Part 2 Fees, Franchises, Permits and Licenses

The City Council may award one or more Franchises for collection of solid wastes from all or a portion of residential properties in the City. Any such Franchise shall be granted by the City Council by resolution upon a determination that the public health, safety and well-being would be served by the award of a Franchise. Any such Franchise granted by the City Council shall be for a maximum period of 10 years.

At a minimum, the Franchise shall provide as follows:

A Franchise Fee of not less than five percent of Gross Revenue;

The franchisee shall be required to cooperate with the City in solid waste generation studies and preparation of waste stream audits, and to implement measures to achieve the City's solid waste diversion goals mandated by the California Integrated Waste Management Act of 1989, and to protect, defend, indemnify and hold the City harmless if those goals are not met for the waste stream covered by the Franchise;

The Solid Waste Collector shall be required to protect, defend, indemnify and hold the City harmless from liability, including, specifically, liability under the Resource Conservation and Recovery Act of 1976 ("RCRA") (42 U.S.C., Sections 6901, et seq.), the Comprehensive Environmental Response, Compensation and Liability Act, 42 U.S.C. Sections 9601, et seq., and the California Health & Safety Code, as they may be amended from time to time and all regulations implementing these acts, and the common law;

The Solid Waste Collector(s) awarded a Franchise shall be required by the Council to reimburse the City for the expenses of awarding the Franchise; and

Such other provisions as the City Council may determine to be necessary or convenient for the protection of the interests of the residents and the City.

Each Franchise, contract, license or permit for the collection of residential solid wastes issued or awarded by the City shall be in writing, expressly adopted by the City Council, by resolution, as a Franchise, contract, license or permit with a solid waste enterprise named in that Franchise, contract, license or permit, and shall be signed by the Mayor, approved as to form by the City Attorney, and filed with the City Clerk. No solid waste enterprise or any other person or entity shall infer the existence of any other form of Franchise, contract, license or permit not meeting all the foregoing requirements.

§ 5220 COMMERCIAL REFUSE COLLECTION FRANCHISE.

Notwithstanding any other provision of this Code, no approval by the City Engineer, the City Engineer's designee or any other official of the City for the placement of Construction and Demolition Bins in the public right-of-way or any other place shall be construed as a grant of authority to provide solid waste handling services and does not constitute a "Franchise, contract, license or permit" to provide such services. No solid waste enterprise or any other person or entity shall draw any inference from any such approval that it constitutes any authority to provide solid waste handling services.

(Added by Ord. 1020, adopted 5-28-96)

The City Council may award one or more Franchises, agreements, permits or licenses for refuse collection, from commercial properties, which includes all properties other than Single-Family Dwellings, such as commercial, manufacturing, governmental, institutional, and multi-family residential properties. Such Franchises, agreements, permits or licenses (collectively "permits") shall be granted by the City Council by resolution, upon a determination that the public health, safety and well-being would be served by the award of the permit.

The permit shall be granted on such terms and conditions as the City Council shall establish in its sole discretion. Any such permit granted by the City Council shall be for a maximum period of ten years.

At a minimum, the permit shall provide as follows:

Commercial collection rates set according to different classes of commercial rates, based on volume, frequency of collection, and waste stream composition;

A Franchise Fee of not less than five percent of Gross Revenue;

Commercial Solid Waste Collectors shall be required to cooperate with the City in solid waste generation studies, waste stream audits, and implementing measures to achieve the City's source reduction, recycling, and waste stream diversion goals and to implement measures to achieve the City's solid waste diversion goals mandated by the California Integrated Waste Management Act of 1989 (Public Resources Code, Sections 40050 et seq.); and to protect, defend, indemnify and hold the City harmless if those goals are not met for the waste stream covered by the permit;

The Solid Waste Collector shall be required to comply with the provisions of this chapter;

The Solid Waste Collector shall be required to protect, defend, indemnify and hold the City harmless from liability, including, specifically, liability under the Resource Conservation and Recovery Act of 1976 ("RCRA") (42 U.S.C., Sections 6901, et seq.), the Comprehensive Environmental Response, Compensation and Liability Act, 42 U.S.C., Sections 9601, et seq., and the California Health & Safety Code, as they may be amended from time to time and all regulations implementing these acts, and the common law;

(6)

The Solid Waste Collector shall comply with the City's source reduction, recycling, and waste stream diversion goals;

(7)

A Solid Waste Collector(s) awarded a Franchise shall be required by the Council to reimburse the City for the expenses of awarding the Franchise; and

(8)

Such other provisions as the City Council may determine to be necessary or convenient for the protection of the interests of the residents.

