Tuolumne County Municipal Code Ch. 7.16 Franchise Requirements

Sections:

• 7.16.010 Franchise-Application contents.

• 7.16.020 Franchise-Operating plan.

• 7.16.030 Franchise-Operating plan contents.

• 7.16.040 Franchise-Evaluation and approval-Hearing.

• 7.16.050 Franchise-Contents of agreement.

• 7.16.060 Franchise-Recordkeeping, inspection and reporting.

• 7.16.070 Franchise-Annual financial report.

• 7.16.080 Franchise-Notification of enforcement.

• 7.16.090 Franchise-Fee.

• 7.16.100 Franchise-Transfer.

A. Applications for a new franchise or modification of an existing franchise shall be made to the SWM upon the forms provided by the SWM and shall include all the following information:

1. Name and description of the applicant;

2. Permanent home and business address and full local address of applicant;

3. Identification of trade name or company name under which the applicant intends to conduct business. If multiple trade or company names will be used, a description of each business entity must be included. If a joint venture, a partnership or limited partnership, the names of all partners and their percentage of participation and their permanent address. If a corporation, the names and permanent addresses of all officers and the stockholders (unless publicly traded) and the percentage of ownership participation of each. The application shall include a statement of ownership, under penalty of perjury, in a form prescribed by the SWM;

4. Facts showing that the applicant is able to render efficient service;

5. Such other applicable facts or information as the SWM may require.

B. The SWM may, at Ms option, require photographing and fingerprinting of the persons making application.

C. If an application is received for a new franchise, any competing applications must be submitted within forty-five days thereafter. (Ord. 2058 § 4 (part), 1994).

application for a franchise as provided for in this title, each applicant shall provide to the SWM a franchise operating plan. An application for modification shall include only revisions to appropriate sections of the plan. The plan shall be reviewed by the SWM to determine compliance with this title. The franchise operating plan shall be prepared according to the following requirements:

A. In an application for a franchise for collection or transportation of solid waste in a collection area, as described in Section 7.12.020(A), the contents of the plan shall include the components identified in subsections A through H of Section 7.16.030.

B. In an application for a franchise for disposal or arrangement for disposal of solid waste as described in Section 7.12.020(E), the contents of the plan shall include the components identified in subsections A, B, C, D and H of Section 7.16.030.

C. In an application for a franchise to transfer or process solid waste as described in Section 7.12.020(F), the contents of the plan shall include the components identified in subsections A, B, C, D and H of Section 7.16.030. (Ord. 2058 § 4 (part), 1994).

The components of the operating plan, as specified in other parts of this title, may include any or all of the following:

A. A detailed description of the manner in which the proposed service will be conducted, including an estimate of the various numbers of units of measure which describe the size and effect of the proposed service. Units of measure may include the number of households serviced by collection, number of users seeking service at a proposed facility, number of yards and density or tonnage of solid waste or recyclables as input and output for a proposed service. The detailed

description must also contain the applicant's proposed arrangements for disposal of all solid waste collected or transported either to him/her or by him/her, or as a result of processing or handling, including solid wastes resulting from the collection and transport of recyclables, at an approved disposal site or his/her arrangements for other authorized disposal;

B. A complete description of all trucks and equipment that the applicant owns or has under its control which it proposes to use for providing services under the requested franchise and the address or location and the zoning designations of the parcel or parcels where the trucks and operating equipment will be kept. This description of trucks and equipment must be augmented by evidence showing that the applicant owns or has under his/her control, in good mechanical condition, sufficient trucks and equipment to adequately conduct the business being proposed. The evidence may be provided in a manner such as an inventory of trucks and equipment which lists the year, make and model, license number, VIN or serial number, registered owner and working condition;

C. A detailed cost projection for operating the applicable service, the profit margin estimated for that service, and the cost and revenue basis for the profit margin. The plan shall be based on the projected services to all customers, at the current or anticipated service levels, on a monthly or annual basis. The cost and revenue estimates shall be based entirely on the services for which the application is made, and shall not include cost or revenues from any other services, except cost allocations for assets or labor shared with any other service or business may be included using generally accepted accounting principles. The revenue estimate shall include the proposed rates which will be applicable to all customers of the proposed service;

D. A description of the recordkeeping systems to be used by the applicant to account for the types and quantities of materials to be included in the proposed service recorded separately from the types and quantities of materials included in other services which are not a part of the application;

E. If the applicant is proposing or is obligated to provide residential or commercial recyclables collection services, the following shall additionally pertain to the plan:

1. For residential services the plan must include a description of the means for source separation and collection and the estimated quantities to be collected annually of, at a minimum, the following recyclables:

a. Newspaper,

b. Cardboard,

c. Aluminum cans and containers,

d. Other metal containers including tin/steel, cans

e. Glass, and

f. Plastic,

2. For commercial services the plan must include a description of the proposed means for source separation and collection and the estimated quantities to be collected annually, at minimum, of the following recyclables:

a. Newspaper,

b. Cardboard,

c. Office paper,

d. Construction and demolition debris and wood wastes,

3. For commercial or residential recyclables collection services, a description of any and all actions to be taken in the event markets for each recyclable designated for collection become unavailable;

F. Identification of the collection area or modification of the collection area in which the applicant is requesting to operate. Such identification shall be in the form of a map depicting existing and proposed boundaries, accompanied by a written description;

G. Presentation of all facts which the applicant believes will show that the public health, safety, welfare, convenience and necessity require the authorization of the requested activity;

H. Any additional components required by the SWM. (Ord. 2058 § 4 (part), 1994).

Hearing.

