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HomeMy WebLinkAboutORD 83-156 ORDINANCE AN ORDINANCE GRANTING A FRANCHISE TO BROWNING FERRIS INDUSTRIES, INC . TO OPERATE A COMMERCIAL CLOSED CONTAINER GARBAGE COLLECTION SERVICE IN THE CITY OF BEAUMONT; PROVIDING THE TERMS, CONDITIONS, OBLIGATIONS, AND LIMITATIONS OF SUCH SERVICE; PROVIDING INDEMNITY TO THE CITY; RETAINING AUTHORITY TO REGULATE RATES; PROVIDING FOR FRANCHISE PAYMENTS; AND PROVIDING FOR SEVERABILITY. WHEREAS, Browning Ferris Industries, Inc. ( the "Company" ) has requested a franchise to operate commercial closed container garbage collection service within the City of Beaumont, Texas ( the "City" ) ; and, WHEREAS, the City desires to grant such franchise; NOW, THEREFORE, BE IT ORDAINED BY THE CITY OF BEAUMONT: Section 1 . Grant of Authority There is hereby granted by the City to Browning Ferris Industries, Inc. the right and privilege to operate and maintain within the City a commercial closed container garbage collection service ( the "service" ) . For purposes of this franchise, the term "commercial closed container garbage collection service" means the regular collection of garbage from enclosed, mechanically-emptied "dumpster" type containers from locations in the City other than single-family residences, and the disposal of such material in accordance with law . The franchise granted herein is nonexclusive, and franchises may be granted to other persons for service. Section 2 . Term of Franchise The franchise herein granted shall take effect and be in force sixty ( 60) days after the final passage hereof as required by law and upon the filing by the Company of an acceptance with the City Clerk , and shall continue in force and effect for a term of five ( 5 ) years thereafter. The acceptance required hereunder must be in writing and filed with the City Clerk within thirty ( 30) days after final passage hereof. Section 3 . Rates The Company shall establish rates for service which are uniform as to customer class based upon such criteria as container size, frequency of collection, and distance of travel. The Company shall file its initial rates for service with its acceptance as required herein. Such rates shall, unless modified by the City, be effective with the effective date of this franchise. Any modification in rates by the Company shall first be filed with the City Clerk and City Attorney and shall be effective thirty days ( 30) after such filing unless modified by City as provided herein. Nothing herein shall prevent the Company from charging uniform rates which are less than the rates filed with the City. The City shall have the right to establish rates charged by Company for services performed hereunder, after notice and hearing. Rates established by the City shall be sufficient to allow the Company an opportunity to earn a reasonable return on its invested capital used in providing such services. 2 - Section 4 . Franchise Fee The Company shall pay to the City, on or before the fifteenth ( 15th) day of each month, a sum equal to five percent (5%) of the gross revenues received for service in the previous month as payment for the use of the City' s streets, alleys and rights-of-way. The payments herein provided do not relieve Company from the payment of ad valorem taxes, special assessments, charges, or other fees applicable to the public generally. City shall have the right at any reasonable time to audit the books and records of the Company and the Company is hereby required to make such books and records available at the request of City. The following reports shall be filed monthly with the City Manager or his designee, along with the street rental payment required herein: 1 ) A listing of all new commercial accounts served, including customer name, address, frequency of pick-up, size of container or type of service and charge for same. 2 ) Names and addresses of commercial customers dropped from service for any reason and the reason, if available, that such customer was dropped from service. 3 ) A statement under oath of all revenues derived from commercial closed container garbage collection services. 3 - � 4 ) A listing of all vehicles used in providing service and all vehicles which have been added to or removed from providing such service. Such listing shall include state license number, year, make, model, and manufacturer' s rated capacity for each vehicle. Section 5. Indemnity, Insurance and Bond The Company shall at all times during the effective period of this franchise, carry liability insurance as provided herein. The Company covenants and agrees at all times to indemnify and save harmless the City, its officers, agents, employees, and any member of the public against any and all injuries, damages, claims, causes of action or loss of compensation arising or resulting from Company' s operations under this franchise, whether or not such loss was caused by the negligence of the City, its agents, servants or employees. Upon notice given Company by City, Company must defend at its own expense, any action or suit brought against the City because of any work or other acts done by the Company under the terms of this franchise. Counsel chosen by Company to defend City must be satisfactory to City. Company will pay any final judgment which might be obtained against City by reason of any work or acts done hereunder by Company , its agents, servants or employees, and Company will pay all damages occurring to any person or property, public or private, resulting from any fault or neglect on its part or on the part of its agents or employees. 4 - The Company agrees to carry insurance as follows: 1 ) Workers Compensation The Company shall furnish the City Clerk a certificate of insurance indicating workers compensation coverage as required by the State of Texas. 