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HomeMy WebLinkAbout16 - Newport Coast Refuse Collection Contract�rEWpORr u >a i �<IFOR��¢ Council Agenda Item No. 16 February 26, 2002 TO: Mayor and City Council FROM: General Services Director SUBJECT: Award of Newport Coast Residential Refuse Collection Contract Agreement Recommendation Approve the attached contract agreement with Waste Management of Orange County to provide residential refuse collection services in the Newport Coast area. Background The City of Newport Beach officially annexed the Newport Coast area on January 1, 2002. Waste Management of Orange County (WMOC) currently provides residential refuse collection and recycling services in the Newport Coast area under an exclusive franchise agreement with the County of Orange which expires in June 2007. The County agreement provides for residential refuse collection of both multi - family and single family residences. The City has agreed to pay for curbside refuse collection for the residents of single family dwellings at Newport Coast. Multi- family dwellings are not included in the proposed contract nor will the City pay for this service. Pursuant to State law (Public Resources Code 49520), the City is required to continue service with the existing exclusive franchisee, Waste Management of Orange County, for a minimum of five years. The attached written notice was sent to WMOC on December 19, 2001 of the City's intention to seek competitive bids for Newport Coast residential refuse collection for single family residents prior to the expiration of the five -year notice in January 2007. During the interim five years (2002 - 2007), WMOC will provide the residential curbside refuse collection service for single family dwellings as provided in the attached agreement. An analysis of the PRC 49520 has been prepared by the City Attorney's staff and is attached. Discussion Waste Management of Orange County has agreed to provide service as referenced in the attached agreement. The agreement is proposed for a five -year term. Waste Management of Orange County has also agreed to an annual CPI adjustment on only the service portion of the monthly fee. No CPI is proposed for the disposal portion of the fee since the County landfill fee will meldridge /Council- WMNewptComt_StaffRpt Feb26 -.doc remain the same during the initial length of the contract. Annual CPI adjustments are limited to 3% per year. Waste Management of Orange County acknowledges that the City has relied upon its representations and commits to faithfully perform the services required by the agreement and in accordance with the terms and conditions of the agreement. Other significant provisions of the contract are as follows: a. A monthly basic service fee of $13.03 per residence b. An extra can provision for $3.42 per month per residence c. Bulky item pickup available twice a year with a 4 item limit for each residence As a matter of information, WMOC collects residential refuse on a weekly basis utilizing automated collection equipment. Residents are provided two large wheeled refuse containers that can be rolled to curbside where a collection truck with a hydraulic arm is used to collect trash. One of the containers is used to collect refuse and one is used to collect recyclables. The monthly rate of $13.03 per residence is a mid -level rate in the County where residential refuse collection rates range from $8.00 to $16.39 per month. The County exclusive franchise agreement may be amended to exclude the service by WMOC to the Newport Coast Area once the City agreement is approved and executed. This is a matter between the County and WMOC and will not involve the City. Very respectfully, David E. Niederhaus Attachments: (1) Newport Coast Residential Refuse Collection Contractor Agreement (2) City Manager's letter to WMOC dated December 19, 2001. (3) Assistant City Attorney's review of Public Resources Code 49520 and applicability to the WMOC agreement. meldtidge/ Council -W MNewptCowt_StatlRpt_Feb26 -. doc CONTRACTOR AGREEMENT THIS AGREEMENT, entered into effective the 1st day of January of 2002, (the "Effective Date ") by and between the City of Newport Beach, a Municipal Corporation and Charter City ( "City "), and USA Waste of California, Inc. dba Waste Management of Orange County., a California Corporation ( "Contractor or Waste Management "), is made with reference to the following Recitals: RECITALS WHEREAS, Waste Management has a current Non - Exclusive Solid Waste Franchise Agreement to provide commercial solid waste handling services in the City. WHEREAS, On January 1, 2002, City annexed the area referred to as Newport Coast. WHEREAS, Prior to annexation, Newport Coast was within the jurisdiction of the unincorporated area of the County of Orange. WHEREAS, On March 2, 1999 the County of Orange entered into an eight year residential refuse collection agreement with Waste Management of Orange County to provide refuse collection in Newport Coast. WHEREAS, Effective January 1, 2002, the City has jurisdiction over refuse collection services in Newport Coast and pursuant to an annexation agreement is obligated to pay for curbside refuse collection at single family residences in Newport Coast; WHEREAS, City has provided a written 5 year notice to Waste Management of Orange County pursuant to Public Resources Code Section 49520. WHEREAS, City desires to enter into an agreement with Waste Management to provide curbside refuse collection services for single - family residential properties in Newport Coast. WHEREAS, Waste Management and City have agreed that effective January 1, 2002, the existing contract between Waste Management of Orange County and the County of Orange to serve Newport Coast will be superseded by this Agreement with the City of Newport Beach. NOW, THEREFORE, the Parties agree as follows: 1. TERM The Term of this Agreement shall be for a period of five (5) years. The term shall commence as of the Effective Date of this Agreement and expire January 1, 2007. 2. CONTRACTOR SERVICES Contractor's rights and duties shall be limited to those set forth in this Agreement. Contractor agrees to perform in strict compliance with the terms and conditions of this Agreement and the contract services provided in Exhibit A, ( "Contract Services "). The Contract Services shall be performed at least as frequently as specified in Exhibit A. All of the Exhibits are considered to be a part of, and are incorporated into, this Agreement. 3. WORKMANSHIP, SUPERVISION AND EQUIPMENT A. The Contractor shall provide a work force sufficient to perform the Contract Services and all members of the work force shall be hired in compliance with State and Federal law. B. All contract services shall be performed by competent and experienced employees. C. The work force shall include a thoroughly skilled, experienced, and competent supervisor who shall be responsible for adherence to the specifications by directly overseeing the contract operations. All supervisory personnel must be able to communicate effectively in English (both orally and in writing). Any order given to supervisory personnel shall be deemed delivered to the Contractor. Contractor shall provide City with the designated supervisor's name and shall notify City of the name of any successors within ten (10) days of any change in supervision. D. All Contractor personnel working at the outlined areas shall be neat in appearance and in uniforms. F. All vehicles and equipment used in conjunction with the work shall be in good working order and have appropriate safety guards. All vehicles shall bear the identification of the Contractor and clearly post City provided signs that say, "Serving the City of Newport Beach" on each vehicle. 4. COMPENSATION TO CONTRACTOR City shall pay Contractor for Contract Services in accordance with the attached fee schedule (Exhibit B). Contractor shall submit invoices for Contract Services provided to City on a monthly basis. City shall pay invoices within thirty (30) days after receipt by the City. Payment shall be deemed made when deposited in the United States mail, first class postage pre -paid, and addressed to Contractor as specified in Section entitled "Notices ". 2 5. INDEPENDENT CONTRACTOR City has retained Contractor as an independent contractor and neither Contractor nor its employees are to be considered employees of the City. The manner and means of conducting the work are under the control of Contractor, except to the extent they are limited by statute, rule or regulation and the express terms of this Agreement. No civil service status or other right of employment shall accrue to Contractor or its employees. 6. HOLD HARMLESS A. Contractor assumes all risk in any way related to the performance of Contract Services. Contractor agrees to indemnify, defend, save and hold harmless City, its elected and appointed boards and commissions, officers, agents, volunteers, and employees from and against any loss, damages, liability, claims, costs, expenses or damages, including, but not limited to, bodily injury, death, personal injury, property damages, attorneys fees and court costs arising from, or in any way related to, the performance of Contract Services required by this Agreement, provided, however, Contractor's obligation in this regard shall not apply in the event of the fraud or willful misconduct by City, its officials, agents, volunteers, employees or representatives. B. Contractor shall defend, indemnify and hold harmless City, its City Council, boards and commissions, officers, volunteers and employees from and against any and all loss, damages, liability, claims, costs and expenses whatsoever, including reasonable attorneys' fees, which may accrue to any and all persons, or business entities furnishing or supplying work, services, materials, equipment or supplies to Contractor in the performance of services under this Agreement. C. In the event that Contractor and City are sued by a third party for damages caused or allegedly caused by negligent or other wrongful conduct of Contractor, or by a dangerous condition of City's property created by Contractor or existing while the property was under the control of Contractor, Contractor shall not be relieved of its obligation to defend, indemnify, and hold City and its officers, employees, volunteers and representatives harmless, by any settlement with any such third party unless that settlement includes a full release and dismissal of all claims by the third party against the City. 7. INSURANCE A. In addition to Contractor's obligation to defend, indemnify, and hold City harmless, Contractor shall obtain and maintain at its own expense during 3 the term of this Agreement, policy or policies of liability insurance of the type and amounts described below and satisfactory to the City. Certification of all required insurance policies shall be