Mono County Municipal Code Ch. 12.10 Franchise Requirement for Solid Waste Handling and Solid Waste Facilities

A. Protection of Public Health and Safety. The county declares that solid waste handling in the county affects the health, safety, public welfare and quality of life of the residents of and visitors to the county. The county further declares that solid waste handling is a public service and should be regulated by the county.

B. Protection of the Environment. It is the purpose of this chapter to provide for the uniform regulation of solid waste handling in order to ensure that it is conducted in a healthful, safe and orderly manner that minimizes adverse effects on the local environment.

(Ord. 05-06 § 1 (part), 2005.)

A. Requirement. Unless exempted in accordance with Section 12.10.021 of this chapter, commencing on January 1, 2006, no person shall engage in solid waste handling within the unincorporated area of the county (except for the southeastern portion of the county known as "Oasis") unless the county has granted that person a franchise and entered into a franchise agreement with that person that is in full force and effect.

B. Primary Franchises for Solid Waste Handling (Other Than Operation of a Solid Waste Facility). The board of supervisors may offer and enter into franchise agreements to provide solid waste handling services (other than the operation of solid waste facilities) within all or a portion of the unincorporated area of the county to solid waste enterprises who are currently providing those services as of the date the ordinance codified in this chapter becomes effective and who have rights pursuant to Public Resources Code Section 49520 to continue to provide those services until October 5, 2009. After October 5, 2009, or prior to that date if any current provider having rights as described above ceases to provide solid waste handling services, the board of supervisors may enter into up to two franchise agreements with solid waste enterprises to provide solid waste handling services (other than operation of solid waste facilities) within all or a portion of the unincorporated area of the county. The solid waste enterprises shall be referred to in this chapter as the "primary franchisees" and the franchise agreements shall be referred to in this chapter as the "primary franchise agreements."

C. Secondary Franchises for Solid Waste Handling (Other Than Operation of a Solid Waste Facility). The board of supervisors may enter into one franchise agreement per primary franchisee with solid waste enterprises that subcontract with primary franchisees to provide a portion of solid waste handling services under the primary franchise agreement. The solid waste enterprise subcontracting with a primary franchisee shall be referred to in this chapter as the "secondary franchisee" and the franchise agreements shall be referred to in this chapter as the "secondary franchise agreements."

D. Solid Waste Facilities. The board of supervisors may enter into any number of franchise agreements for the operation of solid waste facilities with solid waste enterprises that provide solid waste handling services comprised of operating solid waste facilities within the unincorporated area of the county. The solid waste enterprise shall be referred to in this chapter as "facility franchisee" and the franchise agreements shall be referred to in this chapter as the "facility franchise agreement."

E. Minimum Franchisee Qualifications. Before the board of supervisors grants any franchise or enters into any franchise agreement, the proposed franchisee must demonstrate to the director's and board's satisfaction that:

1. It has adequate financial resources and experience to handle solid waste in accordance with its franchise agreement, including, without limitation, filing with the county a letter of credit or equivalent security as determined by the director in an amount determined by the director to ensure full and timely satisfaction of its obligations under the franchise agreement and, in the case of a primary franchisee or facility franchisee, payment of franchise fees; and

2. It is capable of safely handling solid waste in compliance with all federal, state, and local laws and regulations governing solid waste handling and (including, without limitation, this title).

The director or board of supervisors may require additional information from the proposed franchisee to demonstrate to the director's or to the board's satisfaction franchisee's ability to comply with this section.

(Ord. 05-06 § 1 (part), 2005.)

A. Exemptions. The following persons shall be authorized to handle solid waste in the unincorporated area of the county without a franchise:

1. Persons transporting and disposing of solid waste generated on their own premises (i.e., "self-haulers").

2. Persons transporting and disposing of solid waste generated incidentally to and as a by-product of their business, such as contractors who haul away construction or demolition waste or landscape contractors who remove yard waste generated at their project site. This exemption shall not apply to persons transporting and disposing of solid waste generated incidentally to and as a by-product of their business where the sole business service provided by such persons is the collection and/or clean-up of solid waste on the premises.

