§ 7-8. Commercial waste collection franchise.

(a)

Grant. For and in consideration of compliance by the franchisee with the covenants and conditions herein set forth, and the ordinances and regulations of the City of Terrell, Texas, governing the collecting and disposing of commercial stationary compactor containers, discarded tire containers, and construction rolloff containers, and upon application and approval as provided herein, the city hereby agrees to grant a franchise to use the public streets, alleys and thoroughfares within the corporate limits of the city for the purpose of engaging in a limited business of collecting and disposing of garbage and solid waste generated within the corporate limits of the city.

(b)

Term. Prospective franchisees shall make application to the city manager to be considered for a franchise under the covenants of this section. Said franchise, if granted, shall remain in effect for the term set forth in said franchise agreement or until the next succeeding January 1, when each franchisee is eligible to renew its franchise. Each application shall provide information including, but not limited to: company name, operation address, client listing and standard operating procedures. Filing deadline for either original service or renewal shall be November 1, preceding the applicable January 1.

(c)

Nonwaiver of powers. This franchise shall not be taken or held to imply the relinquishment or waiver by the city of its power to make reasonable requirements or regulations, and the city hereby expressly reserves the right to make all regulations which may be necessary to properly secure, in the most ample manner, the safety, welfare, and accommodation of the public including, among other things, the right to adopt and enforce regulations to protect and promote the health and general welfare of the public from danger and inconvenience in the management and operation of garbage and waste collections, and to provide such service as is contemplated by this franchise.

(d)

Nonwaiver of regulations. Nothing herein contained shall constitute a waiver of any of the requirements of the rules and regulations heretofore adopted by the city including the right to make such changes and amendments of said rules and regulations as said city may deem to be advisable and necessary to protect the public health and general welfare of its inhabitants.

(e)

Scope and nature of operation. It is expressly agreed and understood that the franchisee shall collect and deliver for disposal all garbage, brush and limbs, bulky items, and building materials from commercial establishments and construction sites which are contracted by the franchisee, with the sole exception of hazardous waste or other prohibited waste as defined by the United States Environmental Protection Agency and the Texas Department of Health. The franchisee shall, at its own expense, furnish personnel to collect garbage and solid waste and will establish and maintain, in an efficient and businesslike manner, such scheduled routes and special schedules as may be necessary to fulfill the solid waste service requirements of the city. Unless otherwise established by ordinance, collection schedules shall be determined by the franchisee based upon negotiation with the customers. Information on customer locations, routes and schedules shall be supplied to the city by January 31 each calendar year.

(f)

Performance standards. The franchisee shall submit with its application a standard operating procedure for review. The city shall review the application and procedure and award a franchise if a vacancy exists and the applicant meets the requirements of this section. The city council shall act on the proposed procedure and application within 60 days after filing. Costs which may hereafter be incurred by the franchisee in conforming with any changes in standards of performance shall, at that time, be negotiated between the parties thereto.

(g)

Collection rates. The franchisee shall have sole discretion regarding setting and implementation of rates. This franchise is not designed to dictate to the franchisee what rates should be charged to its customers but rates shall not be in excess of those charged in neighboring cities nor increase by more than ten percent from year to year, without express consent of the city.

(h)

Billing; payments. The franchisee shall be responsible for billing its commercial accounts and collecting payments from its customers. The billing methods and arrangements may from time to time, be changed by the franchise but, in any event, the franchisee agrees to bill customer within 15 days after the franchisee provides the customer with the service. The franchisee agrees to remit the city's portion of the collections (street use fees) within 20 days following each billing.

(i)

Street use fees. In consideration of the grant contained in subsection (a) hereof, the franchisee agrees to pay to the city a street use fee equal to eight percent of the gross receipts collected by the franchisee from contracted solid waste accounts for services rendered under the provisions of this franchise, said fees to be paid monthly. Additionally, the franchisee will provide, on an "as needed" basis, commercial collection of three-yard container routes if requested by the city.

(j)

Complaint handling by franchisee. The franchisee shall, at its own expense, provide a telephone answering service, or office, to answer calls from 8:00 a.m. until 5:00 p.m. daily, Monday through Friday, excluding such holidays as may be approved by city for the purpose of handling complaints and other calls regarding collection services provided by the franchisee.

(k)

Vehicular identification. All vehicles and equipment used by the franchisee for the collection and transportation of commercial garbage and solid waste shall be clearly marked with the franchisee's name in letters not less than two inches in height. In the event the city shall at any time require, the franchisee shall also assign to each of its vehicles an identifying number and shall mark the same upon said vehicles in figures not less than two inches in height.