2 ) Automobile Liability Insurance The Company shall carry in its own name, a policy in comprehensive form to insure the automobile liability of its operation with limits of not less than $1 ,000,000 per occurrence for bodily injury and, in addition, not less than $100,000 property damage. This policy shall name City as an additional insured and provide for thirty ( 30) days notice to City prior to cancellation. A certificate of insurance certifying such coverage shall be filed with the City Clerk before the effective date of this franchise, and it shall be maintained in force during the term of the franchise. 3) General Liability The Company shall carry , in its own name, a comprehensive liability insurance policy including contractual coverage 5 - for operations other than automobile with limits of not less than $1 ,000,000 per occurrence for bodily injury , and $100,000 per occurrence for property damage. The policy shall name the City as a named insured and provide for thirty ( 30) days notice to City prior to cancellation. A certificate of insurance certifying such coverage shall be filed with the City Clerk before the effective date of this franchise and maintained in force during the term of the franchise. 4 ) Performance Bond The Company shall furnish a performance bond for the faithful performance of all provisions of this franchise, said performance bond to be executed by a responsible surety company authorized to do business in the State of Texas and be in the amount of $500,000. 00. Said performance bond, payable to the City, shall be furnished by the Company and remain in force during the entire term of the franchise, and shall indemnify the City against. any loss resulting from any failure of performance by the Company 6 - 45 �' under this franchise. Said bond shall be approved by the City Attorney and filed with the City Clerk before the effective date of this franchise. Section 6 . Compliance with Laws and Ordinances The Company shall at all times during the term of this franchise, be subject to all lawful exercise of police power by the City and to such reasonable regulations as the City shall hereafter by ordinance provide. In addition, the Company will observe all city, county, state and federal laws regulating the collection and disposal of garbage and trash. Section 7 . Service Standard and Equipment The Company shall maintain and operate its collection system and equipment in good order to render efficient service subject to the terms of this franchise. The Company shall obtain and maintain in good working order sufficient equipment to provide regular service throughout the City of Beaumont. The trucks used in the collection of garbage or refuse shall be all metal, water tight, and shall be equipped with closed bodies equipped with hydraulically operated devices for compacting collected garbage and meet all federal and state laws and regulations. Collection vehicles and all containers shall be painted and numbered and shall have the Company' s name and telephone number painted in letters of a contrasting color. All vehicles and containers shall be kept in a clean and sanitary 7 - condition and all vehicles shall be cleaned inside and outside at least once each week . Section 8 . Providing Service The Company shall provide service to any person, firm, corporation, association or entity inside the City of Beaumont who requests such service and is not delinquent in the payment of collection charges due the Company. Section 9 . office The Company shall establish and maintain an office with telephone service and shall keep said office open for business from 9: 00 a .m. to 5 : 00 p.m. each and every day except Saturday, Sunday and holidays which are recognized by the City for its general employees. Section 10. Interruption of Service In the event that service shall be interrupted for any reason for more than forty-eight ( 48) hours, the City shall have the right to make temporary independent arrangements for the purposes of continuing this necessary service to its residents in order to provide or protect the public health and safety. If the interruption in service mentioned herein continues for a period of seventy-two (72) hours, then the City shall have the right to terminate the rights and privileges granted in this franchise. 8 - Section 11 . Termination In the event that any provision of this franchise is violated by the Company , the City may serve written notice upon the Company and the surety of its intention to terminate this franchise. The notice shall contain the reasons for such intention to terminate the franchise. Unless within ten ( 10) days after mailing such notice by City to the Company , such violation shall cease, or satisfactory arrangements for correction be made by Company , the City Council may , after a public hearing in which Company is provided an opportunity to present evidence concerning such violation, by motion duly adopted, declare the franchise terminated and serve written notice upon the Company and surety of the termination and the termination of the franchise shall be effective upon the mailing of such notice. In the event of any such termination, the surety shall have the right to take over and perform under the franchise, provided, however, that if the surety does not commence performance thereof by the effective date of termination of the franchise, or if the Company refuses to continue the work , or any portion thereof, prior to the effective date of termination of the franchise, the City may take over the work or portion thereof and prosecute the same, by contract, franchise or otherwise, for the account and at the expense of the Company . Company and it' s surety shall be liable to the City for any excess costs, expenses, and revenues occasioned by the City taking over service, and in such event, the City may take possession and utilize in prosecuting the work , such appliances, equipment and sites as may 9 - have been used by the Company and are necessary therefor. After issuance by the City of its notice of intention to terminate the franchise, the Company shall not remove from City any of its equipment normally used in the prosecution of the work until arrangements to continue the work , by contract, by surety or otherwise, have been completed by the