signed by a person authorized by that insurer to bind coverage on its behalf and must be filed with the City prior to performing any Contract Services. Except workers' compensation insurance, all insurance policies shall be endorsed to add City, its elected officials, officers, agents and employees, and volunteers as additional insureds for all liability arising from Contractors services. B. Prior to the commencement of work, Contractor shall provide to City certificates of insurance from an insurance company certified to do business in the State of California, with original endorsements. At the option of City, Contractor shall provide copies of all policies, providing coverage as required by this Agreement. C. Contractor shall provide the following insurance, with Best's Class A -7 or better carriers: 1. Worker's Compensation and Employers Liability insuring statutory Workers' Compensation limits as required by the California Labor Code and one million dollars ($1,000,000) per accident Employers' Liability; 2. Commercial general liability insurance covering third party liability risks, including without limitation, contractual liability, in a minimum amount of one million dollars ($1,000,000) combined single limit per occurrence for bodily injury, personal injury; and property damage. If the policy contains a general aggregate limit, then the aggregate limit shall not be less than two million dollars ($2,000,000); 3. Commercial auto liability and property insurance covering all owned and rented vehicles of Contractor coverage Code 1 "any auto" with a minimum amount of two million dollars ($2,000,000) combined single limit per accident for bodily injury and property damage, and shall include sudden and accidental coverage. D. Endorsements to the policies providing the above insurance shall be obtained by Contractor, adding the following three provisions: 1. Additional Insured: 'The City of Newport Beach and its elected and appointed boards, officers, agents, volunteers and employees, and volunteers as additional insured:' n 2. Notice: "The policy shall not terminate, nor shall it be canceled or the coverage reduced, until thirty (30) days after written notice is given to City." 3. Other Insurance: "Any other insurance maintained by the City of Newport Beach shall be excess and not contributing with the insurance provided by this policy." E. Contractor shall give to City prompt and timely notice of any claim made or suit instituted arising out of Contractors performance of this Agreement. Contractor 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 performance of Contract Services. F. Contractor agrees that in the event of loss due to any of the perils for which it has agreed to provide comprehensive general and automotive liability insurance, that Contractor shall look solely to its insurance for recovery. Contractor hereby grants to City, on behalf of any insurer providing comprehensive general and automotive liability insurance to either Contractor or City with respect to the services of Contractor, a waiver of any right of subrogation that any such insurer of Contractor may acquire against City by virtue of the payment of any loss under insurance. 8. PROHIBITION AGAINST TRANSFERS OR ASSIGNMENT A. Contractor may not assign any right or obligation of this Agreement or any interest in this Agreement without the prior written consent of City. Any attempted or purported assignment without consent of City shall be null and void. Contractor acknowledges that these provisions relative to assignments are commercially reasonable and that Contractor does possess special skills, abilities, and personnel uniquely suited to the performance of Contract Services and any assignment of this Agreement to a third party, in whole or in part, could jeopardize the satisfactory performance of Contract Services. Contractor may not employ any subcontractors unless specifically authorized by City. Contractor may assign or transfer this agreement to subsidiaries or affiliates of the company upon notice to the City. B. The sale, assignment, transfer, or other disposition of any of the issued and outstanding capital stock of Contractor, or of any entity of which Contractor is an affiliate or subsidiary, or of the interest in any general 5 partner or joint venture which shall result in changing the control of Contractor, shall be construed as an assignment of this Agreement. C. Contractor shall promptly notify the City of any company name change. 9. RECORDWREPORTS A. All Contractors books and other business records, or such part as may be used in the performance of this Agreement, shall be subject to inspection and audit by any authorized City representative during regular business hours. B. No report, information, or other data given to or prepared or assembled by Contractor pursuant to this Agreement may be made available to any individual or organization without prior approval by City. C. Contractor shall, at such time and in such form as City may require, provide reports concerning the status or cost of services required by this Agreement. D. Contractor shall complete a monthly report indicating work performed and submit this completed report to the City Administrator within ten (10) days after the end of each month. A phone log will be submitted monthly of all calls from the City of Newport Beach General Services Department and the City of Newport Beach Police Department to the Contractor, whether or not those calls require a request for service and a description of the action taken from the City call. E. Contractor shall keep records and invoices in connection with its work to be performed under this Agreement. Contractor shall maintain complete and accurate records with respect to the disposal and labor costs incurred under this Agreement. All such records shall be clearly identifiable. Contractor shall allow a representative of City during normal business hours to examine, audit, and make transcripts or copies of such records. Contractor shall maintain and allow inspection of all work, data, documents, proceedings, and activities related to this Agreement for a period of three (3) years from the date of final payment under this Agreement. 10. ADMINISTRATION A. This Agreement will be administered by the General Services Department. The General Services Director or his /her designees shall be considered the City's Administrator and shall have the authority to act for the City under this Agreement. The Administrator or his /her authorized representative shall represent the City in all matters pertaining to the services to be rendered pursuant to this Agreement. B. City shall furnish to Contractor maps, ordinances, data, and other existing information as may be requested by Contractor necessary for Contractor to complete the work contemplated by this Agreement. City also agrees to provide all such materials in a timely manner. 11. INCREASE OR DECREASE IN SCOPE OF WORK A. Contractor shall perform refuse collection services as requested by the Administrator and as noted by Exhibit A. The Administrator may give verbal authorization for additional services up to one thousand dollars ($1,000). 12. DISPUTES PERTAINING TO PAYMENT FOR WORK Should any dispute arise respecting whether any delay is excusable, or its duration, or the value of the work done, or of any work omitted, or of any extra work which Contractor may be required to do, or respecting any payment to Contractor during the performance of the Agreement, such dispute shall be decided by the Administrator with any appeal to the City Manager. The City Manager's decision shall be final. 13. REIMBURSEMENT FOR EXPENSES Contractor shall not be reimbursed for any disposal fees or other expenses unless authorized in writing by City Administrator. 14. LABOR AND PERFORMANCE BONDS Contractor shall furnish, concurrently with the effective date of this Agreement, a bond or other instrument satisfactory to the Administrator in an amount equal to Thirty four thousand dollars ($34,000) as security for the Faithful Performance of this Agreement. 15. LABOR A. Contractor shall conform to all applicable provisions of State and Federal law including, applicable provisions of California Labor Code, and the Federal Fair Labor Standards Act. B. Whenever Contractor has knowledge that any actual or potential labor dispute is delaying or threatens to delay the timely performance of this 7 i" 17. 18. 19. Agreement, Contractor shall immediately give notice to City, including all relevant information. NONDISCRIMINATION BY CONTRACTOR Contractor represents and agrees that it does not, and will not, discriminate against any subcontractor, consultant, employee or applicant for employment based on race, religion, color, sex, handicap, national origin, or other basis that violates the federal or state constitution or federal or state law. Contractors obligation not to discriminate shall apply, but not be limited to, the following: employment, upgrading, demotion, transfers, recruitment, recruitment advertising, layoff, termination, rates of pay or other forms of compensation, and selection for training, including apprenticeship. CITY'S RIGHT TO EMPLOY OTHER CONTRACTORS City reserves the right to employ other contractors in connection with this project should the Contractor fail to perform or default. CONFLICTS OF INTEREST A. The Contractor or its employees may be subject to the provisions of the California Political Reform Act of 1974 (the "Act "), which (1) requires such persons to disclose financial interest that may foreseeable be materially affected by the work performed under this Agreement, and (2) prohibits such persons from making, or participating in making, decisions that will foreseeable financially affect such interest. The Contractor will provide a completed disclosure form noting the above. Contractor will comply with the Act and relevant City Resolutions. B. If subject to the Act, Contractor shall conform to all requirements of the Act. Failure to do so constitutes a material breach and is grounds for termination of this Agreement by the City. The Contractor shall indemnify and hold harmless the City for any claims for damages resulting from the Contractor's violation of this Section. NOTICES All notices, demands, requests or approvals to be given under this Agreement must be given in writing and will be deemed served when delivered personally or on the second business day after the deposit thereof in the United States mail, postage prepaid, registered or certified, addressed as hereinafter provided. All notices, demands, requests or approvals from Contractor to City shall be addressed to City at: 93 General Services Department City of Newport Beach 3300 Newport Boulevard PO Box 1768 Newport Beach, CA 92658 -8915 All notices, demands, requests or approvals from City to Contractor shall be addressed to Contractor at: District Manager Waste Management of Orange County 1800 South Grand Avenue Santa Ana, CA 92705 20. TERM INATIONIDEFAULT A. In the event Contractor fails or refuses to timely perform any of the provisions of this Agreement in the manner required or if Contractor violates any provisions of this Agreement, Contractor shall be deemed in default. If such default is not cured within a period of two (2) working days, or if more than two (2) working days are reasonably required to cure the default and Contractor fails to give adequate assurance of due performance within two (2) working days after Contractor receives written notice of default from City, City may terminate the Agreement forthwith by giving written notice. City may, in addition to the other remedies provided in this Agreement or authorized by law, terminate this Agreement for cause in the event of any material breach of this Agreement by giving written notice of termination. B. In addition to, or in lieu of, remedies provided in this Agreement or pursuant to law, City shall have the right to withhold all or a portion of Contractor's compensation for Contract Services if, in the judgment of the City Administrator, the Contractor fails to satisfactorily perform Contract Services. 