3. Persons having entered into a contract with the State of California, or an agency thereof, or with any agency or entity exempt by law from compliance with local franchise requirements, for the collection, transportation and disposal of solid waste, when those persons collect, transport and dispose of solid waste on or from any facility operated by the state or other exempt entity.

4. Persons collecting, transporting, storing, transferring, processing or disposing of unpermitted wastes in accordance with all state, federal and local laws and regulations, unless commingled in solid waste, in which case they are subject to Section 12.10.020 of this chapter.

5. Persons collecting, transporting, storing, and recycling source separated recyclables.

6. Persons providing solid waste handling services pursuant to agreement with Mono County, unless the agreement requires that the services be provided pursuant to a franchise.

7. Persons providing solid waste handling comprised solely of transportation through unincorporated areas of the county, without collecting, storing, or disposing of solid waste within the unincorporated areas of the county.

B. Permit Requirement. Nothing in this section shall exempt a person providing solid waste handling services from obtaining a permit to provide such services or from obtaining a permit to develop or operate a solid waste facility, as required by Chapter 12.08 of this title.

(Ord. 05-06 § 1 (part), 2005.)

(Ord. No. 11-08, §§ 1, 2, 7-5-2011; Ord. No. 18-15, § 2(Exh. B), 11-13-2018)

A. Fee Requirement. In consideration of the grant of the franchises, all primary franchisees and facility franchisees must pay a franchise fee to the county in the amount set forth in the franchise agreement and in accordance with the terms of the franchise agreement and this chapter.

B. Payment. Franchisees must pay franchise fees quarterly to the order of the county of Mono, due and payable on the first day of the second month immediately following the quarter in which solid waste services under the franchise agreements were rendered. For example, for services rendered in January through March, franchisees must pay a monthly franchise fee no later than May 1. Franchise agreements may provide for late payment fees in event of delinquency as well as prescribe county's audit rights.

C. Documentation and Warranty. Together with payment of their franchise fees, the person submitting the payment and the chief financial officer of the franchisee or other person acceptable to the director, must submit documentation and provide a representation and warranty as to its accuracy as set forth more specifically in the franchise agreement and/or as requested by the director.

D. Fees not Exclusive. The payment of franchise fees to the county pursuant to this section shall be in addition to any license fee or business tax prescribed by the county or any other local jurisdiction for the same period.

(Ord. 05-06 § 1 (part), 2005.)

A. Term. Primary franchise agreements entered into as of January 1, 2006, shall have an initial term not to exceed seven years plus one or more extensions not to exceed an additional two years, granted at the sole discretion of the county. Franchise agreements entered into following the termination or expiration of those agreements entered into as of January 1, 2006 may be for terms exceeding seven years, in the discretion of the board and the director. The stated term of primary franchises shall be subject to earlier termination as provided in the franchise agreements, such as for defaults described in subsection E of this section.

The term of any secondary franchise shall be the lesser of:

1. The stated expiration date of the primary franchise pursuant to which the primary franchisee is subcontracting with the secondary franchise, plus any extensions of the stated expiration date granted by the county, subject to earlier termination of the primary franchise; or

2. The stated expiration date of the subcontract between the primary franchisee and the secondary franchisee, subject to earlier termination as provided in the secondary franchise.

Franchise agreements shall not include automatic renewal or extension provisions colloquially referred to as "evergreen" provisions. For example, a provision that automatically extends the stated seven-year term of a franchise for an additional eighth year unless during the second year of the stated seven-year term the county gives franchisee a notice of county's intent to terminate the franchise at the end of the stated seven-year term, is prohibited.

B. Rates. The county shall have the right to set specific, maximum or minimum rates, fees and charges, for providing solid waste handling services and to prescribe protocols to adjust those rates, fees and charges, fees or charges pursuant to resolution of the board of supervisors or in franchise agreements.

