Part 11 — COMMERCIAL SOLID WASTE, ORGANIC MATERIALS, AND RECYCLABLES COLLECTION

FRANCHISES[4]

Editor's note— Ord. 30684, § 72, adopted Nov. 16, 2021, changed the title of Part 11 from "Commercial Solid Waste And Recyclables Collection Franchises" to "Commercial Solid Waste, Organic Materials, And Recyclables Collection Franchises," as set out herein.

A.

It is hereby declared and determined that the business of collecting and transporting of Commercial Solid Waste, Organic Materials, and Recyclable Materials generated, kept or accumulated in the City, or of disposing of such Commercial Solid Waste, Organic Materials, and Recyclable Materials, is in the nature of a public service and should be regulated by the City. The use of any public street or public property in connection with such business is of great concern to the City and should be regulated by the City. Therefore, it is the purpose of this Part to provide such regulation.

B.

Pursuant to the provisions of Article XIII of the City Charter, the City hereby elects to have the grant of franchises governed by this Part, and any ordinances amendatory thereof, together with the applicable provisions of the City Charter, and these provisions shall constitute the exclusive procedure applicable to the granting of franchises for the conduct of the business of collecting, transporting or disposing of Commercial Solid Waste, Organic Materials, or Recyclable Material.

(Ords. 24315, 24718, 25835, 29070, 30684.)

No person shall engage in the business of collecting, transporting or disposing of Commercial Solid Waste, Organic Materials, or Recyclable Material kept, accumulated or generated in the City unless:

A.

A franchise therefore has first been granted pursuant to the provisions of this Part and such franchise is in full force and effect; and

B.

A written franchise agreement therefore has been executed between such person and the City and such agreement is in full force and effect.

(Ords. 24315, 24718, 25835, 29070, 29561, 30684.)

The Council may and is hereby empowered to grant by ordinance to any person, whether operating under an existing franchise or not, a franchise to engage in the business of collecting, transporting, or disposing of Commercial Solid Waste, Organic Materials, or Recyclable Material kept, accumulated or generated in the City.

(Ords. 24315, 24718, 25835, 29070, 30684.)

A.

No provision of this part shall be deemed to require the city council to grant any franchise or franchises if the council finds or determines that the grant of any such franchise or franchises is not for the public good.

B.

All franchises shall be subject to the terms and conditions specified in the Charter of the City of San José, to the terms and conditions specified in this part, and to the terms and conditions specified in the franchise agreement.

C.

In granting any franchise, the city council may prescribe such other additional terms and conditions, not in conflict with the City Charter or this part, as in the judgment of the city council are in the public interest.

(Ords. 24315, 24718, 29070.)

A.

Any contract between a grantee and any generator/customer for commercial solid waste collection services provided pursuant to a franchise granted under this part shall meet the following requirements:

Contracts entered into prior to July 1, 1999, shall provide for cancellation of the contract by the generator/customer upon not less than thirty days notice in any case where:

a.

The cancellation occurs not less than six months after the initial date of the contract; and

b.

The generator/customer is not in arrears with respect to collection service charges due to the grantee through the date of the notice of cancellation.

Nothing herein shall prohibit the grantee from permitting cancellation of the contract by the generator/customer earlier than six months after the initial date of the contract, nor prohibit the grantee from permitting cancellation of the contract even though the generator/customer is in arrears with respect to service charges.

Contracts entered into on or after July 1, 1999, but prior to July 2, 2004, shall provide for cancellation of the contract by the generator/customer upon not less than thirty days notice in any case where:

a.

The cancellation occurs not less than twelve months after the initial date of the contract; and

b.

The generator/customer is not in arrears with respect to collection service charges due to the grantee through the date of the notice of cancellation.

Nothing herein shall prohibit the grantee from permitting cancellation of the contract by the generator/customer earlier than twelve months after the initial date of the contract, nor prohibit the grantee

from permitting cancellation of the contract even though the generator/customer is in arrears with respect to service charges.

Contracts entered into on or after July 2, 2004, shall provide for cancellation of the contract by the generator/customer upon not less than thirty days notice in any case where the cancellation occurs not less than twelve months after the initial date of the contract. Nothing herein shall prohibit the grantee from permitting cancellation of the contract by the generator/customer earlier than twelve months after the initial date of the contract.

