAILURF TO CO 50 --- City of Newport B9ach 3300 Newport J3 vd. IMtV.VNCOBJGATIONOP.UTAW' -I:YOf ANYKWDUP •1NTNFINSURFR.ITSAGENiSGR Newport Reach, CA 92659 REPRFSENTATNFJ. . tA�roE ACORD 25 (2007N)81 © ACORD CORPORATION 1989 IMPORTANT If the certificate holder is an ADDITIONAL INSJRED. the policy(ies) must be endorsed. A statement on this certificate does not confer rights to the certificate holder in lieu of such endorsement(s). If SUBROGATION IS WAIVED, subject to the terms and conditions of the policy, certain policies may require an endorsement A statement on this certificate does no! confer rights to the certificate holder in lieu of such endorsement(s). DISCLAIMER The Certificate of Insurance on the reverse side of this form does not constitute a contract between the issuing insurer(s), authorized representative or producer, and the certificate holder, nor does it affirmatively or negatively amend, extend or alter the coverage afforded by the aolicies listed thereon. 120151le8) d, Your legal representarive it you die. but onw with respect to duties as such. That representarive will have all your rights and duties under this Policy. e. ArVV subsidiary, associated, affiliated or allied company or corporation, includins subsidiaries thereof, of ® which you have more than 50% ownership interest as of the inception date of this Policy. 3. Any organization you newly acquire or form, other than a partnership, joint venture, or limited liability company, and over which you maintain ownership or majority interest, will qualify as a Named Insured if there is no other similar insurance available to that organization. However: a. Coverage under this provision is affo,ded only (a) until the iBDfh day after you acquire or form the organization or the end of the policy period, whichever is eariie, (b) provided that you give us written notification within 180 days of the date of such acquisition or formation or before the end of the policy period, whichever is earlier, and (c) if an additional premium, calculated by the company using its reasonable underwriting discretion but not tc exceed loon of the policy premium at inception, is paid when due; b. Coverage A and E do not apply to bodily injury, property damage or environmental damage that occurred before you acquired or formed the organization; and c. Coverage B does not apply to personal and advertising injury arising out of an offense committed before you acquired or formed the organization. 4. Except as respects to Coverage E -4, any person or organization with whom you agreed to include as an insured, because of a written contract, written agreement or permit, but only with respect to bodily injury, property damage, environmental damage or personal and advertising injury caused, in whole or in part, by your acts or omissions or the acts or omissions of those acting on your behalf, arising out of your operations, your work, equipment or premises leased, rented or owned by you, or your products which are distributed or sold in the regular course of a vendor's business, however: As respects vendors, his insurance does not apply to: a. Bodily injury, property damage or environmental damage for which the vendor is obligated to pay damages by reason of the assumption of liability in a contract or agreement. This exclusion does not apply to liability for damages that the vendor would have in the absence of the contract or agreement; b. Any express warranty unauthorized by you; c. Any physical or chemical change in the product made intentionally by the vendor; d. Repackaging, except when unpacked solely for the purpose of inspection, demonstration, testing, or the substitution of parts under instructions from the manufacturer, and then repackaged in the original container; e. Any failure to make such inspections, adjustments, tests or servicing as the vendor has agreed to make or normally undertakes to make to the usual course of business, in connection with the distribution or sate of the products; f. Demonstration, installation, servicing or repair operations, except such operations performed at the vendor's premises in connection wi9i the sale of the product; g. Pruducts which, after distribution or sale by you, have been labeled or relabeled or used as a container, part or ingredient of any other thing or substance by or for the vendor; or h. Bodily injury, property damage or environmental damage arising out of the sole negligence of the vendor for its own acts or omissions or those of its employees or anyone else acting on its behalf. llowever, this exclusion does not apply to: Page 24 of 43 94358(4/07) C1305.'