Each Franchise, contract, license or permit for the collection of Commercial Solid Waste or Construction and Demolition Waste issued or awarded by the City shall be in writing, expressly adopted by the City Council, by resolution, as a Franchise, contract, license or permit with a solid waste enterprise named in that Franchise, contract, license or permit, shall be signed by the Mayor, approved as to form by the City Attorney and filed with the City Clerk. No solid waste enterprise or any other person or entity shall infer the existence of any Franchise, contract, license or permit not meeting all the foregoing requirements.

(Added by Ord. 1020, adopted 5-28-96)

§ 5222 LICENSING.

Each Solid Waste Collector, including each solid waste enterprise, which is an applicant for or holder of an encroachment permit issued by the City Engineer, and each solid waste enterprise asserting a right to collect solid waste pursuant to a "continuation" right based on Public Resources Code, Sections 49520, et seq., or the dormant Commerce Clause, but excepting each solid waste enterprise granted a written Franchise by the City in accordance with the procedural requirements of 5218 or 5220, shall apply for and possess a current City-issued annual Solid Waste Collector's permit or other form of City-issued solid waste collection authorization (collectively "Solid Waste Collector's Permit") for the collection of solid waste, not later than July 1^st, annually.

Each Solid Waste Collector shall comply with all requirements set forth in the Solid Waste Collector's Permit and this chapter. These requirements include, but are not limited to, submission of an application for a Solid Waste Collector's Permit, payment of an application fee, and, if a permit is granted, payment of a Permit Fee, adherence to a schedule of fees to be charged to service recipients for specific services (as may be adopted by the City Council) and to meet or exceed all standards required by the City for a Solid Waste Collector Franchised by the City, including indemnification, minimum levels of insurance, cash bonds, and any other requirements that the City Council may impose.

In the case of a solid waste enterprise which asserts that it has a right to collect solid waste pursuant to a "continuation" right based on Public Resources Code, Sections 49520, et seq., (a "Continuation/Claim Hauler") or a right under the Constitution or under Federal law (a "Commerce Clause Hauler"), or any other law, the City Council may approve the issuance of a temporary Solid Waste Collector's permit, which shall expire on December 31^st of the year of issuance, or the resolution of "continuation" rights or Commerce Clause rights, whichever occurs first.

§ 5224 REVOCATION AND SUSPENSION OF PERMITS – GROUNDS.

Any person or entity which engages in the collection of Commercial Solid Waste or Construction and Demolition Waste in the City or which places a Commercial Bin or Construction Bin for the accumulation of solid waste in the City, or permits a Commercial Bin or Construction Bin to remain in the City, without first having obtained a Franchise or permit issued by the City, shall be guilty of a misdemeanor punishable as provided generally for violations of the Downey Municipal Code. Each day in which a person or entity engages in the collection of Commercial Solid Waste or Construction and Demolition waste in the City or places a Commercial Bin or a Construction Bin for the accumulation of solid waste, including Construction and Demolition Waste, or permits a Commercial Bin or a Construction Bin to remain in the City without a Franchise, permit, license or other authorization granted by the City, shall be a separate offense.

(Added by Ord. 1020, adopted 5-28-96)

Any Franchise, permit, license, or other City-issued authorization (collectively referred to as "permit") issued under this chapter is subject to revocation or suspension for cause.

In addition to the grounds provided elsewhere in this chapter, the following shall constitute cause for the revocation or suspension of a Solid Waste Collector's permit;

When the continuance of the operations of the permittee under such permit shall be contrary to the public health, safety, well-being, peace, welfare or morals, or shall be found to constitute a public nuisance;

If the holder of the permit violates any Federal or state law, the regulations of the California Integrated Waste Management Board, a Local Enforcement Agency, this Code, or any condition of the permit;

If the holder of a permit practices, or attempts to practice, any fraud or deceit upon the City, or makes or uses any false, fictitious or fraudulent statements or representations, or practiced any fraud or deceit or made any false, fictitious or fraudulent statements or representations in connection with the issuance or renewal of the permit;

If the holder of the permit becomes insolvent, unable or unwilling to pay its debts, or a receiver or trustee is appointed to take over and conduct the business of the permittee whether in a receivership, reorganization or bankruptcy proceeding;

§ 5226 REVOCATION OF PERMITS – PROCEDURE FOR NOTIFICATION OF DEFICIENCIES AND SUSPENSION OR REVOCATION.

