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A. Persons And Practices Exempt From This Franchise: Nothing in this chapter requires a franchise from the following persons for the following businesses or practices:
1. 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.
2. The collection, transportation and reuse or recycling of materials which have been separated by type, by a religious, charitable, benevolent or fraternal organization, which organization was not organized for solid waste management purposes and which organization is using the activity for fundraising or environmental protection services.
3. The collection, transportation or redemption of returnable beverage containers under Oregon Revised Statutes chapter 459 and that portion thereof commonly known as the "bottle bill".
4. The generator or producer who transports and disposes of waste as an incidental part of regularly carrying on the business or service of auto wrecking, to the extent licensed by the state of Oregon; demolition, land clearing or construction, janitorial service, street sweeping, auto body recovery or septic tank pumping or sludge collection. Janitorial service does not include cleanup of accumulated or stored wastes of customers other than those generated by the service.
5. The transportation by a person of his own solid waste generated or produced by such person to a disposal site, resource recovery site or market. In the case of a nonowner occupied property, the waste is generated or produced and is owned by the occupant and not by the landlord, property owner, association of property owners or the agent of such landlord, property owner or association. Except that when such property is vacated, solid waste remaining on the property shall become the property of the landowner. Any transportation of solid waste allowed under this subsection shall comply with the provisions of subsection 4-1-6A of this chapter.
6. The purchase and transportation of scrap metals and the business of rendering.
7. The providing of service for hazardous and infectious waste.
8. The providing of service for sewerage, cesspool or septic waste.
B. Practices Prohibited Without A Franchise: Unless exempted by subsection A of this section or franchised pursuant to subsection C of this section, no person shall:
1. Solicit for service customers; or
2. Advertise the providing of services; or
3. Provide service in the city.
C. Grant Of Exclusive Franchise: There is hereby granted to Miller & Sons Excavating the exclusive right, privilege and franchise to provide service within the city limits as of November 1, 2007, and any area that may be hereafter annexed to the city and, for that purpose, to utilize the streets and facilities of the city.
D. Franchise Term: The rights, privileges and franchise herein are granted until December 31, 2011. The term shall commence on November 1, 2007, or such later date as the terms of the franchise ordinance are accepted by the franchisee and all supporting and required documentation has been supplied to the city. All renewal terms for this agreement shall be ten (10) years. A letter from the city reoffering the franchise and an acceptance of those terms by a written response from the franchisee shall suffice to renew this agreement. Neither party is under an obligation to renew the franchise at its expiration.
E. Franchisee Responsibility:
1. The franchisee shall:
a. Dispose of the solid waste at a site approved by the Oregon department of environmental quality or otherwise recycle or resource recover all or any part thereof. All disposal and recycling shall be done in accordance with all applicable federal, state and local statutes and regulations.
b. Provide and keep in force general liability insurance, and public liability insurance on each vehicle with combined single limits of at least five hundred thousand dollars ($500,000.00) and show the city as an additional insured with combined single limits of at least five hundred thousand dollars ($500,000.00). The franchisee shall furnish to the city a certificate of insurance or a copy of the declaration page, which shows the city as an additional insured. The policy shall provide that it not be canceled without thirty (30) days' written notice to the city. The liability limits may be increased by resolution of the council at any time when the franchisee submits a request for rate review. The franchisee shall indemnify and hold harmless the city from any claim for liability or damage, which may arise or result from franchisee's actions pursuant to this chapter. The franchisee shall also provide environmental or pollution insurance coverage in the amount sufficient to protect the city from environmental claims, unless this provision is waived by the city.
c. Within thirty (30) days after the effective date hereof, the franchisee shall file with the city recorder a written acceptance of the franchise by endorsing acceptance on a copy of the ordinance codified in this chapter. Included with this acceptance shall be proof of liability insurance, environmental or pollution insurance if required, and proof of a letter of credit sufficient to meet the requirements of subsection E1f of this section.
d. Provide sufficient collection vehicles, containers, facilities, personnel and finances to provide all types of necessary service or subcontract to provide such service.
e. Respond to any written complaint on service and try to respond to any complaint relayed by the city either by telephone, in person or writing.
f. Provide a letter of credit in the amount of twenty thousand dollars ($20,000.00) guarantying upon the full and faithful performance of this chapter. In the event that the council finds that the franchisee has adequate experience and otherwise meets the requirements to guarantee service, it may waive, by resolution, all or part of the bond requirement.
