Chapter 8.68
SOLID WASTE MANAGEMENT Amended Ord. 844

Sections:

Article I. General Provisions

8.68.010    Findings and intent.

8.68.020    Definitions.

8.68.030    Mandatory separation of recyclables, collection and disposal of solid waste and recyclables.

8.68.040    Accumulation of materials constituting a hazard prohibited.

8.68.050    Solid waste – Disposal in public places prohibited.

8.68.060    Solid waste generated off site – Placement in City waste containers prohibited.

8.68.070    Solid waste – Disposal on private property prohibited – Exception.

8.68.080    Solid waste – Interference with collection and scavenging prohibited.

8.68.090    Solid waste – Burying and burning prohibited.

Article II. Collection, Storage, Processing, Disposal

8.68.100    Residential solid waste collection services – Frequency.

8.68.105    Multifamily central collection services – Frequency.

8.68.110    Residential collection – Special services – Additional services to be provided.

8.68.120    Residential collection – Hours of collection.

8.68.130    Residential collection – Containers. Amended Ord. 844

8.68.145    Residential collection – Placement of containers for collection. Amended Ord. 844

8.68.150    Commercial collection.

8.68.155    Commercial collection services – Frequency. Amended Ord. 844

8.68.160    Commercial collection – Additional services to be provided.

8.68.165    Commercial collection – Hours of collection.

8.68.170    Commercial collection – Solid waste containers. Amended Ord. 844

8.68.175    Commercial collection – Placement of containers for collection.

8.68.180    City facilities collection services – Frequency.

8.68.185    Collection, transportation and disposal of solid waste.

8.68.190    Collection, transportation and disposal – Litter abatement.

8.68.195    Processing of solid waste.

Article III. California Integrated Waste Management Act of 1989 (AB 939): Operational and Reporting Requirements

8.68.200    Recycling programs.

8.68.210    Solid waste diversion.

8.68.220    AB 939 reporting requirements.

Article IV. Operating Standards

8.68.300    Vehicle and equipment standards.

8.68.305    Performance standards.

8.68.310    Collection standards.

8.68.315    Customer service standards.

8.68.320    Service complaints.

8.68.325    Review of performance and quality of service and industry changes.

Article V. Franchise Regulations

8.68.330    Prohibited collection and transportation.

8.68.335    Contents of franchise agreement – Resolution of conflicts.

8.68.340    Franchisee franchise fee.

8.68.345    Assignment.

8.68.350    Subcontracting.

8.68.360    Revocation or suspension of franchise.

8.68.370    Rates.

8.68.375    Billing and collection of rates, fees and charges.

8.68.380    Failure or refusal to pay.

8.68.385    Collection of charges.

8.68.390    Payment under protest.

Article VI. Exclusions

8.68.400    Scope of franchise – Exclusions.

8.68.410    Exclusions for recyclables.

8.68.420    Franchisee’s inability to provide service.

8.68.430    Commercial collection – Franchisee’s inability to provide specialized service.

8.68.440    Collection in emergencies.

Article VII. Special Permits

8.68.500    Prohibition.

8.68.510    Application.

8.68.530    Permit requirements.

8.68.540    Permit conditions.

Article VIII. Administrative Requirements

8.68.600    Indemnification of City.

8.68.610    Exclusion for other government agencies.

8.68.620    Insurance.

8.68.630    Faithful performance security.

8.68.640    Penalty.

8.68.650    Severability.

Article I. General Provisions

8.68.010 Findings and intent.

A. The City Council finds and determines as follows:

1. The City is responsible to protect its citizens against nuisances derived from solid waste by providing solid waste handling services including, but not limited to, source reduction, recycling, composting activities, and the collection, transfer and disposal of solid waste and litter.

2. In order to meet the requirements of the California Integrated Waste Management Act of 1989, including source reduction of the solid waste stream, diversion of solid waste from landfills, and conservation of natural resources, it is necessary to regulate the collection of solid waste from residential and commercial premises, and to require recycling of solid waste materials.

3. The mandates of the Environmental Protection Agency and other regulatory agencies, with respect to air pollution and traffic congestion management, require the regulation, and, where possible, reduction in the number of waste collection vehicles and vehicle trips which cause the discharge of air contaminants and create air pollution.

4. A reduction in the number of heavy waste collection vehicles using the City streets daily will reduce traffic hazards and congestion and promote safety.

5. The storage, accumulation, collection and disposal of solid waste, including, without limitation, garbage, trash, debris, litter, and other discarded materials is a matter of substantial public concern in that improper control of such matters may create a public nuisance, air pollution, fire hazard, rat and insect infestation, and other problems affecting the public health, safety and welfare.

6. Regulation of the collection of solid waste, recyclables, yard waste, and other compostables in the City will provide the most orderly and efficient solution to such problems and will promote the public health, safety and welfare.

7. The regulation of solid waste handling services in the City will also promote the public health, safety and welfare by requiring the use of newer and safer vehicles, the regular maintenance of such vehicles, and the reduction of spillage and litter in the public streets, by establishing accountability for the cleaning of solid waste bins and containers, and by providing for accountability to the public.

8. The public health, safety and welfare will best be served by providing for an exclusive franchise for residential and commercial solid waste and recyclable materials collection services.

B. This chapter is enacted by the City Council pursuant to the following statutory authorization and in order to accomplish the objectives set forth in this section:

1. Public Resources Code Section 40059 authorizes the City to determine (i) all aspects of solid waste handling which are of local concern, including, but not limited to, frequency of collection, means of collection and transportation, level of services, charges and fees, and nature, location and extent of providing solid waste handling services; and (ii) that the services are to be provided by means of an exclusive franchise. The City Council finds that the public health, safety and well-being require that the services be provided by exclusive franchise, with or without competitive bidding.

2. Public Resources Code Section 49300 provides that the City may, pursuant to such terms and conditions as may be prescribed by its legislative body, contract for the collection or disposal, or both, of garbage, waste, refuse, offal, trimmings, or other refuse matter.

3. It is the intent of this chapter to set forth terms and conditions pursuant to which authorization may be granted by the City Council to provide solid waste handling services, and to promote the public health, welfare and safety of the community by establishing reasonable regulations relating to the storage, accumulation, collection and disposal of solid waste, recyclables, yard waste and other compostables.

4. This chapter shall be construed in a manner consistent with all applicable Federal and State laws. If any Federal or State agency shall hereafter exercise any paramount jurisdiction over any specific provisions of this chapter, such paramount jurisdiction shall preempt only those provisions hereof necessary and indispensable to the exercise of such paramount jurisdiction; all other provisions hereof shall be severed from the provisions preempted and shall remain in full force and effect. Modification of a Federal or State law or regulation shall, to the extent applicable to the City, be deemed a part of this chapter as of the effective date of such modification. (Ord. 659 §§ 2, 3, 2007; Ord. 448 § 2, 1995)

8.68.020 Definitions.

For the purpose of this chapter, the following words and phrases shall be construed as hereafter defined, unless it is apparent from the context that a different meaning is intended by the legislative body.

“Bulky items” means stoves, refrigerators, water tanks, water heaters, washing machines, broken or discarded furniture, rubbish and debris from building construction, rocks, sod, earth and other bulky materials. Bulky items eligible for curbside pickup on normal collection days include items weighing no more than 50 pounds, no longer than four feet in length, and no greater than three feet in diameter. Larger items will be collected, but only “on call” and at an additional, published, one-time expense.

“City” means the City of Poway, a municipal corporation of the State of California.

“City Council” means the Mayor and City Council of the City of Poway.

