Sections:

Article 1. Definitions
8.08.010 Definitions

Article 2. Nuisances Affecting Public Health
8.08.020 Nuisances affecting the public health

Article 3. Nuisances Affecting Public Safety
8.08.030 Attractive nuisances
8.08.040 Noxious vegetation
8.08.050 Trash and Animal Attractants
8.08.060 Trees
8.08.070 Fences
8.08.075 Deteriorated Buildings
8.08.076 Dangerous Buildings

Article 4. Nuisances Affecting the Public Peace
8.08.080 Radio and television interference
8.08.085 Unnecessary Noise
8.08.090 Notices and advertisements
8.08.100 Junk
8.08.105 Miscellaneous Offenses

Article 5. Unenumerated Nuisances
8.08.110 Unenumerated nuisances

Article 6. Abatement Procedure
8.08.120 Notice
8.08.130 Abatement by the person responsible
8.08.140 Joint responsibility
8.08.150 Abatement by the City
8.08.160 Assessment of costs

Article 7. General
8.08.170 Summary abatement
8.08.180 Violation - Penalty
8.08.190 Separate violations

Article 1. Definitions

8.08.010 Definitions.
    "Abandoned vehicle" means any vehicle which reasonably appears to be inoperative, wrecked, discarded, abandoned or totally or partially dismantled.
    "Animal" means mammals, fowl, reptiles and fish.
    "Debris" means the remains of something broken down or destroyed, including, but not limited to: scrap metal, paper, plastic or wood; pieces of asphalt, concrete, lumber or other building supplies; yard clippings or cuttings of plant material; broken empty glass, plastic or metal containers; broken furniture; or other putrescible or nonputrescible wastes and discard materials.
    "Development" means any change to real property, including, but not limited to, structures, filling, grading or excavating.
    "Domestic animal" means an animal conditioned so as to live and breed in a tame environment and normally amenable to human habitats.
    "Dwelling Unit" means a group of one or more rooms designed or intended for use as a residence, including a single-family home, a townhouse, a duplex, a condominium and an apartment.
    "Explosive" means a chemical compound, mixture or device that is used or intended to be used for the purpose of producing a chemical reaction resulting in a substantially instantaneous release of gas and heat, including but not limited to dynamite, blasting powder, nitroglycerine, blasting caps and nitrojelly, but excluding fireworks as defined by State law, black powder, smokeless powder, small arms ammunition and small arms ammunition primer.
    "Garbage" means food waste, refuse, rubbish, trash or other useless material.
    "Infraction Complaint" means the document which, when properly served upon the alleged ordinance violator, brings the matter before the appropriate court for resolution.
    "Inoperable Vehicle" means a unit designed and built to transport people or objects from one place to another which:
    has been left on private property for more than 30 days; and
    has broken or missing window(s), or an engine that will not run, or lacks a transmission, or is missing tire(s) or wheel(s); or
    is unlicensed for the current year; constitutes a presumption that the vehicle is inoperable.
    "Intersection" means the area embraced within the prolongation or connection of the lateral curblines or, if non, then of the lateral boundary lines of two or more streets or highways which join one another at an angle, whether or not one street or highway crosses the other.
    "Junk" means broken, discarded, or accumulated objects, including but not limited to: appliances, building supplies, furniture, vehicles, or parts of vehicles.
    "Liquid waste" means waste oil, septic tank pumping, liquid industrial wastes or other similar material.
    "Livestock" means horses, mules, cattle, sheep, goats, donkeys, swine, or any animal of similar size or larger maintained commercially or otherwise. This definition will also include domestic fowl such as chickens, turkeys, ducks, geese or other fowl raised for meat or eggs.
    "Nuisance" means any annoying, unpleasant or obnoxious condition or practice causing or capable of causing an unreasonable threat to the public health, safety and welfare; provided, that anything defined as a nuisance by City ordinance shall be considered a nuisance.
    "Owner" means any person having a legal interest in real or personal property or any person in possession or control of real or personal property, and excludes any person whose interest is for security only.
    "Person" means a natural person, firm, partnership, association or corporation.
    "Person" includes (A) The owner, title holder, contract seller, or contract buyer of the land upon which the violation is occurring, is equally responsible for the nuisance violation, as is the possessor, user of the land, or the person who is taking the action, conduct or omission which constitutes a nuisance. (B) The United States or agencies thereof, any state, public or private corporation, local governmental unit, public agency, individual, partnership, association, firm, trust, estate or any other legal entity, contractor, subcontractor or combination thereof.
    "Person associated with a property" means any person who, on the occasion of a nuisance activity, has entered, patronized, visited, or attempted to enter, patronize or visit, or waited to enter, patronize or visit a property or person present on a property.
    "Person in charge of property" means an agent, occupant, lessee, contract purchaser or other person having possession or control of property or the supervision of any construction project.
    "Person Responsible". The person responsible for abating a nuisance shall include:
    1. The owner;
    2. The person in charge of property, as defined in this section;
    3. The person who caused to come into or continue in existence a nuisance as defined in this chapter or another ordinance of this City.
    "Place or property" means any premises, room, house, building or structure, or any separate part or portion thereof, whether permanent or not, or the ground itself.
    "Public place" means a building, way, place or accommodation, whether publicly or privately owned, open and available to the general public.
    "Public sidewalk" means a paved walkway within the public right-of-way or on publicly owned property.
    "Radioactive substance" means a substance which omits radiation in the form of gamma rays, X-rays, alpha particles, beta particles, neutrons, protons, high-speed electrons or other nuclear particles, but radiation does not include sound waves, radio waves, visible light, infrared light or ultra-violet light.
    "Rubbish" means glass, metal, paper, wood, plastics, or other nonputrescible solid waste.
    "Sewage sludge" means residual waste of sewage treatment plants, consisting of digested organic waste and indigestible solids.
    "Sidewalk" means that portion of a public right-of-way, other than the roadway, set apart by curbs, barriers, markings or other delineation for pedestrian travel.
    "Solid waste" means all putrescible and nonputrescible wastes, whether in solid or liquid form, except wastes produced by the human body, liquid-carried industrial waste or sewage or sewage hauled as an incidental part of septic tank or cesspool cleaning service, and includes garbage, rubbish, ashes, fill dirt, sewage sludge, street refuse, industrial wastes, swill, demolition and used construction materials, abandoned vehicles or parts thereof, discarded home or industrial appliances, manure, vegetable or animal solids and semisolid waste, dead animals and other discarded solid materials.
    "Street" means the portion of a road ordinarily used for vehicular travel, including the shoulder, regardless of whether it is paved, graveled or dirt.
    "Structure" means anything constructed or built, an edifice or building of any kind or any piece of works artificially built up or composed of parts joined together in some definite manner.
    "Vector" means any insect organism, including but not limited to flies, fleas, lice, ticks, fly maggots and mosquito larvae, capable of bearing or carrying a disease transmittable to human beings.
    "Vehicle" means any device which is designed or used for transporting people, goods or property upon a public street or roadway, including but not limited to a body, engine, transmission, frame or other major parts, but does not include a device propelled by human power, such as a bicycle, or a device operated exclusively upon fixed rails or tracks.

Article 2. Nuisances Affecting Public Health

8.08.020 Nuisances affecting the public health
No person shall cause, or permit on property owned or controlled by him or her, a nuisance affecting public health. The following are nuisances affecting the public health and may be abated as provided in this chapter:
    A. Privies. An open vault or privy constructed and maintained within the City, except those constructed or maintained in connection with construction projects in accordance with the Oregon State Board of Health regulations.
    B. Debris. Accumulations of debris, rubbish, manure and other refuse that are not removed within a reasonable time and that affect the health of the City.
    C. Stagnant Water. Stagnant water which affords a breeding place for mosquitoes and other insect pests.
    D. Water Pollution. Pollution of a body of water, well, spring, stream or drainage ditch by sewage, industrial wastes or other substances placed in or near the water in a manner that will cause harmful material to pollute the water.
    E. Food. Decayed or unwholesome food which is offered for human consumption.
    F. Odor. Premises which are in such a state or condition as to cause an offensive odor, or which are in an unsanitary condition.
    G. Surface Drainage. Drainage of liquid wastes from private premises.
    H. Cesspools. Cesspools or septic tanks which are in an unsanitary condition or which cause an offensive odor.
    I. Plastics, oil, grease or petroleum products allowed to be introduced into the storm or sewer system.
    J. Animal carcasses. The deposition of an animal carcass or part thereof; of any excrement or sewage; or industrial waste; or any putrid, nauseous, decaying, deleterious, offensive, or dangerous substance in a stream, well, spring, brook, ditch, pond, river, or other inland waters within the City; or the placing of such substances in such position that high water or natural seepage will carry the same into such waters.
    K. Slaughterhouse. A pigsty, slaughterhouse or tannery.
    L. Housing of animals. A barn, stable, corral, pen, chicken coop, rabbit hutch, or other place where animals are cared or housed which is in an unsanitary condition or creates a noisome or offensive odor.
    M. Water. The sufferance or allowance by the owner or person in charge of property that water from a roof, ditch, canal, flume, reservoir, pipeline, or conduit above or below ground should leak, seep, flow, overflow, run back or through, or escape or run upon, over or under any premises, public street, alley, sidewalk, or other public property.
    N. Accumulation, collection or storage of solid waste without prior approval of lawful authority, unless the person is licensed thereby to operate a business specifically for those purposes.
    O. Any property, whether vacant or improved, including any building, residence, structure or any accumulation of any materials which is infested by vectors or rodents.
    P. Any explosive or radioactive substance as herein defined, unless the possession is authorized by law.