21. COST OF LITIGATION If any legal action is necessary to enforce any provision of this Agreement, or for damages by reason for an alleged breach of any provisions of this Agreement, the parties agree that the court with jurisdiction over the action may determine and fix reasonable attorneys' fees and expenses to be paid to the prevailing party. 22. COMPLIANCE Contractor represents that it is familiar, and shall comply, with all state, federal, or local laws, rules, ordinance, statutes or regulations applicable to the performance of Contract Services. Contractor shall fully comply with all provisions of its Non - Exclusive Solid Waste Franchise Agreement with the City and any other permitting or franchise requirements adopted by City. 23. WAIVER A waiver by City 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 different character. 24. Contractor agrees that this Agreement shall supercede all previous agreements to provide curbside single - family residential refuse collection services in the Newport Coast area including agreements with the County of Orange. Contractor waives and releases all rights to provide curbside single - family residential services except as provided in this Agreement. Contractor acknowledges receipt of the City five (5) year notice on December 19, 2001 and agrees that upon termination of this Agreement, Contractor will not contest City's right to provide services or contract for services pursuant to a competitive bid process. 25. INTEGRATED CONTRACT This Agreement represents the full and complete understanding of every kind or nature whatsoever between the parties concerning the services to be provided under this Agreement. All preliminary negotiations and agreements of whatsoever kind or nature are merged in this Agreement. No verbal agreement or implied covenant shall be held to vary the provisions hereon. Any modification of this Agreement will be effective only by written execution signed by both City and Contractor. IN WITNESS WHEREOF, the parties have caused this Agreement to be executed on the day and year first written above. ATTEST: LaVonne Harkless, City Clerk 10 CITY OF NEWPORT BEACH A Municipal Corporation 0 Tod Ridgeway, Mayor APPROVED AS TO FORM: By: e obin L. Clauson, Assistant City Attorney 11 USA Waste of alifornia, Inc., dba Waste Ma nt of Or nge -Coun� By: 74e'e7 obert J. CoKe, DistricKlanager LIST OF EXHIBITS Exhibit A Refuse Contract Services Exhibit B Compensation for Services Exhibit B Compensation for Services 1. Compensation for the Contract Services shall be $13.03 per residence. The monthly rate of $13.03 per residence is composed of a base service fee component of $10.72 and a disposal fee component of $2.31. 2. In addition to the monthly rate of $13.03 per residence, City will pay for extra - automated containers for refuse or recycling collection as requested by individual residents in the amount not to exceed $3.42 per resident request. 3. City franchise fees pursuant to NBMC Section 12.63.070 shall be waived, but only for the Contract Services provided in this Agreement. 4. The City will be billed in arrears by the Contractor on a monthly basis. 5. The base service fee of $10.72 shall be increased on January 1, 2003, and every 12 months thereafter to reflect any increase in the Consumer Price Index (CPI — all urban consumers for the Los Angeles — Anaheim — Riverside area) for the 12 months proceeding the prior November index, provided that the CPI increase shall not exceed 3% per 12 month period. Exhibit A Refuse Contract Services 1) Contractor shall provide weekly residential curbside refuse collection, recycling and disposal services to single - family residences in the Newport Coast Area annexed on January 1, 2002 by the City. 2) The Contractor will handle all resident inquiries or complaints of service in an expeditious manner. 3) At no additional charge, Contractor shall provide a bulky item pickup twice per year for each single - family residence with a limit of 4 items per request. 4) The weekly basic service will consist of providing two individual automated style containers, one for refuse and one for recyclable materials. The minimum size of the container shall be 35 gallons with larger containers up to 96 gallons available at the discretion of the property owner. 5) Refuse collection day for Newport Coast will be Friday. Collection day shall not be changed without City approval. No change to this schedule will be considered with less than 60 days notice to the City. 6) Additional individual automated -style refuse collection containers will be provided upon request of the resident. The cost for the extra service provided in Exhibit B will be borne by the City. 7) Contractor shall collect, recycle and dispose of all residential solid waste materials in accordance with the provisions of the Non - exclusive Solid Waste Franchise Agreement and all applicable City ordinances and State mandates. 8) Contractor shall provide curbside collection of Christmas trees on the first two regularly scheduled collection days after Christmas Day. 9) Contractor shall provide on a monthly basis all necessary reporting data requested by the City relating to the City's compliance requirements pertaining to AB 939 as it affects the City's Integrated Solid Waste Management Plan. Such reports shall be provided to the City within 30 days after the end of each calendar quarter. The Contractor shall cooperate with activities requested by the City to measure diversion of solid waste from landfills, including, but not limited to, providing a location for conducting waste sorting and re- routing trucks on a temporary basis to facilitate composition analysis. 13 Exhibit A Refuse Contract Services 10) The Contractor shall keep data on the origin and tonnage of solid waste collected in the Newport Coast area. The Contractor shall provide to the City, on a quarterly basis, the following information in a format supplied by or approved by the General Services Director: 1. The tonnage of Solid Waste collected by the gross number of tons collected each month. 2. The origin and tonnage of solid waste that is actually delivered to the designated landfill each quarter. 3. The weight of recyclable materials collected in the Newport Coast area and delivered for recycling. 4. The facility to which each type of recyclable material or recovered material is delivered by the Contractor. 5. Total weight, by type of material, of glass, aluminum, plastic, paper, cardboard, concrete, dirt, asphalt, green waste, lumber and white goods collected monthly. 6. Any other information reasonably requested by the City to meet State or Federal regulatory reporting requirements of the City's Source Reduction and Recycling Element (SRRE), as it may be amended from time to time. 14 Exhibit B Comaensation for Services 1. Compensation for the contract services shall be $13.03 per residence. The monthly rate of $13.03 per residence is composed of a base service fee component of $10.72 and a disposal fee component of $2.31. 2. In addition to the monthly rate of $13.03 per residence, City will pay for extra - automated containers for refuse or recycling collection as requested by individual residents in the amount not to exceed $3.42 per resident request. City franchise fees pursuant to NBMC Section 12.63.070 shall be waived, but only for the Contract Services provided in this Agreement. 4. The City will be billed in arrears by the Contractor on a monthly basis. 5. The base service fee of $10.72 shall be increased on January 1, 2003, and every 12 months thereafter to reflect any increase in the Consumer Price Index (CPI — all urban consumers for the Los Angeles — Anaheim — Riverside area) for the 12 months proceeding the prior November index, provided that the CPI increase shall not exceed 3% per 12 month period. meldtldge/Council -WMNe ptCoast _Contmct_Feb26_FinalDmft.doc 15 Foy1 CITY OF NEWPORT BEACH u = C9Cf FOAN�P December 19, 2001 Bob Coyle, Area President Waste Management of Orange County 1800 S. Grand Street Santa Ana, CA 92705 Dear Mr. Coyle: As noted in your phone conversation with our General Services Director, David Niederhaus, of December 13, 2001, the City is providing Waste Management of Orange County with a five -year notice of our intent to assume the responsibility for residential refuse collection in the Newport Coast area effective January 1, 2007 in accordance with the State Public Resources Code (Section 49520). After that date, the City intends to solicit competitive bids for the residential refuse collection service for the area. If you have any questions related to this matter, please call our General Services Director, David E. Niederhaus, at (949) 644 -3055. Sincerely, Homer L. Bludau City Manager City Hall • 3300 Newport Boulevard • Newport Beach, California 92663 -3884 CITY OF NEWPORT BEACH CITY ATTORNEY'S OFFICE TO : MAYOR AND MEMBERS OF THE CITY COUNCIL FROM: ROBIN L. CLAUSON, ASSISTANT CITY ATTORNEY 2002 Agenda Item RE PROPOSED CONTRACT BETWEEN THE CITY OF NEWPORT BEACH AND WASTE MANAGEMENT The City Council has been asked to approve a contract with Waste Management to provide, effective January 1, 2002, refuse collection services for single - family residential homes in the recently annexed Newport Coast Area. At the last meeting Councilman Steve Bromberg asked the City Attorney's Office to provide Council with an analysis of the State law provided by Delores Otting. I have reviewed the Public Resources Code and the Government Code Sections attached to this memo and can advise that the proposed contract complies with the continuation of services provisions of Public Resources Code Section 49520. Waste