El Monte Municipal Code Ch. 18.12 Solid Waste Handling Franchises

A. No person shall perform within the territorial boundaries of the city (1) solid waste handling services; or (2) services for the collection, transportation, storage, transfer or processing of recyclable materials where such services are rendered for compensation that results in a net payment to the person rendering the services; without the expressed written consent of the City Council as evidenced by the approval of a franchise granted in accordance with this chapter; and without a valid city business license or other applicable city business permit.

B. In keeping with former El Monte Municipal Code Section 5208 which was adopted by way of Ordinance Nos. 2469 and 2470 on November 18, 1997 and December 16, 1997, respectively; and the subsequent recodification of the same as former Section 8.20.090 (Time Frame to Obtain a Solid Waste Enterprise Franchise Authorization) of former Chapter 8.20 (Solid Waste and Recyclable Material), as of the enactment of prior El Monte Municipal Code Section 5208, any person, entity or solid waste enterprise conducting business under a pre-existing license or permit issued by the city in lawful accordance with then established or previously established provisions of the El Monte Municipal Code or other applicable jurisdictional entity, may not continue to provide such services in the city of El Monte absent the award of a franchise in accordance with this chapter. Any franchise awarded pursuant to the terms and conditions of the El Monte Municipal Code as it existed prior to the enactment of Ordinance Nos. 2469 and 2470 shall terminate upon the termination date specified or otherwise provided for under the terms of the agreement and shall not be abrogated by the approval of Ordinance Nos. 2469 and 2470. Any franchise granted or extended after March 15, 2001 shall terminate at a date established at the sole discretion of the City Council as set forth in a duly approved franchise agreement.

(Ord. 2702 § 3 (part), 2007)

A. Scope of Franchise. The City Council may award one or more franchises for the performance of (1) solid waste handling services; and/or (2) services for the collection, transportation, storage, transfer and/or processing of recyclable materials where such services are rendered for compensation that results in a net payment to the person rendering the services. The City Council may award one more the foregoing franchises for any variety of premises located within the city, including but not limited to residential premises, commercial premises, multifamily premises; for any variety of activities conducted within the city, including but not limited to construction and demolition undertakings; and/or for any specific geographical area within the territorial boundaries of the city. The award of any such franchises shall be memorialized by City Council resolution and shall be formalized, detailed and evidenced by the approval and execution of a corresponding franchise agreement between the person awarded the franchise and the city. The award of any franchise shall be subject to, and consistent with, the terms, conditions and restrictions of the franchise agreement, this chapter and Chapter 8.20 of the El Monte Municipal Code.

B. Franchises Nonassignable. No person awarded a franchise pursuant to this chapter may assign, transfer, novate, subcontract or otherwise delegate any or all performance duties, obligations, rights and/or liabilities under the franchise to any other person without the prior written consent of the City Council. Any request to so assign, transfer, novate, subcontract or otherwise dispose of any or all performance duties, obligations, rights and/or obligations under the franchise shall require prior written notice as may be set forth under the franchise agreement or upon no less than ninety (90) days prior written not if no applicable time period is set forth in the franchise agreement. City reserves the right to withhold its consent to any transfer, assignment, novation, subcontracting or delegation in its sole discretion and its decision to withhold its consent include, but are not limited to, the determination that the person to whom the franchise or any portion thereof is to be assigned does not possess the experience; financial ability; personnel and/or equipment capacity; competence; and/or demonstrated reliability to undertake any or all of the performance duties or obligations set forth under the franchise.

C. City Business License Required. This section shall apply to all persons awarded a franchise pursuant to this chapter; and persons engaged in any of the exempted activities set forth under Section 18.12.040, below. All persons subject to this section shall be required to obtain a city of El Monte business license and shall conspicuously display any identification stickers or decals issued by the city on the rear of each collection vehicle used within the city of El Monte.