Contracts entered into on or after July 1, 2006, shall provide for cancellation of the contract by the generator/customer (a) upon not less than thirty days notice in any case where the cancellation occurs not less than twelve months after the initial date of the contract, or (b) without further notice in any case where the customer has provided the grantee a written request that the grantee provide solid waste collection services using a wheeled garbage disposal cart described in Section 9.10.1390 or a wheeled recyclables cart and the grantee has failed to provide such service within thirty days of the date of the request. Nothing herein shall prohibit the grantee from permitting cancellation of the contract by the generator/customer earlier than twelve months after the initial date of the contract.

The contract shall require that the grantee provide not less than sixty days notice to the generator/customer before any automatic renewal of the contract may occur. The grantee shall provide such notice by personal service, with proof of service, or by United States mail, return receipt requested, to the person who signed the contract on behalf of the generator/customer or to that person's successor.

The contract shall provide that its continuation is dependent upon the grantee having a valid solid waste and recyclable material collection franchise granted by the city.

B.

For the purposes of Subsection A., "initial date of the contract" means the effective date of the contract whereby the grantee first agrees to provide collection services to the generator/customer. No amendment, extension, automatic renewal, change in service level, or other modification of the contract nor any new contract shall begin a new six-month or twelve-month, as applicable, period for cancellation by the generator/customer unless the grantee has not provided collection services to the generator/customer for a period of at least sixty consecutive days.

C.

The grantee may comply with the requirements of this section by entering into an amendment or addendum to a standard service contract where the amendment or addendum is in a form approved by the director.

D.

The requirements of this section do not apply to contracts for temporary debris box collection services that are not provided to the generator/customer on a regular basis.

(Ords. 24718, 25091, 25835, 27148, 27725, 29070.)

The City Council may, in its sole discretion, grant a Commercial Solid Waste and Recyclable Material collection franchise which is limited to the collection of Solid Wastes, Organic Materials, or Recyclable Material in categories determined by the City Council and described in the ordinance granting the franchise or in the franchise agreement.

(Ords. 24718, 25835, 29070, 30684.)

A.

All applications for franchises pursuant to this Part shall be in writing and shall be filed with the Director.

B.

Each application for a franchise shall be on a form provided by the Director, shall include all attachments required by the Director, and shall contain the following information:

The name and address of the applicant. If the applicant is a partnership, the name and address of each partner shall be set forth in the application. If the applicant is a corporation, the application shall state the names and addresses of the corporation's directors, main offices, major stockholders and associates, and the names and addresses of the parent and subsidiary companies.

The names of the executive, operational and financial managers to be used in connection with the Solid Waste and recyclables collection services, together with documentation that such persons and the applicant have sufficient experience in Solid Waste Handling to perform Solid Waste, Organic Materials, and recyclables collection services in the City.

A list of all vehicles, including license plate numbers and vehicle identification numbers, to be used in connection with the franchise for which the application is filed.

Proof satisfactory to the Director that the applicant has adequate financial resources to conduct the Commercial Solid Waste collection services.

Such additional information as may be reasonably requested by the Director.

C.

The application shall be signed by the person applying for the Solid Waste, Organic Materials, and recyclables collection franchise or by a person authorized to bind the applicant.

(Ords. 24315, 24718, 25091, 25835, 30684.)

A.

Upon receiving an application for a franchise under the provisions of this part, the director shall forward a copy to the city clerk.

B.

Upon receipt of the copy of the application, the city clerk, subject to the rules of the city council as to the hour and place of public hearings which shall be conducted by it, shall set a date for a public hearing by the city council on the application for a rubbish collection franchise.

C.

The city clerk shall cause notice of the application and of the time and place of hearing on the application to be published at least once in a newspaper of general circulation in the city at least five days prior to the date set for the hearing.

D.

At the hearing on an application for a franchise, the city council shall give all persons desiring to be heard a reasonable opportunity to present evidence or otherwise be heard in favor of or in opposition to the granting of a franchise to the applicant. At such hearing, the council may demand from the applicant such additional information as the council may deem relevant and necessary. The hearing may be continued or adjourned to a stated time and place without the giving of further notice.

(Ords. 24315, 24718.)

A.

Upon conclusion of the hearing on the application for a franchise, or within a reasonable time thereafter, the council shall render its decision on the application. If it deems the action to be for the public good, the council may refuse to grant the requested franchise or the council may, by ordinance, grant a franchise to the applicant. Any grant of a franchise by the council may be subject to such terms, conditions, rules, regulations, restrictions and limitations as the council deems advisable to protect the citizens, to preserve the rights and interests of the city in its streets and public places, or to protect the interests of the city and its people.