. (1) The exceptio-is contained in Sub parae-aph; d. or f, above; or (2) Such imoe-ctions, adjustments, tests or servicing as the vendor has agreed to make or normally ® undertakes to make in the usual course of business, in connection with :he distribution or sale of the products. As respects a ma..iager or lessor of premises, a lessor of (eased equipment, or a mortgagee, assignee, or receiver, this insurance does not apply to: (1) Any occurrence which takes place after the equipment lease expires or you cease to be a tenant. (2) Structural alterations, new construction or demolition operations performed by or on behalf of the manager or lessor of premises, or mortgagee, assignee, or receiver. 5. Any person or organization that has at least a 50% controlling interest in you but only with respect to bodily Injury, property damage, environmental damage or persona! and advertising injury caused, in whole or in part, by your acts or omissions or the acts or omissions of those acting on your behalf, arising out of their financial control of you. No person or organization is ar insured with respect to the conduct of any current or past partnership, joint venture, or limited liability company unless a current or past partnership, joint venture, or limited liability company is an insured pursuant to paragraphs 1. though 5. above. Applicable to Coverage D Each of the following is an insured under Coverage D: The Named Insured designated in the declarations and any past or present director, officer, partner, member or employee thereof, while acting within the scope of his or her duties as such. SECTION IA - LIMfTS DF INSURANCE AND DEDUCTIBLE i 1. The Limits of Insurance shown in the Declarations and the rules below f:x the most we will pay regardiess of the number of: a. Insureds; b. Claims made or suits brought; or c. Persons or organizations making claims or bringing suits. 2. Tne General Aggregate Limit is the most we will pay for the sum of: a. Medical expenses under Coverage C; b. Damages under Coverage A except damages because of bodily injury or property damage included in the products- completed operations hazard; c. Damages under Coverage B; d. Lou under Coverage D; and e. Loss under Coverage E except damages because of bodiiy injury, property damage or environmental damage included in the products - completed operations hazard. The General Aggregate Limit shall apply: (i) separately to occurrences and loss un or at a single location owned or rented by you and (ii) once as to all other operations or projects away from locations owned or rented by you. Page 25 of 43 94358 (4107) C13053 in excess of the applicable limit of insurance. An agreed settlement means a settlement and release of liability signed by us, the irsured ano the claimant or the claiman_ s fecal representative. • Applicable to Coverages D No third-party action shall fie against us, unless as a condition precedent thereto, there shall have been full compliance with all of the terms of this Policy; nor until the amount of the insured's obligation to pay shall have been finally determined either by judgment against the insured after actual trial or by written agreement of the insured, the claimant and us. Any person or organization or the legal representative thereof whc has secured such judgment or written agreement shall thereafter be entitled to recover under this Policy to the extent of the insurance afforded by the Policy. No person or organization shall have any right under this Policy to join us as a party to any action against the insured to determine the insured's liability, nor shall we be impleaded by the insured or his legal representative. Bankruptcy or insolvency of the insured or of the insured's estate shall not relieve us of any of our obligations hereunder. 4. Other Insurance Applicable to Coverages A, B and E If other valid and collectible insurance is available to the insured for damages or loss we cover under Coverages A, B or E of this Policy, our obligations are limited as follows: a. Primary Insurance This insurance is primary except when b. below applies. 