(Ord. 2702 § 3 (part), 2007)

Any franchise awarded pursuant to this chapter shall, at a minimum, be consistent with the following:

A. The franchise shall be awarded subject to terms and conditions that are authorized under, or are otherwise consistent with, the California Integrated Waste Management Act of 1989 (California Public Resources Code Section 40000 et seq.) as the same presently exists or as it may be modified or amended from time to time;

B. The franchise shall be awarded subject to terms and conditions that are authorized by, or are otherwise consistent with, the laws, statutes, regulations or rules of any other federal, state or local public agency having jurisdiction over the collection, conveyance, carrying, transportation and/or disposal of solid waste and/or recyclable materials within or from the city of El Monte;

C. The person awarded the franchise shall be required to cooperate with the city with respect to any and all solid waste generation studies; the preparation of waste stream audits, and the submission of any and all information required by the city in order to comply with reporting requirements of AB 939 and other governing legislation;

D. The person awarded the franchise shall be required to implement any and all measures mandated by, or otherwise consistent with, the city's source reduction and recycling element ("SRRE") and the household hazardous waste element ("HHWE") with the objective of allowing the city to meet diversion goals and other goals mandated under the California Integrated Waste Management Act of 1989 (California Public Resources Code Section 40000 et seq.);

E. The person awarded the franchise shall be required to pay any and all fees as may be established (and from time to time adjusted) by City Council resolution and such other fees as may be established under the terms of a corresponding franchise agreement, including but not limited to administrative fees, franchise fees, AB 939 fees and HHW and e-waste fees;

F. The franchisee shall be required to post a bond to secure its performance under the franchise agreement. The form and amount of the bond shall be set forth in the franchise agreement in amounts approved by the City Council.

(Ord. 2702 § 3 (part), 2007)

The award of a franchise issued under this chapter shall not be required for the performance of the following activities by the following persons under the limited set of circumstances set forth below:

A. The performance of solid waste handling services as defined under Section 40195 of the California Public Resources Code by a solid waste enterprise that has lawfully provided such service in the city of El Monte for a period of three (3) consecutive years or more pursuant to a nonexclusive franchise, a nonexclusive contract, a license or a permit authorized by the city of El Monte, but only for a period not exceeding five (5) consecutive years from the date of mailed notification from the city of El Monte that exclusive solid waste handling services are to be provided or authorized;

B. The performance of solid waste handling services as defined under Section 40195 of the California Public Resources Code by a solid waste enterprise possessing an exclusive franchise or an exclusive contract to provide such services, but only for the lesser of the following: five (5) consecutive years; or the remaining unexpired term of the exclusive franchise or exclusive contract, whichever the case may be;

C. The performance of any activities falling with the definition of solid waste handling services as defined under Section 40195 of the California Public Resources Code, by any officer, employee or agent of the city of El Monte acting on behalf of the city of El Monte in their official capacity or in the course of their employment or agency;

D. The disposal or composting of green waste in accordance with a program sponsored or authorized by the city of El Monte by any person possessing a valid business license, and if necessary a valid business permit, authorizing the performance of gardening services, landscape contracting services, tree trimming services or tree removal services.

(Ord. 2702 § 3 (part), 2007)

A. Mandatory Varieties of Coverage/Coverage Limits. Any person awarded a franchise pursuant to this chapter shall, at a minimum, procure and at all times maintain throughout the franchise term, the following policies of insurance:

1. Workers' Compensation/Employers Liability Insurance. Workers' compensation and employers liability insurance at limits no less than those limits required under the California Labor Code and employers liability limits in an amount recommended by the City's Risk Manager and the City Attorney but in no event less than one million dollars ($1,000,000.00) per occurrence;

2. Commercial General Liability Insurance. Commercial general liability insurance with coverage limits of five million dollars ($5,000,000.00) per occurrence for bodily injury and property damage; and five million dollars ($5,000,000.00) in the aggregate; or such higher limits as may be recommended by the City's Risk Manager or the City Attorney;

3. Automobile Liability Insurance. Automobile liability insurance with coverage limits of five million dollars ($5,000,000.00) per accident for bodily injury and property damage; and aggregate limits of five million dollars ($5,000,000.00); or such higher limits as may be recommended by the City's Risk Manager or the City Attorney.

