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O-93-2611 - 1/20/1993ORDINANCE NO. 1 1 AN ORDINANCE GRANTING A FRANCHISE TO ROUND ROCK REFUSE, INC. TO ENGAGE IN THE BUSINESS OF COLLECTING REFUSE FROM COMMERCIAL ESTABLISHMENTS IN THE CITY OF ROUND ROCK, TEXAS; ESTABLISHING RATES; PROVIDING FOR SEVERABILITY; PROVIDING FOR AN EFFECTIVE DATE; PROVIDING FOR A SAVINGS CLAUSE AND REPEALING CONFLICTING ORDINANCES OR RESOLUTIONS. BE IT ORDAINED BY THE COUNCIL OF THE CITY OF ROUND ROCK, TEXAS: I. GRANT OF FRANCHISE AND GENERAL PROVISIONS Section 1: Definitions For the purpose of this Ordinance the following terms, phrases, words and their derivations shall have the meaning given herein. When not inconsistent with the context, words used in the present tense include the future, words in the plural number include the singular number, and words in the singular number include the plural number, and the use of any gender shall be applicable to all genders whenever the sense requires. The words "shall" and "will" are mandatory and the word "may" is permissive. Words not defined shall be given their common and ordinary meaning. a. "Waste Hauling Service" shall mean all waste removal services provided by the Company to a commercial establishment located in the City of Round Rock. b. "City" is the City of Round Rock, a municipal corporation, in the State of Texas. c. "Company" is Round Rock Refuse, Inc., a Corporation, authorized to do business in Texas, or its successor, transferee or assignee. d. "Council" shall mean the governing body of the City of Round Rock. e. "Gross Revenues" shall mean all revenues derived directly or indirectly by the Company, its affiliates, subsidiaries, parent, and any person in which the Company has a financial interest, from or in connection with the operation of a waste hauling service pursuant to this ORREFUS2 Ordinance. "Gross Revenues" shall not include any taxes on waste hauling services furnished by the Company imposed directly upon any customer by the state, city or other governmental unit and collected by the Company on behalf of such governmental units. f. "Street" or "Alley" is a publicly dedicated or maintained right-of-way, a portion of which is open to use by the public for vehicular travel. g. "Sidewalk" is that portion of a street which is not improved and maintained for vehicular travel. Section 2: Granting of Franchise There is hereby granted to Company for the full term of five (5) years from the effective date of this Ordinance the right, privilege, and franchise to have, use and operate in the entire area of the City a waste hauling service; and to have, use and operate its vehicles in, over, under, along, and across the present and future streets and alleys. This grant for use of City streets and alleys, is nonexclusive and does not establish priority for use over other franchise holders, permit holders and the City's or public's use of public property. The Company's use of City streets and alleys, shall be subject to and in accordance with the City's policies and procedures governing said use. Section 3: Acceptance of Franchise Ordinance by Company Upon adoption of this Franchise Ordinance and execution hereof by Company, Company agrees to be bound by all the terms and conditions contained herein, as evidenced by filing with the City Clerk, in writing, within fifteen (15) days after the final passage of this Franchise Ordinance, an unconditional acceptance of the Franchise Ordinance and promise to comply with and abide by all its provisions, terms, and conditions. The acceptance and promise shall be acknowledged before a notary public. In the event the acceptance is not filed as provided for herein, this Ordinance and the rights and privileges hereby granted shall terminate and become null and void. Section 4: Time Is Of The Essence Whenever this Franchise Ordinance shall set forth any time for an act to be performed by or on behalf of the Company, such time shall be deemed of the essence. Section 5: Franchise Fee -- Review and Penalties Costs -Audits -- Review and Penalties a. Since the streets and public easements to be used by the Company in the operation of its waste hauling service 2. within the boundaries of the City are valuable public properties acquired and maintained by the City at great expense to its taxpayers, and since the grant to the Company of the use of said streets and alleys is a valuable property right without which the Company would be required to invest substantial capital in right-of-way costs and acquisitions, and since the City will incur costs in regulating and administering the franchise, the Company shall pay quarterly to the City a franchise fee in an amount equal to ten percent (10%) of the Gross Revenues derived during the preceding quarter from or in connection with the operation of its waste hauling service within the City pursuant to this Ordinance. b. The