Management currently operates in the City of Newport Beach under a franchise approved pursuant to the City Charter. Prior to annexation of Newport Coast Waste Management had the exclusive County franchise to provide residential refuse collections in unincorporated areas of the County including Newport Coast. The contract between Waste Management and the County of Orange will expire on June 30, 2007. The City has provided Waste Management with the five year notice pursuant to Section 45920. The proposed contract between the City of Newport Beach and Waste Management will allow Waste Management to continue to provide refuse services for single family residences in Newport Coast for five years. The proposed contract therefore complies with the continuation of services provisions of Section 49520. PRC Section 49522 provides that a City would have the right following an annexation to terminate a franchise authorized by a county if that termination is for cause. The City staff is not aware of any legal cause to terminate the exclusive contract between Waste Management and the County. The proposed contract with the City is for curbside service for single - family residential only. The County franchise gives Waste Management the exclusive right to provide single - family, and multi - family residential refuse services. There has been discussion regarding Waste Management's rights to continue exclusive refuse services for apartments and condominium projects in Newport Coast now that Newport Coast is part of Newport Beach- a non - exclusive franchise jurisdiction for those services. The Public Resources code does not give direction on the unique situation where land subject to an exclusive County franchise is annexed to a City with a non - exclusive franchise for commercial and multifamily refuse service. The question of how the provisions of Section 49520 apply to Waste Management's rights to multi - family refuse collection under the County contract is not within the scope of the proposed agreement. Unless Council Council Agenda Item No. _ Date Page: 2 provides direction otherwise it is my recommendation for the issue to be resolved by Waste Management. The provisions of Government Code Sections 57375 -57385 apply to incorporation of a City not annexation of territory to a City and therefore were not applicable to the annexation proceedings for Newport Coast. Robin Clauson F:\ users\ cat% haredWa \CCmemo\wasteMngtCurbside.doc Submitted to the City Council at the meeting of 2112102 by Ms. Delores Otting2, PUBLIC RESOURCES CODE SECTION 49520 -49524 49520. If a local agency has authorized, by franchise, contract, license, or permit, a solid waste enterprise to provide solid waste handling services and those services have been lawfully provided for more than three previous years, the solid waste enterprise may continue to provide those services up to five years after mailed notification to the solid waste enterprise by the local agency having jurisdiction that exclusive solid waste handling services are to be provided or authorized, unless the solid waste enterprise has an exclusive franchise or contract. If the solid waste enterprise has an exclusive franchise or contract, the solid waste enterprise shall continue to provide those services and shall be limited to the unexpired term of the contract or franchise or five years, whichever is less. 49521. A solid waste enterprise providing continuation solid waste handling services pursuant to Section 49520 is subject to the following conditions: (a) The services of the solid waste enterprise shall be in substantial compliance with the terms and conditions of the franchise, contract, license, or permit, and meet the quality and frequency of services required by the local agency in other areas not served by the solid waste enterprise. (b) If the local agency has established rates for solid waste handling services, the solid waste enterprise may be required by the local agency to adhere to rates that are comparable to those established by the local agency. 49522. Nothing in this chapter affects the right of a city following annexation to terminate for cause a franchise, contract, license, or permit held by a solid waste enterprise authorized by the county. 49523. Any local agency or solid waste handling enterprise may contract, upon mutually satisfactory terms, for the termination of all or any part of the business of the solid waste enterprise before the expiration of the period specified in Section 49520. PIzCF Z 49524. Notwithstanding Section 49523, a solid waste enterprise may not waive the right to continue to provide solid waste handling services as provided in this chapter. GOVERNMENT CODE SECTION 57375 -57385 57375. Except as otherwise provided in this chapter, on and after the effective date of an incorporation, the territory incorporated, all inhabitants within the territory, and all persons entitled to vote within the newly incorporated city by reason of residing in the city are subject to the jurisdiction of the city and shall have the rights and duties conferred on them as inhabitants and voters of the incorporated city. 57376. (a) If the newly incorporated city comprises territory formerly unincorporated, the city council shall, immediately following its organization and prior to performing any other official act, adopt an ordinance providing that all county ordinances previously applicable shall remain in full force and effect as city ordinances for a period of 120 days after incorporation, or until the city council has enacted ordinances superseding the county ordinances, whichever occurs first. However, if the Board of Supervisors of the County of Orange has adopted an ordinance or resolution, or both, pursuant to Section 50029 or 66484. 3 prior to the effective date of an incorporation of a city within that county, that ordinance or resolution shall not be repealed or superseded by the city until the county ordinance or resolution has been repealed or superseded by the board of supervisors of that county. If the county ordinance or resolution is repealed or superseded, then within 30 days of the effective date of the ordinance or resolution repealing or superseding the county ordinance or resolution, the city council shall enact a new ordinance or resolution conforming in all respects to the action taken by the county. The ordinance enacted by the city council immediately following its organization also shall provide that no city ordinance enacted within that 120 -day period of time be deemed to supersede any county ordinance unless the city ordinance specifically refers to the county ordinance, and states an intention to supersede it. Enforcement of the continuing county ,f Gr-NERAL ELECTION NuVEMBER 5, 1996 CITY OF NEWPORT BEACH Initiative Ordinance 878 be amended to QShall require the City of Newport Beach to use Mesas+ot property tax revenue to pay only far the cost of providing curbside container refuse collection for existing or future residential units within city boun November 1,1996? CITY OF ORANGE Shall the City of Orange Council Members be Yes + Rlimited to a maximum of two conseative tour - year terms and the elected Mayor be limited to No + a maximum ofWeeccnsecutivehvo -year terms? CITY OF YORBA LINDA Shall the Ordinance be adopted which ordains 1yes + SNat a person is ineligible to hold office as a No + Member of the City Council if that person has served in the office for three (3) full terms? Shall the Ordinance be adopted which ordains Yes + T that a person is inelig' to hold office a5 a Member of the City Council if that person has No + served in the office for two (2) consecutive full terms, unless he or she has been out of the office for at least two ears. with no limitation on the total number of terms? ROSSMOOR COMMUNITY SERVICES DISTRICT Shall the ordinance be adopted expanding the Yes + U powers of the Rossmoor Community Services District to the extent necessary to repair, main- No + tain andlor replace the Rossmocr redbrick wag adjacent to Los Ala itasiSeal Beads Boulevard. snbjeato adoption of a special tax Measure to pay for such by a two-thirds malonty vote7 Shall the resolution be approved whits im- Yesl + V poses a spedal tax of TNENTf -FOUR Dollars ($24.00) per year on property within the Ross- No + moor Community Services District in order to pay for maintenance, repair, and/or replacement of the Rossmoor red brick wall adjacent to Los Alamitos/Seal Beach Boulevard, subject to the adoption of Measure U by a majority vote? PLACENTIA LIBRARY DISTRICT Shall the Placentia Library District be author- Yes + W ized to levy a special per parcel tax annually for five years to replace library funding lost due to No + the reallocation of Iced property tax by the State of California and the elimination of the Special District Augmentation Fund? 3 y FULL TEXT OF MEASURE Q CITY OF NEWPORT BE .C1 COSTS DEFRAYED FROM AD VALOREM TAX REVENUE (Ordinance 878 as adopted by a majority vote of the electorate of the City of Newport Beach on 612159, effective 6119159) Section 5.04.170. The cost and expense of collecting, hauling away and disposing of garbage, refuse and cuttings as those terms are defined by Sections 6.04.010, 6.04.020 and 6.04.030, for any dwelling or dwelling unit. existing or future within the boundaries of the ity as of November 1 1996 that receives rtb ide container refuse roll coon service from the City of Newport Beach, shall be defrayed exclusively from the ad valorem tax revenues of the City of Newport Beach. ARGUMENT IN FAVOR OF MEASURE Q VOTE YES ON MEASURE Q YES ON MEASURE Q • Reaffirms right of residents to continue to receive curbside container refuse service without fees. YES ON MEASURE Q • Protects against reductions in Police, Fire and Library and other important services that would result if taxpayers pay the cost of providing free refuse service for all businesses. YES ON MEASURE Q • Avoids dramatic increases in the number of City employees and equipment necessary to collect all of the refuse generated by busi- nesses. YES ON MEASURE Q • Ensures the City's ability to provide services to its residents without being impacted by the cost of refuse services to areas annexed to the City in the future. YES ON MEASURE Q • Ensures that commercial solid waste collection and disposal is handled by the private sector — not public employees at taxpayers expense. YES ON MEASURE Q • Eliminates government subsidies to some businesses and promotes competition on a level playing field. Residents and business owners who rare about the quality of life in Newport Beach support Measure Q. AYES vote on Measure Q protects the right of residents to receive trash collection service without the fees that are charged by every other Orange County city. Passage of Measure Q will ensure that property tax revenues continue to be used to provide high quality Library, Police and