Carpinteria Municipal Code Art. II Regular Solid Waste Handling Services

The city council may award one or more exclusive solid waste franchises for collection of solid waste, including recyclables and/or green waste, from all or a portion of residential, and/or commercial premises in the city. Any such residential, and/or commercial solid waste franchise shall be granted, in writing, by the city council by resolution.

A residential, and/or commercial solid waste franchise shall be granted by resolution and through a solid waste franchise agreement, which shall include such terms and conditions as the city council in its sole discretion shall establish as matters of local concern. At a minimum, a residential, and/or commercial solid waste franchise shall be in writing, shall name the solid waste service provider, and shall provide, among other things, that:

A. The franchisee shall comply with the provisions of this chapter;

B. The franchisee protect, defend, indemnify and hold the city harmless from any and all liability, including, specifically, liability under the Resource Conservation and Recovery Act of 1976 ("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., or the Carpenter-Presley-Tanner Hazardous Substance Account Act, ("HSAA"), California Health and Safety Code § 25300, et seq., as these laws may be amended from time to time, and all regulations implementing these laws; and

C. The franchisee fully cooperate with the city in solid waste disposal characterization studies or other waste stream audits and submit information required by the city to meet the reporting requirements of AB 939 and implement measures consistent with the city's source reduction and recycling element in order for the city to reach diversion and other goals mandated by the California Integrated Waste Management Act of 1989, as it may be amended, to the extent authorized by law.

(Ord. No. 665, § 2, 12-9-2013)

A. Bond Posting Required. A solid waste service provider, concurrently with the filing of an acceptance of award of any franchise, permit, or license granted under this chapter, shall file with the city clerk, and at all times thereafter maintain in full force and effect for the term of such franchise or any renewal thereof, at the solid waste service provider's sole expense, a corporate surety bond. The surety bond shall be in a form and from a company approved by the city attorney, in an amount as determined by the director or as set forth in an applicable franchise agreement, renewable annually, and conditioned upon the faithful performance by the solid waste service provider, and upon further condition that if the solid waste service provider fails to comply with one or more of the provisions of this chapter, or of any franchise issued to the solid waste service provider hereunder, there shall be recoverable jointly and severally from the principal and surety of such bond any damages or loss suffered by the city as a result thereof. These damages may include, but are not limited to, the full amount of costs of removal of any property of the solid waste service provider in default, plus a reasonable allowance for attorney's fees and costs, up to the full amount of the bond. Provision of the surety bond is a continuing obligation for the duration of such franchise and any renewal thereof and thereafter until the solid waste service provider has liquidated all of its obligations with the city that may have arisen from the acceptance of the franchise or renewal by the solid waste service provider or from its exercise of any privilege therein granted. The bond shall provide that sixty days prior written notice of intention not to renew, cancellation, or material change be given to the city.

B. Not a Limitation on Liability. Neither the provisions of this section, the bond accepted by the City, nor any damages recovered by the city shall excuse the full and faithful performance by the solid waste service provider of its obligations to the city or limit the liability of the solid waste service provider under any franchise issued hereunder or limit damages, either to the full amount of the bond or otherwise.

(Ord. No. 665, § 2, 12-9-2013)