B.

In making its decision, the council may consider whether the applicant is qualified to perform commercial solid waste collection, transportation or disposal; the applicant's compliance with solid waste handling laws and regulations; income to the city; experience and financial responsibility of the applicant; and any other consideration that will safeguard the interests of the city and its people.

C.

The franchise granted to an applicant need not be identical to franchises granted to other applicants and need not contain the same terms and conditions, rights or privileges as the franchise requested by the applicant.

D.

No franchise shall be granted except by ordinance and no franchise shall become effective unless and until the requirements set forth in Section 9.10.1670 have been satisfied.

(Ords. 24315, 24718.)

No franchise granted pursuant to this part shall become effective unless and until all of the following requirements have been satisfied:

A.

The ordinance granting the franchise is effective.

B.

The applicant and the city have executed a franchise agreement.

C.

The applicant has paid the solid waste collection franchise application fee as set forth in the schedule of fees established by resolution of the city council.

D.

Within twenty days from the date of adoption of the ordinance granting the franchise, or within such extended period of time as the city council in its discretion may authorize, the applicant to whom a franchise has been granted has filed with the city clerk the following documents:

A faithful performance bond, if such is required by the franchise agreement;

Evidence of compliance with the insurance requirements specified in the franchise agreement.

(Ords. 24315, 24718, 25091.)

Subject to the provisions of Section 9.10.1690, the term of any franchise granted under the provisions of this part shall be for such term as specified by the city council in its discretion and set forth in the franchise agreement.

(Ords. 24315, 24718.)

A.

Franchise grantees providing Recyclable Materials, Organic Materials, or Solid Waste collection services to Generators within the City's boundaries shall meet the following requirements and standards with the City to collect Recyclable Materials, Organic Materials, or Solid Waste:

Through written notice to the Director annually, identify the facilities to which they will transport discarded materials, including facilities for Source Separated Recyclable Materials, Source Separated Organic Materials, Garbage, and other Solid Waste unless otherwise stated in the franchise agreement or other authorization with the City.

Transport Source Separated Recyclable Materials to a facility that recovers those materials; transport Source Separated Organic Materials to a facility, operation, activity, or property that recovers Organic Material as defined in 14 CCR, Division 7, Chapter 12, Article 2; transport Mixed Waste, if applicable, to a facility that qualifies as a High Diversion Organic Waste Processing Facility; transport Solid Waste to a disposal facility or transfer facility or operation that processes or disposes of Solid Waste; and, transport manure, if applicable, to a facility that manages manure in conformance with 14 CCR Article 12 and such that the manure is not landfilled, used as alternative daily cover, or used as alternative intermediate cover.

Obtain approval from the City to haul Organic Material, unless it is transporting Source Separated Organic Material to a Community Composting site or lawfully transporting Construction and Demolition Debris in a manner that complies with 14 CCR Section 18989.1 and the City's municipal code.

B.

Collectors authorized to collect Recyclable Materials, Organic Materials, or Solid Waste shall comply with the education, equipment, signage, container labeling, container color, contamination monitoring, reporting, and other requirements set forth in this Chapter, its franchise agreement with the City, and applicable law.

(Ord. 30684.)

A.

The City Council shall have the right to terminate any franchise granted pursuant to this Part if the council finds, after a public hearing following not less than fourteen (14) days written notice to the franchise grantee, that:

The grantee has failed to comply with, or to do anything required of the grantee by, applicable provisions of the City Charter, provisions of this Chapter 9.10, provisions of the ordinance granting the franchise, or provisions of the franchise agreement; or

Any provision of this Part becomes or is declared to be invalid and the Council expressly finds that such provision constitutes a material consideration to the grant or continuation of such franchise.

B.

Any franchise granted pursuant to this Part shall automatically be suspended whenever the grantee:

Fails to keep in full force and effect the bonds and insurance required by the franchise agreement; or

Fails to keep in full force and effect any applicable licenses or permits required by federal, state or local law.

The suspension of the franchise pursuant to this subsection B. shall remain in effect until the grantee provides documentation satisfactory to the Director, demonstrating that the reason for the suspension specified above no longer exists.

C.

The Director may suspend any franchise granted under this Part if the grantee:

Fails to submit timely reports as described in Section 9.10.1720 within fifteen (15) days after written notice from the Director that a report is delinquent; or

Fails to comply with the reporting requirements of subsection A. of Section 9.10.1720 and fails to correct the deficiencies in the report within fifteen (15) days after written notice from the Director of the deficiencies.