“City Manager” means the City Manager of the City of Poway or City Manager’s designee.

“Collection” means the operation of gathering together within the City, and transporting by means of motor vehicle to the point of disposal or processing, any solid waste recyclables, yard waste, or other compostables.

“Commercial occupant” means every owner of, and every tenant or person who is in possession of or has the care and control of, a place of business.

“Commercial premises” means all occupied real property in the City, except property occupied by Federal, State or local governmental agencies which do not consent to their inclusion, and except residential premises as defined in this section, and shall include, without limitation, wholesale and retail establishments, restaurants and other food establishments, bars, stores, shops, offices, industrial establishments, manufacturing establishments, service stations, repair, research and development establishments, professional services, sports or recreational facilities, construction and demolition sites, and any other commercial or industrial business facilities, structures, sites, or establishments in the City.

“Compostables” means organic wastes that are source separated from the solid waste stream or which are separated at a centralized facility that can be biologically decomposed under controlled, aerobic or anaerobic conditions to produce a product that can be reused.

“Container” means any vessel, tank, receptacle, box or bin used or intended to be used in the storage or collection of recyclable materials or in the process of recycling, or for the purpose of holding solid waste for storage or collection.

“Contractor” means any person or business concern authorized by the City’s special permit or business license, separate from the exclusive franchise, to provide solid waste, recyclables, yard waste and other compostables collection and disposal services.

“Director of Public Works” means the Director of Public Works for the City of Poway or Director’s designee.

“Disposal” means the management of solid waste through landfill disposal or transformation at a permitted solid waste facility after the collection thereof.

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

“Franchisee” means any person or business concern who has been awarded an exclusive franchise by the City to provide residential and commercial/industrial solid waste, recyclables, yard waste and other compostables collection services.

“Garbage” includes, but is not restricted to, all animal and vegetable refuse from kitchens and household waste that shall have been prepared for, or intended to be used as, or shall have resulted from the preparation of food; all table refuse; every accumulation of animal and vegetable refuse that attends the preparation, consumption, decay, dealing in or storage of meats, fish, fruits or vegetables; and offal, animal excreta or the carcasses of animals, fish or fowl.

Hazardous Waste.

1. “Hazardous waste” means a waste, or combination of wastes as defined by Federal or State guidelines, which because of its quantity, concentration, or physical, chemical or infectious characteristics, may do each of the following: (i) cause, or significantly contribute to, an increase in mortality or an increase in serious irreversible, or incapacitating reversible, illness; (ii) pose a substantial present or potential hazard to human health or environment when improperly treated, stored, transported, or disposed of, or otherwise managed.

2. “Hazardous waste” includes extremely hazardous waste and acutely hazardous waste, and such other waste as may hereafter from time to time be designated as such by the Environmental Protection Agency (EPA) or other agency of the United States Government, or by the California Legislature or any agency of the State of California empowered by law to classify or designate waste as hazardous, extremely hazardous or acutely hazardous.

“Holiday” means the following holidays: New Year’s Day; Memorial Day; Independence Day; Labor Day; Thanksgiving Day; Christmas Day, and President’s Day. “Holiday” also means any other day designated as such in a contract between a contractor and the labor union serving as the exclusive representative of said contractor’s employees, provided such holiday is established or recognized by the City.

“Household hazardous waste” means those wastes resulting from products purchased by the general public for household use which, because of their quantity, concentration, or physical, chemical, or infectious characteristics, may pose a substantial known or potential hazard to human health or the environment when improperly treated, disposed, or otherwise managed.

“Local agency” means any county, city or district having the authority to provide solid waste handling services either by the agency itself or by authorizing or permitting other local agencies or solid waste enterprises to provide solid waste handling services.

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

“Pollutants” means and includes, but is not limited to, solid waste, sewage, garbage, medical waste, wrecked or discarded equipment, radioactive materials, dredged spoil, rock, sand, sediment, silt, industrial waste, and any organic or inorganic substance defined as a pollutant under 40 CFR 122.2 whose presence degrades the quality of the receiving waters in violation of basin plan and California ocean plan standards such as fecal coliform, fecal streptococcus, enterococcus, volatile organic carbon, surfactants, oil and grease, petroleum hydrocarbons, total organic carbon, lead, copper, chromium, cadmium, silver, nickel, zinc, cyanides, phenols, fertilizers, pesticides, herbicides and other biocides. A pollutant also includes any contaminant which degrades the quality of the receiving waters in violation of basin plan and California ocean plan standards by altering any of the following parameters: pH, total suspended and settleable solids, biochemical oxygen demand (BOD), chemical oxygen demand (COD), nutrients, temperature, and other narrative standards of the basin plan.

“Recyclable” means recyclable materials and refers to materials generated on or emanating from residential or commercial premises and no longer useful or wanted thereon that are separated from other types of solid waste, or collected separately from other types of solid waste and made available for reuse, or which may be used as raw material in the manufacture of new products. The following materials are currently recyclable: glass bottles and jars – any food or beverage container (excluding dishware, ceramics and chemical containers); aluminum cans, foil, pie tins and similar items; steel or bimetal cans not to exceed one gallon size; PET – plastic soda bottles or other bottles with the designated “PET” symbol; HDPE – plastic milk and water bottles with the designated “HDPE” symbol (excluding detergent or bleach bottles); newspaper; cardboard – separated and not having waxed surfaces; mixed paper including magazines, junk mail, catalogs, paper bags, and telephone books; computer printout (excluding carbon); and white ledger – white bond paper, office paper, white envelopes (excluding coated paper); and such additional materials as the City Manager may designate from time to time.

“Refuse” means garbage, commercial garbage and rubbish, excepting therefrom hazardous or bulky items.

“Residential occupant” means every owner of, and every tenant, or person who occupies or is in possession of or has the care and control of, residential premises.

“Residential premises” means each place used for residential purposes for a single family, including, without limitation, multiple-unit residential complexes, such as rental housing projects, condominiums, apartment houses, mixed condominiums and rental housing, and mobile home parks. No places used primarily for business purposes shall be considered as a residential unit.

“Rubbish” means combustible and noncombustible solid waste.

Solid Waste.

1. “Solid waste” means all putrescible and nonputrescible solid, semisolid and liquid wastes, including garbage, trash, refuse, paper, pollutants, rubbish, ashes, industrial wastes, demolition and construction wastes, discarded home and industrial appliances, dewatered, treated or chemically fixed sewage sludge, grit and screenings which are not hazardous, residue or nonprocessable waste from solid waste disposal facilities including material recovery, composting and transformation facilities, sod, concrete and similar materials.

2. “Solid waste” does not include hazardous waste or low-level radioactive waste regulated under Chapter 7.6 (commencing with Section 25800) of Division 20 of the Health and Safety Code.

Solid Waste Management Facility.

1. “Solid waste management facility” means the operations premises of a duly licensed solid waste handling operator who receives, stores, transfers, or otherwise processes wastes as an activity incidental to the conduct of a solid waste collection and disposal business in accordance with regulations adopted pursuant to Section 43309 of the California Public Resources Code.

2. “Solid waste management facility” includes a solid waste transfer or processing station, a composting facility, a transformation facility, and a disposal facility.

“Source separated” means the segregation, by the generator, of materials designated for separate collection for some form of materials recovery, recycling, or special handling.

“Stormwater” means surface runoff and drainage associated with storm events and snowmelt that flows across a surface to the stormwater conveyance system or receiving waters. For the purposes of this chapter, stormwater runoff and drainage from areas that are in a natural state, have not been significantly disturbed or altered, either directly or indirectly, as a result of human activity, and the character and type of pollutants naturally appearing in the runoff have not been significantly altered, either directly or indirectly, as a result of human activity, shall be considered “unpolluted” and shall satisfy the definition of “stormwater” in this chapter.