In addition to other specific indemnifications required by the city in a form approved by the city attorney, as part of the consideration for the right to provide solid waste services for the city, a solid waste service provider shall protect, defend (with counsel approved by the city), indemnify, and hold harmless the city, its officers, bodies, commissions, agents and employees ("indemnitees") against and from any and all claims, demands, actions, suits, liabilities and judgments of every kind and nature (regardless of their merit) ("claims"), arising out of or related to the exercise or enjoyment of any franchise granted pursuant to the provisions of this chapter, including but not limited to disputes and litigation over the definitions of solid waste or recyclables, the limits of city's authority with respect to the grant of licenses or agreements, exclusive or otherwise, assertion of rights under the commerce clause (including the dormant commerce clause and federal or state legislation governing the process for the award of solid waste contracts) to provide solid waste handling services, or the necessity or propriety of notice and hearing procedures required to effect any increase in customer rates for the solid waste service provider's services (to the extent arising from the acts or omissions of the solid waste service provider in connection with any notice or hearing process) regardless of any claimed or actual contributory negligence or conduct of any such indemnitee unless such claim is due to the sole or active negligence or willful acts of the indemnitees, and, without affecting the scope of the foregoing, including but not limited to, claims, demands, actions, liabilities and judgments based upon Proposition 218, Hazardous Waste, unfair competition or alleged unfair competition or any infringement or violation. A solid waste service provider shall reimburse the city and any other such indemnitee for any costs and expenses incurred by the indemnitee(s) in defending against any such claim or demand or action, including any attorney fees, accountant fees, expert witness or consultant fees, court costs, per diem expenses, travel and living expenses, and a solid waste service provider shall, upon demand of the city or any other such indemnitee, appear in and defend any and all suits, actions or other legal proceedings, whether judicial, quasi-judicial, administrative or otherwise, brought by third persons or duly constituted authorities against or affecting the city, its officers, boards, commissions, agents or employees and arising out of or related to the exercise or enjoyment of such franchise or the granting thereof by the city. The obligations described in this paragraph shall exist and continue through the expiration of the period during which collections services are provided by the solid waste service pursuant to the franchise agreement, without reference to or limitation by the amount of any bond, policy of insurance, deposit, undertaking, or other security required hereunder; provided that neither solid waste service provider nor city shall make or enter into any compromise or settlement of any claim, demand, action or suit without first giving the other ten days prior written notice of its intention to do so.

(Ord. No. 665, § 2, 12-9-2013)

A. Required. Upon acceptance of such franchise, the solid waste service provider shall file with the city clerk and thereafter, during the entire term of such franchise maintain in full force and effect, at its own expense, a general comprehensive liability insurance policy or policies which shall insure the solid waste service provider and provide primary coverage for the city, its officers, boards, commissions, agents and employees, against liability for loss or liability for personal injury, death, property damage (both automobile and non-automobile caused), or other damages. Such policy or policies shall include, but not be limited to, insurance against damages from unfair competition, copyright infringement (common law or statutory), and a failure of solid waste service provider to secure consents (etc.) occasioned by any activity or operation of solid waste service provider under such franchise and regardless of any claimed or actual activities of city, its officers, boards, commissions, agents, and employees.

B. Waiver. The city council, in any franchise granted, may waive the requirement for insurance from one or more perils listed in Section 8.08.230(A), upon a finding that such insurance cannot be procured or cannot be procured at a reasonable cost, and in connection therewith may reduce the otherwise required limits on coverage hereafter set forth.

C. Form and Amount. The required insurance policy or policies shall contain a standard cross-liability endorsement, shall be issued by a company approved by the city, and shall be in a form approved by the city attorney, with a public liability policy and a property damage insurance policy in amounts established by the director and described in the franchise agreement for the benefit of third persons who may be injured or damaged as a result of the operations of the solid waste service provider. The policy or policies shall also, among other requirements, name the city, its officers, boards, commissions, agents and employees as additional insureds and shall contain a provision that a written notice of any cancellation, modification, or reduction in coverage of the policy shall be delivered to the city clerk thirty days in advance of the effective date thereof. No franchise granted under this chapter shall be effective unless and until each of the foregoing policies of insurance as required in this section has been delivered to the city clerk. Any substitute policy or policies shall be subject to the same approvals and shall comply with all the provisions of this section.

D. Specifications.

1. General Liability Insurance. A solid waste service provider shall maintain commercial general liability insurance with coverage at least as broad as Insurance Services Office Form CG 00 01, in an amount not less than two million five hundred thousand dollars per occurrence, five million dollars general aggregate, for bodily injury, personal injury, and property damage, including without limitation, blanket contractual liability.

2. Automobile liability insurance. A solid waste service provider shall maintain automobile insurance at least as broad as Insurance Services Office Form CA 00 01 covering bodily injury and property damage for all activities of the solid waste service provider arising out of or in connection with work to be performed under the franchise agreement, including coverage for any owned, hired, non-owned, or rented vehicles, in an amount not less than two million five hundred thousand dollars combined single limit for each accident.

3. Workers' Compensation Insurance. A solid waste service provider shall maintain workers' compensation insurance (statutory limits) and employer's liability insurance (with limits of at least one million dollars.

4. Pollution Liability Insurance. Environmental impairment liability insurance shall be written on a solid waste service provider's pollution liability form or other form acceptable to the city providing coverage for liability arising out of sudden, accidental, and gradual pollution and remediation. The policy limit shall be no less than one million dollars per claim and in the aggregate. All activities contemplated in the franchise agreement shall be specifically scheduled on the policy as "covered operations." The policy shall provide coverage for the hauling of waste from the generator site to the final disposal location, including non-owned disposal sites.