The suspension of the franchise pursuant to this subsection C. shall remain in effect for the period specified in the Director's notice unless the suspension is reversed or modified by the Director or, upon appeal by the

grantee, by the City Council.

D.

In the event the franchise granted pursuant to this Part is terminated, the grantee shall have no right or authority to engage in Commercial Solid Waste or Recyclable Material collection, transportation or disposal operations in the City unless and until a subsequent Commercial Solid Waste and Recyclable Material collection franchise is granted to the grantee. Nothing herein shall require the City to grant any subsequent franchise to the grantee.

E.

In the event the franchise granted pursuant to this Part is suspended, the grantee shall have no right or authority to engage in Commercial Solid Waste or Recyclable Material collection, transportation or disposal operations in the City during the period of suspension.

F.

In the event any franchise granted pursuant to this Part is terminated under subsection A. above, then within the time period specified by the City Council, the grantee shall:

Remove all of the grantee's, and any subcontractor's, Solid Waste containers, Organic Materials containers, and Recyclable Material containers from all service locations where services have been provided pursuant to such franchise; and

Properly collect, transport, and process or dispose of any and all Solid Wastes, Organic Materials, and recyclables in the containers at the time of removal, in accordance with this Chapter.

G.

If the grantee fails to remove any Solid Waste, Organic Materials, and Recyclable Material container or to properly dispose of any Solid Waste, Organic Materials, or Recyclable Material in any container within the time specified by the City Council pursuant to subsection A. above, the City may remove the container and/or dispose of the Solid Waste, Organic Materials, or Recyclable Material therein and may charge the grantee for the City's costs. The grantee shall pay to the City all of the costs incurred by the City in such removal and/or disposal within ten (10) days of the date of the City's invoice for such costs.

(Ords. 24315, 24718, 25835, 29070, 30684.)

rate.

A.

The Commercial Solid Waste, Organic Materials, and Recyclable Material franchisee with a franchise based on geographic service district may apply for an adjustment to the maximum Commercial Solid Waste,

Organic Materials, and Recyclable Material collection service rate. Any request to adjust the existing maximum service rate shall be in accordance with the application process, methodology, and other factors specified in the franchise agreement.

B.

The City Council may conduct a public hearing to confirm that the proposed maximum Commercial Solid Waste, Organic Materials, and Recyclable Material collection service rates are consistent with the terms of the franchise agreement.

C.

Franchisee shall provide all customers with advance written notice of changes to the maximum Commercial Solid Waste, Organic Materials, and Recyclable Material collection service rates at least thirty (30) calendar days prior to the effective date of the change.

(Ords. 29070, 30684.)

Any franchise granted pursuant to this part is a privilege to be held in trust by the original grantee. No such franchise shall be sold, leased, transferred, assigned or otherwise disposed of, either in whole or in part, whether by forced sale, merger, consolidation, bankruptcy, reorganization under bankruptcy laws or otherwise, without the prior consent of the city council expressed by ordinance. Any such consent of the city council shall be subject to such terms and conditions as may be prescribed by the council.

(Ords. 24315, 24718.)

A.

Each person engaging in the business of collecting, transporting or disposing of Commercial Solid Waste, Organic Materials, or Recyclable Material kept, accumulated or generated in the City shall pay a franchise fee to the City. The franchise fee shall be in an amount as set forth in a resolution adopted by the City Council.

B.

Franchise fees shall be payable on a monthly basis, and shall be due and payable on the last day of the month immediately following the month in which collection services were provided. Each payment shall be calculated in accordance with the provisions of the resolution adopted by the City Council pursuant to subsection A. above.

C.

The required franchise fee shall be paid to the City's Director of Finance. Each payment shall be accompanied by a written statement, verified by the person making the payment, or a duly authorized representative of the person, showing the calculation of the franchise fee payable in such form and detail

as the Director of Finance may require and such other information as the Director of Finance may determine is material to a determination of the amount due.

D.

No statement filed under this Section shall be conclusive as to the matters set forth in such statement, nor shall the filing of such statement preclude the City from collecting by appropriate action the sum that is actually due and payable.

E.

The payment of franchise fees to the City pursuant to this Part shall be in addition to any license fee or business tax prescribed by the City for the same period.

F.

