Chapter 12.63
SOLID WASTE MANAGEMENT*
Sections:
12.63.030 Franchise to Operate Required.
12.63.040 Nonexclusive Franchise.
12.63.050 Application for Franchise.
12.63.060 Municipal Operations Department Review.
12.63.070 Processing the Application.
12.63.090 Franchise Fees and Environmental Liability Fund Fees.
12.63.100 Responsibility for Damages.
12.63.120 Recycling Requirement.
12.63.130 City Inspection Authority.
12.63.160 Rights Reserved to the City.
12.63.180 Miscellaneous Provisions.
* Prior ordinance history: Ords. 95-63, 95-67 and 2002-5.
12.63.010 Purpose and Intent.
The City Council finds and determines that it is necessary and appropriate to require those persons providing commercial solid waste handling services within the jurisdictional boundaries of the City to obtain a franchise because:
A. The City has the authority to enact ordinances regulating the collection of trash and garbage within its corporate limits, including the right to gather and collect garbage itself, to grant exclusive or nonexclusive franchises to collect solid waste, to regulate the activities of private collectors, or any combination of these options.
B. It is necessary to regulate the collection of solid waste and to encourage recycling of solid waste materials to meet the requirements of the California Integrated Waste Management Act of 1989, California Public Resources Code, Division 30, Section 40000 et seq.
C. The collection of solid waste generated within the City is a vital public service and the storage, accumulation, collection and disposal of solid waste and recyclables is a matter of great public concern. Improper solid waste management would subject the City to potential liability, damages and penalties, and may create a public nuisance, air pollution, fire hazard, rat and insect infestation and other problems affecting the public health, safety and welfare.
D. The use of heavily laden vehicles to collect solid waste and other activities related to the collection of solid waste adversely impacts public streets, sidewalks, curbs and gutters and other infrastructure that must be repaired, maintained and replaced.
E. The placement of commercial refuse containers on public streets and rights-of-way creates a potential for property damage, and personal injury as well as City liability.
F. The disposal of solid waste can result in potential liability under Federal and State environmental laws.
G. Nonexclusive franchises for the use of public streets to provide commercial solid waste handling services are necessary to protect the members of the public, private property and avoid City liability. Nonexclusive franchises will promote public health, safety and welfare among other things promoting permanence and stability among those businesses wishing to provide such service and accountability to the City for compliance with current and future State mandates. (Ord. 2023-22 § 568, 2023; Ord. 2007-5 § 1 (part), 2007)
12.63.020 Definitions.
For purposes of this chapter, certain terms are defined as follows:
“Collect” or “collection” means the operation of gathering together and/or transporting by means of a motor vehicle or other means, any solid waste or recyclable material.
“Commercial premises” means all occupied real property in the City including, without limitation, multiple housing (including housing projects containing or consisting of four or more units, whether apartment houses, condominiums, or mixed use projects, mixed use condominiums and rental housing, and which use commercial solid waste containers), wholesale or retail establishments, restaurants, other food establishments, bars, stores, shops, offices, mechanized manufacturing facilities, repair, research and development or professional services, sports or recreational facilities, industrial facilities, and construction and demolition sites; but shall not include property occupied by governmental agencies which do not consent to their inclusion, and residential premises which receive solid waste collection services using residential solid waste containers.
“Commercial solid waste container” means any container for the temporary accumulation and collection of solid waste.
“Commercial solid waste handling services” means the collection, transportation, storage, transfer, disposal or processing of solid waste by private solid waste enterprises, and shall include, without limitation, the placement of commercial solid waste containers on public property.
“Container” means any vessel, tank, receptacle, box or bin used or intended to be used in the storage or collection of recyclable materials or in the process of recycling, or for the purpose of holding solid waste for storage or collection.
“Franchise fee” means the fee or assessment imposed by the City on the franchisee, which among other things, is intended to offset the City’s expenses related to the administration of the franchise agreement, the integrated waste management program, the maintenance and implementation of the City’s source reduction and recycling element, compliance with the California Integrated Waste Management Act, California Public Resources Code, Division 30, Section 40000 et seq., to compensate the City for damages to its streets, sidewalks, curbs and gutters and other infrastructure resulting from the franchisee’s exercise of its rights under the franchise, reporting requirements and other related expenses.
“Franchisee” means any person granted a franchise by the City Council pursuant to Article XIII of the City Charter and this chapter.
“Garbage” means kitchen and table wastes, and animal or vegetable wastes that result from the storage, preparation, cooking or handling of food or edible items.