5. Waiver of Subrogation. A solid waste service provider shall submit to the city, along with the certificate of insurance, a waiver of subrogation endorsement in favor of the city, its officers, agents, employees, and volunteers.

(Ord. No. 665, § 2, 12-9-2013)

A. Inspection. At all reasonable times, the solid waste service provider shall permit any duly authorized representative of the city to examine all property of the solid waste service provider, together with any appurtenant property of the solid waste service provider situated within or without the city, and to examine and transcribe any and all maps and other records kept or maintained by the solid waste service provider related to the operations, affairs, transactions, or property of the solid waste service provider with respect to its franchise. If any such maps or records are not kept in the city or upon reasonable request are not made available to the city, and if the council shall determine that an examination thereof is necessary or appropriate, then all travel and maintenance expense necessarily incurred in making such examination shall be paid by the solid waste service provider.

B. Reports. The solid waste service provider shall prepare and furnish to the city reports that relate to and describe the performance level of the services provided by the solid waste service provider to the city. These reports shall be in a form and provided at such times required by the city.

C. Records. The solid waste service provider shall at all times keep up-to-date records of operators served, number of containers, number of weekly pickups, and other such information as may be required by the city. Such records shall be available to the city upon demand.

(Ord. No. 665, § 2, 12-9-2013)

Any solid waste franchise or other city-issued permit issued under this chapter is subject to revocation or suspension for cause. A solid waste service provider that engages in any of the following conduct is subject to the revocation or cancellation of a permit or franchise agreement:

A. Operating contrary to the public health, safety, well-being, peace, or welfare, or in a manner that constitutes a public nuisance;

B. Violating any material federal or state law, any regulation of the California Integrated Waste Management Board or of a local enforcement agency, the Carpinteria Municipal Code, or any material condition of a solid waste franchise affecting public health and safety in the city;

C. Practicing, or attempting to practice, any fraud or deceit, or making or using any false, fictitious or fraudulent statements or representations, or making any false, fictitious or fraudulent statements or representations in connection with the issuance or renewal of the solid waste franchise;

D. Becoming insolvent, unable, or unwilling to pay its debts, or being subject to appointment of a receiver or trustee to take over and conduct the business of the solid waste service provider whether in a receivership, reorganization, or bankruptcy proceeding;

E. Failing to provide or maintain in full force and effect workers compensation, liability, and indemnification coverage's or bonds as required herein or pursuant to any franchise agreement or permit issued by the city;

F. Violating any order or ruling of any regulatory body with respect to solid waste collected within the city, except that such order or ruling may be contested by appropriate proceedings conducted in good faith, in which case no violation shall be deemed to have occurred until a final decision adverse to the solid waste service provider is entered; or

G. Claiming a right to continue to provide solid waste services in the city pursuant to Public Resources Code Section; 49520, et seq., or other law, and failing to adhere to the same material standards required by the city of other solid waste service providers with an exclusive solid waste franchise.

(Ord. No. 665, § 2, 12-9-2013)

A. Reasonable Industry Standards. If the city determines that the performance of a solid waste service provider in the city may not be in conformity with reasonable industry standards in Southern California or as outlined in the California Integrated Waste Management Act including but not limited to requirements for implementing diversion, source reduction, and recycling, or any other applicable federal, state, or local law or regulation, including but not limited to the laws governing transfer, storage, or disposal of solid and hazardous waste or this chapter, the city shall advise the solid waste service provider in writing of such suspected deficiencies and the service provider shall immediately take steps to eliminate all deficiencies identified by the city. In any written notification of deficiencies, the city shall set a reasonable time period within which the solid waste service provider is to correct the deficiencies and respond to the notification. Unless otherwise specified, a reasonable time for response and opportunity to cure deficiencies shall be thirty days from the receipt of such written notice by the solid waste service provider.

