8.12.406 Contracts and franchises | Wasco Municipal Code

8.12.406 Contracts and franchises.

A. Authorization. The city may enter into one or more contracts or franchise agreements to provide any or all solid waste handling services, with or without advertising for bids, within the city boundaries. The city council may prescribe the terms, conditions or limitations in contracts or franchise agreements as it may deem necessary, including:

1. Granting nonexclusive, semi-exclusive or exclusive franchises; and

2. Charging franchise or solid waste administrative fees.

If the city does not enter into contracts or franchise agreements for any type of solid waste management handling, then the city will provide that service.

B. Stop Service. The city may direct a franchised hauler or the city to stop service at the following premises located in the city:

1. Premises that are demolished or no longer authorized to be occupied; or

2. Premises from which the city has authorized generators to self-haul under Article III of this chapter.

The franchised hauler or the city must stop providing services to those premises by the date directed by the city. It must delete that premises from its customer subscription lists and give the city a copy of its revised lists promptly upon city request.

"Franchised hauler" means anyone who enters into a legal, valid and binding contract or franchise agreement with the city under this section, which agreement is neither expired nor terminated, including franchised recyclers.

"Solid waste enterprise" means anyone that is regularly engaged in the business of providing solid waste handling services, including any:

• Individual;

• Partnership;

• Joint venture;

• Unincorporated private organization; or

• Private corporation.

C. Conditions of Grant. Franchise grants must be conditioned upon a franchised hauler’s meeting its obligations under the franchise agreement and applicable law, in the sole judgment of the city.

D. Franchise Agreement. If city council grants a franchise, the city must enter into a franchise agreement with the franchised hauler for solid waste handling services including, at a minimum, all of the following:

1. Scope of the grant and its exclusions, if any;

2. Term of the agreement and obligations that survive the expiration of the agreement;

3. Scope of services: specifications and exceptions;

4. Service standards, such as standards related to litter, noise, and franchisee conduct;

5. Requirements to timely respond to city correspondence;

6. Provisions related to public health and safety, such as hazardous waste handling procedures and employee training;

7. Customer service requirements, such as responses to customer complaints;

8. Customer service charges: amount, invoicing;

9. Maintenance of records and timely submissions of complete and accurate reports;

10. Indemnification, release and hold harmless, and defense of the city from and against all liabilities arising out of or in any way connected to franchise services;

11. Types and amount of insurance coverage (such as automobile, general liability and pollution transport);

12. Financial assurance of service (such as a letter of credit);

13. Contract administration and enforcement, including interim remedies such as liquidated damages as well as final termination of agreement; and

14. Transfer of the contract.

The city may include other provisions that it deems necessary or desirable, in its sole discretion.

1. Amount Specified in Resolution of the City Council. The city council may establish the amount of franchise fees/franchise agreements under a resolution on the basis of gross receipts or other manner of calculation (such as subscribed capacity or disposed solid waste).

2. Obligation of Franchised Hauler. Franchised haulers must pay the city the franchise fees under resolution of the city council.

a. Franchised hauler must pay franchise fees on or before the first day of the second month immediately following the month in which the franchised hauler received gross receipts (or other basis of calculation). For example:

i. July. Gross receipts received July 1st through 31st;

ii. August. After July 31st, amount of July gross receipts ascertained and corresponding July franchise fees calculated; and

iii. September 1st. July franchise fee paid on or before September 1st.

b. Franchise fees will be deemed paid at any of the following times:

i. Date of personal delivery during hours that the City Hall is open for business to the public;

ii. The date of postmark of mailed delivery with the United States Postal Service; or

iii. Other proof satisfactory to the city that franchise fees were deposited in mail or other delivery service on or before the date their payment is due.

c. If the franchised hauler does not timely pay the franchise fee, then it must pay the city:

i. A late payment charge of two percent of the amount of unpaid franchise fees, plus

ii. Interest equal to:

(A) One and one-half percent for each late month; or

(B) The maximum amount permitted by law.

4. Place of Payment. Franchised hauler must deliver payment to the following address, or other address directed by the city manager:

City Finance Department

The City of Wasco

746 8th Street

Wasco, CA 93280

5. Manner of Payment. Together with payment of franchise fees, the individual submitting the payment and the chief financial officer of the franchised hauler (or other person acceptable to the city manager) must submit the following:

a. Documentation in form and detail satisfactory to the city manager showing the basis for calculating the franchise fees, together with additional information that the city manager may determine is necessary to calculate or verify the franchise fees; and

b. A representation and warranty as follows:

I represent and warrant, under penalty of perjury of the laws of the State of California, that I am familiar with the financial transactions of [INSERT NAME OF FRANCHISED HAULER] and am responsible for keeping and maintaining its financial records, including gross receipts thereof, and I have reviewed the [INSERT DATE AND DESCRIPTION OF ACCOMPANYING RESIDENTIAL REFUSE HAULER FEE PAYMENT ACCOUNTING STATEMENT]. To my best knowledge and belief after inquiry, the statement is true, correct and complete.