A. Upon receipt of a completed application, including a franchise operating plan, the SWM shall determine if the application and plan and proposed service conform to the requirements of this title. The SWM shall determine whether the applicant has the necessary equipment and facilities to adequately provide the service applied for and if the applicant meets all the other requirements of this title. The SWM shall forward the application and plan to the LEA for review and comment. Upon completion of the investigation, the SWM shall recommend to the board that the application and plan be approved or denied for the requested franchise. If the

recommendation is to approve the application or modification, a proposed franchise agreement also will be forwarded to the board for consideration during the public hearing provided for in subsection B of this section.

If the board overturns the recommendation of denial, it may approve, or approve with modifications, the application and plan and return the matter to the SWM for negotiation of a proposed franchise agreement which will include the modifications determined by the board. A franchise shall be approved by the board only if it determines public health, safety, welfare, convenience and necessity so require.

B. The board shall hold a public hearing, after having given notice as provided in Government Code Sections 66016 and 66018.
Following the hearing the board may establish charges if it will further the purposes of this title. (Ord. 2058 § 4 (part), 1994).

franchise shall contain at least the following components:

A. An identification of the collection area, if any, covered by the agreement;

B. A description of the rights granted and the obligations assumed under the agreement;

C. A requirement that the franchisee comply with the terms of the approved franchise operating plan;

D. Adequate insurance to protect the county's interests;

E. Adequate security to protect the county against financial losses if there is any failure or deficiency in performance by the franchisee;

F. Provisions for the term of the agreement renewal and termination;

G. Hold harmless and indemnification provisions;

H. A prohibition against assignment or transfer without the consent of the board;

I. Provisions directing the delivery of waste by collection franchises;

J. Provisions allowing disposers and arrangers to select a disposal site, but if a less expensive (total cost) alternative exists, a customer rate reduction will be implemented unless consent for use of the more expensive site is granted;

K. Franchise fees;

L. Customer rates;

M. Liquidated damages and other remedies for fee delinquencies and performance deficiencies;

N. Dispute resolution and remedies;

O. Provisions requiring operations to be consistent with the source reduction and recycling element;

P. Provisions for buy-out. (Ord. 2058 § 4 (part), 1994).

and reporting.

A. Each franchisee shall maintain detailed books and records of all receipts and expenditures received or incurred in the operation of such business, including all fees collected for services rendered. The records shall include cost accounting components using generally accepted accounting principles reflecting the cost allocation of any assets or labor shared with services or businesses other than the service authorized by the franchise. Upon reasonable notice during normal business hours, the county, its officers and employees, authorized by the county administrative officer or county auditor controller, shall be entitled to inspect, audit and copy such books and records including books and records of any business or service which shares assets or labor with the franchise operator. Items requested by franchisee to be considered confidential are subject to the public records act as it may be amended.

B. Each franchisee providing recyclables collection services shall submit the annual recycling report described in Section 7.20.080(B). In addition, the report shall contain the following:

1. An estimate of the percentage of services (%P) participating in the recycling collection program and the basis for the estimate, defined as shown: %P = (Services participating/total services) x 100

2. An estimate of the total percentage (%T) of the waste stream being diverted through the recycling collection program and the basis for the estimate, defined as shown: %T = (Recyclables collected/total wastes collected) x 100

3. A summarized accounting of operational costs incurred in the performance of collection, processing, and marketing of recyclables including the cost of recycling containers, collection methods, etc.;

4. A summarized accounting of revenues received from the sale of recyclables;

5. Statement of net operating profits or losses (Net) from the recycling operations, defined as follows: Net = Revenue from sales - operational costs. (Ord. 2058 § 4 (part), 1994).

A. A franchisee, at its expense, shall annually provide the SWM, at Ms option, with a copy of a reviewed financial statement or an unqualified audit within one hundred twenty days after the close of its fiscal year. The reviewed financial statement or unqualified audit shall be prepared by a certified public accountant or licensed public accountant. The accountant shall be independent of the franchisee, and shall have no financial interest whatsoever in the business of the franchisee. The county auditor shall specify the form and detail of either the annual reviewed financial statement or unqualified audit.
In the event of failure to provide any such report, the SWM may employ a qualified accountant or the county auditor to prepare the report, and the franchisee, in such case, shall be liable for and pay the costs and expenses of the accountant or county auditor.

B. The SWM shall review the financial information and if it appears a rate modification may be in the public interest, a recommendation may be forwarded to the board pursuant to Section 7.28.030(B). Additionally, the SWM may recommend any modification to the franchise agreement as provided therein. (Ord. 2058 § 4 (part), 1994).

enforcement.

A. If the franchisee is found to be in violation of any of the provisions of this title, the SWM shall notify the franchisee of such violation in writing. The franchisee shall respond in writing to the SWM within five working days of receipt of the complaint and shall address the complaint to the satisfaction of the SWM. The SWM may, from time to time, extend to the franchisee, additional time necessary to rectify the complaint. This remedy shall be in addition to any other enforcement provisions contained in the franchise agreement, or this title.

B. Upon written notification by the SWM that its obligation to provide services under Section 7.12.030(A) is no longer deferred, the franchisee shall, within seven days, commence providing the service. (Ord. 2058 § 4 (part), 1994).

pay an annual fee on July 1st of each year in an amount set forth in Chapter 3.40 of this code.
In addition to the annual fee, the franchisee shall pay a franchise fee as provided in the franchise agreement. The franchise fee may be reviewed and modified by the board from time to time upon recommendation of the SWM after a public hearing thereon pursuant to Section 7.16.040(B). (Ord. 2058 § 4 (part), 1994).

considered to be in the nature of a personal services contract on behalf of the citizens of the county, and cannot be transferred or assigned without the written consent of the board, upon recommendation of the SWM. (Ord. 2058 § 4)