Pomona Municipal Code Div. 6 Disposal Facilities, Transfer Stations and Similar Facilities

Footnotes:

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Editor's note— For reference to "Medical Waste Facilities," please see Chapter 62, Article VI, Division 8.

All solid waste collected within the city shall be disposed of at a site legally empowered to accept such material for disposal and/or diversion.

(Code 1959, § 12-55; Ord. No. 3884, § 1 (part); Ord. No. 4108, § 2, 9-22-2008)

No person shall construct or operate a solid waste management facility, including, but not limited to, a materials recovery facility, solid waste transfer or processing station, composting facility, a buyback or dropoff center, disposal facility, intermodal facility, or recycling center without first satisfying all city requirements for land use, environmental and other approvals as well as those governing provisions of the Public Resources Code as may be amended.

(Code 1959, § 12-103; Ord. No. 3884, § 1 (part); Ord. No. 4108, § 2, 9-22-2008)

No person shall operate a transfer or processing station, landfill, materials recovery facility, intermodal facility, or any other facility covered under the provisions of the Public Resources Code §§ 40100—44017, 44150 and 44100 or any other applicable sections of the Public Resources Code relative to such operations, including those sections specified in Public Resources Code div. 31 (Public Resources Code § 50000 et seq.), from or at any location within the city, unless such person is authorized to do so by the granting of a franchise or contract by the city council or the city prior to the enactment of the ordinance from which this article is derived.

(Code 1959, § 12-100; Ord. No. 3884, § 1 (part); Ord. No. 4108, § 2, 9-22-2008)

The city council may award one or more franchises, for the operation of a transfer or processing station, materials recovery facility, or other facility covered under the provisions of the Public Resources Code. No company shall engage in the business of operating a transfer or processing station, landfill, materials recovery facility or any other facility covered under section 62-843 within the city pursuant to this division without first having obtained a franchise agreement pursuant to authorization of the city council. However, this division shall not apply to any such facility owned by the city and/or operated by the city. Should the city council determine that a franchise warrants issuance, such franchise shall be conditional upon the compliance with all of the requirements and regulations established with respect to collection, removal, disposal, or dumping of any solid waste. All franchises shall be granted in accordance with such terms and conditions as established by the city council and at its sole discretion. Each franchise awarded pursuant to the terms and conditions of this subdivision shall remain in effect for such period of time approved by the city council, provided the franchisee remains in compliance with the requirements established within the context of this Code and its executed franchise agreement with the city. The effective dates for any franchise granted or extended to an existing franchisee after the initial timeframe shall be at the sole discretion of the city council and/or the provisions set forth in an executed franchise agreement. Nothwithstanding anything in this article VI or division 6 as they now exist or as they may be amended in the future, any existing agreement or lease for a transfer station or similar facility approved by the city council on or before September, 2008, including any franchise pursuant to such agreement or lease, shall be governed only by the provisions of such agreement or lease, as previously approved by the city council, and as amended in future from time to time, not by the provisions of this article or division. No franchise granted pursuant to this subdivision shall be entitled to be assigned, transferred, conveyed, sublet, or to otherwise dispose of any right, liability or interest to another solid waste enterprise without first having obtained the written consent of the city council, which shall not be unreasonably withheld.

(Code 1959, § 12-100; Ord. No. 3884, § 1 (part))

All facilities subject to this article shall be subject to the issuance of a conditional use permit as specified in this Code.

(Code 1959, § 12-102; Ord. No. 3884, § 1 (part))

Unless apparent from the context of a word or phrase, certain words not specifically set forth by this article shall have the meaning ascribed by Public Resources Code div. 30, pt. 1, ch. 2 (Public Resources Code § 40100 et seq.). The following words, terms and phrases, when used in this division, shall have the meanings ascribed to them in this section, except where the context clearly indicates a different meaning:

AB 939 means the California Integrated Waste Management Act of 1989 (Public Resources Code § 40000 et seq.) and implementing regulations of the California Integrated Waste Management Board (CIWMB).