If the holder of the permit fails to provide or maintain in full force and effect the workers compensation, liability insurance and indemnification coverages and cash bond(s) required; or

(6)

If the holder of the permit violates any order or ruling of any regulatory body with respect to solid waste collected within the City of Downey, except that such order or ruling may be contested by appropriate proceedings conducted in good faith, in which case no violation shall be deemed to have occurred until a final decision adverse to the holder of the permit is entered.

(Added by Ord. 1020, adopted 5-28-96)

Notice; Response. If City's Director of Public Works (the "Director") determines that the performance of any entity holding a Franchise, permit, license or other form of City-issued authorization (collectively "permittee") may not be in conformity with reasonable industry standards which obtain in Southern California or the California Integrated Waste Management Act including, but not limited to, requirements for implementing diversion, source reduction and recycling, or any other applicable Federal, state or local law or regulation, including, but not limited to, the laws governing transfer, storage or disposal of solid and hazardous waste, or this chapter, the Director of Public Works shall advise the holder of the permit in writing of such suspected deficiencies. The Director of Public Works, in any written Notification of Deficiencies, shall set a reasonable time within which the permittee is to correct the deficiencies and respond. Unless otherwise specified, a reasonable time for response and correction of deficiencies shall be 30 days from the receipt of such written notice by the holder of the permit.

Decision; Appeal. At the expiration of the time set for response from the permittee, the City's Director of Public Works shall review the record, including any written response from the permittee to the Notice of Deficiencies and decide the matter. If the Director's decision is adverse to the permittee, the Director may order remedial actions to cure any deficiencies, assess any letter of credit on deposit with the City, or invoke any other remedy. In the event that the Director determines that there has been a material breach and that termination is the appropriate remedy, the Director may terminate the permit, and inform the permittee in writing, of the specific facts found and the evidence relied on, and the legal basis in the provisions of the permit or other laws for the Director's decision. An adverse decision by the City's Director of Public Works shall be final and binding unless the permittee files a "Notice of Appeal" with the City Clerk (with a copy to the City Manager and City Attorney) within 30 days of receipt of the decision or order of the City's Director. In any "Notice of Appeal" the permittee shall state the legal basis and all legal and factual contentions of the permittee and shall include all relevant evidence, including affidavits, documents, photographs and videotapes. A "Notice of Appeal" shall not be accepted by the Clerk for filing unless accompanied by a "Notice of Appeal Filing Fee" in an amount to be set by the City Council, by resolution.

City Manager's Decision; Appeal. Within 30 business days of receipt by the City Clerk of a Notice of Appeal, the City Manager shall decide the matter. If the City Manager's decision is adverse to the permittee, the City Manager may order remedial actions to cure any deficiencies, assess any letter of credit, or invoke any other remedy. In the event that the City Manager determines that there has been a material breach, and that termination is the appropriate remedy, the City Manager may terminate forthwith the permit. In addition, the City Manager may refer the matter to the City Council or refer the matter to a referee and inform the permittee, in writing, of the resolution and the basis for the resolution. The decision or order of the City Manager shall be final and binding unless the permittee files a "Notice of Appeal to the City Council" with the City Clerk (and serves a copy, by mail, on the City Manager and the City Attorney) within 10 days of receipt of the decision or order of the City Manager. A "Notice of Appeal to the City Council" shall state the legal basis and all factual and legal contentions of the appellant and shall include all evidence, including affidavits, documents, photographs and videotapes. A "Notice of Appeal to the City Council" shall not be accepted by the Clerk for filing unless accompanied by a "Notice of Appeal Filing Fee" in an amount to be set by the City Council, by resolution.