B. Commercial general liability insurance policies and automobile liability insurance policies mandated under this section shall provide, or be endorsed to provide, that such insurance shall be primary over any other insurance maintained by the city of El Monte. Any insurance maintained by the city of El Monte shall be in excess of, and shall not contribute to, that procured by the person awarded a franchise under this chapter. No coverage procured by a person awarded a franchise under this chapter shall be suspended, voided or canceled except after thirty (30) days' prior written notice by certified mail, return receipt requested, given to the city of El Monte care of the Environmental Services Division.

C. All insurance polices placed with insurers pursuant to this section shall be with carriers admitted to issue such policies of insurance in the state of California and approved by the California Department of Insurance. Except as otherwise authorized by the City's Risk Manager for the city of El Monte in writing, all policies of insurance shall be procured from carriers with an A.M. Best's rating of no less than A:VII.

D. Except with respect to workers' compensation insurance, all mandated insurances coverages shall be endorsed to name the city of El Monte and its elected or appointed officials, officers, employees, agents and volunteers as additional insureds.

E. As a condition precedent to the performance of any services authorized under the franchise, any person awarded a franchise pursuant to this chapter shall be required to first file certificates and original endorsements evidencing the procurement of any coverages required under this section. In addition, the city of El Monte shall have the right to inspect all insurance policies required under this section.

F. Nothing in this section shall prohibit the city of El Monte from requiring by way of any franchise agreement, insurance requirements and insurance coverage terms in excess of minimum coverage requirements and terms set forth in this section.

(Ord. 2702 § 3 (part), 2007)

A. Any person awarded a franchise under this chapter shall, at a minimum, indemnify, defend and hold free and harmless, the city of El Monte, its elected or appointed officials, officers, employees, volunteers and agents (collectively, the "indemnified parties") from and against any and all claims, losses, fines, penalties, damages, liabilities or judgments, including attorneys fees, arising out of or resulting in any way from the person's conduct of business in the city of El Monte or with respect to operations and actions taken by both the person awarded the franchise and the city of El Monte, unless such a claim against the city is due solely and exclusively to the negligent acts or omissions of the city of El Monte. For purposes of this section, the term "agents" excludes any person awarded a franchise under this chapter.

B. Without regard to any insurance coverages or requirements set forth under this chapter, and without in any way limiting the general indemnification obligation set forth under subsection A, above, any person awarded a franchise under this chapter shall, at a minimum, reimburse, indemnify, and hold free and harmless the indemnified parties, as previously defined under this section, from and against any and all claims, actions, liabilities, damages, demands, judgments, losses, costs, liens, expenses, suits, actions, attorneys' fees, consultant fees, penalties, and any and all other losses, damages, fees and expenses of whatever kind or nature ("claims") (including, but not limited to, response costs, investigative costs, assessment costs, monitoring costs, treatment costs, cleanup costs, removal costs, remediation costs, and similar costs, damages and expenses) that arise out of any negligent or willful act of the franchisee that results in the improper disposal or release of any hazardous contaminant as the term is defined under this chapter.

C. Nothing in this section shall prevent the city of El Monte from requiring indemnification that is broader in scope by way of a duly approved franchise agreement upon the recommendation of the City's Risk Manager and/or the City Attorney.

D. Nothing in this chapter or in any franchise awarded by the city shall operate to extinguish or supersede any prior indemnification duty imposed upon any person authorized by way of a prior franchise, license, permit or other like city authorization to provide or perform solid waste handling services and/or services involving the compensated collection, transportation, storage, transfer and/or processing of recyclable materials within the city prior to the enactment of this chapter.

