4.08.030 Definitions.
For the purpose of this chapter, the following definitions shall apply unless the context clearly indicates or requires a different meaning.
“Affiliated company” means any company that shares expenses and/or revenues with the franchisee with respect to the services under this agreement and is: (1) the parent company (corporation, partnership or limited liability company) of the franchisee; or (2) any subsidiary of such parent company; or (3) any company of which 30 percent or more of the common stock or control is owned or controlled by the franchisee or the franchisee’s shareholders. Examples of such shared costs include, but are not limited to: labor, equipment, vehicles, insurance, or administrative costs.
“Allowable expenses” means those expenses incurred by franchisee in the performance of this agreement that are allowed by the City as reimbursable by the ratepayer as enumerated below. Allowable expenses are allowable only to the extent that such expenses are known and measurable, calculated according to generally accepted accounting principles (GAAP) on an accrual basis and, when applicable, prorated or allocated to the franchisee’s operations within the City, do not exceed the fair market value of comparable goods or services, and are commercially reasonable and prudently incurred by the franchisee solely in the course of performing its obligations under the franchise. Allowable expenses shall include, but not be limited to, the following:
1. The costs of complying with all laws, regulations or orders applicable to the obligations of franchisees under federal, state or local law, including this chapter, as now or hereafter amended;
2. Disposal costs;
3. Labor costs, including operational and supervisory labor, payroll taxes, workers’ compensation, and benefits;
4. Vehicle and equipment expenses, including vehicle registration fees, motor fuel, oil, tires, rental charges and/or operating lease payments and repairs and maintenance;
5. Expenses of maintaining other capital assets, including rental charges and/or operating lease payments and repair and maintenance;
6. Performance bonds and insurance in at least the amounts and coverages required by the City;
7. Administrative expenses related to data processing, billing and supplies, finance and accounting, franchise administration, human resource and labor management, rate analysis, and regulatory compliance;
8. Compensation paid to officers, up to limits set by City rule, based upon total revenues managed by the officers;
9. Utilities;
10. Training and worker safety expenses;
11. Promotion and public education costs;
12. Depreciation and amortization of capital assets, including any necessary standby or backup equipment used on a regular and ongoing basis in the provision of services under this franchise over standardized economic useful lives of the various assets;
13. Outside professional fees and costs, limited to two percentage points of revenue, unless an extraordinary circumstance exists;
14. Interest expense, other than interest paid with respect to route or franchise acquisition, that is not in excess of market rates ordinarily charged for the various types of financing required for purchases or leases;
15. All surcharges, taxes or fees, other than state or federal income taxes or franchise fees that are imposed upon the franchisee or levied by federal, state or local government in connection with franchisee’s provision of collection services under this franchise;
16. Direct write-off charges for bad debts; and
17. Franchise fees assessed by the City.
“Business” means any entity of one or more persons, corporate or otherwise, engaged in commercial, professional, charitable, political, industrial, educational, or other activity that is nonresidential in nature, including public bodies, but not business activities in residential dwellings unless they subscribe to commercial collection services from their franchised hauler.
“Business recycling service customer” means any person who enters into a service agreement with a waste hauler or recycler for business recycling services.
“Commercial” means relating to an entity that is nonresidential in nature.
“Compensation” includes any type of consideration paid for service, including but not limited to rent, the sale of recyclable materials, and any other direct or indirect provisions for payment of money, goods or benefits by property owners, tenants, members, franchisees, and similar persons.
It shall also include any exchange of services, including the hauling of solid waste and waste. Compensation includes the flow of consideration from the person owning or possessing the solid waste or waste to the person collecting, sorting, transporting, or disposing of the solid waste or waste.
“Compostable material” and “compostable” include yard debris, food scraps and food-soiled paper when source separated for controlled biological decomposition. Compostable material shall not include food-soiled paper containing plastic or other materials that inhibit controlled biological decomposition.
“Composting” means the managed process of controlled biological decomposition of source separated organic waste. It does not include composting of mixed solid waste. Compost is the product resulting from the composting process.
“Container” means a receptacle used to store solid waste or recyclable materials that is designed for on-site unloading into a closed-bodied collection vehicle in which the contents of the receptacle are mixed with the contents of other similar receptacles.
“Customer” means the person that enters into an agreement with a franchisee for the collection of solid waste, mixed loads of solid waste and recyclable materials, source separated recyclable materials, and/or compostables.
“Depot” means a facility for transferring containerized solid waste, recyclable materials or yard debris from one mode of transportation to another. The term also refers to a place for receiving source separated recyclable materials.
Disposal Costs. For the purpose of this agreement, “disposal costs” shall mean the total allowable expense incurred by the franchisee for the disposal of solid waste collected under this agreement at a disposal site permitted by the appropriate government authority.
