Poway Municipal Code Art. V Franchise Regulations

A. Except as specified herein, no person shall collect or transport solid waste, recyclables, yard waste or other compostables within the boundaries of the City unless such person has been granted a franchise therefor or a permit pursuant to PMC § 8.68.510, or the waste or material is excluded pursuant to PMC § 8.68.400, or an exemption has been granted pursuant to PMC § 8.68.030(B).

B. No person shall allow, permit or enter into any agreement to allow or permit another person to collect or transport solid waste, recyclables, yard waste or other compostables within the boundaries of the City unless the person collecting or transporting the waste or material has been granted a franchise therefor or a permit or pursuant to PMC § 8.68.510, or the waste or material is excluded pursuant to PMC § 8.68.400.

C. When there is in force a franchise granted by the City pursuant to this chapter, any container placed within the boundaries of the City in violation of this section shall be deemed a nuisance. The City Manager, or his or her designee, shall have the authority to cause the abatement thereof in accordance with the procedure prescribed in this section. When the City Council has granted a franchise pursuant to this chapter, such franchisee shall be the City Manager’s designee for purposes of causing the abatement of such nuisance and shall be authorized to enter upon private property or public property, in a manner consistent with the United States and California Constitutions, to cause the abatement of such nuisance. Upon notification to the City Manager of a violation of this section, franchisee may, at franchisee’s option, remove any container placed within the boundaries of the City in violation of this section, dispose of the contents thereof, and store the container at franchisee’s place of business. Franchisee shall promptly mail written notice of its actions to the owner of the container and advise how the owner may recover the container. Franchisee may bill the owner of the container for transportation and disposal costs, and daily impound fees, as prescribed in the rate schedule established from time to time by resolution of the City Council. All amounts due to the franchisee for transportation, disposal and storage must be paid in full before the owner may recover the container. If the owner does not recover the container within 60 days of the date of the notice of abatement, the container shall be determined to be abandoned, at which time it shall become the property of the franchisee. The action abating the nuisance may be appealed by the filing of a written notice of appeal in the office of the City Manager within 10 days of the date of written notice thereof. The City Manager shall set the time and place for the hearing of the appeal that shall be within twenty days of the notice of appeal. The decision of the City Manager shall be final. The indemnification of PMC § 8.68.600 shall extend to the abatement process.

(Ord. 496 § 2, 1998; Ord. 592 § 2, 2004; Ord. 659 § 21, 2007)

A. The terms and provisions of any franchise agreement for solid waste, recyclables, yard waste and other compostables collection services may contain those requirements, conditions, policies and procedures as may be mutually agreed upon by the parties to the franchise agreement and which will, in the judgment and discretion of the City Council, best serve the public interest and protect the public health, safety and welfare.

B. In the event of any conflict between the franchise provisions of a franchise agreement which is authorized and approved by the City Council and the provisions of this chapter, the provisions of the franchise agreement shall control.

(Ord. 448 § 2, 1995)

Franchisee shall pay a franchise fee in an amount determined by resolution of the City Council or established in the franchise agreement authorizing the collection of solid waste, recyclables, yard waste and other compostables.

(Ord. 448 § 2, 1995)

Except as provided in PMC § 8.68.030(B), franchisee shall not assign its rights nor delegate or otherwise transfer its obligations under the franchise agreement to any other person without the prior written consent of the City. Any such assignment without the consent of the City shall be void and the attempted assignment shall constitute a material breach of the franchise agreement. For purposes of this section, “assignment” shall include, but not be limited to (i) a sale, exchange or other transfer of substantially all of the franchisee’s assets dedicated to service under the franchise agreement to a third party; (ii) a sale, exchange or other transfer of 50 percent or more of the outstanding common stock of franchisee; unless the change results merely in one of several proof owners increasing his or her ownership; (iii) any reorganization, consolidation, merger recapitalization, stock issuance or reissuance, voting trust, pooling agreement, escrow arrangement, liquidation or other transaction to which franchisee or any of its shareholders is a party which results in a change of ownership or control of 50 percent or more of the value or voting rights in the stock of franchisee unless the change results merely in one of several prior owners increasing his or her ownership; and (iv) any combination of the foregoing (whether or not in related or contemporaneous transactions) which has the effect of any such transfer or change of ownership. For purposes of this section, the term “proposed assignee” shall refer to the proposed transferee(s) or other successor(s) in interest pursuant to the assignment.

