APPENDIX G. SOLID WASTE FRANCHISE – WASTE CONNECTIONS OF OREGON, INC.

ORDINANCE NO. 737

AN ORDINANCE RELATING TO SOLID WASTE MANAGEMENT IN THE CITY OF BROWNSVILLE, OREGON GRANTING WASTE CONNECTIONS OF OREGON, INC. D.B.A. SWEET HOME SANITATION SERVICE EXCLUSIVE FRANCHISE.

THE CITY OF BROWNSVILLE ORDAINS AS FOLLOWS:

Section 1:    Short Title. This Ordinance shall be known as the “Solid Waste Management Ordinance”, it may be so cited and pleaded, and it shall be referred to herein as “this Ordinance”.

Section 2:    Policy, Purpose, and Scope. It is declared to be the public policy of the City to regulate solid waste management to accomplish the following:

2.1.    Ensure safe, economical, financially stable, reliable, and comprehensive solid waste service;

2.2.    Ensure rates that are just, fair, reasonable, and adequate to provide necessary public service and to prohibit rate preferences and other discriminatory practices;

2.3.    Provide technologically and economically feasible resource recovery by and through the franchisee; and

2.4.    Provide the opportunity to recycle.

Section 3:    Definitions.

“Administrator” means the City Administrator of the City or the City Administrator’s designee.

“City” means the City of Brownsville, Oregon, and the local government of that     name.

“can” means a receptacle owned by a customer, not to exceed 32 gallons.

“compensation” means and includes:

(a)    Any type of consideration paid for service, including but not limited to rent, the proceeds from resource recovery, and any direct or indirect provision for payment of money, goods, services, or benefits by tenants, lessees, occupants, or similar persons;

(b)    The exchange of service between persons; and

(c)    The flow of consideration from the person owning or possessing the solid waste to the person providing service, or from the person providing service to the person owing or possessing the same.

“container” means a receptacle, at least 1-yard capacity, emptied into a collection vehicle, and provided by the franchisee.

“Council” means the City Council of the City.

“franchisee” means the person granted the franchise by Section 4 of this Ordinance, or a subcontractor to that person.

“person” means an individual, partnership, association, corporation, trust, firm, estate, or other private legal entity.

“recover resources”, “resource recover” and “resource recovery” means the process of obtaining useful material or energy resources from solid waste, including energy recovery, materials recovery, recycling, or reuse of solid waste.

“service” means storage, collection, transportation, treatment, utilization, processing, and final disposal of, or resource recovery from, solid waste; and providing facilities necessary or convenient to those activities.

“solid waste” means all putrescible and non-putrescible wastes, including but not limited to garbage, rubbish, refuse, ashes, swill, waste paper and cardboard, yard debris, residential, commercial, and industrial demolition and construction wastes, discarded residential, commercial, and industrial appliances, equipment, and furniture, discarded, inoperable, or abandoned vehicles or vehicle parts, and vehicle tires, manure, vegetable or animal solid or semisolid waste, dead animals, and all other wastes not excepted by this Ordinance. Solid waste does not include:

(a)    Hazardous wastes as defined by or pursuant to ORS 466.005;

(b)    Sewer sludge and septic tank and cesspool pumping or chemical toilet waste; or

(c)    Reusable beverage containers as defined in ORS 459.860.

“solid waste management” means management of service.

“waste” means material that is no longer usable by or that is no longer wanted by the last user, producer, or source of the material, which material is to be disposed of or be resource recovered by another person.

“yard debris” means grass clippings, leaves, hedge trimmings, and similar vegetable waste generated from residential property or landscaping activities but does not include rocks, soil, concrete, stumps, or similar bulky wood materials.

Section 4:    Exclusive Franchise and Exceptions.

4.1    There is hereby granted to Waste Connections of Oregon, Inc. d/b/a Sweet Home Sanitation Service the exclusive right, privilege, and franchise to provide service in, and for that purpose to use the streets and facilities of, the City.