“Green waste” means any debris that is composed of organic material or plantlike matter which is a result of seasonal variations, landscape or gardening activities. This waste is to include, without limitation, grass clippings, leaves, shrubs, trees, branches, stumps, flowers, plant stalks and wood.
“Gross receipts” means all money, whether paid by cash, check, debit or credit, or other consideration collected from customers by franchisee that relates in any way to commercial solid waste handling services, whether the commercial solid waste handling services occur wholly or partially within the City, including, but not limited to, collection, removal, and/or disposal of garbage, solid waste, construction and demolition debris, green waste, industrial waste, roofing materials, trash, litter, refuse and/or rubbish, as well as fuel surcharges. Gross receipts shall also include all money received by any person other than the franchisee, where the money was paid to the person to avoid the franchisee’s obligations under this chapter and/or the franchise. Gross receipts shall not include, or if included there shall be deducted (but only to the extent they have been included), the following: (1) if any sales taxes are levied on the franchisee’s commercial solid waste handling services in the City, the amount of State sales taxes collected in connection with the commercial solid waste handling services in the City and remitted to the State pursuant to State law; (2) the amount of documented bad debt write-offs due to uncollectible accounts for commercial solid waste handling services in the City, not to exceed three percent of gross receipts; and (3) revenues collected for commercial solid waste handling services provided on behalf of the City through a written contract.
“Hazardous waste” means any substance or waste materials or mixture of wastes defined as “hazardous,” a “hazardous substance” or “hazardous waste” pursuant to California Public Resources Code Section 40141, the Resource Conservation and Recovery Act (“RCRA”), 42 U.S.C. Section 6901 et seq., the Comprehensive Environmental Response, Compensation and Liability Act (“CERCLA”), 42 U.S.C. Section 9601 et seq., the Carpenter-Presley-Tanner Hazardous Substance Account Act (“HSAA”), codified at California Health and Safety Code Section 25300 et seq.; and all future amendments to any of them, or as defined by the Environmental Protection Agency, the California Legislature, the California Integrated Waste Management Board, the Department of Toxic Substances Control or other agency of the United States Government or the State of California empowered by law to classify or designate waste as hazardous. If there is a conflict in the definitions employed by two or more agencies having jurisdiction over hazardous or solid waste, the term “hazardous substance” or “hazardous waste” shall be construed to have the broader, more encompassing definition.
“Industrial waste” means solid waste originating from mechanized manufacturing facilities, factories, refineries, construction and demolition projects, publicly operated treatment works, or solid waste placed in commercial solid waste containers excluding hazardous waste.
“Recycling” means the process of collecting, sorting, cleansing, treating, and reconstituting materials that would otherwise become solid waste, and returning them to the economic mainstream in the form of raw material for new, reused, or reconstituted products which meet the quality standards necessary to be used in the marketplace.
“Recycling requirements” means the obligations imposed by or upon the City pursuant to State law, ordinance, resolution, policy, plan or program relative to recycling all, or a portion, of the solid waste stream generated within the City including, without limitation, State mandates to recycle fifty (50) percent of the solid waste generated within the City’s jurisdiction and the provision of City-approved recycling services to all customers.
“Rubbish” means and includes without limitation the following items: all waste and refuse capable of burning readily, including straw, packing materials, leather, rubber, clothing, bedding, books, rags and all other similar articles which will burn by contact with flames or ordinary temperature; ashes, crockery, china, pottery, metal wire and other similar materials which are rejected by the owner or producer thereof.
“Solid waste” means all putrescible and nonputrescible solid and semisolid wastes, generated in or upon, related to the occupancy of, remaining in or emanating from residential, commercial, and/or industrial premises, including, but not limited to, garbage, trash, refuse, paper, rubbish, ashes, industrial waste, green waste, demolition and construction wastes, discarded home and industrial appliances, manure, vegetable or animal solid or semisolid wastes, and other solid and semisolid wastes. This excludes liquid wastes, abandoned vehicles and hazardous, biohazardous and biomedical wastes.
“Solid waste enterprise” means any individual, firm, partnership, corporation, joint venture, limited liability company or other business entity providing commercial solid waste handling services in the City.