If franchise fees are not paid by the grantee at the times required by this Section 9.10.1710, then in addition to the franchise fees, the grantee shall pay a late payment charge in an amount equal to ten percent (10%) of the franchise fee that was not timely paid. If the grantee fails to pay delinquent franchise fees within thirty (30) days of the date required by this Section 9.10.1710, the grantee shall pay a second late payment charge in an amount equal to ten percent (10%) of the franchise fee outstanding after such thirty (30)-day period. Such second late payment charge shall be in addition to the first late payment charge. In addition, the grantee shall pay interest on all unpaid franchise fees at the rate of ten percent (10%) per annum or the legal rate allowed, whichever is less, from the date said franchise fees were due and payable to the date actually paid.

(Ords. 24315, 24684, 24718, 25835, 27725, 29070, 30684.)

A.

The grantee shall report to the Director the following information:

The grantee shall file with the Director a monthly report of the quantities of Commercial Solid Waste, Commingled Recyclables and Source Separated recyclables collected, transported and/or disposed of during the month, the number of San José customers served by the grantee during the month, and the container size(s) and frequency of collection performed for each customer, and the grantee's gross receipts for collection services provided in San José during the month. Such report shall be in such form and detail as required by the Director and, if required by the Director, shall include a report of the quantities of Commercial Solid Waste recycled and the quantities disposed of at disposal facilities.

Through written notice to the City annually, the grantee shall identify the facilities to which it will transport materials, including facilities for Recyclable Materials, Organic Materials, Mixed Waste, or other Solid Waste

as applicable to the grantee's services, unless otherwise stated in the franchise agreement or other authorization with the City.

B.

If any of the reports required under subsection A. are not filed by the due date specified in the franchise agreement, the report shall be deemed delinquent.

C.

If the report is delinquent, the grantee shall pay to the City a delinquent report charge in the amount of three hundred dollars ($300.00). If the report remains delinquent for more than fifteen (15) days, the grantee shall pay to the City an additional delinquent report charge in the amount of three hundred dollars ($300.00). If the report remains delinquent for more than thirty (30) days, the grantee shall pay to the City a third delinquent report charge in the amount of three hundred dollars ($300.00). If the report remains delinquent for more than forty-five (45) days, the grantee shall pay to the City a fourth delinquent report charge in the amount of three hundred dollars ($300.00). Such delinquent report charges shall be in addition to any franchise fees or other charges payable by the grantee for the same period of time.

(Ords. 24315, 24718, 25091, 25835, 27725, 28543, 30684.)

A.

The grantee shall at all times maintain all vehicles used in connection with the franchise granted pursuant to this part in such condition that the vehicle does not exceed a noise level, during stationary compaction, of seventy-five decibels measured at a distance of twenty-five feet from the vehicle and at an elevation of five feet from the horizontal base plane of the vehicle.

B.

No grantee shall use any vehicle in connection with the franchise granted pursuant to this part if the vehicle exceeds the noise level described in subsection A. above.

C.

Notwithstanding subsections A. and B. of this section, the city council may in its discretion provide for other or different noise level limitations in the franchise agreement required under this part.

(Ords. 24315, 24718.)

The grantee shall at all times maintain accurate and complete accounts of all revenues and income arising out of its operations under the franchise granted pursuant to this Part; all Solid Waste collected, transported and/or disposed of; the source of such Solid Waste; and the final destination of such Solid Waste. Grantee's books, accounts and records shall at all times be open to inspection, examination and

audit by authorized officers, employees and agents of the City. Grantee shall comply with the recordkeeping and inspection requirements of Section 9.10.590.

(Ords. 24315, 24718, 30684.)

In addition to all other rights reserved to the city under this part, the following shall apply:

A.

There is hereby reserved to the city every right and power, and the exercise thereof, which is reserved or authorized by any provision of any lawful ordinance or resolution of the city, whether enacted before or after the effective date of this part.

B.

Neither the granting of any franchise nor any provision of any franchise shall constitute a waiver of or a bar to the exercise of any governmental right or power of the city.

C.

The grantee shall have no recourse whatsoever against the city, its officers, employees or agents for any loss, cost, expense or damage arising out of any provision or requirement of this part or of any franchise issued under this part or because of the enforcement of this part.

D.

There is hereby expressly reserved to the city the power and authority to amend any section of this part so as to require additional or greater standards on the part of the grantee and the power and authority to increase the franchise fees to be paid by the grantee pursuant to Section 9.10.1710.

(Ords. 24315, 24718.)