§ 5-5.133. Termination of Agreements.

Any agreement entered by the Council pursuant to the provisions of this chapter may be terminated by the Council, if after conducting a public hearing on said termination, the Council finds and determines that the person doing business by virtue of such agreement has failed to comply with any of its material terms, or this chapter, has failed to render satisfactory collection services, or without cause in accordance with the provisions of the agreement.

(a)

Termination for Cause. The City further reserves the right to terminate the service agreement or impose liquidated damages in the event of any of the following:

(1)

If collector practices, or attempts to practice, any fraud or deceit upon the City.

(2)

If collector becomes insolvent, unable, or unwilling to pay its debts, or upon listing of an order for relief in favor of collector in a bankruptcy proceeding.

(3)

If collector fails to provide or maintain in full and in effect, any or all of the bonds and/or coverages required by its service agreement with the City.

(4)

If collector willfully and materially violates any orders or rulings of any regulatory body having jurisdiction over collector relative to its service agreement with the City, provided that the collector may contest any such orders or rulings by appropriate proceedings conducted in good faith, in which case no breach of the service agreement shall be deemed to have occurred.

(5)

If collector ceases to provide collection services as required by the service agreement over all or a substantial portion of its service area for a period of seven (7) days or more, for any reason within the control of the collector.

(6)

If the collector willfully fails and/or refuses to provide City with required information, reports, and/or test results related to vehicle incidents or other incidents where such tests are conducted as part of an investigation of an incident, in a timely manner as provided in its service agreement.

(7)

Any other act or omission by the collector, which materially violates the terms, conditions, or requirements of its service agreement.

(b)

Process for Imposing Damages for Termination. The Solid Waste Manager may file a complaint with the Public Works Director charging a failure of collector to comply with the provisions of this chapter or the service agreement.

(1)

Upon issuance of the Solid Waste Manager's complaint, the Public Works Director shall conduct a factual investigation thereof and render a decision relative to the justification for complaint, in writing, within ten (10) days following the decision.

(2)

If the Public Works Director determines that the collector's performance pursuant to its service agreement with the City has not been in conformity with the provisions of either the service agreement, the requirements of this chapter, or the requirements of the California Integrated Waste Management Board, including, but not limited to, the laws governing transfer, storage, or disposal of special wastes, the Public Works Director may advise collector in writing of such deficiencies. The Public Works Director may set a reasonable time within which correction of all such deficiencies is to be made. Unless otherwise specified, a reasonable time for correction shall be thirty (30) days from the receipt by the collector of such written notice. The Public Works Director shall review the collector's response and notify the collector of his/her decision, in writing.

(3)

A decision or order of the Public Works Director shall be final and binding on collector if the collector fails to file a "Notice of Appeal" with the City Manager within thirty (30) days of receipt of the Director's decision. Within ten (10) working days of receipt of a Notice of Appeal, the City Manager shall either refer the appeal to the City Council for proceedings in accordance with subsection (b)(4) of this section, or refer the matter to a hearing officer.

(4)

The City Council shall set the appeal on the matter referred by the City Manager for hearing within sixty (60) days from receipt by the City Manager of the appeal or referral. At the hearing, the City Council shall consider the report of the Public Works Director indicating the deficiencies, and shall give the collector, or its representatives and any other interested person, a reasonable opportunity to be heard.

(5)

Based on the evidence presented at the public hearing, the Council shall determine whether the service agreement should be terminated, liquidated damages imposed, or both. The City Council may also find in favor of collector. The decision of the City Council shall be final and binding. Collector's performance under the service agreement is not excused during the period of time prior to the City Council's final determination as to whether such performance is deficient.

(c)

Remedies—Liquidated Damages. The City Council may, at its discretion, assess liquidated damages not to exceed the sum of five thousand dollars ($5,000.00) per day, for each calendar day that service is not provided by collector in accordance with the service agreement for a period not to exceed forty-five (45) days.

(d)

Additional Remedies. In addition to liquidated damages, above, the City shall have the following rights:

(1)

To Rent or Lease Equipment from Collector. The City may rent or lease equipment from collector for the purpose of collecting, transporting, and disposing of solid waste which collector is obligated to collect, transport, and dispose of pursuant to its service agreement, for a period not to exceed six (6) months.

(2)

To Contract with Others to Perform the Services. The City may contract others to perform the services otherwise to be performed by collector hereunder, or perform such services itself.

(3)

To Obtain Injunctive Relief. In the event of a breach under the terms of the service agreement by collector, City may suffer irreparable injury and incalculable damages sufficient to support injunctive relief, to enforce the provisions of the service agreement and to enjoin the breach thereof.

(4)

To Reduce the Service Area. If at the time of the annual review the total number of unresolved complaints exceeds two and one-half tenths (2.5) of one (1) percent of the total annual stops for the prior year, the City Council may determine whether it is appropriate to decrease the service area of collector because of poor performance and authorize another collector to provide services. The maximum reduction in service area for poor performance under this provision shall be ten (10) percent for each occurrence.

(5)

To Invoke Eminent Domain. Nothing set forth in a service agreement entered into between City and collector shall be deemed or construed to impair or affect, in any way, to any extent, the right of the City to acquire the property of the collector, either by purchase or through the exercise of the right of eminent domain, at fair market value, or be construed to contract away or to modify or abridge, whether for a term or in perpetuity, the City's right of eminent domain.

(6)

To Collect and Bill Collector. Should collector fail to provide collection services as stipulated in its service agreement, within twenty-four (24) hours of a request being communicated by the City to collector to do so, the City may collect and dispose of same and collector shall be liable for all expenses incurred including, but not limited to, disposal, operating, administration, and legal costs. Reimbursement to City for such expenses will be paid by collector within thirty (30) days after date of invoice.

(7)

To Conduct Inspections. At all reasonable times during any normal business hours, the collector shall permit the City's authorized representatives to examine all property of the collector, and to examine and copy any and all records kept or maintained by the collector under its control which pertain to the service agreement.

(e)

Force Majeure. Collector shall not be in default under its service agreement in the event that any of the services provided by the collector under the terms of the agreement are temporarily interrupted or discontinued for any of the following reasons: riots, wars, sabotage, civil disturbances, insurrections, explosion, natural disasters such as floods, earthquakes, landslides, fires, strikes, lockouts, other labor disturbances or other catastrophic events which are beyond the reasonable control of collector. Other catastrophic events do not include the financial inability of the collector to perform or failure of the collector to obtain any necessary permits or licenses from other governmental agencies or the right to use the omissions of the collector. In the event a labor disturbance interrupts collection services as required by a service agreement, City may elect to exercise its rights under the service agreement.

(Formerly 5-5.31, Ord. 30-C.S., amended by Ord. 1095-C.S., Ord. 3018-C.S., § 1, formerly 5-5.32, Ord. 3067-C.S., § 1, Ord. 3129-C.S., § 3, Ord. 3365-C.S., § 2, and Ord. 3396-C.S., § 1, formerly 5-5.33, amended by Ord. 3471-C.S., § 1)

(Ord. 3634-C.S., § 1, effective 10-1-15)