Chapter 8.04
SOLID WASTE MANAGEMENT
Sections:
8.04.010 Definitions.
8.04.020 Purpose and terms.
8.04.030 Compensation to the city.
8.04.040 Service rates.
8.04.050 Assignment of rights under franchise.
8.04.060 Renegotiation and notice.
8.04.070 Accumulation of solid waste is prohibited.
8.04.080 Receptacles.
8.04.090 Indemnification and operation of franchise.
8.04.100 Penalties.
8.04.110 Acceptance, waiver and repeal.
8.04.010 Definitions.
For the purpose of this chapter, the following words and phrases shall have the meaning respectively ascribed to them:
“City” means the city of Dundee, Oregon, a municipal corporation.
“Grantee” means Newberg Garbage Service, Inc., a corporation incorporated under the laws of the state of Oregon.
“Solid waste” means all putrescible and nonputrescible wastes, including but not limited to garbage, rubbish, refuse, ashes, fruit refuse, waste paper, cardboard, grass clippings, compost, tires, equipment and furniture; sewage sludge, septic tank and cesspool pumpings or other sludge; commercial, industrial, demolition and construction wastes; discarded or industrial appliances; manure, vegetable or animal solid and semi-solid wastes; dead animals; infectious and other wastes; but the term does not include:
1. Hazardous waste as defined in ORS 466.005.
2. Materials used for fertilizer or for other productive purposes or which are salvageable as such when the materials are used on land in agricultural operations and the growing or harvesting of crops and the raising of fowl or animals.
3. Beverage containers, subject to reuse or refund provisions, contained in ORS 459.810 through 459.890.
“Gross revenue” means any revenue or cash receipts earned within the city by the grantee for solid waste and refuse collection service after adjustment for the net write-off of uncollectible accounts annually, but excluding gross revenue from any recyclable materials.
“Hauling for hire” means any person transporting solid waste not produced by that person.
“Person” means any person or persons, firm or corporation.
Receptacle. The franchisee provides roll carts as an option to the customer purchasing their own can. The roll carts are included in the monthly price for cart service. The roll carts are owned by the franchisee and must be returned when service is canceled or terminated. If the customer opts to purchase their own can, the can must be equipped with suitable handles, a tight-fitting cover to exclude water and flies, and be able to hold solid waste without spilling, leaking, or escaping of odors. The can must be no larger than 32 gallons.
“Recyclable materials” means any material or group of materials that can be collected and sold for recycling at a net cost equal to or less than the cost of collection and disposal of the same material. [Ord. 402-2002 § 1].
8.04.020 Purpose and terms.
A. The city hereby grants to Newberg Garbage Service, Inc., for a period of 10 years from January 1, 2002, and ending December 31, 2011, an exclusive franchise for the hauling and collection of solid waste and refuse, recyclable materials and recyclable solid wastes in the city and disposal, recovery or sale thereof. The council may terminate the franchise at any time by resolution and a one-time written notice to franchisee. The franchise will then continue through the end of the then-current term. For other termination provisions, see DMC 8.04.110. It shall be unlawful in the city for any person to haul for hire or collect solid waste or refuse or collect or haul recyclable solid wastes or materials over the streets of the city unless they have first entered into a contract or franchise with the city for such services, it being the intention of this provision to grant an exclusive franchise for the collecting and hauling for hire of solid waste and refuse and/or recyclable solid wastes and materials in the city to the grantee. No franchisee shall be required to collect waste oil or vegetable fats or scrap metal which is part of a junk or scrap business.
B. Franchise Extension. At any time after 30 months from the start of the then-current franchise period the grantee may apply for an extension of this franchise. Upon application by grantee for extension of its franchise, grantee shall have the first and preferential right to renewal of its franchise upon the terms and conditions approved by the city. At the conclusion of the city’s findings, the city may, in its sole discretion, extend the franchise upon such terms as it deems appropriate for 10 years from a date no earlier than seven years before the expiration of the then-existing franchise.
C. Notice. Grantor shall exercise its best efforts to provide grantee two months’ advance notice of each opportunity to renew its franchise. However, lack of notice shall not effect the duration of any franchise period.