11 this insurance is primary, our obligations are not affected unless any of the other insurance is also primary. Then, we will share with all that other insurance by the method described in c. below. However, regardless of whether b. below applies, in the event that a written contract or agreement or permit requires this insurance to be primary for any person or organzation with whom you agreed to insure and such person or organization is an insured under this policy, we will not seek contributions from any such other insurance issued to such person or organization. It. Excess Insurance Th s insurance is excess over: (f ) Any of the other insurance, whether primary, excess, contingent or on any other basis: (a) Tha: is Fire, Extended Coyerage, Builder s Risk, Installation Risk or similar coverage for your work; (b) That is Fire insurance for premises rented to you or temporarily occupied by you with permission of the owner; (c) That is insurance purchased by you to cover your liability as a tenant for property damage to prmmises rented to you or temporarily occupied by you with permission of the owner; or (d) If the damages or loss arises out of the maintenance or use of aircraft, autos or watercraft to the extent not subject to Exclusion g. of Coverage A. (2) Any other insurance available to you covering liability for damages arising out of the premises or operations for which you have been added as an additional insured by attachment of an endorse dent. W'urn 'his insurance is excess, we wii; have no duty under Coverage A, B or F. to defend the insured against any suit if any other insurer has a duty to defend the insured against that sift. If no other insurer Page 29 of 43 94358(4!07) C3053 oefenos. we svi!i inde-take to do so. but we MJL Je entitled to the insureds right against all those other hsurers. ® When :his i- surance is excess over other insurance, we will pay only our share of the amount of the damages or loss, if any, that exceeds the sum of: (1) The total amount trat all such other insurance would pay for the damages or loss in the absence of this insurance; and (2) The total of all deductible anc self-insured amounts under all that other, insurance. We wit! share the remaining damages or loss. if any, mith any other insurance that is not described in this Excess insurance pro0sion and was not bought specifically to apply in excess of the Limits of Insurance shown in the Dpclarations of this Policy. c. Method of Sharing if al: of the other insurance permits contribution by equal shares, we wIR follow this method also. Under this approach each insurer contributes equal amounts until it has paid its applicable limit of insurance or none of the damages or loss remains, whichever comes first. If any of the other insurance does not permit contribution by equal shares, we will contribute by limits. Under this method, each insurer's share is based on the ratio of its applicable limit of insurance to the total applicable limits of insurance of all insurers. Applicable to Coverages D You shall p'omptly upon our request provide us with copies of all policies potentially applicable to loss covered by Coverage D. If other valid and collectible insurance is available to the insured for loss covered under the terms and conditions of Coverage D, our obligation to the insured shall be as follows: a. Thfs insurance is primary, and our obligations are not affected unless any of the other insurance is also primary. In that case, we witl share with all such other insurance by the method described in Subparagraph b, below. b. if all of the other insurance permits contribution by equal shares, we will follow this method also. Under this approach each insurer contributes equal amounts until it has paid its applicable limit of insurance or none of the toss remains, whichever cornes first. 1` any of the other insurance does not permit contribution, by equal shares, we will contribute by limits. Under this method, each insurer's share is based on the ratio of its applicable limit of insurance to the total applicable limits of insurance of all insurers. 