The city may rely on the documentation, representations and warranties filed by franchised hauler, but they are not deemed conclusive as to the information presented or statements made. The city may take additional measures and actions to determine and collect due and payable franchise fees.

6. Payment Security. Within thirty days of city direction, a franchised hauler must give the city a letter of credit or certificate of deposit satisfactory to the city, in an amount equal to the greater of the following:

a. One-half of the amount of franchise fees that the franchised hauler owed the city during the prior calendar year; or

b. The amount of franchise fees that the franchised hauler owed the city during the preceding one hundred eighty days; or

c. Other amount satisfactory to city under the franchise agreement.

The city may draw on the letter of credit or liquidate the certificate of deposit at any time in an amount equal to due and payable franchise fees and late payment fees that the city calculates the franchised hauler owes the city.

7. Overpayment Claims. A franchised hauler may ask the city to refund overpayments of franchise fees in the format and with documentation satisfactory to the city. If the city agrees that franchised hauler overpaid franchise fees, the city may do either of the following:

a. Refund the excess amount; or

b. Credit the excess amount against future payments of franchise fees. Franchised haulers may not credit or offset any claimed excess payments of franchised fees to future payments of franchise fees or other amounts without city written consent of the city manager.

a. Decision of Director of Public Works. The franchised hauler may submit disputes with respect to the franchise fee to the public works director. The director (or other person designated by the director) will resolve those disputes, such as disputes over calculation of amount of the franchise fee.

b. Appeal to the City Manager. Within ten days of the director’s decision the franchised hauler may appeal the director’s decision to the city manager. The appeal must include both of the following:

i. An explanation of the basis of the appeal; and

ii. The prepayment of the city’s projected costs and expenses of conducting the appeal, such as its costs of staff time and expenses of consultants’ fees. The burden of proof will be on the franchised hauler.

c. Final Decision of the City Manager. The city manager (or other person that the city manager designates) will hear the appeal and give the franchised hauler a written decision. The decision is final.

d. Payment/Refund. Within thirty days of the city manager’s decision:

i. The franchised hauler will pay the city any insufficient payments, including any late payments;

ii. The city will refund the franchised hauler any excess payments.

e. The City’s Costs and Expenses. Within thirty days of the city’s request the franchised hauler will reimburse the city for the city’s costs and expenses in excess of prepaid costs and expenses.

1. Substantiating Information. Franchised haulers will maintain accurate and complete books, accounts and records of all information relating to the calculation of the franchise fee, including gross receipts (or other basis for calculating the franchise fee).

2. Audit. The city may audit the books, accounts and records of franchised haulers.

a. Within two weeks of the city’s request a franchised hauler must give the city either:

i. Copies of requested material; or

ii. Access to requested material at locations within Kern County.

b. Records include documentation required under the franchise agreement and financial and operating records with respect to franchise operations in the city, such as:

i. Gross receipts;

ii. Customer subscriptions; and

iii. Customer accounts.

c. If the audit demonstrates to the satisfaction of the city an error in the amount of franchise fees that franchised hauler paid the city, then within thirty days after the city gives franchised hauler a copy of the audit results the franchised hauler must pay the city the following amount:

i. The understated franchise fees; plus

ii. The late payment charges and interest under subsection E of this section; plus

iii. The city’s costs and expenses of conducting the audit, including time spent by the city employees and fees paid by the city to independent contractors such as accountants or financial advisors.

G. License Fees or Business Taxes. Franchise fees are in addition to any license fee, business tax or other charge imposed by the city.

H. Use of Franchise Fees. The city may use the proceeds of the franchise fees for any costs and expenses of the city permitted under either or both this chapter or other law with respect to solid waste handling to fund the city’s integrated waste management programs as they may be adopted and amended from time to time, including any or all of the following:

1. Administering and enforcing solid waste contracts, ordinances and the Wasco Municipal Code;

2. Implementing solid waste programs required by law, including the city’s solid waste plan elements:

a. SRRE/source reduction and recycling element;

b. HHWE/household hazardous waste element; and

c. Nondisposal facility element;

3. Mitigating wear and tear on infrastructure related to solid waste program implementation;

4. Protecting and promoting the public health and welfare with respect to solid waste, including without limitation putrescible wastes that may attract vectors, vermin and otherwise comprise a nuisance; and

5. Any other costs incurred or expenses paid by the city in accordance with law. (Ord. 633 (Att. A), 2013).