If franchisee requests City’s consideration of and consent to an assignment, the City Council may deny or approve such request in its complete discretion. No request by franchisee for consent to an assignment need be considered by City Council unless and until franchisee has met the following requirements:

A. Franchisee shall undertake to pay City the amount, as determined by the Director of Public Works, of its reasonable direct and indirect administrative expenses, including but not limited to consultant costs and attorney’s fees, investigation costs necessary to investigate the suitability of any proposed assignee, and to review and finalize any documentation required as a condition for approving any such assignment;

B. Franchisee shall furnish Director of Public Works with audited financial statements of the proposed assignee’s operations for the immediately preceding three operating years;

C. Franchisee shall furnish Director of Public Works with satisfactory proof:

1. That the proposed assignee has at least five years of solid waste management experience of a scale equal to or exceeding the scale of operations conducted by franchisee under the franchise agreement;

2. That in the last five years, the proposed assignee has not suffered any citations or other censure from any Federal, State or local agency having jurisdiction over its waste management operations due to any significant failure to comply with State, Federal or local waste management laws and that the assignee has provided the Director of Public Works with a complete list of such citations and censures;

3. That the proposed assignee has at all times conducted its operations in an environmentally safe and conscientious fashion;

4. That the proposed assignee conducts its solid waste management practices in accordance with sound waste management practices in full compliance with all Federal, State and local laws regulating the collection and disposal of waste, including hazardous waste as identified in Title 22 of the California Code of Regulations; and

5. Of any other information required by the Director of Public Works to ensure the proposed assignee can fulfill the terms of the franchise agreement in a timely, safe and effective manner.

Any application for a franchise transfer shall be governed by the following conditions:

Any application for a franchise transfer shall be made in a manner prescribed by the Director of Public Works. The application shall include a deposit in an amount determined by the Director of Public Works sufficient to meet the costs identified above. Additional bills in excess of the amount deposited shall be supported with evidence of the expense or cost incurred. The applicant shall pay such bills within 30 days of receipt. Any such amounts are over and above any franchise fee specified in the franchise agreement.

(Ord. 448 § 2, 1995; Ord. 659 §§ 22, 23, 24, 2007)

Franchisee shall not engage any subcontractors for collection of solid waste, recyclables, yard waste, or other compostables without the prior written consent of the Director of Public Works. Subcontracted collections shall require complete documentation of services provided including materials collected and disposal site, and shall specify that the City of Poway shall suffer no liabilities for said collections and disposals. Said liabilities shall be fully the responsibility of the generator (customer of industrial or commercial firm) and the licensed collector/disposer of the materials. All of the requirements of PMC §§ 8.68.600 and 8.68.620 shall apply to subcontractors.

(Ord. 448 § 2, 1995; Ord. 659 § 25, 2007)

A. City May Terminate. A franchise may be terminated at the option of the City Council in the event there is a change of ownership of any kind or nature of the operating company, unless approval therefor has been obtained in writing from the City. If it is determined by the City Manager following an inspection of the franchisee’s place of business, after reasonable notice to the franchisee that the operator or manager has not complied with the provisions of this chapter and all other applicable statutes, ordinances, rules and regulations of the State and City, the City Manager shall notify the franchisee in writing of noncompliance and shall order compliance within 30 days. If noncompliance is not corrected, the City Council, after a hearing, shall be empowered to revoke or suspend the franchise, or take other action as the Council shall determine.

B. Notice of Hearing – Revocation. The City Manager shall mail notice of a hearing to revoke a franchise to the collector not less than 15 days prior to such hearing. In the event of the revocation of a franchise, the City Manager shall notify the franchisee in writing of the reasons for the revocation. Such notification may be made in person or by mail.

C. Appeals. Within 15 calendar days after notice by the City Manager of revocation of a solid waste franchise has been sent to the franchisee, the franchisee may file with the City Clerk an appeal of such decision to the City Council.

D. Council Action. The City Council may either affirm the action of the City Manager, send the matter back to the City Manager for further consideration, or set the matter for hearing by the City Council. If the City Council sets the matter for hearing, it shall base its action upon the standards delineated in subsection A of this section. Notice of such hearing shall be sent to the franchisee not less than 15 days prior to the hearing.

E. Interim Suspension. The City Manager, without a hearing, may suspend a franchise for not more than 60 days, if the City Manager finds that continued operation by the franchisee will constitute a threat to the public health, safety, or general welfare.

(Ord. 448 § 2, 1995)

The City Council may, by resolution, establish rates, including AB 939 fees, to be charged to residential occupants and to commercial occupants for the collection of solid waste, recyclables, yard waste, other compostables and State-mandated AB 939 solid waste diversion requirements. The City Council may also include under the rates and charged recovered by the franchisee those costs incurred by the City for the removal of solid waste and pollutants from stormwater and other water runoff to prevent the further pollution of the waters of the State. Every commercial occupant and residential occupant shall pay the rates established from time to time by the City Council for collection services rendered pursuant to this chapter and in the manner set forth in PMC § 8.68.375. Following City Council approval of a rate adjustment, the franchisee shall provide immediate written notice to customers of rate changes, which notice may be provided with, or as part of, regular billing.