“Disposal site” means land and facilities used for the disposal, handling or transfer of, or resource recovery from solid wastes, including but not limited to dumps, landfills, sludge lagoons, sludge treatment facilities, disposal sites for septic tank pumping or cesspool cleaning service, transfer stations, resource recovery facilities, incinerators for solid waste delivered by the public or by a solid waste collection service, composting plants and land and facilities previously used for solid waste disposal at a land disposal site. Disposal site does not include the following: a facility authorized by a permit issued under ORS 466.005 to 466.385 to store, treat or dispose of both hazardous waste and solid waste; a facility subject to permit requirements of ORS 468B.050 or 468B.053; a landfill site used by the owner or person in control of the premises to dispose of soil, rock, concrete or other similar nondecomposable material, unless the site is used by the public either directly or through a solid waste collection service; or a site operated by a wrecker issued a certificate under ORS 822.110.
“Drop box” means a single receptacle used to store solid waste or recyclable materials that is designed to be removed from the generator’s site on the back of an open truck for unloading at a disposal site, material recovery facility, or other storage or processing facility. The contents of the receptacle are not mixed with the contents of other similar receptacles until delivery to a disposal site.
“Food scraps” means all solid waste from fruits; vegetables; meats; dairy products; fish; shellfish; nuts; seeds; grains; coffee grounds; and other food that results from the distribution; storage; preparation; cooking; handling; selling; or serving of food for human consumption. “Food scraps” includes, but is not limited to, excess, spoiled or unusable food and includes inedible parts commonly associated with food preparation such as pits, shells, bones, and peels. “Food scraps” does not include liquids or large amounts of oils and meats which are collected for rendering, fuel production, or other nondisposal applications, or any food fit for human consumption that has been set aside, stored properly, and is accepted for donation by a charitable organization and any food collected to feed animals in compliance with applicable regulations.
“Force majeure” means acts of God, fire, landslides, lightning, storms, floods, freezing, earthquakes, epidemics, volcanic eruptions, public riots, civil disturbances, acts of the public enemy, wars, blockades, embargoes, or acts of civil or military authority, breakage, explosions or accident to machines or other materials, pipelines or materials, governmental restraint, unavailability of a disposal site, and any other event that could not with reasonable diligence be controlled or prevented by the party affected by the event.
“Franchise” means a contract with the City allowing the use of public rights-of-way to collect and transport solid waste.
“Generator” means a person who last uses a material and then makes it available for disposal or recycling.
“Gross revenue” for any period shall mean:
1. Gross accrual based billings by the franchisee to customers for services provided under this agreement; and
2. The allocated gain on the sale of fixed assets, the depreciation or amortization from which was an allowable expense under the terms of this chapter, and refunds, sales proceeds or other reimbursements for any other expense that was an allowable expense under this chapter; and
3. The accrual based proceeds from the sales of recycled material collected within the franchise.
“Hazardous waste” means solid waste or waste that may, by itself or in combination with other waste, be explosive, poisonous, caustic or toxic, or otherwise dangerous or injurious to human, plant or animal life, as defined by ORS 466.005.
“Infectious waste” means biological waste, cultures and stocks, pathological waste, and sharps, as defined in ORS 459.386.
“Material recovery facility” means a solid waste management facility that separates material for the purpose of recycling from an incoming recoverable mix of nonputrescible waste by using manual and/or mechanical methods and achieves a verifiable minimum 25 percent recovery rate. It also means a facility that primarily accepts previously separated recyclables.
“Multifamily” means any multi-dwelling building or group of buildings that:
1. Contain(s) five or more dwelling units on a single tax lot, such as apartments, condominiums and mobile home parks; and
2. Receives services on a per lot or per building basis, as opposed to a per unit basis. Multifamily complex also includes certified or licensed residential care housing, such as group homes and adult foster care homes.
“Operating margin” for a period shall mean gross revenues minus allowable expenses.
“Organic waste” means materials that:
1. Can be biologically synthesized by plants or animals from simpler substances;
2. Are no longer suited for their intended purpose; and
3. Are readily broken down by biological processes into soil constituents. Examples include, but are not limited to, food waste, yard debris, contaminated paper, and putrescible materials that are generally a source of food for bacteria.
“Per class,” used in reference to the imposition of an infraction, refers to an infraction that applies to more than one customer (e.g., failure to distribute required promotional material to 2,000 customers would constitute one class infraction).
“Per day,” used in reference to the imposition of an infraction, refers to an infraction that may apply to one or more customers on the day the infraction occurs (e.g., an uncovered truck would generate one infraction for each day it operated without a cover).
“Per incident,” used in reference to the imposition of an infraction, refers to a franchisee’s failure to comply with the ordinance on an individual act, occurrence, or customer basis (e.g., failure to deliver two recycling bins to a customer within seven days).