City Council Administrative Hearing; Appeal. If a matter is referred by the City Manager to the City Council, or a "Notice of Appeal to the City Council" is timely filed, the City Council may set the matter for an administrative hearing and act on the matter or refer the matter to a referee. If the City Council elects to hear the matter, the City Clerk shall give 14 days written notice of the time and place of the administrative hearing. At the hearing, the City Council shall consider the administrative record, consisting of the following:

A Staff Report by the City Manager, summarizing the proceedings to date and outlining the City Council's options;

The Director's written Notification of Deficiencies;

Permittee's response to the Notification of Deficiencies;

The Director's written notification to Permittee of adverse decision;

Permittee's Notice of Appeal to the City Manager;

(6)

The City Manager's written notification to Permittee of adverse decision; and

(7)

Permittee's Notice of Appeal to the City Council.

No new legal issues may be raised, or new evidence submitted by Permittee or City at this or at any further point in the proceedings, absent a showing of good cause. The Permittee's representatives and other interested persons shall have a reasonable opportunity to be heard. The proceedings before the Council shall be an informal administrative hearing and the rules of evidence, as generally applied in judicial proceedings, shall not be applicable.

(e)

City Council Determination. Based on the administrative record, the Council shall determine 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 the Permittee is in breach of any term of this Agreement or any provision of any applicable Federal, state or local statute or regulation, the City Council, in the exercise of its discretion, may order the Permittee to take remedial actions to cure the breach or impose any other remedy in accordance with this Agreement. The City Council may not terminate the Agreement unless it determines that the Permittee is in material breach of a material term of this Agreement or any material provision of any applicable Federal, state or local statute or regulation. The Permittee's performance under the Agreement is not excused during the period of time prior to a final determination as to whether or not the Permittee's performance is in material breach of this Agreement, or the time set by the City for the Permittee to discontinue a portion or all of its services pursuant to this Agreement. The decision or order of the City Council shall be final and conclusive unless the Permittee files a "Notice of Appeal to Referee" with the City Clerk (and serves copies, by mail, on the City Manager and the City Attorney) within 10 business days of receipt of the decision or order of the City Council. With the exception of draws on the Cash Bond, the execution of City's remedies shall be stayed until the Permittee has exhausted its appeals.

(f)

Termination shall become effective upon the date specified in the written notice to the holder of the Franchise, permit, or other authorization by the City. Such notice shall state the grounds for termination.

(Added by Ord. 1020, adopted 5-28-96)

§ 5228 TRANSFER RESTRICTED.

A Franchise, permit, license or other form of City-granted solid waste collection authorization shall not be transferable, except as follows:

A Franchise, permit, license or other form of City-granted solid waste collection authorization (collectively "permit") shall not be transferred, sold, hypothecated, sublet or assigned (collectively "transferred"), nor shall any of the rights or privileges therein be hypothecated, leased, assigned, sold or transferred, either in whole or in part, nor shall title, thereto either legal or equitable, or any right, interest or property therein, pass to or vest in any person, either by act of the holder of the permit nor by operation of law, without the prior written consent of the City expressed by resolution. Any attempt by the holder of the permit to assign the permit without the prior written consent of the City shall be void. For purposes of this chapter, any sale, dissolution, merger, consolidation, change in control or other reorganization of the holder of the permit or the sale or other transfer of an accumulative 50% or more of the voting stock of a corporate permittee by an person, or group of persons acting in concert, who already own less than 50% of the voting stock of the holder of the permit shall be deemed a change in control.

An application for a transfer of a permit shall be made in a manner prescribed by the City Manager. The application shall include a Permit Transfer Application Fee in an amount to be set by City resolution of the Council. The Permit Transfer Application Fee is intended to offset the City's anticipated cost of all reasonable and customary direct and indirect administrative expenses including consultants' and attorneys' fees, necessary to analyze the application, and to reimburse the City for all other direct and indirect expenses. In addition, the holder of the Franchise, permit, license or other authorization granted by the City shall reimburse the City for all other reasonable consultants', attorneys' and staff costs not covered by the Permit Transfer Application Fee, whether or not the City approves the application for transfer. The City's request for reimbursement shall be supported with evidence of the expenses and costs incurred. The holder of the permit and the applicant for transfer shall be jointly and severally liable for the payment for any reasonable consultants', attorneys' and staff costs not covered by the Permit Transfer Application Fee.

The applicant for a transfer of a permit shall have the burden of demonstrating that is has the operational and financial ability to meet all obligations of the Franchise, permit or other form of City authorization.

The City shall not unreasonably withhold its consent to a transfer of the permit. The City may impose reasonable conditions or approval of an application for a transfer.