5. Representations By accepting this Policy, you agree. a. The statements in the Declarations and application for this Poky are accurate and complete; b. T`ose statements are based upon representations you made to us; c. We have issued this Policy in reliance upon your representations; and d. This Policy embodies ali agreements existing between the insured and us or any of our agents relating to this insurance. Except with res-e;t to coverage provided by SECTION I - COVERAGES, COVERAGE D - POLLUTION LEGA_ LIABILITY, if yo; unintentionally fail to disclose to us, prior to the inrepncr, date, all existing hazards at the Pave 30 of 43 94358 (4 /07) 00053 POLIC'r NU03ER CA2631173 THIS ENDORSEMENT ChANGES THE POLICY. PLEASE READ IT CARE °LILLY. LESSOR - ADDITIONAL INSURED AND LOSS PAYEE This endorsement modifies insurance provided undo, the following BJSIN ESS AUTO COVERAGE FORM BUSINESS AUTO PHYSICAL DAMAGE COVERAGE FORM GARAGE COVERAGE FORM MOTOR CARRIER COVERAGE FORM TRUCKERS COVERAGE FORM COMMERCIAL A.JT0 CP.2001 iC01 With respect to coverage provided oy this endorsement, provisions of the Coverage Form apply unless modified by the endorsement This endorsement changes the policy effective on the Inception date of the policy unless another date is indicated below Endorsement e 911107 Named Insured California Waste Services, LLC Insurance Company Policy Number Eflect.ve Date Expra 'jon Dale Named Insured Address Additional Insured (Lessor) Address Countersignec by SCHEDULE Commerce & Industry Inw•ance Company CA2631173 Si N? 911.706 California Wasle Services. LLC 621 W. 152n0 Street Gardena. CA 90247 Designation or Description. of "Leased Autos" (Authorized Reoresentaove) Coverages Limit of Insurance Liability S1.0oo,009 Each "Accident Personal Injury Protection (or equivalent 5 no-fault coverage) Comprehensive ACTUAL CASK VALUE OR COST OF REPAIR'v HICHEVER IS LESS, MINAS $ 2,000. For each covered "Leased Auto" Collision ACTUA'_ CASH VALUE OR COST OF REPAIR WHICHEVER iS LESS'. :ANUS 5 2.000. For each covered "Leased Auto" ACI UAL CA& t VALUc OR COST OF REPAIR WHICHEVER IS LESS', Specified Causes of Loss MINUS $ For each covered "Leased Aufo' i is r entry appears above, •rto•mation required to complete this endorsernent wil: be snown in ;he Ueciarahons as appncaoie to this endo:sempnf ) CA 2C 0: 10 37 ISO 9roperiks, Inc . Zoo Page I W 2 ® A. Coverage 1. Any "leased auto" designated or described in the Scnedule will be considered a coverea 'auto" you own and not a covered "auto" you hire or barrow. For a covered "auto" that is a `leased auto" Who Is An Insured !s changed to include as an "insured" the lessor named in the Schedule 2. The coverages provided under this endorsement apply to any "leased auto' described in the Schedule until the expiration dale shown in the Schedule, or when the lessor or his or her agent takes possession of the "leased auto ", whichever occurs first. B. Loss Payable Clause 1. We will pay, as interest may appear, you and the lessor named in this endorsement for 'loss" to a 'leased auto.' 2. The insurance covers the interest of the lessor unless the "loss" results from fraudulent ads or omissions on your pan. 3. If we make any payment to the lessor, we will obtain his or her rights against any other party CA 20 01 10 01 COMMA-RCIAL AUTO C. Cancellation 1. If we cancel the policy, we wi'I mail notice to the lessor in accordance with the Cancellation Common Policy Condition 2. if you cancel the policy, we will mail notice to the lessor. 3. Cancellation ends this agreement. D. The lessor is not liable for payment of your premiums. E. Additional Definition As used in this endorsement' Leased Auto" means an "auto" leased or rented to you, including any substitute, replacement or extra "auto" needed to meet seasonal or other needs, under a leasing or rental agreement that requires you to provide direct primary insurance for the lessor. n 2001 IC 01 !SO Properties, Inc_ 20G^. Page 2 of 2 Schedule of Vehicles �l ( WORKERS COMPENSATION AND EMPLOYERS UABIL17Y INSURANCE POLICY INSURER REDWOOD FIRE & CASUALTY INISURANCE COMPANY CALIFORNIA WAIVER OP SUBROGATION ---- --------- - - - - -- i FORM NUMBER i 1 +0 • • 1 • . We .agree that.is eQ -as.idCratisn oi_the additional.pxemium charged, the Right of Subrogation Clause contained in this policy is here- by wa_verl as respects the following persons or entities: 'ANY PERSON OR OR;ANIZATION TO WHOM YOU ARE OB:,:CATED BY VALID