Article 3. Nuisances Affecting Public Safety

8.08.030 Attractive nuisances.
    A. No owner or person in charge of property shall permit thereon:
    1. Unguarded machinery, equipment or other devices which are attractive, dangerous and accessible to children;
    2. Lumber, logs or piling placed or stored in a manner so as to be attractive, dangerous and accessible to children;
    3. An open pit, quarry, cistern or other excavation without safeguards or barriers to prevent such places from being used by children.
    B. This section shall not apply to authorized construction projects with reasonable safeguards to prevent injury or death to playing children.

8.08.040 Noxious vegetation
No owner or person in charge of property shall permit weeds or other noxious vegetation to grow upon his or her property. It shall be the duty of an owner or person in charge of property to cut down or to destroy grass, shrubbery, brush, bushes, weeds or other noxious vegetation as often as needed to prevent them from becoming unsightly, from becoming a fire hazard or, in the case of weeds or other noxious vegetation, from maturing or from going to seed.
    Noxious weeds include all weeds listed by the State Department of Agriculture as restricted or prohibited noxious weeds, grasses which offer a vector or rodent harborage, contribute noxious pollens to the atmosphere, constitute a fire hazard or unreasonably interfere with the use and enjoyment of abutting public or private property.

8.08.050 Trash and Animal Attractants
No person shall deposit upon public or private property any kind of rubbish, trash, debris, refuse or any substance that would mar the appearance, create a stench or fire hazard, detract from the cleanliness or safety of the property or would be likely to injure a person, animal or vehicle traveling upon a public way.
    No person shall deposit trash, rubbish, debris, or refuse which was generated from a residence or business into public trash receptacles in City parks.
    No person shall store or hold trash in such a manner which enables animals, wild or domestic, to scatter trash. No person shall scatter or deposit any food or other attractants on public or private property with the intent of attracting and /or feeding wild animals, including but not limited to bears, raccoons, and deer. This section shall not apply to bird seed held in receptacles which are reasonably designed to avoid access by wild animals such as bears, raccoons, and deer.

8.08.060 Trees
    A. No owner or person in charge of property that abuts upon a street or public sidewalk shall permit trees or bushes on his or her property to interfere with street or sidewalk traffic. It shall be the duty of an owner or person in charge of property that abuts upon a street or public sidewalk to keep all trees and bushes on his or her premises, including the adjoining parking strip, trimmed to a height of not less than eight feet above the sidewalk and not less than ten (10) feet above the roadway.
    B. No owner or person in charge of property shall allow to stand a dead or decaying tree that is a hazard to the public or to persons or property on or near the property.

8.08.070 Fences
    A. No owner or person in charge of property shall construct or maintain a barbed-wire fence thereon, or permit barbed wire to remain as part of a fence along a sidewalk or public way; except such wire may be placed above the top of other fencing not less than six feet, six inches high.
    B. No owner or person in charge of property shall construct, maintain or operate an electric fence along a sidewalk or public way or along the adjoining property line of another person.

8.08.075 Deteriorated Buildings
    1. For the purposes of this Section "deteriorated building" means a premises that is in one or more of the following conditions:
    A. Dilapidated, defective, unsightly or in such a condition of deterioration or disrepair that it causes appreciable harm or is materially detrimental to adjacent or proximal properties or improvements; or
    B. Out of harmony or conformity with the repair, maintenance or landscaping standards of adjacent or proximal properties or improvements to the extent it causes substantial diminution in the enjoyment, use or property value of such adjacent or proximal properties or improvements; or
    C. In such a dilapidated, deteriorated or condition of disrepair that it constitutes a materially harmful or detrimental risk to the health, safety or welfare of the public who are on or near the premises.
    2. No owner or person in charge of property shall permit a deteriorated building, as defined in this Section, to exist on the property.
    3. Unless waived by the City Council in its discretion, no person shall rent, lease, reside in or conduct business within a building which has been declared to be a deteriorated building pursuant to the provisions of this Section during any period prior to abatement of the deteriorated condition.

8.08.076 Dangerous Buildings
    1. For the purposes of this Section "dangerous building" means any of the following:
    A. Any structure, building, building appendage, or building service equipment which is determined by the building official to be deficient in terms of life safety, including but not limited to, inadequate exitway facilities. The term "inadequate exitway facilities," for the purpose of this definition, means exit facilities which did not conform with all applicable laws at the time of their construction, which have not been properly maintained in good condition, or which have not been properly modified to cope with any increase in any occupant load, any alteration or addition to the building, or change in occupancy of the building.
    B. Any structure, building, or building appendage which, because of improper construction, damage, structural weakness, or deterioration by reason of lack or want of maintenance and proper repair, is structurally unsound and which could lead to its partial or entire collapse so as to endanger other properties or human life. These conditions may include, in addition to others:
    1. Deteriorated or inadequate foundations;
    2. Defective or deteriorated flooring or floor supports;
    3. Flooring or floor supports of insufficient size to safely carry imposed loads;
    4. Members of walls, partitions or other vertical supports that split, lean, list or buckle due to defective materials, methods of construction or deterioration;
    5. Members of walls, partitions or other vertical supports which are of insufficient size to safely carry imposed loads;
    6. Members of ceilings, roofs, ceiling and roof supports or other horizontal members which sag, split or buckle, or which are of insufficient size to safely carry imposed loads.
    7. Members of ceilings, roofs, ceiling and roof supports or other horizontal members which sag, split or buckle, due to defective material, methods of construction or deterioration;
    8. Fireplaces or chimneys which list, bulge or settle, due to defective material, methods of construction or deterioration;
    9. Fireplaces or chimneys which are of insufficient size or strength to safely carry imposed loads.
    C. Any building appendage or service equipment which, because of improper construction, deterioration, improper installation, damage, or for the want of proper repairs, such as defective wiring or equipment, defective gas connection, defective heating apparatus, defective chimney, or for any other cause or reason, is especially liable to cause fire, electrical shock or asphyxiation.
    D. Any building, structure, or portion hereof, containing any combustible or explosive material, wood, paper, trash, rubbish, rags, waste, oils, gasoline or flammable substance of any kind especially liable to cause fire or damage to the premises or human life, and which is not maintained in accordance with law.
    E. Any building, structure, or portion thereof, which is maintained in a filthy or unsanitary condition, such as through an accumulation of garbage, human or animal waste, decaying animal or vegetable matter, wood, paper, trash, rubbish or debris in such a manner so as to attract rodents or be unhealthful and especially liable to cause a spread of fire or contagious or infectious disease.
    F. Any building, structure or portion thereof, which had not been provided with the fire-resistive construction or fire-extinguishing systems or equipment required by law, or, if built with fire-resistive construction and fire-extinguishing systems or equipment, has not been properly maintained or improved to comply with any increase in occupant load, any alteration or addition to the building, or any change in occupancy of the building.
    G. Any building or structure which contains any combination of unsafe conditions or items, including open and abandoned buildings, which could endanger other property or human life.
    2. No owner or person in charge of property shall permit a dangerous building to exist on the property.
    3. No person shall rent, lease, reside in or conduct business within a building which had been declared to be a dangerous building pursuant to the provisions of this Section during any period prior to abatement of the dangerous condition.

Article 4. Nuisances Affecting the Public Peace

8.08.080 Radio and television interference
    A. No person shall operate or use an electrical, mechanical or other device, apparatus, instrument or machine that causes reasonably preventable interference with radio or television reception by a radio or television receiver of good engineering design.
    B. This section does not apply to devices licensed, approved and operated under the rules and regulations of the Federal Communications Commission.

8.08.085 Unnecessary noise
No person shall create or assist in creating or permit the continuance of unreasonable noise in the City of Waldport. The following enumeration of violations of this section is not exclusive but is illustrative of some unreasonable noises:
    A. The keeping of an animal which by loud and frequent or continued noise disturbs the comfort and repose of a person in the vicinity.
    B. The use of an engine, thing or device which is so loaded, out of repair, or operated in such a manner as to create a loud or unnecessary grating, grinding, rattling or other noise. The use of any engine, including, but not limited to, those powering lawnmowers or other tools, between the hours of ten p.m. and seven a.m. when such use creates unreasonable noise causing inconvenience, annoyance or alarm to another; provided, however, that this section shall not apply to operating lawnmowing equipment on any property used for golf course purposes.
    C. The use of a mechanical device operated by compressed air, steam, or otherwise, unless the noise created thereby is effectively muffled.
    D. The construction, including excavation, demolition, alteration or repair of a building other than between the hours of seven a.m. and six p.m., except upon special permit granted by the City.
    E. The use or operation of a loudspeaker or sound-amplifying device so loudly as to disturb persons in the vicinity thereof, or in such manner as renders the same a public nuisance; provided, however, that upon application to the Council, permits may be granted to responsible persons or organizations to broadcast programs of music, news, speeches or general entertainment.