Applicable law means all laws, regulations, codes, rules, orders, judgments, decrees, permits, approvals, or other requirements of any governmental agency having jurisdiction over the processing or transfer of solid waste that are in force on the effective date and as they may be enacted, issued or amended during the term of the agreement.

Bio-solids mean residual solids, semi-solids, or sludge from the treatment of water, wastewater, and other liquids.

CERCLA means the Comprehensive Environmental Response, Compensation and Liability Act, 42 USC 9607(e).

CIWMB shall mean the California Integrated Waste Management Board.

City means the City of Pomona, a Charter City, and all the territory lying within the municipal boundaries of the city as presently existing or as such boundaries may be modified during the term of this agreement.

City manager means the chief executive officer of the City of Pomona, or designee.

Commercial waste collector means any person regularly engaged in the business of providing solid waste handling or recycling services.

Complaint log means the written record of complaints received by the operator regarding the facility and its operations. Each entry in the complaint log includes the date, time, name and contact information of the individual making the complaint, the nature of the complaint, how the issue was resolved, and the method used to avoid or mitigate the same type of complaint in the future.

Compost or composting material means any product resulting from the controlled biochemical decomposition of organic wastes that are source separated from the municipal solid waste stream. Compost includes vegetable, yard, and wood wastes, which have not or are not deemed to contain hazardous material or contaminated in any way.

Conditional use permit or CUP means the land use permit issued by the city to the operator pursuant to Section 590 of the Pomona Zoning Ordinance.

Construction and demolition debris means discarded building materials from construction, deconstruction, remodeling, repair, cleanup, or demolition operations. These include, but are not limited to: asphalt, concrete, cement, brick, lumber, wallboard, roofing material, ceramic tile, metal, plastic pipe, and associated packaging.

Consumer Price Index or CPI means the Consumer Price Index for All Urban Consumers in the Los Angeles-Riverside-Orange, County area (1982-1984 = 100) as published by the Federal Bureau of Labor Statistics. Should said index be discontinued or otherwise not be available, the term "CPI" shall mean a reasonably comparable replacement cost of living index mutually agreed upon in writing by city and operator.

Customer means commercial waste collectors, self-haulers or other persons that deliver material to the facility.

Destination facility means the lawfully permitted site, facility, or location to which the operator transfers material received at the facility.

Disposal site means the lawfully permitted place, location, tract of land, area, or premises in use, intended to be used, or which has been used, for the landfill disposal of solid wastes.

Effective date means the date pursuant to the terms of a fully executed franchise on which the operator's rights and obligations begin.

Facility means the operator's property, plant and equipment utilized as part of the management facility governed by this division.

Franchise means the right given by the city council on a person to receive solid waste and recyclable material at a facility and for the transportation from such facility to landfills, transformation facilities, materials recovery facilities or other licensed solid waste management facilities. Any such franchise is subject to all of the sections set forth in this Code and all other applicable Laws.

Franchisee means any solid waste enterprise duly authorized by a franchise to accept solid waste at a facility.

Green waste means leaves, grass clippings, brush and branches generated from landscapes or gardens, separated from other solid waste.

Hazardous waste means any waste materials or mixture of wastes defined as "hazardous substances" or "hazardous wastes" pursuant to the Resource Conservation and Recovery Act ("RCRA"), 41 U.S.C. §§ 6901 et seq., the Comprehensive Environmental Response, Compensation and Liability Act ("CERCLA"), 42 U.S.C. §§ 9601 et seq., and all future amendments to either of them, or as defined by the California Department of Toxic Substances Control (DTSC), or the California Integrated Waste Management Board (CIWMB), or other regulatory agency. Hazardous waste shall also mean any waste or combination of wastes which, because of its quantity, concentration, or physical, chemical, or infectious characteristics, may cause or significantly contribute to an increase in mortality or an increase in serious or irreversible illness or incapacity, or any substance which poses a substantial hazardous threat to human health or the environment, Where there is a conflict in the definitions employed by two or more agencies having jurisdiction over hazardous or solid waste, the term "hazardous waste" shall be construed to have the broader, more encompassing definition.