(Ord. 2702 § 3 (part), 2007)

Any person awarded a franchise contemplated under this chapter shall be required to submit an annual source reduction and recycling plan ("SRRP") that pertains exclusively to the city of El Monte. The SRRP must include, but need not be limited to, the following essential elements:

A. The identification of targeted materials including special wastes for source reduction, recycling and composting;

B. A hazardous waste exclusion plan;

C. Detailed identification of diversion methods;

D. Detailed explanation of reporting methodology;

E. A detailed contingency plan; and

F. A detailed listing and explanation of methods used for the handling of white goods including CFC removal, PCB removal, and compliance with the requirements of Sections 42160 through 42185 of the California Public Resources Code.

(Ord. 2702 § 3 (part), 2007)

A. There is created a special fund to be known as the "AB 939 cost recovery special fund." The Deputy City Manager for Administrative Services is authorized and directed to:

1. Establish appropriate accounting procedures for the management of the AB 939 cost recovery special fund; and

2. Deposit all funds in said fund as may be received or collected by the city in accordance with AB 939 or the city source reduction and recycling element, including grants or state subvention revenues, or local regulatory program fees or charges as authorized under this chapter.

B. All sums deposited into the AB 939 cost recovery special fund, together with any accrued interest thereon, shall be used and applied to pay for costs associated with the city's preparation, adoption and implementation of its source reduction and recycling element. Said funds may also be used for any other purpose authorized under AB 939 or under the laws of the state of California.

(Ord. 2702 § 3 (part), 2007)

By resolution or negotiated franchise agreement, the City Council may adopt, and from time to time adjust, regulatory program fees or charges as authorized under AB 939 to provide a source of funds to pay for the preparation, adoption and implementation of the city source reduction and recycling element. By resolution or negotiated franchise agreement, the City Council may also adopt administrative fees and other regulatory fees for the development and enforcement of the city's franchise system for solid waste handling; solid waste disposal and the for fee collection of recyclable materials. Fees and charges authorized under this section may include AB 939 fees; franchise fees; administrative fees, HHW and e-waste fees and the like. The method of apportionment and collection of all fees and charges may also be established by City Council resolution or negotiated franchise agreement. All action authorized under this section shall be preceded by the conduct of a noticed public hearing as set forth under Section 66016 of the California Government Code.

(Ord. 2702 § 3 (part), 2007)

It is unlawful for any franchisee to fail to file any report or pay any fee or charge to the city as may be authorized under this chapter or as may be set forth in the franchisee's franchise agreement with the city. The violation of this section shall constitute a misdemeanor under the El Monte Municipal Code. Any remedies available to the city for the violation of this section shall be in addition to any and all other remedies available to the city under the El Monte Municipal Code, the franchise agreement or at law or in equity.

(Ord. 2702 § 3 (part), 2007)

No person engaged in the collection and/or recycling activities in the city of El Monte shall fail to comply with the provisions of:

A. This chapter or other applicable provisions of the El Monte Municipal Code;

B. Any franchise agreement such person has entered into with the city of El Monte;

C. Applicable provisions of the California Integrated Waste Management Act of 1989 (California Public Resources Code Section 40000 et seq.); or

D. Any other applicable laws regulating or otherwise governing such activities.

(Ord. 2702 § 3 (part), 2007)

A. All persons subject to this chapter shall establish and maintain a data retention and preservation system which accurately identifies the specific location where solid waste collected by the person is disposed of. Such identification, shall include the specific state, city and street address of the location where such solid waste is disposed of and the last known name and phone number of the facility or establishment where such solid waste is disposed of.

B. All persons subject to this chapter shall create, maintain and preserve written records identifying hazardous waste that has been found within solid waste and diverted from landfilling. Such records shall identify the hazardous waste by type and quantity.

C. Copies of all data and/or records required under this section shall be provided to the city of El Monte within ten (10) calendar days of the first day of July of each calendar year or during such other time schedule as may be provided for under the terms of a duly approved franchise agreement with the city of El Monte. The original data reports shall be retained and preserved for a period of no less than fifty (50) years from the date the person subject to this chapter was last authorized to perform solid waste services or recycling services in the city of El Monte or in lieu of such fifty (50) year retention, shall be provided to the city of El Monte upon request by the city of El Monte.