8.08.090 Notices and advertisements.
    A. No person shall scatter, distribute or cause to be scattered or distributed on public or private property any placards, advertisements or other similar material.
    B. This section does not prohibit the distribution of advertising material during a parade or approved public gathering.

8.08.100 Junk.
    A. No person shall keep any junk outdoors on any street, lot or premises, or in a building that is not wholly or entirely enclosed, except doors used for ingress and egress.
    B. The term "junk," as used in this section, includes all old motor vehicles not in regular operation or use, or not equipped as required by Chapter 483 of Oregon Motor Vehicle Laws pertaining to equipment on vehicles; and further includes all abandoned motor vehicles, old motor vehicle parts, old machinery, old machinery parts, old appliances or parts thereof, old scrap iron or other scrap metal, old glass, paper, lumber, wood or any other waste, trash, garbage or discarded material.
    C. This section shall not apply to junk kept in a duly licensed junkyard or automobile wrecking house.

8.08.105 Miscellaneous Offenses:
    A. Discharge of weapons. Except at firing ranges approved by the chief of police or other law enforcement agency, no person other than a peace officer shall fire or discharge a gun, including spring or air-actuated pellet guns, air guns or BB guns, or other weapon which propels a projectile by use of gunpowder or other explosive, jet or rocket propulsion, except as otherwise provided by ORS 166.170.
    B. Fireworks. The following sections of the Oregon Fireworks Law, together with all acts and amendments applicable to cities which are now or hereafter enacted, are adopted by reference and made a part of this chapter: ORS 480.110, 480.120, 480.130, 480.140(1), 480.150 and 480.170.
    C. Minors - Places of amusement.
    1. No person under eighteen (18) years of age shall enter, visit or loiter in or about a public cardroom, poolroom or billiard parlor.
    2. No person operating or assisting in the operation of a public cardroom, poolroom, billiard parlor or public place of amusement shall permit a person under eighteen (18) years of age to engage therein in any game of cards, pool, billiards, dice, darts, pinball; games of like character; or games of chance, either for amusement or otherwise.
    3. This section shall not apply to the playing of billiards or pool in a recreational facility. As used in this section, a "recreational facility" means an area, enclosure or room in which facilities are offered to the public to play billiards or pool for amusement only, and:
    a. Which is clean, adequately supervised, adequately lighted and ventilated;
    b. In which no alcoholic liquor is sold or consumed; and
    c. Access to which does not require passing through a room where alcoholic liquor is sold or consumed.
    D. Open cellar doors or grates. No owner or person in charge of property shall permit a cellar door or grate located in or upon a sidewalk or public pathway to remain open except when such entrance is being used and, when being used, there are adequate safeguards for pedestrians using the sidewalk.
    E. Obstruction of fire hydrants. No owner of property adjacent to a street upon which is located a fire hydrant shall place or maintain within eight feet of such fire hydrant any bush, shrub or tree, or other obstruction.
    F. Vending goods on streets or sidewalks. No person shall use or occupy any portion of a street or sidewalk for the purpose of vending goods, wares or merchandise by public outcry or otherwise, unless a license has first been obtained.
    G. Begging. No person shall accost another in a public place for the purpose of soliciting alms.
    H. Lodging. No person shall lodge in a car, outbuilding or other place not intended for that purpose without permission of the owner or person entitled to the possession thereof.
    I. Posted notices. No person shall affix a placard, bill or poster upon personal or real property, private or public, without first obtaining permission from the owner thereof or from the proper public authority.
    J. Hauling. No person shall haul sand, gravel, rock, wood or other substances in any vehicle or conveyance that is so constructed or in such condition as to allow the sand, gravel, rock, wood or other substance to fall on, litter or damage the public streets of the City.
    K. Soliciting or confederating to violate ordinance. No person shall solicit, aid, abet, employ or engage another, or confederate with another to violate a provision of this chapter or any other ordinance of the City.
    L. Criminal Trespass/Criminal Mischief. Any person who commits the offense(s) of Criminal Trespass and/or Criminal Mischief as defined by ORS 164.243 - ORS 164.265 and ORS 164.345 - ORS 164.365, as amended, may be cited to the Waldport Municipal Court. If cited to said court and convicted, of any said offense(s) the conviction(s) shall be classified and penalized within the limits of the civil infraction schedule as set forth in Section 1.08.070 of the Municipal Code of the City of Waldport at the sole discretion of the Municipal Court Judge.
    Section 9.12 (Parental Responsibility) of the Municipal Code shall apply fully to all provisions of this section.

Article 5. Unenumerated Nuisances

8.08.110 Unenumerated nuisances
    A. The acts, conditions or objects specifically enumerated and defined in Sections 8.08.020 to 8.08.100 of this chapter are declared public nuisances; and such acts, conditions or objects may be abated by any of the procedures set forth in Sections 8.08.120 to 8.08.160 of this chapter.
    B. In addition to the nuisances specifically enumerated within this chapter, every other thing, substance or act which is determined by the Council to be injurious or detrimental to the public health, safety or welfare of the City is declared a nuisance and may be abated as provided in this chapter.

Article 6. Abatement Procedure

8.08.120 Notice.
    A. Upon determination by the Council, or the City Manager or designee that a nuisance exists, the City Manager or designee shall cause a notice to be posted on the premises or at the site of the nuisance, directing the person responsible to abate the nuisance.
    B. At the time of posting, the City Recorder shall cause a copy of the notice to be forwarded by registered or certified mail, postage prepaid, to the person responsible at his or her last known address.
    C. The notice to abate shall contain:
    1. A description of the real property, by street address or otherwise, on which the nuisance exists;
    2. A direction to abate the nuisance within ten (10) days from the date of the notice;
    3. A description of the nuisance;
    4. A statement that, unless the nuisance is removed, the City may abate the nuisance, and the cost of abatement charged to the person responsible;
    5. A statement that failure to abate a nuisance may warrant imposition of a fine or jail sentence;
    6. A statement that the person responsible may protest the order to abate by giving notice to the City Recorder within ten (10) days from the date of the notice.
    D. Upon completion of the posting and mailing, the persons posting and mailing shall execute and file certificates stating the date and place of the mailing and posting, respectively.
    E. An error in the name or address of the person responsible shall not make the notice void, and in such case the posted notice shall be sufficient.

8.08.130 Abatement by the person responsible
    A. Within ten (10) days after the posting and mailing of such notice, as provided in Section 8.08.120 of this chapter, the person responsible shall remove the nuisance or show that no nuisance exists.
    B. A person responsible, protesting that no nuisance exists, shall file with the City Recorder a written statement which shall specify the basis for so protesting.
    C. The statement shall be referred to the City Council as a part of its regular agenda at its next succeeding meeting. At the time set for consideration of the abatement, the person protesting may appear and be heard by the Council; and the Council shall determine whether or not a nuisance in fact exists; and the determination shall be entered in the official minutes of the Council. Council determination shall be required only in those cases where a written statement has been filed as provided.
    D. If the Council determines that a nuisance does in fact exist, the person responsible shall, within ten (10) days after the Council determination, abate the nuisance.

8.08.140 Joint responsibility
If more than one person is a person responsible, they shall be jointly and severally liable for abating the nuisance, or for the costs incurred by the City in abating the nuisance.

8.08.150 Abatement by the City
    A. If, within the time allowed, the nuisance has not been abated by the person responsible, the City may cause the nuisance to be abated.
    B. Subject to Subsection D, below, of this Section, the City Manager or designee charged with abatement of the nuisance shall have the right at reasonable times to enter into or upon property to investigate or cause the removal of a nuisance.
    C. The City Recorder shall keep an accurate record of the expense incurred by the City in physically abating the nuisance, and shall include therein a charge of ten dollars ($10.00) or ten (10) percent of those expenses (whichever is the greater) for administrative overhead.
    D. No property site shall be entered on or premise entered into by the person charged with investigation or abatement of the nuisance without either the consent of the owner or person in control of the premises if other than the owner or by obtaining an administrative search warrant from the Judge of the City’s Municipal Court or other court of competent jurisdiction. In addition, such person shall have recourse to any other remedy provided by law to secure entry to investigate or abate the nuisance.

8.08.160 Assessment of costs
    A. The City Manager or designee, by registered or certified mail, postage prepaid, shall forward to the person responsible a notice stating:
    1. The total cost of abatement, including the administrative overhead;
    2. That the cost as indicated will be assessed to and become a lien against the property, unless paid within thirty (30) days from the date of the notice;
    3. That if the person responsible objects to the cost of the abatement as indicated, he or she may file a notice of objection with the City Recorder not more than ten (10) days from the date of the notice.
    B. Upon the expiration of ten (10) days after the date of the notice, the Council, in the regular course of business, shall hear and determine the objections to the costs assessed.
    C. If the costs of the abatement are not paid within thirty (30) days from the date of the notice, an assessment of the costs, as stated or as determined by the Council, shall be made by resolution and shall thereupon be entered in the docket of City liens; and upon such entry being made, shall constitute a lien upon the property from which the nuisance was removed or abated.
    D. The lien shall be enforced in the same manner as liens for street improvements are enforced, and shall bear interest at the rate of seven percent per annum. The interest shall commence to run from date of the entry of the lien in the lien docket.
    E. An error in the name of the person responsible shall not void the assessment, nor will a failure to receive the notice of the proposed assessment render the assessment void; but it shall remain a valid lien against the property.