Intermodal facility means a facility designed to maximize the efficiency of the transport of waste to distant landfills, by transferring rail-ready shipping containers containing solid waste from trucks to trains.

Load checking program means the procedures the operator employs to screen incoming loads to prevent the acceptance of non-acceptable materials.

Local enforcement agency means the local agency designated pursuant to Section 43200 et. seq. of the Public Resources Code, which is responsible for monitoring and enforcing regulations related to solid waste handling and disposal. As of the execution date of this agreement, the local enforcement agency is expected to be the Los Angeles County Department of Health Services.

Log of special occurrences means the daily record of special occurrences encountered during operations. Special occurrences include but are not limited to: fires, injury and property damage, accidents, explosions, receipt or rejection of prohibited wastes, lack of sufficient number of personnel, flooding, earthquake damage and other unusual occurrences. Special occurrences also include visits by regulatory agencies.

Materials recovery facility or MRF means a processing facility designed to remove recyclables and other valuable materials from the waste stream. After the materials have been separated, (e. g., cardboard, glass, or plastic separated from the waste stream), they are transported to market.

Operator shall mean any person conducting a business covered by this division.

Person means an individual, firm, limited liability company, association, joint venture, partnership, political subdivision, government agency, municipality, industry, public or private corporation, or any other legal entity.

Recyclable materials means materials separated or kept separate from the solid waste stream for the purpose of additional sorting or processing in order to return them to the economic mainstream in the form of raw material for new, reused, or reconstituted products.

Recycle 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 does not include transformation as defined in Public Resources Code § 40201.

State Law reference— Similar provisions, Public Resources Code § 40180.

Self-haul means the collection, transportation and disposal of residential solid waste generated by a customer's own residential establishment by such customer who is not engaged in the business of residential, commercial, industrial, or institutional solid waste collection services.

Solid waste means all putrescible and non-putrescible solid, semisolid, and liquid wastes, including garbage, trash, refuse, paper, rubbish, ashes, industrial wastes, demolition and construction wastes, abandoned vehicles and parts thereof, discarded home and industrial appliances, dewatered, treated, or chemically fixed sewage sludge which is not hazardous waste, vegetable solid and semisolid wastes, and other discarded solid and semisolid wastes. "Solid waste" does not include any of the following wastes:

(a) Hazardous waste.

(b) Radioactive waste regulated pursuant to the Radiation Control Law (Chapter 8 (commencing with Section 114960) of Part 9 of Division 104 of the Health and Safety Code).

(c) Medical waste regulated pursuant to the Medical Waste Management Act (Part 14 (commencing with Section 117600) of Division 104 of the Health and Safety Code). Medical waste that has been autoclaved shall be considered solid waste.

Solid waste facility permit means the permit issued to the operator by the local enforcement agency in concurrence with the CIWMB and pursuant to Section 44001 et. seq. of the Public Resources Code.

Solid waste handling means the collection, transportation, storage, transfer, or processing of solid wastes.

Special waste means any item or element of solid waste identified in 22 CCR § 66740 or any other waste which has been classified as special waste by resolution of the city council.

State minimum standards means CIWMB's minimum operating and design requirements for solid waste transfer and processing facilities as set forth in Title 14, Division 7, Article 3.2, Section 17405.0 of the California Code of Regulations, as amended from time to time.

Stormwater pollution prevention plan means the planning document prepared by operator pursuant to the Clean Water Act and the National Pollutant Discharge Elimination System, and approved by the Regional Water Quality Control Board.

Transfer means to transport material received at the facility to another location, or to allow material received at the facility to be picked up by third parties for transportation to other destination facilities.

Transfer station means a facility that receives solid waste for the purpose of handling, and/or consolidating that waste prior to transferring the material to a disposal site or other destination facility. Such transfer station shall not engage in recycling activities to such a degree and scale to be considered a materials recovery facility. Any redirection of recyclable materials from the solid waste stream received by a processing or transfer station shall be incidental to the operation of the facility.

Transfer station activity report means the monthly report of the daily amount and type of all materials received at the facility.