D. In determining whether to extend the franchise, the city shall review grantee’s renewal application, and may consider the following factors, among others, in deciding whether or not to renew the franchise:
1. Grantee’s financial ability to perform the obligation under this franchise;
2. Grantee’s performance of its obligations under this franchise;
3. Whether grantee has the necessary personnel and equipment to perform the obligations required under this franchise;
4. Grantee’s ability to provide evidence of insurability or bonding as required by this franchise; and
5. Whether the renewal of grantee’s franchise is in the public interest. [Ord. 402-2002 § 2].
8.04.030 Compensation to the city.
A. As compensation to the city, for franchise and the privilege for use of the city streets for hauling collection or pick up, the grantee shall pay to the city three percent of its gross annual revenue for local solid waste collection service rendered within the city limits for each calendar year during the life of this franchise beginning with the effective date of the ordinance codified in this chapter.
B. On or before March 1st of each year during the term of this franchise, the grantee shall file with the city a statement under oath showing the amount of gross revenue the grantee received for services within the city for the calendar year immediately preceding the year in which the statement is filed. The annual franchise fee for the year in which the statement is filed shall be computed on the gross revenue so reported. Such franchise fee shall be payable annually on or before March 1st, beginning with the effective date of the ordinance codified in this chapter.
C. If controversy arises as to the amount of gross revenue within the meaning of this chapter, the amount of such gross revenue as determined by audit by a certified public accountant, mutually selected by the city and grantee, shall be deemed the correct amount.
D. Any difference of payment due either the city or the grantee through error or otherwise shall be payable within 15 days of discovery of such error.
E. Should the grantee fail or neglect to pay any of said annual payment for 30 days after an annual payment shall become due and payable and after 30 days’ written notice from the city, the city by its properly constituted authority may, at its option, either continue this franchise in full force and effect and/or proceed by suit or action to collect payment, or declare a forfeiture of this franchise because of failure to make such payments, but without waiving the right to collect earned franchise payments. [Ord. 402-2002 § 3].
8.04.040 Service rates.
The city expressly reserves the right to fully regulate and fix the rates for the service to be rendered hereunder by the grantee to the end that such rates shall always be reasonable and in the public’s interest. Rates shall be in a schedule form and adopted and amended by the city council by resolution. The rate schedule shall be executed and signed by the mayor of the city and an authorized representative of the grantee. [Ord. 402-2002 § 4].
8.04.050 Assignment of rights under franchise.
The grantee shall not, during the term of this franchise, sell, assign, transfer or convey this franchise or any rights under this franchise, nor shall the grantee sell or assign the controlling stock interest in said grantee’s corporation without first obtaining the consent of the council of the city expressed by resolution. Whenever the grantee shall be mentioned in this chapter, it shall be understood to include such successors or assigns in interest of the present grantee as shall have been consented to by the council in the before-mentioned manner. [Ord. 402-2002 § 5].
8.04.060 Renegotiation and notice.
A. The city or the grantee may request renegotiation of the franchise and/or rates to be charged under the franchise by giving notice in writing during any year that this franchise is in force. All notices given in connection with the franchise shall be in writing and delivered to the parties as follows: to the city through the city administrator at City Hall and to the grantee at its business office.
B. Grantee may apply for interim relief or change in recycling services if the cost of disposal or other costs set by government or the cost of meeting government regulations increases substantially, or recycling markets, materials or participation warrants a change.
C. The grantee may subcontract with others to provide a portion of the service where grantee does not have the necessary equipment or service. Such a subcontract shall not relieve the grantee of total responsibility for providing and maintaining service and from compliance with this chapter. [Ord. 402-2002 § 6].
8.04.070 Accumulation of solid waste is prohibited.
No person shall throw or deposit upon any public property within the city any solid waste nor shall any solid waste be allowed to accumulate or remain upon private premises within the city except as herein provided. All solid waste accumulating on private property shall be kept, while on such private premises, in a receptacle and shall be removed therefrom before the same shall become a nuisance or offensive to others or detrimental to the public health or a fire hazard; and any person owning or occupying such private premises within the city is required to provide for the prompt and sanitary removal from time to time of such accumulation of solid waste. Solid wastes, garbage, rubbish and refuse placed out for collection, whether or not source-separated, belong to the franchisee. No person, firm, corporate or legal entity shall take or interfere with the collection of the named wastes and materials. No unauthorized person shall deposit material or solid wastes in any container or drop box supplied by franchisee nor remove the material or waste placed in the container or box by a customer of franchisee. [Ord. 402-2002 § 7].