franchise fee and other costs or penalties assessed shall be paid quarterly to the City of Round Rock on or before the last day of the month following the end of the quarterly period for which said payment is due. A five percent (5%) penalty will be assessed on delinquent amounts. An additional five percent (5%) penalty will be assessed if such delinquent amounts are not paid within 30 days from the date due. Thereafter, the delinquent amount will bear interest at the rate of ten percent (10%) per annum until paid. The franchise fee payment shall be delivered to the City Director of Finance, along with a franchise fee statement, showing, in a form prescribed or approved by the City Manager, the calculations of the amount of such quarterly payment. This fee statement shall be certified by an officer of the Company. c. The Company shall file annually with the City Director of Finance, no later than four (4) months after the end of the Company's fiscal year, either a sworn statement signed by an officer of Company, or an audited statement. Such sworn or audited statement shall show the revenues attributable to the operations of its waste hauling service within the City pursuant to this ordinance. This statement shall present, in a form prescribed or approved by the City Manager, a detailed breakdown of gross revenues. If Company elects to provide an audited statement, it shall have been audited by an independent Certified Public Accountant whose report shall accompany the statement. d. The City shall have the right to review or audit the Company's franchise fee statements and statements of revenues and other books and records, and to recompute any amounts determined to be payable under this Ordinance; provided, however, that any such review or audit shall take place within thirty-six (36) months following the close of the fiscal year covered by such statement(s). Any additional amount due to the City as a result of the City's review or audit shall be paid within thirty (30) days following written notice to the 3. Company by the City. In addition to the right to review the records, the City shall have the right to select an independent accounting firm to audit the books and records of the Company to determine compliance with their Ordinance. The costs of the audit, if requested by City, shall be paid by City; provided, however, that in the event the audit reveals an error in Company's reporting of gross revenues by a margin of greater than three percent (3%), then the cost of the audit shall be paid by Company. Section 6: Police Powers In accepting this franchise, the Company acknowledges that its rights hereunder are subject to the police power of the City to adopt and enforce Charter provisions and ordinances necessary to the health, safety and welfare of the public; and ordinances enacted by the City pursuant to such power. Section 7: Franchise Required No company providing waste hauling services shall be allowed to occupy or use the streets of the City or be allowed to operate within the City without a franchise. Section 8: Notices All notices from Company to the City pursuant to this franchise shall be to the City Manager, City of Round Rock, 221 East Main Street, Round Rock, Texas 78664. All notices to the Company pursuant to this franchise shall be to Ralph Rocco, Round Rock Refuse, Inc., P.O. Box 18685, Austin, Texas 78760-8685. Section 9: Liability Insurance a. The Company shall maintain throughout the term of the franchise, extended coverage and general liability insurance with an insurance company licensed to do business in the State of Texas, insuring against claims for liability or damages. Extended coverage insurance under this section shall be a minimum of One Million and No/100 ($1,000,000.00) Dollars for the protection of the public in connection with: (1) Liability to persons or damages to property, in any way arising out of or through the acts or omissions of Company, its servants, agents or employees or to which Company's negligence shall in any way contribute; and (2) Arising out of Company's operations and relationships with any independent contractor or subcontractor. 4. b. The insurance policy obtained by the Company in compliance with this section shall be approved by the City Attorney, and such insurance policy, along with written evidence of payment of required premiums, shall be filed and maintained with the City Secretary during the term of the franchise, and shall be changed from time to time to reflect changing liability limits, as reasonably required by the Council. The Company shall immediately advise the City Attorney of any significant litigation, actual or potential, that may develop that would affect this insurance. c. All insurance policies maintained pursuant to this franchise shall contain the following conditions by endorsement: (1) The City of Round Rock shall be named insured and