Vehicle means any truck, trailer, or other conveyance or equipment used to collect, haul or transport solid waste, hazardous waste, recyclable material, or recyclable solid waste.

Waste stream means any solid waste or other material which has been entered into a process whereby its ultimate disposition results in depositing it into a certified landfill or other lawfully permitted facility.

(Ord. No. 4108, § 3, 9-22-2008)

(a) The following materials may be accepted at the facility: Solid waste, recyclable materials, green waste, construction and demolition debris, and any other material specifically deemed acceptable by city.

(b) The following materials shall not be accepted at the facility: Hazardous waste, hazardous substances, radioactive waste, untreated medical waste, asbestos, bio-solids, manure, and any other material not specifically deemed acceptable by city.

(c) Operator shall use reasonable and good faith efforts to ensure that all solid waste is removed from the premises of the facility at the end of each business day, such business day is set by the franchise. No material received at the facility may be stored at the facility for longer than 48 hours after it has entered the facility. A negligible amount of trash and debris may remain after cleanup in the ordinary course of business which shall not constitute a violation of this section. Solid waste stored in containers or transportation vehicles may remain on the premises at the close of business but in no circumstance shall be allowed to remain beyond the end of the next business day, unless such containers are on rail cars which shall be taken from the facility by the end of the second business day thereafter.

(d) Operator may accept material generated in the city, or material generated in other jurisdictions, and from commercial waste collectors, from self-haulers, or from other persons.

(Ord. No. 4108, § 3, 9-22-2008)

The operator shall cause residual solid waste to be transferred only to a lawfully permitted disposal site, transformation facility, or conversion facility. Operator shall transfer green waste only to a lawfully permitted composting facility, conversion facility, or other such facility lawfully permitted to accept such material. Operator may transfer recyclable materials to any vendor(s).

(Ord. No. 4108, § 3, 9-22-2008)

The right to possession or ownership of any material received at the facility shall not be construed to belong to city. Operator, and not city, shall arrange to receive, store, process, and transfer the material received at the facility. If operator gains the right of possession or ownership of any material received from customers, it is by operation of law and agreement with its customers, and is not the result of the franchise. Any right to possession or ownership of any material received at the facility by operator which otherwise might belong to city in the absence of this agreement is hereby transferred to operator.

(Ord. No. 4108, § 3, 9-22-2008)

City shall limit the daily maximum tonnage of any combination of materials and/or vehicle loads per day.

(Ord. No. 4108, § 3, 9-22-2008)

City shall impose a distance within which operator shall be responsible for the maintenance and rehabilitation of the driveways, sidewalks, and surface streets from each entrance to and exit from the facility.

(Ord. No. 4108, § 3, 9-22-2008)

Operator shall take reasonable measures to discourage illegal dumping in areas near the facility (e.g., posting signs, installing surveillance cameras, noting license numbers of vehicles declined access to the facility, etc.). Operator shall be responsible for keeping any public right of way or any vacant land within (site specific dimensions) the facility free from any illegally dumped material. Operator shall be responsible for cleaning up any such illegally dumped material within four hours of being advised to do so by city.

(Ord. No. 4108, § 3, 9-22-2008)

Operator shall have the right to set tipping fees at its sole discretion, or otherwise arrange for compensation from its customers. Operator shall not itemize any amount to represent host fee per ton in its signage or on its invoices to customers. Operator shall have the right to any and all revenues from the sale of recyclable materials.

(Ord. No. 4108, § 3, 9-22-2008)

Operator shall provide a meaningful economic incentive to its customers to cover their loads to minimize the amount of material that is spilled or blown out of vehicles on their way to the facility. Such economic incentive shall be approved by the city. By way of example, operator shall charge an additional fee to vehicles that arrive at the facility with uncovered loads.

(Ord. No. 4108, § 3, 9-22-2008)

As set by the city council at time of award of the franchise, the facility shall have minimum operating days and hours for the public and for the transfer of material. At time of award of the franchise, the city council shall set days which the facility shall be closed and no operations shall take place, including but not limited to the following holidays: New Years Day, Memorial Day, 4th of July, Labor Day, Thanksgiving Day, and Christmas.