4.2    Except for the franchisee, and except as otherwise specifically provided in this     Ordinance, it shall be unlawful for any person to:

4.2.1    Provide service for compensation, or offer to provide, or advertise for the performance of service for compensation;

4.2.2    Provide service for compensation to any tenant, lessee, or occupant of any real property of the person.

4.3    Solid waste, whether or not source-separated, and including recyclable material, placed out for collection by the customer, is the property of the franchisee. No person shall remove solid waste placed out for collection and resource recovery by the franchisee. No person (other than franchisee or the owner of the can in question) shall place material in or remove material from a container or can. No person (other than franchisee or the owner of the can in question), including, without limitation, any person acting or purporting to act as an agent for the owner of the can in question, shall climb into or otherwise enter a container or can.

4.4    Nothing in this Ordinance shall prohibit any person from transporting solid waste he produces himself to an authorized disposal site or resource recovery facility providing he complies with Section 9 of this Ordinance. Solid waste produced by a tenant, licensee, occupant, or similar person is produced by the person, not the landlord or property owner.

4.5    The franchisee shall have the right, until receipt of written notice revoking permission to pass is delivered to the franchisee, to enter or drive on any private street, court, place, easement or other private property for the purpose of collecting or transporting solid waste pursuant to this Ordinance.

4.6    The exclusive right, privilege, and franchise to provide service in granted to franchisee by this Ordinance shall extend to all land within the corporate limits of the City. Any land annexed to the City during the term of this Ordinance shall automatically be subject to this Ordinance, and the franchisee shall have the exclusive right, privilege and franchise to provide service to property in any land so annexed. Upon annexation, the franchisee shall contact the property owners of the newly annexed land and arrange for service.

Section 5:    Franchise Term & Renewal.

5.1    The rights and privileges and franchise herein granted begin February ____, 2013, and shall continue and be in full force for a period of 6 years, subject to the terms and conditions of this Ordinance.

5.2    Unless the Council acts to terminate further renewals of the franchise, on each October 5th, the franchise shall be renewed annually for a term of 6 years from each such annual renewal.

Section 6:    Indemnification & Insurance.

6.1    The franchisee shall indemnify and save harmless the City and its officers, agents and employees from any and all loss, cost, and expense arising from damage to property and from injury to or death of persons to the extent caused by any wrongful or negligent act or omission of the franchisee, its agents, or employees in exercising the rights, privileges, and franchise hereby granted.

6.2    None of the rights granted by this franchise shall be exercised by the franchisee until it shall supply the City with a certificate or a policy of commercial general liability insurance in a form approved by the City and naming the City as an additional insured for $5,000,000 in combined single limit coverage for each occurrence of personal liability and property damage.

Section 7:    Rates.

7.1    Rates for service shall be as in the attached Exhibit A, by this reference hereby incorporated in this Ordinance; provided, however, that such will not become effective until the rates have been set by a formal resolution of Council. Except as otherwise provided in this Section 7, changes in rates shall be made only by an ordinance amending Exhibit A.

7.2    The franchisee shall not give any rate preference to any person, locality, or type of solid waste stored, collected, transported, disposed of, or resource recovered. This Section shall not prohibit uniform classes of rates based upon length of haul, type or quantity of solid waste handled, and location of customers so long as those rates are reasonable based upon costs of the particular service and are approved by the Council in the same manner as other rates, nor shall it prevent any person from volunteering service at reduced costs for a charitable, community, civic, or benevolent purpose.

7.3    Disposal or service cost increases established by a unit of local government having jurisdiction or by the owner of the applicable disposal site may be passed on to customers following a thirty (30) day notice of such increases to effected customers.

7.4    In addition to the foregoing, the rates for service described above shall be automatically adjusted annually, effective January 1st of each year during the term of this Ordinance, commencing on January 1, 2013, based on the annual average increase or decrease, if any, of the Consumer Price Index – All Items – for Portland-Salem, OR-WA, as published by the United States Bureau of Labor Statistics (http://data.bls.gov) (the “CPI”) during the most recent twelve (12) month period ending no later than December 31st of the calendar year preceding the upcoming year. Thus, if the CPI increased three percent (3%) from the annual average of 2011 to the annual average of 2012 then the rates for service would automatically be subject to a three percent (3%) increase effective as of January 1, 2013. In the event the CPI index is no longer published, the parties shall confer in good faith to select an alternative index and shall confirm their agreement on a substitute index in writing. If the parties are unable to agree on a substitute index, either party may submit the selection of the substitute index to binding arbitration before a single arbitrator pursuant to the Commercial Arbitration Rules of the American Arbitration Association. All percentages shall be computed to the third decimal place and the change in the rates for service shall be calculated to the nearest cent ($.01).