C. Transfer or Assignment. Franchisees shall not transfer or assign any rights nor delegate any duties authorized pursuant to this chapter and/or the franchise agreement without the express prior written consent of the county given in the county's sole discretion. Any assignment made without that consent is void. The terms "transfer" and "assignment" shall have the meaning set forth in franchise agreements.

Primary franchisee shall make any request for consent to assignment in the form and manner prescribed by the county and will provide any documentation related to the proposed assignment that the county may request. The county is not obligated to consider any proposed assignment unless the following two conditions are satisfied: (1) franchisee is not in breach of any term of its franchise agreement at the time of the request; and (2) franchisee pays to the county a nonrefundable assignment fee as set by resolution of the board of supervisors and agrees to pay to the county, within thirty days of the county's request, any additional costs incurred by the county in considering the request, including time spent by consultants, attorneys and county staff and, if necessary, any reimbursement costs for attorneys' fees and investigation costs necessary to enjoin the assignment. Franchisee shall further reimburse the county for fees and investigation costs incurred by the county to enjoin the assignment or to otherwise enforce this provision within thirty days of the county's request.

D. Subcontracting.

1. Subcontracts of Primary Franchise Agreement Obligations. Primary franchisees shall not subcontract their obligations under primary franchise agreements without the express prior written consent of the county given in the county's sole discretion. Any subcontract of obligations under primary franchise agreements entered into without that county consent is void. Subcontracting shall not relieve primary franchisee of its obligation to fully and timely meet its obligations under the primary franchise agreement. For purposes of this subsection, "subcontracts" include any arrangement, formal or informal, written or merely in practice to provide solid waste handling services which are the subject of the primary franchise agreement.

2. Secondary Franchise Agreements. Following county approval of a subcontract between a primary franchisee and a secondary franchisee in accordance with the preceding subsection, the secondary franchisee must enter into a secondary franchise agreement with the county providing that the secondary franchisee fully and timely meet the obligations under the primary franchise agreement that are being subcontracted.

3. General Provisions. Franchisees shall not subcontract in a manner that effectuates a transfer or assignment of their franchise unless they satisfy the requirements of subsection C of this section and any requirements set forth in the franchise agreement related to assignment. For purposes of this subsection, "subcontracts" include any arrangement, formal or informal, written or merely in practice to provide goods or services related to meeting franchise obligations.

E. Events of Default. Each of the following will constitute an event of default under franchise agreements, with the exception of subsection (E)(1)(a) of this section, which will not constitute an event of default under a facility franchise agreement:

1. Service Defaults.

a. Missed Collections. Franchisee fails to provide collection services for a period of more than seven consecutive days or seven days in the aggregate during the term of the franchise agreement, unless the failure is due to uncontrollable circumstances, franchisee fails to provide collection services for a period of more than seven consecutive days or seven days in the aggregate during the term of the franchise agreement, whether or not due to uncontrollable circumstances. For example, if franchisee fails to provide collection services on a Wednesday, an event of default will occur if franchisee fails to provide collection services by the Thursday of the following week (eight days thereafter);

b. Breach of Franchise Agreement.

i. Franchisee does not cure its failure to fully and timely perform any of its obligations under the franchise agreement (other than those obligations specifically listed in subsections (E)(1)(a), (E)(1)(b)(ii) and (iii), (E)(1)(c), (E)(1)(d), (E)(2) and (E)(3) of this section); within (1) thirty days following receipt of notice from the county identifying the failure, (2) a shorter period determined by the county if required to protect public health and safety, or (3) a longer period requested by franchisee and accepted by the county in the county's sole discretion.

ii. Franchisee fails to fully and timely satisfy ten or more of its obligations under the franchise agreement in any twelve-month period or repeatedly and habitually fails, in the judgment of the county, to satisfy them after notice from the county identifying the failures, regardless of whether franchisee subsequently cures a specific instance of failure.