“Stormwater conveyance system” means private, natural and publicly owned facilities within the City of Poway by which stormwater may be conveyed to receiving waters of the United States, including any roads with drainage systems, streets, catch basins, curbs, gutters, ditches, pipes, natural and manmade channels or storm drains.

“Waste diversion” means to divert solid waste, in accordance with all applicable Federal, State and local requirements, from disposal at solid waste landfills or transformation facilities through source reduction, recycling or composting.

“Waste generator” means any person whose act or process produces solid waste, or whose act first causes solid waste to become subject to regulation.

“White goods” means kitchen or other large enameled appliances which includes, but is not limited to, refrigerators, washers, and dryers.

“Wood wastes” means solid waste consisting of wood pieces or particles which are generated from the manufacturing or production of wood products, harvesting, processing or storage of raw wood materials, or construction and demolition activities.

“Yard waste” means green waste or any wastes generated from the maintenance or alteration of public, commercial, or residential landscapes including, but not limited to, yard clippings, leaves, tree trimmings, prunings, brush and weeds. (Ord. 659 § 4, 2007; Ord. 496 § 2, 1998; Ord. 448 § 2, 1995)

8.68.030 Mandatory separation of recyclables, collection and disposal of solid waste and recyclables.

A. Mandatory Collection and Disposal of Solid Waste and Recyclable Materials. All solid waste created, produced or accumulated in or about residential premises or commercial premises in the City shall be mandatorily collected from the residential premises and commercial premises at least once per week. The San Diego County Health Department may require more frequent collections. Every residential occupant and commercial occupant shall use the services of the franchisee having the exclusive franchise for collecting solid waste, recyclables, yard waste and other compostables. The City Council may authorize the collection of solid waste to prevent its entry into the stormwater conveyance system and the waters of the State through contracts for services or through the use of City forces. No residential occupant or commercial occupant shall enter into an agreement for residential solid waste collection services or commercial solid waste collection services with a person other than the exclusive franchisee, except as specified otherwise in this chapter. It is declared to be unlawful for the occupant of any of the above-described premises to fail or neglect to provide for the removal of solid waste, or the reasonable separation of recyclables, yard waste and other compostables as required herein. Each day’s violation of this section shall be treated and considered as a separate and distinct offense.

B. Exemptions. An exemption to the mandatory collection requirement of this section shall be granted upon application by the residential occupant or commercial occupant with sufficient proof of use of a City-approved solid waste and recyclables collection alternative. Said exemption shall be obtained in accordance with the process established and implemented by the City. An exemption shall be granted only under specifically enumerated administrative circumstances. All exemptions shall be subject to renewal annually. Those who have been granted exemptions may, from time to time, be required to provide proof-positive of their using an acceptable alternative to the franchise. An individual property owner’s or tenant’s failure to provide sufficient proof of use of a City-approved solid waste and recyclable materials collection alternative shall be a violation of this section. An exemption is nontransferable to any new owner of any given residence or commercial/industrial establishment. (Ord. 659 § 5, 2007; Ord. 496 § 2, 1998; Ord. 448 § 2, 1995)

8.68.040 Accumulation of materials constituting a hazard prohibited.

It is unlawful for any person to create, or allow to be created or maintained upon any premises in the City, owned, occupied or managed by such person, any accumulation of materials that are dangerous as a fire menace or hazard to the public health, safety or welfare. (Ord. 448 § 2, 1995)

8.68.050 Solid waste – Disposal in public places prohibited.

It is unlawful for any person to place, dump, deposit or throw any solid waste, recyclables, yard waste, compostables, or other refuse or debris of any kind or character whatsoever upon or along the right-of-way of any public highway, street, lane, alley or upon any other public place within the City.

Dumping, depositing, or throwing any solid waste, recyclables, yard waste, compostables, or other refuse or debris of any kind or character whatsoever, outside the City and in an unauthorized manner may be subject to prosecution by that jurisdiction’s authority. (Ord. 448 § 2, 1995)

8.68.060 Solid waste generated off site – Placement in City waste containers prohibited.

City waste containers are placed in City parks and other public areas for the use of the public to control trash, litter and garbage which is generated at their respective location. Such waste containers are not to be used as disposal sites for trash or rubbish which is generated off site. It is unlawful for any person to place, dump, deposit or throw away solid waste, recyclables, yard waste, or other refuse or debris of any kind or character whatsoever in City waste containers if such was generated at a location other than where the waste container is located. (Ord. 448 § 2, 1995)

8.68.070 Solid waste – Disposal on private property prohibited – Exception.

It is unlawful for any person to place, dump, deposit or throw away any solid waste, recyclables, yard waste or other refuse or debris of any kind or character whatsoever, upon any private property adjacent to or abutting upon any public highway, or public place, or upon any private property whatsoever, within the City unless such person first obtains the permission of the owner of such property to do so. It is unlawful for such person to deposit or place such materials in any waste container owned or used by the owner of such property unless such person first obtains the permission of the owner to do so. It is further unlawful for such persons to commingle their solid waste materials with that of another thereby avoiding payment for solid waste and recycling services under the franchise. (Ord. 448 § 2, 1995)

8.68.080 Solid waste – Interference with collection and scavenging prohibited.

It is unlawful for any person other than the franchisee to interfere in any manner with any container or receptacle containing solid waste, recyclables, yard waste or other refuse or debris of any kind or character, or the contents thereof, or to remove any such container from the location where the same was placed by the owner thereof or the occupant of the property, or to remove the contents of any such container. (Ord. 448 § 2, 1995)

8.68.090 Solid waste – Burying and burning prohibited.

It is unlawful for any person to burn or bury any solid waste, recyclables, yard waste or other compostables as a means of disposing of said solid waste, recyclables, yard waste or other compostables. (Ord. 448 § 2, 1995)

Article II. Collection, Storage, Processing, Disposal

8.68.100 Residential solid waste collection services – Frequency.

A. Franchisee shall collect and deliver to the appropriate solid waste facility, not less frequently than once per week, all solid waste, recyclables, yard waste, and other compostables generated at single- and multi-unit residential premises within the City and placed for collection. Rates (fee) shall be established for weekly curbside collection of at least two variable sizes of solid waste carts for automated collection service. Customers shall place all solid waste within the franchisee-provided waste cart, which shall remain the property of the franchisee.

B. Service to residential customers shall also include an annual community clean-up event for nonhazardous bulky items. The date(s) for the community clean-up event shall be determined and announced by the City Council.

C. Recyclable materials shall be placed by residents in a separate collection cart(s) provided by the franchisee for automated collection service, which shall remain the property of the franchisee. The cart shall be placed at the curb, except as otherwise specified in the franchise agreement or this chapter. It is declared to be unlawful and a misdemeanor for the occupant to fail or neglect to reasonably and routinely separate recyclables as required herein. Occupants of residential premises shall be required to bundle and tie all wood waste in lengths not to exceed four feet with a diameter of three feet. Franchisee shall also include the collection and recycling, at no additional charge, of telephone books and Christmas trees. The City may, at its discretion, add other materials to be recycled at any time during the term of the franchise agreement. (Ord. 592 § 2, 2004; Ord. 496 § 2, 1998)

8.68.105 Multifamily central collection services – Frequency.

Franchisee shall provide weekly pickup of solid waste, recyclables, yard waste and other compostables at central locations on the complex premises from standard bins for multifamily residential premises where bills for service are sent to a complex owner, central manager, or association. Additional pickups (unscheduled) shall be made available as requested by the complex management. Multifamily residents shall be provided one container to place within their unit for commingled recyclables. Multifamily residents shall further sort recyclables into centrally located containers. The City may, at its discretion, add other materials to be recycled during the term of the franchise agreement.