(Ord. No. 4108, § 3, 9-22-2008)

(a) Operator shall operate the facility in a safe, clean, and environmentally sound manner.

(b) Operator shall comply with all federal and state laws and regulations legally binding on operator and in effect during the term of this agreement, specifically including, but not limited to, the Comprehensive Environmental Response, Compensation and Liability Act ("CERCLA"), 42 U.S.C. 9601 et seq., the Resource Conservation and Recovery Act ("RCRA"), 42 U.S.C. 6901, et seq., the California Integrated Waste Management Act of 1989 ("AB 939"), State Minimum Standards, and all other applicable laws.

(c) Operator shall comply with all regional and local laws and regulations, including regulations promulgated or enforced by the County of Los Angeles, the Southern California Air Quality Management District (SCAQMD), and the Regional Water Quality Control Board (RWQCB). Operator shall comply with all applicable provisions of the Pomona City Code.

(d) Operator's compliance with all federal, state and local laws and regulations shall include, but not be limited to, compliance with the requirements of the following plans, permits, and documents prepared specifically for the facility:

(1) Environmental impact report.

(2) Transfer processing report.

(3) Solid waste facility permit.

(4) Conditional use permit.

(5) Storm water pollution prevention plan.

(e) Any differences among the requirements of these laws and regulations, or differences between these laws and regulations, and the requirements of this Code, then the more stringent requirement(s) with regard to the protection of public health and the environment shall prevail and govern the operator's obligation to perform.

(Ord. No. 4108, § 3, 9-22-2008)

The city council shall have the authority to set conditions of operation within the franchise agreement, conditional use permits, or other approvals, permits, or agreements to mitigate conditions caused by operations, including but not limited to, control of air quality, dust, litter, noise, vibration, odor, traffic, aesthetics, stormwater runoff, vector control, and such other issues related to such site.

(Ord. No. 4108, § 3, 9-22-2008)

The city council shall set a host fee by resolution and may consider setting other fees to offset specific impacts of the facility. Such fees shall be based on a computation method as determined by the city council. The city council may establish an annual adjustment procedure for such fees. The city council shall establish the payment time and payment manner for such fees. The city may establish a level of tonnage from its municipal operations which a franchised facility shall accept without imposition of any gate fee or other charge against the city. The city council may establish in the franchise penalties for non-payment/delayed payment of host fees and non-compliance with the franchise agreement, including penalty amount, method, and type, including imposition of monetary penalties, and suspension and/or termination of the franchise.

(Ord. No. 4108, § 3, 9-22-2008)

Operator shall maintain in its office complete and accurate records about the operations covered by the franchise agreement. The records to be kept shall be established in the franchise agreement as approved by the city council.

(Ord. No. 4108, § 3, 9-22-2008)

Operator shall inquire of the driver of each vehicle entering the facility as to the jurisdiction of origin of the material delivered to the facility, or shall make alternative arrangements for collection of such data from commercial waste collectors as approved by the city council in the franchise agreement or other such agreement authorizing operation of a facility within the city. Such information shall also be recorded for self-haul customers claiming to deliver solid waste generated in the City of Pomona by confirming the address from which the material originated by requiring a valid driver's license, recent utility bill, or some other form of evidence acceptable to the city. Operator shall allow commercial waste collectors to claim solid waste as originating in the city, only if they are franchised haulers that are lawfully providing waste collection service in the city.

(Ord. No. 4108, § 3, 9-22-2008)

City and its authorized officers, employees, agents or contractors, shall at any reasonable time, and upon providing reasonable notice, have the right to review, inspect, and audit operator's records and enter operator's premises for the purposes of such review, inspection or audit. City shall be entitled to reimbursement for costs and expenses incurred related to an annual review, inspection or audit of host fees or any such other amount established by the city council through the franchise agreement.