Fire services to the community — not free refuse collection for a few businesses. A YES vote on Measure Q will eliminate government subsidies for those few busi- nesses who currently benefit from an ordinance designed to protect residents. Vote YES on Measure Q to protect your right to free trash service while ensuring continued high quality Police. Fire and Library services. s/ Dennis D. O'Neil, City Councilmember Chairman of Council Finance Committee s/ Rush Hill, Chairman Newport Harbor Area Chamber of Commerce s/ Norma Glover, City Councilmember Chairman of Council Public Safety Committee s/ Mike Stephens, Former Chairman Newport Harbor Area Chamber of Commerce S/ Phil Sansone, Former Mayor Chairman Corona del Mar Residents' Association IMPARTIAL ANALYSIS BY CITY ATTORNEY n MEASURE Q In 1959, Newport Beach voters approved an initiative measure which required the City to use ad valorem property tax revenues to pay for the cost of collecting, hauling and disposing garbage and refuse. The City has, for more than 35 years, used property tax revenue to finance the cost of providing curbside container refuse service to single family residences, some multi family residences, and a very small percentage of businesses. The vast majority of businesses and many large residen- tial projects collect refuse in bins and pay private haulers to dispose of the garbage. Newport Beach is the only City in Orange County that uses property tax revenue to pay for residential container refuse service. A yes vote on this Measure would require the City to continue to use property tax revenue to pay for the cost of curbside container refuse service for existing residential units and those to be constructed within the current boundaries of the City of Newport Beach. A "yes" vote on this measure will not affect businesses and residential projects using private haulers to collect and dispose of refuse but will eliminate the City's practice of providing free refuse service to approximately 200 businesses. A "no" vote on the Measure would, at the very least, require the City to continue to use property tax revenue to pay for curbside container refuse collections service currently provided for some busi- nesses. A "no" vote on this Measure would potentially cause the City to use approximately $5,000,000 in property tax revenue to fund the cost of refuse collection formore than 4,000 businesses with a corresponding reduction in revenue for other City services. s/ Robert H. Burnham City Attorney REBUTTAL TO ARGUMENT IN FAVOR OF MEASURE Q The basic premise of Measure 0 is faulty. It is the bureaucratic camel's nose in the taxpayer's tent of tax -paid refuse collection. Already a majority of the City Council would like to charge you monthly for refuse service already paid for by your taxes. There would be no limit to those fees. A point by point answer to the proponents argument follows: • No affirmation is necessary. Free refuse service is already memori- alized in the existing ordinance. • The existing ordinance has been in place for nearly 40 years without service cuts. • The number of City employees and equipment needed to collect refuse is already reduced. There is no increase whatsoever planned or required. • The measure would greatly harts the City's ability to annex by imposing a tax on future residents. Additional tax revenues will be lost • The City Council has already refused to put City refuse collection out to private bid. • There are no government subsidies. What is touted as competition is really a cut in service. This measuremasks the refusal of the City to fulfill its obligation to public financial responsibility. Non - resident use of the Library is over50 %. The City Council refused to consider significant savings in administration of the public safety departments which could enhance the ability to provide police and fire service at lower cost. The City Council refused to refund recycling fee overcharges. The City is spending thousands of your tax money on this faulty Measure as it whistles in fiscal darkness. Vote NO on Measure 0. s/ John Hedges Mayor City of Newport Beach ?q -139? I► ARGUMENT AGAINST MF A' RE Q Measure Q suffers from two fatal flaws. The ,first is that it would create two Gasses of Newport Beach citizens — those who reside here now, and those who are annexed in the future. Future citizens would have to pay a high monthly charge for garbage pickup while present citizens are charged by expenditure of other tax revenues. This creation of separate classes needlessly jeopardizes the successful annexation of the Newport Coast —an annexation which would result in millions of dollars of additional revenues and forwhich potential residents must vote. What benefit would any future citizens see in annexation to Newport Beach? Would you want to be part of a City which charged you more for the same service than your neighbors? The second flaw is that the City Council has refused to make the moral commitment to spend your tax dollars wisely. The City Council rejected a proposal to refund excess tax and fee revenues to you, the taxpayer. The main proponents of Measure Q called the tax refund proposal "unreasonable." Does anyone really believe that this raid on small businesses will result in improved services and lower Costs? The proponents argue that the current system results in inequities —those of businesses which have refuse pickup and those which do not. This is the same inequity that Measure Q would create among Newport Beach residents. They will argue that some businesses "abuse" the service by having daily refuse collection. NOTHING in our charter or codes requires daily pickup. This "problem" Can and should be handled administratively. Don't believe the proponents' siren song of responsible administration. They have shown far too often their willingness to raise taxes and fees with no commitment to spend responsibly. You'll pay one way or another. Stand up for responsible, fair, and equitable representation. Vote NO on Measure Q. s/ John W. Hedges RESUTT4' )ARGUMENT AGAINST MEASURE Q Don't I fooled �, . ical rhetoric of a few — The City Council in a 6•1 vote placed Measure Q on the ballot because they believe a YES vote on Measure Q is a vote for fiscal responsibility. The two Council_ members signing this argument are fiscal conservatives who recently voted in favor of a proposal to refund taxes and fees to residents. Measure Q lets the voters decide if their tax dollars should be used for police, fire and library services or commercial trash collection. Your YES vote means continued free resident trash service without the potential for a five million dollar reduction in police, fire and library services. Vote YES on Measure Q to close a loophole in existing law which requires the City today to pay for the cost of trash collection for 200 businesses and could force the City to pay for trash collection and disposal for over 4,000 businesses. The City Council wants to annex Newport Coast but only if it makes financial sense — the Council will not annex any territory at the expense of current residents. AYES vote on Measure Q makes annexation more likely because current residents won't be subsidizing trash collection services for new residents. A YES vote on Measure Q will mean tax dollars are spent wisely by reaffirming your right to receive free trash collection without jeopardizing police, fire and library services that make Newport Beach a great, City. s/ Dennis D. O'Neil, City Councilmember and Chairman of Council Finance Committee s/ Rush Hill, Chairman Newport Harbor Area Chamber of Commerce s/ Norma Glover, City Councilmember and Chairman of Council Public Safety Committee s/ Michael Stephens, Former Chairman Newport Harbor Area Chamber of Commerce s/ Phil Sansone, Former Mayor Chairman, Corona del Mar Residents' Association 30 -140 1' CC N1li1C. \aL1U11 NbrCC111C11L Yaue 150 Of 4-) patrol beats to ensure that the Property becomes a part of two patrol beats (beats covering the Property and other portions of the City) to enhance coverage in the Newport Coast in comparison to existing service. City will periodically evaluate staffing and assignments to ensure that levels of patrol and service call response times in the Newport Coast are comparable to other areas of the City. City shall consider, and implement when appropriate, recommendations of the Committee to provide temporary law enforcement services to Newport Coast residents such as the use of the Community Center or fire station to stage events such as crime prevention presentations, fingerprinting, and other community events. The Parties acknowledge that this Agreement does not create any legal claim or right of action on the part of any Newport Coast resident to any specific law enforcement service or response time and that all decisions relative to service are subject to the City Council's authority pursuant to the Charter. 12. CURBSIDE RESIDENTIAL REFUSE COLLECTION. City shall, as of the Effective Date, pay all charges incurred from the Effective Date forward by any residential Association, or any resident of any Association, that is a Party to this Agreement, for curbside refuse collection for fully improved and occupied single family residences. City shall have no obligation to pay for, or provide, any form of refuse collection for educational, commercial, hotel, timeshare, or multi- family uses. City's obligation to pay for refuse collection charges for curbside residential collection shall continue until: a. Similar refuse collection is no longer provided without charge to residents in Newport Beach's pre -1996 boundaries; or - b. City provides the refuse collection service using its own forces or http: / /www. city. newport- beach .ca.... /NCPreAnnexAgreement.ht 01/27/2002 Pre-Annexation Agreement Handout Version — Page 10 Property and other portions of the City) to enhance coverage in the Newport Coast in comparison to existing service. City will periodically evaluate staffing and assignments to ensure that levels of patrol and service call response times in the Newport Coast are comparable to other areas of the City. City shall consider, and implement when appropriate, recommendations of the Committee to provide temporary law enforcement services to Newport Coast residents such as the use of the Community Center or fire station to stage events such as crime prevention presentations, fingerprinting, and other community events. The Parties acknowledge that this Agreement does not create any legal claim or right of action on the part of any Newport Coast resident to any specific law enforcement. service or response time and that all decisions relative to service are subject to the City Council's authority pursuant to the Charter. 