B. Determination of Deficiency After Opportunity to Cure. At the expiration of the time set for the solid waste service provider to cure all deficiencies identified by the city, the director shall review any written response from the solid waste service provider and either resolve the matter in favor of the solid waste service provider or order further remedial action to cure any outstanding deficiencies, and shall inform the solid waste service provider in writing of the resolution. A decision or order of the director shall be final and conclusive unless the solid waste service provider files a "notice of appeal" with the city clerk (with copy to the city manager and city attorney) within thirty days of receipt of the decision or order of the director. A "notice of appeal" shall state the legal basis and all legal and factual contentions of the solid waste service provider and shall include all evidence in support thereof, including affidavits, documents, photographs, and videotapes. A "notice of appeal" shall not be accepted by the city clerk for filing unless accompanied by a "notice of appeal filing fee" in an amount to be set by the city council, by resolution.

C. Appeal to City Manager. Within thirty days of receipt by the city clerk of a notice of appeal, the city manager shall uphold the decision or order of the director or the appeal of the solid waste service provider, in whole or in part, or may refer the matter to the city council. The city manager may also order remedial actions to cure any remaining deficiency, terminate the solid waste franchise or other form of authorization, or order the solid waste service provider to cease operations in the city. The city manager shall inform the solid waste service provider in writing of the resolution and the basis for the resolution. The decision or order of the city manager shall be final and conclusive unless the solid waste service provider files a "notice of appeal to the city council" with the city clerk (and serves a copy, by mail, to the city manager and the city attorney) within ten days of receipt of the decision or order of the city manager. A "notice of appeal to the city council" shall state the legal basis and all factual and legal contentions of the appellant and shall include all newly discovered evidence in support thereof, including affidavits, documents, photographs and videotapes. A "notice of appeal to the city council" shall not be accepted by the city clerk for filing unless accompanied by a "notice of appeal filing fee" in an amount to be set by the city council, by resolution.

D. Review by City Council. If a matter is referred by the city manager to the city council, or a "notice of appeal to the city council" is timely filed and the "notice of appeal filing fee" is timely paid, the city council may set the matter for an administrative public hearing and act on the matter or may decline to hear the matter. If the city council elects to hear the matter, the city clerk shall give ten days written notice of the time and place of the administrative hearing. At the hearing, the city council shall consider the administrative record, including, but not limited to, the notice of deficiency, the solid waste service provider's response, the statement of resolution by the city manager, and the solid waste service provider's "notice of appeal to the city council," and shall give the solid waste service provider or its representatives and any other interested person a reasonable opportunity to be heard. The proceedings before the city council shall be an informal administrative hearing, and the rules of evidence as generally applied in judicial proceedings shall not apply.

E. Determination by City Council. Based on the administrative record, the city council shall determine whether the decision or order of the city manager or the director should be upheld. A tie vote of the city council shall constitute denial of the appeal. If based upon the record the city council determines that the solid waste service provider is in violation of any material provision of any applicable federal, state, or local statute or regulation, or that other cause for termination stated in the solid waste franchise exists, or that the solid waste service provider shall be ordered to cease operations in the city, the city council, in the exercise of its sole discretion, may order remedial actions to cure the breach, terminate forthwith the solid waste franchise, or order operations in the city to cease. The decision of the city council shall be final and conclusive.

F. Appeal to Judicial Court. After exhaustion of the administrative remedies and appeal procedures set forth in this chapter, an aggrieved party may appeal a disputed matter to the appropriate judicial court pursuant to California Code of Civil Procedure Section 1094.5.

G. No Limitation on Enforcement. Nothing in this chapter shall preclude the city from exercising any other remedy, including administrative citations, criminal prosecution, or equitable relief.

(Ord. No. 665, § 2, 12-9-2013)

A Solid waste franchise or other form of city-granted solid waste collection authorization shall not be transferable, except as follows:

A. A solid waste franchise, including any of the rights or privileges therein, shall not be leased, transferred, sold, sublet, or assigned, either in whole or in part, nor shall title thereto, either legal or equitable, or any right, interest, or property therein, pass to or vest in any person, either by act of the solid waste service provider or by operation of law, without the prior written consent of the city, as evidenced by a resolution passed by the city council. For purposes of this section, any sale, dissolution, merger, consolidation, or other reorganization of the solid waste service provider, or the sale or other transfer of an accumulative fifty percent or more of the voting stock of a corporate solid waste service provider by any person or group of persons acting in concert shall be deemed a transfer of the solid waste franchise. Any attempt by the solid waste service provider to assign or transfer the solid waste franchise without the prior written consent of the city shall be void and without legal effect.