iii. If an uncontrollable circumstance materially affects the franchisee's ability to fully and timely satisfy its obligations under the franchise agreement, an event of default under this subsection b will be excused for a period of seven calendar days beginning on the first occurrence of that event of default provided franchisee exerted reasonable business efforts to prevent the occurrence and mitigate the effects of the uncontrollable circumstance. An event of default under this subsection b due to uncontrollable circumstances will not be excused if it continues for a period of more than seven calendar days beginning on the first occurrence of that event of default.

c. Violation of Law. (1) Franchisee materially violates any law (including the County Code) and does not cure that violation to the satisfaction of county or applicable regulatory agency within thirty days of the notice, assessment or determination of that violation; or (2) franchisee repeatedly violates the same or different laws. Violation of the County Code will be evidenced by notices of noncompliance with the County Code issued by the local enforcement agency, Department of Public Works, or code compliance officer. If franchisee is entitled to and contests any violation by proceedings conducted in good faith, this event of default will not be deemed to have occurred until a final decision adverse to franchisee is entered. "Violates" means any failure to comply with law as evidenced by notice, assessment or determination of any regulatory agency to franchisee, whether or not a fine or penalty is included, assessed, levied or attached.

d. Criminal Activity. The failure to timely terminate and/or replace any employee, officer, or director upon the occurrence of any criminal activity as set forth in the franchise agreement.

2. Performance Assurance Defaults.

a. Failure to Provide Insurance, Bond, or Letter of Credit. Franchisee fails to provide insurance, performance bond, or letter of credit as required by the franchise agreement.

b. Failure to Provide Assurances of Performance. Franchisee fails to timely provide assurances of performance as required by the franchise agreement.

c. Failure to Pay County. Franchisee fails to fully and timely pay county (1) more than twice within and calendar year, or (2) within twenty calendar days of demand by county for payment of moneys owing, or (3) as otherwise as provided by the franchise agreement.

d. Transfer, Assignment. Franchisee transfers or assigns the franchise agreement without county approval.

e. Seizure, Attachment. Any vehicle, equipment, or other service asset of franchisee is seized, attached or levied upon (other than a pre-judgment attachment) so as to substantially impair franchisee's ability to timely and fully perform solid waste collection services and which cannot be released, bonded or otherwise lifted within forty-eight hours, excepting weekends and holidays (as may be defined in the franchise agreement).

f. Insolvency, Bankruptcy, Liquidation. Franchisee files a voluntary claim for debt relief under any applicable bankruptcy, insolvency, debtor relief, or other similar law now or hereafter in effect, or will consent to the appointment of or taking of possession by a receiver, liquidator, assignee (other than as a part of a transfer of vehicles, equipment, or other services assets no longer used to provide solid waste collection services), trustee (other than as security of an obligation under a deed of trust), custodian, sequestration, administrator (or similar official) of franchisee for any part of franchisee's operating assets or any substantial part of franchisee's property, or makes any general assignment for the benefit of franchisee's creditors, or fails generally to pay franchisee's debts as they become due or takes any action in furtherance of any of the foregoing.

A court having jurisdiction enters a decree or order for relief in respect of the franchise agreement, in any involuntary case brought under any bankruptcy, insolvency, debtor relief, or similar law now or hereafter in effect, or franchisee consents to or fails to oppose any such proceeding, or any such court enters a decree or order appointing a receiver, liquidator, assignee, custodian, trustee, sequestrator, administrator (or similar official) of the franchisee or for any part of the franchisee's operating equipment or assets, or orders the winding up or liquidation of the affairs of the franchisee.

3. Miscellaneous.

a. Fraud, Misrepresentations; Breach of Warranties. Franchisee (1) committed any fraud or deceit in the procurement of a franchise agreement; (2) commits, or attempts to commit, any fraud or deceit upon the county following execution of the franchise agreement; (3) breaches a warranty in the franchise agreement; or (4) makes a material misrepresentation or false certification in the procurement of a franchise agreement or following execution of the franchise agreement or in the franchise agreement.