7.5    In addition to the adjustment mechanisms set forth above, the franchisee may request an adjustment to the rates for service, under the following extraordinary circumstances: (i) any changes in existing, or adoption of new, federal, state, local or administrative laws, rules or regulations that result in an increase in the franchisee’s costs, including but not limited to the imposition of new or the increase to existing governmental, regulatory or administrative taxes or fees; and (ii) in the event that unforeseen circumstances arise which materially affect the franchisee’s costs or revenues under this Ordinance, including but not limited to extraordinary increases in the cost of fuel. The franchisee’s application for an extraordinary rate adjustment shall include a statement of the amount of the requested rate adjustment, the basis there for, and all financial and other records on which the franchisee relies for its claim that the franchisee’s costs have increased. City staff shall promptly review the franchisee’s rate application and notify the franchisee if its application is complete or whether City staff wishes to review and/or audit any additional documents or information reasonably related to the requested increase before submitting the matter to the Council for its consideration. Rate adjustments made under this subsection 7.5 may be requested by the franchisee at any time during the course of an operating year. The Council shall review and consider approval of adjustment requests under this Section 7.5 in its discretion; provided, however, that such approval shall not be unreasonably withheld, conditioned or delayed. The Council shall review and consider such requests within a reasonable period of time after the complete submittal by the franchisee of its application for an extraordinary rate adjustment and after the City has had a reasonable period of time to request, review and audit any applicable financial records of the franchisee. The Council may grant the franchisee’s requested rate adjustment or, based on the information presented, increase or decrease the rates for service in amounts differing from the franchisee’s request. The adjusted rates, if approved by the Council, shall go into effect after customers have received a thirty (30) day notice of such approval.

7.6     In an effort to defray the costs incurred by the franchisee for providing its services under this Ordinance, the franchisee shall be entitled to receive and retain all revenues, if any, from the sale of recyclable material received by the franchisee from its customers.

Section 8:    Franchise Consideration. In consideration of the franchise, and in lieu of a franchise fee, the franchisee shall provide pickup service to any public facility of the City, excluding employees, other than resident caretakers, or City personnel’s personal household waste. The franchisee shall also provide an annual spring clean-up, at no cost to the City, within City limits. The franchisee is not exempt from any general license fee or tax of the City imposed on all businesses.

Section 9:    Franchisee Responsibility. The franchisee shall:

9.1    Dispose of solid wastes collected at a site approved by the local government unit having jurisdiction of the site or recover resources from the solid wastes, both in compliance with Chapter 459, Oregon Revised Statutes, and regulations promulgated thereunder.

9.2    Provide the opportunity to recycle consistent with ORS Chapter 459 and regulations promulgated thereunder.

9.3    Within 30 days after the effective date of this Ordinance, file with the City Recorder a written acceptance of this franchise,

9.4    Provide sufficient collection vehicles, containers, facilities, personnel, and finances to provide all types of necessary service or subcontract with others to provide the service pursuant to Section 14 of this Ordinance. Where one or a few large customers require substantial investment in new or added equipment not otherwise necessary to service the franchised service area, the franchisee may require a contract with those sources providing that the customer will require and pay for service for a reasonable period of time. This contract exception is intended to assist in financing the necessary equipment and in protecting the integrity of the remaining service should the source or sources terminate collection service.

9.5    Respond to any written complaint on service.

9.6    Every three years provide a franchise report to the City. City staff and the franchisee shall work together in good faith to determine the contents of such franchise report.

Section 10:    Public Responsibility. In addition to compliance with ORS Chapters 459 and 459A and regulations promulgated thereunder:

10.1    To prevent recurring back and other injuries to collectors and other persons and to comply with safety instructions to collectors from the State Accident Insurance Fund:

10.1.1    All customers who subscribe to franchisee’s residential rollcart collection service shall use rollcart containers furnished by the franchisee only. All such containers shall remain the property of the franchisee.