12. CURBSIDE RESIDENTIAL REFUSE COLLECTION. City shall, as of the Effective Date, pay all charges incurred from the Effective Date forward by any residential Association, or any resident of any Association, that is a Party to this Agreement, for curbside refuse collection for fully improved and occupied single family residences. City shall have no obligation to pay for, or provide, any form of refuse collection for educational, commercial, hotel, timeshare, or multi- family uses. City's obligation to pay for refuse collection charges for curbside residential collection shall continue until: (a) Similar refuse collection is no longer provided without charge to residents in Newport Beach's pre -1996 boundaries; or (b) City provides the refuse collection service using its own forces or a contractor. In the event City provides curbside residential refuse service, City shall provide that service at the same rates as are paid by the Newport Beach residents paying the lowest rate for the same or similar service. In the event City assumes the responsibility for curbside refuse collection for single family residences using its own forces, City shall use its best efforts to provide refuse collection service using equipment and collection techniques such as automated collection vehicles and presorted refuse containers similar to those in use as of the Effective Date. 13. OPEN SPACE AND RECREATIONAL FACILITIES (a) Procedures. The Parties acknowledge that certain open space dedications may have been accepted by the County and /or may contain conditions that preclude or impair the Parties' ability to achieve the Open Space Goals. NCC2K acknowledges that City has a pre - existing duty to take or avoid any action that could impair or restrict the development rights of Company and that failure to perform could impact the open space dedication or improvement obligations of the Company. Accordingly, the NCC2K acknowledges that the City is required to accept the transfer or assignment of any open space dedicated to the County unless the City determines that failure to do so will have no impact on the Company's development rights and Company consents in writing. NCC2K also acknowledges that City is required to accept any open space offered for dedication unless the City determines that failure to do so will have no impact on Company's development rights and Company consents in writing. City shall accept, conditionally accept, require revisions to, or reject offers of dedication of -open space as necessary or appropriate to achieve the Open Space Goals if City has determined that such action will not impact Company's development rights and Company has consented to such action in writing. City shall also accept dedications of open space that may be inconsistent with the Open Space Goals • SEW PORT ,,nn D F p, FOM1�� c�U e TO: GE M1L aeric s Mayor and City Council Council Agenda Item No. 14 February 12, 2002 FROM: General Services Director 1 b al�foa SUBJECT. Award of Newport Coast Residential Refuse Collection Contract Agreement Recommendation Approve the attached contract agreement with Waste Management of Orange County to provide residential refuse collection services in the Newport Coast area. Background • The City of Newport Beach officially annexed the Newport Coast area on January 1, 2002. Waste Management of Orange County currently provides residential refuse collection and recycling services in the Newport Coast area under an exclusive franchise agreement with the County of Orange. The City has agreed to pay for refuse collection for the residents of Newport Coast. Pursuant to State law (Public Resources Code 49520), the City is required to continue service with the existing exclusive franchisee, Waste Management of Orange County (WMOC), for a minimum of five years. Written notice has been sent to WMOC of the City's intention to seek bids for the Newport Coast residential refuse collection in January 2007. During the interim five years (2002- 2007), the City will contract with WMOC for residential refuse collection service. At the end of the five -year period, the City will be free to competitively bid the service. Discussion Waste Management of Orange County desires to enter into an agreement with the City to provide service as referenced in the attached agreement. The agreement is proposed for a five -year term as necessitated by the provisions of the State law noted above. Waste Management of Orange • County has also agreed to an annual CPI adjustment on only the service portion of the monthly fee. No CPI is proposed for the disposal portion of the fee since the County landfill fee will remain the same during the length of the contract. Annual CPI adjustments are limited to 3% per year. - FAUSERSkGSWHammend\SMfr Reports\010802WWcManagemenlCon r ctdoc Waste Management of Orange County acknowledges that the City has relied upon its representations and commits to faithfully perform the services required by the agreement and in • accordance with the terms and conditions of the agreement. Other significant provisions of the contract are as follows: a. A monthly basic service fee of $13.03 per residence b. An extra can provision for $3.42 per month per residence c. Bulky item pickup available twice a year with a 4 item limit for each residence As a matter of information, WMOC collects residential refuse on a weekly basis utilizing automated collection equipment. Residents are provided two large wheeled refuse containers that can be rolled to curbside where a collection truck with a hydraulic arm is used to collect trash. One of the containers is used to collect refuse and one is used to collect recyclables. The monthly rate of $13.03 per residence is a mid -level rate in the County where residential refuse collection rates range from $8.00 to $16.39 per month. The County exclusive franchise agreement will be amended to exclude the service by WMOC to the Newport Coast Area once the City agreement is approved and executed. Very respectfully, David E. Niederhaus Attachment: Newport Coast Refuse Contract Agreement 0 F. \USERS\GSWHa n&Smff Reports \010802WaseManage ntConnacLdoc • CONTRACTOR AGREEMENT THIS AGREEMENT, entered into effective the 1st day of January of 2002, by and between the City of Newport Beach, a Municipal Corporation and Charter City ( "City "), and USA Waste of California, Inc. dba Waste Management of Orange County., a California Corporation ( "Contractor or Waste Management "), is made with reference to the following Recitals: RECITALS WHEREAS, Waste Management has a current Non - Exclusive Solid Waste Franchise Agreement to provide commercial solid waste handling services in the City. WHEREAS, On January 1, 2002, City annexed the area referred to as Newport Coast. WHEREAS, Prior to annexation, Newport Coast was within the jurisdiction of the unincorporated area of the County of Orange. WHEREAS, On March 2, 1999 the County of Orange entered into an eight year residential refuse collection agreement with Waste Management of Orange County to provide refuse collection in Newport Coast. • WHEREAS, Effective January 1, 2002, the City has jurisdiction over refuse collection services in Newport Coast. LJ WHEREAS, City has provided a written 5 year notice to Waste Management of Orange County pursuant to Public Resources Code Section 49520. WHEREAS, City desires to enter into an agreement with Waste Management to provide refuse collection services for residential properties in Newport Coast. WHEREAS, Waste Management and City have agreed that effective January 1, 2002, the existing contract between Waste Management of Orange County and the County of Orange to serve Newport Coast will be replaced by a new contract with the City of Newport Beach. NOW, THEREFORE, the Parties agree as follows: 1. TERM The Term of this Agreement shall be for a period of five (5) years. The term shall, commence the date this Agreement receives City Council approval. 1 2. CONTRACTOR DUTIES Contractor shall perform the services specifically described in, and in strict compliance with the Scope of Work ( "Contractor Duties ") Exhibit A. The Contract Duties shall be performed at least as frequently as specified in Exhibit A. All of the Exhibits are considered to be a part of, and are incorporated into, this Agreement. 3. WORKMANSHIP, SUPERVISION AND EQUIPMENT A. The Contractor shall provide a work force sufficient to perform the Contract Services and all members of the work force shall be hired in compliance with State and Federal law. B. All contract services shall be performed by competent and experienced employees. C. The work force shall include a thoroughly skilled, experienced, and competent supervisor who shall be responsible for adherence to the specifications by directly overseeing the contract operations. All supervisory personnel must be able to communicate effectively in English (both orally and in writing). Any order given to supervisory personnel shall be deemed delivered to the Contractor. Contractor shall provide City with the designated supervisor's name and shall notify City of the name of any successors within ten (10) days of any change in supervision. D. All Contractor personnel working at the outlined areas shall be neat in appearance and in uniforms. F. All vehicles and equipment used in conjunction with the work shall be in good working order and have appropriate safety guards. All vehicles shall bear the identification of the Contractor and clearly post City provided signs that say "Serving the City of Newport Beach" on each vehicle. 4. COMPENSATION TO CONTRACTOR City shall pay Contractor in accordance with attached fee schedule (Exhibit B). Contractor shall submit invoices for services provided to City on a monthly basis. City shall pay invoices within thirty (30) days after receipt by the City. Payment shall be deemed made when deposited in the United States mail, first class. postage pre -paid, and addressed to Contractor as specified in Section entitled "Notices ". c 2 • 5. INDEPENDENT CONTRACTOR City has retained Contractor as an independent contractor and neither Contractor nor its employees are to be considered employees of the City. The manner and means of conducting the work are under the control of Contractor, except to the extent they are limited by statute, rule or regulation and the express terms of this Agreement. No civil service status or other right of employment shall accrue to Contractor or its employees. 