8.04.080 Receptacles.
The owner or occupant of any premises served by the grantee shall provide an adequate receptacle for receiving and holding solid waste that accumulates on said premises. The receptacle shall comply at all times with the requirements of the franchise and shall comply with the rules and regulations of the grantee. [Ord. 402-2002 § 8].
8.04.090 Indemnification and operation of franchise.
The grantee hereby agrees and covenants to indemnify and save harmless the city and its officers and agents against all damages, costs and expenses to which it or they may be subjected as a consequence of negligence by the grantee or its agents or employees, in any manner, arising from the rights, privileges and operations hereby granted.
The grantee further agrees to render the service hereby authorized under the franchise upon equal terms without unjust discrimination or undue preference to any users within the city, and respond to any written complaint on service. Due consideration shall be given to location, access, service that is available, whether the person, firm, corporation or legal entity or successor takes or is likely to take service from grantee, safety, applicable laws and regulations and special service requirements. This section shall not be the basis for a penalty, but the city of Dundee may withhold any such permit until compliance is achieved. [Ord. 402-2002 § 9].
8.04.100 Penalties.
Any person violating any of the provisions of this chapter shall, upon conviction thereof, be subject to the payment of a fine not more than $500.00 for each separate violation. [Ord. 402-2002 § 10].
8.04.110 Acceptance, waiver and repeal.
A. The grantee shall file with the administrator of the city within 30 days after the passage of the ordinance codified in this chapter its acceptance of the franchise and its waiver of any rights, obligations and claims it might have under Ordinance No. 284 of the city. Ordinance No. 284 is hereby repealed when the grantee files the aforementioned acceptance.
B. Service provided under the franchise shall be under the supervision of the city council. Franchisee shall, at reasonable times, permit inspection of its facilities, equipment and personnel providing service.
C. The solid waste collection and hauling service and recycling service is necessary for the peace, safety, health and welfare of the people of the city of Dundee.
1. Therefore, failure to comply with a written notice to provide necessary service or otherwise comply with the provisions of this chapter after written notice and a reasonable opportunity to comply shall be grounds for modification, revocation or suspension of the franchise.
2. After written notice from the city council that such grounds do exist, the franchisee shall have 30 days from the date of mailing of the notice in which to comply or to request a public hearing before the city council.
3. If the franchisee fails to comply within the specified time or fails to comply with the order of the city council entered upon the basis of findings at the public hearing, the city council may suspend, modify or revoke the franchise or make such action contingent upon continued noncompliance.
4. At a public hearing, the franchisee and other interested persons shall have an opportunity to present oral, written or documentary evidence to the city council.
5. In the event that the city 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.
D. The franchisee agrees as a condition to the franchise that whenever the city council determines that the failure of service or threatened failure of service would result in creation of an immediate and serious health hazard or serious public nuisance, the council may, after a minimum of 24 hours’ actual notice to franchisee and a public hearing if franchisee requests it, authorize another person to temporarily provide the service or to use and operate the land, facilities or equipment of the franchisee through leasing to provide emergency service. The council shall return any seized property and business upon abatement of the actual or threatened interruption of service.
E. The franchisee shall not terminate service to all or a portion of its customers unless:
1. The street or road access is blocked and there is no alternate route; and provided, that the city of Dundee, Oregon, shall not be liable for any such blocking of access.
2. Excessive weather conditions render providing service unduly hazardous to persons providing service or such termination is caused by accident or casualties caused by an act of God or a public enemy.
3. A customer has not paid for service provided after a regular billing and after a seven-day written notice to pay.
4. Any customer who is terminated hereunder shall be entitled to appeal the matter to the city council, where both customer and franchisee will be entitled to be heard.
F. Any finding by any court of competent jurisdiction that any portion of this chapter is unconstitutional or invalid shall not invalidate any other provision of this chapter. [Ord. 402-2002 § 11].