“Processing” means an operation where collected source separated recyclable materials are sorted, graded, cleaned, identified or otherwise prepared for end use markets.
“Putrescible waste” means solid waste containing organic material that can be rapidly decomposed by microorganisms, and which may give rise to foul smelling, offensive products during such decomposition or which is capable of attracting or providing food for birds and potential disease vectors such as rodents and flies.
“Receptacle” means a can, cart, container, drop box, compactor or recycling bin or any other means of containment of solid waste, waste or recyclable materials.
“Recyclable material,” “recyclable,” or “recyclables” means any material that has or retains useful physical, chemical, or biological properties after serving its original purpose(s) or function(s), and is separated from solid waste by the generator or at a material recovery facility.
“Recycling” means any process by which waste materials are transformed into new products in such a manner that the original products may lose their identity.
“Residence” or “residential” means a single-family dwelling or any dwelling having four or fewer units on one tax lot regardless of whether it has solid waste collection in individual carts or containers.
“Self-haul” means the collection and transportation of solid waste from a commercial, multifamily, or residential entity by the generator, owner or occupant of the property, rather than by a third party hired to perform this function.
“Solid waste management” means the management of the accumulation, storage, collection, transportation, treatment, processing and final disposal or utilization of solid waste and waste, or resource recovery from solid waste, and facilities necessary or convenient to those activities. The franchisee may contract with another person to provide service of any type under the franchisee’s service franchise, but the franchisee shall remain ultimately responsible for solid waste and waste management in the franchisee’s franchised service area.
“Solid waste” or “waste”” means all useless or discarded putrescible and nonputrescible materials, including but not limited to garbage, rubbish, refuse, ashes, paper and cardboard, sewage sludge, septic tank and cesspool pumpings or other sludge, useless or discarded commercial, industrial, demolition and construction materials, discarded or abandoned vehicles or parts thereof, discarded home and industrial appliances, manure, vegetable or animal solid and semisolid materials, dead animals and infectious waste as defined in ORS 459.386. “Solid waste” does not include:
1. Source separated, principal recyclable materials, as defined in OAR 340-090-0070 and any others designated by the City, which have been purchased or exchanged for fair market value, unless the City declares a site of uncollected principal recyclable materials to be public nuisance;
2. Hazardous waste as defined in ORS 466.005;
3. Materials used for fertilizer or for other productive purposes or which are salvageable as such materials are used on land in agricultural operations and the growing or harvesting of crops and the raising of animals.
“Source separated materials” means recyclable materials that have been separated by type of recyclable material and removed from the solid waste stream by the person who last used the recyclable materials.
“Unallowable expenses” shall include the following:
1. All charitable and political contributions;
2. Fines and penalties, including without limitation judgments incurred by a franchisee for violation of applicable laws;
3. Payments for services provided by individuals related by blood or marriage or by affiliated companies to a franchisee to the extent that such payments exceed the reasonable cost that would be charged by an independent third party to provide the substantially equivalent service;
4. Accruals for future unknown regulatory changes;
5. Costs associated with purchase of other companies including, but not limited to, employee stock ownership plan payments, goodwill, amortization of goodwill and premiums on key person life insurance policies;
6. Principal or interest payments on the acquisition of solid waste, recyclable materials and yard debris collection routes; the purchase of equipment and/or facilities to the extent that the price includes goodwill or a premium in excess of fair market value at the time of acquisition;
7. State and federal income taxes;
8. Fees paid to a franchisee’s board of directors;
9. Advertising expenses beyond basic collection and recycling promotion and education, and minimal telephone listings under “Garbage Collection” or “Recycling Collection.” Display advertisements and entertainment expenses are specifically excluded;
10. Attorney’s fees and related expenses resulting from:
a. Any judicial proceeding in which the City and a franchisee are adverse parties, unless the franchisee is the prevailing party,
b. Any judicial proceeding in which a franchisee is ruled to be liable due to willful misconduct or gross negligence or in violation of law or regulation;
11. Any other expenses defined as unallowable and approved by the council.
“Yard debris” means grass clippings, leaves, tree and shrub prunings of no greater than four inches in diameter, or similar yard and garden vegetation. Yard debris does not include such items as: dirt, sod, stumps, logs, tree and shrub prunings greater than four inches in diameter, rocks, plastic, animal waste or manure, cat litter, potting soil, prepared food wastes or nonputrescible material. [BC 4.08.030, added by Ordinance No. 4203, 5/6/02; amended by Ordinances No. 4497, 12/15/08, Ordinance No. 4613, 4/2/13, Ordinance No. 4769, 7/16/19, Ordinance No. 4794, 12/1/20]