“SRRE” means the source reduction and recycling element of the integrated waste management document for the City prepared and updated pursuant to the California Public Resources Code. (Ord. 2023-22 § 569, 2023; Ord. 2013-11 § 58, 2013; Ord. 2007-5 § 1 (part), 2007)
12.63.030 Franchise to Operate Required.
No person shall provide commercial solid waste handling services or conduct a solid waste enterprise in the City without having first been awarded a franchise and entered into a franchise agreement with the City. The franchise agreement shall include terms and conditions for the commercial solid waste handling services in the City. The franchise shall be in addition to any business license or permit otherwise required by City. All franchisees shall comply with all of the requirements of the City Charter, the ordinance granting the franchise, the franchise agreement and this chapter. (Ord. 2007-5 § 1 (part), 2007)
12.63.040 Nonexclusive Franchise.
Franchises shall be nonexclusive. No provision of this chapter shall be deemed to require or allow restricting the number of franchises to one or to any particular number. In granting any nonexclusive franchise, the City Council may prescribe such other and additional terms and conditions, to the extent such provisions do not conflict with the City Charter. (Ord. 2007-5 § 1 (part), 2007)
12.63.050 Application for Franchise.
A. Required Forms. An application for a franchise shall be filed in the office of the Public Works Department in writing on forms prescribed by the Public Works Director.
B. Required Information and Materials. The application for a franchise shall contain the following information and materials:
1. The name and address of the applicant;
2. If the applicant is a partnership, the name and address of each partner shall be set forth in the application. If the applicant is a corporation, the application shall state the names and addresses of the corporation’s directors, date and place of incorporation, main offices, major stockholders and associates, and the names and addresses of the parent and subsidiary companies;
3. A list of all vehicles, including license plate numbers and vehicle identification numbers, to be used in connection with the commercial solid waste handling services;
4. Evidence that the applicant has or can provide all required insurance and affirmation of indemnification;
5. Evidence that the applicant maintains books of account, income statements, tonnage reports and supporting documents and all other documents that relate in any way to commercial solid waste handling services or the conduct of a solid waste enterprise in a manner acceptable to the City;
6. A report of solid waste handling activities for the prior calendar year to include tonnage collected by activity, as specified by City, and the corresponding revenue for each activity; the tonnage recycled or caused to be recycled by the applicant’s collection, transportation, and/or disposition of materials collected and categorized by method of recycling, material type recycled, and the tonnage disposed by facility utilized;
7. Such further information as the Public Works Director may reasonably require to evaluate and process the application.
C. Verification. Application for a franchise shall be verified and signed by a person or persons authorized to execute documents on behalf of the entity.
D. Fees. Applications for a franchise shall be accompanied by a fee as established by resolution of the City Council.
E. Waivers. The Public Works Director may waive the submission of items deemed unnecessary. (Ord. 2023-22 § 570, 2023; Ord. 2013-11 §§ 59—61, 2013; Ord. 2007-5 § 1 (part), 2007)
12.63.060 Municipal Operations Department Review.
A. Time Limits and Notification. Within thirty (30) calendar days of the filing of an application, the Public Works Department shall determine whether the application is complete and notify the applicant in writing if the application is determined to be incomplete.
B. Incomplete Applications. If the application is determined not to be complete, the Public Works Department shall notify the applicant in writing and shall specify those parts of the application which are incomplete and shall indicate the manner in which they can be made complete, including a list and thorough description of the specific information or materials needed to complete the application. Upon the receipt of the information or materials needed to complete the application, or any resubmittal of the application, a new thirty (30) day review period shall begin to determine the completeness of the application.
C. Extension of Time Limits. Extensions of the time limits of the review period are permitted when mutually agreed upon by the Public Works Department and the applicant. (Ord. 2023-22 § 571, 2023; Ord. 2013-11 § 62, 2013: Ord. 2007-5 § 1 (part), 2007)
12.63.070 Processing the Application.
Upon receiving an application that contains all of the information described in this chapter which is both complete and in a form acceptable to the Public Works Director, the Public Works Director shall process the application in accordance with the provisions of this chapter and Article XIII of the City Charter for consideration by the City Council. (Ord. 2023-22 § 572, 2023; Ord. 2007-5 § 1 (part), 2007)
12.63.080 Required Findings.
The City Council shall approve or conditionally approve an application for a franchise if, on the basis of the application, information materials, and testimony submitted, the City Council finds:
A. That the application complies with this chapter;
B. That the applicant or any person responsible for the management of the entity submitting the application has not within the past three years: (1) had a franchise for commercial solid waste handling services terminated by the City; and/or (2) operated a solid waste enterprise within the City without a franchise;
C. That awarding the franchise is in accord with the objectives of this chapter;
D. That granting of such franchise will not, under the circumstances of the particular case, materially affect adversely the health or safety of persons residing or working in the City or be materially detrimental to the public welfare or injurious to property or public improvements; and
E. That the applicant has sufficient experience, equipment or recycling plan to safely comply with the requirements of the franchise agreement. (Ord. 2007-5 § 1 (part), 2007)