10.1.2    To allow proper use of franchisee’s pickup equipment for rollcart containers, all residential customers shall, whether on collection days or for on-call service, place all containers at the street, curb, or other pickup point designated by the franchisee. Containers shall not be loaded beyond the manufacturer’s recommended maximum load weight.

10.1.3    If any disabled residential customer (with a DMV disabled-parking certification, physician’s letter, or other reasonable certification of disability) is unable to roll the container to the street or curb, the franchisee will pick up the container at the customer’s residence at the same rate as curb service. All such containers shall remain the property of the franchisee. Any other customer who wants the container picked up at a location other than the curb shall, at franchisee’s request, specify the location in writing. The location must be visible from the street. The franchisee may charge an additional fee for non-curbside service.

10.1.4    Except when containers are furnished by the franchisee to residential customers, under sub-section 10.1.1, cans may be provided by customers and shall not exceed 60 pounds gross loaded weight or 32 gallons in size. Only round cans shall be used. Cans shall be tapered with a smaller bottom than top opening, shall have handles at the top, and shall have a place for a handhold at the bottom.

10.1.5    Sunken receptacles shall not be used.

10.1.6    All containers, including containers furnished by the franchisee to residential customers under sub-section 10.1.1., shall be rigid, rodent-proof, and approved by the franchisee.

10.1.7    The user shall provide safe access to the pickup point, so as not to jeopardize the safety of the driver of a collection vehicle or the motoring public or to create a hazard or risk to the person providing service. Where the Council finds that a private bridge, culvert, or other structure or road is incapable of safely carrying the weight of the collection vehicle, the collector shall not enter onto the structure or road. The user shall provide a safe alternative access point or system.

10.2    To protect the privacy, safety, pets, and security of customers and to prevent unnecessary physical and legal risk to the collector, a residential customer shall place the container to be emptied outside of any locked or latched gate and outside of any garage or other building.

10.3    Any vehicle used by any person to transport solid wastes shall be so loaded and operated as to prevent the wastes from dropping, shifting, leaking, blowing, or other escapement from the vehicle onto any public right-of-way or lands adjacent thereto.

10.4    Any person who receives service shall be responsible for payment for the service. When the owner of a single or multiple dwelling unit or mobile home or trailer space has been notified in writing by the franchisee of his contingent liability, the owner shall be responsible for payment for service provided to the occupant of the unit if the occupant does not pay for the service.

Section 11:    Supervision. Service provided under the franchise shall be under the supervision of the Administrator. The franchisee shall, at reasonable times, permit the Administrator’s inspection of its facilities, equipment, and books and records related to its charges, rates, and receipts.

Section 12:    Suspension, Modification or Revocation of Franchise.

12.1    Failure to comply with a written notice to provide necessary service or otherwise comply with the provisions of this Ordinance after written notice and a reasonable opportunity to comply shall be grounds for modification, revocation, or suspension of the franchise.

12.2    After written notice from the Council that those grounds exist, the franchisee shall have 30 days from the date of mailing of the notice in which to comply (or commence compliance, if such failure to comply is not capable of being cured within 30 days) or to request a public hearing before the Council.

12.3    If the franchisee fails to comply within the specified time or fails to comply (or commence compliance, if applicable) 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 that action contingent upon continued non-compliance.

12.4    At a public hearing, the franchisee and other interested persons shall have an opportunity to present oral, written, or documentary evidence to the Council.

12.5    If 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 that action.

Section 13:    Preventing Interruption of Service. Whenever the Council determines that the failure of service or threatened failure of service would result in creation of any immediate and serious health hazard or serious public nuisance, the Council may, after a minimum of twenty-four (24) hours actual notice to the franchisee and a public hearing if the franchisee requests it, authorize another person to temporarily provide the service to provide emergency service.

Section 14:    Termination of Service. The franchisee shall not terminate service to all or a portion of its customers unless:

14.1    The street or road access is blocked and there is no alternate route; provided, however, the City shall not be liable for any such blocking of access;

14.2    Excessive weather conditions render providing service unduly hazardous to persons providing service, or the termination is caused by accidents or casualties caused by an act of God or a public enemy; or

14.3    A customer has not paid for service provided after a regular billing, or does not comply with franchisee’s reasonable policies as in effect from time to time.