(Ord. No. 4108, § 3, 9-22-2008)

(a) City shall set the time, frequency, manner, specific report type and such other requirements for submittal by operator, including by way of example only, reports on transfer station activity, log of special occurrences, results of the load checking program, and complaint log. Operator shall furnish city with any additional reports as may reasonably be required that set forth all information required by city including but not limited to any activities related to the Facility approved under the division. These reports shall be prepared and submitted in the form specified by city. Operator shall bear the cost of such additional reporting.

(b) Operator shall submit to city, within five days of receipt, copies of all notices, warnings, correspondence, notices of violation, decisions, actions or judgments of any kind received from any federal, state or local court, regulatory agency or other government body which are adverse to the operator and relate to operator's operations conducted pursuant to this division.

(Ord. No. 4108, § 3, 9-22-2008)

Operator shall immediately contact city by phone in the event of any incident requiring such notification specified by the city, including but not limited to, the following:

(a) The discovery of any hazardous waste at the facility that may pose an immediate threat to public health and safety.

(b) Operator receives a complaint of excessive or obnoxious odor.

(c) Operator receives a complaint of excessive noise or vibration.

(d) Operator receives a complaint of excessive dust.

Any such notification shall not relieve operator from including such information in its log of special occurrences or complaint log.

(Ord. No. 4108, § 3, 9-22-2008)

(a) City shall specify the terms and conditions regarding operator's obligation to defend, indemnify and hold harmless city and related personnel for operator's operations under authority granted under this division. Such indemnity shall specifically require at a minimum indemnification for general operations and release of hazardous substances.

(b) Operator shall be required to show throughout the duration of any agreement authorizing operations through this division proof of worker's compensation, employer's liability, general liability insurance, automobile, and such other coverage required by the city. As required by applicable law, each franchisee shall secure payment of workers' compensation to its employees. Each franchisee shall supply to the city the certificate required by applicable law.

(c) City shall determine and shall set such scope, limits, amounts, deductibles, self-insured retention amounts, additional insured retention amounts, and other provisions as determined applicable within the franchise or agreement authorizing operations under this division.

(1) At a minimum or as such higher coverage requirements may otherwise be set by resolution of the city council, each franchisee shall procure and maintain public liability and property damage insurance with the following coverages and minimum coverage limits;

a. General aggregate, $5,000,000.00.

b. Products and completed operations aggregate, $5,000,000.00.

c. Per occurrence minimum limit, $1,000,000.00.

d. Personal injury and advertising injury, $1,000,000.00.

e. Fire damage, $50,000.00.

f. Medical expense for any one person, $5,000.00.

(2) At a minimum or as such higher coverage requirements may otherwise be set by resolution of the city council, each franchisee shall procure and maintain automobile liability in the amount of $1,000,000.00 combined single limit for bodily injury and property damage.

(d) Each franchisee shall require its insurance carrier to issue an additional insured endorsement which names, as additional insureds, the city and its elected and appointed officials, directors, officers, agents, employees, representatives, volunteers, and contractors.

(e) All such insurers providing coverage shall be approved by the city. Operator shall establish an insurance policy repository to maintain copies of insurance policies required pursuant to this division and the operations agreement for 50 years after the expiration of the term of this agreement. Operator shall include all subcontractors as insureds under its policies or shall furnish separate certificates and endorsements for each subcontractor. All insurance required under this division shall be in addition to, and not in lieu or limitation of, the indemnification provisions of this division or as otherwise required by law or other agreement. The city may require operator to provide a surety bond, insurance bond, or other bond in amount and form as determined at the sole and absolute discretion of the city at time of award of franchise or operation agreement.

(f) Each operator shall protect, defend, indemnify and hold harmless, under the provisions specified in this article, the city and its officers, agents, or employees against all fines or penalties imposed by the CIWMB if: (i) the diversion, source reduction and recycling goals of AB 939 or other applicable legislation are not met by the city with respect to the waste stream passing through the facility or (ii) the operator has delayed in providing information preventing the city from submitting reports required by AB 939 or other applicable legislation in a timely manner.

(Ord. No. 4108, § 3, 9-22-2008)

City shall have the right to terminate any agreement issued under the division if operator fails to cure any default after being provided notice to correct, extinguishing all appeals under the agreement or franchise. City may terminate the agreement without the need to provide Operator an opportunity to cure, in the event operator practices, or attempts to practice, any fraud or deceit upon city, or practiced any fraud or deceit or made any misrepresentations.