Where multifamily, centrally billed customers find it convenient to their residents and acceptable to the franchisee, curbside collection of general refuse and recyclables can be provided similar to the service provided to single-family residential premises. Rates (fees) may be adjusted to accommodate the offset in administrative expense not borne by the franchisee under this centrally billed arrangement. (Ord. 448 § 2, 1995)

8.68.110 Residential collection – Special services – Additional services to be provided.

A. Franchisee shall provide special on-call collection and disposal service of bulky items, and special roll-out “scout” services for those residents requesting such services at such rates as may be established and approved in the franchise agreement.

B. Special bin service and special container service shall be made available to all customers on the same basis as that provided to commercial customers under PMC 8.68.160.

C. During the term of the franchise agreement, when such is declared by the City Council to be part of an annual clean-up campaign, the franchisee shall coordinate an annual clean-up event for the disposal of bulky items such as, but not limited to, the following: furniture – chairs, sofas, mattresses, rugs, etc.; appliances – washers, dryers, water heaters, plumbing fixtures, refrigerators, TV’s, small household appliances, etc.; residential wood waste – tree branches, scrap wood, etc.; and scrap metal. Franchisee’s obligations and the determination of materials to be collected or specifically excluded from collection shall be delineated in the franchise agreement. This annual clean-up event will be conducted at no cost to the customer (except that a surcharge may be applied to the disposal of refrigerators or other appliances containing freon or similar contaminants, or monitors containing lead or other contaminants requiring special handling). Those residents exempted from using the mandatory franchise service, as described in PMC 8.68.030(B), are not eligible to participate in the “free” clean-up event nor are residents from outside the City. (Ord. 592 § 2, 2004; Ord. 448 § 2, 1995)

8.68.120 Residential collection – Hours of collection.

Unless the City Council determines and directs otherwise, the franchisee shall not allow the collection of any solid waste, recyclables, yard waste or other compostables to be made except between the hours of 7:00 a.m. and 6:00 p.m. within or near residential areas, and only Monday through Friday. Collection may be made on Saturday if a holiday occurs within the preceding week or if inclement weather precludes collection on a weekday. There shall be no pickup on Sundays. (Ord. 448 § 2, 1995)

8.68.130 Residential collection – Containers. Amended Ord. 844

Franchisee shall provide residential customers appropriate containers for automated collection of solid waste and recyclables. Two variable container sizes shall be made available to residential customers for the storage and collection of solid waste.

Until implementation of any automated service program for the collection of yard waste or other compostables as may be later directed, the standard size container for residential yard waste collection services shall not exceed a standard 32-gallon container or 50 pounds, unless otherwise agreed to by the City Council. The combined weight of the container and contents shall not exceed 50 pounds unless the container is designed and franchisee equipped for mechanical lifting. Franchisee shall affix to every metal or plastic waste container which no longer holds yard waste or other compostables without spilling or leaking, a bilingual, Spanish/English red tag advising that such a container is unsuitable for presenting yard waste or other compostables for collection and the continued use of that container will result in its disposal. (Ord. 592 § 2, 2004; Ord. 496 § 2, 1998)

8.68.145 Residential collection – Placement of containers for collection. Amended Ord. 844

Occupants and owners of residential premises shall set out or place containers for the collection of solid waste, recyclables, yard waste or other compostables as follows:

A. Proper Placement of Containers. Any container or receptacle for the purpose of storage and removal of solid waste, recyclables, yard waste and other compostables shall be placed at the curb in front of the owned or occupied premises, there to be collected by the franchisee; provided, that the franchisee may designate some other location for the placement of containers and receptacles when such placement will expedite collection.

B. Improper Placement of Containers. No residential owner or occupant shall place, or permit to be placed, any solid waste, recyclables, yard waste, or other compostables containers in any public highway or in any place or in any manner other than provided in subsection A of this section. Any containers and materials not properly placed for collection shall be tagged by the franchisee with a Spanish/English red tag explaining the reason for noncollection.

C. Timing of Placement and Removal of Containers. Residential owners or occupants shall not place containers for solid waste, recyclables, yard waste or other compostables for collection at any time other than the days established by the franchisee, and then, no earlier than sunset of the day preceding the day designated for collection. All containers for solid waste, recyclables, yard waste and other compostables shall be removed from the place of collection prior to midnight of the day the containers have been emptied. Residents shall be mindful (and the franchisee shall make periodic announcements to confirm) that services are not provided on certain recognized holidays and that service normally scheduled for that holiday will be provided the following normal working day.

D. Repair and Replacement. Each owner or occupant of residential premises shall provide reasonable supervision over the containers for yard waste and other compostables on the premises and shall maintain the same in a sanitary condition. Franchisee shall repair or replace all customer-owned residential containers damaged by collection operations, normal wear and tear excluded. Franchisee shall retain ownership of automated containers provided to residents for the purpose of storing solid waste and recyclables. Franchisee shall replace and/or repair damaged automated containers during the term of the franchise agreement. If the containers or receptacles should not be emptied and the contents removed on the date and time scheduled by the franchisee, occupant shall immediately notify the franchisee and it shall be the duty of the franchisee to forthwith arrange for the collection and disposal of the solid waste, yard waste, and other compostables, and/or collection of recyclables. However, should the owner or occupant fail to place the materials at the designated location in time for regular collection, the franchisee is not obligated to make a special, separate collection for the convenience of the occupant and may require payment of an additional fee for such late collection. (Ord. 592 § 2, 2004; Ord. 448 § 2, 1995)

8.68.150 Commercial collection.

Franchisee shall collect and dispose of all solid waste, recyclables, yard waste and other compostables generated and presented for collection at each commercial premises in conformity with the provisions of this chapter, except as otherwise provided in this chapter. Any such collection and disposal shall be in accordance with all applicable Federal, State, and local laws and regulations and any controlling permit or franchise agreement between the franchisee and the City. (Ord. 448 § 2, 1995)

8.68.155 Commercial collection services – Frequency. Amended Ord. 844

Franchisee shall collect and deliver to the appropriate solid waste management facility all solid waste, recyclables, yard waste, and other compostables generated by customers at commercial premises within the City who have contracted for services and delivered their materials to a bin or otherwise properly placed for collection; service shall be provided not less than once per week.

Franchisee may subcontract with commercial firms (subcontractors) to collect and dispose of waste materials which franchisee is not licensed to remove and which present specialized problems. Such collections shall be performed with suitably licensed collection/disposal firms in accordance with PMC 8.68.350.

Service to commercial customers shall include providing suitable bins for the collection and disposal of general refuse according to a frequency as individually contracted by the customer. This service shall also include collection and recycling of green waste, aluminum, newspaper, glass, plastic, metal cans, cardboard, mixed paper, and office ledger paper. The City may, at its discretion, add other materials to be recycled during the term of the franchise agreement. The franchisee shall provide consultative services, at no additional charge, to commercial, industrial and multifamily (central collection bins) customers to assist in setting up effective recycling and waste minimization programs. (Ord. 448 § 2, 1995)

8.68.160 Commercial collection – Additional services to be provided.

A. Special Bin Service. Three cubic yard bins and roll-off containers shall be made available to customers on a rental basis for one-time, short-term requirements.

