9.50.080 Enforcement, Suspension, or Termination of Franchise

A. Responsibility of City. Franchisees are subject to the exercise of the police power of the City and to such regulations as the City may provide by resolution, ordinance, rule or regulation.

B. Enforcement of Standards. The City Manager or the City Manager’s designee shall administer and enforce this chapter and pursue remedies for noncompliance as laid out within this chapter. The City Manager or the City Manager’s designee shall also administer and enforce any administrative operations standards and rules as adopted by the City Council. These standards and rules shall be enforceable with penalties allowed in AMC Chapter 1.08. Upon recommendation by the City Manager or the City Manager’s designee, the City Council may declare a franchisee who fails to abide by the rules to be in default.

C. Initiation of Enforcement Actions. In addition to enforcement under state law, the City may prosecute any infraction as defined in this chapter or the rules issued hereunder, based on any information coming to the City, in Ashland Municipal Court. The burden of proof is on the City to prove an infraction by a preponderance of the evidence.

D. Penalties for Infractions. Each franchise provision, including rules adopted hereunder, is subject to penalties as described in AMC Chapter 1.08 for each day from the initial citation of the offense that the offense continues to violate the terms of this chapter or associated resolutions.

E. Termination of Franchise for Default. In addition to default for accrued penalties, upon recommendation by the City Manager or the City Manager’s designee, the City Council may terminate a franchise for the franchise holder’s default in performing any material term or condition of the franchise. An event of default also shall include, but not be limited to, entry of a judgment against the franchise holder for material misrepresentation or deceit committed against the City or a customer, or entry of a judgment of conviction (including conviction on a plea of no contest) against the franchise holder or any principal of same for a crime involving dishonesty. Notice to a franchisee of default shall be delivered to the franchisee by certified mail requiring the franchisee to show cause in a public hearing before the City Council at a place and time to be stated in the notice, but no earlier than fourteen (14) days from the date the notice is mailed, why the franchise should not be terminated. At the hearing the franchisee shall demonstrate the measures it has taken or commenced to cure the default.

1. Except for the right to refuse service for nonpayment or if customer has attempted to improperly dispose of hazardous waste in violation of the City’s standards and rules as set forth in this chapter, franchisees shall not interrupt service unless:

a. Access, roads, streets and highways necessary for collection operations are unusable or unsafe and there are no alternative routes. Franchisees shall resume service within twenty-four (24) hours after access is restored.

b. A force majeure event occurs.

2. Upon the occurrence of a force majeure event that prevents or impairs a franchisee’s ability to perform any of its franchise obligations, the franchisee shall:

a. Provide immediate notice, either verbal or written, to the City Manager or the City Manager’s designee of the nature of the event and extent and anticipated duration of franchisee’s inability to perform any obligation under this franchise. If verbal notice is given, then written notice must be delivered to the City within twenty-four (24) hours of such verbal notice;

b. Commence immediately to develop, in communication and cooperation with the City, an interim plan for the restoration of full performance; and

c. Take all such other reasonable actions requested by the City to assist the City in protecting the public health and safety and to restore service as soon as practicable.

3. Labor unrest, including, but not limited to, strike, work stoppage or slowdown, sick-out, picketing, or other concerted job action conducted by franchisee employees or directed at the franchisee, is not an event of force majeure, and the franchisee shall be obligated to continue to provide service notwithstanding the occurrence of any or all such events.

G. City’s Right to Perform Service. Except as provided under subsection F of this section, in the event that a franchisee, for any reason whatsoever, fails, refuses or is unable to collect or transport any or all solid waste for a period of more than forty-eight (48) hours, and, if, as a result thereof, solid waste or recyclable materials should accumulate in the City to such an extent that the City finds that such accumulation endangers the public health, safety, or welfare, then the City shall have the right, but not the obligation, upon twenty-four (24) hours’ prior written notice to the franchisee, to perform or cause to be performed collection services with its own or other personnel at the franchisee’s expense. This right shall be in addition to and not in lieu of any other remedy available to the City. If necessary, the City may take temporary possession of, and a franchisee shall peacefully surrender, any or all of the franchisee’s land, equipment, and other property used or useful in the collection of solid waste or recyclable materials until such time as the emergency is resolved. If such possession occurs, the City assumes all responsibility and liability for the equipment and land used to perform such temporary collection services.

H. Dispute Resolution with Customers. Upon receipt of any notice of dispute from a customer about any bill, charge, or service, the franchisee shall thoroughly investigate the matter and promptly report the results of its investigation to the customer. Except in the event a customer has attempted to improperly dispose of hazardous waste in violation of the City’s standards and rules, a franchisee shall not refuse service to any customer during a time of dispute. If the franchisee is not able to resolve a dispute with the customer, the customer may contact the City Manager or the City Manager’s designee who will act as an informal arbitrator in an attempt to resolve the matter. Should the dispute remain unresolved, the franchisee or customer may then pursue the matter in any court with jurisdiction.

I. Dispute Resolution with City. During all disputes arising under the franchise, the City and franchisee shall continue performance of their respective obligations under the franchise unless and until the franchisee is terminated for default, in which case the franchisee’s obligation to pay a franchise fee based on cash receipts generated from services provided under the franchise during said dispute shall survive such termination. In addition to and without waiving any rights and remedies under civil or common law, in the event of a dispute under the franchise, the parties shall mutually agree to arbitration. Within fifteen (15) days after agreement to arbitration has been reached, each party shall submit the name of its own arbitrator, selected from the American Arbitration Association, and the two (2) arbitrators shall select a third arbitrator selected from such panel within fifteen (15) days, or in case of a disagreement concerning the appointment of the third arbitrator, the third arbitrator shall be appointed from such panel by the presiding judge for the Circuit Court of the State of Oregon for Jackson County. During such time that the arbitrators are being selected or appointed, the parties shall continue to negotiate in good faith to resolve their dispute in a cooperative manner. The decision of the arbitrators in the matter shall be final and binding on the parties, and any judgment upon the award rendered pursuant to such arbitration may be entered in any court having jurisdiction thereof. (Ord. 3192 § 89, amended, 11/17/2020; Ord. 3172 § 8, added, 02/05/2019)