6. HOLD HARMLESS A. Contractor assumes all risk in any way related to the performance of Contract Services. Contractor agrees to indemnify, defend, save and hold harmless City, its elected and appointed boards and commissions, officers, agents, volunteers, and employees from and against any loss, damages, liability, claims, costs, expenses or damages, including, but not limited to, bodily injury, death, personal injury, property damages, attorneys fees and court costs arising from, or in any way related to, the performance of Contract Services required by this Agreement, provided, however, Contractor's obligation in this regard shall not apply in the event of the fraud or willful misconduct by City, its officials, agents, volunteers, • employees or representatives. B. Contractor shall defend, indemnify and hold harmless City, its City Council, boards and commissions, officers, volunteers and employees from and against any and all loss, damages, liability, claims, costs and expenses whatsoever, including reasonable attorneys' fees, which may accrue to any and all persons, or business entities furnishing or supplying work, services, materials, equipment or supplies to Contractor in the performance of services under this Agreement. C. In the event that Contractor and City are sued by a third party for damages caused or allegedly caused by negligent or other wrongful conduct of Contractor, or by a dangerous condition of City's property created by Contractor or existing while the property was under the control of Contractor, Contractor shall not be relieved of its obligation to defend, indemnify, and hold City and its officers, employees, volunteers and _ representatives harmless, by any settlement with any such third party unless that settlement includes a full release and dismissal of all claims by the third party against the City. 3 7. INSURANCE • A. In addition to Contractor's obligation to defend, indemnify, and hold City harmless, Contractor shall obtain and maintain at its own expense during the term of this Agreement, policy or policies of liability insurance of the type and amounts described below and satisfactory to the City. Certification of all required insurance policies shall be signed by a person authorized by that insurer to bind coverage on its behalf and must be filed with the City prior to performing any Contract Services. Except workers' compensation insurance, all insurance policies shall be endorsed to add City, its elected officials, officers, agents and employees as additional insureds for all liability arising from Contractors services. B. Prior to the commencement of work, Contractor shall provide to City certificates of insurance from an insurance company certified to do business in the State of California, with original endorsements. At the option of City, Contractor shall provide copies of all policies, providing coverage as required by this Agreement. C. Contractor shall provide the following insurance, with Best's Class A -7 or better carriers: 1. Workers Compensation and Employers Liability insuring statutory Workers' Compensation limits as required by the California Labor Code and one million dollars ($1,000,000) per accident Employers' Liability; 2. Commercial general liability insurance covering third party liability risks, including without limitation, contractual liability, in a minimum amount of one million dollars ($1,000,000) combined single limit per occurrence for bodily injury, personal injury; and property damage. , If the policy contains a general aggregate limit, then the aggregate limit shall not be less than two million dollars ($2,000,000); 3. Commercial auto liability and property insurance covering all owned and rented vehicles of Contractor coverage Code 1 "any auto" with a minimum amount of two million dollars ($2,000,000) combined single limit per accident . for bodily injury and property damage, and shall include sudden and accidental coverage. D. Endorsements to the policies providing the above insurance shall be obtained by Contractor, adding the following three provisions: 3! • 1. Additional Insured: "The City of Newport Beach and its elected and appointed boards, officers, agents, volunteers and employees as additional insured." 2. Notice: "The policy shall not terminate, nor shall it be canceled or the coverage reduced, until thirty (30) days afterwritten notice is given to City." 3. Other Insurance: "Any other insurance maintained by the City of Newport Beach shall be excess and not contributing with the insurance provided by this policy." E. Contractor shall give to City prompt and timely notice of any claim made or suit instituted arising out of Contractor's performance of this Agreement. Contractor 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 performance of Contract Services. F. Contractor agrees that in the event of loss due to any of the perils for which it has agreed to provide comprehensive general and automotive liability insurance, that Contractor shall look solely to its insurance for recovery. Contractor hereby grants to City, on behalf of any insurer providing comprehensive general and automotive liability insurance to either Contractor or City with respect to the services of Contractor, a waiver of any right of subrogation which any such insurer of Contractor may acquire against City by virtue of the payment of any loss under insurance. 8. PROHIBITION AGAINST TRANSFERS OR ASSIGNMENT A. Contractor may not assign any right or obligation of this Agreement or any interest in this Agreement without the prior written consent of City. Any attempted or purported assignment without consent of City shall be null and void. Contractor acknowledges that these provisions relative to assignments are commercially reasonable and that Contractor does possess special skills, abilities, and personnel uniquely suited to the performance of Contract Services and any assignment of this Agreement to a third party, in whole or in part, could jeopardize the satisfactory . performance of Contract Services. Contractor may not employ any subcontractors unless specifically authorized by City. Contractor may • assign or transfer this agreement to subsidiaries or affiliates of the company upon notice to the City. B. The sale, assignment, transfer, or other disposition of any of the issued and outstanding capital stock of Contractor, of the interest of any general partner or joint venture which shall result in changing the control of Contractor, shall be construed as an assignment of this Agreement. C. Contractor shall promptly notify the City of any company name change. 9. RECORDWREPORTS A. All Contractor's books and other business records, or such part as may be used in the performance of this Agreement, shall be subject to inspection and audit by any authorized City representative during regular business hours. B. No report, information, or other data given to or prepared or assembled by Contractor pursuant to this Agreement may be made available to any individual or organization without prior approval by City. C. Contractor shall, at such time and in such form as City may require, provide reports concerning the status or cost of services required by this • Agreement. D. Contractor shall complete a monthly report indicating work performed and submit this completed report to the City Administrator within ten (10) days after the end of each month. A phone log will be submitted monthly of all calls from the City of Newport Beach General Services Department and the City of Newport Beach Police Department to the Contractor, whether or not those calls require a request for service and a description of the action taken from the City call. E. Contractor shall keep records and invoices in connection with its work to be performed under this Agreement. Contractor shall maintain complete and accurate records with respect to the disposal and labor costs incurred under this Agreement. All such records shall be clearly identifiable. Contractor shall allow a representative of City during normal business hours to examine, audit, and make transcripts or copies of such records. Contractor shall maintain and allow inspection of all work, data, documents, proceedings, and activities related to this Agreement for a, period of three .(3) years from the date of final payment under this Agreement. 4. . 10. ADMINISTRATION A. This Agreement will be administered by the General Services Department. The General Services Director or his/her designees shall be considered the City's Administrator and shall have the authority to act for the City under this Agreement. The Administrator or his /her authorized representative shall represent the City in all matters pertaining to the services to be rendered pursuant to this Agreement. B. City shall furnish to Contractor maps, ordinances, data, and other existing information as may be requested by Contractor necessary for Contractor to complete the work contemplated by this Agreement. City also agrees to provide all such materials in a timely manner. 11. INCREASE OR DECREASE IN SCOPE OF WORK A. Contractor shall perform refuse collection services as requested by the Administrator and as noted by Exhibit B. The Administrator may give verbal authorization for additional services up to one thousand dollars ($1,000). 12. DISPUTES PERTAINING TO PAYMENT FOR WORK • Should any dispute arise respecting whether any delay is excusable, or its duration, or the value of the work done, or of any work omitted, or of any extra work which Contractor may be required to do, or respecting any payment to Contractor during the performance of the Agreement, such dispute shall be decided by the Administrator with any appeal to the City Manager. The City Manager's decision shall be final. • 13. REIMBURSEMENT FOR EXPENSES Contractor shall not be reimbursed for any disposal fees or other expenses unless authorized in writing by City Administrator. 14. LABOR AND PERFORMANCE BONDS Contractor shall furnish, concurrently with the effective date of this Agreement, a bond or other instrument satisfactory to the Administrator in an amount equal to Thirty four thousand dollars ($34,000) as security for the Faithful Performance of this Agreement. 7 15. LABOR • A. Contractor shall conform with all applicable provisions of State and Federal law including, applicable provisions of California Labor Code, and the Federal Fair Labor Standards Act. B. Whenever Contractor has knowledge that any actual or potential labor dispute is delaying or threatens to delay the timely performance of this Agreement, Contractor shall immediately give notice to City, including all relevant information. 16. NONDISCRIMINATION BY CONTRACTOR Contractor represents and agrees that it does not, and will not, discriminate against any subcontractor, consultant, employee or applicant for employment based on race, religion, color, sex, handicap, national origin, or other basis that violates the federal or state constitution or federal or state law. Contractor's obligation not to discriminate shall apply, but not be limited to, the following: employment, upgrading, demotion, transfers, recruitment, recruitment advertising, layoff, termination, rates of pay or other forms of compensation, and selection for training, including apprenticeship. 17. CITY'S RIGHT TO EMPLOY OTHER CONTRACTORS City reserves the right to employ other contractors in connection with this project should the Contractor fail to perform or default. 