B. Special Container Service. Bins and containers shall be offered to customers on special or regular service with locking lid set-up. (Ord. 448 § 2, 1995)

8.68.165 Commercial collection – Hours of collection.

Collection at commercial premises shall be permitted beginning at 6:00 a.m. provided that there are no complaints from residents about the early morning noise disruption. Commercial collections may continue until 6:00 p.m. and shall be allowed Monday through Saturday. (Ord. 448 § 2, 1995)

8.68.170 Commercial collection – Solid waste containers. Amended Ord. 844

Franchisee shall provide bins and debris boxes for storage of solid waste which shall be designed and constructed to be watertight and prevent the leakage of liquids. All containers with a capacity of one cubic yard or more shall meet applicable Federal regulations on solid waste bin safety. All containers shall be painted the franchisee’s standard color and shall prominently display the name and telephone number of the franchisee in letters and numbers no less than two and one-half inches high. Similarly, the words “Serving the City of Poway” shall be displayed beneath the franchisee’s name. Franchisee shall not place the City’s logo on its containers. To attain certain economies, some customers may request specialized services such as compactors, roll-off, or custom-built containers, etc. The sale, lease, rental of such equipment, or their provision by the customer, may be negotiated by the latter and the franchisee. Information relating to any such agreements shall be forwarded to the Director of Public Works.

A. Cleaning, Painting, Maintenance. Once every 12 months franchisee shall replace, clean or repaint all commercial containers as needed so as to present a clean appearance. In addition, franchisee shall do the same upon 48 hours’ oral notice by the Director of Public Works. Franchisee shall maintain all containers in a functional condition and shall remove graffiti immediately.

B. Repair and Replacement. Franchisee shall repair or replace all customer-owned nonresidential containers damaged by collection operations, normal wear and tear excluded. (Ord. 659 §§ 6, 7, 2007; Ord. 448 § 2, 1995)

8.68.175 Commercial collection – Placement of containers for collection.

Every commercial occupant shall provide a solid waste container location on the commercial premises and shall keep said area in good repair, clean and free of refuse outside of the container. Container enclosures shall be provided when required by the City’s zoning ordinance and shall be of sufficient size to accommodate recycling as well as solid waste bins. Franchisee shall remove any solid waste or litter that is spilled or deposited on the ground as a result of the franchisee’s emptying of the container or other activities of the franchisee. Upon collection of solid waste by the franchisee, all containers shall be replaced, upright, where found, with the lids closed. Containers shall be properly returned to enclosures where applicable. No person shall in any manner, break, damage, roughly handle or destroy containers placed on the premises of a commercial occupant. (Ord. 448 § 2, 1995)

8.68.180 City facilities collection services – Frequency.

At no cost to the City, franchisee shall collect and dispose of all solid waste, recyclables, yard waste, and compostables generated at premises owned and/or operated by the City, including all City parks and bus stops, or as otherwise designated by the City. Franchisee shall make collections from cans Monday through Friday or on Saturdays following nonworking holidays at the frequency set out in the franchise agreement. The City may request bins, pickup and disposal or diversion for up to six community events per year sponsored at least in part by the City. In addition, franchisee shall pick up any bulky items discarded on or along City right-of-way, open space or other City property within 24 hours of oral request from the City requesting such service. The City will exhaust all other avenues so as to limit such requests, but estimates that such items amount to no more than 15 40-cubic-yard containers annually. (Ord. 448 § 2, 1995)

8.68.185 Collection, transportation and disposal of solid waste.

Franchisee shall be obligated to provide the lawful collection, transportation and disposal of solid waste from within the City to a permitted disposal site, consistent with the policies, goals, procedures and requirements of the Regional Solid Waste Authority JPA (the “Authority”), of which City is a member, and which controls the flow of all solid waste in the City. Solid waste collected to prevent its entry into the stormwater conveyance system shall be disposed of in a manner consistent with applicable laws, permits and regulations. However, City reserves the right, upon a determination that the public interest requires a collection, transportation or disposal program different from what franchisee has established, to direct franchisee to change its collection, transportation or disposal program, including but not limited to the location of the disposal site. City shall select the most cost-effective facility, including tipping fees, operating and hauling costs, consistent with fulfilling all of franchisee’s other obligations under the franchise agreement. (Ord. 659 § 8, 2007; Ord. 496 § 2, 1998)

8.68.190 Collection, transportation and disposal – Litter abatement.

A. Minimization of Spills. Franchisee shall use due care to prevent solid waste, recyclables, yard waste, and other compostables from being spilled or scattered during the collection or transportation process. If any solid waste, recyclables, yard waste, and other compostables are spilled during collection, the franchisee shall promptly clean up all spilled materials.

B. Clean-Up. During the collection transportation process, the franchisee shall clean up litter in the immediate vicinity of any solid waste, recyclables, yard waste, and other compostables storage area (including the areas where collection bins and debris boxes are delivered for collection) where the materials have been spilled or deposited on the ground as a result of the franchisee’s emptying of the container or other activities of the franchisee. The franchisee shall discuss instances of repeated spillage not caused by it directly with the customer responsible and will report such instances to the City. The City shall attempt to rectify such situations with the customer if franchisee has already attempted to do so without success.

C. Covering of Loads. Franchisee shall cover all open transportation equipment, including debris boxes and compactor openings, during transport from one collection region of the City to another (over major arterials), to the disposal site or any processing facility. No material shall be transported to the disposal site or any processing facility in vehicle hoppers. (Ord. 448 § 2, 1995)

8.68.195 Processing of solid waste.

Subject to the requirements of PMC 8.68.185, franchisee, prior to disposal, may direct any or all portions of the waste collected under the franchise agreement to a landfill, material recovery, composting, transformation or any other permitted solid waste processing facility, for processing of any materials contained therein. The City reserves the right to designate such a facility or may disapprove franchisee’s choice. Franchisee shall identify loads suitable for processing at material recovery, composting, transformation or any other solid waste processing facilities, and modify routes or storage and collection procedures, as directed by the Director of Public Works, to increase the quality or recoverability of materials generated by customers. (Ord. 659 § 9, 2007; Ord. 448 § 2, 1995)

Article III. California Integrated Waste Management Act of 1989 (AB 939): Operational and Reporting Requirements

8.68.200 Recycling programs.

The franchisee shall maintain existing residential curbside recycling and yard waste collection programs until such time as the franchisee develops and the City Council approves an equivalent or improved recycling program. Should the City determine that under its California Recycling Market Development Zone (RMDZ) designation, recyclable materials should be provided exclusively for sale to a business or industry that uses said recyclables in a remanufacturing process and is located within the RMDZ, the City may direct franchisee to make said recyclables exclusively available to such business or industry. Documented financial losses (if any) resulting from such direction of the City may be considered through negotiations for rate adjustment.