(Ord. 496 § 2, 1998; Ord. 659 § 26, 2007)

A. The billing and collection of the rates, fees and charges authorized by the City Council for residential and commercial solid waste, recyclables, yard waste and other compostables collection services, and costs incurred by the City for the removal of solid waste from stormwater, shall be the responsibility of the franchisee. The franchisee shall neither charge nor collect any sum or sums in excess of, or in addition to, the amounts specified by resolution or in the franchise agreement for any solid waste, recyclables, yard waste and other compostables collection services. The City shall be under no obligation to collect or enforce collection of any sums due to the franchisee for services rendered under the franchise agreement except as may be specifically provided in the franchise agreement or in this chapter, and franchisee shall release the City from any and all liability for the payment of any sum or sums which may become due to the franchisee for the collection or removal of solid waste, recyclables, yard waste, or other compostables under the terms of the franchise agreement.

B. The franchisee shall bill residents no less frequently than on a quarterly basis. The franchisee shall have the right to bill and collect for its services in advance of the rendering of services, but shall refund any unused portion equal to one month or more of the amount collected in the event of disruption, revision, or termination of the services or when residential premises are vacant for at least a one-month period and prior notice of such vacancy has been given to the franchisee. Termination of services as referred to in this subsection shall refer to customer-requested termination of service pursuant to relocations, extended absences, etc.

(Ord. 448 § 2, 1995; Ord. 659 § 27, 2007)

Should a residential customer or commercial customer fail or refuse to pay the rates, fees and charges established in accordance with the provisions of the franchise agreement and this chapter, then the franchisee shall, after 45 days’ delinquency, notify the customer of its intent to terminate service for reason of nonpayment. A copy of the notification shall be provided to the Director of Public Works. Should payment remain delinquent after 60 days, a second notification, with copy to the Director of Public Works, shall be issued to the customer specifying the exact date that service will be discontinued. Services terminated due to nonpayment of collection fees may be reinstated with the payment of the delinquent amount(s) plus a reinstatement charge as specified in the franchise agreement. Customers may, on an individual basis, request annual or monthly payment schedules, and the franchisee shall work in good faith with individual customers to reasonably satisfy such requests.

If the City Council determines and declares that the noncollection of solid waste, recyclables, yard waste and other compostables from a residential premises or a commercial premises may be a threat to the public health, safety and welfare, and which condition is declared to be, if permitted to exist, a public nuisance, the City Manager shall direct the franchisee to make collection, and the City shall utilize remedies available to obtain compliance and recover the expenses and charges of collection, including penalties. The franchisee shall continue to collect solid waste, recyclables, yard waste and other compostables when directed to do so by the City Manager even though there be nonpayment.

(Ord. 448 § 2, 1995; Ord. 659 § 28, 2007)

All costs incurred by the City arising from nonperformance of any of the requirements of this chapter by an owner or occupant or property and paid by the City to the franchisee shall be recoverable by the City and charged against the property from which the solid waste, recyclables, yard waste and other compostables were collected. The City Manager shall notify all parties concerned of the costs of any such collection by directing a letter to the occupant at the address shown on the latest tax roll. Any such notice shall be given at least 10 days prior to a public hearing. The City Council shall conduct the public hearing, determine if a nuisance exists, and review and approve an assessment against the property for the costs incurred in abating the public nuisance. If the total assessment determined and confirmed by the City Council is not paid within 10 days after the determination by the City Council, then there shall be recorded in the Office of the County Recorder a statement of the total balance due together with the legal description of the property affected. From and after the date of such recording, the balance due shall be a special assessment against the parcel plus a City administrative fee that shall be set by the City Council from time to time. The assessment shall be collected at the same time and in the same manner as County taxes are collected, and shall be subject to the same penalties and to the same procedure and sale in case of delinquency as provided for in ordinary County taxes. All laws applicable to the levy, collection, and enforcement of County taxes shall be applicable to such special assessment.

(Ord. 448 § 2, 1995)

Any residential occupant or commercial occupant who has been billed for service and desires to contest the extent or degree or reasonableness of the charge billed, shall make payment of such charges under protest and, at the same time, file a written statement of such protest with the City Manager. Within 30 days after date of filing, the City Manager shall notify the protesting occupant of the findings and adjudication and adjustment in the matter. The decision of the City Manager may be appealed by any person upon submittal of an appeal fee that shall be set by the City Council from time to time. Such appeal shall be directed to the City Council whose determination, in regular meeting, shall be final. The appeal fee shall be refunded to the protesting occupant in those cases where the City Council finds in favor of the protest. Nothing provided herein shall authorize the City Council to set rates charged by the franchisee.

(Ord. 448 § 2, 1995)