(e)

Notwithstanding the above, the holder of a permit shall be entitled to pledge, encumber, or grant any security interest in the permit provided that the holder shall first notify and obtain City consent to such transaction, subject to the following conditions:

Any consent so granted shall not be deemed a consent to the exercise by such pledgee, encumbrancer, or secured party of any rights of the holder under the Franchise, permit or other authorization unless so noted by the City;

No consent granted shall be deemed a consent to any subsequent transfer. Any subsequent transfer shall be deemed an assignment of the Franchise, permit or other authorization within the meaning of this section and shall be void without the prior written consent of the City expressed by resolution; and

The pledgee, encumbrancer or secured party shall execute and deliver to the City a written instrument, in a form satisfactory to the City Attorney, expressing agreement to be bound by the provisions of the Franchise, permit, license or other authorization.

(Added by Ord. 1020, adopted 5-28-96)

§ 5230 LIABILITY FOR FEES.

Each person required by this chapter to arrange for solid waste collection shall be liable for the fees and charges for such collection.

To protect public health, safety and well-being and to control the spread of vectors, the owner, occupant, or other person responsible for day-to-day operation of every premises in the City shall make arrangements for collection, recycling and disposal of solid wastes generated or accumulated on those premises in accordance with the requirements of this chapter. The City may include the fees and charges (plus any interest or penalties) for solid waste and recycling on the water bill, the property tax roll for the premises, or by separate bill from the City or a solid waste collector. The fees and charges (plus any interest or penalties) on the water bill, the property tax roll for the premises, or separate bill shall be due and payable on the date stated on the water bill, the property tax roll for the premises, or separate bill. The owner and occupant of each premises in the City each shall be jointly and severally liable for the payment of the fees and charges (plus any interest or penalties) for solid waste service availability, solid waste collection and disposal and recycling.

If solid waste service fees and charges (and any applicable interest or penalties) are not paid within 90 days of the date payment was due, solid waste service may be discontinued. Liability for service access fees continues, whether or not collection services have been discontinued.

Upon written notice from the owner, occupant, or other person responsible for day-to-day operation of a premises in the City to discontinue solid waste collection services, the collection of fees shall be discontinued. However, solid waste collection services cannot be discontinued as long as said property is receiving water services from either the City of Downey Municipal Water Department or any other Water Agency, unless the Finance Director determines otherwise.

(e)

Delinquencies—Residential and Nonresidential Premises. Prior to June of each year, an account holder for a single-family or multifamily premises or any nonresidential premises who has not remitted required payment for solid waste collection, recycling and/or disposal service within 90 calendar days after the date of billing shall be notified by the City or the City's contractor servicing the premises on forms that contain a statement that the delinquent account balance may be subject to placement on the County property tax roll and other applicable penalties. If a contractor of the City is providing the statement, it shall inform the City of the delinquency in an annual report. The contractor shall deliver a report of all delinquencies not later than June of each year with a request that the City place the delinquencies on the property tax roll.

Pursuant to Sections 25831 and 38790.1 of the California Government Code, the City may collect delinquent fees or charges for solid waste collection, recycling and/or disposal services on the property tax roll for the premises. If the City decides to do so, it shall adhere to the following procedures:

The City shall fix a time, date, and place for a public hearing to consider the annual report of delinquencies. The City, or its contractor, shall mail notice of the hearing to the property owner of every premises listed on the annual report not less than 10 calendar days prior to the date of the public hearing. At the public hearing, the City Council shall hear any objections or protests of property owners liable to be assessed for delinquent fees or charges. The City Council may make revisions or corrections to the annual report as it deems just, after which, by Council resolution, the annual report may be confirmed.

The delinquent fees and charges set forth in the confirmed annual report shall constitute special assessments against the premises listed in the annual report and are a lien on the premises for the amount of the delinquent fees and charges. A certified copy of the confirmed annual report shall be filed with the Los Angeles County Auditor for the amounts of the respective assessments against the respective premises as they appear on the current assessment roll. The lien created attaches upon recordation of a certified copy of the resolution of confirmation in the office of the Los Angeles County Registrar-Recorder/County Clerk. The assessment may be collected at the same time and in the same manner as ordinary ad valorem property taxes are collected and shall be subject to the same penalties and the same procedure and sale in case of delinquency as provided for those taxes.