12.63.090 Franchise Fees and Environmental Liability Fund Fees.
A. Franchisee shall pay quarterly to the City during the term of the franchise a fixed percentage of the quarterly gross receipts of the franchisee derived from the franchisee’s solid waste handling services within the City. The franchisee fee and environmental liability fund fee shall be in the amounts and paid in the manner set forth in the ordinance granting the franchise or the franchise agreement.
B. Pursuant to California Public Resources Code, Division 30, Part 2, Chapter 8, Section 41900 et seq., the ordinance granting the franchise shall prescribe a specific percentage of the fee for preparing, adopting and implementing an integrated waste management plan consistent with the SRRE. That portion of the fee shall be separately accounted for and shall be used only for the costs stated in California Public Resources Code Section 41901.
C. Franchise fees and environmental liability fund fees shall be due and payable on the thirtieth (30th) day of the month following the end of each quarter. The franchisee shall pay the required fees to the City and deliver the payment to the City’s Finance Director. Each payment shall be accompanied by a written statement, verified by the franchisee or a duly authorized representative of the franchisee, showing in such form and detail as the Finance Director may prescribe, the calculation of the fees payable by the franchisee and such other information as may be required as material to a determination of the amount due.
D. 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.
E. The franchise fee and environmental liability fund fee shall be in addition to any license fee or business tax prescribed by the City for the same period. (Ord. 2023-22 § 573, 2023; Ord. 2013-11 § 63, 2013; Ord. 2007-5 § 1 (part), 2007)
12.63.100 Responsibility for Damages.
Any person providing commercial solid waste handling services or conducting a solid waste enterprise in the City of Newport Beach shall be responsible for any damages caused as a result of the person’s acts or omissions including, but not limited to, injuries to or death of any person or damage to public and/or private property. (Ord. 2007-5 § 1 (part), 2007)
12.63.110 Indemnification.
To the maximum extent permitted by law, any person providing commercial solid waste handling services or conducting a solid waste enterprise in the City of Newport Beach shall indemnify, hold harmless, and defend the City, its officials, officers, employees, agents, consultants, volunteers, representatives, and attorneys from and against any costs, expenses, damages, and losses arising directly or indirectly from or caused by the persons’ acts or omissions, negligence, or violation of any Federal, State or local law, ordinance, statute, or regulation. (Ord. 2007-5 § 1 (part), 2007)
12.63.120 Recycling Requirement.
No person providing commercial solid waste handling services or conducting a solid waste enterprise shall deposit fifty (50) percent or more of the solid waste collected by the person in the City at any landfill. (Ord. 2007-5 § 1 (part), 2007)
12.63.130 City Inspection Authority.
Any franchisee providing commercial solid waste handling services or conducting a solid waste enterprise in the City 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 transactions conducted by the person in the City for a period of three years after said service was provided and shall make these records and documents available to the City upon request by the City Manager, Public Works Director or Finance Director. (Ord. 2023-22 § 574, 2023; Ord. 2013-11 § 64, 2013: Ord. 2007-5 § 1 (part), 2007)
12.63.140 Termination.
A. The City Council shall have the right to terminate any nonexclusive franchise pursuant to this section.
B. A notice of intent to terminate a nonexclusive franchise shall be personally delivered or mailed, at the discretion of the Public Works Director, to the franchisee at the franchisee’s address of record, shall state grounds for suspension or termination and shall give the franchisee notice of the time, date and place of a hearing before the City Council, which shall be convened not less than fifteen (15) days and no more than sixty (60) days after the date of notice, subject to continuance with the consent of the parties.
C. The hearing shall be conducted and closed, and decision rendered thereon within sixty (60) days after the date of the hearing.
D. The City Council shall have the right to terminate or suspend any nonexclusive franchise agreement granted pursuant to this chapter if the Council finds, after hearing, that:
1. The franchisee has failed to comply with, or to do anything required of the franchisee by this chapter, or that franchisee has violated any provision of the ordinance granting the franchise, including, but without limitation, failure to timely pay all franchisee fees, provide records in accordance with the City’s request, file required reports, or has violated any provision of the franchise agreement or any Federal, State or local law or regulation applicable to franchisee’s operations under the franchise; or
2. Any provision of this chapter or of the franchise agreement is repealed or becomes or is declared to be invalid, and the City Council expressly finds that such provision constitutes a material consideration to the grant or continuation of such nonexclusive franchise.
