(a) If the Director determines at any time that the grantee's performance of the solid waste handling services authorized or required in its franchise agreement, or any of its other actions, are not in conformity with the provisions of the franchise agreement, the provisions of this Code, the requirements of the CalRecycle, or its successor agency, including but not limited to, requirements for source reduction and recycling (as to the waste stream subject to the franchise agreement) or any other applicable Federal, State, or local law or regulation, including but not limited to, the laws governing collection, transfer, storage and/or disposal of solid waste, the Director will notify grantee in writing of such deficiencies ("notice of deficiency") as shall be defined in the franchise agreement with the grantee.
(b) The notice of deficiency may provide a reasonable time within which correction of all noted deficiencies is to be made. Some deficiencies are by their nature not curable, and no time period to correct or remedy such deficiency shall be given in the notice of deficiency.
(c) The Director shall review the grantee's response to the notice of deficiency. If the Director determines that the grantee has not cured the deficiency, or if there is no cure period provided in the notice of deficiency given the nature of the deficiency, the Director shall either:
(1) Refer the matter directly to the Board for decision pursuant to Subdivision (d); or
(2) Decide the matter and notify the grantee of that decision, in writing.
(A) The decision of the Director may be to terminate the franchise agreement or may be to impose some lesser sanction;
(B) The decision of the Director shall be final and binding on grantee unless the grantee files a "notice of appeal" with the Director within 30 days of receipt of the Director's decision. The notice of appeal shall be in writing, shall contain a detailed and precise statement of the basis for the appeal, and shall be accompanied by the fee, if any, which is applicable to the filing of such an appeal.
(C) Within ten working days of receipt of a notice of appeal, the Director shall either refer the appeal to the Board for proceedings in accordance with subdivision (d), or refer the matter to a hearing officer for proceedings pursuant to Chapter 27 of Division 2 of Title 1 of this Code.
(d) (1) Should the Director refer the notice of deficiency to the Board in the first instance, or if the matter reaches the Board pursuant to a notice of appeal, the Board shall either:
(A) Refer the matter to a hearing officer for proceedings pursuant to Chapter 27 of Division 2 of Title 1 of this Code; or
(B) Set the matter for hearing.
(2) If the Board sets the matter for hearing:
(A) The Board shall give grantee, and any interested person requesting the same, 14 days written notice of the time and place of the public hearing. At the hearing, the Board shall consider the report of the Director indicating the deficiencies, and shall give the grantee, or its representatives and any other interested person, a reasonable opportunity to be heard.
(B) Based on the evidence presented at the public hearing, the Board shall decide the appropriate action to be taken. If, based upon the record, the Board determines that as noted in the notice of deficiency, the grantee's performance of the solid waste handling services authorized or required in its franchise agreement, or any of its other actions, are not in conformity with the provisions of the franchise agreement, the provisions of this Code, the requirements of the CalRecycle, or its successor agency, including but not limited to, requirements for source reduction and recycling (as to the waste stream subject to the franchise agreement) or any other applicable Federal, State, or local law or regulation, including but not limited to the laws governing collection, transfer, storage and/or disposal of solid waste, then the board, in the exercise of its sole discretion, may terminate the franchise agreement immediately or impose such lesser sanction as it deems appropriate. The decision of the Board shall be final and conclusive.
(e) Grantee's performance under its franchise agreement is not excused during the period of time prior to the Director's or the Board's final determination, as the case may be, regarding the validity of, and appropriate response to, the deficiencies noted in the notice of deficiency.
(f) In the event grantee: (i) has received a notice of deficiency and fails to perform solid waste handling services; or (ii) has had its franchise agreement terminated; the County, acting through the Division, reserves the right, in addition to all other rights available to the County, to take any one or combination of the following actions:
(1) To rent or lease from grantee, at its respective fair and reasonable rental value, all or any part of the grantee's equipment (including collection containers utilized by subscribers and office equipment and billing programs), equipment yard and office utilized by grantee in providing the solid waste handling services required under its franchise agreement. The County may rent or lease such equipment and real property for a period not to exceed six months, for the purpose of performing the solid waste handling services, or any part thereof, which grantee is (or was) obligated to provide pursuant to its franchise agreement. The County may use said rented equipment and real property to directly perform such solid waste handling service or to assign it to some other grantee or person to act on the County's behalf. Grantee shall be held responsible for the costs to insure the County or its assignee from all liability resulting from the operation of grantee's equipment. In the case of equipment or real property not owned by grantee, grantee shall assign to the County, to the extent grantee is permitted to do so under the instruments pursuant to which grantee possesses such equipment or real property, the right to possess the equipment or real property.
(2) As used in this Subdivision, means the rate for such equipment as listed in the State Department of Transportation publication, Labor Surcharge and Equipment Rental Rates, in effect at the time the County leases the equipment. If a particular piece of equipment is not listed in said publication or if said publication is not current, the reasonable rental value may be established by the Director by any equitable alternative method. For real property, the REASONABLE RENTAL VALUE means its market rental rate as established by the Director using an equitable method.
(3) If the County exercises its rights under this Subdivision, the County shall pay or owe grantee the reasonable rental value of the equipment and real property so used for the period of the County's possession thereof. The County may offset any amounts due to grantee pursuant to this provision against any amounts due to County from grantee.
(4) All revenues owed by Subscribers which are attributable to services performed by or at the direction of the County during County's assumption of grantee's solid waste handling duties shall be billed by and paid to the County. To the extent grantee receives such revenue after County's assumption of grantee's solid waste handling duties, Grantee shall pay such revenue to County promptly after receipt thereof (or promptly after County has performed the services related to such revenue, if the revenue was received by the grantee prior to the County's assumption of duties) and grantee shall be deemed to have assigned to County all of grantee's right and interest to any such revenues.
(g) The County rights set forth in this Section are in addition to, and not in limitation of, any other powers or rights available to the County upon failure of grantee to perform its obligations under Division 6 or its franchise agreement. Further, by entering into its franchise agreement issued pursuant to Division 6 each grantee acknowledges that its violation of the terms of Division 6 or its breach of the terms of its franchise agreement shall cause the County to suffer irreparable injury and damages sufficient to support injunctive relief to enforce the provisions of the franchise agreement, and to enjoin the breach thereof.
(h) This Section shall not apply to violations or deficiencies which fall within the sole jurisdiction of the County's Department of Public Health, Division of Environmental Health Services under Grantee's required Health and Safety Permit and which are not, and do not become, violations or deficiencies under Division 6.
(Ord. 4385, passed - -2020; Am. Ord. 4434, passed - -2022; Am. Ord. 4460, passed - -2023)