D. All data and reports created, maintained and provided to the city pursuant to this section as well as any additional data or reports required under the terms of a duly approved franchise agreement with the city shall be submitted with a signed, written declaration stating that the information contained in such data and/or reports is true and correct under penalty of perjury under the laws of the state of California.

(Ord. 2702 § 3 (part), 2007)

To protect the health, safety, and welfare of all persons in the city, the City Council may establish by resolution a hazardous contaminants fund. Such resolution shall set forth form, structure, parameters and potential associated charges related to the establishment of the fund.

(Ord. 2702 § 3 (part), 2007)

A. General Suspension and Termination Procedures. As more specifically set forth by way of a duly approved franchise agreement with the city, any franchise awarded pursuant to this chapter shall be subject to suspension and/or termination by the city.

B. Special Suspension and Revocation Procedures.

1. In the event the franchise agreement is silent as to whether a franchisee's performance deficiency or failure to comply with a specific provision(s) of this chapter, Chapter 18.2 or the franchise agreement itself warrants the suspension and/or revocation of the franchise, the provisions of this subsection B shall control.

2. With respect to any performance deficiency or failure of compliance subject to this section, the franchisee shall have fifteen (15) calendar days from the date of the city's issuance of written order to correct the performance deficiency and/or to enter into compliance, whichever the case may be. The foregoing notwithstanding, the City Manager shall have discretion to grant additional time for the franchisee to correct a performance deficiency and/or enter into compliance provided such additional time does not exceed a maximum of thirty (30) additional calendar days. The failure of the franchisee to correct the performance deficiency and/or enter into compliance within the time frame authorized under this section shall constitute grounds for the suspension of the franchise. The written order referenced herein may be faxed to the franchisee's designated fax number and/or mailed by certified mail.

3. In the event of suspension, the City Manager shall designate a Hearing Officer to conduct an administrative hearing to determine, among other things, whether or not the franchisee's performance deficiency and/or failure of compliance warrants a revocation of the franchise. The administrative hearing shall be held not less than fifteen (15) days from the date upon which the City Manager designates a Hearing Officer. The Hearing Officer shall submit written findings and recommendations to the City Manager. The City Manager may adopt the findings and recommendations of the Hearing Officer or make his or her own findings and determinations, including whether or not to revoke the franchisee's franchise.

4. A franchisee may appeal any decision to suspend or revoke the franchise to the City Council, provided a written appeal request is filed with the City Clerk within fifteen (15) calendar days from the effective date of any suspension or revocation. If the fifteenth day falls on a day in which the city of El Monte is not open for business, the deadline shall be extended to five-thirty p.m. of the next business day. The City Council shall hear the matter within forty (40) days from the date the appeal request is filed and the decision of the City Council shall be final. Pending the City Council's hearing on the matter, any suspension of the franchisee's franchise shall remain in effect and any revocation of the franchise shall be tolled.

(Ord. 2702 § 3 (part), 2007)

A. Except as otherwise provided under this chapter, those defined terms set forth under Section 8.20.270 (Definitions) of Chapter 8.20 (Solid Waste—Removal, Collection, Disposal and Diversion) of the El Monte Municipal Code shall have the same meaning when used under this chapter.

B. When used in this chapter, the following words shall have the meaning set forth below:

"Deputy City Manager for Administrative Services" means the Deputy City Manager for Administrative Services of the city of El Monte or designee.

"Special waste" shall have the same meaning as set forth under Section 18720 (Definitions) of Article 3 (Definitions) of Chapter 9, Division 7 (California Integrated Waste Management Board) of Title 14 of the California Code of Regulations.

"White goods" means discarded, enamel-coated major appliances, such as washing machines, clothes dryers, hot water heaters, stoves and refrigerators.

(Ord. 2702 § 3 (part), 2007)