E. The decision to suspend or terminate shall contain findings of fact, a determination of the issues presented and shall be final as to the City but subject to judicial review pursuant to California Code of Civil Procedure Section 1094.5. Any suspension of a nonexclusive franchise shall state specific conditions upon which the nonexclusive franchise may be reinstated or terminated. (Ord. 2023-22 § 575, 2023; Ord. 2013-11 § 65, 2013; Ord. 2007-5 § 1 (part), 2007)
12.63.150 Exclusions.
A. Gardener’s Exclusion. No provision of this chapter shall prevent a gardener, tree trimmer or person providing a similar service from collecting yard waste, as an incidental portion of providing such gardening, tree trimming or similar service.
B. Commercial Recycler Exclusion for Source-Separated Recyclables. No provisions of this chapter shall prevent a recycling business from contracting to collect source-separated recyclables that are donated or sold to that recycling business by a commercial enterprise. “Source-separated recyclables” within the meaning of this subsection means recyclables which have been separated by a commercial business on its premises from solid waste for the purpose of sale or donation, which have not been mixed with or contain more than incidental or minimal solid waste, and which do not have a negative market value inclusive of collection, transportation, and disposition costs. This exclusion does not apply if the material collected is hauled for a net fee. Any recycling business qualifying for the exclusion shall meet all other requirements to operate in the City, including, but not limited to, a business license.
C. Small Hauler Exclusion. No provision of this chapter shall apply to any person providing commercial solid waste handling services or conducting a solid waste enterprise if the total tonnage of solid waste collected, transported, stored, transferred, disposed of and/or processed by such person does not exceed three and a third (3 1/3) tons in any calendar month. Any person qualifying for this exclusion shall meet all other requirements to operate in the City, including, but not limited to, a business license.
D. Franchise Fee Exclusion. Payment of franchise fees and environmental liability fund fees pursuant to Section 12.63.090 are waived under any contract approved by the City Council to provide commercial solid waste handling services for the City. (Ord. 2007-5 § 1 (part), 2007)
12.63.160 Rights Reserved to the City.
In addition to all other rights reserved to the City under this chapter, the following shall apply:
A. There is reserved to the City every right and power, and the exercise thereof, which is reserved or authorized by any provision of any lawful ordinance or resolution of the City, whether enacted before or after the effective date of the ordinance codified in this chapter.
B. Neither the granting of any nonexclusive franchise nor any provision of any nonexclusive franchise shall constitute a waiver of or a bar to the exercise of any governmental right or power of the City.
C. There is expressly reserved to the City Council the power and authority to amend any section of this chapter so as to require additional or greater standards on the part of the franchisee. (Ord. 2007-5 § 1 (part), 2007)
12.63.170 Violation.
In addition to the penalties set forth in Chapter 1.04, any person providing commercial solid waste handling services or who conducts a solid waste enterprise in the City of Newport Beach without having first been awarded a franchise and entered into a franchise agreement with the City, shall be liable to the City for the amount of the franchise fee and the environmental liability fund fee set by resolution of the City Council, and a late charge of ten percent of the amount of the unpaid fees. If the unpaid fees are not paid within thirty (30) days of the due date, the person shall pay a second late charge in an amount equal to ten percent on both the amount of the fee outstanding and the first late charge. The second late charge shall be in addition to the first late charge. Interest on the unpaid fees and late charges shall accrue at the rate of one and one-half of one percent (1 1/2%) per month for each month or portion of a month that the amount remains unpaid. The amount of any fee, interest and late charge imposed by this section shall be deemed a debt to the City of Newport Beach. (Ord. 2007-5 § 1 (part), 2007)
12.63.180 Miscellaneous Provisions.
Ownership and the right to possession of solid waste shall transfer directly from the person receiving commercial solid waste handling services to the person providing commercial solid waste handling services or who conducts a solid waste enterprise in the City of Newport Beach upon collection. At no time shall the City obtain any right of ownership or possession of solid waste, industrial waste or hazardous waste, green waste, other waste, rubbish, or garbage placed for collection and nothing in this chapter shall be construed as giving rise to any inference that City has any such rights. (Ord. 2007-5 § 1 (part), 2007)