Article 7. General

8.08.170 Summary abatement

The procedure provided by this chapter is not exclusive, but is in addition to procedure provided by other laws, ordinances, or Code sections; and the City Manager or designee may proceed summarily to abate a health or other nuisance which unmistakably exists, and which imminently endangers human life or property.

8.08.180 Violation - Penalty

Any person who violates any of the provisions of this chapter, as now constituted or hereafter amended or revised, commits a Class A civil infraction and shall be subject to the procedures and penalties of Chapter 1.08 of this code, as now constituted or hereafter amended or revised.

8.08.190 Separate violations.
    A. Each day's violation of a provision of this chapter constitutes a separate offense.
    B. The abatement of a nuisance is not a penalty for violating this chapter, but is an additional remedy. The imposition of a penalty does not relieve a person of the duty to abate the nuisance; however, abatement of a nuisance within ten (10) days of the date of notice to abate, or if a written protest has been filed, then abatement within ten (10) days of Council determination that a nuisance exists, will relieve the person responsible from the imposition of any penalty under Section 8.08.180 of this chapter. Upon written request and at the discretion of the City Manager, the 10-day time period may be extended. (Ord. 712, 2006; Ord. 715, 2007)

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Article 1. General Provisions

8.12.010 Short title.
This chapter shall be known as the "solid waste management ordinance."

8.12.020 Purposes, policy and scope.
It is declared to be the public policy of the City of Waldport to regulate solid waste management to:
    A. Insure safe, efficient, economical and comprehensive solid waste service;
    B. Insure fair and equitable consumer rates and to prohibit rate preferences or other practices that might be discriminatory;
    C. Eliminate overlapping service and thereby to increase efficiency and to decrease truck noise, street wear, energy waste, air pollution and public inconvenience;
    D. Protect public health and the environment;
    E. Protect against improper and dangerous handling of hazardous wastes.

8.12.030 Definitions.
    "City" means the City of Waldport, Oregon.
    "Council" means the City Council of the City of Waldport.
    "Franchisee" means Dahl Disposal Service, Inc., or a subcontractor to Dahl Disposal Service, Inc.
    "Hazardous waste" means:
    1. Defined as hazardous waste by or pursuant to ORS Chapter 459; or
    2. Defined as hazardous waste by another governmental agency or unit having jurisdiction; or
    3. Found by the franchisee to be hazardous to service workers, to service equipment, or to the public.
    "Person" means any individual, partnership, association, corporation, trust, firm, estate, joint venture or other private legal entity or any public agency.
    "Resource recovery" means the process of obtaining useful material or energy resources from solid waste, including reuse, recycling and other materials recovery or energy recovery of or from solid waste.
    "Service" means the collection, compaction (through either mechanical or manual means), transportation or disposal of or resource recovery from solid waste.
    "Solid waste" means all solid waste or semi-solid waste including without limitation: garbage, rubbish, refuse, trash, ashes or swill, newsprint or waste paper, corrugated or cardboard; grass clippings, compost, residential, commercial, industrial, governmental or institutional wastes, discarded home or industrial appliances, equipment or furniture, vehicle parts or tires, vegetable or animal wastes, and other wastes.
    "Solid waste disposal supervisor" a member of the City Council who has been appointed by the City Council to perform the supervisory functions set forth in this chapter.
    "Solid waste management" means the prevention of or reduction of solid waste; management of the storage, collection, transportation, treatment, utilization, compaction (either manually or through mechanical means), processing and final disposal of solid waste; or resource recovery from solid waste; and facilities necessary or convenient to such activities.
    "Waste" means material that is no longer directly useable by the source, generator or producer of the material and which is to be disposed of or to be resource recovered by another person.
    1. The fact that all or any part of the material may have value and thus be recovered does not remove them from this definition.
    2. The fact that the source, generator or producer of materials has separated or segregated such material from other wastes does not remove the materials from this definition.

Article 2. Franchise and Exemptions

8.12.040 Persons and practices exempt from franchise.
Nothing in this chapter requires a franchise for the following businesses or practices:
    A. The collection, transportation and reuse of repairable or cleanable discards by a private charitable organization regularly engaged in such business or activity including, without limitation, Salvation Army, St. Vincent De Paul, Goodwill and similar organizations.
    B. The collection, transportation and reuse or recycling of totally source separated recyclable materials or operation of a collection center for totally source separated recyclable materials by a religious, charitable, benevolent or fraternal organization, which organization was not organized or is not operated for any solid waste management purpose and which organization is using the activity for fund raising, including, without limitation, scouts and churches.
    C. The collection, transportation or redemption of returnable beverage containers under ORS Chapter 459 and that portion thereof commonly known as the "Bottle Bill."
    D. The generator or producer who transports and disposes of waste created as an incidental part of regularly carrying on the business or service of auto wrecking, to the extent licensed by the State of Oregon; gardening, park maintenance or landscaping service; street sweeping; auto body recovery; or septic tank pumping or sludge collection.
    E. The transportation by a person of solid waste generated or produced by such person to a disposal site, resource recovery site or market. In the case of nonowner occupied property, the waste is generated or produced and is owned by the occupant and not by the landlord, property owner, or association of property owners, or the agent of such landlord, property owner or association.
    F. The purchase of totally source separated recyclables for fair market value.
    G. The providing of service for hazardous wastes.
    H. Any other practice, business or activity which is withdrawn by the Council after public hearing and upon a resolution and order finding the withdrawal has no substantial impact on service, consumer rates or the purposes stated in 8.12.020 of this chapter. A copy of any such order shall be attached to and incorporated in this chapter.

8.12.050 Exceptions to provisions.
The Council may authorize exceptions to provisions of this chapter, provided the following requirements have been met:
    A. Applicant shall obtain an application form and file a completed application with the City Recorder.
    B. Upon thirty (30) days written notice to the applicant and the franchisee, a public hearing shall be held before the Council.
    C. The City Recorder shall provide information and recommendations to the Council to assist it in reaching a determination.
    D. The Council shall hold a public hearing and make findings. The Council's decision shall be based on the following:
    1. The need for the proposed service;
    2. The ability of franchisee to provide the required service unless the service was being supplied on the effective date of the ordinance codified in this chapter;
    3. Whether there are unnecessary or unreasonable hardships, or practical difficulties which can be relieved only by granting an exception;
    4. Whether there are exceptional circumstances or conditions applying to the land, buildings, or use referred to in the application, which circumstances or conditions do not apply generally to other land, buildings, or similar uses;
    5. Whether the granting of the application will not be materially detrimental or have a substantial impact on service, consumer rates, or the franchisee;
    6. Whether the applicant has the necessary equipment and/or personnel to provide adequate service.
    E. An order by resolution shall be drawn setting forth the decision of the Council and shall be distributed to the applicant and the franchisee. The order may specify any conditions or limitations deemed necessary by the Council to carry out the purposes of this chapter.

8.12.060 Activity prohibited.
Unless exempted under Section 8.12.040, excepted under Section 8.12.050, or franchised pursuant to Section 8.12.070 of this chapter, no person shall provide service or offer to provide or advertise for performance of such service within the City limits.

8.12.070 Grant of exclusive franchise.
The City grants to Dahl Disposal Service, Inc. the exclusive right, privilege and franchise to provide service within the City limits as of the date of this chapter and within any area that may hereafter be annexed to the City and, for that purpose, to utilize the streets and facilities of the City. No person other than the franchisee shall provide or offer to provide solid waste management or service for compensation.

8.12.080 Franchise term.
The rights, privileges and franchise granted by this chapter shall begin on the effective date of this chapter and shall be considered as a continuing ten-year franchise. Beginning on April 5th of each year, the franchise will be considered renewed for an additional ten-year term unless at least thirty (30) days prior to April 5th of any year, the Council shall notify the franchisee in writing of intent to terminate the franchise. Upon the giving of such notice of termination, the franchisee shall have a franchise which will terminate ten years from the date of the notice of termination. The Council may later extend the term or reinstate continuing renewal upon mutual agreement with the franchisee. Nothing in this section restricts the Council from suspending, modifying or revoking the franchise for cause pursuant to Section 8.12.120 of this chapter.