F. Termination. The county may terminate a franchise agreement effective immediately following notice by the county to franchisee following any event of default if the county determines that protection of public health and safety requires immediate suspension or termination. The county may terminate a franchise agreement effective immediately following notice by the county to franchisee in events of default described in subsection (E)(1)(c) (failure to comply with law), (E)(2)(a) (failure to provide insurance, bond or letter of credit), or (E)(2)(b) (failure to provide assurances of performance) of this section.

The county may terminate a franchise agreement effective thirty calendar days following notice by the county to franchisee of any event of default other than those listed in the preceding sentence.

County may terminate the franchise agreement upon six months' notice if, in the judgment of the director, the county and franchisee are unable to reach satisfactory agreement to adjust rates in the event that the county exercises its rights to set rates, fees or charges in accordance with subsection B of this section.

The franchise agreement may provide that the county may terminate the franchise agreement for convenience, without fault, upon prescribed notice and terms or for causes not listed in this section.

G. Suspension. County may suspend a franchise agreement for up to thirty calendar days upon the occurrence of an event of default described in subsection E of this section. During that thirty-day period the franchisee will have the opportunity to demonstrate to the satisfaction of the county that it can once again fully and timely perform services. If the franchisee so demonstrates, then county's right to suspend or terminate the franchise agreement will cease and franchisee may resume providing services. If the franchisee does not so demonstrate, then the county may terminate the franchise agreement and exercise any other rights and remedies under the agreement or this chapter. Prior to suspending the franchise agreement, or any portion thereof, the county shall provide the franchisee with a notice of suspension, effective fifteen calendar days thereafter. Such notice is not required and a franchise agreement may be suspended effective immediately if the county determines that the suspension is necessary for the protection of public health and safety or the environment.

H. Liquidated Damages. Primary franchise agreements shall provide that, in addition to exercising any other rights or remedies at law or equity, or regulatory authority, county may impose liquidated damages in the event of default.

I. Uncontrollable Circumstances. Uncontrollable circumstances means any of the following events (1) riots, war or emergency affecting the county declared by the President of the United States or Congress of the United States, the Governor of California, or the board of supervisors; (2) sabotage, civil disturbance, insurrection, explosion; (3) natural disasters such as floods, earthquakes, landslides, avalanches, and fires; or (4) other catastrophic events which are beyond the reasonable control of franchisee despite franchisee's exercise of due diligence.

Uncontrollable circumstances exclude, without limitation: (1) the financial inability of a franchisee to satisfy its obligations under a franchise agreement; (2) the failure of a franchisee to obtain any necessary permits or the right to use the facilities of any public entity; (3) reasonably anticipated weather conditions for the geographic area of the county; (4) a change in law other than with respect to the county, any change in law adopted by the county, unless the change in law is mandated by state or federal applicable law; (5) a franchisee's or county's breach of obligations under a franchise agreement; (6) a franchisee's inability to hire adequate numbers of personnel who are competent and skilled in the work to which they are assigned; (7) the failure of a franchisee to secure patents, licenses, trademarks, and the like necessary to provide the services; (8) as to a franchisee, the failure of any vehicles, equipment, or other service assets to perform in accordance with any warranties, unless caused by uncontrollable circumstances; and (9) any strikes, lockouts, or other labor disturbances.

J. Other Provisions. The director may include additional provisions in franchise agreements as he or she deems necessary to implement this chapter and provide environmentally sound and fiscally responsible solid waste handling services, including without limitation, scope and standards of solid waste handling services, diversion requirements, defense and indemnification, emergency service options, dispute resolution protocols, record and reporting requirements and performance assurances.

(Ord. 05-06 § 1 (part), 2005.)

A. Residential Containers. Franchisees providing solid waste handling services shall provide all residential customers with one or more containers for the deposit and collection of solid waste which are clean, water tight, constructed of a material of suitable strength and durability (such as heavy plastic), bear resistant to the satisfaction of the director, and tight seamed. Commercial containers may be provided to residential customers, if they meet the requirements set forth in subsection B of this section and in the franchise agreement.