City. Section 12. First Option to Purchase Equipment Time for Exercising Option. Within sixty ( 60) days after notice of termination of this franchise by either party or within sixty ( 60) days prior to expiration of this franchise term or any subsequent renewal term, the City and Company hereby agree that the City =;, 31 have the first option to purchase from the Company or the City shall have the option to provide for the purchase by a subsequent provider of service all or part of Company' s refuse collection vehicles and equipment used in the performance of this frand—I- `5c. However, the City shall not be required to exercise this option. The purchase price shall be the fair market value or at a value agreed upon by the City Council and the Company in writing . Fair Market Value. The fair market value shall be the appraised market value as determined by a board of three ( 3 ) qualified appraisers of truck equipment none of whom shall be employees of the City or the Company , one to be selected by the Company , one to be selected by the City , and a third to be selected by the other two appraisers. The opinion of the majority of the board as to the market value of each collection vehicle shall be /� - 10 - final and shall establish the amount for each vehicle which the City shall pay therefor. Appraisers Fees. The charges for service by the appraiser for the City shall be borne by the City and the charge for services by the appraiser selected by the Company shall be borne by the Company. The charge for services by the third appraiser shall be borne equally by the City and the Company . As referred to herein, charge for services refers only to the actual charge for appraisals and the City shall not be responsible for any costs for travel or subsistence for either the appraiser for Company or the third appraiser if such are selected from outside Jefferson County. If no Agreement as to Fair Market Value. If on the expiration date of the contract for any reason the appraised value of the vehicles shall not have been determined, the City shall be entitled to immediate possession and use of said vehicles and the Company shall immediately surrender possession of the same to the City. The City agrees to pay the Company a fair rental value for use of the vehicles. The fair rental value shall be based on the actual average daily maintenance and operating cost for each vehicle during the twelve months previous to the expiration date of the contract, and is not to include any initial or depreciation costs. Should any collection vehicle used in the performance of the contract and to be purchased by the City not be fully paid for and the City should make payments as due on any collection vehicle, then all amounts, both for payments and interest, paid by the City shall be deducted from the total price due the Company for the purchase of such vehicle. Titles to Collection Vehicles. The Company agrees to deliver to the City good and sufficient title to such collection vehicles upon receiving payment as determined by the aforesaid appraisal and to pay all attorney' s fees and charge for transferring titles. Section 13. Subordination Agreement Company agrees to make any lien on the equipment of Company in providing service subordinate to the rights of City under this franchise. Section 14. Transfer of Franchise Rights Franchise rights granted hereunder shall not be transfered to another without the approval of City. A single transfer or a series of transfers of Company' s stock which constitute a transfer of a majority interest in Company is subject to the prior approval of City. Section 15. Notices Where written notices are provided for in this ordinance, same shall be sufficient to notify Company when provided by certified mail to the address furnished by Company to City. Notice to City is sufficient if mailed by certified mail to P. O. Box 3827, Beaumont, Texas 77704. j - 12 - Section 16. If any section, sentence, clause, paragraph or phrase of this ordinance other than Section 4 is for any reason held to be invalid or illegal, such invalidity shall not effect the remaining portions of this ordinance. If Section 4 hereof is held to be invalid for any reason, the ordinance shall be immediately invalid. Section 17. It is agreed by City and Company that venue of any legal proceedings under this franchise contract shall be at Jefferson County, Texas. Section 18. Vehicle Permits In order to facilitate identification of those vehicles which are providing service inside the city limits, the following permitting procedure shall be followed: 1 . Twenty ( 20) days prior to the beginning date of this franchise and annually thereafter on January 1 of each year, the Company shall furnish to City a list of all vehicles providing service that will be using the City' s landfill site for disposal. Such list shall identify which vehicles provide service only from inside the city limits and which vehicles provide any service from outside the city limits. 2. City will provide an identification permit to be affixed to the vehicle as directed by City. The annual permit fee shall be $10.00 per vehicle. This fee is in addition to any other fees or charges for disposal at the municipal landfill. 13 - 3 . The Director of Urban Transportation shall administer the permit procedure. 4 . Failure to comply with this provision or to falsify the information concerning the location of the service of the vehicle shall be a material breach of this franchise. Should City decide not to terminate this franchise because of any violation of this Section, Company' s disposal fee at City' s landfill shall; be doubled for all of Company' s vehicles for a period of sixty ( 60) days. PASSED BY THE CITY COUNCIL of the City of Beaumont of first reading this the e_ day of � 1-1 19 0.3 PASSED BY THE CITY COUNCIL of the City of Beaumont on second reading this the Zne,4, day of Y 19 F3 . // PASSED BY THE CITY COUNCIL of the City of Beaumont this the (0, day of 19, (4& 014�- - Mayor - ACCEPTANCE; BROWNING FERRIS INDUSTRIES, INC . By: 14 -