8.12.090 Franchise fee.
In consideration of the franchise granted by this ordinance, the franchisee shall furnish the City a certified statement of gross revenue for each calendar year quarter from service within the City as required by this chapter and shall pay to the City three percent (3%) of that gross revenue. That statement shall include the number of residential, commercial and other services performed by franchisee and the revenue derived from those services. The franchise fee shall be payable on a quarterly basis on or before the fifteenth of each month following a calendar year quarter.
    As further compensation, the franchisee shall remove all solid waste from all administrative buildings, library, and other City-owned litter and solid waste receptacles; provided, however, that the City shall pay franchisee its actual costs of removal and disposal of solid waste generated at City's wastewater treatment plant (other than the office building).
    The amount of the franchise fee and further compensation shall be subject to review and adjustment upon expiration of each five year period commencing on the date the ordinance codified in this chapter is adopted. Franchisee and City shall commence a review of the franchise fee and further compensation not later than six months prior to the expiration of each five year period. All consideration paid by franchisee shall be in addition to any business license or other fees assessed by the City.

8.12.100 Franchisee responsibility.
    A. The franchisee agrees to:
    1. As permitted to by Federal, State and County law or ordinance, maintain a suitable dump for the disposal of solid waste and to keep the same in presentable and sanitary condition at all times and to comply with and care for the same in accordance with all sanitary regulations which may now or hereafter be put into effect by the County, State or Federal government.
    2. Provide and keep in force public liability insurance in the amount of not less than one million dollars ($1,000,000.00) for injury to a single person, two million dollars ($2,000,000.00) to a group of persons and one million dollars ($1,000,000.00) property damage, or other amounts as may be established by law as the maximum liability of the City, all relating to a single occurrence, which shall be evidenced by a certificate of insurance filed with the City Recorder including the City as additional insured.
    3. Within thirty (30) days after the effective date of the ordinance codified in this chapter, file with the City Recorder a written acceptance of this franchise by endorsing acceptance on a copy of the ordinance codified in this chapter.
    4. Provide sufficient collection vehicles, containers, facilities, personnel and finances to provide all types of the necessary service or subcontract with others to provide such service.
    5. Respond to any complaint on service.
    6. Provide weekly service in residential areas and daily service to commercial areas on weekdays.
    7. The City of Waldport shall be allowed to use the Waldport Transfer Station at all times and without charge.
    8. To maintain at his or her own expense a telephone at all times.
    B. Where a new resource recovery service or a continuation of or a substantial expansion of an existing service is proposed by the City or another person other than the franchisee:
    1. Prior written notice of the proposed service shall be given to franchisee by the City Recorder at least thirty (30) days prior to consideration by the Council.
    2. The Council may on its own motion and shall upon request of the franchisee or applicant for an exception hold a public hearing on the proposed service, costs and justification.
    3. In determining whether service is needed, the Council shall give due consideration to the purposes of this chapter, the public need for the service, the technological and economic feasibility, the effect on consumer rates, the effect on other service by franchisee, applicable laws, ordinances or regulations and any applicable solid waste management plan.
    4. If Council determines that such service is needed, it may require the franchisee to provide the service within a specified period of time or the Council may grant an exception to another person to provide the service under Section 8.12.040 of this chapter. Where applicable, the Council may determine necessary rates.
    C. The franchisee is not required to store, collect, transport, transfer, dispose of or resource recover any hazardous waste; provided, however, that the franchisee may provide such service outside this chapter in compliance with all applicable laws, ordinances and regulations.
    D. The franchisee may subcontract with others to provide a portion of the service where franchisee does not have the necessary equipment or personnel. Such a subcontract shall not relieve the franchisee of total responsibility for providing and maintaining service and from compliance with this chapter.
    E. The franchisee shall not:
    1. Give any rate preference to any person, locality or type of solid waste stored, collected, transported, disposed of or resource recovered. This paragraph shall not prohibit uniform classes of rates based upon length of haul, type or quality of solid waste handled and location of customers so long as such rates are reasonably based upon cost of the particular service and are approved by the Council nor shall it prevent any person from volunteering service at reduced cost for a charitable, community, civic or benevolent purpose.
    2. Transfer this franchise or any portion of it to other persons without prior written approval of the Council. The Council shall approve the transfer if the transferee meets all applicable requirements met by the franchisee. A pledge of this franchise as financial security shall be considered as a transfer for purposes of this subsection. The Council may attach whatever conditions it deems necessary to guarantee maintenance of service and compliance with this chapter.

8.12.110 Hold harmless.
The privileges granted to a franchisee are upon the express condition that said franchisee shall be liable for all damages or injuries to persons or property caused by the negligence or mismanagement of the franchisee or any employees or agents of franchisee while engaged in the business under the terms of the franchise. Should City, or any of its officers, agents or employees in the scope of their employment be sued for damages caused in whole or in part by the operations of a franchisee under the terms of the franchise, the franchisee shall be notified in writing of such suit and thereupon it shall be the duty of the franchisee to defend or settle the suit and should judgment go against City, or any of its officers, agents or employees, the amount thereof shall be recovered with costs and attorneys' fees from franchisee. The record of judgment against City, or any of its officers, agents or employees, in any such case, shall be conclusive evidence to entitle City, its officers, agents or employees to recover against the franchisee. This section shall not require a franchisee to defend, indemnify, or settle any suit or action against City, its officers, agents or employees brought under, or indemnify City, its officers, agents or employees for damages awarded pursuant to ORS 646.705, et seq, or Title 15 of the United States Code, unless such suit or action arises out of activities of the franchisee, or any agents or employees of franchisee, not authorized by this chapter.

8.12.120 Supervision.
Service provided under the franchise and other requirements of this chapter shall be under the supervision of the solid waste disposal supervisor, or his or her designate. Franchisee shall, at reasonable times, permit inspection of his or her facilities, equipment, and personnel providing service.

8.12.130 Suspension, modification or revocation of franchise.
    A. Failure by franchisee to provide necessary service or otherwise comply with the provision of this chapter after written notice and a reasonable opportunity to comply shall be grounds for modification, suspension or revocation of the franchise.
    B. After written notice from the City Recorder that such grounds exist, the franchisee shall have at least twenty (20) days from the date of mailing of the notice in which to comply or request a public hearing before the Council.
    C. At a public hearing, the franchisee and other interested persons shall have an opportunity to present oral, written or documentary evidence to the Council.
    D. If the franchisee fails to comply within the time specified or, if the Council hearing is held, with the order of the Council entered upon the basis of findings at the public hearing, the Council may suspend, modify or revoke the franchise or make such action contingent upon continued noncompliance.
    E. In the event the Council finds an immediate and serious danger to the public through creation of a health hazard, it may take action within a time specified in the notice to the franchisee and without a public hearing prior to taking such action.

8.12.140 Termination of service.
The franchisee shall not terminate service to all or a portion of his or her customers unless:
    A. The street or road access is blocked and there is no alternate route and provided that the City shall not be liable for such blocking of access; or
    B. Excessive weather conditions render providing service unduly hazardous to persons providing service or such termination is caused by accidents or casualties caused by an act of God, public enemy or vandalism; or
    C. A customer has not complied with Section 8.12.150 of this chapter or has not paid for service provided after a regular billing and after written notice to pay; or
    D. Ninety (90) days written notice of intent to terminate all or a substantial part of service is given to the Council and written approval is obtained from the Council; or
    E. Ordered to suspend, reduce or terminate all or a portion of service by a legislative, administrative or judicial body having jurisdiction.

Article 3. Rate Regulation

8.12.150 Rate determination.
    A. Rates for services provided by franchisee shall be fixed and thereafter amended from time to time by resolution of the Council. Rates shall be based upon the Uniform Rate Reporting Format set forth in Section 8.12.160 below:
    B. The maximum rates to be charged shall be those set provided herein. Unscheduled services may be provided at the reasonable cost of providing the service giving consideration to the standards in Section 8.12.160.
    C. Franchisee may require payment for residential service and multi-family residential service up to three months in advance. Franchisee may bill up to three months in advance, arrears or any combination. Where billed in advance, franchisee shall refund a pro-rata portion of the payment for any complete month in which service is not to be provided. Franchisee may charge at the time service is provided to a drop box or roll off box service customer where the customer has not previously established credit with the franchisee.
    D. If approved in the rate schedule, franchisee may charge: a starting charge for a new service, a restart charge to any customer who has been previously terminated for failure to pay for service, and interest on past due accounts.
    E. Rates shall be uniform within zones or classes of service.