g. Be an independent contractor. Franchisee's employees are solely the employees of franchisee and in no sense either the direct or borrowed employees of the city. City is not, and shall not be, subject to any obligation or duty to furnish or pay workers' compensation or other insurance for franchisee or franchisee's employees. Franchisee retains the right of directing and controlling both franchisee's employees and equipment.
h. Pick up solid waste from all residential customers who request service with the franchisee for service once a week. Franchisee is required to provide pick up service for any customer within the city who so requests unless the customer is in violation of the provisions of this chapter.
i. Franchisee must provide pick up service for all business, industrial and commercial customers who request service, provided they are not in violation of the provisions of this chapter.
j. Use modern type compactor trucks and drop box trucks in providing service and may also use satellite or open vehicles. If a solid waste collection vehicle becomes unsuitable for service due to unsafe condition, improper maintenance or obsolescence, the council may order replacement of the vehicle within sixty (60) days. The vehicles used in collection shall be kept in good and safe operating condition, kept clean and be so loaded and operated as to prevent solid waste from escaping onto public ways or public or private lands adjacent thereto.
k. Exercise due care to prevent injury to public or private property.
l. Pick up of solid waste will be provided according to a regular weekly schedule. A copy of the schedule will be provided to the city. Franchisee will provide service according to the schedule unless he obtains city approval to do otherwise. The franchisee will provide customers written notice forty eight (48) hours in advance of deviations from the regular schedule. If delay is due to unforeseeable breakdowns, such delay shall be no more than twenty four (24) hours. The franchisee will put notice at the post office and publish on the Heppner local area TV channel of all delays.
2. The franchisee is not required to store, collect, transport, transfer, dispose of or resource recover any hazardous or infectious waste; provided, however, that the franchisee may provide such service outside this chapter in compliance with all applicable laws, ordinances and regulations.
3. The franchisee may subcontract with others to provide a portion of the service where the franchisee does not have the necessary equipment or service. Such a subcontract shall not relieve the franchisee of responsibility for providing and maintaining service and for compliance with this chapter.
4. The franchisee shall not:
a. Give any rate preference to any person unless approved by the city.
b. Transfer this franchise or any portion thereof to other persons without prior written approval of the council.
F. Supervision: Service under the franchise and other requirements of this chapter shall be under the supervision of the city manager. Franchisee shall, at reasonable times, permit inspection of his facilities, equipment and personnel providing service.
G. Suspension, Modification Or Revocation Of Franchise:
1. Failure to provide the necessary service or otherwise comply with the provisions of this chapter after written notice and reasonable opportunity to comply shall be grounds for modification, suspension or revocation of the franchise.
2. After written notice from the council that such grounds exist, the franchisee shall have twenty (20) days from the date of mailing of the notice in which to comply or request a public hearing before the council.
3. At the public hearing, the franchisee and other interested persons shall have an opportunity to present oral, written or documentary evidence to the council.
4. If the franchisee fails to comply within the time specified or if the council hearing is held, the council may suspend, modify or revoke the franchise or make such action contingent upon continued noncompliance.
H. Preventing Interruption Of Service: The franchisee agrees as a condition of his franchise that whenever the council determines that a failure of service is creating an immediate and serious health hazard or serious public nuisance, the council may authorize another person to temporarily provide service.
I. Termination Of Service: The franchisee shall not terminate service to all or a portion of his customers unless:
1. The street or road access is blocked and there is no alternate route; or
2. Excessive weather conditions render 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
3. A customer has not complied with subsection A of this section or has not paid for service provided or the city has requested the franchisee to discontinue service; or
4. In the event of a foreseen unsafe situation which could result in injury or accident; or
5. The occasion of strike or riot which makes the giving of service unduly risky to service personnel; or
6. Ordered by a legislative, administrative or judicial body having jurisdiction; or
7. The service at a particular location would jeopardize the safety of the franchisee's driver and/or collection vehicle or of the motoring public; or
8. The customer has not provided reasonable access to the pick up point of the solid waste containers so that there is no hazard or risk to the person and/or equipment providing service.
9. When the above conditions are removed or abated, service shall immediately resume unless otherwise determined by this chapter.
10. The franchisee shall not terminate service to the city unless ninety (90) days' written notice has been given and approval is obtained from the council. Granting of approval is discretionary with the council. (Ord. 563-08, 6-9-2008)