In addition to residential curbside and commercial recycling programs, franchisee shall develop and, following City Council approval, implement programs to achieve the goals of the AB 939 Source Reduction and Recycling Element (SRRE) including, but not limited to: public recycling bins for a limited number of parks, apartments, commercial areas or other strategic community areas to be provided without charge to the City; City Hall recycling program; debris box materials; commercial cardboard; bar and restaurant glass; complete commercial green waste; office paper and other business recycling; school recycling program, including education, containers and pickup; and recycling/diversion at the source. (Ord. 448 § 2, 1995)

8.68.210 Solid waste diversion.

Franchisee shall guarantee to the City that the diversion requirements of applicable State and Federal law will be fully satisfied at all times during the term and any extended term of the franchise agreement. (Ord. 448 § 2, 1995)

8.68.220 AB 939 reporting requirements.

To assist the City in its planning to meet the requirements of AB 939 as it presently exists and as it may be amended from time to time, franchisee shall submit to the Director of Public Works monthly reports on the amount of disposal and diversion tonnages – separated into product components – and totaled among the sources of generation; and an annual waste disposal and diversion report based upon daily records to be submitted by the thirty-first of January (and at other times as may be requested). These reports and other documents containing information that is required for AB 939 documentation submittals to the California Integrated Waste Management Board (CIWMB) shall be periodically reviewed for thoroughness and usefulness. All reports shall be adequate to meet the City’s reporting requirements to the CIWMB, and to the County of San Diego (or other local jurisdiction) throughout the term of the franchise agreement. (Ord. 659 § 10, 2007; Ord. 448 § 2, 1995)

Article IV. Operating Standards

8.68.300 Vehicle and equipment standards.

A. General. Franchisee shall provide a fleet of collection vehicles sufficient in number and capacity to perform efficiently the work required by the franchise agreement in strict accordance with its terms. All such vehicles shall have watertight bodies designed to prevent leakage, spillage or overflow. All such vehicles shall comply with the noise abatement requirements of this chapter.

B. Specifications. All vehicles used by franchisee in providing solid waste, recyclables, yard waste and other compostables collection services shall be registered with the California Department of Motor Vehicles and shall meet or exceed all legal standards. Franchisee shall maintain all of its collection vehicles in compliance with the provisions of the California Vehicle Code. Routine inspections by the California Highway Patrol shall be required annually on all vehicles, and certificates for said inspection shall be filed with the Director of Public Works.

C. Vehicle Identification. Franchisee’s name, local telephone number, and a unique vehicle identification number designed by franchisee for each vehicle shall be prominently displayed on all vehicles, in letters and numbers no less than two and one-half inches high. Similarly, the words “Serving the City of Poway” shall be displayed beneath the franchisee’s name. Franchisee shall not place the City’s logo on its vehicles. The Director of Public Works reserves the right to reinspect any and all collection vehicles with a 24-hour notice.

D. Cleaning and Maintenance. Franchisee shall maintain all of its properties, facilities, and equipment used in providing service under the franchise agreement in a safe, neat, clean and operable condition at all times. All trucks, trailers, and other conveyances or equipment, including bins, used to collect, haul, and transport solid waste, recyclables, yard waste and other compostables shall at all times be kept clean, in good repair, and well and uniformly painted, to the satisfaction of the Director of Public Works. (Ord. 659 §§ 11, 12, 2007; Ord. 448 § 2, 1995)

8.68.305 Performance standards.

A. General. Franchisee shall furnish such qualified drivers, mechanical, supervisory, clerical and other personnel as may be necessary to provide the services required by the franchise agreement in a safe and efficient manner.

B. Driver Qualifications. All drivers shall be trained and qualified in the operation of collection vehicles and must have in effect a valid license, of the appropriate class, issued by the California Department of Motor Vehicles. The franchisee shall furnish photostat copies of the licenses for all vehicle operators.

C. Identification Badge. Franchisee shall require its drivers, and all other employees who come into contact with the public, to wear a badge as a means of identifying the employee.

D. Safety Training. Franchisee shall provide suitable operational and safety training for all of its employees who utilize or operate vehicles or equipment for collection of solid waste, recyclables, yard waste, and other compostables or who are otherwise directly involved in such collection. Franchisee shall train its employees involved in solid waste, recyclables, yard waste, and other compostables collection to identify, and not to collect, hazardous or infectious waste.

E. No Gratuities. Franchisee shall not permit its employees to demand or solicit, directly or indirectly, any additional compensation or gratuity from members of the public for the collection of solid waste, recyclables, yard waste, and other compostables under the franchise agreement.

F. Employees’ Appearance and Conduct. All employees, while engaged in the collection or gathering of solid waste, recyclables, yard waste, and other compostables within the City, shall be attired in suitable and acceptable uniforms which are subject to approval by the Director of Public Works. Franchisee shall use its best efforts to assure that all employees present a neat appearance and conduct themselves in a courteous manner. Franchisee shall regularly train its employees in customer courtesy, shall prohibit the use of loud or profane language, and shall instruct collection crews to perform the work as quietly as possible. If any employee is found not to be courteous or not to be performing services in the manner required by this chapter, franchisee shall take all appropriate corrective measures.

G. Provision of Field Supervision. Franchisee shall designate one qualified employee as on-site supervisor of field operations who shall be equipped with a vehicle and mobile telephone. The field supervisor will devote all of his or her time in the field, within the City of Poway, checking on collection operations, coordinating improvements to service, resolving field problems, and responding to complaints of customers either in person or by telephone. The field supervisor shall be expected to respond to complaints within two working hours and to correct field deficiencies within one working day. (Ord. 659 § 13, 2007; Ord. 448 § 2, 1995)

8.68.310 Collection standards.

A. Care of Private Property. Reasonable care shall be used by the franchisee’s employees in handling all privately owned collection containers and enclosures, and all damage caused by the negligence or carelessness of the franchisee’s employees shall be promptly adjusted with the owner thereof. All collection containers after emptying thereof by the franchisee’s employees shall be returned to within five feet of the location from which the same were picked up by the franchisee’s employees, upright with lids properly placed to ensure same are not deposited in any driveway, sidewalk, or street. Franchisee shall ensure that its employees close all gates opened by them in making collections, unless otherwise directed by the customer, and avoid crossing landscaped areas and climbing or jumping over hedges and fences. City shall refer complaints about damage to private property to franchisee.

B. Noise. All solid waste, recyclables, yard waste, and other compostables collection operations shall be conducted as quietly as possible and shall conform to applicable Federal, State, County and City noise level regulations. The City may conduct random checks of noise emission levels to ensure such compliance. Franchisee will promptly resolve any complaints of noise to the satisfaction of the Director of Public Works.

C. Record of Noncollection. When any solid waste, recyclable, yard waste or other compostable material deposited for collection is not collected by the franchisee because it fails to meet the requirements of the Poway Municipal Code or the franchise agreement, franchisee shall leave a bilingual Spanish/English red tag (provided at franchisee’s cost) at least three inches by six inches in size, on which franchisee shall indicate the reasons for refusal to collect the solid waste, recyclables, yard waste, or other compostables, giving reference to the section of the municipal code or to the section of the franchise agreement which has been violated, and which gives grounds for franchisee’s refusal as well as the franchisee’s address, phone number and business hours. This information shall either be in writing or by means of a checklist system. Contractor shall tag those containers where recyclables are not routinely separated and notify the City who will take further action.

In addition thereto, franchisee shall maintain, at the franchisee’s place of business, a log book listing all complaints and taggings. Said log book shall contain the names and addresses of parties involved, date of such complaint or tagging, nature of same and date and manner of disposition of each case. Such log shall be kept so that it may conveniently be inspected by the Director of Public Works upon request. Such log shall be retained for at least two years after the last entry. The Director of Public Works may request this log at any time. (Ord. 659 §§ 14, 15, 2007; Ord. 448 § 2, 1995)

8.68.315 Customer service standards.

A. Public/Customer Service and Accessibility.

1. Office Location. Franchisee shall provide a business office available to its customers for purposes of carrying out its obligations under the franchise agreement.

2. Office Hours. Franchisee’s office shall be open to the public from 8:00 a.m. to 5:00 p.m. Monday through Friday. The office may be closed on Saturdays and Sundays and those holidays recognized by the franchisee. The franchisee shall notify the Director of Public Works of the holidays recognized by the franchisee.