8.12.155 Uniform Rate Reporting Format
    A. Definitions. As used in this Section, unless the context requires otherwise:
    1. "Affiliated Company" The parent company of franchisee or any subsidiary of such parent company or any company of which thirty percent (30%) or more of the common stock of control is owned or controlled by franchisee or shareholder(s) of franchisee who own or control thirty percent (30%) or more of the common stock of franchisee which shares costs with the franchisee with respect to the services provided under this Agreement. Examples of such shared costs include but are not limited to labor, equipment or administrative costs.
    2. "Allowable Expenses" Those expenses incurred by franchisee in the performance of this Agreement that are acceptable 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, 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, as qualified above, shall include but not be limited to the following:
    a. The costs of complying with all laws, regulations or orders applicable to the obligations of franchisee.
    b. Disposal costs as defined below including increased disposal costs and surcharges to the extent that such increase does not exceed eighty-five percent of the Consumer Price Index (CPI) for the current year (as provided in Paragraph 2 d.). If such increased disposal costs and surcharges exceed eighty-five percent of the CPI for the current year, then such costs and surcharges shall be allowed as pass through expenses as provided in Paragraph 2i.
    c. Labor costs, including supervisory labor, associated with provision of services under the franchise, including workers’ compensation and benefits and third-party transportation costs for recyclable materials.
    d. Vehicle and equipment expenses including vehicle registration fees, motor fuel, oil, tires, and repairs and maintenance of equipment.
    e. All expenses of maintaining and replacing capital equipment and assets, including depreciation and repair and maintenance.
    f. Performance bonds and insurance, at a minimum, in the amounts and coverage required by the City.
    g. Administrative expenses related to data processing, billing and supplies, finance and accounting, officer salaries, franchise administration, human resource and labor management, rate analysis, and regulatory compliance.
    h. Utilities.
    i. Training and worker safety.
    j. Advertising, promotion and public education costs.
    k. Property or facility depreciation, rental or lease costs necessary to the provision of services required by the franchise agreement.
    l. Depreciation and amortization of capital assets, including any necessary stand-by or back-up 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. The City shall set the standard economic lives based upon industry input and prevailing practices.
    m. Outside professional fees and costs.
    n. Debt service expenses other than any debt service expenses associated with purchases of routes or business purchases, that is not in excess of market rates ordinarily charted for the various types of financing required for purchases or leases.
    o. Franchise fees.
    p. Any expense incurred in the collection, handling, processing, storing, transporting, marketing, or sale or other disposition of recyclable materials, as defined in ORS 459.005(20).
    q. All surcharges, taxes or fees, other than State or Federal income taxes or franchise fees, which are imposed upon franchisee or levied by Federal, State or local governments in connection with franchisee's provision of solid waste collection, transportation, disposal and resource recovery services.
    r. Any other expense determined in advance by the City and franchisee to be reasonable and necessary to the provision of the services required under the franchise agreement.
    s. Bad Debts.
    3. "Collection" or "Collection Service" All or any part of the activities involved in the collection of solid waste and its transportation to an appropriate solid waste management facility.
    4. "Customer" Generators of solid waste in the City to whom franchisee provides collection services pursuant to a franchise granted by City and who have not been refused service pursuant to this ordinance.
    5. "Disposal" The disposition of solid waste collected by franchisee at a permitted solid waste handling facility selected by franchisee.
    6. "Disposal Costs" The total paid by franchisee for the disposal of solid waste collected pursuant to a franchise granted by City at the solid waste handling facility or transfer station.
    7. "Gross Revenue" for any period shall mean gross accrual-based billings by the franchisee to customers for services provided under this ordinance and agreement and the accrual-based proceeds from the sales of recycled material collected within the franchise.
    8. "Operating Margin" for a period shall mean gross revenues minus allowable expenses.
    9. "Operating Ratio" is the allowable expense divided into the gross revenues. Expressed as a percentage, the return on gross revenues shall be approximately twelve percent (12%) of gross revenues, which is consistent with industry averages for solid waste collection companies.
    10. "Revenue Requirement" The sum of the quotient of allowable expenses divided by the operating ratio (expressed as a decimal) and pass through expenses.
    11. "Unallowable Expense:" Under no circumstances will the following expenses be counted as allowable expenses:
    a. Political and charitable contributions.
    b. Federal, state, and local income taxes.
    c. Loss on sale of assets.
    d. Officers' life insurance premiums.
    e. Director fees.
    f. Interest on the purchase of equipment or facilities to the extent that the purchase price exceeds the fair market value of the asset at the time of purchase.
    g. Penalties and fines.
    h. Costs, whether allocated or direct, associated with collection or unrelated operations that are not governed by this ordinance.
    i. Accruals for future unknown regulatory changes.
    j. Principal or interest payments on the acquisition of solid waste, recyclable materials and yard debris collection routes; the purchase of equipment and facilities at a price that would be construed to include goodwill or a premium in excess of fair market value at the time of acquisition.
    k. Attorney’s fees and related expenses resulting from:
    (1). Any judicial proceeding in which the City and a franchisee are adverse parties, unless the franchisee is the prevailing party.
    (2). 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.
    B. Determination of Rates.
    1. Franchisee shall charge and collect those rates adopted each year in accordance with this Section and Section 13. The rates set shall be fixed at a level sufficient to produce a revenue requirement for franchisee that is equal to the quotient of allowable expenses divided by the operating ratio (expressed as a decimal). The operating ratio for this agreement shall be calculated at eighty eight percent (88%). For purposes of this section, the rates shall include all monies collected by franchisee for the services provided pursuant to a franchise granted by City, including, but not limited to, charges for collection of solid waste and recyclable materials, revenue from the sale of recycled material, disposal charges, surcharges, fees and taxes. Revenue shall also include any other monies received by franchisee from any other entity as compensation for services allocated fairly and reasonably to the jurisdiction and customers receiving said services.
    2. The franchisee and its affiliates may use common resources (equipment, fuel, labor, management, and administration) to service the City and other nearby jurisdictions. In such cases, it will be necessary to allocate the costs of such resources among the jurisdictions they serve. Franchisee and the City and other jurisdiction(s) shall mutually agree upon an allocation formula. Such allocation formula may be amended upon the written mutual consent of the franchisee and the City and shall be applied, as amended, to determine allowable expenses throughout the term of the franchise. The three factors that will be used to allocate these costs are:
    a. Labor hours - Used to allocate labor costs. Vehicle costs will also be allocated on labor hours as a substitute for engine hours. If, in the opinion of the operator, these hours would not be materially similar, then a four-factor formula would need to be implemented which would include engine hours to allocate the cost of vehicles.
    b. Weight - Average Vessel Weights used to allocate disposal.　
    c. Customer Base - Weighted customer counts used to allocate general and administrative and management expenses.　
    The methods for collecting this data are:
    d. Labor hours - A "time on route form" will be completed by route drivers one week each quarter. This data will then be summarized and averaged for application to the annual accounting data, or summarized and applied to the specific quarterly accounting data.
    e. Weight - Quarterly weight statistics will be generated by the company to obtain quarterly average vessel weights. These weights will then be applied to route list customer data to obtain relative weights per route. These relative weights per route will then be applied to the cost of disposal.
    f. Customer Base -This data is readily available from computer reports generated in conjunction with billing and route list preparation.
    These factors will be captured and applied to the costs on a periodic basis. The City and franchisee agree that test periods shall be utilized, at least quarterly, to collect this data.
    3. Commencing on April 1, but in no event after April 1, 2004, the franchisee will submit to the City an annual report of operations prepared by the hauler’s Certified Public Accountant (the "Report") showing the actual allowable expenses incurred by franchisee in the preceding fiscal year, all additional allowable expenses franchisee reasonably anticipates will be incurred or imposed in the current fiscal year, the allocation formulas used to determine expenses, the actual operating ratio for the preceding fiscal year, and the expected operating ratio for the current fiscal year.
    4. Except as provided in subsection e. of this section, a cost of living rate adjustment shall be made every other year commencing with the completion of the Report and according to the following procedure:
    a. Commencing on June 1, 2004 and on June 1 of each even numbered year thereafter (the adjustment date) throughout the term of the franchise, the rates shall be adjusted in a percentage amount equal to eighty-five percent (85%) of the two-year percentage change in the Consumer Price Index for all Urban Consumers for West B/C, All Items (1982-84=100) published by the Bureau of Labor Statistics (the Index) that occurred between the months of May and April of the previous and the current years. The adjustment shall not exceed six percent (6%) in any two-year period. In addition, no cost of living adjustment shall be allowed if the adjustment would cause the franchisee to project operations in excess of the Operating Ratio Range. The adjusted rates shall become effective on each July 1, thirty days following the adjustment date.
    b. On each adjustment date, the then current rates shall be multiplied by the calculated percentage change in the index for the year.
    c. On or before each adjustment date, franchisee shall send to the City a revised rate schedule reflecting the proposed new rates, as adjusted by the Index as provided in this subsection. Upon adoption, the revised rate schedule shall become effective on July 1 of each year.
    d. If a rate adjustment occurred in the previous year due to an upward adjustment of the rates due to a formal rate review, then the franchisee is only eligible for eighty five percent (85%) on the one year change in the Consumer Price Index.
    e. In the event that the Index for Urban Consumers of West B/C is no longer published by the Bureau of Labor Statistics, franchisee and City shall negotiate in good faith to agree upon a suitable replacement index reflective of the cost of living in the franchise area.