Section 15:    Subcontracts. The franchisee may subcontract with others to provide a portion of the service where the franchisee does not have the necessary equipment for service. Such a subcontract shall not relieve the franchisee of total responsibility for providing and maintaining service and from compliance with this Ordinance.

Section 16:    Transfer of Franchise. The franchisee shall not transfer the franchise or any portion of it to other persons without the prior written approval of the Council, which consent shall not be unreasonably withheld. The Council shall approve the transfer if the transferee meets all applicable requirements met by the original franchisee.

Section 17:    Interpretation. Any interpretation or finding by any court of competent jurisdiction that any portion of this Ordinance is unconstitutional or invalid shall not invalidate any other provision of this Ordinance.

Section 18:    Enforcement. The City shall enforce the provisions of this Ordinance by administrative, civil, or criminal action as necessary to obtain compliance with this Ordinance. Following written notice by the franchisee to the Administrator of a violation of any provision of this Ordinance, the City shall have seven days in which to commence enforcement action(s) against the violator(s) identified in the franchisee’s notice. In the event the City fails to commence enforcement action(s) against the violator(s), the City shall pay to the franchisee a penalty payment of $100 per day for each day after the initial seven-day period. Notwithstanding the foregoing, the franchisee may independently enforce the exclusivity provision of this Ordinance against third-party violators, including but not limited to seeking injunctive relief and/or damages, and the City shall use good-faith efforts to cooperate in such enforcement actions brought by the franchisee.

Section 19:    Arbitration.

19.1    If any controversy regarding language of this Ordinance, performance thereof, or negotiation of rates, charges, and frequency of service cannot be settled by the parties, the controversy shall be submitted to arbitration. Either party may request arbitration by providing written notice to the other. If the parties cannot agree on a single arbitrator within 10 days from the giving of notice, each party shall within 5 days thereafter appoint one arbitrator. The two arbitrators shall immediately select an impartial third arbitrator to complete a three-member panel. If either party fails to select an arbitrator, the other party may petition the Chief Judge of the Circuit Court of Linn County for designation of the arbitrator. The arbitration shall be conducted in accordance with ORS 36.300 et seq., or the provisions of any successor statute. In preparation for the arbitration hearing, the parties shall have the rights of pre-trial discovery as supervised by the arbitrator(s).

19.2    The cost of the arbitrator or arbitration panel shall be shared equally by the franchisee and the City.

Section 20:    Attorney’s Fees. If any arbitration, action, or enforcement proceedings or appeal thereof is instituted in connection with any controversy arising out of this Ordinance, the performance of the rights and obligations herein, or the failure to perform, the prevailing party shall be entitled to recover, in addition to costs end disbursements, such sum as the person or body rendering the decision may adjudge reasonable as attorney’s fees.

Section 21:    Notice. Any notice required by this Ordinance shall be delivered in writing by personal service upon an officer of the City or franchisee or by certified mail addressed to the City at:

City of Brownsville

P. O. Box 188

Brownsville, Oregon 97327

or to the franchisee at:

Waste Connections of Oregon, Inc. d/b/a Sweet Home Sanitation Service

P.O. Box 40

Sweet Home, Oregon 97386

The City and the franchisee may change its address designation upon written notice to the other.

Section 22:    Repealer. Ordinance No. 661, adopted by the Council October 5, 1998, all amendments thereto, and portions of other ordinances in conflict with this Ordinance are hereby repealed effective February 1st, 2013.

Section 23:    Emergency Clause. To provide for safe and sanitary solid waste management in the City and thereby preserve the health, safety, and welfare of the residents thereof, an emergency is declared to exist, and the terms and provisions of this Ordinance shall become effective upon enactment of this Ordinance.

PASSED BY THS COUNCIL AND APPROVED BY THE MAYOR THIS 22nd DAY OF JANUARY, 2013.

	__________________/s/____________
	Mayor
ATTEST:
__________________/s/____________
City Administrator

EXHIBIT A

Rates for Service

[Please attach a copy of Resolution 700 for the file.]