18. CONFLICTS OF INTEREST A. The Contractor or its employees may be subject to the provisions of the California Political Reform Act of 1974 (the "Act "), which (1) requires such persons to disclose financial interest that may foreseeable be materially affected by the work performed under this Agreement, and (2) prohibits such persons from making, or participating in making, decisions that will foreseeable financially affect such interest. The Contractor will provide a completed disclosure form noting the above. Contractor will comply with the Act and relevant City Resolutions. B. If subject to the Act, Contractor shall conform to all requirements of the Act. Failure to do so constitutes a material breach and is grounds for termination of this Agreement by the City. The Contractor shall indemnify and hold harmless the City for any claims for damages resulting from the, Contractor's violation of this Section. La 93 • 19. NOTICES All notice, demands, requests or approvals to be given under this Agreement must be given in writing and will be deemed served when delivered personally or on the second business day after the deposit thereof in the United States mail, postage prepaid, registered or certified, addressed as hereinafter provided. All notices, demands, requests or approvals from Contractor to City shall be addressed to City at: General Services Department City of Newport Beach 3300 Newport Boulevard PO Box 1768 Newport Beach, CA 92658 -8915 All notices, demands, requests or approvals from City to Contractor shall be addressed to Contractor at: District Manager Waste Management of Orange County 1800 South Grand Avenue • Santa Ana, CA 92705 20. TERMINATION /DEFAULT A. In the event Contractor fails or refuses to timely perform any of the provisions of this Agreement in the manner required or if Contractor violates any provisions of this Agreement, Contractor shall be deemed in default. If such default is not cured within a period of two (2) working days, or if more than two (2) working days are reasonably required to cure the default and Contractor fails to give adequate assurance of due performance within two (2) working days after Contractor receives written notice of default from City, City may terminate the Agreement forthwith by giving written notice. City may, in addition to the other remedies provided in this or authorized by law, terminate this Agreement by giving written notice of termination. B. In addition to, or in lieu of, remedies provided in this Agreement or pursuant to law, City shall have the right to withhold all or a portion of Contractor's compensation for Contract Services if, in the judgment of the City Administrator, the Contractor fails to satisfactorily perform Contract Services. City shall have the right to return funds withheld until the City Administrator determines that Contract Services are performed as well as . required by this Agreement. N 21. COST OF LITIGATION 9 If any legal action is necessary to enforce any provision of this Agreement, or for damages by reason for an alleged breach of any provisions of this Agreement, the parties agree that the court with jurisdiction over the action may determine and fix reasonable attorneys' fees and expenses to be paid to the prevailing pa rty. 22. COMPLIANCE Contractor represents that it is familiar, and shall comply, with all state, federal, or local laws, rules, ordinance, statutes or regulations applicable to the performance of Contract Services. Contractor shall fully comply with all provisions of its Non - Exclusive Solid Waste Franchise Agreement with the City and any other permitting or franchise requirements adopted by City. 23. WAIVER A waiver by City 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 different character. 24. Contractor agrees that this Agreement shall supercede all previous agreements to provide residential refuse collection services in the Newport Coast area including agreements with the County of Orange. Contractor waives and releases all rights to provide services except as provided in this Agreement. Contractor acknowledges receipt of the City five (5) year notice on December 19, 2001 and agrees that upon termination of this Agreement, Contractor will not contest City's right to provide services or contract for services pursuant to a Request for Proposals process. 25. INTEGRATED CONTRACT This Agreement represents the full and complete understanding of every kind or nature whatsoever between the parties concerning the services to be provided under this Agreement. All preliminary negotiations and agreements of whatsoever kind or nature are merged in this Agreement. No verbal agreement or implied covenant shall be held to vary the provisions hereon. Any modification of this Agreement will be effective only by written execution signed by both City and Contractor. IN WITNESS WHEREOF, the parties have caused this Agreement to be executed on the day and year first written above. 10 • ATTEST: CITY OF NEWPORT BEACH A Municipal Corporation • M LaVonne Harkless, City Clerk APPROVED AS TO FORM: By. % Robin L. Clauson, Assistant City Attorney 11 By: Tod Ridgeway, Mayor USA Waste of California, Inc., dba Waste Ma MofO ", 0 By: %// bert J. Co e, Distri anager LIST OF EXHIBITS 0 Exhibit A Refuse Contract Services Exhibit B Level of Compensation 12 LI n U Refuse Contract Services Contractor Duties Exhibit A 1) To provide weekly private residential refuse collection, recycling and disposal services to all private residences in the Newport Coast Area annexed on January 1, 2002 by the City. 2) The Contractor will handle all resident inquiries or complaints of service in an expeditious manner. 3) To provide a bulky item pickup twice per year for each residence with a limit of 4 items per request. 4) The weekly basic service will consist of providing two individual automated style containers, one for refuse and one for recyclable materials. 5) Refuse collection day for Newport Coast will be Friday. Collection day shall not be changed without City approval. No change to this schedule will be considered with is less than 60 days notice to the City. 6) Additional refuse collection containers will be provided upon request of the resident. The cost for the extra service provided in Exhibit B will be borne by the City. E 7) Collect, recycle and dispose of all residential solid waste materials in accordance with the provisions of the Non - exclusive Solid Waste Franchise Agreement and all applicable City ordinances and State mandates. 8) To provide collection for Christmas trees discarded by any Newport Coast resident served by the Contractor on the first two regularly scheduled collection days after Christmas Day. 9) To provide on a monthly basis all necessary reporting data requested by the City relating to the City's compliance requirements pertaining to AB 939 as it affects the City's Integrated Solid Waste Management Plan. Such report shall be provided to the City within 30 days after the end of each calendar quarter. The Contractor shall cooperate with activities requested by the City to measure diversion of solid waste from landfills, including, but not limited to, providing a location for conducting waste sorting and re- routing trucks on a temporary basis to facilitate composition analysis. 13 10) The Contractor shall keep data on the origin and tonnage of solid waste collected • in the Newport Coast area. The Contractor shall provide to the City, on a quarterly basis, the following information in a format supplied by or approved by the General Services Director: 1. The tonnage of Solid Waste collected by the gross number of tons collected each month. 2. The origin and tonnage of solid waste that is actually delivered to the designated landfill each quarter. 3. The weight of recyclable materials collected in the Newport Coast area and delivered for recycling. 4. The facility to which each type of recyclable material or recovered material is delivered by the Contractor. 5. Total weight, by type of material, of glass, aluminum, plastic, paper, cardboard, concrete, dirt, asphalt, green waste, lumber and white goods collected monthly. 6. Any other information reasonably requested by the City to meet State or Federal regulatory reporting requirements of the City's Source Reduction • and Recycling Element (SRRE), as it may be amended from time to time. `I 14 11 Exhibit B Compensation for Services 1. Compensation for refuse contract services shall be $13.03 per residence. The monthly rate of $13.03 per residence is composed of a base service fee component of $10.72 and a disposal fee component of $2.31. 2. In addition to the monthly rate of $13.03 per residence, City will pay for extra refuse or recycling cans as requested by individual residents in the amount not to exceed $3.42 per resident request. 3. City franchise fees pursuant to Section 12.63.070 shall be waived, but only for residential solid waste handling services provided under this Agreement. 4. The City will be billed in arrears by the Contractor on a monthly basis. 5. The base service fee of $10.72 shall be increased on January 1, 2003, and every 12 months thereafter to reflect any increase in the Consumer Price Index (CPI — all urban consumers for the Los Angeles — Anaheim — Riverside area) for the 12 months proceeding the prior November index, provided that the CPI increase shall not exceed 3% per 12 month period. F:\ Users \GSV\JHammond \WMOCattamend 1.doc L� 15 26 February 2002 " a To the Honorable Mayor Tod W. Ridgeway and the Honorable Council members, Below are some questions and concerns regarding Item #16, the Trash removal Contract for Newport Coast: What is the estimated Property Tax that the City of Newport Beach will receive from Newport Coast? What is the estimated build out of homes that will be receiving Curbside Trash Removal Service out of the General fund? What is the estimated cost of providing Curbside residential trash service to Newport coast for the next 5 years? 2600 homes @ $13.03 = $33,878.00 (if 1/2 of those homes opt for another Trash Barrel @ 3.42 , which we pay for) 1300 Barrels @ 3.42 = 4,446.00 TOTAL $ 38,324.00 monthly x 12 = $ 459,888 00 5000 homes = 65,150.00 2500 barrels = 81550.00 TOTAL $ 73,700.00 monthlv x 12 = $ 884,400.00 6000 homes = 78,180.00 3000 barrels = 10,260.00 TOTAL $ 88,440.00 monthly x 12 = $ 1,061,280 00 7000 homes = 91,210.00 3500 barrels = 11,970.00 TOTAL $ 103,180.00 monthly x12 = $1,238,160.00 GOOD DEAL ......... WMOC gets to keep the $$$ for the recyclables and we, the taxpayers get to pay for the barrels ..............GOOD DEAL FOR WHOM? Why does Bonita Canyon have to pay for their Trash ? Why do we (meaning the City as of 1996 boundaries , according to Measure Q) pay a recycle fee on our water bill ? ? ?? Why do we have 3 different scenarios of Trash Service ? ? ?? Can we legally have 3 different scenarios of Trash Service? Respectfully, Dolores A. Offing