    5. If the reviewed Report indicates that the operating ratio for the next succeeding 12-month period will be less than eighty-five (85%) or greater than ninety-one percent (91%), then a rate review will automatically be implemented in accordance with this section. No more than five consecutive years shall pass during the term of this franchise without a formal rate review as set forth in this subsection. In the event a rate review is requested or required as provided hereunder, the following procedures shall bind the City and franchisee:
    6. The City shall review the Report and, if the City’s review of the Report indicates that the Operating Ratio is likely to be greater than eighty-five percent (85%) or less than ninety-one percent (91%), the City shall adopt rates for the next year, either as proposed by franchisee in the Report or as modified by the City, no later than June 15. The duly adopted rates shall then become effective not later than July 1 and shall supersede the rates that were previously in effect. The adopted rates shall provide the franchisee an operating ratio of eighty-eight percent (88%).
    7. In the event the Report shows that the Operating Ratio for the current fiscal year is not likely to be greater than eighty-five percent (85%) or less than ninety-one percent (91%), the existing rates shall not be adjusted and the current rates shall continue in effect until next adjusted in accordance with subsection d. of this section. The City shall set all policies and procedures respecting the implementation of rates and shall direct franchisee to carry out such policies and procedures. The City, its agents or employees may, upon reasonable notice and during normal business hours, audit those records of franchisee that pertain to revenue and allowable expenses; provided, however, in reviewing such records, the City and its agents and employees shall maintain such records in strict confidence and not disclose, divulge or transmit such records or copies of such records to any third party.
    8. Upon review by the City, if it is found deliberate or malicious material misrepresentation of books, records, accounts or data relating to collection service operations has occurred, the franchisee shall pay review costs incurred by the City.
    9. In the event franchisee, at any time, becomes liable to pay any new or increased legislated costs, including surcharges, fees or expenses associated with regulatory requirements, or any new or increased disposal and/or long-haul transportation costs or fees, and these costs represent in excess of three percent (3%) of gross revenue, then all such costs and/or fees shall be passed through and added to the then-existing rate structure immediately upon City’s receipt and verification of franchisee's documentation of and liability to pay the same. In the event franchisee, at any time, experiences a reduction in such costs, in excess of three percent (3%) of gross revenue, then all such savings shall be passed through and subtracted from the then-existing rate structure immediately upon City’s receipt and verification of franchisee's documentation of the same. Franchisee shall include all such costs, cost savings, and/or fees in the next succeeding year's Report as actual Allowable Expenses of Franchisee.
    C. Reports and Information. The following reports and information shall be submitted by franchisee to the City in accordance with the following schedule:
    1. Commencing with the first rate adjustment request by the franchisee and on each April 1st thereafter the franchise shall submit the annual report in the format approved and distributed by the City (example in Appendix A) consisting of the following:
    a. Financial statements for franchisee for the preceding year, with schedules prepared by the franchisee’s Certified Public Account to provide backup for any allocated expenses. Franchisee shall also identify any expense incurred with an affiliated company. At the County’s request, franchisee shall provide such backup as is reasonable to vary expenses.
    b. Equipment and depreciation schedules and equipment replacement projections for the current year.
    c. Projected allowable expense and pass-though expense for the current year.
    d. Projected gross revenue for the current year based on current levels of service and the current rate schedule (before any cost of living adjustment).
    e. Subject to the conditions of Paragraph 2 of this Section, a proposed rate schedule to be effective July 1 with rationale as to how the rates were developed.
    2. The franchisee shall maintain accounting, statistical, operational, and other records related to its performance under the franchise agreement. Also, the franchisee agrees to conduct data collection, information and record keeping, and reporting activities needed to comply with applicable laws and regulation and to meet the reporting and solid waste program management needs of the City. To this extent, such requirements set out in this and other parts of this section shall not be considered limiting or necessarily complete. In particular, this requirement is intended to only highlight the general nature of records and reports and is not meant to define exactly what the records and reports are to be and their content. Further, with the written direction or approval of the City, the records and reports to be maintained and provided by the franchisee in accordance with this and other articles of the agreement shall be adjusted in number, format, or frequency. The foregoing is not intended to require significant additional administrative labor or the modification of the franchisee’s computer software. Subject to these conditions, the following additional requirements apply to records and reports of the franchisee:
    a. General. All records shall be maintained for five (5) years after the expiration of this agreement, with the exception of accounts payable records, which will be maintained for three (3) years after payment. The franchisee agrees that the records addressed in this ordinance shall be provided or made available to the City and its official representatives during normal business hours.
    b. Solid Waste Records. Records shall be maintained by the franchisee for the City relating to:
    (1) Customer service and billing.
    (2) Weight and volume of solid waste and recyclable materials.
    (3) Routes, facilities, equipment and personnel used.
    (4) Facilities and equipment operations, maintenance and repair.
    (5) Disposal of Solid Waste.
    (6) Complaints.
    (7) Missed pick-ups.
    c. CERCLA Defense Records. The City views the ability to defend against CERCLA (Comprehensive Environmental Response, Compensation, and Liability Act of 1980, 42 USC w9601, et seq.) and related litigation as a matter of great importance. For this reason, the City regards the ability to prove where solid waste collected in the City was taken for disposal, as well as where it was not taken, to be matters for concern. Franchisee shall maintain data retention and preservation systems which can establish where solid waste collected in the City was land filled (and therefore establish where it was not land filled) and provide a copy or summary of the reports required for five (5) years after the term during which collection services are to be provided pursuant to this agreement, or to provide copies of such records to the City.
    d. Disposal Records. The franchisee shall maintain records of disposal of all solid waste collected in the City for the period of this agreement and all extensions to this agreement or successor agreements. In the event the franchisee discontinues providing solid waste services to the City, the franchisee shall provide all records of disposals or processing of all solid waste collected in the City within thirty (30) days of discontinuing service. Records shall be in chronological and organized form and readily and easily interpreted.
    e. Reporting Responsibilities. At the time of payment of the annual franchise fees, the franchisee shall file with the City a sworn and verified statement of annual gross revenues for the period covered by the tendered fee. Such statements shall be public records. The franchisee shall maintain books and records disclosing the gross receipts derived from business conducted within the City, which shall be open at reasonable times for audit by City personnel or assigned agents. The City may require that the system of bookkeeping and record keeping used by the franchisee be uniform with other jurisdictions served by the franchisee.
    f. Annual Rate Review Reports. Franchisees may identify information submitted to the City as confidential. The City shall treat any information marked "Confidential" as such, and shall not subject the confidential information to public disclosure except as required by law. If the City receives a request for disclosure of confidential information, the City shall notify the franchisee within five business days of receiving the request so as to allow the franchisee a reasonable opportunity to defend against the requested disclosure through the appropriate legal process.
    g. Reportable Incidents. The franchisee shall provide the City two copies of all reports, pleadings, applications, notifications, Notices of Violation, or other formal actions relating specifically to the franchisee’s performance of services pursuant to this ordinance, submitted by franchisee to, or received by franchisee from, the United States Environmental Protection Agency, the Oregon Department of Environmental Quality, or any other Federal, state, or local agency, including Federal or state court actions brought by any of the aforementioned agencies, with regard to franchisee’s operations within the State of Oregon. Copies shall be submitted to the City simultaneously with franchisee’s filing or submission of such matters with said agencies. Franchisee’s routine correspondence to said agencies need not be routinely submitted to the City, but shall be made available to the City upon written request.
    h. Vehicle Inventory. The franchisee, in conjunction with the annual report, shall provide the City with an inventory of vehicles used within the City. The list shall include vehicle make, year of manufacture, model name, identification number (VIN), and PUC numbers.
    i. Access for Inspections and Delivery of Notices. Franchisee shall make all company premises, facilities and records related to its solid waste, recyclable materials and yard debris collection services (including, but not limited to: offices, storage areas, financial records, non-financial records, records pertaining to the origin of any solid waste collected by the franchisee, receipts for sale or delivery of collected recyclable materials, customer lists, and all records related to vehicle maintenance and safety which are required under Oregon Department of Transportation motor carrier requirements and regulations and ORS 767) available for inspection by the City and or the Lincoln County Solid Waste District employees or assigned agent within 24 hours of notice by registered mail. Such inspections are only for purposes of enforcing this ordinance and are restricted to normal business hours. Collection vehicles must be accessible for inspection during the normal operating hours for collection, in addition to normal business hours. Where receptacles are stored in the public right-of-way or when the City is inspecting a situation where the franchisee is allegedly disposing recyclable or yard debris with solid waste, the need for 24-hour notice does not apply to inspection of receptacles or vehicles.　
    j. Failure to Report. Deliberate or malicious misrepresentation of gross revenues by a franchisee constitutes a major ordinance and franchise violation, and may be cause to initiate the process to terminate the franchise. The refusal or willful failure of franchisee to file any required reports, or to provide required information to the City, or the inclusion of any materially false or misleading statement or representation by franchisee in such report shall be deemed a material breach of this ordinance and shall subject the franchisee to all remedies which are available to the City under this ordinance, including termination of the franchise.