the term "owner" or "City of Round Rock" shall include all authorities, Boards, Bureaus, Commissions, Divisions, Departments, and offices of the City and the individual members, employees and agents thereof in their official capacities and/or while acting on behalf of the City. (2) Each policy shall require that thirty (30) days prior to the cancellation or material change in policies a notice thereof shall be given to the City Manager or City by certified mail. (3) Insurers shall have no right of recovery against the City it being the intention that the insurance policies shall protect the Company and the City and shall be primary coverage for all losses covered by the policies. (4) The policy clause "Other Insurance" shall not apply to the City of Round Rock where the City is an insured on the policy. (5) Companies issuing the insurance policies shall not have recourse against the City of Round Rock for payment of any premiums or assessments which all are set at the sole risk of the Company. d. If the City Attorney of City determines that a certificate of insurance is acceptable evidence of insurance coverage, a copy of the endorsement required under the above item "c" shall be attached to the certificate of insurance. Section 10: Indemnity The Company agrees to indemnify, defend, and save harmless the City, its agents, officers and employees, against and from any and all claims by or on behalf of any person, firm, or 5. corporation, arising from the conduct of or management of the franchise, or from any occurrence in connection with the franchise; and from any and all claims arising from any breach or default on the part of the Company in the performance of any covenant or agreement on the part of the Company to be performed pursuant to the terms of its agreement, or arising from any act or negligence of the Company, or any of its agents, contractors, subcontractors, servants, employees, or licensees; and from and against all costs, counsel fees, expenses and liabilities incurred in or about any such claim or proceeding brought thereon. Section 11: Failure of City to Enforce this Franchise, No Waiver of the Terms Thereof The Company shall not be excused from complying with any of the terms and conditions of this franchise by any failure of the City upon any one or more occasions to insist upon or to seek compliance with any such terms or conditions. Section 12: Right of Individuals The Company shall not deny service, or otherwise discriminate against customers or any citizen on the basis of race, sex, color, religion or national origin. Section 13: Severability If any section, subsection, sentence, clause, phrase or portion of this Ordinance is for any reason held invalid or unconstitutional by any court of competent jurisdiction, such portion shall be deemed a separate, distinct and independent provision, and such holding shall not affect the validity of the remaining portions thereof. Section 14: Forfeiture and Termination a. In addition to all other rights and powers retained by the City under this franchise or otherwise, the City reserves the right to declare this franchise forfeited and to terminate the franchise and all rights and privileges of the Company hereunder in the event of a breach of its terms and conditions. (1) Violation of any material provision of the franchise or any material rule, order, regulation, or determination of the City made pursuant to the franchise; (2) Attempt to evade any material provision of the franchise or to practice any fraud or deceit upon the City or the Company's customers; 6. b. In order for the City to declare a forfeiture, City shall make a written demand that the Company comply with any such provision, rule, order, or determination under or pursuant to this franchise. If the violation by the Company continues for a period of thirty (30) days following such written demand without written proof that the corrective action has been taken or is being actively and expeditiously pursued, the Council may take under consideration the issue of termination of the franchise. The City shall cause to be served upon Company, at least twenty (20) days prior to the date of such a Council meeting, a written notice of intent to request such termination and the time and place of meeting. Public notice shall be given of the meeting and issue which the Council is to consider. c. The Council shall hear and consider the issue, shall hear any person interested therein, and shall determine, in its discretion, whether or not any violation by the Company has occurred. d. If the Council shall determine that the violation by the Company was the fault of Company and within its control, the Council may declare the franchise of the Company forfeited and terminated, or the Council may grant to Company a period of time for compliance. Section 15: Receivership The City shall have the right to cancel this franchise