(Ord. No. 4108, § 3, 9-22-2008)

(a) If the city manager determines that operator is in default of the franchise, unless other provisions are specified, the city manager shall notify operator of such default ("notice of default"), specifying the default in reasonable detail. Delay in giving a notice of default shall not constitute a waiver of any default nor shall it change the time of default. The city manager, in any such notice, shall set a reasonable time within which operator is to cure the default and respond. Unless the circumstances require correction and response within a shorter period of time, operator shall correct the default to the satisfaction of the city manager, and respond to the city manager's notice within seven days from the date of the notice. Operator may request additional time to correct the default. The city manager may grant additional time at his or her sole discretion.

(Ord. No. 4108, § 3, 9-22-2008)

(a) The city manager shall review any corrective actions or written responses from operator and decide the matter, or refer the matter to the city council for consideration pursuant to this section. If the city manager's decision is adverse to operator (an "adverse decision"), the city manager may order further corrective actions to cure any default, or invoke any other remedy. If the city manager determines that there has been a material breach and that termination is the appropriate remedy, the city manager may terminate the franchise or agreement.

(b) The city manager shall notify operator of the city manager's decision taken pursuant to subsection (a) of this section. In the event of an adverse decision, the city manager shall inform operator, in writing, of the specific facts found and evidence relied on, and the legal basis in the requirements of the franchise or other laws for the city manager's adverse decision.

(c) An adverse decision by the city manager shall be final and binding on operator unless operator files a "notice of appeal" with the city clerk (with copies to the city manager and city attorney) within seven days of receipt of the notification of the adverse decision by the city manager. In any "notice of appeal" to the city council, operator shall state all of its factual and legal contentions, citing requirements of the agreement or other laws to support its contentions.

(d) Within 21 days of the filing date of the notice of appeal, operator shall deliver to the city clerk three copies of all relevant affidavits, documents, photographs and videotapes that operator may choose to submit for consideration at such hearing. After operator has delivered all such relevant documents, etc., no new legal issues may be raised, or new evidence submitted, by operator at this or at any further point in the proceedings.

(Ord. No. 4108, § 3, 9-22-2008)

If a default or termination matter is referred by the city manager to the city council, or an adverse decision of the city manager is appealed to the city council by operator, the city council shall set the matter for a hearing and act on the matter. The city clerk shall give operator not less than 14 days' written notice of the time and place of the hearing. At the hearing, the city council shall consider the administrative record, including the following:

(a) A staff report by the city manager, summarizing the proceedings to date and outlining the city council's options;

(b) The city manager's written notice of default;

(c) Operator's response to the notice of default;

(d) The city manager's written notification to operator of an adverse decision;

(e) Operator's notice of appeal to the city clerk.

At the hearing, operator's representatives and other interested persons shall be provided a reasonable opportunity to be heard. based on the above items, the city council shall determine by resolution whether the decision or order of the city manager should be upheld. A tie vote of the city council shall be regarded as upholding the decision of the city manager. If, based upon the administrative record, the city council determines that the performance of operator is in breach of any agreement term or any provision of any applicable law, the city council, in the exercise of its discretion, may order operator to take corrective actions to cure the breach or impose any other remedy including, but not limited to, termination of the agreement. Subject to judicial review, the resolution of the city council shall be final and binding.

(Ord. No. 4108, § 3, 9-22-2008)

Should a franchise or other agreement issued to a solid waste enterprise under this division be revoked, such operator shall not be issued a franchise to conduct such operations within the city until such time as the solid waste enterprise is able to demonstrate to the satisfaction of the city that the solid waste enterprise is able to fully comply with all of the sections of this article and the Public Resources Code.

(Ord. No. 4108, § 3, 9-22-2008)

Each operator exercising rights under this division, in addition to obtaining a franchise or other agreement from the city, shall possess a current city business license.

(Ord. No. 4108, § 3, 9-22-2008)