B. Commercial Containers. All bins, "roll-offs" debris boxes or dumpsters provided to any customer shall be durable, constructed from structural steel plate with all welded seams, leak proof, equipped with a noncombustible lid, and approved by the county as providing adequate protection against fire hazard, rodents and bears. All debris boxes and dumpsters furnished by an individual franchisee shall display the franchisee's name and telephone number in legible lettering no less than two inches in height and shall be maintained by the franchisee in accordance with the requirements set forth in the franchise agreement.

(Ord. 05-06 § 1 (part), 2005.)

A. Residential and Commercial Waste. Any franchisee providing solid waste handling services pursuant to this chapter and by agreement with a solid waste generator shall collect, remove, and dispose of all residential and commercial solid waste placed for its collection not less than once each week, as scheduled, and in the manner set forth in the franchise agreement. Solid waste containers shall be returned by the franchisee to the collection point upright, with lids properly secured.

B. Construction and Demolition Waste. Construction and demolition waste or other inert materials shall be collected not less than once per month on a regular schedule or a "will call" basis. Collection of construction and demolition waste through the use of tilt-frame vehicles to provide and remove debris boxes or "roll-offs" is subject to the franchise requirement of Section 12.10.020 of this chapter.

C. Mandatory Clean Up. Any franchisee providing solid waste handling services pursuant to this chapter shall exercise all reasonable care and diligence in collecting solid waste so as to prevent spilling, scattering, or dropping such waste and materials and shall immediately, at the time of occurrence, clean up any leaks or spills.

(Ord. 05-06 § 1 (part), 2005.)

A. Facilities. Each franchisee shall at all times maintain its properties, facilities, and equipment used in providing service under this chapter, and located within the unincorporated area of Mono County, in a safe, neat, clean and operable condition.

B. Vehicle Specifications. All trucks or vehicles used by franchisees for solid waste collection and transportation within the unincorporated areas of the county shall be completely enclosed with a rigid, nonabsorbent cover while transporting solid waste in or through the unincorporated areas of the county. Solid waste shall not be visible from the street nor shall any substance be permitted to leak, spill, or otherwise become deposited along public streets.

C. Vehicle Identification. All trucks or vehicles used in the course of solid waste collection and transportation by an individual franchisee shall display the franchisee's name, telephone number, and unique vehicle identification number in a prominent location or locations on each side of the vehicle. Lettering shall be legible and no less than two inches in height. All such trucks or vehicles shall be kept clean and in good repair at all times. Collection vehicles shall be subject to inspection and approval by the local enforcement agency to ensure that they are in satisfactory condition with respect to excessive fluid leaks, drippings, or otherwise causing a hazardous or unsightly condition.

D. Inspection by County. All equipment, properties, facilities, and vehicles used by a franchisee for solid waste handling shall, upon twenty-four hours prior written notice, be made available for inspection by the county for the purpose of ensuring compliance with this title, and/or other applicable laws or regulations.

(Ord. 05-06 § 1 (part), 2005.)

All solid wastes become the property and responsibility of the franchisee, or the collection agent authorized pursuant to Section 10.12.021 of this title, upon collection or receipt.

(Ord. 05-06 § 1 (part), 2005.)

A. Requests for Service. Except as provided in subsection B of this section or as specifically exempted in the franchise agreement, no primary franchisee or secondary franchise shall decline to provide solid waste handling services provided for in their respective franchise agreements to any person within the area covered by the franchise agreement.

B. Cancellation for Nonpayment. Notwithstanding the foregoing, a franchisee may cease providing solid waste handling services for nonpayment of bills, and the nonpaying customer may be denied future requests for service, in accordance with a written policy developed by the franchisee and approved in writing by the director.

C. Prohibition on Division of Territory. No primary franchisee shall, by contract, express understanding, or otherwise, in cooperation with another primary franchisee, divide, segregate or apportion any territory within the unincorporated area of the county for the purpose of restricting competition within that territory.

(Ord. 05-06 § 1 (part), 2005.)