one hundred twenty (120) days after the appointment of a receiver or trustee to take over and conduct the business of the Company, whether in receivership, reorganization, bankruptcy or other action or proceeding, unless such receivership or trusteeship shall have been vacated prior to the expiration of said one hundred twenty (120) days, or unless: a. Within one hundred twenty (120) days after his election or appointment, such receiver or trustee shall have fully complied with all the provisions of this Ordinance and remedied all defaults thereunder; and b. Such receiver or trustee, within one hundred twenty (120) days, shall have executed an agreement, duly approved by the court having jurisdiction, whereby the receiver or trustee assumes and agrees to be bound by each and every provision of this Ordinance and the franchise granted to the Company. Section 16: Bankruptcy The Council shall have the right to cancel this franchise immediately should the Company liquidate, become insolvent, bankrupt, make a transfer for the benefit of creditors, reorganize and enter into an arrangement for the benefit of 7. creditors, or file a voluntary petition under any section or chapter of the National Bankruptcy Act, as amended, or under any similar law or statute of the United States or state thereof; or should an involuntary petition in bankruptcy be filed against the Company and not be dismissed within one hundred twenty (120) days after the filing. II. RENEWAL OF FRANCHISE This franchise may be renewed by the City upon application of the Company pursuant to the procedure established as follows, and in accordance with the then applicable law: a. At least twelve (12) months prior to the expiration of the initial term of this franchise, Company shall inform the City in writing of its intent to seek renewal of the franchise. Subsequent renewals shall be filed for as specified by the City Council. b. After giving public notice, the City shall proceed to determine whether the Company has satisfactorily performed its obligations under the franchise. c. If the Council finds that a renewal of the franchise with Company is within the public interest, Council may enter into a renewal of the franchise with Company under the then appropriate terms and conditions for an additional term of five (5) years. Subsequent renewal for five (5) year periods may be applied for by Company in accordance with procedures outlined in this Article. d. Company shall not have any express or implied right of renewal of this franchise and any such renewal determination rests solely with the City Council whose decision therein shall be final. III. A. All ordinances, parts of ordinances, or resolutions in conflict herewith are expressly repealed. B. The invalidity of any section or provision of this ordinance shall not invalidate other sections or provisions thereof. 8. Alternative 1. By motion duly made, seconded and passed with an affirmative vote of all the Council members present, the requirement for reading this ordinance on two separate days was dispensed with. READ, PASSED, and ADOPTED on first reading this day of , 1992. Alternative 2. READ and APPROVED on first reading this the / v ~ day 3,L of , 1992. READ, APPROVED and ADOPTED on second reading this the of e , 1992. ATTEST: NE LAND, City Secretary MIKE ROBINSON, Mayor City of Round Rock, Texas 9. ACCEPTANCE The Company accepts and hereby agrees to be bound by all the terms and conditions of this Franchise Ordinance. ROUND ROCK REFUSE, INC. By: THE STATE OF TEXAS COUNTY OF WILLIAMSON Ricard Butler, President BEFORE ME, the undersigned authority, on this day personally appeared Richard Butler, President of Round Rock Refuse, Inc., a corporation, known to me to be the person whose name is subscribed to the foregoing instrument, and acknowledged to me that he executed the same for the purposes and consideration therein expressed, in the capacity therein stated and as the act and deed of said corporation. GIVEN UNDER MY HAND AND SEAL OF OFFICE, this the o70 441 day of _OL -v u-Gth-vi , 1993 10. Notary Public, State of Texas Printed Name: tonna Mare. Wed -Son My Commission Expires: lo -2 3-9 5 b t`}ham ..tri N.`! TzFIATS0141 S fi.Ps,°"'"RY PUt3LIC of TrAas Cvrcrn, EY.p. i0 23-Y 5 DATE: December 18, 1992 SUBJECT: City Council Meeting, December 22, 199 2 ITEM: 8.c. Consider an ordinance granting a franchise to Round Rock Refuse for commercial garbage pick-up. (Second Reading) STAFF RESOURCE PERSON: Jim Nuse STAFF RECOMMENDATION: Round Rock recently passed an ordinance requiring a franchise fee to be paid by commercial garbage haulers. Five haulers currently provide commercial pick-up in Round Rock. Round Rock Refuse has applied to obtain a Franchise Agreement. Staff recommends approval of this agreement. ECONOMIC IMPACT: The impact of the overall franchise program will be to generate over $70,000 for road repair.