WRITTEN CONTRACT UrfEFcIAT YOU HAVE AGREED TO FURNISH THIS WAIVER. This endorsement applies only to those persons or entities listed on paragraph. The insured agrees to maintain contract records in order to de- termine for which jobs this Waive] w li apply. That information will be verified by the insurer at final audit. A surcharge of. _% sha -1 be applied to tae risk's Standard Pre1n- i m, subject to a minimum charge of $500, and will be collected upon comple=ign of the final audit. This endorsement changes the pobry to which is attached and is effective on the date issued unless o:.herwise stated. (The in`orrnation below is required only when this endorsement is issued subsequent to preparation of the policy.) ndorserneniEffective 06/271;/2007 Policy No. w- 7636595 Endorsement NO. 1_4 Pol_cy rff: 06/27/2007 Insured CALIc'ORN1A i"lASTE SERVICES, LLC 07; CITY OF NEWPORT BEACH P.O. BOX 1768, NEWPORT BEACH, CA 92658 -8915 Solid Waste Nonexclusive Franchise Application CaA-140e0l'a IdOJle irr�g� ^LL (3 1n) S39-5-9479 Business Name Business Phone � x / w. /Sz.,r') Garj e *j G9 9o-L47 Mailing Address City Zip Sa- .M Business Address City Zip List the name and phone number of two individuals who can be reached in case of emergency other than normal business hours. Fri' CaS�e- ,/� Emergency Contact ame e I ArV1G.e-1o,1 Emergency Contact Name (3/0) 96 mergency Phone -Emergency Phone Indicate the type of business yo conduct in the City of Newport Beach (check all that apply): This business includes installing refuse containers on public property. (Performance Bond hahikiy Insurance required) Ibis business provides commercial refuse service ✓ This business provides construction and demolition refuse service This business provides source separated recyclable material collection For calendar year 2007, please provide an estimate of the annual tons collected an&or diverted by your company in the City of Newport Beach: Please attach: Acceptance of Solid Waste Management Franchise Articles of Incorporation (If applicable) Certificate(s) of Insurance Completed Franchise Agreements Copy of Fictitious Business Statement (If applicable) List of Corporate Officers List of Company Equipment This application completed by: Er t r. CG SO e,. o S — 0.1 �4:N& Applicant Nank, Dale Return this completed application to General Services Director, City of Newport Beach. 3300 Newport Boulevard, Newport Reach, CA 92659 05/1 1/2007 3300 Newport Boulevard, Newport Beach Annual Tons Category Landfill Recycled Total I nstitutional'7ndusiriaUCommercial Demolition (woodhubble) Demolition (inerts) / 70 70 Please attach: Acceptance of Solid Waste Management Franchise Articles of Incorporation (If applicable) Certificate(s) of Insurance Completed Franchise Agreements Copy of Fictitious Business Statement (If applicable) List of Corporate Officers List of Company Equipment This application completed by: Er t r. CG SO e,. o S — 0.1 �4:N& Applicant Nank, Dale Return this completed application to General Services Director, City of Newport Beach. 3300 Newport Boulevard, Newport Reach, CA 92659 05/1 1/2007 3300 Newport Boulevard, Newport Beach STATE OF CALIFORNIA } COUNTY OF ORANGE } as. CITY OF NEWPORT BEACH } I, LaVonne M. Harkless, 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. 2008 -13 was duly and regularly introduced before and adopted by the City Council of said City at a regular meeting of said Council, duly and regularly held on the 22nd day of July 2008, and that the same was so passed and adopted by the following vote, to wit: Ayes: Henn, Rosansky, Curry, Webb, Daigle, Gardner, Mayor Selich Noes: None Absent: None Abstain: None IN WITNESS WHEREOF, I have hereunto subscribed my name and affixed the official seal of said City this 23rd day of July 2008. (Seal) City Clerk City of Newport Beach, California CERTIFICATE OF PUBLICATION STATE OF CALIFORNIA } COUNTY OF ORANGE } ss. CITY OF NEWPORT BEACH } I, LAVONNE M. HARKLESS, City Clerk of the City of Newport Beach, California, do hereby certify that Ordinance No. 2008 -13 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 daily newspaper of general circulation on the following date, to wit: July 26, 2008. In witness whereof, I have hereunto subscribed my name this+f day of 2008. LaiA,,-C, City Clerk City of Newport Beach, California