3. Availability of Representatives. A representative of the franchisee shall be available at the franchisee’s office during office hours to communicate with the public in person and by telephone. A suitable drop box or collections mechanism shall be provided in the franchisee’s office for the receipt of payments.

4. Telephone. Franchisee shall maintain a toll-free telephone system in operation at its office at all times. Franchisee shall install telephone equipment, and have available service representatives sufficient to handle the volume of calls typically experienced on the busiest days. Telephone service shall be provided from 8:00 a.m. to 5:00 p.m. Franchisee shall also maintain an after-hours telephone number for use during other than normal business hours. Franchisee shall have a representative or voice mail available at said after-hours toll-free telephone number during all hours other than normal office hours. If customers are unable with reasonable effort to reach franchisee’s office by phone, or are subject to waiting time “on hold” of more than two minutes prior to reaching a customer service representative, the Director of Public Works may require that franchisee install additional telephone lines or hire additional customer service representatives.

The Director of Public Works and Director of Safety Services shall be provided with an emergency phone number.

5. Consumer Information. The City Manager may direct franchisee to prepare bilingual information cards containing information about the amounts of solid waste which will be collected, times for special collection events, curbside recycling and household hazardous waste drop-off programs, collection schedules, rates and complaint procedures. Franchisee shall distribute such information cards to the occupants of all residential and commercial premises. Information cards shall be revised and distributed if there is any material change in the information and, in any event, whenever a new customer is first billed. Information cards shall also be mailed to City residents upon request and shall be provided to the Poway Chamber of Commerce in quantities required by the Poway Chamber of Commerce. Franchisee shall submit printer’s proofs of the information cards to the Director of Public Works prior to distribution and will incorporate City’s comments in the final version distributed to the public. (Ord. 659 §§ 16, 17, 18, 2007; Ord. 448 § 2, 1995)

8.68.320 Service complaints.

Franchisee shall maintain a written log of all oral and written service complaints registered with the franchisee from customers within the City. Franchisee shall be responsible for the prompt and courteous attention to, and prompt and reasonable resolution of, all customer complaints. Franchisee shall record in a separate log all written and oral complaints, noting the name and address of complainant, date and time of complaint, nature of complaint, and nature and date of resolution. This complaint log shall be retained by the franchisee for at least one year after the last entry. The Director of Public Works may review the log at any reasonable time.

Franchisee shall respond to all complaints from customers within two hours and correct deficiencies within 24 hours, weekends and holidays excluded. In particular, if a complaint involves a failure to collect solid waste, recyclables, yard waste, and other compostables from a premises, required by the franchise agreement, franchisee shall collect the solid waste, recyclables, yard waste and other compostables in question within such 24-hour period, provided it has been delivered for collection in accordance with this chapter. (Ord. 659 § 19, 2007; Ord. 448 § 2, 1995)

8.68.325 Review of performance and quality of service and industry changes.

At the City Council’s sole option, with 60 days’ written notification to the franchisee, it may conduct a public hearing at which the franchisee shall be present and shall participate, to review the franchisee’s performance and quality of service and to provide for technological and regulatory changes. The reports required by this chapter and the franchise agreement regarding customer complaints shall be utilized as one basis for review. In addition, any customer may submit comments or complaints during the review meetings, either orally or in writing, and these shall be considered. Such hearings may be scheduled by the City Council at its discretion throughout the term of the franchise, but not more often than annually.

Within 30 days after the conclusion of the public hearing, the City Council shall issue a report with respect to the matters raised at the hearings. If any noncompliance with the franchise is found, the Director of Public Works may direct the franchisee to correct the inadequacies in accordance with the terms of this chapter and the franchise agreement. Any change in scope of services or equipment shall be reflected in an amendment to the franchise agreement. (Ord. 659 § 20, 2007; Ord. 448 § 2, 1995)

Article V. Franchise Regulations

8.68.330 Prohibited collection and transportation.

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

8.68.335 Contents of franchise agreement – Resolution of conflicts.

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)

8.68.340 Franchisee franchise fee.

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)

8.68.345 Assignment.

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

8.68.350 Subcontracting.

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. 659 § 25, 2007; Ord. 448 § 2, 1995)

8.68.360 Revocation or suspension of franchise.

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)

8.68.370 Rates.

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. 659 § 26, 2007; Ord. 496 § 2, 1998)

8.68.375 Billing and collection of rates, fees and charges.

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. 659 § 27, 2007; Ord. 448 § 2, 1995)

8.68.380 Failure or refusal to pay.

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. 659 § 28, 2007; Ord. 448 § 2, 1995)

8.68.385 Collection of charges.

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)

8.68.390 Payment under protest.

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)

Article VI. Exclusions

8.68.400 Scope of franchise – Exclusions.

The franchise granted to franchisee shall be exclusive except as to the following categories of solid waste, recyclables, yard waste and other compostables listed in this section. The granting of a franchise shall not preclude the categories of solid waste, recyclables, yard waste and other compostables listed below from being delivered to or collected or transported by others, provided that nothing is intended to or shall be construed to excuse any person from obtaining any authorization from the City which is otherwise required by law:

A. Manure, yard waste and other compostables removed from a premises by a manure removal, gardening, landscaping or tree trimming contractor as an incidental part of total service offered by that contractor rather than as a hauling service;

B. Household hazardous waste and hazardous waste;

C. Auto parts and bodies;

D. Medical waste (as defined in the California Waste Management Act) which shall be handled in the manner prescribed by the County Health Officer and in accordance with the California Health and Safety Code;

E. Solid waste exempted pursuant to PMC 8.68.030(B);

F. Solid waste collected to prevent its entry into the stormwater conveyance system and the waters of the State, through contracts for services or through the use of City forces. (Ord. 659 § 29, 2007; Ord. 496 § 2, 1998)

8.68.410 Exclusions for recyclables.

The provisions of this chapter shall not preclude residential or commercial occupants or owners from disposing of recyclable materials through other recycling methods, provided that such residential or commercial occupants shall nonetheless pay the recycling service fee of franchisee. The provisions of this chapter shall not preclude or prohibit the City or any officer or employee thereof or any public entity delegated the ability to do so by the City from itself collecting, removing, disposing or diverting of solid waste, recyclables, yard waste, and other compostables in the regular course of their respective duties as such officers or employees; notwithstanding, the City shall be responsible for reporting all such diversion. (Ord. 448 § 2, 1995)

8.68.420 Franchisee’s inability to provide service.

If, at any time during the effective period of an exclusive franchise agreement, a customer of the franchisee requests from the franchisee a collection service that is not defined in the franchise agreement as a special pickup service which the franchisee cannot render within two full working days from the date of the customer’s initial request for service, the Director of Public Works reserves the right to direct such customer to seek such service from another provider who can provide such collection service pursuant to a special permit issued by the City for such collection services. (Ord. 659 § 30, 2007; Ord. 448 § 2, 1995)

8.68.430 Commercial collection – Franchisee’s inability to provide specialized service.

If, at any time during the effective period of an exclusive franchise agreement, a commercial customer of the franchisee requests a specialized collection and recycling service that the franchisee is not equipped or licensed to provide, or for which the franchisee has not subcontracted to provide, the Director of Public Works reserves the right to allow another provider to provide such collection service pursuant to special permit issued by the City for such collection services, until such time as the franchisee is equipped and licensed to provide such service, or until such time as the franchisee has subcontracted with a suitably licensed provider to provide such service. (Ord. 659 § 31, 2007; Ord. 448 § 2, 1995)