Article 4. Public Responsibility

8.12.160 Public responsibility.
In addition to and not in lieu of compliance with ORS Chapter 459 and other applicable laws and regulations:
    A. No person shall place hazardous waste for collection or disposal by franchisee without notice to the solid waste disposal supervisor or office of franchisee. This shall not apply to minor quantities of wastes generated at or by a single-family residential unit.
    B. No unauthorized person shall place material in or remove material from a solid waste collection container without permission of the owner of the container. For the purpose of this section, the franchisee is the "owner" of containers supplied by franchisee.
    C. No unauthorized person shall remove solid waste placed out for collection and resource recovery by the franchisee or a person exempted by Section 8.12.040 of this chapter and operating solely within the exemption.
    D. No person shall install an underground solid waste container for storage and collection after the effective date of the ordinance codified in this chapter. The franchisee is not required to service an underground container unless the person responsible for it places the can above ground prior to time of collection.
    E. No can for residential service shall be located behind any locked or latched door, gate or inside of any building or structure.
    F. Each customer shall provide safe access to the solid waste container or wastes without risk or hazard to franchisee's employees, the public or franchisee.
    G. No container designed for mechanical pickup shall exceed a safe loading weights or volumes as established by the franchisee to protect service workers, the customer, the public and the collection equipment.
    H. Where a customer requires an unusual volume of service or a special type of service requiring substantial investment in equipment, the franchisee may require a contract with the customer as necessary to finance and assure amortization of such equipment. The purpose of this provision is to assure that such equipment not become a charge against other ratepayers who are not benefitted.
    I. Stationary compacting devices for solid wastes shall comply with Federal and state safety standards and provide adequate protection to the user.
    J. Every person who generates or produces wastes shall remove or have removed at least once every seven days all waste which may putrefy during that period. More frequent removal may be required by the Council where a facility or service involves the public health. All wastes shall be removed at sufficient frequency so as to prevent health hazards, nuisances or pollution.
    K. The producer or generator of waste shall clean both cans and containers and shall keep the area around such cans or containers free of accumulated wastes. The franchisee shall provide periodic maintenance to containers supplied by franchisee.
    L. No person shall accumulate or store waste that is unsightly, or in violation of regulations of the Oregon Department of Environmental Quality.

8.12.170 Payment of service.
Any person who received service from the franchisee shall be responsible for payment of service. The owner of a rental or lease facility shall be liable for payment for services provided to a tenant of such dwelling if the tenant fails to make timely payment for such service. The owner of any multiple unit rental or lease facility having two or more dwelling units shall be primarily responsible for services provided to the occupants of such facility and shall be billed for the services.

Article 5. Appeal, Administration and Enforcement

8.12.180 Appeals.
Any action or determination by franchisee under or pursuant to this chapter may be appealed to the City Manager. Any action or determination of the City Manager under this chapter may be appealed to the City Council.

8.12.190 City enforcement.
The City shall enforce the provisions of this chapter by administrative, civil or criminal action or any combination as necessary to obtain compliance with this chapter. The Council shall take such legislative action as is necessary to support the chapter and the franchise granted. The franchisee may also enforce payment or protect its rights by appropriate civil action.

8.12.200 Violation - Penalty.
Any person who violates any of the provisions of this chapter, as now constituted or hereafter amended or revised, commits a Class B civil infraction and shall be subject to the procedures and penalties of Chapter 1.08 of this code, as now constituted or hereafter amended or revised. Penalties in this section are not in lieu of the remedies provided in this chapter.

8.12.210 City and Franchisee Dispute Resolution
    1. City and franchisee agree that they shall first submit any and all unsettled claims, counter claims, disputes and other matters in question between them arising out of or relating to this Franchise or the breach thereof ("disputes"), to mediation by a mutually agreed to mediator prior to either of them requesting arbitration pursuant to subsections 2-13 below. The requirement of subsection 2c below that a request for arbitration must be filed within a reasonable time shall be suspended with respect to a dispute submitted to mediation and shall remain suspended until ten days after the termination of the mediation. The mediator of any dispute submitted to mediation under this Franchise shall not serve as arbitrator of such dispute unless otherwise agreed. If City and franchisee cannot agree to a mediator, mediation will not be used for a dispute resolution.
    2. All disputes between City and franchisee arising out of or relating to this Franchise, including without limitation the making, performance or interpretation of this Franchise, may be settled by binding arbitration upon the mutual agreement of the parties. If, at any time, the parties agree to arbitration the following procedures shall apply:
    a. Unless the parties mutually agree to other procedural rules, the arbitration shall be conducted under the procedural rules of the American Arbitration Association for Commercial Arbitrations. Any party may object to the use of American Arbitration Association expedited procedures, in which event the Commercial Arbitration Procedural Rules will be used to the extent applicable under this Franchise. This provision is not meant to bind the parties to the use of the American Arbitration Association arbitration services; it is designed only to provide a procedural format of conducting the arbitration proceeding.
    b. If the parties can agree on a sole arbitrator, the arbitration shall be conducted by the agreed-upon arbitrator. The arbitrator shall be an attorney licensed to practice law in the State of Oregon.
    c. In the event the parties cannot agree on a single arbitrator, the party initiating arbitration shall, by written notice to the other party within 15 days after requesting arbitration, appoint one arbitrator. The other party shall, by written notice after receipt of such notice from the first party, appoint a second arbitrator. In the event the second party fails to appoint an arbitrator within 15 days of the appointment of the first arbitrator, the first arbitrator shall become the sole arbitrator by default. When two arbitrators have been appointed, they shall mutually agree on a third arbitrator who will be appointed by written notice signed by both the initial arbitrators with a copy mailed to each party within ten days after such appointment.
    3. Notice of the demand for arbitration must be filed in writing with the other party to the franchise. A demand for arbitration must be made within a reasonable time after the claim, dispute or other matter in question has arisen. In no event may the request for arbitration be made after the date when institution of legal or equitable proceedings based on such a claim, dispute or other matter in question would be barred by the applicable statute of limitations.
    4. No arbitration arising out of or relating to this franchise will include by consolidation, joinder or in any manner any other person or entity who is not a party to this franchise unless each of the following is met:
    a. The inclusion of such other party or entity is necessary if complete relief is to be afforded to those who are already parties to the arbitration.
    b. Such other person or entity is substantially involved in a question of law or fact which is common to those who are already parties to the arbitration and which will arise in such proceeding.
    c. The written consent of the other person or entity sought to be included and the consent of the City and franchisee has been obtained for such inclusion, which consent shall make specific reference to this paragraph, but such consent shall not constitute consent to arbitration of any dispute not specifically described in such consent or to arbitration with any party not specifically identified in such consent.
    5. All demands for arbitration and all answering statements thereto which include any monetary claim must contain a statement of the total sum of money or value in controversy as alleged by the party making such request or answering statement.
    6. City and franchisee will pay their own cost of arbitration, and unless costs are awarded by the arbitrator to the prevailing party, each are obligated to pay one-half of the arbitrator’s fee.
    7. Unless otherwise agreed, the arbitration shall be conducted in Lincoln County, Oregon. If arbitration is commenced, the parties agree to permit discovery proceedings of the type provided for by the Oregon Rules of Civil Procedure both in advance of and during recess of the arbitration proceedings. ORS 1823.450(1)-(4), where applicable, shall control the admission of evidence at the hearing in any arbitration conducted hereunder, provided however that no error by the arbitrator in the application of the statutes shall be grounds for such as vacating the arbitrator’s award. Each party to the arbitration shall be entitled to present evidence and argument to the arbitrator.
    8. The arbitrator shall give written notice to the parties stating the arbitration determination and shall furnish to each party a signed copy of such determination and judgment so the award may be entered in any court having jurisdiction over the parties.
    9. The parties agree that the arbitrator shall have no jurisdiction to render an award or judgment for punitive damages. The parties agree that the decision of the arbitrator shall be final and binding on the parties.
    10. The award rendered by the arbitrator will be final, and judgment may be entered upon it in any court having jurisdiction thereof, and the award will not be subject to modification or appeal. If applicable, judgment may be entered on the arbitration award in accord with the provisions of ORS Chapter 36 in Oregon State courts.
    11. In the event of arbitration under the provisions of this franchise, the prevailing party shall be awarded reasonable attorney’s fees, related costs, disbursements, and expert witness fees.
    12. The duty to arbitrate shall survive the cancellation or termination of this franchise.
    13. In the event of any action, suit, arbitration, or other proceeding shall be instituted by either the City or franchisee to enforce any provision of this franchise, or any matter arising therefrom or to interpret any provision of this franchise, including any proceeding to compel arbitration or enforce an arbitration award, the prevailing party shall be entitled to recover from the other party a reasonable attorney’s fee to be determined by the court or arbitrator(s). In addition to recovery of a reasonable attorney’s fee, the prevailing party shall be entitled to recover from the other costs and disbursements, including all costs of arbitration and the arbitrator(s) fees, and expert witness fees, as fixed by the court or arbitrator(s). In the event any such action, suit, arbitration or other proceeding is appealed to any higher court or courts, the prevailing party shall recover from the other a reasonable attorney’s fee for prosecuting or defending such appeal or appeals, in addition to the reasonable attorney’s fees in the lower court(s) or arbitration proceeding, such fee to be determined by the appellate court or lower court or arbitrator(s), as the appellate court may determine. In addition to recovery of a reasonable attorney’s fee on appeal, the prevailing party shall be entitled to recover from the other costs and disbursements, and expert witness fees as fixed by the appellate court. All costs and disbursements which may be awarded pursuant to this paragraph shall bear interest at the rate of nine percent (9%) per annum from the date they are incurred until the date they are paid by the losing party. (Ord. 723, 2008)

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