(l)

Regulations of commercial collection containers. The franchisee shall provide, at its own expense, containers to the owner or occupant of any premises wherein it contracts for commercial storage collection of solid waste, subject to the following requirements:

(1)

All such containers shall be constructed according to reasonable specifications which are acceptable in the industry.

(2)

All such containers shall be enclosed or equipped with suitable covers to prevent blowing or scattering of refuse or garbage which is being transported for disposal.

(3)

All such containers shall be maintained by the franchisee so as to be in good repair. The owner or occupant shall be responsible for odor, insect, rodent and scattered waste control in or about containers.

(4)

All such containers shall be clearly marked with the franchisee's name and telephone number in letters not less than two inches in height.

(5)

The above conditions do not apply to temporary container service.

Each customer, at his option, may purchase a compactor and the disposal rates will be adjusted appropriately.

(m)

Transfer or assignment of franchise. The franchise agreement may be transferred or assigned upon obtaining prior written approval of the City of Terrell. Said assignee or transferee shall comply with all requirements for obtaining an original franchise under this section and any other terms and conditions set forth by the City of Terrell.

(n)

Termination for cause. If at any time franchisee shall fail to perform any of the terms, covenants or conditions herein set forth, provided such failure is not due to war, insurrection, riot, strike, natural disaster, or any other cause beyond the franchisee's control, the city may, after a hearing as described herein, control, revoke and cancel the grant given in subsection (a) hereof and this franchise shall be null and void. The hearing prerequisite to such revocation shall not be held until notice of such hearing has been given to the franchisee by registered or certified mail, addressed to the franchisee at the address shown on the records of the city, and a period of at least ten days has elapsed since the receipt of such notice. The notice shall specify the time and place of the hearing and shall include the specific reasons for revocation of such franchise and this agreement. The hearing shall be conducted in public by the city council of the City of Terrell, and the franchisee shall be allowed to be present and given full opportunity to answer such charges and allegations as are set out against him in the notice. If, after the hearing is concluded, the city council shall determine that the charges and allegations set forth in this notice are affirmed by the facts presented at the hearing, they may, by a two-thirds vote of the city council, revoke and cancel the franchise; and the same shall be null and void 30 days thereafter.

(o)

Books and records. The city and the franchisee agree to maintain at their respective places of business, adequate books and records relating to the performance of their respective duties under the provisions of this agreement. The records of both parties applicable to the performance of this agreement shall and will be available when wanted for inspection by the other party at any time during normal working hours. The franchisee may, at any time, and at the city's option, be required to cause a formal audit to be made of that portion of such franchisee's books and records representing the city's operation or any portion of its other operations which may be allocated or charged to the city operation. Both parties agree that the expense of such audit will be paid for by the city, if such audit is required by the city. The city may also appoint a supervisor to overview the franchisee operation.

(p)

Indemnification insurance. The franchisee assumes the risk of loss or injury to property of persons arising from any of its operations under this agreement, with the exception of public streets and alleys to be traveled by the franchisee's vehicles in the normal course of business, and agrees to indemnify and hold harmless the city from all claims, demands, suits, judgments, attorney's fees arising from any such loss or injury. It is expressly understood that the foregoing provision shall not in any way limit the liability of the franchisee. The franchisee agrees to carry insurance during the entire term of this agreement as follows:

(1)

Workers' compensation insurance covering all employees of such franchisee engaged in any operation covered by this agreement.

(2)

Automobile and public liability insurance in amounts not less than those established as maximum recovery limits under the Texas Civil Practice and Remedies Code.

Such policies of insurance shall be issued by companies authorized to conduct business in the State of Texas, and shall name the city as additional insured. Certificates evidencing such insurance contracts shall be deposited with the city. The policy limits provided herein shall change in accordance with the provisions for maximum liability under the Texas Civil Practice and Remedies Code and the laws of the State of Texas relating to workers' compensation insurance.

(q)

Notification. This document constitutes the entire agreement and understanding between the parties hereto, and it shall not be considered modified, altered, changed, or amended in any respect unless modified by ordinance of the city as provided herein.

(r)

Right to require performance. The failure of the city at any time to require performance by the franchisee of any provision hereof shall in no way affect the rights of the city, or shall any breach of any provisions hereof be taken or held to be a waiver of any provision itself.

(Ord. No. 1610, 3-20-90; Ord. No. 1654, 8-5-91; Ord. No. 1947, Art. I, 11-3-98; Ord. No. 1968, Art. I, 6-1-99)