8.68.440 Collection in emergencies.

In emergencies such as work stoppages, the breakdown of equipment, a natural disaster, or other unforeseen or unpreventable circumstances, or when in the judgment of the City Manager the preservation of the public health and safety justifies such action, the City Manager may issue a special permit to one or more persons other than the franchisee to perform any of the services covered by this chapter, subject to such reasonable fees, charges and conditions as the City Manager shall establish. Such fees, charges, and conditions in effect under this section for any period exceeding 15 days duration shall be approved by the City Council. (Ord. 448 § 2, 1995)

Article VII. Special Permits

8.68.500 Prohibition.

No person shall provide any solid waste collection or transportation services for which a special permit is required by the chapter without first obtaining the special permit. (Ord. 448 § 2, 1995)

8.68.510 Application.

Application for a special permit shall be made in writing to and on the form provided by the Director of Public Works. The application shall be subject to the approval of the City Manager. The terms of a permit shall be for one year. Renewals of the permit shall be for periods of one year. (Ord. 659 § 32, 2007; Ord. 448 § 2, 1995)

8.68.530 Permit requirements.

The permittee shall comply with the following: unless the permit is solely for the purpose of serving other governmental agencies, in which case, the permittee shall be required to comply only with subsections C, D and E of this section. For purposes of this section, references in the following subsections to the “franchise agreement” and to the “franchisee” shall be deemed to be references to the special permit and to the permittee.

A. The collection and transportation requirements of PMC 8.68.100 through 8.68.195, inclusive;

B. The operating standards of PMC 8.68.300 through 8.68.325, inclusive;

C. The indemnification and insurance provisions of PMC 8.68.600 and 8.68.620;

D. The franchise fee (permit fee) for such special permit in an amount determined by resolution of the City Council;

E. The reporting requirements of PMC 8.68.220. (Ord. 448 § 2, 1995)

8.68.540 Permit conditions.

Each special permit shall be expressly limited to the provision of services to:

A. Customers of the franchisee when the franchisee is unable to serve pursuant to PMC 8.68.420; or

B. Customers of the franchisee requiring special services not provided by the franchisee pursuant to PMC 8.68.430; or

C. Customers of the franchisee in an emergency pursuant to PMC 8.68.440; or

D. Other governmental agencies pursuant to PMC 8.68.610. (Ord. 448 § 2, 1995)

Article VIII. Administrative Requirements

8.68.600 Indemnification of City.

A. Indemnification Generally. Separate and distinct from any insurance or liquidated damages provisions found in the franchise agreement, franchisee shall defend, with counsel to be agreed upon by both parties, indemnify, and hold harmless the City and its agents, officers, servants, and employees from and against any and all claims, demands, damages, liabilities, costs or expenses for any damages or injuries to any person or property, including but not limited to, injury to franchisee’s or City’s employees, agents or officers which arise from or are connected with or are caused or claimed to be caused by acts or omissions of City, franchisee, or their agents, officers or employees, in the preparation, bidding, execution, administration, or performance of the franchise agreement, or in performing the work or services therein, and all costs and expenses of investigating and defending against same; provided, however, that franchisee’s duty to indemnify and hold harmless shall not include any claims or liability arising from the negligence or intentional tort of the City, its agents, officers or employees, determined by a court of competent jurisdiction.

B. Hazardous Materials Indemnification. Franchisee shall indemnify, defend, with counsel to be agreed upon by both parties, protect and hold harmless City, its officers, employees, agents, assigns and any successor or successors to City’s interest from and against all claims, actual damages (including but not limited to special and consequential damages), natural resources damages, punitive damages, injuries, costs, response, remediation and removal costs, losses, demands, debts, liens, liabilities, causes of action, suits, legal or administrative proceedings, interest, fines, charges, penalties and expenses (including but not limited to attorneys and expert witness fees and costs incurred in connection with defending against any of the foregoing or in enforcing this indemnity) of any kind whatsoever paid, incurred or suffered by, or asserted against, City or its officers, employees, or agents arising from or attributable to any repair, clean-up or detoxification, or preparation and implementation of any removal, remedial, response, closure or other plan (regardless of whether undertaken due to government action) concerning any hazardous substance or hazardous wastes at any disposal or processing facility where solid waste is or has been transported, transferred, processed, stored, disposed of or has otherwise come to be located by franchisee or its activities pursuant to the franchise agreement resulting in a release of any hazardous substance into the environment. The foregoing indemnity is intended to operate pursuant to Section 107(e) of the Comprehensive Environmental Response, Compensation and Liability Act, “CERCLA,” also known as “Superfund” 42, U.S.C. Section 9607(e), and California Health and Safety Code Section 25364, to defend, protect, hold harmless and indemnify City from all forms of liability under CERCLA, other statutes, or common law for any and all matters addressed in this provision. (Ord. 448 § 2, 1995)

8.68.610 Exclusion for other government agencies.

The provisions of this chapter shall not require the collection or transportation by the franchisee of solid waste, recyclables, yard waste, or other compostables generated within the City by any school district, special district, or agency of County, State, or Federal government, provided that any person collecting or transporting such waste or material shall obtain a special permit therefor pursuant to the terms of this chapter. It shall be unlawful for any person to collect or transport such waste or material in the City without first obtaining a special permit. (Ord. 448 § 2, 1995)

8.68.620 Insurance.

A. Franchisee shall maintain limits of insurance no less than:

1. Comprehensive general liability: $5,000,000 combined single limit per occurrence for bodily injury and property damage;

2. Automobile liability: $5,000,000 combined single limit per accident for bodily injury and property damage;

3. Worker’s compensation and employers liability: worker’s compensation limits as required by the Labor Code of the State of California.

B. Any significant deductibles or self-insured retention must be declared to and approved by the City’s Risk Manager. At the option of the City’s Risk Manager, either: the insurer shall reduce or eliminate such deductibles or self-insured retentions as respects the City, its officials, employees, agents or volunteers; or the franchisee shall procure an additional letter of credit or bond guaranteeing payment of losses and related investigations, claim administration and defense expenses.

C. Franchisee shall comply with all other insurance requirements delineated in the franchise agreement. (Ord. 448 § 2, 1995)

8.68.630 Faithful performance security.

Upon execution of a franchise agreement, franchisee shall file with the City Clerk an Irrevocable Letter of Credit payable solely to the City of Poway, in the amount of at least $100,000 and a surety bond for the balance to a total of $500,000, both of which shall be immediately available to the City in the event of any failure of the franchisee to well and faithfully perform all of its duties and obligations under the franchise agreement or to provide full service in accordance with the terms of the franchise agreement. Such funds shall be available to City upon the City’s unilateral determination of default, and prior to a judicial determination of default. The bond shall be issued by a surety admitted to do business in the State of California. The letter of credit shall be issued by a local bank. (Ord. 448 § 2, 1995)

8.68.640 Penalty.

Violation of any of the provisions of this chapter shall be punishable by imprisonment in accordance with the provisions of Chapter 1.08 PMC. (Ord. 448 § 2, 1995)

8.68.650 Severability.

If any section, subsection, sentence, clause, or phrase of this chapter is for any reason held to be invalid or unconstitutional, such decision shall not affect the validity of the remaining portions, which shall be severed and continue in full force and effect. The City Council declares that it would have passed this chapter and each section, subsection, clause, and phrase thereof irrespective of the fact that any one or more sections, subsections, sentences, clauses or phrases be declared invalid or unconstitutional, and would have passed and adopted the same even though any parts, sections, subsections, sentences, clauses, or phrases that may be held invalid had been omitted therefrom. (Ord. 448 § 2, 1995)