B. An application for a transfer of a solid waste franchise shall be made in a manner prescribed by the city manager. The application shall include a "franchise transfer application fee" in an amount to be established by the city council. The fee shall constitute an initial deposit to cover the anticipated cost of all reasonable and customary direct and indirect administrative expenses, including consultants and attorneys, necessary to analyze adequately the application and to reimburse the city for direct and indirect expenses. In addition, the solid waste service provider shall reimburse the city for all reasonable consultants', attorneys', and staff costs not covered by the franchise transfer application fee, whether or not the city approves the application for transfer.

C. In determining whether to grant consent to a transfer of the solid waste franchise, the city shall consider the experience, capability, competence, and financial ability of the proposed transferee to carry out the requirements of the franchise. To enable the city to make this determination, the transferor and proposed transferee shall provide to the city any reasonably requested information. Any proposal by the holder of a solid waste franchise to transfer said franchise shall be made in strict compliance with conditions precedent in subsections 1 through 4 below:

1. Transferor is not in default under the solid waste franchise or this chapter;

2. Transferor has provided to the city written request for consent to the transfer;

3. Transferor and transferee have signed an assignment and assumption agreement, or similar agreement, in a form and content acceptable to city; and

4. Transferee has signed all agreements and posted all bonds and insurance required by the solid waste franchise and this chapter.

D. The city shall be required to give its consent to the transfer of the solid waste franchise. As a condition to giving its consent to a transfer of a solid waste franchise, the city may require the execution of an amended franchise agreement, imposing such conditions as the city, in the exercise of its discretion, may require. The city may also require the payment of a portion of the gross revenues estimated to be remaining under the terms of the franchise to the city.

E. Notwithstanding the above, the holder of a solid waste franchise shall be entitled to pledge, encumber, or grant any security interest in the solid waste franchise, provided that the holder shall first notify and obtain city consent to such transaction, subject to the following conditions:

1. Any consent so granted shall not be deemed a consent to the exercise by such pledgee, encumbrancer, or secured party of any rights of the holder under the solid waste franchise unless so noted by the city;

2. Any consent so granted shall not be deemed consent to any subsequent transfer or assignment. Any subsequent transfer or assignment shall be deemed an assignment of the solid waste franchise within the meaning of this section and shall be void without the prior written consent of the city expressed by resolution; and

3. The pledgee, encumbrancer, or secured party shall execute and deliver to the city a written instrument, in a form satisfactory to the city attorney, evidencing agreement to be bound by the provisions of the solid waste franchise.

(Ord. No. 665, § 2, 12-9-2013)

A. Frequency. Each solid waste service provider shall collect the contents of each container (except containers for the collection of construction and demolition waste) placed, located, or maintained in the city by that solid waste service provider not less frequently than once per week.

B. Day and Time Limitations. Solid waste, recyclables, and green waste, including all additional services provided to residential premises, shall be collected from residential premises between 6:00 a.m. and 6:00 p.m. on Monday through Friday, and the hours of 7:00 a.m. and 6:00 p.m. on Saturday. Solid waste, recyclables, and green waste, including all additional services provided to commercial premises, shall be collected from commercial premises between 6:00 a.m. and 6:00 p.m., Monday through Saturday.

(Ord. No. 665, § 2, 12-9-2013)

A. Condition and Equipment. Any truck used for the collection or transportation of solid waste within the city shall be leak proof and equipped with a close-fitting cover which shall be affixed in a manner that will prevent spilling, dropping, or blowing of any solid waste upon the public right-of-way during collection or transportation. No person shall park or cause to be parked within the city any vehicle containing solid waste unless the vehicle is free from odor and in a sanitary condition.

B. Noise. In the event that the city or a city approved solid waste service provider receives more than one complaint regarding excessive noise resulting from regular collection activities within any twelve-month period, the solid waste service provider shall submit to the city, upon city's request, a certificate of vehicle noise level testing by an independent testing entity.

C. Identification. Each solid waste service provider shall place the following information on every collection vehicle in letters and figures at least three inches high in colors that contrast with the background:

1. The name of the solid waste service provider;

2. A toll-free telephone number for the solid waste service provider; and

3. A unique vehicle number.

D. Other Standards. Pursuant to the franchise or other permit issued pursuant to this chapter, the city council by resolution or ordinance may establish additional regulations regarding operation of collection vehicles as it may determine is appropriate.

(Ord. No. 665, § 2, 12-9-2013)